LAWS1206 Lecture Notes - Lecture 5: Supreme Court Of Victoria, Strict Liability, Endangerment
Week 5 – manslaughter
Overview
•Punishment for manslaughter under the Crimes Act 1900 (NSW): s 24.
•Manslaughter defined (?) under s 18(1)(b).
•NB: the core physical element of manslaughter is the same as for murder – causing
the death of a human being.
•Distinction between:
oVoluntary manslaughter
oInvoluntary manslaughter
•Categories of involuntary manslaughter:
oUnlawful and dangerous act manslaughter (see Wilson v The Queen (1992)
174 CLR 313); and
oCriminal negligence manslaughter (see Nydam v The Queen [1977] VR 430)
oStatus of battery manslaughter after Wilson?
Crimes Act 1900 (NSW)
•Section 24 Manslaughter – Punishment
•Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25
years:
Provided that, in any case, if the Judge is of the opinion that, having regard to all the
circumstances, a nominal punishment would be sufficient, the Judge may discharge
the jury from giving any verdict, and such discharge shall operate as an acquittal.
To be read in conjunction with: Crimes (Sentencing Procedure) Act 1999
•Section 21 General power to reduce penalties
•(1) If by any provision of an Act an offender is made liable to imprisonment for life, a
court may nevertheless impose a sentence of imprisonment for a specified term.
•(2) If by any provision of an Act or statutory rule an offender is made liable to
imprisonment for a specified term, a court may nevertheless impose a sentence of
imprisonment for a lesser term.
•(3) If by any provision of an Act or statutory rule an offender is made liable to a fine
of a specified amount, a court may nevertheless impose a fine of a lesser amount.
•(4) The power conferred on a court by this section is not limited by any other
provision of this Part.
•(5) This section does not limit any discretion that the court has, apart from this
section, in relation to the imposition of penalties.
Why do we distinguish between murder and manslaughter?
•NSW Law Reform Commission Report 82 (1997) - Partial Defences to Murder:
Diminished Responsibility:
•“Today, the distinction between murder and manslaughter is seen to reflect degrees of
seriousness of unlawful killings, based on the everyday understanding that some
killings are more blameworthy than others. Liability for murder is reserved for the
most serious or reprehensible killings, whereas manslaughter applies to unlawful
killings which are recognised by the law as less blameworthy, whether because the
offender’s mental state was affected by some mitigating influence, or because the
offender did not intend to kill or otherwise lacked the requisite guilty mind for
murder.” (at parag 2.1)
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Crimes Act 1900 (NSW)
•Section 18 Murder and manslaughter defined
•(1) (a) Murder shall be taken to have been committed where the act of the
accused, or thing by him or her omitted to be done, causing the death charged, was
done or omitted with reckless indifference to human life, or with intent to kill or
inflict grievous bodily harm upon some person, or done in an attempt to commit, or
during or immediately after the commission, by the accused, or some accomplice with
him or her, of a crime punishable by imprisonment for life or for 25 years.
o(b) Every other punishable homicide shall be taken to be manslaughter.
•(2) (a) No act or omission which was not malicious, or for which the accused had
lawful cause or excuse, shall be within this section.
o(b) No punishment or forfeiture shall be incurred by any person who kills
another by misfortune only.
If it’s not defined in the legislation, then we must turn to the common law to understand the
offence = manslaughter
Voluntary manslaughter vs. Involuntary manslaughter
•Voluntary
oAll the elements of murder are in place, but murder is not the appropriate
categorisation of that crime because there is some mitigating circumstance or
factor that has affected the accused as they committed the homicide.
oCircumstances that reduce murder to manslaughter = (for example: s 23 -
extreme provocation and s 23A - substantial impairment by abnormality of
mind. See also s 22A - infanticide. Be alert to s 421 - excessive self-defence.)
•Involuntary
oThe actus reus for murder is there but there is no proof that the mens rea for
murder is there and so other culpable circumstances are taken into account
•Crimes Act 1900 (NSW) – Section 18 Murder and manslaughter defined
Involuntary manslaughter in NSW – a common law offence
•R v Lavender (2005) 222 CLR 67; [2005] HCA 37, Gleeson CJ, McHugh, Gummow
and Hayne JJ at [54] held that:
"On the true construction of s 18 of the Crimes Act, understood in context, the section
did not alter the common law of unlawful homicide by involuntary manslaughter.”
•In NSW, involuntary manslaughter is entirely governed by the common law.
What is involuntary manslaughter?
•Wilson v The Queen (1992) 174 CLR 313
•Facts:
oThe facts involve two accused (Daryl Wilson and Wayne Cumming) the
victim (Warren Ormsby) and Wilson’s girlfriend (Kerri Ann Bennier).
oWilson punched Ormsby who fell and hit his head; Cumming then smashed
Ormsby’s head twice against the concrete.
oWilson was convicted of manslaughter and Cumming was acquitted.
oWilson appealed against his conviction.
•Judgement in Wilson
oMajority = Mason CJ, Toohey, Gaudron and McHugh JJ:
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Before Wilson, the law had recognised three categories of involuntary
manslaughter:
Unlawful and dangerous act manslaughter;
Criminal negligence manslaughter; and
Battery manslaughter.
Majority in Wilson rejected Battery manslaughter as a separate
category of involuntary manslaughter: see [34], [35] and [49].
Majority judgment deals with the law relating to unlawful and
dangerous act manslaughter – specifically the test for “dangerousness”
oDirection of trial judge
“In this case if you have not found murder proved but had gone on to
consider manslaughter it would be manslaughter by an unlawful and
dangerous act. The killing of a man in the course of committing a
crime is manslaughter. The crime must be an act in serious breach of
the criminal law. A serious assault – you may think the punch by
Wilson or the hitting of the head on the concrete by Cumming to be
serious assaults – would be an unlawful act for this purpose. Whether
the particular act you are considering is a dangerous act is a matter for
your judgment.” (See [5])
English line of cases
•The Queen v Franklin (1883) 15 Cox CC 163
o – re “unlawfulness” aspect: the act must be more than a civil wrong
oNo test for danger at all
oFacts: accused on pier, steals a box from a stall into the sea, box hits a
swimmer in the sea and kills them
Trespass against shopkeeper and his belongings – because it was a
tortious act, it did not meet the criminal requirement for murder,
therefore no manslaughter
•The King v Larkin (1943) 1 All ER 217
o– additional requirement of “dangerousness” (“likely to injure another
person”)
oFacts: accused is at a party and sees his mistress with someone else, he goes
off and gets a razor, returns to party and confronts the couple, his mistress is
intoxicated, she stumbles and falls onto the razor and is killed. He is convicted
of manslaughter
He had committed an assault by threatening the couple with the razor,
intention of causing fear, therefore criminal offence, and therefore
liability to grant unlawful manslaughter
Danger requirement added for first time – not only must the act be a
criminal offence, it must be dangerous in some way – “likely to injure
another person”
•The Queen v Church (1966) 1 QB 59
o– re “dangerousness” test: “the unlawful act must be such as all sober and
reasonable people would inevitably recognise must subject the other person to,
at least, the risk of some harm resulting therefrom, albeit not serious harm.”
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Document Summary
Crimes act 1900 (nsw: section 24 manslaughter punishment, whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Why do we distinguish between murder and manslaughter: nsw law reform commission report 82 (1997) - partial defences to murder: Today, the distinction between murder and manslaughter is seen to reflect degrees of seriousness of unlawful killings, based on the everyday understanding that some killings are more blameworthy than others. If it"s not defined in the legislation, then we must turn to the common law to understand the offence = manslaughter. Be alert to s 421 - excessive self-defence. ) Involuntary manslaughter in nsw a common law offence: r v lavender (2005) 222 clr 67; [2005] hca 37, gleeson cj, mchugh, gummow and hayne jj at [54] held that: "on the true construction of s 18 of the crimes act, understood in context, the section did not alter the common law of unlawful homicide by involuntary manslaughter.
