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:
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]
Contents
1 Required Reading
2 Introduction
3 Manslaughter by an Unlawful Act
3.1 Mens Rea
3.1.1 Characteristics of the Reasonable Person
3.2 Actus Reus
3.2.1 Excluded Unlawful Acts
3.2.2 Administering Drugs
4 Manslaughter by Criminal Negligence
4.1 Characteristics of the Reasonable Person
4.2 Justifying the Objective Standard
4.3 Deaths on the Road
5 End
6 References
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.
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]
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.
[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 jury then considers physical features of the situation, and the physical actions of the
accused.[19]
The jury does not consider:
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]
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.
[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 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:
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.
[40] Please see the textbook (pp. 469-71) for a brief discussion of cases involving dangerous driving.
End
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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).