A new type of ‘murder’- is it safe?
- The Queensland government introduced new laws that would change the definition of murder. They proposed that the new definition of murder be expanded to include death caused by “reckless indifference to life”, even if there was no intention to kill.
- It has been argued that the new definition of murder was dangerous and not safe, as this change could lead to unjust punishments for people who are less culpable.
- The new definition of murder is considered to be an extreme “one size fits all” approach that is dangerous and may not be the right solution.
In my previous article I explained how recent changes to the definition of ‘murder’ in Queensland law have meant that many situations that were previously not categorised as murder are now included. That article discussed the tragic matter in January 2021 involving a teenager who is alleged to have run a red light, causing the death of a young couple in Alexandra Hills. Historically, a murder conviction in this situation may have been difficult to secure but the new definition appears to be relied upon to prosecute this teenager.
Historically, to prove a murder the prosecution would have to prove that there was an intention to kill. However, the new definition means that a charge of murder can be satisfied in situations where there was no intention to kill – but rather that an act was made with ‘reckless indifference’ to human life.
What prompted the change?
The state government introduced new laws that would change the definition of murder, following media and public outrage after a string of cases in which child killers were convicted of the lesser offence of manslaughter and received relatively light prison sentences. Queensland’s Sentencing Advisory Council is an organisation established to provide independent research and advice to the Government, seeks public views and promotes community understanding of sentencing matters. Their review found that many of those cases involved difficulties, such as determining the cause of death (particularly in very young children), a lack of witnesses and in establishing clear intent.
When the Queensland government drafted new laws, it went beyond the recommendations of the sentencing advisory council and proposed that the definition of murder be expanded to include death caused by “reckless indifference to life”. In announcing the bill, the premier, Annastacia Palaszczuk, said: “We want to see stronger sentences imposed when people take the lives of our most vulnerable – children, the elderly and the disabled.”
Are the changes safe?
Lawyers have expressed their concern about the new definition of murder, arguing that they could have very serious and unintended consequences for women who kill their abusive or violent partners or parents who do things such as leaving a pool gate open or reverse over their own children on the driveway. Their concern is that the changes will unjustly punish those people who are less culpable.
Further to this, it has been argued that the new definition of murder was dangerous when combined with mandatory sentencing in Queensland. The state has mandatory life sentences and mandatory minimum non-parole periods for murder. In Queensland, when a person is convicted of murder, the sentence is life with 20 years non-parole – there is no discretion for judges to take the circumstances into account.
The impact on ‘abusive partner’ scenarios
There is also a concern that the new definition will negatively impact situations where there has been a history of an abusive partner. Typically, in these situations there will be one person in the relationship (usually, but not always, the female) who is subjected to years of violence and abuse and in fearing for their life take the step to kill their partner. They would then argue in court that they were acting out of self-defence because they feared that they were going to be killed.
It has been argued that the legal defence of self-defence was already difficult and complex for victims of domestic assault to satisfy. Women who acted pre-emptively, or not in response to a direct physical threat, might fail to prove self-defence in Queensland, which is the only state that has an “imminence” requirement. Years of disadvantage, mistrust of services or authority may mean Aboriginal and Torres Strait Islander women may opt to take matters into their own hands and choose to fight back and defend themselves, or act pre-emptively out of fear rather than rely on police. Many women, especially those who may not present well, will not be able to clearly articulate the impact of the abuse on them or their children.
This new definition of murder highlights the complexities around the law and demonstrates that there is almost never a right answer. However, to implement an extreme ‘one size fits all’ approach may not be the solution and as with all changes to the law the future will determine whether or not the change was the correct approach to take.
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