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Module 4 · Manslaughter

Manslaughter is a common law offence, and involuntary manslaughter is the category of unlawful homicide where the accused lacks the fault element for murder (the sources' mens rea) yet is regarded by the law as sufficiently culpable to be held responsible for the death. It has two forms: manslaughter by an unlawful and dangerous act (UDAM), and manslaughter by criminal negligence, which includes manslaughter by omission. A single charge of manslaughter may encompass both forms, so the two forms run in the alternative to one conviction, never both on the one act. The working skill is choosing the form the facts prove and dismissing the other in a line.

Cases at a glance

Unlawful and dangerous act manslaughter

The first form. Manslaughter by an unlawful and dangerous act is proved by four elements: an act causing the death of another person, committed consciously, voluntarily and deliberately, that was unlawful and that was dangerous.

• Caused the death. The first element is an act that caused the death of another person (R v Stein (2007) 18 VR 376). The act must have contributed significantly to the death or been a substantial and operating cause of it, and it need not be the sole cause (Royall v R (1991) 172 CLR 378, Module 1). That the act was a necessary, but-for cause is not by itself sufficient. Where a single punch is in play, s 4A(4) provides that the punch may be the cause of death even if the fatal injury is not the injury the punch itself caused to the head or neck but another injury resulting from an impact caused by the punch; it is not a deeming provision and it does not change existing principles of causation (Crimes Act 1958 s 4A(4)). Where the accused supplies a drug and the victim self-administers it, the victim's voluntary and informed act is in law the cause of the death, not the anterior supply, so this form of manslaughter fails (Burns v R (2012) 246 CLR 334, conviction quashed and an acquittal entered; R v Dalby [1982] 1 All ER 916). Administering the drug to the victim is different and can found liability (R v Cato [1976] 1 All ER 260).
• Conscious, voluntary and deliberate. The second element is that the act was committed consciously, voluntarily and deliberately (Ryan v R (1967) 121 CLR 205, Module 1). The prosecution must prove the act was voluntary, but need not prove any intention to cause death or really serious injury (R v Haywood [1971] VR 755; R v Vollmer [1996] 1 VR 95). The element rarely carries the fight, so note it in a sentence unless the facts raise reflex or accident.
• Unlawful. To be unlawful, the act must have involved a breach of the criminal law (Wilson; Pemble v R (1971) 124 CLR 107), and it appears that only offences requiring proof of mens rea qualify (R v Nguyen (Ruling No 2) [2010] VSC 442). Acts that give rise only to civil liability are not unlawful for this element (R v Lamb [1967] 2 QB 981). The offence most commonly relied upon to prove unlawfulness is assault. An act performed in self-defence is not an unlawful act (R v Cornelissen [2004] NSWCCA 449). The unlawful act need not be directed against the victim (R v Mitchell [1983] QB 741). A bottle thrown at one guest that kills another can therefore still found the charge.

How unlawfulness is fought on facts

Attacking the base offence. The prosecution must prove every element of the offence said to make the act unlawful, including its mental state, so the test for this form of manslaughter is not wholly objective (R v Lamb; R v Haywood). In Lamb the accused pointed a partly loaded revolver at his friend; neither understood that the cylinder would rotate, both treated the matter as a joke, the gun discharged and the friend was killed. The accused believed no bullet would be discharged, so he lacked the fault for battery assault; the friend apprehended nothing, so there was no assault by apprehension; with no foundational unlawful act, the conviction was quashed. On such facts the defence attacks the base offence, not the label, and one sentence then routes the analysis to negligent manslaughter. The error is to reason backward from the death to unlawfulness.

• What the reasonable person is not given. The jury must not consider the accused's mental state or any matter that affected the accused's reasoning or judgment, including an emotional state, intoxication, or a mistaken belief that the act was safe (R v Wills [1983] 2 VR 201). The reasonable person judges with the unclouded reasoning power of "a healthy and reasonable mind", and the accused's idiosyncrasies and "ephemeral emotional or mental state" are excluded (Wills). So the drunk who hurls a stool into a packed bar is judged by the sober reasonable person standing where he stood.
• The height of the risk. The jury need not find that the reasonable person would have thought serious injury certain or probable; an appreciable risk of such injury is enough (Holzer). An expert who says a fatal outcome was vanishingly unlikely therefore answers the wrong question. The phrase differs from the murder phrase, death or really serious injury, and it is especially important to distinguish them when murder and manslaughter are both left to the jury (Wilson).

How dangerousness is fought on facts

• Position and knowledge. The reasonable person is the same age as the accused and has any specialised knowledge and experience the accused had (R v Edwards [2008] SASC 303). The reasonable person is not given greater knowledge of the victim's peculiarities or weaknesses, such as coronary artery disease, than the accused possessed at the time of the unlawful act or acquired in the course of the criminal enterprise (R v Dawson (1985) 81 Cr App R 150; R v Stein). A shove harmless to anyone else can therefore be dangerous where the accused knew the victim had just returned from brain surgery. Judging the act in the abstract is the wrong frame.
• Shock without contact. Serious injury may include physical injury caused by shock in response to a frightening experience, but an emotional disturbance alone is not a serious injury (Dawson). Terrifying a frail neighbour whose known heart condition makes cardiac arrest a real prospect can satisfy the element without any touching.

The single qualifying punch. It is irrelevant that the single punch or strike is one of a series (s 4A(3)). Where the prosecution relies on the deeming, it must identify a single punch or strike, delivered in the course of the confrontation, as the dangerous act; it cannot rely on the cumulative effect of multiple punches or strikes. If the jury is not satisfied of a qualifying punch, it assesses the whole of the accused's conduct on the ordinary objective test. In s 4A, injury has the same meaning as in Subdivision (4), and strike means a strike delivered with any part of the body (s 4A(6)). Whether pain and disorientation without more answers that definition is argued on the statutory words; the sources carry no decision on the point.

Negligent manslaughter

Voluntariness. Where the defence argues that an omission was involuntary, the judge may need to direct the jury on proof that the omission was conscious, voluntary and deliberate. The element is otherwise ordinarily uncontested.

The duty gateway

Only a legal duty of care can give rise to liability for manslaughter; a moral duty is not enough (R v Taktak (1988) 14 NSWLR 226). Any one category grounds the duty, so argue the category that fits and move to breach.

• Relationship. A parent, or a person standing in the place of a parent, owes the child a duty of protection and of adequate food, shelter, warmth and medical care (R v Russell [1933] VLR 59). In Russell the accused stood by, conniving, while his wife took their two young children into the water; the manslaughter verdicts for the children stood, and the verdict for the wife also stood, McArthur J dissenting. Domestic partners owe each other a duty to provide care where one is left helpless or unable to care for himself or herself through injury or illness (R v Reid (2010) 29 VR 446). State the relationship, cite the case, and move on.
• Assumption and seclusion. A person who voluntarily assumes the care of someone helpless through age or infirmity must provide competent care (R v Stone & Dobinson [1977] QB 354; R v Taktak). The prosecution must also prove that the accused isolated the victim so that others could not render assistance, though not that the isolation had that purpose. A duty may be assumed by making some efforts to care, such as providing meals or making ineffectual attempts to obtain medical help: Stone & Dobinson fed and half-washed the bedridden sister but never summoned help, and their appeals were dismissed. In R v Instan the accused lived on with her aunt as gangrene set in, took in the food the aunt's own money paid for, and told no one; the conviction was upheld. Partial help that secludes founds the duty rather than negating it: Taktak took the overdosed teenager from a building lobby to his own flat and called no doctor until morning, and the duty was held to have arisen.
• Creation of the danger. A person who deliberately commits a wrongful act that places another in danger owes that person a duty to take reasonable steps to render assistance and redress the danger (R v Reid; R v Taber (2002) 56 NSWLR 443). The English illustration is R v Miller [1983] 2 AC 161: the squatter fell asleep on a mattress holding a lighted cigarette, woke to find the mattress smouldering, moved to the next room and went back to sleep, and his conviction was upheld because a person who becomes aware of a danger of their own creation must take the measures within their power to counteract it.
• Where the categories run out. In Burns v R the accused supplied methadone to a customer who took it in her home, suffered an adverse reaction in her presence and was asked to leave; he died nearby, and the High Court quashed the conviction and entered an acquittal. She had no relationship with him beyond acquaintance, had not assumed his care and had not secluded him from help, and the relationship of drug supplier and drug user lacks the element of control found in the relationships in which the law imposes a duty to act to preserve life. The creation-of-danger route failed too: the imperilment came from the deceased's own act of taking the drug, not from the anterior supply. Presence at the deterioration, without control, is not assumption.
• The stranger. Outside the recognised categories, a person remains at liberty in law "to refuse to hold out her hand to the person drowning in the shallow pool" (Burns). However the conduct is judged morally, conclude firmly and briefly that no duty arises.

Breach: the great falling short

The threshold. Negligence that would support civil liability is not enough: the prosecution must establish such a high degree of negligence, involving disregard for the life and safety of others, as to amount to a crime and be deserving of punishment (Nydam; Andrews v DPP [1937] AC 576). Even a significant departure from the standard of care is not sufficient. The working move is to name the act the duty required, the one phone call to the ambulance, then ask whether failing to take it fell that far short; token gestures frame the gross breach rather than excuse it.

• The standard. The reasonable person has ordinary fortitude and strength of mind, is the same age as the accused, and has any specialised knowledge and experience the accused had (R v Edwards [2008] SASC 303; R v Lavender). The reasonable person does not have the accused's deficiencies in reasoning, any injury that affected the accused's reasoning at the time, such as concussion, or the accused's beliefs, values or attitudes. In Edwards the court refused to attribute the accused's dazed, concussed condition to the reasonable person. The accused judged through a fog is still measured against a clear head.
• Skilled roles. A member of a profession requiring particular skill or knowledge owes a duty to exercise the skill of a reasonably competent member of that profession, not of its most skilled member (R v Bateman (1925) 19 Cr App R 8; R v Adomako [1995] 1 AC 171). The test stays wholly objective: the law punishes grossly negligent conduct causing death regardless of the accused's appreciation of the risk, and the accused's imputed knowledge of his own limitations cannot exculpate him: the standard is a minimum standard for all who profess the skill (Patel v R (2012) 247 CLR 531, the surgeon whose judgment that surgery was necessary was alleged to be criminally negligent).
• Hindsight. The death of a person owed a duty of care does not itself show criminal negligence: a duty to avoid a risk is not a duty to ensure that the risk does not eventuate. The jury must not reason that the accused was negligent because otherwise the death would not have occurred, and should take care not to use hindsight in assessing the degree of negligence. An honest and reasonable mistake of fact is not a separate defence here; it is weighed within the question whether the conduct was criminally negligent (R v Osip (2000) 2 VR 595, the hunter who shot at what he believed was a deer and killed a man walking his dog).
• The rational victim. Contributory negligence, consent and voluntary assumption of risk provide no defence to negligent manslaughter, but the jury may take the victim's conduct into account in deciding whether the accused was criminally negligent (R v Cato; R v Edwards). A lucid adult's emphatic refusal of an ambulance therefore negates neither duty nor causation; it bears on breach, and a jury may be reluctant to find a great falling short in respecting the refusal while keeping watch. The counterpoint: where the duty arises from the accused's own deliberate wrongful conduct, the obligation to redress the danger may be quite strict, and the accused may be required to secure medical attention even if the victim initially refuses (R v Reid).

Causation by omission

Acts and omissions alike. The accused can cause death by act or omission.

• Proof without certainty. The prosecution must prove that the omission contributed significantly to the death, not that the victim would certainly have lived: in R v Instan the failure to provide food and care "at least accelerated the death of the deceased, if it did not actually cause it", and the conviction was upheld. A defence demand for certainty of survival applies the wrong test. Where the evidence cannot fix the omission's contribution, causation fails: in Taktak the medical evidence about the time of death made it impossible to establish beyond reasonable doubt that the failure to obtain help caused the death.
• Keep breach and causation separate. Evidence that an ambulance would very probably have saved the victim goes to causation, and cannot by itself make a breach gross.

Selection. The selection is itself examinable. A paid carer who gives the prescribed sedative correctly, a lawful act, then leaves the client unattended in the bath commits no base offence, so the unlawful and dangerous act form fails at unlawfulness and negligent manslaughter is the available form. One clean sentence earns the selection marks.

How the examiners mark it

Manslaughter answers are marked on method as much as doctrine. Six habits separate strong answers.

• Elements first, then triage. Open with the element statement and its authority, then flag the live elements in one sentence. An obviously provable element gets one fact and one line; the doubtful one gets the analysis.
• Descend only on doubt. Students often spend too long on murder where the fault element is unrealistic. Address murder quickly, say why it fails, and give the words to manslaughter; an open and shut murder needs no manslaughter discussion.
• Conclude in likelihood language. The prosecution could probably prove the act was dangerous; a jury might be reluctant to find gross negligence proved. On genuinely arguable points the marks sit in the fact reasoning rather than the conclusion, and a well argued answer can land either way.
• Keep the fault lenses apart. Reckless murder asks what this accused actually foresaw as probable; negligent manslaughter asks what a reasonable person in the accused's position would have appreciated. Subjective intention is relevant to murder but not to manslaughter (Patel). Sliding between the two lenses mid-answer is a defining error.
• Dismissal discipline. Kill the form that does not fit in one line rather than omitting it: there was no unlawful act, so the available form is negligent manslaughter.
• Keep the fallback alive. Where both forms fail, usually on causation, come down to the offences against the person rather than leaving the accused unanalysed.

Critical pitfalls and counter-arguments

Take it to the practice bank

This module is drilled in the Criminal Law practice bank. Every problem there carries a realistic Pass answer, an H1 model answer, and an examiner's comment explaining the decisive fact and where the marks are lost.

Practice prompts

1. Take a fatal punch and work the base offence through its elements before calling the act unlawful.
2. State precisely what s 4A does and the three things it does not do.
3. Choose between the two forms of manslaughter on a set of facts and justify the choice.
4. Write the negligent manslaughter breach paragraph, naming the act the duty required.
5. Explain why the dangerousness test is objective while the base offence still carries its own fault.
6. Name the duty category for four one line scenarios and explain in one sentence why the drowning stranger case fails.
7. Write a causation by omission paragraph using very good chance evidence without demanding certainty of survival.
8. Argue dangerousness both ways where the accused knew a fact that made an otherwise ordinary act risky.