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The two high profile criminal law cases of Oscar Pistorius, a South African Olympic athlete, and Gerard Baden-Clay, a former Brisbane Real Estate Agent, raise interesting questions about the legal distinction between murder and manslaughter.

These two high profile cases have revolved around whether the acts of the accused constituted murder or manslaughter. The definition of these offences will vary between jurisdictions. In Australia, each state legislates their own criminal laws meaning the specific law, and its application can vary between the different States.

Criminal matters in New South Wales are prosecuted under the Crimes Act 1900 NSW.  The offence of murder and the offence of manslaughter both involve an act of the accused which causes the death of another person.  The key difference between the two is the intention behind the act that has caused the death.

Under the Crimes Act, to be guilty of murder, the law requires the accused to have acted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm.  Grievous bodily harm is defined as a really serious injury and encompasses permanent disfigurements.

To be found guilty of murder the police must first prove the accused has caused the death of another person. The police must then also show that the accused had the required mental state to be liable for murder.  If the accused did not act with reckless indifference to life or did not “intend” to harm or kill another person they will not be liable for murder.

However, under the definition of murder in NSW, the police do not need to show actual intent. They must simply show one of three possible mental states:

  1.  an intent to kill      
  2. an intent to inflict grievous bodily harm     
  3. reckless indifference to human life.

If a person sets out to cause serious harm to another, and in the course of their actions causes a death, even if it was not their intention to cause death from the outset, that person may still be liable to murder. Similarly, even if a person did not intend to kill another, but was acting with reckless disregard that their actions could kill, that person may also be liable for murder. 

The definition of manslaughter includes all unlawful homicides, other than murder. Manslaughter requires that a person has died due to the actions of another individual, but in contrast to murder, the accused person did not possess the required intent to kill or cause serious harm.

Pistorius was originally found guilty by a South African Court of culpable homicide, (the equivalent of a manslaughter charge in Australian Jurisdictions), and sentenced to  a 5 year gaol sentence.  Pistorius served 1 year in custody before being released on bail to serve the remainder of his sentence under house arrest.

The original finding of culpable homicide was overturned by the South African Supreme Court of Appeal, as they found that Pistorius must have foreseen that by firing a high-calibre weapon, that whoever was behind the door might die.

It is important to note that Pistorius was trialled under different laws in South African Jurisdiction.  But in comparing his case to laws in New South Wales, it is an example of how while  the prosecution may not have been able to show an intention to kill, (as he claims to not  have realised who was behind the door), he still may be liable for murder as he has acted with reckless indifference to human life by firing a gun multiple times through the closed door.

In comparison, Gerard Baden-Clay was found guilty by the Queensland Supreme Court of murder and was sentenced to life with a non-parole period of 15 years for killing his wife in 2012. The original finding of murder was overturned by the Queensland Court of Appeal and substituted for manslaughter. 

It is again important to note thatBaden-Clay was trialled under different laws in Queensland. Importantly, in Queensland the prosecution must show either an intent to kill, or an intent to inflict grievous bodily harm. It is not enough under Queensland law to show the accused acted with “reckless indifference to human life.”

The Queensland Court of Appeal held that the jury could not have been satisfied beyond reasonable doubt that Baden-Clay had the intent to kill or cause grievous bodily harm. 

The Court found that there was a reasonable hypothesis that he had unintentionally killed his wife during a violent clash due to the facts of the case being circumstantial and vague. Furthermore, her precise cause of death was not known. 

Comparing legal outcomes from different jurisdictions can often be dangerous; but given the critical difference in the legal definition of murder between NSW and QLD laws, it is possible that the outcome of the Baden-Clay case may have differed if trialled in NSW. Even if the evidence did not show an intention to kill or seriously harm, under NSW laws Baden-Clay may still have been found guilty if he was acting with reckless indifference to human life. 

The law required that Baden-Clay be trialled in QLD in accordance with that states definition of murder. The case shines an interesting light on the legal distinction between murder and manslaughter, and how the law can vary between different jurisdictions.

At the time of this article, Pistorius’ South African legal team have lodged an appeal to the Constitutional Court. The Queensland Attorney-General has 28 days to decide whether to lodge an appeal and is awaiting legal advice from the Queensland Director of Public Prosecutions.

This article was written by the Kells Criminal Law Team.