By: Andrew Anderson
Published: 25 January 2021
Published: 25 January 2021
By: Andrew Anderson
Murder – Queensland
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.
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 murder.
If you face a murder 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. In 2019, Andrew Anderson represented Steven Fennell in his high-profile acquittal for murder in the High Court of Australia.
- Murder – 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 Murder
Section 302 of the Criminal Code (Qld) sets out the definition of murder. It states:
302 Definition of murder
(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—
(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;
is guilty of murder.
(2) Under subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed.
(3) Under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person.
(4) Under subsection (1)(c) to (e) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
(5) 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 murder in association with being a criminal organisation participant.
Proof of Murder
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. Given the multiple definitions of what constitutes murder in Queensland, different elements will apply depending on how the prosecution attempts to prove its case.
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.
Intention: Murder under section 302(1)(a) Criminal Code (Qld)
Proof of murder under section 302(1)(a) of the Criminal Code requires proof of the following:
- The deceased alleged to be killed is dead;
- The person charged caused the death;
- The person charged did so unlawfully;
- At the time of doing the act or making the omission that caused the death, the person charged intended to kill or do grievous bodily harm to the deceased or some other person.
It is important to observe that the intention to cause the specific result (death or grievous bodily harm) does not need to relate to the person actually killed. An innocent bystander, for instance, may be killed by a bullet intended to kill somebody else. In such circumstances, the elements would still be made out given death resulted to “some other person” in those circumstances.
The above elements make clear that in order for a person to be found guilty of murder under section 302(1)(a) of the Criminal Code, it is sufficient to prove an intention to cause grievous bodily harm. The definition of ‘grievous bodily harm’ is set out in section 1 of the Criminal Code:
“grievous bodily harm” means—
(a) the loss of a distinct part or an organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available.
Reckless Indifference: Murder under section 302(1)(aa) Criminal Code (Qld)
The definition of murder was significantly expanded in Queensland by the introduction of section 302(1)(aa), which was introduced in 2019 as part of the Criminal Code and Other Legislation Amendment Act 2019 (Qld). The Explanatory Notes of the law explain the purpose of the law is to widen the scope of murder offences in Queensland:
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.
In essence, the offence of murder in Queensland now captures acts or omissions that formerly were likely to be bound up with the offence of manslaughter. The change means that instead of facing the discretionary penalty that applies in cases of manslaughter, a person convicted under the definition in section 302(1)(aa) now faces a minimum non-parole period of 20 years imprisonment.
In order for a person to be found guilty of murder by reckless indifference, the prosecution must prove beyond a reasonable doubt that the person charged knew death would be a probable consequence of their acts or omissions but nevertheless carried on regardless of the probability of death resulting. While this mode of proof for murder is relatively new in Queensland, it has a long history in other parts of Australia, including New South Wales. In Pemble v The Queen  HCA 20, a decision of the High Court of Australia that considered ‘reckless indifference’, the essential difference between murder by reckless indifference and manslaughter was explained by Justice Menzies:
The use of the words “recklessness” or “reckless indifference” of itself would not bring home to the jury that it is only a recklessness that involves actual foresight of the probability of causing death or grievous bodily harm and indifference to that risk which does constitute the mental element that must be found to support a conviction for murder. The difference between murder and manslaughter is not to be found in the degree of carelessness exhibited; the critical difference relates to the state of mind with which the fatal act is done.
The above quotation signifies that it is the actual state of mind of the person charged that is in issue. That is, proof of the offence requires the defendant to have actually known death would probably result from his or her actions yet carried on regardless of that realisation. This ‘state of mind’ is the murderous element that differentiates the charge from manslaughter.
Unlawful Purpose: Murder under section 302(1)(b) Criminal Code (Qld)
Proof of murder under section 302(1)(b) of the Criminal Code (Qld) (sometimes referred to as a ‘felony murder’) requires the prosecution to prove a death was caused through 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.” This provision has not always been simple to apply, as the High Court of Australia held in Hughes v The Queen  HCA 34 that the act likely to endanger human life is distinct from the unlawful purpose. What this means is that if, as in the case of Hughes v The Queen  HCA 34, if the dangerous act causing death is a violent assault, but the accused had no purpose other than to assault the deceased, then there is no relevant distinction and section 302(1)(b) could not apply. The case of Stuart v The Queen  HCA 54, again a decision of the High Court of Australia, is an example of when it can apply. The case against the accused there was that lighting a fire in a nightclub filled with people was likely to endanger life. The dangerous act was done in the prosecution of the unlawful purpose of extortion.
Facilitating Crimes: Murder under section 302(1)(c) Criminal Code (Qld)
Section 302(1)(c) of the Criminal Code (Qld) is not commonly resorted to as a mode of proof in the prosecution of murder charges in Queensland, which may be due to the degree of overlap with other means of proving the charge of murder. The potential overlap may be seen in the discussion by the Queensland Court of Appeal in R v Georgiou & Ors  QCA 206, in which it was stated in relation to a felony murder under section 302(1)(b):
It is, however, important to recognise that the section speaks of “unlawful purpose” and not “offence”. The unlawful purpose is therefore not limited to the strict elements of an offence. Any act done in the course of attempting to get away after the commission of an offence would be an act done for an unlawful purpose. In particular cases a question may arise as to when the “unlawful purpose” associated with the commission of an offence had ended, but such an issue does not arise here. The killing occurred very shortly after the breaking and entering of the chemist shop, on the street outside the shop, before the burglars had left the scene, and with a view of avoiding apprehension for the offence.
As the above passage indicates, an act done for the purpose of facilitating flight from a crime scene may fall under section 302(1)(b), even though it may also fall under section 302(1)(c) of the Criminal Code (Qld). Proof of murder under section 302(1)(c) of the Criminal Code (Qld) requires proof beyond a reasonable doubt of the following:
- The deceased alleged to be killed is dead; and,
- The person charged caused the death; and,
- The person charged did so unlawfully; and,
- The person charged intended to do grievous bodily harm to some person; and,
- The act was done for the purpose of facilitating the commission of a crime for which he or she may be arrested without warrant; or,
- The act was done for the purpose of facilitating the flight of someone who has committed or attempted to commit any such crime.
While offences may specify whether a suspected offender may be arrested with or without warrant, section 5 of the Criminal Code (Qld) defines the meaning of the term ‘the offender may be arrested without warrant’.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as murder, 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 murder, 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 ‘murder’
The law requires the prosecution to prove that the murder was caused ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty. In Queensland, possible defences include:
- Defence of another
- Extraordinary emergency
- Mistake of fact
- Killing on provocation
- Self defence
- Unwilled act
The charge of murder carries specific, partial defences that do not apply to other offences. The defences of diminished responsibility under section 304A of the Criminal Code (Qld), as well as killing for preservation in an abusive domestic relationship under section 304B of the Criminal Code (Qld) may apply in cases of murder but only reduce culpability to manslaughter. That is, those defences reduce the charge from murder to manslaughter but do not, unlike other defences, remove criminal responsibility completely.
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 murder should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.
Excluded defences for ‘murder’
In Queensland, the same defences do not apply to every offence. Certain defences are qualified or excluded for charges of murder. For instance, in R v Fitzgerald  QCA 109, it was explained that the defence of ‘unwilled act’ under section 23(1)(a) or ‘accident’ under section 23(1)(b) may not apply depending on the mode of proof chosen for the charge of murder.
Another example of a defence being excluded or qualified is the defence of killing on provocation under section 304 of the Criminal Code (Qld). More recently, it is a defence that has been significantly qualified to reduce its applicability in cases of murder.
Penalties & Sentences
The maximum penalty for murder in Queensland is life imprisonment or an indefinite sentence.
While many offences under Queensland law do not carry mandatory minimum sentences, murder does. The penalties are set out in section 305 of the Criminal Code (Qld), although it is necessary also, in some cases, to refer to section 181 of the Corrective Services Act (Qld). The following minimum penalties apply
- A minimum non-parole period of 30 years imprisonment applies in the following circumstances:
- The person is being sentenced on more than one conviction of murder; or
- The person is being sentenced on one conviction of murder, and another offence of murder is taken into account; or
- The person is being sentenced for one conviction of murder, and the person has been sentenced for another offence of murder on a previous occasion.
- A minimum non-parole period of 25 years imprisonment applies if the person killed was a police officer, and the murder occurred:
- when the police officer was performing his or her duties, and the offender knew, or ought reasonably to have known he or she was a police officer; or
- because the police officer was a police officer; or
- because of, or in retaliation for, the actions of the police officer or another police officer in the performance of the officer’s duty.
- A minimum non-parole period of 20 years imprisonment for an offence of murder committed on or after 29 August 2012 (due to the change in maximum penalty due to the Criminal Law Amendment Act 2012 (Qld)).
- A minimum non-parole period of 15 years imprisonment for an offence of murder committed before 29 August 2012.
- 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.
The minimum penalty for murder reflects the seriousness of the offence, which was highlighted by the President of the Queensland Court of Appeal in R v Appleton  QCA 290 at paragraph :
Murder is a particularly evil act because its effects are not limited to the extinguishment of a life that might have been longer. It also has an ongoing effect upon the victim’s close ones. That effect is not limited to mere bereavement. As in this case, such people must also lament the cruel facts about how their loved one was killed.
Sentencing in Queensland
For a charge of murder, 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 murder, 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.
The offence of murder has relatively prescribed penalties, leaving little discretion for courts. However, courts have a discretion to sentence a person convicted of murder beyond the minimum penalty prescribed under the law. So much was confirmed in R v Appleton  QCA 290 , a case in which a minimum sentence of 23 years imprisonment was imposed before eligibility for parole. It was stated:
In cases of murder, the element of denunciation is usually fully served by the imposition of a mandatory term of imprisonment for life with a minimum parole eligibility date of 20 years. However, cases may arise when more is required and s 160C(5) of the Penalties and Sentences Act 1992 can serve that purpose.
As such, while murder charges have a fairly well-defined mandatory set of penalties in Queensland, courts may increase the minimum amount of time to be served for instances of the offence that warrant particular denunciation.
The charge of murder 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 murder.
High Court of Australia
In 2019, Andrew Anderson represented Steven Fennell in his high-profile acquittal for murder in the High Court of Australia. On day the High Court of Australia heard his appeal, Steven Fennell’s appeal was allowed, his conviction was quashed, and his release secured by the finding that he was not guilty of the offences. It had found he had suffered a substantial miscarriage of justice. The case is an example of the miscarriages of justice that occur when inherently unreliable circumstantial evidence is used to convict a person of a crime. As the High Court of Australia detailed:
Steven Fennell’s house was searched and his bank accounts were examined. No excess cash was found nor were any excess deposits identified. There was no evidence directly linking Mr Fennell to the crime scene. Neither his DNA nor his fingerprints were found at the bloody crime scene. His glasses, clothes, shoes, “postie” motorbike and utility vehicle were all examined, with nothing incriminating found. He was excluded from being a possible contributor of the DNA profiles found on a shaving bag containing Mrs Watson’s bank documents which was found near other belongings of hers and a claw hammer in a mangrove area at Thompson Point, on the island.
The prosecution case relied upon opportunity, motive, and a miscellany of other matters said to be inculpatory. However, upon close analysis, none of the circumstances was close to adequate to disprove Steven Fennell’s innocence. His conviction had been earlier justified on a mistaken understanding of the evidence. In four critical areas, evidence in Steven Fennell’s case had been misunderstood – and misunderstood to his detriment. As the High Court of Australia explained in relation to the four areas at paragraph  of its reasons for judgment:
The Court of Appeal (Gotterson JA, with whom Philippides JA and Byrne SJA agreed) properly engaged in a consideration of the case as a whole when assessing Mr Fennell’s submission that the jury verdict was unreasonable or cannot be supported having regard to the evidence. However, and with genuine respect for an experienced judge, the reasoning of Gotterson JA involved errors in four areas which infected his conclusion. It is likely that a different process of reasoning in relation to any one of these areas would have led to a different conclusion.
The case of Steven Fennell shows that miscarriages of justice do occur and that without strict scrutiny being applied to the evidence and the legal principles that underpins the case, people can be wrongly imprisoned – and possibly for life.
Another significant case considered by the High Court of Australia was Koani v The Queen  HCA 42, in which the High Court overturned a split decision of the Queensland Court of Appeal. The question on appeal was whether an unwilled, criminally negligent act can found a conviction for murder under s 302(1)(a) of the Criminal Code (Qld) in a case in which the jury is satisfied that the accused possessed the intention to kill or to do some grievous bodily harm. While the Queensland Court of Appeal answered the question ‘yes’, the High Court overruled that decision and explained why the answer is ‘no’ at paragraph :
Section 302(1)(a) is not the statement of a free-standing mental element of criminal responsibility that can be attached to a negligent act or omission. The elements of the offence of murder for which s 302(1)(a) provides require the prosecution to prove that the unlawful killing was caused by an act or omission of the accused that was done or omitted to be done with the intention thereby of causing death or some grievous bodily harm to some other person. Section 302(1) is not an express provision of the Code relating to negligent acts or omissions for the purposes of s 23(1)(a): the offence of murder is not exempted from the rule that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person’s will.
The effect of the decision in Koani v The Queen  HCA 42 is that an alleged negligent act cannot found guilt under section 302(1)(a) of the Criminal Code (Qld). It is important to note, however, that since the High Court decision was delivered, Queensland Parliament introduced murder by “reckless indifference” under section 302(1)(aa) of the Criminal Code (Qld).
The following homicide offences are possible charges that may be substituted for, or charged as an alternative to, a charge of murder: