By: Andrew Anderson
Published: 26 January 2021
Published: 26 January 2021
By: Andrew Anderson
Manslaughter – Queensland
Manslaughter 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.
Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of manslaughter.
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. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.
- Manslaughter – Queensland
- Queensland Law
- Possible Defences
- Penalties & Sentences
- Significant Cases
Section 300 Criminal Code (Qld)
Section 300 of the Criminal Code makes unlawful killing an offence in Queensland. The law states:
Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.
From this section of the Criminal Code, definitions are then given for ‘murder‘ and ‘manslaughter’.
Definition of Manslaughter
Section 303 of the Criminal Code (Qld) sets out the definition of manslaughter. It states:
303 Definition of manslaughter
(1) A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.
(2) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.
Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit an offence of manslaughter in association with being a criminal organisation participant.
Proof of Manslaughter
For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond a reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.
There are different ways elements may be expressed, depending on the issues in a given case. For example, in a given case, manslaughter may be proved by criminal negligence, whereas in other cases a death may be caused by a deliberate act. In all cases, for a person to be convicted of manslaughter it is necessary for the prosecution to prove:
- The deceased alleged to be killed is dead;
- The person charged caused the death; and,
- The person charged did so unlawfully.
For the purposes of the criminal law in Queensland, the definition of ‘killing’ is set out in section 293 of the Criminal Code (Qld):
293 Definition of killing
Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person
As a result of section 293 of the Criminal Code (Qld), it is unnecessary for the prosecution to prove that the defendant’s actions were the sole cause of death, or that it immediately result. The way causation is understood in Queensland draws on the case of Royall v The Queen  HCA 27, a decision of the High Court of Australia. How it applies in Queensland was explained by the Queensland Court of Appeal in R v Sherrington & Kuchler  QCA 105, where it was said at paragraph :
Under s 300 of the Criminal Code, any person who unlawfully kills another is guilty of a crime, “which is called murder or manslaughter, according to the circumstances”. By s 293 of the Code, a person is deemed to have killed another if he “causes the death of” that other directly or indirectly by any means whatever. In the application of that section, courts in Queensland follow the decision in Royall v The Queen (1991) 172 CLR 378, 411, that a person causes the death of another if his act or conduct is a substantial or significant cause of death, or substantially contributed to the death (172 CLR 378, 398, 423). See Lowrie & Ross (1999) 106 A Crim R 565, 570-571. As was said in Royall, that question is not a philosophical or scientific one, but a question to be determined by the jury applying their common sense to the facts as they find them, at the same time appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378, 387, 425, 441.
The word ‘unlawfully’ means that the act or omission of the defendant causing the death is contrary to law and is not otherwise authorised, justified or excused. An example of when a person does not act unlawfully is when they act in self-defence.
In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty for the commission of an offence. For instance, a person may be found guilty if they aided or encouraged another person to do the act that causes death.
In reviewing an individual case, a criminal lawyer’s work often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as manslaughter, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.
For a charge of manslaughter, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.
How are defences raised on the evidence?
A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.
One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.
Common defences for ‘manslaughter’
The law requires the prosecution to prove that the manslaughter was caused ‘unlawfully’. That means if the prosecution cannot disprove the act or omission is not excused by law, the person charged must be found not guilty. In Queensland, possible defences include:
- Defence of another
- Extraordinary emergency
- Mistake of fact
- Self defence
- Unwilled act
Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of manslaughter should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.
Excluded defences for ‘manslaughter’
In Queensland, the same defences do not apply to every offence. Certain defences are qualified or excluded based on the elements that may apply. For example, manslaughter does not require proof that an ‘assault’ occurred. For that reason, ‘provocation’ is not a defence to a charge of manslaughter because the defence of provocation under section 269 of the Criminal Code applies only to offences where ‘assault’ is an element.
In cases where criminal negligence is the basis for manslaughter, the defences of ‘unwilled act’ and ‘accident’ under section 23 of the Criminal Code (Qld) will not apply. That is because the commencing words of section 23 are “Subject to the express provisions of this Code relating to negligent acts and omissions”. This makes the defences subject to the duties held by people to prevent death or harm resulting to people through criminal negligence. Under the Criminal Code in Queensland, criminal negligence cases may be based on deaths caused as a result of failing one of the following duties:
- Duty to provide the necessaries of life to people who are unable to care for themselves due to age, sickness, unsoundness of mind, detention, or some other cause (see section 285 of the Criminal Code (Qld));
- Duty of people who have care of children under 16 (see section 286 of the Criminal Code (Qld));
- Duty of people doing dangerous acts (see section 288 of the Criminal Code (Qld));
- Duty of persons in charge of dangerous things (see section 289 of the Criminal Code (Qld); and,
- Duty to do certain acts (see section 290 of the Criminal Code (Qld).
The offence of industrial manslaughter is also based on the concept of negligence and the failure to take reasonable precautions in relation to the health, safety and welfare of workers.
Penalties & Sentences
Under section 310 of the Criminal Code (Qld), the maximum penalty for manslaughter in Queensland is life imprisonment.
Generally, there is no minimum penalty that applies to a charge of manslaughter. However, if a person is convicted of manslaughter and the circumstance of aggravation that the offence was committed as a criminal organisation participant, then the following minimum penalty applies:
- When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years imprisonment must be served wholly in prison, on top of whatever other penalty is otherwise required to be served.
Sentencing in Queensland
For a charge of manslaughter, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a homicide offence like manslaughter, the law states that the court must have primary regard to the following considerations:
- the risk of physical harm to any members of the community if a custodial sentence were not imposed;
- the need to protect any members of the community from that risk;
- the personal circumstances of any victim of the offence;
- the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
- the nature or extent of the violence used, or intended to be used, in the commission of the offence;
- any disregard by the offender for the interests of public safety;
- the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
- the antecedents, age and character of the offender;
- any remorse or lack of remorse of the offender;
- any medical, psychiatric, prison or other relevant report in relation to the offender;
- anything else about the safety of members of the community that the sentencing court considers relevant.
If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.
Given the offence of manslaughter may be committed in an infinite number of ways, and those who do so come from all different backgrounds and stages of life, the possible punishment is similarly broad. As Chief Justice de Jersey summarised in the case of R v WAW  QCA 22 at paragraph :
The court has repeatedly emphasized the wide “range” applicable to sentencing for manslaughter, because of the infinitely varying circumstances in which that offence is committed.
In Queensland, a person convicted of manslaughter may have their offence declared a ‘serious violent offence’ under Part 9A of the Penalties and Sentences Act 1992 (Qld). 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.
There are many offences under Queensland law that may have such declarations made, including:
The full list of applicable offences is contained in Schedule 1 of the Penalties and Sentences Act.
The declaration is automatic when a person is convicted of a prescribed offence and sentenced to at least 10 years’ imprisonment.
A court has the discretion to declare an offence a ‘serious violent offence’ if imposing between 5 and 10 years’ imprisonment for a charge of manslaughter.
Generally, courts have an unfettered discretion in determining whether to declare an offence a serious violent offence. However, in any case involving violence to a child under 12 or a crime that results in the death of a child under 12 years, the law requires a sentencing court to treat the age of the child as an aggravating factor in deciding whether to declare the offender to be convicted of a serious violent offence.
The charge of manslaughter has involved a number of significant legal decisions over time, including in the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with manslaughter.
High Court of Australia
In Pickering v The Queen  HCA 17, the High Court of Australia considered whether a defence of compulsion under section 31(1)(c) of the Criminal Code (Qld) can apply to a charge of manslaughter. The relevant section of the Criminal Code (Qld) states:
(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 –
(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person
(2) However, this protection 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 …
The High Court of Australia unanimously held that the defence under section 31(1)(c) of the Criminal Code (Qld) did apply for a charge of manslaughter, as it was not an offence excluded under section 31(2). It was stated by Justices Gaegler, Gordon and Edelman at paragraph  of the judgment:
Section 31(1) is not available to deny criminal responsibility on a charge of any of the offences described in s 31(2). Section 31(1) may, if it is open on the evidence, be available in relation to any other offence that is charged or that is available as an alternative verdict.
The reference to ‘alternative verdict’ is important for a charge of manslaughter. Under section 576(1) of the Criminal Code (Qld), manslaughter is specified as an alternative verdict to manslaughter. The case of Pickering v The Queen  HCA 17 is important as it clarified that a particular defence did apply to a charge of manslaughter.
Another significant decision from the High Court of Australia in relation to manslaughter came in the case of Strbak v The Queen [HCA] 10. The legal importance of the decision by the High Court relates to how a judge may sentence a person in relation to contested facts. Generally, on the trial of a criminal allegation, no adverse inference should be drawn by a jury from the fact that the person charged did not give evidence. While that principle does not apply in rare and exceptional cases (see Azzopardi v The Queen  HCA 25), it is otherwise a fundamental principle in Australian criminal law. The question raised by the appeal in Strbak v The Queen [HCA] 10 was whether the same principle applies to the resolution of disputed facts during sentencing, as courts in Queensland had been following a decision of the Queensland Court of Appeal that said the principle did not apply. In holding that the principle does apply to sentencing, the High Court of Australia stated at paragraph :
The presumption of innocence and the requirement of proof beyond reasonable doubt are attributes of a criminal trial but the analysis in Azzopardi, distinguishing the criminal trial from its civil counterpart, proceeds from a more fundamental proposition, which is the accusatorial character of the former. It is because a criminal trial is an accusatorial proceeding in which the prosecution bears the burden of proving the allegations it makes that, as a general rule, there can be no expectation that the accused will give evidence. Absent such an expectation, no inference can be drawn from the choice not to do so. It is also to be noted that the “companion rule”, that the accused cannot be compelled to assist the prosecution in the discharge of its onus of proof, is an aspect of the accusatorial nature of the proceeding and not of the standard of proof.Footnotes omitted
The decision in Strbak v The Queen [HCA] 10 confirms that absent contrary law by Parliament, the prosecution is required to prove matters on which it relies that are adverse to the interests of a defendant beyond a reasonable doubt. As section 132C of the Evidence Act (Qld) states that the civil standard of proof applies (balance of probabilities) to sentencing, in Queensland the prosecution must only prove additional, aggravating facts on sentence to that standard.
The following homicide offences are possible charges that may be substituted for, or charged as an alternative to, a charge of murder: