Malice Aforethought

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Last week, a Queensland mother became the first person to be charged under the State’s new, expanded definition of murder laws, after allegedly leaving her two infant children to die in the blistering heat of her car, after falling asleep one Saturday afternoon.

The penalty for murder is mandatory life imprisonment, which cannot be mitigated. Until recently, to prove murder, prosecuting authorities were required to prove beyond a reasonable doubt that the accused person positively intended to cause death or grievous bodily harm of the deceased. Where the accused did not positively intend to kill, but death nonetheless occurred as a result of the accused’s reckless, careless, or negligent act, the crime was not murder, but manslaughter. Like murder, manslaughter carries a maximum penalty of life imprisonment. But, unlike murder, in a case of manslaughter, a sentencing judge has a discretion to mitigate the penalty, by imposing something less than life imprisonment.

However, earlier this year, more than 100 years after the enactment of the Queensland Criminal Code, the Queensland parliament expanded the definition of murder to include acts which constitute a ‘reckless indifference to human life’. In doing so, the legislature was undoubtedly reacting to public outrage around a recent string of horrific deaths attributed, at least by the press, to reckless, negligent or careless parenting. But the new laws could well have dire consequences for every-day parents, and others, who make split, subconscious, and yes, perhaps, even careless decisions which lead to tragic, but wholly unintended, results.

Of course, all decent parents take the firm view they would never unintentionally endanger the health and welfare of their child by, for example, leaving them in a hot car. But, in Australia, reports suggest that such events occur approximately 30 times per year. Countless other everyday tragedies, including drownings, traffic accidents and other household catastrophes, arise from a tragic but completely unintended lack of parental supervision. The duty of care owed by a parent to their child is paramount, constant and crucial – and, of course, it should be all consuming – but “accidents” do happen. Even foreseeable, easily preventable accidents.

Once upon a time, there was a clear distinction between the wilful, and deeply reprehensible, act of intentional homicide on the one hand, and, on the other, those careless, dumb and irresponsible acts that often lead to the same tragic circumstances, but with no malice aforethought. Once upon a time, a sentencing judge dealing with such tragic, but entirely unintended acts, had the discretion to weigh all the circumstances, carefully consider the true culpability of the accused, and ultimately, where appropriate, temper justice with mercy.

Alex Somers

Queensland Criminal Lawyer

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