Do you face homicide offence allegations in Queensland?

Get a lawyer who has helped numerous people to succeed in complex and difficult cases across Queensland.

Do you face homicide offence allegations in Queensland?

Get a lawyer who has helped numerous people to succeed in complex and difficult cases across Queensland.

How this firm can help you achieve justice

How this firm can help you achieve justice

Andrew Anderson, Legal Director, is an award-winning lawyer who is independently recommended as being among the leading criminal defence lawyers in Queensland.
Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions and multiple other courts dealing with trials and other hearings, Andrew Anderson understands how to succeed in complex and difficult cases.
Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from simple cases right through to complex homicide trials and appeals.
Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Learn more about homicide offences

1. Specific homicide offences in Queensland

As part of the On-Demand Resources library of this firm, Andrew Anderson has published detailed information about a number of specific violent offences in Queensland. Each article covers Queensland law, possible defences, penalties and sentences, as well as significant cases. Read more here:

Attempted Murder

Attempted murder is one of the most serious violent offences in Queensland law, as it requires proof of a specific intent to kill another person. It carries a maximum penalty of life imprisonment.

For an attempted murder case, the prosecution sets out to prove that the person charged unlawfully attacked or did something to another person with the intention of killing them, using means capable of doing so, but without death resulting. A charge of attempt to murder carries a mandatory minimum penalty if the ‘serious organised crime circumstance of aggravation’ applies.

Dangerous Driving Causing Death

Dangerous driving causing death is regarded as a serious criminal offence in Queensland. Whether driving is judged to be dangerous to the public is something that is evaluated by reference to “all the circumstances”.

Dangerous operation of a vehicle causing death, as the charge is officially labelled in Queensland, may relate to driving in any ‘place’, including private property, with one exception. The exception to where this offence will apply is a place being lawfully used to race or test vehicles under a licence or another authority and from which other traffic is excluded at the time. If you are facing a charge of this nature and seek advice, contact Anderson Legal.

Industrial Manslaughter

If a worker dies in the course of carrying out work for a business or other organisation, or is injured and later dies, an employer or relevant executive or manager may be charged with industrial manslaughter if they caused the death through negligence.

Industrial manslaughter is a relatively new criminal offence in Queensland, having being introduced in 2017. It targets business operators and senior officers in corporations who, through negligence, cause a worker’s death. Under the industrial manslaughter laws of the Work Health and Safety Act (Qld), Electrical Safety Act (Qld) and the Safety in Recreational Water Activities Act (Qld), the maximum penalty is up to 20 years imprisonment.

Manslaughter

Manslaughter involves the unlawful killing of another person and is among the most serious criminal offences in Queensland. In Queensland, punishment for manslaughter carries a maximum penalty of life imprisonment.

In Queensland, an unlawful killing that does not meet the definition of murder may be deemed manslaughter. Manslaughter may be proved in a number of ways, such as by proving criminal negligence or that the death was caused by a deliberate act of the accused . If you face a manslaughter charge or are a friend or family member of somebody who does, contact Anderson Legal. This firm provides expert advice and representation. 

Murder

In Queensland, murder is an offence that may be proved in a number of ways, including by an intentional killing or reckless indifference. It is essential for anybody facing a charge of this kind to receive expert advice and representation.

Murder is the most serious criminal offence in Queensland. In Queensland, punishment for murder carries mandatory life imprisonment with a current minimum non-parole period of 20 years imprisonment. The minimum non-parole period may be higher in some cases. If you or a family member are facing a grievous bodily harm charge and seek authoritative legal advice and representation, contact Anderson Legal for a confidential discussion today.

2. Common defences to homicide offence allegations

If you are facing an allegation relating to a homicide offence, knowing which defences may apply and how they may be best raised as part of your case might be crucial to avoiding injustice.

Below is a list of common defences to violent offences in Queensland. While the detailed information about each defence has been created to help people seeking to learn more about specific defences, it cannot – and is not meant to – substitute legal consultation. To get tailored advice about how a specific defence may be raised in your case, contact Anderson Legal.

Accident

In Queensland, a defendant may not be criminally responsible for the consequences of an act or omission if they did not intend those consequences, or reasonably foresee them, and an ordinary person in their position would not have reasonably foreseen the consequences as a possible consequence of the act or omission either.

Section 23(1)(b) Criminal Code (Qld)

The law that makes ‘accident’ a defence to many criminal offences in Queensland is found in section 23(1)(b) of the Criminal Code:

23 Intention—motive

  1. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
  2.  
    1. an event that—
      • the person does not intend or foresee as a possible consequence; and
      • an ordinary person would not reasonably foresee as a possible consequence.

Exceptions to the defence of ‘accident’

If there is evidence to raise a defence of accident, it may still not apply because of the nature of the charge or the facts of the case. The defence does not apply to charges involving negligent acts or omissions. Furthermore, a defendant is not excused from criminal liability for causing  “death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality” under section 23(1A) Criminal Code (Qld). Certain charges may also exclude the defence of accident, such as in cases of unlawful striking causing death under section 314A of the Criminal Code (Qld).

Compulsion

In Queensland, the defence of compulsion often arises in one of two ways (there are other ways compulsion may arise):

  • A person does an act because it was reasonably necessary to resist a threat of actual and unlawful violence to themselves or to another person in their presence; or,
  • A person was compelled to act or to refrain from acting to avoid threatened harm, where the act or omission is reasonably proportionate to the threatened harm or detriment.

Section 21 Criminal Code

31 Justification and excuse—compulsion

  1. A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—
    1. in execution of the law;
    2. in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful;
    3. when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence;
    4. when—
      1. the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and
      2. the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and
      3. doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.

Exceptions to the defence of ‘compulsion’

If there is evidence to raise a defence of accident, it may still not apply because of the nature of the charge or the facts of the case. For example, section 31(2) Criminal Code makes clear a defence of compulsion does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.

Aiding in Self-Defence

In Queensland, it is lawful for a person who is acting in good faith to aid another in their defence from an assault, provided the use of force is reasonably necessary and not disproportionate in nature. In essence, a person may defend another against an attack on the same terms on which they would be permitted to act in self-defence under the Criminal Code.

Section 273 Criminal Code (Qld)

Aiding another to defend themselves is made a defence in Queensland by section 273 Criminal Code (Qld):

273 Aiding in self-defence

In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.

Death and Grievous Bodily Harm

In certain circumstances, force that may cause death or grievous bodily harm may be lawfully used when aiding another in self-defence. For an an unprovoked assault on another person, it may be reasonably necessary to use such lethal force when a reasonable apprehension arises that death or grievous bodily harm will result without the defensive acts. The defence is more restrictive in cases where a person comes to the aid of another who provoked the assault.

Defence of Dwelling

In Queensland, it is lawful for a person who is acting in good faith to aid another in their defence from an assault, provided the use of force is reasonably necessary and not disproportionate in nature. In essence, a person may defend another against an attack on the same terms on which they would be permitted to act in self-defence under the Criminal Code.

Section 267 Criminal Code (Qld)

Aiding another to defend themselves is made a defence in Queensland by section 273 Criminal Code (Qld):

267 Defence of dwelling

It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—
(a) the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and
(b) it is necessary to use that force.

Significance of ‘defence of dwelling’

Section 267 renders lawful the defence of a dwelling in circumstances that are more extensive than other defences, such as self-defence. The reason for this was explained by Keane JA (now a Justice on the High Court of Australia) in R v Cuskelly [2009] QCA 375 at paragraph [30]:

Where it arises on the evidence, s 267 affords a separate, and more extensive, ground of defence to an accused. It is apparent that s 267 is informed by policy considerations different from the affirmation of the legitimacy of proportionate force in self-protection embodied in s 271 and s 272. Section 267 gives effect to a policy of the law which recognises the legitimate use of force to defend hearth and home and to prevent the commission of offences by others in one’s home. This policy would not be wellserved if the defence afforded by s 267 were to be subsumed in practice by s 271 or s 272.

Mental Health Defences

In Queensland, both the Criminal Code (Qld) and Mental Health Act (Qld) provide different ways mental health defences may be litigated for people facing criminal charges. Defences involving mental health matters are often complex and require a detailed understanding of both the law and the way expert evidence may be gathered to support a defence of this nature.

Criminal Code (Qld)

Under sections 613 and 645 Criminal Code (Qld), it possible for a jury to be empanelled to determine whether a person is able to face trial. In some cases,  insanity may be raised as a defence to a charge under section 27 Criminal Code (Qld):

27 Insanity

  1. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.
  2. A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.

Mental Health Act (Qld)

The Mental Health Act (Qld) gives the Magistrates Court the power to dismiss a complaint for a ‘simple offence’ provided the Magistrate is reasonably satisfied, on the balance of probabilities, of the following matters:

  1. The person charged was, or appears to have been, of unsound mind when the offence was allegedly committed; or,
  2. The person is unfit for trial.

Referrals may also be made for a criminal case to be dealt with in the Mental Health Court under the Mental Health Act (Qld). When a referral is made to the Mental Health Court, proceedings in a criminal court are generally suspended until the matter is resolved in the Mental Health Court.

Exceptions to mental health defences

There are some limitations on the application of mental health defences in particular cases. For example, section 28 Criminal Code (Qld) states that the defence of insanity does not apply to a case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent. Another example of a limitation may be seen in the limitations mental health defences may have in cases of murder, as seen in section 304A Criminal Code (Qld).

Mistake of Fact

In Queensland, the defence of mistake of fact is sometimes pivotal in securing a just outcome in a criminal trial. A person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.

It is important to emphasise that the mistake must be both honest and reasonable. An honest belief is one genuinely held by the defendant. A reasonable belief must be one held by the defendant on reasonable grounds.

Section 24 Criminal Code (Qld)

Section 24 Criminal Code (Qld) creates the defence of mistake of fact in Queensland:

24 Mistake of fact

  1. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

Exceptions to the defence of ‘mistake of fact’

Section 24(2) Criminal Code (Qld) states that the defence of mistake of fact “may be excluded by the express or implied provisions of the law relating to the subject”. In essence, there are certain offences that expressly exclude mistake of fact as a defence, such as in the case of drink driving, and others where it may be implied.

Provocation

In Queensland, provocation has a particular meaning, which is defined in section 268 Criminal Code (Qld) to include:

… any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered … 

The law states:

When such an act or insult is done or offered by one person to another … the former is said to give the latter provocation for an assault.

Section 269 Criminal Code (Qld)

The defence of provocation is set out in section 269 Criminal Code (Qld):

269 Defence of provocation

  1. A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.
  2. Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

Exceptions to the defence of provocation

Provocation is a defence that only applies to “an offence of which an assault is an element”. Violent criminal offences, such as grievous bodily harm and wounding, do not have ‘assault’ as an element and therefore the defence of provocation cannot apply to those offences. For a charge of murder, a defence of provocation is limited by the operation of section 304 Criminal Code (Qld).

Self-Defence

In Queensland, the self defence may arise in a number of different ways, which affects the way the defence operates at law:

  • Self-defence against an unprovoked assault;
  • Self-defence against an unprovoked assault when there is an apprehension of death or grievous bodily harm; and,
  • Self-defence against a provoked assault.

Section 271 Criminal Code (Qld)

Section 271 Criminal Code (Qld) deals with both self-defence against an unprovoked assault and self-defence against an unprovoked assault when there is an apprehension of death or grievous bodily harm.

271 Self-defence against unprovoked assault

  1.  When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
  2. If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for
    the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

Section 272 Criminal Code (Qld)

Section 272 Criminal Code (Qld) creates a defence for self-defence against a provoked assault. That is, where a person may themselves provoke an assault, the severity or nature of the attack they face in response may itself create a need for self-defence. However, such a defence is confined in its operation given it is predicated on the provoked nature of the assault.

272 Self-defence against provoked assault

  1. When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
  2. This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

3. Possible consequences if charged or convicted

For anybody charged or convicted of a homicide offence, there can be consequences beyond what occurs within the criminal justice system. For many people, the potentially far-reaching effects from a charge or conviction for a homicide offence can come as a shock, which underscores why early advice from an experienced lawyer can be crucial to the outcomes that eventuate.

Adverse Publicity

For many people accused of a criminal offence, inaccurate or sensationalist reporting of the allegations is deeply troubling. Steps can be taken to mitigate the prejudice that can arise from adverse publicity to ensure a fair hearing.

While many journalists seek to adhere to high standards when reporting on criminal allegations, it can be important for anybody accused or convicted of a criminal offence to understand their legal options if their case is unfairly or improperly jeopardised by adverse publicity. Adverse media publicity can prejudice the fairness of a criminal trial, so it is important that people facing criminal allegations understand their rights when dealing with adverse publicity.

Character, Safety & Security Clearances

There are many occupations, jobs or roles that require character, safety and security clearances. A criminal history, and, in some instances, mere criminal allegations, can adversely affect assessments for character, safety and security clearances.

In Queensland, certain occupations are regulated by professional or trade bodies that can take disciplinary action following a criminal allegation or conviction arising. It is important to understand how a criminal law issue may affect other areas of life, such as employment prospects, recreational activities, insurance claims and other issues. This firm provides advice to its clients about the possible steps that can be taken to mitigate issues of this kind.

Character Tests – Citizenship / Visa Issues

The Australian Citizenship Act (Cth) and Migration Act (Cth) both contain character tests that can affect the eligibility for a person to become or remain a citizen or visa holder in Australia. Having a criminal history can be a decisive factor.

For citizens of another country who seek citizenship in Australia, a good character test can apply to the assessment of a citizenship application. Outstanding or finalised criminal charges (and even allegations falling short of criminal charges) can impact the assessment of the ‘good character’ test. The Migration Act (Cth) sets out the way a criminal history can lead to the refusal or cancellation of visas.

Compensation Claims

People convicted of criminal offences can face compensation claims from victims of crime. In Queensland, victims of crime have the ability to pursue compensation or restitution in a number of ways.

While the Victims of Crime Assistance Act (Qld) sets up a statutory scheme for victims of crime to pursue compensation, it represents just one way redress may be pursued against someone convicted of committing an offence against another person. Experienced criminal defence lawyers understand how issues associated with compensation can impact on the outcomes for victims and defendants inside and outside the criminal justice system.

Domestic Violence Orders

In Queensland, being convicted of a ‘domestic violence offence’ can trigger consideration of the need to make or amend a domestic violence order. A breach of a domestic violence order is a criminal offence in Queensland.

The Domestic and Family Violence Protection Act (Qld) allows courts to make domestic violence orders. The existence of a criminal record, particularly in relation to violent, abusive or controlling behaviours, can increase the likelihood of a court regarding it as necessary or desirable for a domestic violence order to be made. If it is alleged that a crime is also a ‘domestic violence offence’, it is essential to consider the issue of domestic violence orders.

Employment Issues

Many people do not realise that employers can take action – such as suspension or dismissal – against an employee accused of a criminal offence. In some cases, such disciplinary action may be taken even if the conduct occurred outside of work.

Being accused of a criminal offence of itself is confronting enough for most people, however losing your career and livelihood even before the offence is proved can create additional burdens. Anderson Legal has the expertise to guide its clients through the employment law issues that can arise from criminal allegations, including what steps may be taken to ensure employment is not unnecessarily ended by an employer.

Recording of Convictions

In Queensland, the Penalties and Sentences Act (Qld) gives the court a discretion to not record a conviction, despite the person being found guilty or having pleaded guilty to an offence. The recording of a conviction can have significant consequences.

Section 12 of the Penalties and Sentences Act (Qld) gives the court a general discretion to record or not record a conviction. Courts are required to take account of all relevant circumstances, such as the nature of the offence, the offender’s character and age, as well as the impact the recording of a conviction will have on them. For some sentences, such as those involving imprisonment or a breach of court orders, a court may be required to record a conviction.

Sentencing for Homicide Offences

The value of human life is a central consideration for any sentence involving a homicide offence. In Queensland, the law requires courts to consider specific issues for adults being sentenced for offences that cause harm to another person.

Courts imposing sentences for homicide offences must have primary regard to a range of considerations relating to the impact an offence has had on any victim (including their family), the risk of harm created by the offender, as well as the need to protect the community from that risk (among other things). Understanding these issues is critical for anybody seeking to obtain a just outcome from the criminal justice system.

Serious Violent Offence Declarations

The ‘serious violent offence’ regime can have a significant impact to a sentence. The effect of an offence being declared a ‘serious violent offence’ is the offender must serve at least 80% of their term of imprisonment before they are eligible for release.

In Queensland, a person may have their offence declared a ‘serious violent offence’ under Part 9A of the Penalties and Sentences Act (Qld). There are many offences under Queensland law that may have such declarations made, including most homicide offences, a number of sexual offences, as well as other crimes such as trafficking in a dangerous drug. Depending on the length of the sentence, a declaration may be imposed automatically or by discretion.

Do you need personalised legal advice or representation about homicide offences?

If you are facing allegations involving a homicide offence, obtaining early and authoritative advice is essential to protecting your rights and legal interests. Andrew Anderson has demonstrated experience in successfully preparing and conducting trials, sentences and appeals for homicide offences before all courts in Queensland.

If you need to contact Anderson Legal, you can call the firm on (07) 3505 7070. Alternatively, you can complete our form and we will try to contact you.

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