OVERVIEW
2.1 “Unlawful homicide” is the killing of a human being in circumstances where the law does not excuse killing. In New South Wales, unlawful homicide is generally classified as either murder or manslaughter. The murder/manslaughter distinction is a long-standing feature of our law, emerging first in England in the 16th century as a mechanism used to ensure that capital punishment was imposed for certain killings classified as “murder”.1 Today, the distinction between murder and manslaughter is seen to reflect degrees of seriousness of unlawful killings, based on the everyday understanding that some killings are more blameworthy than others. Liability for murder is reserved for the most serious or reprehensible killings, whereas manslaughter applies to unlawful killings which are recognised by the law as less blameworthy, whether because the offender’s mental state was affected by some mitigating influence, or because the offender did not intend to kill or otherwise lacked the requisite guilty mind for murder.
2.2 In DP 31, the Commission considered a proposal to abolish the murder/manslaughter distinction, in light of criticisms that the distinction creates uncertainty, complexity, and inconsistency, and that it ultimately fails to reflect with any accuracy community views on degrees of moral blameworthiness.2 Discussion of possible reforms to the partial defences to murder must therefore begin with consideration of reform to the framework for unlawful homicide itself. This chapter reviews the arguments for and against abolition of the murder/manslaughter distinction, and ultimately concludes that the distinction should be retained.
THE EXISTING FRAMEWORK FOR UNLAWFUL HOMICIDE
2.3 As mentioned, unlawful homicide in New South Wales is generally divided into two categories, murder and manslaughter3 (although the Legislature has also created specific statutory offences for death caused by dangerous driving).4 Manslaughter is further divided into voluntary and involuntary manslaughter. The maximum sentence for murder is penal servitude for life, whereas for manslaughter it is penal servitude for 25 years.5 For both offences, the sentencing judge has a discretion under s 442 of the Crimes Act 1900 (NSW) to impose a lesser penalty than the maximum sentence where this is appropriate in the circumstances of the individual case.
2.4 Both murder and manslaughter require proof that the accused’s act, or failure to act, caused the death of another human being. The distinction between the two, and consequently the assessment of the seriousness of a particular killing, is based on the state of mind of the accused at the time of the killing. The category of “constructive murder” (also known as “felony murder”) is the one exception to this principle, and is discussed further at paragraph 2.8. For all other categories, the requisite states of mind are as follows.
Murder
2.5 For murder (except in the case of “constructive murder”), the prosecution must prove that the accused killed with:6
- an intention to kill; or
- an intention to inflict grievous bodily harm, being bodily harm of a really serious kind;7 or
- a reckless indifference to human life, meaning that the accused foresaw the probability that death would result from his or her act or failure to act.8
Voluntary manslaughter
2.6 For voluntary manslaughter, the prosecution is required to prove the same mental state as is generally required for murder. That is, the accused must be shown to have either intended to kill or to cause grievous bodily harm, or to have been recklessly indifferent to human life. However, the accused will be convicted of voluntary manslaughter instead of murder where his or her mental state was affected in a way which is recognised by law to reduce his or her culpability for the killing. The factors so affecting the accused’s mental state must be shown to constitute either provocation, diminished responsibility, or infanticide.9 These are known as the partial defences to murder, and require proof of some form of mental impairment or loss of self-control which significantly affected the accused’s culpability at the time of the killing.
Involuntary manslaughter
2.7 Involuntary manslaughter is an unlawful killing by a person who cannot be proven to have the requisite guilty mind for murder, but whose conduct falls short of conduct expected of a reasonable person in the same circumstances. An accused may be convicted of involuntary manslaughter by an unlawful and dangerous act or by criminal negligence. Manslaughter by an unlawful and dangerous act requires the prosecution to prove that death was caused by a sufficient kind of unlawful act and that a reasonable person, engaged in the same conduct as the accused, would have realised that he or she was exposing another to an appreciable risk of serious injury.10 Manslaughter by criminal negligence requires the prosecution to prove that the accused’s act or omission causing death involved such a great departure from the standard of care to be expected from a reasonable and prudent person as to deserve to be called a crime against the community generally and conduct deserving punishment.11
“Constructive murder”
2.8 “Constructive murder”, also known as “felony murder”, is the exception to the general principle of unlawful homicide that the seriousness of a particular killing be measured according to the accused’s mental state. “Constructive murder” is a killing committed by the accused or by an accomplice, in an attempt to commit, or during or immediately after the commission of a crime punishable by penal servitude for 25 years, such as aggravated armed robbery. Constructive murder does not involve consideration of the accused’s state of mind in committing the act causing death, such as whether the accused intended to kill. Indeed, constructive murder has been criticised as an anomaly within the law of homicide, given that it permits people to be convicted of murder without consideration of whether or not they intended or foresaw the particular consequences of their actions.12
PROPOSAL FOR REFORM OF UNLAWFUL HOMICIDE
2.9 The Commission has considered a proposal for reform of the framework for unlawful homicide, which would abolish the murder/manslaughter distinction in favour of a single offence of “unlawful homicide”. Within this single category, differences in the degree of culpability for an unlawful killing would be reflected in the sentence imposed on the accused with regard to any mitigating circumstances. We received eight submissions on this particular proposal. Three of those submissions supported the proposal for reform,13 while four opposed it.14 One submission supported the abolition of the distinction between murder and voluntary manslaughter on the basis that the requisite intention was the same for both categories, but asserted that the distinction between murder and involuntary manslaughter should be retained.15
Arguments for abolition of the murder/manslaughter distinction
2.10 The following arguments were advanced by those submissions in favour of abolishing the murder/manslaughter distinction.16
Abolition of mandatory sentencing for murder
2.11 First, it may be argued that the continued classification of an unlawful killing as either murder or manslaughter is unnecessary, because both offences now carry discretionary sentences. Previously in New South Wales, conviction for murder carried with it a mandatory sentence. This meant that a sentencing court was required to impose a specific sentence irrespective of any mitigating factors which were found to exist. Until 1955, the mandatory sentence for murder was death,17 although the Governor had the power to grant mercy and thereby commute the death penalty to a sentence of penal servitude for life in individual cases.18 From 1955 to 1982, the mandatory sentence was penal servitude for life.19 In contrast, the sentence for manslaughter was always discretionary, that is, sentencing courts had a discretion to impose a sentence which was less than the statutory maximum penalty.20
2.12 In 1982, the courts were given a very limited discretion to impose sentences less than life imprisonment for murder, where it appeared that the offender’s culpability was significantly diminished by mitigating circumstances.21 Further legislative amendments in 1990 gave the courts a full discretion to impose a lesser sentence than life for murder, although penal servitude for life remains the statutory maximum, with “life” meaning the term of the offender’s natural life.22 The recent introduction of legislation for so-called “mandatory” life sentences for murder in certain circumstances and some drug offences does not affect this sentencing discretion since, under the legislation, the court may still impose a sentence which is less than life if this is appropriate in the circumstances of the case.23
2.13 Since there is now a discretionary sentence for murder as well as for manslaughter, the distinction between murder and manslaughter is suggested to be no longer necessary for the purpose of differentiating between penalties. Given the difficulties and complexities which can arise in defining the criteria for each category, it may arguably be simpler to have one crime of unlawful homicide, with variations in sentences to reflect differences in gravity.24
Conflict in assigning legal and moral culpability
2.14 Secondly, the distinction between murder and manslaughter recognises differences in culpability for an unlawful killing. However, it may be argued that, in exceptional cases, the legal classification of a killing as murder or manslaughter does not reflect some current views in the community of moral culpability. For example, euthanasia may amount to murder at law while killing under provocation may be reduced to manslaughter. Yet these legal labels do not necessarily correspond to the way in which members of the community would assign moral responsibility in these cases. Nor is it necessarily always clear, in terms of moral culpability, who should be labelled a murderer rather than a person guilty of manslaughter. Arguably, the sentencing process is better able to make finer and more appropriate distinctions between degrees of culpability than is a two-level categorisation of unlawful homicide as either murder or manslaughter.25
Artificiality of distinction
2.15 Thirdly, it may be argued that the murder/manslaughter distinction is artificial because murder and manslaughter are in fact regarded as degrees of one offence, rather than as two separate offences. This is evident from the fact that an accused may be convicted of manslaughter where he or she was indicted for murder, despite the common law rule that prevents conviction for one felony on the charge of another.26 If murder and manslaughter are regarded as parts of a whole, it may be argued that it is artificial to retain the barriers between them, and that instead the law should implement a unified scheme for homicide offences.27 A consequent practical benefit of implementing a unified scheme may be that more people will plead guilty to a charge of “unlawful homicide”, as opposed to a charge of “murder”. If so, there could conceivably be a significant saving of court time, although this is speculative.28
Arguments against abolition
2.16 The following are the main arguments against abolition of the murder/manslaughter distinction.
2.17 First, the terms “murder” and “manslaughter” have long been recognised by the general community to convey differing degrees of moral condemnation for different cases of killing, with particular stigma attaching to the term “murder”. If the murder/manslaughter distinction were abolished, the moral force of those labels would be lost.29 There would follow public confusion and misunderstanding of the court’s finding on an individual’s criminal responsibility, and consequently the public would be less likely to understand and accept sentences imposed for unlawful homicide. With the current trend for sensationalist reporting of sentencing matters in the media, low sentences for a crime of “unlawful homicide”, without any other term to indicate distinctions in degrees of culpability, could easily be misunderstood by the public. Such misunderstanding would tend to bring the criminal justice system into disrepute.
2.18 Secondly, abolition of the murder/manslaughter distinction would shift the role of determining the appropriate level of culpability for an unlawful killing away from the jury in the trial context and onto the sentencing judge at the sentencing stage. This would mean that the jury, as representatives of the community, would be excluded from the process of determining who is sufficiently culpable to warrant being convicted of murder. This question of culpability is fundamental to the consequences of being convicted, and as such should properly be left to the jury as representatives of the community to decide, and not to a single judge within the sentencing process.30 A group of people drawn from the community are more likely to be broadly representative of community opinions and moral sensibility than a single judge. This is important in terms of the legitimacy of the criminal process for those who are charged with and convicted of an offence as serious as murder or “unlawful homicide”. It is also important in terms of public acceptance of decisions in the criminal process.
2.19 Thirdly, while there may be particular instances where the way in which the law assigns culpability does not correspond to the way in which the community assigns culpability, that in itself is not sufficient justification for abolishing altogether the well-established distinction between murder and manslaughter. Perceived anomalies in the way in which the law determines degrees of culpability might instead be overcome through legislative reform within existing categories of unlawful homicide in order that these categories may correspond more closely to community standards.31
2.20 Fourthly, although complex, the criteria for distinguishing between murder and manslaughter have been developed by the courts to a level of sufficient clarity to make them workable in practice.
2.21 Fifthly, at least in respect of involuntary manslaughter, the requisite mental state for involuntary manslaughter falls short of the intent required for murder. This should be reflected by differentiating manslaughter from murder and by means of a lesser maximum statutory penalty for manslaughter.
2.22 Sixthly, if the distinction between murder and manslaughter were to be abolished, there is a perceived risk that the length of sentences could increase in cases which are now defined as manslaughter. At present, based on sentences imposed in New South Wales from 1990 to 1996, the median full-term prison sentence imposed for murder is 18 years, compared to the median full-term prison sentence of six years in cases of manslaughter.32 If the distinction between murder and manslaughter were abolished, then arguably sentencing patterns alone might not be adequate to differentiate between cases involving differing levels of culpability. Consequently, judges might be inclined to impose sentences at the upper end of the scale, simply because they are no longer guided by the bench-mark distinction between murder and manslaughter.33
2.23 Lastly, the fact finding process in a sentencing hearing may be less rigorous than that undertaken in the trial context, with fewer protections for the accused.34
THE COMMISSION’S CONCLUSION
2.24 In the Commission’s view, the arguments raised in support of the murder/manslaughter distinction are compelling. In particular, we are concerned that the public understand and accept sentences which reflect varying levels of criminal responsibility, and that the assessment of the level of responsibility in individual cases remain the function of the jury, not the sentencing judge. These concerns can be met only if the murder/manslaughter distinction is retained. We note that other jurisdictions have advocated retention of the murder/manslaughter distinction for similar reasons.35
2.25 While some inconsistencies and complexities do arise from the distinction between murder and manslaughter, we are not persuaded that the law relating to unlawful homicide would be made any less complex or more understandable if the distinction were abolished. Submissions in favour of one overall offence of unlawful homicide did not suggest any possible formulations of the mental state which would be sufficient for liability for a single offence of “unlawful homicide”. In any event, issues relating to the accused’s mental state would still need to be considered at the sentencing stage in order to determine the degree of culpability, and therefore complexities arising from the definitions or principles concerning the relevant degrees of culpability would not be overcome, but simply postponed. In our view, it would be far better to address any inconsistencies and anomalies within the existing categories of unlawful homicide by redefinition rather than by taking the radical and precipitant step of abolishing the murder/manslaughter distinction. We therefore recommend that the murder/manslaughter distinction in unlawful homicide be retained.
FOOTNOTES
1. According to the ancient common law in England, all homicide other than that committed in the enforcement of justice was punishable by death (although in cases of “excusable” killing, the offender might receive a royal pardon). A person who might otherwise be sentenced to death could, however, avoid execution if that person received the “benefit of clergy”. The benefit of clergy assigned jurisdiction to deal with an offender to the ecclesiastical court, which never imposed the death penalty. The benefit of clergy was therefore used as a device to avoid the death penalty, and could be extended to any person who was able to read. Then, in the late 15th and early 16th century, a series of statutes were introduced to exclude from the benefit of clergy certain more serious forms of homicide, referred to as murder committed with malice aforethought. Unlawful homicide therefore came to be divided into two main categories, the more serious of which resulted in the imposition of the death penalty: see R M Perkins, “A Re-Examination of Malice Aforethought” (1934) 43 Yale Law Journal 537; O Dixon, “The Development of the Law of Homicide” (1935) 9 Australian Law Journal Supplement 64 at 67; B Fisse, Howard’s Criminal Law (5th edition, LBC, Sydney, 1990) at 25.
2. NSWLRC Provocation, Diminished Responsibility and Infanticide (DP 31, 1993) at paras 2.20-2.30. See also, for example, Hyam v DPP [1974] 2 All ER 41 per Kilbrandon LJ at 72; G D Woods, “The Sanctity of Murder: Reforming the Homicide Penalty in New South Wales” (1983) 57 Australian Law Journal 161; D Brown, D Farrier and D Weisbrot, Criminal Laws (2nd edition, Federation Press, Sydney, 1996) Vol 1 at 500.
3. See Crimes Act 1900 (NSW) s 18(1).
4. See Crimes Act 1900 (NSW) s 52A(1) and (2).
5. See Crimes Act 1900 (NSW) s 19A and 24.
6. See Crimes Act 1900 (NSW) s 18(1)(a).
7. Section 4 of the Crimes Act 1900 (NSW) defines “grievous bodily harm” to include any permanent or serious disfiguring of the person.
8. See Royall v The Queen (1991) 172 CLR 378, following the decision in R v Crabbe (1985) 156 CLR 464 in relation to the requisite mental element for “reckless indifference”, with the qualification that under the NSW legislation, unlike the position at common law, the accused must be shown to have foreseen the probability of death, rather than simply the probability of grievous bodily harm or the possibility of death.
9. Crimes Act 1900 (NSW) s 22A, 23 and 23A. In fact, infanticide operates as both a defence to murder and as an offence in its own right: see s 22A(1).
10. See R v Wilson (1992) 174 CLR 313.
11. See Nydam v The Queen [1977] VR 430; R v Bateman [1925] All ER 45.
12. See I H Pike, Submission (3 November 1993) at 2. See also, for example, Law Reform Commission of Victoria, Homicide (Report 40, 1991) Recommendation 19 and at paras 145-149, which recommends the abolition of the category of constructive murder. In the United Kingdom, the Homicide Act 1957 (UK) now provides that a killing committed in the course of some other offence does not amount to murder unless done with the same malice aforethought as is generally required for murder: s 1(1). In Canada, the Supreme Court has ruled that the concept of absolute liability inherent in constructive murder breaches s 7 of the Charter of Rights and Freedoms as it is contrary to the principles of fundamental justice: see Vaillancourt v The Queen (1987) 47 DLR (4th) 399. See also Fisse (1990) at 26 and 74-76.
13. R Blanch, Submission (7 September 1993) at 1; R Hayes, Submission (7 January 1994) at 1; I H Pike, Submission (3 November 1993) at 1-4.
14. Law Society, Submission (28 October 1993) at 1-3; Legal Aid Commission, Submission (2 February 1994) at 1-2; S Yeo and S Odgers, Submission (29 October 1993) at 1-2; N Cowdery, Submission (23 May 1997) at 1.
15. M L Sides, Submission (17 December 1993) at 1-3. Mr Sides did, however, submit that infanticide should be retained as a separate offence.
16. See also NSWLRC DP 31 at paras 2.25-2.30.
17. Crimes Act 1900 (NSW) s 19.
18. Crimes Act 1900 (NSW) s 459.
19. Crimes Act 1900 (NSW) s 19, as amended by the Crimes (Amendment) Act 1955 (NSW) s 5(b).
20. Crimes Act 1900 s 24 and 442.
21. See Crimes Act 1900 (NSW) s 19, as amended by the Crimes (Homicide) Amendment Act 1982 (NSW) Sch 1[1]. See also R v Bell (1985) 2 NSWLR 466.
22. See Crimes Act 1900 (NSW) s 19A, inserted by the Crimes (Life Sentences) Amendment Act 1989 (NSW) Sch 1[4].
23. The Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW) introduced s 431B into the Crimes Act 1900 (NSW): see Sch 1. Although s 431B purports to set down mandatory life sentences for certain offences, it expressly provides that the court is to retain a discretion to impose a lesser sentence under s 442 of the Crimes Act. See NSWLRC Sentencing (Report 79, 1996) at paras 9.7-9.17. See also R v Kalajzich (Supreme Court, NSW, Hunt CJ at CL, 16 May 1997, CLD L00011/95, unreported) at 13.
24. See Kilbrandon LJ in Hyam v DPP [1974] 2 All ER 41 at 72.
25. See Law Society, Submission (28 October 1993) at 1.
26. See B Fisse (1990) at 79.
27. See I H Pike, Submission (3 November 1993) at 3.
28. R Blanch, Submission (7 September 1993) at 1. The Law Society, though ultimately rejecting the option, nevertheless recognised this point as an argument in favour of abolition: Law Society, Submission (28 October 1993) at 1.
29. Indeed, the New South Wales government in 1982 rejected a similar proposal to abolish the murder/manslaughter distinction on the basis that it was important to retain the term “murder”, being a powerful term which conveyed the full force of the law’s condemnation: see New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 11 March 1982 at 2483.
30. See Kingswell v The Queen (1985) 159 CLR 264 per Deane J (dissenting) at 296 ff; Brown v The Queen (1986) 160 CLR 171 per Brennan, Deane and Dawson JJ.
31. S Yeo and S Odgers, Submission (29 October 1993) at 2.
32. Figures taken from the Judicial Commission’s Judicial Information Research System. Similarly, in the Judicial Commission’s study of sentenced homicide offenders in New South Wales between 1990 and 1993, all of the offenders convicted of murder received custodial sentences, with the majority (64.5%) receiving a full term exceeding 14 years and up to 20 years. Of the offenders convicted of manslaughter, 88.1% received custodial sentences, two offenders were sentenced to imprisonment to be served by way of periodic detention, and 11.9% received non-custodial sentences. The majority of those offenders who were sentenced to full-time imprisonment for manslaughter received full terms of eight years or less, with approximately 23% receiving full terms of eight years or more: see H Donnelly, S Cumines and A Wilczynski, Sentenced Homicides in New South Wales 1990-1993: A Legal and Sociological Study (Monograph Series No 10, Judicial Commission of New South Wales, 1995) at 75-76 and 89-90.
33. Legal Aid Commission, Submission (2 February 1994) at 1; M L Sides, Submission (17 December 1993) at 2.
34. Law Society, Submission (28 October 1993) at 2. The principles governing the onus and the standard of proof in sentencing were recently discussed in great detail by the Victorian Court of Appeal in R v Storey (Court of Appeal, Vic, 6 December 1996, CA 9606011, unreported).
35. The Law Reform Commission of Victoria rejected the option to abolish the distinction between murder and manslaughter in 1991: see Law Reform Commission of Victoria, Homicide (Report 40, 1991) at paras 118-120. Similarly, in the United Kingdom, in the context of considering abolition of the partial defences to murder, it has been emphasised that the murder/manslaughter distinction remains important for the purpose of preserving the jury’s function as arbiters of criminal responsibility and of retaining the denunciatory power inherent in the term “murderer”: see England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at 33; Great Britain, Select Committee on Murder and Life Imprisonment, Report of the Select Committee on Murder and Life Imprisonment (HMSO, London, HL Paper 78, 1989) at 27; England and Wales, Committee on Mentally Abnormal Offenders, Report of the Committee on Mentally Abnormal Offenders (HMSO, London, Cmnd 6244, 1975) (“the Butler Report”) at 246. In New Zealand, the Criminal Law Reform Committee in 1976 recommended abolition of the murder/manslaughter distinction in favour of a single offence of unlawful homicide: Criminal Law Reform Committee, Report on Culpable Homicide (Wellington, 1976). However, proposed legislation giving effect to that recommendation was widely criticised and was sent for further review. As a result of that review, it was decided that the traditional categories of murder and manslaughter should be retained: see Crimes Consultative Committee, Crimes Bill 1989: Report of the Crimes Consultative Committee (Wellington, 1991).
