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What is Murder?

Murder is the worst of crimes, being the unlawful taking of a human life. There are different degrees of murder depending upon the state of mind of the defendant and whether extenuating, or mitigating circumstances, were involved that lessen the culpability of the perpetrator.

Australia does not have the death penalty, so the ultimate punishment is not imposed regardless of the heinousness of the offense or the status of the person or persons murdered. For example, the US imposes the death penalty if a public official such as a police officer or government official was killed.


Murder has the element of malice aforethought, or premeditation. It is the most culpable of homicide offenses, meaning that the perpetrator took time to plan or plot the crime and was not provoked or was suffering from a mental defect or abnormality that caused him or her to not know the difference between right and wrong.

Malice is the requisite state of mind, or the intent to kill or to inflict serious bodily harm with a high risk of death. It is also referred to as reckless indifference to human life or intentional disregard of a high probability of death. In other words, did the defendant by his or her act or conduct know that the death would likely be the outcome of the act or omission?

Felony Murder

Felony murder is also referred to as ‘constructive murder.” A person who commits a serious felony and demonstrates the intent to cause grievous or very serious bodily harm and death results, directly or indirectly, can be found to have committed murder.

Examples are the use of firearm while committing a robbery wherein the weapon accidentally discharged and killed the victim. Although intent to kill was not present, the perpetrator committed a serious felony with a weapon that carried a grievous risk of serious bodily harm, or exhibited extreme indifference to human life.


The killing of a person that is committed by reason of provocation, an absence of premeditation, or the offender’s judgment being impaired by alcohol, drugs, or mental instability, may lessen the offense of murder to manslaughter.


Murder is an indictable offense. It is first heard by a magistrate in magistrate’s court who determines if there is sufficient evidence to charge the defendant. If so, the matter is transferred for proceedings and trial in Supreme Court.


The most common defense to murder is self-defense. To use it, the defendant must have reasonably believed his or her life or that of a loved one was in danger of death or serious bodily injury. It also must have been a reasonable response to the attack and did not go beyond what was necessary. For example, if the victim who provoked the attack started to walk away and was shot in the back, it may not constitute self-defense.

It is not a defense to murder if the accused was intoxicated at the time, but if he or she genuinely believed he or she was in danger and judgment was impaired by alcohol or drugs, then self defense may be justified if the response was reasonable based on what he or she perceived the situation to be.

Provocation or excessive force in a self-defense situation will lessen the crime to that of manslaughter.

Duress or diminished responsibility, if not rising to the level of a mental defect or abnormality of mind, are also mitigating circumstances. If self-defense or provocation is not proved, but the accused is found to have committed the crime due to a substantial impairment by abnormality of mind, the offense is reduced to manslaughter.


Typically, murder is punishable by 20 years in prison for a general murder, and 25 years for the murder of a child (under 18) or of a person such as a public official. These are non-parole periods.

Life imprisonment is reserved for those crimes that are so extreme as to warrant the maximum penalty allowed. Multiple murders or contract killings are an example as are those involving torture, extortion, financial gain, or if it occurs in the presence of the victim’s children.