Do you know the difference between murder and manslaughter?

Murder and manslaughter both involve 'unlawfully killing' another person.

'Unlawfully killing' means causing a death that the law does not excuse or allow (also known as a defence). An example of an excuse is if a person was acting in self-defence at the time.

If a person causes the death of another person, whether it is murder or manslaughter will depend on the circumstances.

What is murder?

Murder can:

be intended:

  • Intending to cause the death or grievous bodily harm to a person (for example, stabbing another person with a knife, intending to kill them or cause them serious harm).

be reckless:

  • Doing or not doing an act with 'reckless indifference to human life' (this means the person knew that death or serious harm would probably happen). For example, if the death of a child occurs because of extreme neglect by a parent.

occur during other offending or when a person was doing something for an unlawful purpose that was likely to endanger human life:

  • For example, if a person sets fire to a building to get an insurance payout, and knew someone was in the building, who then died, this is murder even though the person did not intend to kill them.
  • It also includes administering any stupefying or overpowering thing to commit a crime (for example, giving a person a drug to make them fall asleep in order to commit an offence, but the drug causes their death).
  • If death is caused by wilfully stopping the breath of a person, in order to commit a crime (for example, holding a person in a chokehold in order to steal their money or phone from them).

Not all types of murder involve an intention to kill another person.

What is manslaughter?

Manslaughter is unlawfully killing another person in circumstances where it is not murder.

Three examples are:

  • if a person was suffering from a major mental disorder (short of insanity) when they killed the victim, they are sentenced for manslaughter because of diminished responsibility.
  • If a person caused the death of another person but was provoked and deprived of the power of self-control and acted before there was time for their passion to cool.
  • If a person caused the death of another person but experienced acts of serious domestic violence in an abusive domestic relationship, and believed it was necessary to save their life from death or grievous bodily harm.

Why does it matter if a person is sentenced for murder or manslaughter?

A person sentenced for murder must be given a life sentence (the judge has no choice).

A person sentenced for manslaughter can be given a life sentence or another sentence (the judge has a choice).

To learn more about what a life sentence means, visit page 60 of our Sentencing Guide.

What if the person was mentally unwell at the time?

If a person causes the death of another person, but has a major mental disorder, the matter can go to the Mental Health Court.

The Mental Health Court is not a sentencing court. If a person is so mentally unwell that they did not know what they were doing (was of unsound mind) or they cannot understand court proceedings (permanently unfit), the charge of murder or manslaughter will end.

The Mental Health Court can make an order for the person to be treated and supervised. Find out more about the Mental Health Court on page 16 of our Sentencing Guide.

Interested in sentencing trends and data for murder and manslaughter offences?

Read our spotlight reports:

Spotlight on murder

Spotlight on manslaughter

Contact: Hayley Carter/Steph Martlew

Phone: 0459887077