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Manslaughter

To top [5-950] Manslaughter

There are only two categories of involuntary manslaughter at common law —

(i) 

by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and

(ii) 

by criminal negligence with a high risk that death or grievous bodily harm will follow.

The offence of manslaughter at common law has been held to be subject to s 18(1)(b) of the Crimes Act 1900, however, it has been authoritatively established that malice is not an element of the offence: see The Queen v Lavender (2005) 222 CLR 67.

Manslaughter may, of course be charged as a separate count in the indictment. Alternatively an accused may be convicted of manslaughter on an indictment charging murder alone: see R v Downs (1985) 3 NSWLR 312.

Various suggested written directions are set out below.

To top [5-960] Where manslaughter is alleged to arise out of a fatal act occasioned during the carrying out of a joint criminal enterprise

The following suggested direction is based upon a joint criminal enterprise to rob whilst armed: Crimes Act 1900, s 97. It is assumed that a bystander (H) was stabbed by the co-accused (T), while bystander (H) was coming to the rescue of the victim of the robbery (K).

To top [5-970] Suggested direction

To establish that the accused is guilty of manslaughter, it is necessary for the Crown to prove beyond reasonable doubt all of the following elements —

1. 

The accused and (T) entered into a joint criminal enterprise to rob (K).

2. 

(T) did an unlawful and dangerous act by stabbing (H) with a knife, thereby causing the death of (H).

3. 

(T) did the act of stabbing (H) as an incident in the carrying out of the joint criminal enterprise to rob (K).

4. 

At the time of entering into the joint criminal enterprise to rob (K), and up to and including the time of the stabbing, the accused knew that (T) had the knife, which (T) used to stab (H).

5. 

At the time of entering into the joint criminal enterprise to rob (K), and up to and including the time of the stabbing, the accused contemplated that as an incident in the carrying out of the joint criminal enterprise to rob (K), (T) might do an unlawful and dangerous act, namely stabbing someone with the knife, thereby causing an appreciable risk of serious injury to that person, and the accused, having that contemplation, continued to participate in the joint criminal enterprise to rob (K).

To top [5-980] Where there is an unexpected incident in carrying out the common design

If the principal assailant has gone completely beyond the scope of the common design, and for example, has used a weapon and acted in a way which no party to that common design could expect, the inactive participant is not guilty of either murder or manslaughter. If however, the use of the weapon, even if its existence was unknown to the other party is rightly regarded as no more than an unexpected incident in carrying out the common design, the inactive participant may be convicted of manslaughter.

The first step in all cases of accessorial liability must be to determine the scope of the original agreement. What was the extent of the common design? Was the act which caused death something, although in fact not contemplated and unexpected by the accessory, nevertheless viewed in retrospect, reasonably within the scope of the joint plan? This will always be a question of fact, not law and in many cases will be a matter of degree. These matters are to be resolved by an objective test: see R v Duong (1992) 61 A Crim R 140 at 148–149 and cases there cited.

For more recent decisions, see R v Chai (2002) 76 ALJR 628; (2002) 128 A Crim R 101 and R v Rees [2001] NSWCCA 23.

To top [5-990] Suggested direction — manslaughter (unlawful and dangerous act) as an alternative to murder

In Stanton v The Queen (2003) 77 ALJR 1151, the High Court relevantly considered the circumstances and sequence in which the jury could consider alternative verdicts where manslaughter is charged as an alternative to murder.

The following direction must be considered quite separately from a verdict of guilty of manslaughter, which is available where the issue of provocation has not been eliminated by the Crown or where the accused has sought to establish the defence of substantial impairment of responsibility to the charge of murder.

Where an accused is charged with murder, but where the Crown has failed to establish that the accused’s act was done with the intention required to amount to the crime of murder … [or with the reckless indifference to human life required to amount to the crime or murder] there is an alternative verdict available and that is one of being guilty of “manslaughter”.

Before you will be justified in bringing in such an alternative verdict, the Crown must establish beyond reasonable doubt each of the following elements —

1. 

That it was the act of the accused in … [specify the nature of the act relied upon, such as stabbing or punching] the deceased which [caused or accelerated] his/her death;

[If the jury acquits of murder because the Crown has not established element number 1 above, then no issue of manslaughter by unlawful and dangerous act can arise and this should be made clear to the jury. In any case, directions will already have been given as to this in the context of murder].

2. 

That such act was a deliberate act of the accused; and

… [If the unlawful and dangerous act is the act of the accused causing the death charged for the purposes of the charge of murder, and there is an issue as to the “voluntariness” of that act and the jury acquits of murder on this basis, then no question of manslaughter by unlawful and dangerous act arises. Where the jury acquits on the basis that they are not satisfied that the act of the accused causing death was deliberate in the sense of an intentional, non-accidental act, then no question of manslaughter by unlawful and dangerous act can arise because the unlawful and dangerous act for that purpose must be deliberate in that sense. This needs to be made clear to the jury in an appropriate case].

3. 

That the act was an unlawful and dangerous one.

An act is unlawful if it involves a deliberate application of force to another person without that person’s consent … [and was not done in self-defence or in exercising a lawful power of arrest or etc] … [these will require separate additional directions. As to self-defence, see [6-450]].

An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury … [summarise evidence for the Crown and the accused and opposing submissions]. I direct you that if you accept the evidence relied on by the Crown, then the Crown would have established an unlawful act. Whether it was also dangerous is for you to determine.

The Crown does not have to establish that the act of the accused was done with any particular intention to injure. The offence of manslaughter is complete even if no injury was intended by the accused and even if the accused had not realised that the accused was exposing the deceased to such a risk of injury. The question is whether a reasonable person in the position of the accused would have realised that the accused was exposing the deceased to an appreciable risk of serious injury:

[If the issue of voluntariness arises on the evidence, and on the assumption that the act causing death for the purposes of murder is the unlawful and dangerous act for the purpose of manslaughter, add

You will recall that in directing you as to the charge of murder, I said that in the particular circumstances of this case a question arises as to whether the act of the accused, which the Crown alleges caused the death of the deceased, was the accused’s voluntary or willed act. You will recall also that I told you that it is for the Crown to prove beyond reasonable doubt that it was a voluntary and willed act.

If you arrive at the conclusion that the Crown has failed to eliminate, as a reasonable possibility, that the act was not a voluntary act of the accused, then the accused is entitled to an acquittal not only of the charge of murder but also of the alternative charge of manslaughter … [summarise opposing evidence and submissions on this issue].]

[If an issue arises as to intentional non-accidental act of the accused, add

Deliberate in element 2 is used in the sense of intentional and not accidental. As I have said in dealing with the charge of murder, the Crown’s case is, and it must be proved beyond reasonable doubt, that the accused’s deliberate act caused the death of the deceased. Whether an act was a deliberate one requires a determination as to the accused’s state of mind when the accused did that act. That state of mind may be demonstrated by the circumstances in which the act was done, including the conduct of the accused and any statements made by the accused before, at the time of, or after the accused did the act bearing upon this question … [summarise opposing evidence and submissions on this issue].]

To top [5-1000] Manslaughter by criminal negligence

1. 

In cases of manslaughter by criminal negligence, juries should be directed in accordance with Nydam v R [1977] VR 430 at 445:

“In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.”

The High Court in The Queen v Lavender (2005) 222 CLR 67 approved the test in Nydam v R at [17], [60], [72] and [136]. As manslaughter by criminal negligence in the large majority of cases involves an act of the accused, the suggested direction is confined to that situation. The necessary amendment can be made, of course, if the case is one of criminal negligence by omission.

The following directions are intended to accord with the principles enunciated in Nydam v R, as set out above.

To top [5-1005] Suggested direction — manslaughter by criminal negligence

Where an accused person is charged with murder but the Crown has failed to establish that the accused’s act was done with the [intention required to amount to the crime of murder/with the reckless indifference required to amount to the crime of murder], there is an alternative verdict available and that is one of “guilty of manslaughter”. This is sometimes known as manslaughter by criminal negligence or involuntary manslaughter.

Before you would be justified in returning a verdict of guilty of manslaughter by criminal negligence, the Crown must establish beyond reasonable doubt —

1. 

that the accused had a duty of care to the deceased;

2. 

that the accused was negligent in that by the accused’s act, the accused was in breach of that duty of care in that the accused … [insert the act of the accused upon which the Crown relies];

3. 

that such act of the accused [caused/accelerated] the death of the deceased; and

4. 

that such act merited criminal punishment because:

(i) 

it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(ii) 

involved such a high risk that death or really serious bodily harm would follow; and

(iii) 

the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct.

As to a duty of care, every person owes a duty to so conduct himself or herself that he or she will not cause injury to another person in circumstances where a reasonable person in his or her position would have foreseen a risk of injury from such conduct to that other person … [specify the situation relied upon by the Crown said to lead to criminal responsibility as indicated in element 2 in these directions].

I direct you, as a matter of law, that if you accept the evidence … [summarise evidence on which the Crown relies as establishing a duty of care, for example, that the accused was the driver of a vehicle on a road and that the deceased was also a road user] then the accused, in law, owed a duty of care to the deceased.

A person acts in breach of that duty when he or she does something which a reasonable person in his or her position would not do in the circumstances.

The reasonable person with whose conduct you must compare the conduct of the accused in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience and knowledge as the accused had of the circumstances in which the accused found [himself/herself]. If, by [his/her] conduct, the accused has acted in breach of such a duty of care, the accused is said to be negligent … [summarise evidence on the issue of breach relied upon by the Crown and by the accused, respectively, and the submissions of counsel].

The Crown does not have to establish that the accused had any intention to injure. The offence of manslaughter is complete, even if no injury was intended by the accused and even if the accused had not [himself/herself] realised that [he/she] was exposing the deceased to the risk of injury which would have been foreseen by a reasonable person in the accused’s position. The test is whether a reasonable person in the position of the accused would have realised that the risk existed.

[If there is an issue as to whether the accused’s act was conscious and voluntary, add

As I have said, the Crown’s case is that the accused by [his/her] conscious and voluntary act was in breach of the duty which the accused owed to the deceased. Whether or not an act was a conscious and deliberate one requires a determination as to the accused’s state of mind at the time when the accused did it. That state of mind may be demonstrated by the circumstances in which that act was done, including the conduct of the accused and any statements made by the accused before, at the time, and after the accused did that act which has a bearing on the question … [summarise opposing evidence and submissions].]

To top [5-1010] Notes — unlawful and dangerous act

1. 

The directions as to manslaughter by an unlawful and dangerous act are based on the law as it was most recently stated by the High Court in Wilson v The Queen (1992) 174 CLR 313 at 332–333. A recent case on manslaughter by an unlawful and dangerous act is R v RIK [2004] NSWCCA 282. See also R v Cornelissen and Anor [2004] NSWCCA 449 at [130]–[139] where the court considered whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant’s punch was “dangerous” according to the test stated in Wilson.

To top [5-1020] Notes — criminal negligence

1. 

In Lavender v The Queen (2005) 222 CLR 67 the High Court held at [59]–[60] that the defence of honest and reasonable mistake of fact does not apply to the offence. The respondent’s belief that it was safe to proceed in a front-loader (which ran over and killed a thirteen year old boy) was an opinion and involved a conclusion that his conduct was reasonable. This opinion was not relevant to “the objectivity of the test for involuntary manslaughter” (at [59]). It may have been appropriate however to invite the jury to take into account “…some particular fact or circumstance which the respondent knew, or thought he knew and which contributed to that opinion” (at [59]) if counsel had asked for a direction. Manslaughter by criminal negligence does not require a subjective appreciation by the offender that the conduct engaged in is unsafe (at [60]).

2. 

Where the Crown relies on criminal negligence by omission, emphasis must be given to its obligation to establish the existence of a legal duty and not merely a moral obligation. There must be a personal legal duty of such a nature that the natural and ordinary consequences of a breach of that duty is a danger to life: People v Beardsley (1907) 113 NW 1128 at 1129–1130 (quoted in R v Taktak (1988) 14 NSWLR 226 at 242–243). There are at least four situations in which a breach of the duty of care could lead to criminal responsibility —

(i) 

where a statute imposes on the accused a duty of care owing to the victim (such as the driver of a motor vehicle);

(ii) 

where the victim and the accused are in a certain relationship (such as the mother of a very young infant);

(iii) 

where the accused has assumed a contractual duty of care (such as the railway employee whose duty it is to close the gates at a level crossing when a train approaches); and

(iv) 

where the accused has voluntarily assumed the care of the victim who is unable to help [himself/herself] and the accused has so secluded the victim as to prevent others from rendering aid (the situation considered in R v Taktak (1988) 14 NSWLR 226).

To top [5-1030] Objective test of an appreciable risk of serious injury

It should be noted that in Wilson v The Queen (1992) 174 CLR 313, whilst the objective test for dangerousness in relation to manslaughter by an unlawful and dangerous act was confirmed, the High Court declined to adopt in full the test propounded in DPP v Newbury [1977] AC 500, namely, whether “sober and reasonable people would recognise an act as dangerous in the sense of carrying with it the risk of some harm”, whether or not the accused recognised its danger, and substituted therefore the objective test of an appreciable risk of serious injury. It should also be noted that what had previously come to be known as “battery manslaughter” is no longer to be regarded as a distinct and separate head of involuntary manslaughter, which is restricted to the two categories set out above as a result of the decision in Wilson v The Queen.

To top [5-1040] Intoxication

For the relationship between intoxication and manslaughter, see [3-250].

To top [5-1050] Born alive rule

The born alive rule, which provides that any sign of life after birth is sufficient for a baby to be born alive, still applies in NSW: R v IBY [2005] NSWCCA 178.

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