Manslaughter

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Manslaughter is an alternative, lesser charge to murder. When a punishable homicide (a homicide which is not due to misfortune alone) falls short of the requirements set for murder, it might nevertheless qualify as manslaughter.

This article deals mainly with involuntary manslaughter. The types of manslaughter and their respective principles are as follows:

  • Manslaughter by an unlawful act:
    • Actus reus: an unlawful act (criminal offence) that causes death: Wilson.[1]
      • The accused must also have satisfied the sufficient mens rea for that relevant unlawful act.
      • An act done in self-defence is not an unlawful act: Downes.[2]
      • Some unlawful acts are excluded, most notably driving offences[3] and all omissions.[4]
    • Mens rea: an objective test of whether a reasonable person would have known that he was exposing others to an appreciable risk of serious injury: Wilson.[5]
      • 'Appreciable risk' means a risk that is real or significant, rather than remote or fanciful: Wilson.[6]
      • 'Serious injury' means an injury that is more than trivial or negligible: Wilson.[7]
      • Reasonable man:
        • Is the same age as the accused: DPP v Ty.[8]
        • Is in the same position as the accused: Cornelissen.[9]
        • Has an unclouded reasoning power of a healthy and reasonable mind: Wills.[10]
  • Manslaughter by criminal negligence (:Nydam; Lavender[11]):
    • Actus reus: act must be voluntary.
    • Mens rea: an objective test of:
      1. Whether the reasonable person who have appreciated a probability of death or grievous bodily harm, and
      2. Whether the conduct of the accused was 'wickedly negligent' - that is, falling so short of that of the reasonable person, to such a degree that actually merited criminal punishment.
      • Note: the reasonable person possesses the same personal attributes as the defendant - the same age, having the same experience and knowledge, & the circumstances in which found him/herself: Lavender.[12]

If the requirements above are satisfied, the defendant will be convicted of manslaughter. The maximum sentence for manslaughter is 25 years: s 24, Crimes Act 1902 (NSW). There is no standard non-parole period for manslaughter.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 454-471.

Introduction

Manslaughter occurs when a punishable homicide (ie, a homicide which is not due to misfortune alone) falls short of being full-blown murder. There are two broad categories of manslaughter:

  1. Involuntary manslaughter - this is where the defendant does not satisfy the sufficient mens rea for murder.
    • Further divided into two classifications: manslaughter by an unlawful & dangerous act, or manslaughter by criminal negligence (this is discussed properly below).
    • USG note: often, people refer only to involuntary manslaughter when referring to manslaughter. Teachers often say that the categories of manslaughter are simply manslaughter by unlawful act and manslaughter by criminal negligence, ignoring the following categories.
  2. Voluntary manslaughter - this is where the defendant has satisfied the mens rea for murder, but there were mitigating circumstances (ie, successful partial 'defences'). These include:
    • Provocation.
    • Substantial impairment.
    • Excessive self-defence.
    • Infanticide.
  3. Subjective manslaughter - this is where the defendant only partially meets the requirements set by case law to reckless indifference to human life. This can occur in two ways:
    • The defendant foresaw the probability of grievous bodily harm as opposed to the probability of death (note: this is reckless murder in other Australian jurisdictions).[13]
    • The defendant foresaw the possibility of death (as opposed to the probability).[14]

Manslaughter by an Unlawful Act

Manslaughter by an unlawful act occurs when death occurred because of the accused's intentional and unlawful act (and nevertheless, the accused does not satisfy the required mens rea for murder).

  • Actus reus: an unlawful act (criminal offence) that causes death.
  • Mens rea: an objective test of whether a reasonable person would have known that he was exposing others to an appreciable risk of serious injury.

These individual components will now be explained in-depth.

Mens Rea

The mens rea requirement of the offence was discussed in Wilson:

  • The 'circumstances must be such that a reasonable man in the accused’s position...would have realised that he was exposing another or others to an appreciable risk of serious injury (objective test for the mens rea element).
    • 'Appreciable risk' means a risk that is real or significant, rather than remote or fanciful.
    • 'Serious injury' means an injury that is more than trivial or negligible

Note that the test in Wilson is a dramatic narrowing of the conception of manslaughter, as opposed to the English line of authority.

Characteristics of the Reasonable Person

[15] Manslaughter by an unlawful act involves an objective mens rea test (ie, a reasonable person). Certain case law decisions have clarified certain 'characteristics' of the reasonable person. The following is a synthesis of those decisions:

  • The reasonable man:
    • Is the same age as the accused.[16]
    • Is in the same position as the accused.[17]
    • Has an unclouded reasoning power of a healthy and reasonable mind.[18]
  • The jury then considers physical features of the situation, and the physical actions of the accused.[19]
  • The jury does not consider:
    • The mental and emotional state state of the accused,
    • The idiosyncrasies of the accused, and
    • Effects of any intoxication.[20]

Actus Reus

[21] The actus reus of manslaughter by an unlawful act (which actually comes before the reasonable person test of the mens rea) is not only that the act caused death, but that the act causing death was criminally unlawful .[22]

  • This means the act must have been a criminal offence (for example, assault), not a tort or regulatory infringement.
  • The accused must also have satisfied the sufficient mens rea for that relevant unlawful act.
  • An act done in self-defence is not an unlawful act.[23]

This was discussed in Lamb:[24]

  • Facts: the accused ‘jokingly’ pointed a gun at his friend. There were two bullets in the cylinders. The accused did not know that the chamber turned when he fired: he shot and killed his friend.
  • Held: the accused did not commit an unlawful act, as he lacked the mens rea for assault.

Excluded Unlawful Acts

[25] Some unlawful acts will not always form the basis (ie, provide sufficient actus reus) for manslaughter by unlawful act. For example:

  • Driving offences - breaching statutory regulations regarding driving cannot itself form the basis for manslaughter by unlawful act, even where dangerous driving is involved. Instead, it will be manslaughter by criminal negligence.[26]
    • The act has to be ‘unlawful in itself’, where the vehicle is ‘used as a weapon’ to be tried as manslaughter by an unlawful act.[27]
    • However, in Cramp[28], a manslaughter by unlawful act conviction was upheld where the accused aided an abetted the 16-year-old deceased to drive at excessive speeds in an intoxicated state.
  • Omissions - omissions cannot form the base for manslaughter by an unlawful act, even if deliberate. Instead, it will be manslaughter by criminal negligence.[29]

These principles, combined with the narrower mens rea test in Wilson, mean that it is very hard to prove manslaughter by an unlawful act.

Administering Drugs

[30] There was a debate of whether drug offences constitute a sufficient unlawful act to found a manslaughter conviction.

  • Cato[31] and Dalby[32] represent the two extremes: Cato was convicted, Dalby acquitted.

Current position

In the UK, the House of Lords held in Kennedy (No 2)[33] that there cannot be a conviction where the administration of drugs was the result of ‘voluntary and informed decisions by the deceased’.

The Australian authorities applied a similar narrow approach in Wilhelm (the ‘Diane Brimbles’ Case).[34]

  • It was not enough to prove that the accused administered the drug to the deceased and encouraged her to take it – she needed to have her ‘will overborne’, and he had to be in a position of authority.

Manslaughter by Criminal Negligence

The underlying idea behind manslaughter by criminal negligence is that the act of the accused fell so short of the standard of care that a reasonable person (in such highly risky circumstances), that it actually merited criminal punishment. The main difference between manslaughter by criminal negligence to manslaughter by an unlawful act is that it is unnecessary to prove that the accused’s act was unlawful.[35]

The test for Manslaughter by criminal negligence was discussed in Nydam:

  • Actus reus: act must be voluntary.
  • Mens rea: an objective test of:
    1. Whether the reasonable person who have appreciated a probability of death or grievous bodily harm, and
    2. Whether the conduct of the accused fell well below that of the reasonable person.

Manslaughter by criminal negligence was also discussed in Lavender, which added further requirements:

  • The objective test of Nydam is affirmed. There is no subjective element to the test which considers the defendant's opinion. Similarly, there is no defence of honest and reasonable mistake of fact (which would make the test subjective).
  • To qualify for manslaughter by criminal negligence, the defendant must have been 'wickedly negligent' - that is, negligent to such a high degree that it actually warranted being punished.

Synthesised, this cases set the test for manslaughter by criminal negligence as follows:

  • Actus reus: act must be voluntary.
  • Mens rea: an objective test of:
    1. Whether the reasonable person who have appreciated a probability of death or grievous bodily harm, and
    2. Whether the conduct of the accused was 'wickedly negligent' - that is, falling so short of that of the reasonable person, to such a degree that actually merited criminal punishment.

Characteristics of the Reasonable Person

[36] The Lavender test is not entirely objective: the reasonable person is ‘clothed’ with the characteristics of the accused and his knowledge of the surrounding circumstances.

  • Ultimately, it is about how a reasonable person would have reacted when placed in the accused’s position.
  • The reasonable person possesses the same personal attributes as the defendant - the same age, having the same experience and knowledge, & the circumstances in which found him/herself.[37]
  • The accused’s opinion that it was safe to chase the boys with his truck was held to depart from the objective test too much.

The 'reasonable person' was also discussed in Sam and Sam (No 17):[38]

  • Facts: the mother and father of a deceased child were charged with manslaughter for allowing their daughter’s eczema to go untreated, from which she later died. The father was a homeopathic doctor who had practised in India before obtaining his licence in NSW. It is apparent he administered homeopathic remedies on his daughter, refusing allopathic cures.
  • Held: the judge told the jury that the 'reasonable person' in the father's position possessed the father's knowledge and practice in practice of homeopathy and medicine in India and Australia and his education, training, practice nad teaching of homeopathy in NSW.

Justifying the Objective Standard

[39] Kirby J in Lavender: Moral culpability is not the prerogative of the subjective test. Someone who fails to foresee the consequences of their actions may still be culpable.

Deaths on the Road

[40] Please see the textbook (pp. 469-71) for a brief discussion of cases involving dangerous driving.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1992) 174 CLR 313.
  2. (1985) 18 A Crim R 75.
  3. Pullman (1991) 58 A Crim R 222.
  4. Lowe [1973] 1 QB 702.
  5. (1992) 174 CLR 313.
  6. (1992) 174 CLR 313.
  7. (1992) 174 CLR 313.
  8. [2006] VSC 494.
  9. [2004] NSWCCA 449.
  10. [1983] 2 VR 201.
  11. Nydam [1977] VR 430;Lavender [2005] 222 CLR.
  12. [2005] 222 CLR.
  13. Solomon [1980] 1 NSWLR 321, 337.
  14. Crabbe (1985) 156 CLR 464, 465-72.
  15. Textbook, pp. 458-9.
  16. DPP v Ty [2006] VSC 494.
  17. Cornelissen [2004] NSWCCA 449.
  18. Wills [1983] 2 VR 201.
  19. Wills [1983] 2 VR 201.
  20. Wills [1983] 2 VR 201.
  21. Textbook, p. 459.
  22. Wilson (1992) 174 CLR 313.
  23. Downes (1985) 18 A Crim R 75.
  24. [1967] 2 QB 981.
  25. Textbook, pp. 459-460.
  26. Pullman (1991) 58 A Crim R 222.
  27. Pullman (1991) 58 A Crim R 222.
  28. [1999] 110 A Crim R 198.
  29. Lowe [1973] 1 QB 702.
  30. Textbook, pp. 460-1.
  31. [1976] 1 WLR 110.
  32. [1982] 1 All ER 916.
  33. [2008] 1 AC 269.
  34. [2010] NSWSC 334.
  35. Andrews v DPP [1937] AC 576.
  36. Textbook, pp. 466-7.
  37. Lavender [2005] 222 CLR.
  38. [2009] NSWSC 803.
  39. Textbook, pp. 468-9.
  40. Textbook, pp. 469-71.
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