LAW1114 Lecture Notes - Lecture 14: Mattress, Nsw Law Reports, Russian Roulette
TOPIC&7:HOMICIDE&
Manslaughter,
GENERALLY: INVOLUNTARY/VOLUNTARY
Waller & Williams [6.1]-[6.3]: Introduction (Voluntary manslaughter)
• Manslaughter: The accused causes the death of a person
o New South Wales: ‘[E]very other punishable crime [other than murder] shall be taken to be
manslaughter’ (
Crimes Act 1900 (NSW)
, s 18(1))
v Punishment:
Crimes Act 1900 (NSW)
, s 24
o Victoria: ‘[W]hosoever is convicted of manslaughter shall be liable to level 3 imprisonment (20 years
maximum)’ (
Crimes Act 1958 (Vic)
, s 5)
• Voluntary manslaughter: Unlawful homicides in which the accused possessed the malice aforethought
required for the crime of murder, but liability is reduced due to mitigating circumstances Does not exist in
Victoria anymore (no partial defences in Victoria anymore)
o Mitigating circumstances (partial defences): Provocation (in New South Wales, but not Victoria),
excessive self-defence (known as ‘defensive homicide’ in Victoria), substantial impairment by
abnormality of mind
v Other applicable crimes: Assault
o Other applications of manslaughter: Killing pursuant to a suicide pact, infanticide (in New South
Wales)
o Complete defences for murder: Self-defence and mental impairment
v Other applicable crimes: Assault
o Defences for other crimes: Duress and necessity
Waller & Williams [6.1]-[6.3]: Introduction (Involuntary manslaughter)
• Involuntary manslaughter: Unlawful homicide where the accused lacks the mens rea for murder, but is
regarded by the law as being sufficiently culpable that he or she should be held responsible for the death
(
Wilson v R
(1992) 174 CLR 313;
R v Lavender
(2005) 22 CLR 67)
o Common law of involuntary manslaughter types:
(1) Unlawful and dangerous act manslaughter; and (No need for mens rea)
(2) Negligent manslaughter (e.g manslaughter by omission) ‘Gross negligence’
• Unlawful and dangerous act manslaughter: If the accused, in the course of committing any unlawful act,
brought about the death of another, that person was necessarily guilty of manslaughter
• ‘Unlawful act’:
o Acts which are subject to criminal punishment and not simply to civil liability (
R v Franklin
(1883)
15 Cox CC 163)
o Act must be ‘dangerous’ (
R v Larkin
[1943] 1 All ER 217)
v ‘Dangerous’: An act that is ‘likely to injure another person’
o ‘[U]nlawful 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’
(
R v Church
[1966] 1 QB 59)
o Unlawful and dangerous act manslaughter is the only true common law manslaughter in cases where
no question of criminal negligence is present (
Wilson v R
)
v Embraced approach
o ‘[T[he circumstances must be such that a reasonable man in the accused’s position, performing the
very act which the accused performed, would have realised that he was exposing another or others to
an appreciable risk of really serious injury’ (
R v Holzer
[1968] VR 481)
v ‘It is not sufficient, as it was held to be in R v Church, to show there was a risk of some harm
resulting, albeit not serious harm’
• Negligent manslaughter: If a person kills another with either an act or omission a very high degree of
carelessness, that person can be guilty of manslaughter
o Level of negligence: High degree of negligence must be present for the accused to be guilty of
manslaughter
v Descriptors: ‘[C]riminal negligence’ (
Nydam v R
[1977] VR 430); ‘[W]icked negligence’ (
R v
Lavender
(2005) 222 CLR 67)
v Application of tort doctrines: The doctrine of negligence from tort law is not applicable to the
crime of manslaughter
o Legal duty in cases of omission: Obligations to helpless people arising from marriage, parenthood,
creation of the dangerous situation, and conduct that entitled the helpless persons to expect aid from
the accused, etc.
UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER
!"#$%&'#($)*(+)$',-,(.-$*/0(
*Requires that the act breaches the criminal law
R v Lamb
[1967] 2 QB 981
• D believed that a bullet would not be discharged, and thus lacked the MR for battery assault.
• As V was treating the matter as a joke, there was no assault by causing apprehension, as V did not
apprehend imminent unlawful contact.
• Therefore, there was no foundational unlawful act, thus unlawful and dangerous act manslaughter doctrine
did not apply
Pemble v R
(1971) 124 CLR 107
• D approached V from behind carrying a rifle, which discharged and killed V
• D stated that he had intended to frighten V, and that the rifle had discharged accidentally when he
stumbled
• The Supreme Court of the NT found him guilty of murder
• D appealed to the High Court of Australia
• The High Court of Australia held that the trial judge’s summing-up had been defective and the conviction
must be quashed
• A verdict of manslaughter was substituted as the gun was fired due to:
o An attempted assault (Barwick CJ)
o An unlawful act of discharging a firearm in a public place, and it was ‘obvious’ that such an act was
dangerous
1$"2-34',(
Wilson v R
(1992) 174 CLR 313
• !"#$%&'()*%+',-)."//&++"-$01)2).#&'/,-3&-$0
• 45#%'3%6$%,-()7%89):,5#$),;)<5'$#"+%"
• ="$&#%"+);"6$'()
o The appellant stated that the deceased had attempted to make homosexual advances on him>)?9%69)
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o D$)?"');,5-3)$9"$)$9&)"//&++"-$E')"6$),;)/5-69%-8)$9&)3&6&"'&3)%-)$9&)9&"3)?"')@,'$)+%A&+F)$9&)
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• Legal issue: Whether it was appropriate that the trial judge did not put self-defence to the jury when
summing up, and whether he had failed to relate the plea to the evidence!
• Held (findings):!<//&"+)3%'@%''&3
o The trial judge had put self-defence before the jury and there was no failure on the part of the trial
judge to relate the plea of self-defence to the jury
Document Summary
Wales: complete defences for murder: self-defence and mental impairment v other applicable crimes: assault. Unlawful act": acts which are subject to criminal punishment and not simply to civil liability (r v franklin (1883) 15 cox cc 163: act must be dangerous" (r v larkin [1943] 1 all er 217) v dangerous": an act that is likely to injure another person". *requires that the act breaches the criminal law. Wilson v r ( 1 9 9 2 ) 1 7 4 c l r 3 1 3: parties: wilson (appellant); r (respondent, material facts: Jurisdiction: high court of australia: the appellant stated that the deceased had attempted to make homosexual advances on him, which prompted him to contact cumming, whom participated in attacking the deceased, the deceased died from brain damage afterwards. D punched v -> hit head on foot path -> v died.
