Topic 5: INVOLUNTARY MANSLAUGHTER (Ch 5)
Topic 5: INVOLUNTARY MANSLAUGHTER (Ch 5) 1. Introduction
Part of unlawful homicide. Non MR offence. Invol Mans 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.
Invol Manslaughter involves an OBJECTIVE test- ie don’t look at what D intended but what a reasonable person in D’s circumstances would do.
There are 2 types of Invol Mansl :
1. Invol Mansl by Unlawful and Dangerous Act 2. Involuntary Mansl by Criminal Negligence
The AR for both categories of Invol Mansl is the same as that for murder. So ensure AR elements are established.
In exam, where D’s conduct has caused V’s death: 1. Always start with establishing AR of unlawful homicide when answering an unlawf hom issue. 2. Then consider the MR elements for murder. Consider 3 murder categories. 3. If D’s conduct does not fall into MR murder categories, consider whether D has committed Involuntary Manslaughter (non MR offence) - consider both categories of Unlawful and Dangerous Act and Criminal Negligence.
2. Relationship between Categories Of Invol Manslaughter
Two categories of Invol Mansl can overlap. MUST consider both categories of Invol Mansl to see if either or both categories apply.
3. Involuntary Manslaughter by Unlawful and Dangerous Act
Arises where D causes the death of V as a result of an unlawful and dangerous act by D. AR elements must be established first for this category of Invol Mansl- see Ch 2 notes Then must establish 2 limbs in respect of D’s act: (i) D’s act that causes V’s death is an UNLAWFUL act: AND (ii) D’s unlawful act is also a DANGEROUS act (Wilson v R test). [(iii) The act must be the legal cause of the death of another human being.]
1.First Limb of Invol Mansl by Unlawful and Dangerous Act-
UNLAWFUL ACT
Unlawful act must be an act that is a violation of and is forbidden by law and is without justification. Breach of criminal law is sufficient for an unlawful act for this type of Invol Mansl. o Breach of civil law is not sufficient. o R v Franklin (1883) – ‘the ‘unlawful act’ component of the offence was circumscribed to include only violations of the common law.’ There needs to be criminal liability for the offence (Wilsonv R) but it is unclear where line is to be drawn for mere technical breaches of the law.(R v Pullman) Offences that are mere technical breaches of criminal law may be unlawful but it must be established that they are also dangerous (second limb) and inherently wrong before they fall under this category of Invol Mansl. Where an offence has been committed by D that causes the death of another human being, the AR and MR elements of that criminal offence (if it has an MR) must be established to satisfy that D’s act is an unlawful act for this type of Invol mansl. o Must establish whether there was an unlawful act (eg. Yes it is a criminal offence because the AR says this … and the MR says this...) If either the MR or AR is not established – this is not an unlawful act.
R v Lamb [1967] 2 QB 981. regarding CL Assault that killed V- here not all elements of AR and MR present for CL assault so no unlawful act in that case. - No intention therefore no murder charge. - Crown needed to prove o Act causing death = unlawful (shooting for it to be unlawful – the MR and AR of common law assault must be satisfied for it to be an unlawful act re. involuntary manslaughter) o Unlawful act = dangerous - Held: There was no AR and MR for common law apprehension type assault. o No MR for contact assault (he didn’t know gun would shoot). o No common law assault here of any type nor any type of criminal offence because both parties were ‘playing’.
OmissionThere must be an unlawful ACT for this head of Invol Mansl to operate (no omissions). R v Lowe [1973] QB 702: An unlawful omission (to act) will not suffice for this head of involuntary manslaughter.
2. Second Limb of Invol Mansl by Unlawful and Dangerous ActDANGEROUS ACT
2
Unlawful act must also be a dangerous act.
Wilson v The Queen (1992)
o Test of dangerousness was enunciated (set out) in Wilson’s case (leading case in Aus on involuntary mansl). ‘Would a reasonable man in the accused’s position, performing the very act which the accused performed, have realised that he was exposing another or others to an appreciable risk of serious injury?’
Dangerousness is assessed by reference to an objective test. Under Wilson test of dangerousness, must determine (2 elements): 1. Who is the reasonable person; and 2. The level of risk the reasonable person contemplated:
1. Who is a reasonable person for the Wilson Test? To date = unclear which characteristics will be attributed to the reasonable person for the purpose of the Wilson test. - Use common law definition in Victoria. - Rebuttable presumption that common law principles apply unless displaced by Parliament. - When an ambiguity arises as to meaning of term (‘reasonable person’) it will be accorded the meaning it has at common law. - Therefore, at tort law, it is well settled that: o The reasonable person will have: The normal mental capacity of a person the same age as D, Any knowledge, skill, or experience D actually had, Any skill or knowledge D claimed to have, D’s physical characteristics (eg. Blindness) Such skill, experience, and information an ordinary person in the community would have. *Although it may be argued that the meaning of ‘reasonable person may not necessarily be the same in criminal law as it is in tort law, there appears to be no reason to draw such a distinction.
Also invested with (in case law): R v Edwards o ‘The reasonable hypothetical person ould be imbued with the qualities of age, experience and knowledge of the D and would have normal fortitude and strength of mind.’ o ‘a man who judges with the unclouded reasoning power of a healthy and reasonable mind.’ R v Watson [1989] 1 WLR 684 o Any knowledge of peculiarities (frailty) of V if they would be known to the reasonable observer Reasonable person will not be invested with the qualities of D that (not reasonable person): R v Ball [1989] Crim LR 730 o are a result of the mistaken belief by D; R v Wills [1983] 2 VR 201
Part of unlawful homicide. Non MR offence. Invol Mans 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.
Invol Manslaughter involves an OBJECTIVE test- ie don’t look at what D intended but what a reasonable person in D’s circumstances would do.
There are 2 types of Invol Mansl :
1. Invol Mansl by Unlawful and Dangerous Act 2. Involuntary Mansl by Criminal Negligence
The AR for both categories of Invol Mansl is the same as that for murder. So ensure AR elements are established.
In exam, where D’s conduct has caused V’s death: 1. Always start with establishing AR of unlawful homicide when answering an unlawf hom issue. 2. Then consider the MR elements for murder. Consider 3 murder categories. 3. If D’s conduct does not fall into MR murder categories, consider whether D has committed Involuntary Manslaughter (non MR offence) - consider both categories of Unlawful and Dangerous Act and Criminal Negligence.
2. Relationship between Categories Of Invol Manslaughter
Two categories of Invol Mansl can overlap. MUST consider both categories of Invol Mansl to see if either or both categories apply.
3. Involuntary Manslaughter by Unlawful and Dangerous Act
Arises where D causes the death of V as a result of an unlawful and dangerous act by D. AR elements must be established first for this category of Invol Mansl- see Ch 2 notes Then must establish 2 limbs in respect of D’s act: (i) D’s act that causes V’s death is an UNLAWFUL act: AND (ii) D’s unlawful act is also a DANGEROUS act (Wilson v R test). [(iii) The act must be the legal cause of the death of another human being.]
1.First Limb of Invol Mansl by Unlawful and Dangerous Act-
UNLAWFUL ACT
Unlawful act must be an act that is a violation of and is forbidden by law and is without justification. Breach of criminal law is sufficient for an unlawful act for this type of Invol Mansl. o Breach of civil law is not sufficient. o R v Franklin (1883) – ‘the ‘unlawful act’ component of the offence was circumscribed to include only violations of the common law.’ There needs to be criminal liability for the offence (Wilsonv R) but it is unclear where line is to be drawn for mere technical breaches of the law.(R v Pullman) Offences that are mere technical breaches of criminal law may be unlawful but it must be established that they are also dangerous (second limb) and inherently wrong before they fall under this category of Invol Mansl. Where an offence has been committed by D that causes the death of another human being, the AR and MR elements of that criminal offence (if it has an MR) must be established to satisfy that D’s act is an unlawful act for this type of Invol mansl. o Must establish whether there was an unlawful act (eg. Yes it is a criminal offence because the AR says this … and the MR says this...) If either the MR or AR is not established – this is not an unlawful act.
R v Lamb [1967] 2 QB 981. regarding CL Assault that killed V- here not all elements of AR and MR present for CL assault so no unlawful act in that case. - No intention therefore no murder charge. - Crown needed to prove o Act causing death = unlawful (shooting for it to be unlawful – the MR and AR of common law assault must be satisfied for it to be an unlawful act re. involuntary manslaughter) o Unlawful act = dangerous - Held: There was no AR and MR for common law apprehension type assault. o No MR for contact assault (he didn’t know gun would shoot). o No common law assault here of any type nor any type of criminal offence because both parties were ‘playing’.
OmissionThere must be an unlawful ACT for this head of Invol Mansl to operate (no omissions). R v Lowe [1973] QB 702: An unlawful omission (to act) will not suffice for this head of involuntary manslaughter.
2. Second Limb of Invol Mansl by Unlawful and Dangerous ActDANGEROUS ACT
2
Unlawful act must also be a dangerous act.
Wilson v The Queen (1992)
o Test of dangerousness was enunciated (set out) in Wilson’s case (leading case in Aus on involuntary mansl). ‘Would a reasonable man in the accused’s position, performing the very act which the accused performed, have realised that he was exposing another or others to an appreciable risk of serious injury?’
Dangerousness is assessed by reference to an objective test. Under Wilson test of dangerousness, must determine (2 elements): 1. Who is the reasonable person; and 2. The level of risk the reasonable person contemplated:
1. Who is a reasonable person for the Wilson Test? To date = unclear which characteristics will be attributed to the reasonable person for the purpose of the Wilson test. - Use common law definition in Victoria. - Rebuttable presumption that common law principles apply unless displaced by Parliament. - When an ambiguity arises as to meaning of term (‘reasonable person’) it will be accorded the meaning it has at common law. - Therefore, at tort law, it is well settled that: o The reasonable person will have: The normal mental capacity of a person the same age as D, Any knowledge, skill, or experience D actually had, Any skill or knowledge D claimed to have, D’s physical characteristics (eg. Blindness) Such skill, experience, and information an ordinary person in the community would have. *Although it may be argued that the meaning of ‘reasonable person may not necessarily be the same in criminal law as it is in tort law, there appears to be no reason to draw such a distinction.
Also invested with (in case law): R v Edwards o ‘The reasonable hypothetical person ould be imbued with the qualities of age, experience and knowledge of the D and would have normal fortitude and strength of mind.’ o ‘a man who judges with the unclouded reasoning power of a healthy and reasonable mind.’ R v Watson [1989] 1 WLR 684 o Any knowledge of peculiarities (frailty) of V if they would be known to the reasonable observer Reasonable person will not be invested with the qualities of D that (not reasonable person): R v Ball [1989] Crim LR 730 o are a result of the mistaken belief by D; R v Wills [1983] 2 VR 201
