Australia: Criminal offences relating to filicide in New South Wales

The coronial inquest into the death of Hannah Clarke is well underway in Queensland.

Over the past few weeks, the inquest has heard evidence of Hannah's former partner's violent tendencies, his increasingly erratic behaviour, the numerous formal complaints made by Hannah to police, the safety concerns she shared with her friends and family.

The red flags are similar to many other incidents of domestic violence, but in this case resulted in the tragic loss of four innocent lives.

Hannah's estranged husband set her car alight with her three children inside in February 2020 before killing himself.

Hannah died later in hospital from severe burns.

Filicide – when parents kill their children

At least 14 women have been killed as a result of alleged domestic violence across Australia so far this year. The number of children killed is not known.

Although there is no national database that records cases of filicide – which is the killing of a child by his or her mother, father or stepparent – research suggests that one child is subjected to filicide almost every fortnight in Australia.

Perpetrators tend to have some risk factors in common – such as domestic violence, mental illness and parental separation.

The problem, say researchers, is that there is not a lot known about these killings, or it's motivators, and there is also a lack of social conversation, education and understanding.

There are very limited support services too, and this is problematic – it is difficult for parents who are struggling to talk about wanting to kill yourself and / or your children – it comes with a lot of stigma and parents risk losing their children to social services, which is also an issue.

Tragedies involving filicide

In Melbourne earlier this year, Katie Perinovic and her three children were found dead in their home.

It's believed that Katie killed her three children, before killing herself.

In another case, Henry Shepherdson jumped off Whispering Wall in South Australia with his 9-month old baby, Kobi in a baby carrier strapped to his chest.

It is cases like these that will help to bring this issue into the spotlight so that it can potentially be identified before these tragedies occur.

The offence of filicide

There is no discrete offence of filicide in New South Wales.

Rather, such killings are covered by the offences of murder or manslaughter, or infanticide.

The offence of murder in New South Wales

Murder is an offence under section 18 of the Crimes Act 1900 which carries a maximum penalty of life imprisonment.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

1. Caused the death of another person,
2. Did so by way of a voluntary act or omission, and
3. Did so with the intention to kill or inflict grievous bodily harm, or with reckless indifference to human life, or during or immediately after the commission of an offence punishable by a maximum penalty of 25 years in prison (constructive murder).

Causation

An act or omission is considered to have 'caused the death' of another if it was a 'substantial or significant caused' of the death, even if some other cause was also operating at the time.

An act or omission will have caused death unless there is a break in the chain of causation, which will only occur if the original injury is merely the setting in which the subsequent cause operates, or if the subsequent cause is so overwhelming that it significantly diminishes the relevance of the original cause.

Examples of where the chain of causation is not broken include:

• Where the victim refuses medical treatment on religious grounds,
• Where subsequent medical treatment is poor, unless the injury had almost healed, and
• Where the victim engaged in unconscious acts that led to death.

The prosecution must prove causation, and a defendant is entitled to an acquittal if the prosecution fails to do so.

For example, a defendant was found not guilty in a case where the prosecution was unable to disprove that an underlying disease was the cause of the complainant's death.

Voluntary act or omission

The defendant's act or omission must be voluntary, and automatism (acting unconsciously) is a defence to murder.

So, for example, a person must be found not guilty if they commit the act while 'sleepwalking' in the absence of self awareness and self control.

Intention to kill or cause grievous bodily harm

An intention to kill or cause grievous bodily harm (GBH) means that at the time the defendant engaged in the subject act or omission, he or she meant to kill or cause GBH to the victim.

GBH means 'very serious harm', and includes but is not limited to:

• Any permanent or serious disfigurement,
• The destruction of a foetus, other than by a medical procedure, and
• Any grievous bodily disease.

The required intent may be established where:

• A continuous course of events led to the victim's death, and the defendant meant to kill or cause GBH at any time during those events,
• The defendant meant to kill or cause GBH but genuinely believed his or her actions would not lead to that outcome, or
• The defendant meant to kill or cause GBH to a particular person but instead caused the death of a bystander.

Reckless indifference to human life

A defendant is recklessly indifferent if he or she did, or omitted to do, an act foreseeing that death would be the probable result.

Constructive murder

Constructive murder, sometimes called 'felony murder', is where another person's death occurred during or immediately after the defendant or an accomplice committed, or attempted to commit, a criminal offence punishable by a maximum penalty of at least 25 years in prison.

Such offences include:

• Robbery while armed with a dangerous weapon,
• Robbery with wounding, and
• Sexual intercourse with a child under 10 years.

Penalty for murder

Section 19A of the Crimes Act 1900 prescribes a maximum penalty of life imprisonment for the offence of murder, and it is important to be aware that in New South Wales life imprisonment means 'for the term of a person's natural life'.

Standard non parole periods

Murder offences also carry what's known as ' standard non parole periods' (SNPP), which are guideposts of reference points for a sentencing judge when determining the minimum term a person must spend behind bars before he or she is eligible to apply for release on parole.

The SNPPs for murder are:

Defences to murder

Self defence is the most common legal defence to murder.

The defence is contained in section 418 of the Crimes Act 1900, which states that a person is not criminally responsible if he or she believes the actions were carried out in self-defence, and the conduct is a reasonable response to the perceived circumstances.

Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.

The defence is available where the conduct is necessary to:

(a) defend oneself or another person, or

(b) prevent or terminate the unlawful deprivation of ones liberty or the liberty of another person, or

(c) protect property from unlawful taking, destruction, damage or interference, or

(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

This extends to situations where a person steps in to defend another person.

However, section 420 of the Act makes clear that self-defence is not available where a person uses force that involves the intentional or reckless infliction of death only to protect property or prevent a trespass.

And section 421 provides that where a person uses excessive force to defend themselves or another, including to prevent the unlawful deprivation of liberty, and that force results in their target's death, the person will be criminally responsible for manslaughter rather than murder provided that he or she believed the conduct was necessary in the circumstances.

Significantly, section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence. If the prosecution is unable to do this, the defendant must be acquitted.

As mentioned above, automatism is also a defence to murder.

The offence of manslaughter in New South Wales

Section 18 of the Crimes Act 1900 (NSW) ("the Act") defines murder as any act or omission with "reckless indifference to human life" or "intent to kill or inflict grievous bodily harm on another person" which causes death.

Subsection 18(1)(b) of the Act provides that "[e]very other punishable homicide shall be taken to be manslaughter." The offence does not require the prosecution to prove reckless indifference to life or an intent to kill or cause grievous bodily harm.

Section 24 of the Act prescribes a maximum penalty of 25 years' imprisonment for the offence.

There are at three broad categories of manslaughter in NSW:

1. Manslaughter by unlawful and dangerous act,
2. Manslaughter by criminal negligence, and
3. Manslaughter by excessive self-defence.

Manslaughter by unlawful and dangerous act

This is a form of involuntary manslaughter which requires the prosecution to prove beyond reasonable doubt that:

1. the defendant killed another person,
2. the death was caused by an act of the defendant,
3. the defendant intended to commit the act that caused the death,
4. the act was unlawful, and
5. the act was dangerous.

The alleged 'dangerous and unlawful act' must be one that a reasonable person in the position of the defendant would have appreciated as exposing another or others to the risk of serious injury; Wilson v The Queen (1992) 174 CLR 313.

Manslaughter by criminal negligence

This is another form of involuntary manslaughter. To establish the offence, the prosecution must prove that:

1. the defendant owed a legal duty of care to the deceased,
2. the defendant committed an act or omitted to do an act,
3. the act or omission substantially caused or accelerated the death of the deceased,
4. the act or omission breached the duty of care owed to the deceased, and
5. the act or omission amounted to criminal negligence and deserved criminal punishment for the offence of manslaughter because:

• it fell far short of the standard of care which a reasonable person would have exercised in the circumstances; and
• involved such a high risk that death or really serious bodily harm would follow as a result of it.

In Lavender v The Queen (2005) 222 CLR 67, the High Court found that the degree of negligence must be at least as high as recklessness.

Australian courts have been loath to impose positive obligations on individuals when it comes to assisting others. However, the courts have found that liability for manslaughter may arise in the following situations.

• where the defendant had a legal obligation to care for the deceased – eg was a parent or carer – and failed to do so; Russell[1933] VLR 59.
• where the defendant assumed a duty of care towards a helpless person and secluded them so as to prevent others from rendering assistance; Stone and Dobinson [1977] 1 QB 354, Taktak (1988) 14 NSWLR 226.

Manslaughter by excessive self-defence

Section 421 of the Act provides that a person is guilty of manslaughter rather than murder where he or she:

• uses force that involves the infliction of death, and
• the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary:
• to defend themselves or another person, or
• to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another

The laws of manslaughter are often seen as a net which captures those whose dangerous acts or omissions cause the death of others, despite a lack of evidence proving an intention to kill or cause serious harm.

Self-defence is the main defence to manslaughter in our state.

The offence of infanticide in New South Wales

Infanticide is an offence under section 22A of the Crimes Act 1900, which carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were a woman,
2. You caused the death of your child,
3. You did so by a wilful act or omission,
4. Your child was under the age of 12 months, and
5. Your mind was disturbed by reason of not having fully recovered from giving birth, or by reason of the effect of lactation consequent on birth.

The offence is available to females as an alternative to a murder charge if the above criteria are fulfilled.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.