Are there degrees of murder in Australia? In Australia, the legal system does not recognise the concept of first, second, and third-degree murder. They’re only used in the United States. Instead, the Australian criminal system categorises homicide into two primary classifications: murder and manslaughter.
Murder is a serious crime or unlawful and dangerous act that is punishable by law in any country. In many states, the offence also covers ‘felony murder’, which is where the killing occurs during the commission of a serious offence.
The degree of murder is determined by the circumstances surrounding the crime under common law. However, the concept of degrees of murder does not apply to Australia. Read on to learn how penalties apply in Australia.
Pardon the Jargon: Defining Legal Terms
In this article, you might encounter some legal terms you’re unfamiliar with. Let’s define some of them so you can read this article easily.
- Homicide – “The killing of one human being by another”. Homicide is a broad or umbrella term that refers to both lawful and unlawful killings.
- Manslaughter – This involves the unintentional killing of another person.
- Murder – Murder involves the deliberate unlawful killing of another person.
Now that we have defined these terms, you may wonder when killing is lawful. By nature, we can all agree that to kill is morally wrong. However, there are some instances where a person may lawfully kill someone. Someone can legally kill if they are, for example, in situations where:
- They are using it for self-defence. For example, a person killed someone who was trying to assault or hurt them.
- A war is ongoing and the killer is a soldier who shot another soldier dead
- The killer is an executioner for a state that allows capital punishment.
Here are some other key legal terms used in the definition of murder:
- Malicious: This refers to an intention to harm, either physically or mentally.
- Punishable homicide: This term encompasses any unlawful act that results in the death of another person.
- Accomplice: This refers to someone who aids or encourages another person to commit a crime. Truth be told, it’s sad to know that other people help in the murder of a person.
Distinguishing Murder from Manslaughter
The key distinction between murder and manslaughter lies in the mental element. If the prosecution cannot prove one of the aforementioned mental states beyond any reasonable doubt, the crime may be classified as manslaughter instead.
Essentially, manslaughter involves a lesser degree of culpability, often stemming from factors like provocation, self-defence, or diminished responsibility. In Australia, two primary types of manslaughter exist:
- Voluntary manslaughter: This applies when circumstances like provocation or self-defence are involved. It can also encompass situations where the defendant committed an unlawful act that endangered life and resulted in death, even without a specific intent to kill or inflict serious harm.
- Involuntary manslaughter: This occurs when death is caused by criminal negligence. For instance, if a doctor’s error during surgery leads to a patient’s death, they could be charged with involuntary manslaughter.
Categorising the Degrees of Murder in the United States
First-Degree Murders: The Most Serious Offence
First-degree murder stands as the most serious form of criminal homicide. A person who commits first-degree murder commits this with intent and is generally premeditated. This means the perpetrator planned and intended to kill the victim beforehand.
The sentence for this grave offence reflects its severity, often resulting in life imprisonment without the possibility of parole. In California, the death penalty is a possible punishment for those who commit this grave offence.
Second-Degree Murders: Unplanned but Intentional
Falling beneath first-degree murder on the spectrum is the realm of second-degree murder. Here, the act of killing is intentional, but the element of premeditation is absent. This often involves situations where the offender acted impulsively or in the heat of the moment but with the clear intent to cause harm.
Sentences for second-degree murder typically range from ten years without parole to life imprisonment. The severity of the penalty will depend on the location, the nature of the crime and other factors.
Third-Degree Murders: Least Severe Category
This category often encompasses cases where murder charges don’t meet the criteria for first or second-degree classifications. Despite being the least severe degree, third-degree murder still carries significant consequences, with minimum sentences of four years if a firearm was involved.
Why Are There No Degrees of Murder in Australia?
You may tell yourself “Having degrees of murder in Australia’s legal framework can help identify the severity of a murder”, so why is there none? The absence of degrees of murder in Australia is due to the country’s unique legal framework. Australia focuses on the specific circumstances and intent surrounding the act of homicide, rather than categorising it into different degrees.
Under Section 18 of the Crimes Act 1900 NSW, murder constitutes the following mental elements:
- Intent to kill: This requires establishing the defendant deliberately planned and executed the killing; or
- Intent to inflict grievous bodily harm; or
- Reckless indifference to human life: This involves demonstrating that the defendant’s actions disregarded the potential for causing death, even without a specific intention to kill.

What Does the Crimes Act Say?
As briefly explored above, for someone to be convicted of murder, three key elements must be present:
- Voluntary Act or Omission: The accused must have either intentionally acted or intentionally omitted to act, leading to the death of the deceased.
- Causal Connection: The act or omission of the accused must be the direct cause of the death.
- Mental Element: The accused must have acted with one of the following mental states:
- Intent to inflict grievous bodily harm: This means the accused aimed to cause serious physical injury to the victim.
- Intent to kill: This implies the accused deliberately intended to end the victim’s life.
- Reckless indifference to human life: This indicates the accused disregarded the potential consequences of their actions, demonstrating a blatant disregard for human safety.
- Commission of a serious crime: This involves situations where the death occurred during or immediately after the accused, or their accomplice, attempted or committed a crime punishable by at least 25 years imprisonment.
Read: Murder Laws NSW
Criminal Lawyers: Your Defender in Murder Cases
We hope the legal definition of murder in New South Wales doesn’t seem too complex for you. There are essential elements that we just have to take note of to know if we can classify an offence as murder. Another factor we should also consider is if the murder was lawfully or unlawfully executed.
To help with such cases, criminal lawyers can serve as powerful advocates for you and offer crucial support and expertise. Here are the key contributions of criminal lawyers in murder cases:
- Building a strong defence: Investigating the case, identifying legal issues, and developing a defence strategy tailored to the individual’s circumstances.
- Negotiating with the prosecution: Seeking plea bargains, lighter sentences, or alternative solutions like diversion programs.
- Representing the accused in court: Presenting evidence, cross-examining witnesses, delivering arguments, and protecting the client’s rights.
- Offering emotional support: Guiding the accused through the legal system and providing emotional support during this stressful time.
- Appealing the verdict: Identifying legal errors and representing the client in appeals court.

Our Expertise in Criminal Law Matters
The information in this article here can offer a general understanding of murder laws. However, such information cannot be compared when a person navigates the complexities of murder in real life. JB Solicitors, with their experienced legal team and in-depth knowledge of criminal law, can provide invaluable guidance and support throughout the criminal legal system.
Our dedication to achieving the best possible outcome for their clients makes them a trusted partner in navigating these sensitive and challenging situations.
Don’t hesitate to contact JB Solicitors for a confidential consultation and ensure your rights are protected every step of the way.