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Murder in NSW is defined by the Crimes Act. Murder is regarded as the most serious criminal offence that can be committed. The proofs of the offence are as follows:

  1. The victim was a human being;
  2. The victim died;
  3. The act or omission of the accused caused the death of the victim; and
  4. The act of the accused was without lawful cause or excuse; and
  5. The accused:
  • intended to kill or do grievous bodily harm to some person; or
  • foresaw that it was probable that the death of a person would result; or
  • intended to commit a felony punishable by penal servitude for life or 25 years.

With regard to the first proof, this may seem obvious. However, it may be an issue if a new born child is killed at the time of birth or during the pregnancy. For an accused to be liable for murder, the child victim must have been born and taken a breath. The child need not at the time rely solely on its own circulatory system. If this proof is not met, then the crime of murder cannot be proved.

There is now no rule of law that if the death occurred a year and a day after the incident that the accused cannot be found guilty of murder. This was a part of our law but was abrogated by the legislator in 1990. However, this new provision does not apply to a murder where the incident occurred prior to this provision being added to the Crimes Act.

So, if the alleged incident occurred in 1989 and the accused was only just now arrested, the Crown would have to prove beyond reasonable doubt that the victim died within a year and a day of the injury being inflicted.

The point of that law was that if the victim survived for one full year after the incident that the cause of death must have been from some other source.However, now in our advanced and technological age where science and medicine have progressed to levels unthought of earlier, the need for this rule was revised.

There is still an onus on the Crown to prove that the death of the victim was caused by the accused and this would be done through expert medical evidence and is a question of fact for the jury to decide at the trial. 

Mental Element

The mental element that is required for the crime of murder is that the accused committed the act causing death with the intention to:

  • kill; or
  • to commit grievous bodily harm to the victim; or
  • with reckless indifference to human life; or
  • in the course of committing a felony that is punishable by penal servitude for life or for 25 years.

Grievous Bodily Harm is a really serious injury and includes any permanent or serious disfiguring of the person.

The fourth element is to cover those circumstances where people are killed where the accused has committed a felony for which they could be liable to penal servitude for life or for 25 years. Such felonies would include armed robbery.

So, if during such robbery where the accused or co-accused is armed with a firearm and during the robbery the firearm is discharged, then the co-accused to the armed robbery, if aware that the firearms were to be used, could be convicted of murder under the Felony Murder rule. 

Reckless Indifference to Human Life

For this offence to be proved the Crown must prove that the accused's actions were so reckless that it would have been probable that the death would have occurred. It is not enough for the Crown to prove that it was possible. In that case the accused could be found guilty of manslaughter or, if driving, of Dangerous Driving Causing Death.

The word, probable, means that the death would have been more probable than not. Whereas, possible, is far wider and could include situations where the death was not probable. 

Intervening Acts

The accused may be found not guilty of the offence if there was an intervening act between the incident and the death of the victim. This will depend on the circumstances of the case. The accused will be found guilty if the court holds that the death was the natural consequence of the accused's action.Say, for example, if the victim's doctor turned off the life support system,this would not entitle the accused to an acquittal of the murder charge.

However, if a doctor negligently administered the wrong drug, or committed some other error in the treatment of the victim, then this would break the causal chain and the accused would be entitled to an acquittal of the murder charge. 

Alternate Verdicts

An accused who is otherwise guilty of murder may be acquitted of that crime and found guilty of a lesser crime in some circumstances. The first of these is provocation. That is the incident only occurred because the victim provoked the accused, thus resulting in the accused losing control and the death of the victim occurring.

This is a partial defence. It will not entitle the accused to an acquittal and can only be used when an accused has been charged with murder. It is a partial defence as it will entitle the accused to be found guilty of Manslaughter instead of murder. The defence would need to satisfy the jury on the Balance of Probabilities that the victim provoked the accused and that the provocation caused the accused to lose self control.

Further, that the conduct of the victim was such as to have induced an ordinary person in the position of the accused to have lost self control as to have formed an intent to kill or inflict grievous bodily harm upon the victim.

There is no rule of law preventing this plea from being successful if the reaction of the accused was disproportionate to the provocation, that the act or omission of the accused was not done suddenly, or that the act or omission was done with the intent to take the life of the victim or inflict Grievous Bodily Harm. 

Diminished Responsibility

This is also a partial defence reducing murder to manslaughter. This defence is made out when at the time of the act the accused's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control themself was substantially impaired by an abnormality of mind arising from an underlying condition. Further, that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 

Dangerous Driving Causing Death

With regard to driving offences, the Crown can charge an accused with murder if the Crown is of the opinion the proofs of murder are covered by the facts of the case at hand. However, the Crimes Act allows for an alternate verdict of Dangerous Driving Causing Death if the jury are not satisfied that the charge of murder has been proved. 


Manslaughter in NSW is still defined at common law. The offence has two categories, Voluntary and Involuntary Manslaughter. Voluntary Manslaughter is where the accused is guilty of murder but has not been successful in arguing a partial defence such as Diminished Responsibility and had the offence reduced to Manslaughter.

For Involuntary Manslaughter to be proved there is no obligation on the Crown to prove that the accused intended to kill the victim. Involuntary Manslaughter has two categories. Negligent Act or Omission Causing Death and Unlawful Dangerous Act causing Death.

For the offence to be proved under the Negligence head the Crown must prove negligence to a very high degree. This standard is much higher than the degree of negligence required for a plaintiff to prove in a civil case. The Crown must show that it was an act of gross negligence.

The fact that the victim consents to the act would not of itself prevent the Crown from obtaining a conviction for this offence.

Where the negligence involves an omission, it must be proved that the accused owned a personal legal duty of care to the victim and that the degree of negligence was high. The person convicted must be shown to owe a duty of care to the victim. The duty must be connected with life so that the ordinary consequences of negligence would be death.

For the head of Unlawful Dangerous Act, the act causing death must be both unlawful and dangerous. It is not sufficient that the unlawfulness of the act was just a breach of a regulation. The act must be a breach of a criminal law and the act must have a high risk that death or grievous bodily harm would follow. It is not required for the Crown to prove that the act was dangerous. It is sufficient that it be proved that a reasonable person would have appreciated that the act done exposed others to the risk of serious injury.

The maximum penalty of this offence is penal servitude for 25 years. 


Infanticide and Child Murder by Mother

Other offences created by the Crimes Act are Child Murder by Mother,Infanticide, Acts done to the person with intent to murder, acts done to property with intent to murder and Other attempts to murder.

Child murder by mother is when the mother causes the death or assists in the death of a child during or after child birth. This offence carries a maximum penalty of 10 years penal servitude.

Infanticide is where the mother kills her child within the first twelve months of the child's life due to post natal depression. The law here makes an allowance for the mental state of the mother who is suffering this condition.This condition would not be enough to evoke a defence of mental illness, which if that was the case, be a defence to the homicide.

Infanticide can both be charged as a substantive offence on its own or be an alternate verdict to a murder charge. 

Conspiracy to Murder or Attempt to Murder

Any person who conspires to commit murder with one or more persons is guilty of an offence. The conspiracy is complete where the agreement is reached between the parties. Any attempt to commit murder is an offence. Any person convicted of an attempt or conspiracy to commit murder is liable to penal servitude for 25 years. 

Dangerous Driving and Dangerous Navigation Causing Death

Dangerous Driving Causing Death and Dangerous Navigation Causing Death are statutory crimes created by the Crimes Act. They deal with the manner of driving a vehicle or vessel. If they are driven in a manner and cause the death of another person then the driver is criminally liable. These offences are committed if the accused person drives the vehicle or vessel at a speed or manner that is dangerous to the public or whilst under the influence of alcohol or a drug.

These offences can be charged in their own right or can be an alternate verdict on a trial of a person for murder or manslaughter. These offences carry a maximum term of 10 years penal servitude.

There is a also a guideline judgment from the NSW Court of Criminal Appeal which indicates that the courts should consider gaol as a first alternative when sentencing such an offender.

Negligent Driving Causing Death

The Traffic Act (NSW) also creates an offence of Negligent Driving where death has been occasioned. With this offence the accused can be sentenced to gaol for a period of two years if the matter is found proved against them. This offence has a lower standard of proof as the Crown would only need to prove Negligent Driving that caused the death of another person. 


This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.

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