Involuntary Manslaughter: Unlawful and Dangerous Act, Negligent Manslaughter & Assault Causing Death PDF

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Involuntary Manslaughter: Unlawful and Dangerous Act, Negligent Manslaughter & Assault Causing Death notes...

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Class 5A - Involuntary Manslaughter: Unlawful and Dangerous Act, Negligent Manslaughter & Assault Causing Death I.

Involuntary Manslaughter: Unlawful and Dangerous Act

Objectives    

Involuntary manslaughter Unlawful and dangerous act manslaughter The new offence of assault causing death

Background Information  

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Manslaughter is divided into two forms: voluntary manslaughter and involuntary manslaughter Involuntary manslaughter involves cases where the accused does not have the necessary mens rea for murder (or even any mens rea at all) but is still regarded as sufficiently blameworthy to justify criminal punishment The two major categories of involuntary manslaughter are: 1.Unlawful and dangerous act manslaughter ('UDA manslaughter'); and 2.Negligent manslaughter (which includes negligent manslaughter by omission Unlawful and dangerous act manslaughter requires a dangerous act that causes the death of the victim 1.The High Court provided a decisive statement of the requirements of unlawful and dangerous act manslaughter in Wilson v R (1992) 174 CLR 313

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Textbook Reading 9.7 Manslaughter by Unlawful Act 

In manslaughter by an unlawful act the prosecution must prove that the unlawful act is dangerous, and this is assessed by looking to the standards of the reasonable person

Wilson (1992) 174 CLR 313 Facts: 

The Defendant (Wilson) hit the victim, causing him to fall and hit his head. The victim died from brain damage

Legal Issues: 

Manslaughter - by an unlawful act

Judgement: 

The court considered several past authorities to determine the test for manslaughter by an unlawful act.

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It rejected the English approach (Newbury test) by which there is no intention requirement and there only needs to be an appreciable risk of 'some harm'. Rather, it approved the Australian decision in Holzter but modified version. This means: o Act must be intentional and o '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).  '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 The court also concluded that 'battery manslaughter' is not a separate category of manslaughter and doesn't exist 9.7.1 Narrowing the definition of manslaughter

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Wilson represents a dramatic narrowing of our conception of manslaughter Although the test of whether the unlawful act was dangerous remains objective, the issue is whether a reasonable person in the position of the accused would have realised that the act carried out an appreciable risk of serious injury CLD [2015] NSWCCA 214, the NSW Court of Criminal Appeal held that it was unnecessary for the prosecution to prove that the reasonable person would have foreseen the precise cause of ignition of vapours released into the air from a solvent used during an illegal drug manufacturing operation, causing a deadly explosion - it was sufficient for the prosecution to prove that a reasonable person would have foreseen ignition (and the appreciable risk of injury arising from this), whatever the precipitating cause 9.7.2 Supplying drugs Burns [2012] HCA 35; 246 CLR 334

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Defendant supplied methadone to the deceased in her apartment. He injected himself with it and had an adverse reaction in her presence. He later died in a toilet block from the combined effect of the methadone and another prescription drug, after being asked to leave the apartment The trial judge directed the jury that supply of the methadone was an unlawful and dangerous act for the purpose of unlawful unlawful act manslaughter. The High Court held this was a misdirection The mere supply of methadone was not an act that a reasonable person would have believed would expose the deceased to an appreciable risk of serious injury The cause of death was the consumption of the methadone While this could qualify as a dangerous act, it was voluntary and informed act of the deceased and consequently the defendant could not be said to have caused the death NSW Parliament has now enacted legislation covering deaths caused by drugs supplied commercially Triggered by the deaths of a number of young people following the purchase and consumption of drugs at music festivals Crimes Act s 25C provides that it is an offence to supply a prohibited drug to someone for "financial or material gain" if the self-administration of the drug by that or any other person substantially causes their death

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The prosecution must prove that the accused supplier "knew or ought reasonably to have known" that those self-administering the drug would be exposed to "a significant risk of death" 9.7.3 Characteristics of the reasonable person Wills [1983] 2 VR 201, the Victorian Supreme Court offered some guidance on the characteristics of the reasonable person in the context of unlawful act manslaughter. Lush J stated:

II.

Negligent Manslaughter

Objectives  

Manslaughter by criminal negligence

Background Information 

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III.

The offence of manslaughter by criminal negligence involves an act or omission that fell so far short of the standard of care required of a reasonable person that is worthy of criminal punishment (Nydam v R 1977) Cases in this area are divided into those where the defendant committed a grossly negligent act causing death and those cases where death resulted as a consequence of an omission Negligent manslaughter by omission is essentially a subcategory of negligent manslaughter Generally, D will not incur liability for an omission even where D was in a position to prevent the harm, unless a legal rather than a moral duty can be established. D can only be charged with negligent manslaughter by omission if a legal duty is established Assault Causing Death

Objectives  

Familiarising with the recently introduced offence of assault causing death

Background Information 

On 31 January 2014, the NSW Government enacted the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2012 (NSW). The Crimes Act 1900 (NSW) s 25A now provides:

25A Assault causing death 1. A person is guilty of an offence under this subsection if: a. the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and b. the assault is not authorised or excused by law, and c. the assault causes the death of the other person. Maximum penalty: Imprisonment for 20 years.

2. A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated. Maximum penalty: Imprisonment for 25 years. 3. For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. 4. In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable. 5. It is a defence in proceedings for an offence under subsection (2): a. if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or b. if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment). 6. In proceedings for an offence under subsection (2): a. evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and b. the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood. 42 7. If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly. 8. If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly. 9. Section 18 does not apply to an offence under subsection (1) or (2). 10. In this section, cognitive impairment includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury. The Crimes Act 1900 (NSW) s 25B now provides: 25B Assault causing death when intoxicated—mandatory minimum sentence 1.

A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A (2). Any non-parole period for the sentence is also required to be not less than 8 years. 2. If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period). 3. Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedure) Act 1999 or any other Act or law relating to the sentencing of offenders. (4) Nothing in this section affects the prerogative of mercy.

s 428E provides: 428E Intoxication in relation to murder, manslaughter and assault causing death (1) If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: (a) in the case of intoxication that was self-induced—evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or (b) in the case of intoxication that was not self-induced—evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A. (2) An offence under section 25A is not an offence of specific intent for the purposes of this Part....