Key Takeaway
1st, 2nd and 3rd degree murders are legal terms reflected in America's criminal justice system, distinct from the Australian Criminal Justice System. The term 'second degree murder' is commonly used within the American legal system context to refer to a certain type of unpremeditated homicide. However, Australian State and Territory laws classify homicide differently, primarily distinguishing between murder and manslaughter rather than degrees of murder.
The following outlines what second degree murder is and provides a jurisdiction-by-jurisdiction breakdown of the homicide principles which apply in each State and Territory in Australia. It concludes by noting the degree to which the concept of second degree murder is reflected under Australian criminal law.
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What is second degree murder?
Second degree murder is a legal classification primarily used in the United States and Canada to describe an intentional but unpremeditated killing. Unlike first degree murder, which involves premeditation and deliberate planning, second degree murder occurs when a person intentionally kills another without prior planning or when the killing results from extreme recklessness or a depraved indifference to human life. In some jurisdictions, this also includes situations where a person causes death through conduct that shows a 'wanton disregard for the safety of others'.
In Australia, second degree murder does not exist as a separate offence. Instead, murder encompasses both premeditated and spontaneous intentional killings, while manslaughter applies to unlawful killings where the guilty mind or mens rea for murder is absent. Australian criminal law focuses on distinctions between intentional or reckless mental states in relation to homicide, rather than focusing on the degree of premeditation before killing another.
Penalties for Second Degree Murder
Penalties for second degree murder vary by jurisdiction. In the United States, it can lead to life imprisonment, with or without parole, depending on aggravating factors and state laws. In Canada, a conviction results in a mandatory life sentence, but parole eligibility is typically set between 10 and 25 years. The severity of sentencing reflects the intentional nature of the act, even though it was not premeditated.
Defences Against Second Degree Murder Charges?
One of the commonly used defences to second degree murder is self-defence or the defence of others which is considered a lawful excuse to kill provided the accused person held a reasonable fear that the alleged victim was about to use deadly force against either the accused person or someone else.
In Australia, self-defence to murder or manslaughter will not apply if the force applied involved intentional or reckless infliction of death for purposes of protecting either property or prevent criminal trespass. This is legislated in NSW under section 420 of the Crimes Act 1900 (NSW).
What is first degree murder?
First degree murder is a legal concept used in America, which is the intentional killing committing wilfully with premeditation and malice thought. It is considered the most serious type of murder, being murder in the first degree which usually warrants the heaviest sentence. This type of murder is also referred to a 'cold blooded murder'.
Offenders who commit first degree murder without aggravating features that would otherwise increase the seriousness can expect to be sentenced in the range of 20 to 25 years' imprisonment in some American states while in others it warrants the death penalty.
Difference Between First and Second Degree Murder
First degree murder is the premeditation and deliberate killing. In contrast, second degree murder is either the intentional killing without the preplanning or killing in context of extreme recklessness or depraved indifference to human life. These degrees of murder are classifications used in America's criminal justice system, and do not apply in Australia.
What is third Degree Murder?
Third degree murder is also an American term applicable in USA's criminal justice system, which is essentially what the Australian criminal justice system refers to as manslaughter. This includes voluntary manslaughter and involuntary manslaughter. Third degree murder is considered the least serious types of murder in America.
Involuntary manslaughter includes manslaughter by unlawful and dangerous act or conduct; criminal negligent manslaughter.
Voluntary manslaughter includes manslaughter by provocation; or by substantial impairment by abnormality of the mind; or by excessive self-defence.
Homicide Laws and Penalties in Australia
While Australian homicide law does not distinguish on the basis of premeditation for a crime, there are a number of key mental states recognised under State and Territory criminal laws of Australia.
For most murder offences, an intention to kill or to cause grievous bodily harm ('serious injury') is a key mental state required for a conviction. To 'intend' to do something means to try to bring about a result. Whilst an intent to 'kill' is self-explanatory, an intent to cause grievous bodily harm refers to an intent to bring about serious or life-threatening injuries.
Many murder offences also have an additional mental state that can result in an offence, which is 'recklessness' to the life of another or reckless indifference to human life. Recklessness would apply if a person knew that their actions carried a substantial risk of death but proceeded regardless.
In some jurisdictions, constructive murder (or 'felony murder') principles apply, meaning liability for murder can also apply even in the absence of specific intent or recklessness. This will occur when a person causes death in the course of committing or attempting to commit a violent offence, regardless of their mental state at the time.
Finally, in circumstances where the prosecution cannot prove the required mental state for murder, an accused may still be able to be prosecuted for manslaughter. This can occur if a partial defence applies, such as provocation or excessive self-defence, giving rise of voluntary manslaughter. It can also occur if an accused has a mental state other than intent or recklessness at the time of the crime, such as criminal negligence or an unlawful and dangerous act without intent to kill.
Punishment for murder in Australia vary depending on the type and features of the murder.
Murder and Manslaughter Laws in New South Wales
In New South Wales, the offences of murder and manslaughter are noted under the Crimes Act 1900 (NSW). Section 18(1)(a) of the Act states that murder occurs when a person causes the death of another with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The maximum penalty for murder is life imprisonment.
Manslaughter is defined under section 18(1)(b) of the Act as applying to unlawful killings that lack the intent or recklessness required for murder. This includes voluntary manslaughter, where a person has intent but a partial defence (such as provocation) applies and involuntary manslaughter, which covers killings due to criminal negligence or unlawful and dangerous acts. The maximum penalty for manslaughter is 25 years' imprisonment.
Murder and Manslaughter Laws in Victoria
In Victoria, murder and manslaughter are governed by the Crimes Act 1958 (Vic). Section 3 of the Act defines murder as the unlawful killing of another with intent to kill or cause serious injury, or with reckless indifference to human life. The offence carries a maximum penalty of life imprisonment.
Manslaughter, under section 5 of the Act, includes both voluntary and involuntary manslaughter. Voluntary manslaughter applies when a person kills with intent but is subject to a partial defence, such as excessive self-defence. Involuntary manslaughter occurs when death results from criminal negligence or unlawful and dangerous acts. The maximum penalty for manslaughter is 20 years' imprisonment.
Murder and Manslaughter Laws in Queensland
In Queensland, murder is defined under section 302 of the Criminal Code Act 1899 (Qld) as the unlawful killing of a person with intent to kill or cause grievous bodily harm. Murder also applies where a death occurs during the commission of certain violent crimes, regardless of intent (constructive murder). The mandatory penalty for murder is life imprisonment.
Manslaughter, defined under section 303 of the Act, applies when a person unlawfully kills another but lacks the intent or recklessness required for murder. This includes deaths caused by criminal negligence or unlawful and dangerous acts. The maximum penalty for manslaughter is life imprisonment.
Murder and Manslaughter Laws in Western Australia
Under section 279 of the Criminal Code Act Compilation Act 1913 (WA), murder is defined as an unlawful killing where the accused intended to kill or cause grievous bodily harm, or acted with reckless indifference to human life. The penalty for murder is mandatory life imprisonment.
Manslaughter, covered under section 280 of the Act, involves an unlawful killing that does not meet the criteria for murder. This includes deaths caused by criminal negligence or unlawful and dangerous acts. The maximum penalty is life imprisonment.
Murder and Manslaughter Laws in South Australia
In South Australia, murder is outlined under section 11 of the Criminal Law Consolidation Act 1935 (SA), applying to unlawful killings where the accused intended to kill or cause grievous harm, or acted with reckless indifference to human life. The maximum penalty is life imprisonment.
Manslaughter, under section 13 of the Act, applies to unlawful killings that do not meet the requirements for murder. This includes criminal negligence and unlawful and dangerous acts leading to death. The maximum penalty for manslaughter is life imprisonment.
Murder and Manslaughter Laws in Tasmania
In Tasmania, murder is defined under section 157 of the Criminal Code Act 1924 (Tas) as the unlawful killing of another with intent to kill or cause grievous bodily harm. The maximum penalty for murder is life imprisonment.
Manslaughter, under section 159, applies to unlawful killings that lack intent or recklessness. This includes both voluntary and involuntary manslaughter, where death results from negligence or unlawful and dangerous acts. The maximum penalty is 21 years' imprisonment.
Murder and Manslaughter Laws in the Australian Capital Territory
In the Australian Capital Territory (ACT), murder is defined under section 12 of the Crimes Act 1900 (ACT) as an unlawful killing with intent to kill or cause serious harm. The maximum penalty is life imprisonment.
Manslaughter, outlined under section 15 of the Act, applies where an unlawful killing lacks intent. This includes killings resulting from reckless or negligent conduct. The maximum penalty for manslaughter is 20 years' imprisonment.
Murder and Manslaughter Laws in the Northern Territory
In the Northern Territory, murder is defined under section 156 of the Criminal Code Act 1983 (NT) as an unlawful killing with intent to kill or cause serious harm. The mandatory penalty for murder is life imprisonment.
Manslaughter, under section 160 of the Act, applies to unlawful killings where intent to kill is absent. This includes criminal negligence and reckless conduct. The maximum penalty for manslaughter is life imprisonment.
How is Second Degree Murder Reflected in Australian Law?
As can be seen from above, while Australian criminal law does not recognise second degree murder as a distinct offence, elements of this concept can be found within existing homicide laws. In particular, cases involving intentional but unpremeditated killings or reckless indifference to human life are typically prosecuted as murder, while unlawful killings lacking intent fall under manslaughter.
In most Australian jurisdictions, murder includes killings where the accused either intended to kill or cause serious injury or acted with reckless indifference to human life. This aligns with aspects of second-degree murder in the US, where intentional but spontaneous killings or deaths caused by extreme recklessness are prosecuted under that classification. However, cases that might fall under second-degree murder in the US may also be charged as manslaughter in Australia, particularly if the prosecution cannot establish the necessary level of intent or recklessness required for murder.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
