Unlawful and Dangerous Act Manslaughter

Unlawful and Dangerous Act/ Manslaughter

What is Manslaughter?

Manslaughter is dealt with in Section 18 Crimes Act 1900(NSW), although it is not defined by the act. Manslaughter can be understood by comprehending the two forms of Manslaughter, which is, Voluntary Manslaughter and Involuntary Manslaughter.

1. Voluntary Manslaughter

Voluntary Manslaughter is an offence that has all the elements of murder, laid down as follows:

a. Physical Element/Actus Reus:An act or omission of the accused which caused the death.
b. Mental Element/Mens Rea: Intent to kill someone. Or intent to inflict grievous bodily harm upon some person OR reckless indifference to human life.

However, the fundamental difference between murder and manslaughter is that in case of voluntary manslaughter the culpability of the offender’s conduct is reduced by reason of excessive self-defence, provocation, or substantial impairment by abnormality of the mind

What does the prosecution have to prove?

The accused acted or omitted to act, causing the death of the deceased.
There was an intention to kill or inflict grievous bodily harm or there was reckless disregard to human life.
The accused then raises the reasons of excessive self-defence, provocation, or substantial impairment by abnormality of the mind. It is upon the prosecution to disprove the above and establish the case beyond reasonable doubt. In the event the prosecution is not able to disprove the defences above, a case for Voluntary Manslaughter can be made.

2. Involuntary Manslaughter

The offense of Involuntary manslaughter has the physical elements of murder. However, the mental element of murder is not present. That is:
a. Physical Element/Actus Reus: An act or omission of the accused which caused the death.
b. Mental Element/Mens Rea: There is no intent to kill or inflict grievous bodily harm or reckless indifference to human life.
Involuntary manslaughter can be further classified into two:

i. Unlawful and Dangerous Act Manslaughter:

This form of involuntary manslaughter is said to have been caused when the accused does a criminally unlawful act (criminal offense) resulting in the death of a person. An objective test of whether a reasonable person would have known that they were exposing others to an appreciable risk of serious injury would be applied.
The term ‘appreciable risk’, used above, means a risk that is real or significant, rather than remote or fanciful. The ‘reasonable man’ for the purposes of the objective test stated above means a person of the same age as the accused, in the same position as the accused, with an unclouded reasoning, power of a healthy and reasonable mind.

What does the prosecution have to prove?

The accused’s actions were unlawful and resulted in the death of another person.
A reasonable person in the position of the accused would have realised that their actions could
result in serious injury.

ii. Involuntary Manslaughter by Criminal Negligence:

This form of Involuntary Manslaughter involves an act by the accused that was voluntary and conscious, without any intention of causing death or grievous harm but in circumstances which involved 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.

What does the prosecution have to prove?

The accused owed a duty of care to the deceased.
The accused committed an act/omitted to do an act.
The act or omission of the accused caused the death.
The accused’s act/omission was in breach of that duty of care.
That such an act amounted to criminal negligence and merited criminal punishment.

Onus of Proof

If you have you have been charged with the above criminal offence, you are innocent until proven guilty beyond reasonable doubt. The jury will review all available evidence and circumstances of the case and make a determination that you have been guilty of an offence. This concept was discussed by their Honour of Dixon CJ in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242 where he said:

“All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged”.

When does a ‘duty of care’ exist?

A duty of care may arise in the following situations:

Where a dependent familial relationship exists.
Where the accused created a dangerous situation.
Where there was a contractual relationship.
Where there was a voluntary assumption of a duty.
Where the law imposes a duty of care.

What is the Maximum Punishment for the offense of Manslaughter?

Section 24 Crimes Act 1900 (NSW) lays down the punishment for manslaughter. It states that the crime is punishable with imprisonment for 25 years. However, depending on the facts and circumstances of the case, the punishment might be lesser.

What are the defences available?

Self-Defence-Self-defence is defence to the above offence if you have killed a person while defending yourself from physical and threatened attacks.

Duress- You must prove that you were threatened or intimidated into a committing a crime against your will to successfully raise the defence of duress.

Necessity – The common law defence of necessity operates where circumstances (natural or human threats) bear upon the accused, inducing the accused to break the law to avoid even more dire consequences

Automatism- The defence of automatism can be raised if your offence committed was involuntarily.

Mental illness – For a successful defence of mental illness you must provide that you were suffering from mental illness and were not responsible for your actions.

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