MLL214 Criminal Law Chapter 5âInvoluntary Manslaughter Exam ...
MLL214 Criminal Law Chapter 5—Involuntary Manslaughter Exam Notes
Involuntary manslaughter is broadly defined as an act or omission that causes the death of another human being without lawful excuse and under circumstances that do not amount to murder or voluntary manslaughter. There are 2 distinct headings of involuntary manslaughter that exist: • Involuntary manslaughter by unlawful and dangerous act (‘constructive manslaughter) • Involuntary manslaughter by criminal negligence (‘negligent manslaughter’)
Relationship between the categories of manslaughter • The 2 categories of manslaughter are distinct, but DO overlap sometimes • A conviction for involuntary manslaughter can be predicated on either or both headings of this offence • In procedural terms, this means that the defendant will be charged generally with involuntary manslaughter, and the prosecution is then free to argue liability by reference to either or both headings
Involuntary manslaughter by unlawful and dangerous act Elements of unlawful and dangerous act manslaughter: Prosecution must establish that— 1.
Act performed voluntarily and consciously by D
2.
Cause the death of V
3.
D's act was both unlawful and dangerous
Unlawful act: for the purposes of this kind of manslaughter, an unlawful act is one, which involved a criminal offence—often an assault. Has to be something as inherently wrong • Unlawful= breach of criminal law; R v Lamb
A dangerous act: is an act which, from the standpoint of a reasonable person in the position of the accused, carried an appreciable risk of serious injury to the deceased person; R v Wilson • A reasonable person = objective test (ie not subjective) • In the position of the accused = contextualised (knowing what D knew, in same circumstances etc • Appreciable risk: not necessarily a high risk; Macquarie Dictionary: appreciable = noticeable, fairly large; real rather than remote or fanciful. • Until the latter part of the 19th century, an accused committed involuntary manslaughter by an unlawful and dangerous act; if-
EXAM ANSWER TEMPLATE—INDECENT ASSAULT CRIMES ACT 1958 S39: INDECENT ASSAULT s 39. Indecent assault (1) A person must not commit indecent assault. Penalty: Level 5 imprisonment (10 years maximum) (2) A person commits indecent assault if he or she assaults another person in indecent circumstances(a) while being aware that the person is not consenting or might not be consenting; or (b) while not giving any thought to whether the person is not consenting or might not be consenting. s 37 etc. can be used for rape AND indecent assault s 39—INDECENT ASSAULT PROSECUTION MUST PROVE BRD— 1) D assaulted V (common law assault) 2) D assaulted V in indecent circumstances 3) D: •
was aware that V was not consenting to the assault OR
•
was aware that V might not be consenting to the assault
•
D had not given any thought to whether V was consenting the assault
1. D ASSAULTED V Apply common law of common assault.
Assault can be by: ¡ Threat of force (ie causes V to apprehend immediate and unlawful contact by D)* ¡ Force (ie involves unlawful contact) ¡ Assault by force:
Actus reus: D made unlawful contact with V Mens rea: D intentionally or recklessly made contact with V Consent: contact was without V’s consent
Same provisions apply as in relation to rape, viz:
S36 consent = free agreement.
s37AAA: jury instruction regarding consent by V
2. IN CIRCUMSTANCES OF INDECENCY To constitute an indecent assault, the act must be "indecent", as unbecoming or offensive to common proprietary, an affront of modesty or offending the ordinary modesty of the average person; Sabet What is indecent? 1. MATTER FOR THE JURY TO DECIDE:
It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent= prevailing community standards
2. TEST:
Unbecoming or offensive to common proprietary [sic], an affront to modesty or offending the ordinary modesty of the average person: Sabet v The Queen [2011] VSCA AN OBJECTIVE TEST – THE FICTIONAL, RIGHT-MINDED, RESPECTABLE OR
AVERAGE PERSON SUMMARY: WAS THE CONDUCT OF THE D INDECENT? 3 TYPES OF SITUATION: •
Evidence of motive—An indecent motive will not convert an assault which is not indecent into an indecent assault. Motive, may, however, assist in the interpretation of the circumstances if they are ambiguous; R v Court
1. CONDUCT OF D WAS ‘INHERENTLY INDECENT’: •
Consideration of D's motivation not necessary
•
touched genitals or anus of V, touched breasts of female V; used penis to touch V; Harkin v R
2. CONDUCT OF D WAS EQUIVOCAL— •
Must look at D's motivation
•
must then consider a range of factors to determine if conduct had sexual connotation (indecent intention is critical here). See Court, Sabet… •
Relationship of D to V?
•
Why was D behaving in this way?
•
Sexual motivation not necessary in all cases—motivation irrelevant where acts are inherently indecent (i.e. penis up against woman)
•
R v Court (spanked young girl in store)—act ambiguous, accused had a sexual motivation—worth taking into account—what's the relationship b/w D & V— why did he spank her? Buttock fetish
3. AMBIGUOUS CIRCUMSTANCES? •
D's motivation irrelevant, no indecent assault
•
What of situation where D does something apparently innocuous but derives sexual gratification from that act? R v George [1956] Crim L R 52—foot fetish—the assault was not accompanied by circumstances of indecency. The circumstances were innocuous; fact that he was sexually motivated is irrelevant.
3. D WAS AWARE THAT V WAS NOT CONSENTING, OR MIGHT NOT BE CONSENTING, TO THE ASSAULT. •
To make the act done by one person to another an assault "it must be done without the consent and against the will of the person on whom it is done: R v Wollaston
Prosecution must establish that D was aware the V was not consenting, or might not be consenting, to the assault.
SUMMARY – INDECENT ASSAULT BY CONTACT (FORCE) 1. Did D touch the V? 2. Did D intend to touch the V, or was D reckless about touching the V? 3. Did the touching occur without V’s consent? (s 36, maybe s 37AAA) 4. Was D aware that V was not consenting (Knowledge) or that she/he might not be consenting (Recklessness) or did D give no thought to whether V was consenting? (Inadvertence) (s 39(2), s 37AA) 5. Did D touch V in indecent circumstances?
Sport has implicit consent—depending on the sport—did it take context within the game?
Involuntary manslaughter is broadly defined as an act or omission that causes the death of another human being without lawful excuse and under circumstances that do not amount to murder or voluntary manslaughter. There are 2 distinct headings of involuntary manslaughter that exist: • Involuntary manslaughter by unlawful and dangerous act (‘constructive manslaughter) • Involuntary manslaughter by criminal negligence (‘negligent manslaughter’)
Relationship between the categories of manslaughter • The 2 categories of manslaughter are distinct, but DO overlap sometimes • A conviction for involuntary manslaughter can be predicated on either or both headings of this offence • In procedural terms, this means that the defendant will be charged generally with involuntary manslaughter, and the prosecution is then free to argue liability by reference to either or both headings
Involuntary manslaughter by unlawful and dangerous act Elements of unlawful and dangerous act manslaughter: Prosecution must establish that— 1.
Act performed voluntarily and consciously by D
2.
Cause the death of V
3.
D's act was both unlawful and dangerous
Unlawful act: for the purposes of this kind of manslaughter, an unlawful act is one, which involved a criminal offence—often an assault. Has to be something as inherently wrong • Unlawful= breach of criminal law; R v Lamb
A dangerous act: is an act which, from the standpoint of a reasonable person in the position of the accused, carried an appreciable risk of serious injury to the deceased person; R v Wilson • A reasonable person = objective test (ie not subjective) • In the position of the accused = contextualised (knowing what D knew, in same circumstances etc • Appreciable risk: not necessarily a high risk; Macquarie Dictionary: appreciable = noticeable, fairly large; real rather than remote or fanciful. • Until the latter part of the 19th century, an accused committed involuntary manslaughter by an unlawful and dangerous act; if-
EXAM ANSWER TEMPLATE—INDECENT ASSAULT CRIMES ACT 1958 S39: INDECENT ASSAULT s 39. Indecent assault (1) A person must not commit indecent assault. Penalty: Level 5 imprisonment (10 years maximum) (2) A person commits indecent assault if he or she assaults another person in indecent circumstances(a) while being aware that the person is not consenting or might not be consenting; or (b) while not giving any thought to whether the person is not consenting or might not be consenting. s 37 etc. can be used for rape AND indecent assault s 39—INDECENT ASSAULT PROSECUTION MUST PROVE BRD— 1) D assaulted V (common law assault) 2) D assaulted V in indecent circumstances 3) D: •
was aware that V was not consenting to the assault OR
•
was aware that V might not be consenting to the assault
•
D had not given any thought to whether V was consenting the assault
1. D ASSAULTED V Apply common law of common assault.
Assault can be by: ¡ Threat of force (ie causes V to apprehend immediate and unlawful contact by D)* ¡ Force (ie involves unlawful contact) ¡ Assault by force:
Actus reus: D made unlawful contact with V Mens rea: D intentionally or recklessly made contact with V Consent: contact was without V’s consent
Same provisions apply as in relation to rape, viz:
S36 consent = free agreement.
s37AAA: jury instruction regarding consent by V
2. IN CIRCUMSTANCES OF INDECENCY To constitute an indecent assault, the act must be "indecent", as unbecoming or offensive to common proprietary, an affront of modesty or offending the ordinary modesty of the average person; Sabet What is indecent? 1. MATTER FOR THE JURY TO DECIDE:
It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent= prevailing community standards
2. TEST:
Unbecoming or offensive to common proprietary [sic], an affront to modesty or offending the ordinary modesty of the average person: Sabet v The Queen [2011] VSCA AN OBJECTIVE TEST – THE FICTIONAL, RIGHT-MINDED, RESPECTABLE OR
AVERAGE PERSON SUMMARY: WAS THE CONDUCT OF THE D INDECENT? 3 TYPES OF SITUATION: •
Evidence of motive—An indecent motive will not convert an assault which is not indecent into an indecent assault. Motive, may, however, assist in the interpretation of the circumstances if they are ambiguous; R v Court
1. CONDUCT OF D WAS ‘INHERENTLY INDECENT’: •
Consideration of D's motivation not necessary
•
touched genitals or anus of V, touched breasts of female V; used penis to touch V; Harkin v R
2. CONDUCT OF D WAS EQUIVOCAL— •
Must look at D's motivation
•
must then consider a range of factors to determine if conduct had sexual connotation (indecent intention is critical here). See Court, Sabet… •
Relationship of D to V?
•
Why was D behaving in this way?
•
Sexual motivation not necessary in all cases—motivation irrelevant where acts are inherently indecent (i.e. penis up against woman)
•
R v Court (spanked young girl in store)—act ambiguous, accused had a sexual motivation—worth taking into account—what's the relationship b/w D & V— why did he spank her? Buttock fetish
3. AMBIGUOUS CIRCUMSTANCES? •
D's motivation irrelevant, no indecent assault
•
What of situation where D does something apparently innocuous but derives sexual gratification from that act? R v George [1956] Crim L R 52—foot fetish—the assault was not accompanied by circumstances of indecency. The circumstances were innocuous; fact that he was sexually motivated is irrelevant.
3. D WAS AWARE THAT V WAS NOT CONSENTING, OR MIGHT NOT BE CONSENTING, TO THE ASSAULT. •
To make the act done by one person to another an assault "it must be done without the consent and against the will of the person on whom it is done: R v Wollaston
Prosecution must establish that D was aware the V was not consenting, or might not be consenting, to the assault.
SUMMARY – INDECENT ASSAULT BY CONTACT (FORCE) 1. Did D touch the V? 2. Did D intend to touch the V, or was D reckless about touching the V? 3. Did the touching occur without V’s consent? (s 36, maybe s 37AAA) 4. Was D aware that V was not consenting (Knowledge) or that she/he might not be consenting (Recklessness) or did D give no thought to whether V was consenting? (Inadvertence) (s 39(2), s 37AA) 5. Did D touch V in indecent circumstances?
Sport has implicit consent—depending on the sport—did it take context within the game?
