Murder

Murder is the most serious offence that a person can be accused of because it carries a mandatory sentence of life or indefinite imprisonment.  Running your defence in a murder case involves a careful analysis of evidence.

The evidence involved in proving a murder charge is often complex involving DNA evidence, forensic evidence about how the deceased passed away and the level of force used by the defendant, if any. There are often complex stories which surround the reasons why a person may be accused of murder and it is important that those relationships are properly understood.

Murder is the intentional and unlawful killing of another human pursuant to s 302 Criminal Code 1899 (‘Criminal Code’). A charge of murder requires proof that the accused has caused the death of another person by a voluntary act or omission. The accused must also have the intention to kill or do grievous bodily harm to a person that need not necessarily be the deceased. The relevant intention may also be constructively found by the court under special circumstances where the death is caused by:

  • An act or omission with a reckless indifference to human life
  • An act done in the prosecution of an unlawful purpose which is of such a nature as to be likely to endanger someone. Commonly, this applies to situations where a person is killed during an armed robbery or burglary.
  • An act that intended to do grievous bodily harm, stupefy or overpower some person for the purpose of facilitating the commission of a crime or the escape of an offender who has committed a crime. However, see also our commentary on the specific offence of acts intended to cause grievous bodily harm.
  • An act that purposely stops the breath of any other person.

Arrest and Court Process

If the Police reasonably suspect that a person has committed the offence of murder, they will attempt to talk to the suspect about the murder.  As in all charges in Queensland, a person accused of murder has the right to remain silent and to have a lawyer present with you before you are questioned.  The consequences of giving an interview to Police are grave and it is important that you receive advice before participating with a police investigation, even if you think you have a defence or explanation.

If you would like to read further about police powers and process during the investigation and arrest stage of criminal procedure, please read Police Investigations and Arrest Powers.

A person charged with murder is placed in a ‘show cause’ position for the purposes of bail.  A person will be kept on remand until granted bail and bail may only be granted by the Supreme Court.

If you would like to read further about bail applications in Queensland and bail applications before the Supreme Court, please download our Guide to Bail Applications.

Murder is an indictable offence that must be heard and determined in the Supreme Court.  However, all charges in Queensland commence in the Magistrates Court and there are important disclosure, committal and pre-trial processes which precede any trial by jury.

If you would like to understand the Queensland court process and structure, please see our library of downloadable resources which provide helpful information about the process.

Defences

There are a number of defences which may be raised in response to a charge of murder including self-defence.  Self-defence is a complete defence to a charge of murder. This means that if it properly raised and the prosecution do not show beyond a reasonable doubt that it does not apply, a person is entitled to be acquitted (found ‘not guilty’).

However, a charge of murder may be downgraded to manslaughter where an accused can prove the legislated partial defences of provocation, diminished responsibility or preservation in an abusive domestic relationship.

Provocation

The defence of provocation under s 304 Criminal Code requires that the accused unlawfully killed another in the heat of passion because of a sudden provocation before there is time for that passion to cool. The accused must prove an actual loss of self-control and that the provocation was such that an ordinary person would have lost self-control. The defence does not apply if the sudden provocation is based on words alone other than in circumstances of a most extreme and exceptional character.

Diminished responsibility

The defence of diminished responsibility under s 304A Criminal Code, requires that the accused suffered from such a state of mind as to substantially impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission.  The state of mind must be caused by a condition of arrested or retarded development, inherent causes or induced by disease or injury. Self-induced intoxication by drugs or alcohol does not give rise to an abnormal state of mind for the purpose of the defence.

Preservation from Domestic Violence

The defence of preservation in an abusive relationship under s 304B Criminal Code requires that the deceased has committed acts of serious domestic violence against the accused in the course of an abusive domestic relationship and the accused believes that it is necessary for his or her own preservation from death or grievous bodily harm to cause the death. It is necessary that the accused has reasonable grounds for that belief having regard to the abusive domestic relationship and other relevant circumstances.

Consequences of being found guilty

The penalty for murder is a mandatory sentence to life imprisonment or indefinite sentence. An indefinite sentence is an order of imprisonment with no fixed date of release. Such an order will only be granted in exceptional circumstances.

The offence of murder carries a mandatory minimum non-parole period of at least 20 years under the Corrective Services Act 2006 (QLD). Depending on the circumstances, a judge may increase the non-parole period by setting a later parole eligibility date. Parole can only be granted by the Parole board Queensland.

Where the court is satisfied that an accused person who has pleaded guilty to a charge of murder understands the nature of the proceedings and the implications of his plea and the consequences that may follow from it, the court may proceed to pass sentence.

The passing of a sentence of imprisonment for murder does not ordinarily involve the exercise of discretion.  It is a life sentence which is given to the defendant which cannot be mitigated.

Legal Representation

A charge of murder is the most serious criminal offence in Queensland because it carries the consequence of life imprisonment.  Engaging legal representation during the initial investigation is important to ensure that if there are avenues of investigation which should be pursued by your defence team that is done at the earliest opportunity.  Examples of this include subpoenas for CCTV footage and downloading of mobile phone and computer data.

It is important that if concerns of self-defence, provocation or defence in a domestic violence relationship are to be raised in your defence, any injuries you have are documented before they heal.

Preparation of your defence case by our dedicated criminal defence team at the earliest opportunity is important to your future.  No matter where you are in the criminal law process, we are here to assist you to achieve the best result possible.

Contact our legal team today to talk about how we can best protect your rights and advance your case on 07 3034 0000 or by submitting a free case appraisal here.

Criminal Law Services