What is the difference between murder and manslaughter?

The elements of murder

The Criminal Code is old and its language shows it, so section 302 takes a moment to unpack. It sets out several circumstances in which a person who unlawfully kills another is guilty of murder:

• where the offender intends to cause the death of the person killed or of someone else, or intends to do grievous bodily harm to them or to someone else;
• where death is caused by an act done, or an omission made, with reckless indifference to human life;
• where death is caused by an act done in the prosecution of an unlawful purpose, and that act is of a nature likely to endanger human life;
• where the offender intends to do grievous bodily harm for the purpose of facilitating the commission of an offence for which an arrest may be made without warrant, or of facilitating the flight of an offender who has committed or attempted such an offence;
• where death is caused by administering a stupefying or overpowering thing for either of those purposes; and
• where death is caused by wilfully stopping the breath of a person for either of those purposes.

Reduced to essentials, the prosecution generally has to prove three things:

1. a person is dead;
2. the accused caused that person’s death; and
3. the accused intended to cause death or grievous bodily harm, or acted with reckless indifference to human life.

The third element is where nearly all the argument happens.

Why intent is difficult to prove

Proving intention means proving what was in someone’s mind at a particular moment. There is rarely direct evidence of that, so it has to be inferred from conduct, from the nature of the act, from what was said before and after, and from the surrounding circumstances.

Reckless indifference to human life sounds like a lower bar, and in one sense it is, because it does not require an intention to bring about a particular result. It remains a demanding standard in evidentiary terms, because it is still a state of mind that has to be established beyond reasonable doubt.

There is one qualification worth noting. Intention is not required on every pathway in section 302. Where death is caused by administering a stupefying thing to facilitate an offence, for example, it is immaterial that the offender did not intend to cause death. Those pathways are narrow and arise infrequently.

For the great majority of homicide matters, intent is the live issue, and it is the line between the two charges.

Manslaughter, defined by what it is not

The definition in section 303 is refreshingly short. A person who unlawfully kills another in circumstances that do not constitute murder is guilty of manslaughter.

The charge still requires that a person is dead and that the killing was unlawful, meaning it was not authorised, justified or excused by law. What it does not require is the additional mental element.

So if the prosecution can prove that the accused caused the death and that the killing was unlawful, it has enough for manslaughter without having to establish an intention to kill or to cause grievous bodily harm, or reckless indifference.

That is why manslaughter is often the outcome of a homicide matter that began as a murder charge. It is not a lesser version of the same offence. It is the offence left over when the mental element cannot be made out.

Sentencing is where the real difference lies

This question has a legal answer and a practical one, and they point in different directions.

Legally, both offences carry a maximum of life imprisonment. Life imprisonment does not necessarily mean the rest of a person’s natural life.

Practically, the difference is enormous:

A person convicted of murder must be sentenced to life imprisonment, and that sentence cannot be reduced regardless of what is put before the court. A person convicted of manslaughter is sentenced according to all the circumstances, and the range of outcomes is wide.

Manslaughter is also a scheduled serious violent offence, so a sentence of 10 years or more attracts an automatic declaration under Part 9A of the Penalties and Sentences Act 1992 (Qld) requiring 80 per cent or 15 years to be served before parole eligibility. That is covered further in our guide to mandatory sentencing.

Where the defences fit

Two categories of defence arise in homicide matters and they operate differently.

The first goes to whether the killing was unlawful at all. Self-defence under sections 271 and 272 of the Criminal Code, accident under section 23, insanity under section 27 and extraordinary emergency under section 25 all operate to exclude criminal responsibility if made out. If one succeeds, the result is an acquittal rather than a lesser charge.

The second reduces murder to manslaughter rather than excusing it. Provocation under section 304 and killing on an unlawful assumption of authority, along with diminished responsibility under section 304A where an abnormality of mind substantially impaired capacity, operate as partial defences. Section 304B also deals with killing in an abusive domestic relationship.

Which of those is realistically available depends entirely on the evidence, and that assessment cannot be made without the brief.

If you are facing a homicide charge

Murder and manslaughter are among the most serious charges available in Queensland, and both are dealt with in the Supreme Court.

Get experienced representation immediately, including if you believe something has occurred that may lead to a charge but no charge has yet been laid. What happens in the first days matters, particularly regarding any record of interview.

Do not participate in an interview about a death without advice. The distinction between the two charges turns on what can be proved about your state of mind, and an interview is the most common way that evidence is created.

Our page on murder and manslaughter charges sets out how these matters proceed.