In a sensational decision handed down in the Queensland Court of Appeal, the murder conviction of Gerard Baden-Clay in relation to the death of his wife Allison has been downgraded to manslaughter.

The case of Baden-Clay, who was accused of murdering his wife in a domestic dispute and later reporting her missing, has made national headlines over the past few years. After being convicted of murder in July 2014, this conviction has now been set aside, meaning that Baden-Clay must be re-sentenced in relation to the offence.

Understanding the Legal Distinction in NSW

This is not an uncommon scenario in criminal proceedings, whereby Prosecutors have difficulty proving murder, which requires an intent to kill, as opposed to manslaughter, which does not require the same intent.

This article examines the differences between manslaughter and murder under New South Wales law.

What Constitutes Murder?

A conviction of murder is a conviction for killing a person with the intent to kill and malice a forethought.

This means that to be convicted for murder, a person must have intended to end the victim’s life at the time that they took the actions that resulted in their death. The maximum penalty for a murder charge in New South Wales is life imprisonment. The average sentence for murder cases in the mid-range of seriousness is approximately 20 years.

Possible defences to a murder conviction are self-defence, where the action resulting in the death of the person were necessary to defend oneself; duress, where a threat is made to the offender’s life or the offender’s family to the extent that the act of killing would be considered reasonable, or in some cases “necessity”.

What Constitutes Manslaughter?

The offence of manslaughter can be defined as a homicide without the intent to kill, or a homicide without reckless indifference to human life.

This means that while a person may have performed the acts that resulted in a death, it cannot be proven that they intended to do so. The maximum penalty for the charge of manslaughter in New South Wales is 25 years’ imprisonment. Other penalties include fines, bonds, suspended sentences, or smaller prison sentences. The average sentence for a manslaughter charge in the mid-range of seriousness is approximately seven years.