26 March 2020
‘First-degree’ and ‘second-degree’ murder are terms often heard on television, usually programs like Law & Order and CSI. If you have watched one of these shows you would have heard the police inform the perpetrator they have just caught that they are to be charged with ‘first-degree murder’.
You may have heard the term, but what does it mean?
In this article we will explain what is ‘first degree’ and ‘second degree’ murder, where they apply, and how murder is defined in New South Wales (“NSW”).
Murder in the USA
‘First-degree’ and ‘second-degree’ murder are legal terms used in the USA, which are used to categorise different degrees of murder. In the USA, each of the States have adopted their own schemes for classifying murders by degree and each State has its own specific definition, but very generally, the two main classifications are as follows: -
- First-degree murder - is any intentional murder that is wilful and premeditated with malice aforethought.
- Second-degree murder - is any intentional murder with malice aforethought but is not premeditated or planned in advance.
The key difference between first- and second-degree murder appears to be whether the murder was planned or premeditated. Several states also have ‘third-degree’ murder which can mean manslaughter but can also be used as a catch all for a murder which does not fit the definition of first- or second-degree.
In Australia we do not have degrees of murder. No Australian State or Territory uses the terms ‘first -degree’ or ‘second-degree’ murder.
Murder in New South Wales
In New South Wales, murder is defined in Section 18 of the Crimes Act 1900 (NSW). Section 18 is wordy, but states: -
18 Murder and manslaughter defined
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.
We will need to break that down into its various elements to understand it.
In plain terms, to commit murder in NSW, there must be: -
- a voluntary act of the accused; or
- a voluntary omission of the accused
causing the death of the deceased, and the act must be committed with:
- an intent to inflict grievous bodily harm; or
- an intent to kill; or
- reckless indifference to human life; or
- committed by the accused or some accomplice with him or her in an attempt to commit, or during or immediately after the commission of, an offence punishable by at least 25 years imprisonment.
Any other punishable homicide that does not fit one of the above criteria is manslaughter.
It is interesting to note that in both the USA and NSW definitions of murder, intent appears to be a key element of the offence. In NSW intent is not always an element, reckless indifference to human life is enough for a homicide to be considered murder.
If you have been charged with a criminal offence it is important to seek legal advice as soon as possible. Make an appointment with one of our solicitors by calling our office on (02) 6800 2660 or using our Online Service Portal.
Please note: the information in this article is general in nature. For specific advice about your matter, make an appointment with one of our solicitors.