Articles

Key Takeaways

• First degree murder, second degree murder and third degree murder are American legal terms which explain different homicide offences.
• The term ‘second degree murder’ is commonly used within the American legal system context to refer to a certain type of unpremeditated homicide.
• Australian laws do not refer to 1^st, 2^nd or 3^rd degree murder. Rather, they use the terms murder and manslaughter.

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What is First Degree murder?

First degree murder is an American legal term which refers to a wilful, deliberate and premeditated act of unlawful killing, often executed with malice aforethought.

In many states, it also covers the offence of ‘felony murder’, which is defined as an unlawful killing during the commission of a felony. A felony in the United States is a serious offence, as opposed to less serious offences which are referred to as ‘misdemeanors’.

First degree murder is the most serious type of murder which also carries the most severe sentence.

What is the Penalty for First Degree Murder?

The penalty for first degree murder is generally between 20 to 25 years’ imprisonment in some American states, while in others it carries the death penalty.

If there are aggravating features present, these will increase the seriousness of the offending and also increase the expected sentenced.

What is Second Degree Murder?

Second degree murder is an American legal term that refers to an unlawful killing without premeditation but where there may be an intention to cause harm but not necessarily the death of the victim. Malice aforethought is a necessary element of the crime.

In some American States, the definition includes circumstances where a person causes death through conduct that shows a ‘wanton disregard for the safety of others’.

Examples of second degree murder include a person intentionally stabbing someone during a heated argument, but without planning the act beforehand.

Penalty for Second Degree Murder

The penalty for second degree murder can be life imprisonment, with or without parole, depending on aggravating factors and the specific State where the offence occurs.

The severity of sentencing reflects the intentional nature of the act, even though it was not premeditated. 

In Canada, being guilty of second degree murder requires a mandatory life sentence, but a person is eligible for parole after 10 to 25 years.

Defences Against Second Degree Murder Charges?

The most common defence to second degree murder is self-defence or the defence of others. If the accused person held a reasonable fear that the alleged victim was about to use deadly force against them or another person, then the accused is entitled to kill.

In Australia, self-defence cannot be used for murder or manslaughter charges if the force applied involved intentional or reckless infliction of death for purposes of protecting property or prevent criminal trespass.

Section 420 of the Crimes Act 1900 sets this out as well as other provisions relating to self-defence.  

Second Degree Murder in Australian Law?

The Australian criminal justice system does not use the term second degree murder, but the offences of murder and manslaughter cover the elements of second degree murder.

Second degree murders where there is an intentional but spontaneous killings or reckless indifference to human life, are typically prosecuted as murder in Australia. However, second degree murders where unlawful killings involve no intent to kill will be charged as manslaughter in Australia.

What is the Difference Between First and Second Degree Murder?

The difference between first degree murder and second degree murder is that first degree murder involves premeditation and deliberate planning, whereas 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.

These degrees of murder are only used in America’s criminal justice system, and do not apply in Australia.

 What is Third Degree Murder?

Third degree murder is legal term used in the United States criminal justice system, where the killing was not premeditated, but there was some intent to cause harm but not to kill the victim. It usually involves voluntary manslaughter and involuntary manslaughter.

Third degree murder only applies in Florida, Pennsylvania and Minnesota. 

Examples of third degree murder include where someone dies from the sale of a prohibited drug.

Involuntary manslaughter includes manslaughter by unlawful and dangerous act or conduct or criminally negligent homicide.

Voluntary manslaughter includes manslaughter by provocation or by substantial impairment by abnormality of the mind or by excessive self-defence.

Third degree murder is the least serious murder offence in America.

Criminally Negligent Homicide

Criminally negligent homicide is where a death occurs due to the accused person’s negligence. Negligence is where a person did not take proper care in preventing harm from occurring to the victim.  

Examples of criminally negligent homicide include not calling for help if someone is seriously injured or leaving a child unattended in a dangerous place.

Manslaughter

The definition of manslaughter varies between different American States. It generally encompasses killings that occur, ‘in the heat of the moment’ without premeditation but with significant provocation.

It can also cover situations where there is a significant degree of criminal negligence, or reckless driving, or while the accused person was committing a misdemeanor offence.

Homicide Laws and Penalties in Australia

Australian homicide laws mandate different mental states to be proved by the prosecution beyond reasonable doubt before  a person can be found guilty of murder or manslaughter.

For murder, the prosecution must prove an intention to kill or to cause grievous bodily harm (‘really serious injury’) on the part of the accused person.

Some murder offences can be proven with the mental state of ‘recklessness to the life of another’ or ‘reckless indifference to human life’. This is where a person knew that their actions carried a substantial risk of death but proceeded anyway.

If the prosecution cannot prove an offence of murder, they can charge a person with manslaughter. If a person defends a murder charge on the basis of provocation or excessive self-defence, they can be found not guilty of murder but found guilty of voluntary manslaughter. Further, if an accused did not intend to cause death and was not reckless, they can also be found guilty of manslaughter on the basis of criminal negligence or an unlawful and dangerous act without intent to kill.

Murder and Manslaughter Laws in New South Wales

In New South Wales, murder and manslaughter are offences under the Crimes Act 1900 (NSW). 

Pursuant to Section 18(1)(a) of the Crimes Act 1900, a person is guilty of murder if they cause the death of another person with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The maximum penalty for murder is life imprisonment.

Under section 18(1)(b) of the Act, a person is guilty of manslaughter if they unlawfully kill another person but did not intend to kill or cause grievous bodily harm. A person will be guilty of voluntary manslaughter if they intended to kill but were provoked.

An accused person will be guilty of involuntary manslaughter if the killing was 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 criminalised under the Crimes Act 1958 (Vic). Pursuant to Section 3 of the Act, murder is the unlawful killing of another person with intent to kill or cause serious injury, or with reckless indifference to human life. The maximum penalty for murder in Victoria is life imprisonment.

Pursuant to section 5 of the Act, the maximum penalty for manslaughter is 20 years’ imprisonment. Voluntary manslaughter includes circumstances where a person kills with intent but was acting using excessive self-defence or another partial defence. Involuntary manslaughter involves criminal negligence or unlawful and dangerous acts leading to death.

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

In Western Australia, section 279 of the Criminal Code Act Compilation Act 1913 (WA) defines murder as an unlawful killing where the accused intended to kill or cause grievous bodily harm, or acted with reckless indifference to human life. The maximum penalty is life imprisonment.

Manslaughter is defined in section 280 of the Act and includes unlawful killings caused by criminal negligence or unlawful and dangerous acts. The maximum penalty for manslaughter is life imprisonment.

Murder and Manslaughter Laws in South Australia

In South Australia, section 11 of the Criminal Law Consolidation Act 1935(SA) defines murder as an unlawful killing where the accused intended to kill or cause grievous harm, or acted with reckless indifference to human life. The maximum penalty for murder in South Australia is life imprisonment.

Under section 13 of the Act, manslaughter covers unlawful killings that do not meet the definition of murder. Common examples include death by criminal negligence or unlawful/dangerous acts leading to death. In South Australia the maximum penalty for manslaughter is life imprisonment.

Murder and Manslaughter Laws in Tasmania

In Tasmania, section 157 of the Criminal Code Act 1924 (Tas) defines murder as the unlawful killing of another with intent to kill or cause grievous bodily harm. The maximum penalty for murder is life imprisonment.

Pursuant to section 159 of the Act, manslaughter involves unlawful killings without intent to kill or where the accused’s actions were reckless. Both voluntary and involuntary manslaughter and criminal negligence are examples of manslaughter. The maximum penalty for manslaughter in Tasmania is 21 years’ imprisonment.

Murder and Manslaughter Laws in the Australian Capital Territory

In the Australian Capital Territory, section 12 of the Crimes Act 1900 (ACT) defines murder as an unlawful killing with intent to kill or cause serious harm. The maximum penalty for murder is life imprisonment.

Pursuant to section 15 of the Act, manslaughter involves an unlawful killing whether there is no intent to kill. Examples of this include criminal negligence, voluntary manslaughter or involuntary manslaughter. The maximum penalty for manslaughter in the ACT is 20 years’ imprisonment.

Murder and Manslaughter Laws in the Northern Territory

In the Northern Territory, section 156 of the Criminal Code Act 1983 (NT) defines murder as an unlawful killing with intent to kill or cause serious harm. The mandatory penalty for murder is life imprisonment in the Northern Territory.

Pursuant to section 160 of the Act, manslaughter is defined as an unlawful killing where there is no intent to kill another person. Common examples of manslaughter in the Northern Territory include voluntary manslaughter, involuntary manslaughter and death by criminal negligence. The maximum penalty for manslaughter in the Northern Territory is life imprisonment.