The definition of ‘murder’ commonly misunderstood

On 26 January 2021 a young couple were walking their two dogs in Alexandra Hills, east of Brisbane. They were Katherine Leadbetter, 31, and Matthew Field, 37. Ms Leadbetter was pregnant with the young couple’s first child. At approximately 5.30pm, while they were at the corner of Vienna and Finucane Roads it is alleged that a 17 year old male, who can’t be named because he is considered a juvenile under Queensland law, ran a red light in a stolen 4 wheel drive, crashed into an oncoming truck and then rolled onto Ms Leadbetter and Mr Field, killing them both.

It’s alleged that the teenager was ‘adversely affected by an intoxicating substance’, meaning that his ability to drive was impaired as a result of ingesting alcohol, drugs or both. Police say that he then fled the scene and stole a set of keys from a home and was trying to start the car in the garage when he was approached by the owner and fled again. The owner followed him to Chelsea Crescent, where he was arrested by police.

In investigating the matter, police were able to obtain footage of the teenager deliberately colliding with a different car at the same intersection before speeding away, approximately 15 minutes before Ms Leadbetter and Mr Field were killed.

The teenager was charged with, amongst other charges, two counts of murder. Police then sought legal advice as to whether a third charge of murder could be laid, relating to the unborn baby, but ultimately decided not to.

Definition of ‘murder’ under Queensland law

Historically, and commonly, it was believed that the critical element that distinguished the offence of murder from the lesser offence of manslaughter was the element of intent – or an intention to kill. A common and clear example of the difference could often be seen in cases involving drunken street fights. If person A punched person B, causing B to fall onto the ground and strike their head, ultimately leading to their death due to bleeding on the brain or some other catastrophic injury. In such a situation, A would be charged with murder but the charge would almost always be downgraded to the lesser charge of manslaughter because it could not be proven that A, in punching B, intended to kill B. Intention is an extremely difficult thing to prove.

‘Murder’ redefined in 2019

However, a very significant and controversial change was made by the State Parliament on 1 May 2019. The definition of murder, as specified under the law, is as follows:

A person who unlawfully kills another under any of the following circumstances:
(a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(aa) if death is caused by an act done, or omission made, with reckless indifference to human life;
(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(c) if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(d) if death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (c);
(e) if death is caused by wilfully stopping the breath of any person for either of such purposes;

Section (aa) above, which is the new provision included in 2019, 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.

Why was the change made?

In explaining the need for the change, the Explanatory Notes said:

“Many unlawful child killings in Queensland result in an offender being convicted of manslaughter rather than murder for a range of reasons, including difficulty in establishing intent even where the death is due to physical abuse. Including recklessness as an element of murder in section 302 of the Criminal Code will capture a wider range of offending as murder in Queensland. Reckless murder exists in a number of other Australian jurisdictions reflecting that intention and foresight of probable consequences are morally equivalent – that is a person who foresees the probability of death is just as blameworthy as the person who intends to kill. This change, depending on the circumstances of the particular case, will apply across the board to not just include recklessness in relation to the deaths of children but will be applicable to any person, including other categories of vulnerable persons such as the disabled and the elderly.”

Going back to the tragic example involving Ms Leadbetter and Mr Field, given that it would be difficult for the prosecution to prove that the act of running the red light demonstrated an intention to kill, it appears that they will be relying upon the ‘reckless indifference’ provision to pursue the teenage defendant.

The ‘reckless’ murder amendments have attracted significant controversy and in my next article I’ll explain why many legal experts believe it is a very dangerous amendment.

For more questions about murder charges, feel free to reach out to us.