Published by Geoff Harrison | 4 May 2024
As stated by Bathurst CJ; Simpson J and Adamson J in Lane v R [2013] NSWCCA 317 at [59]-[62]:
What constitutes manslaughter by criminal negligence was stated by the Full Court of the Supreme Court of Victoria in Nydam v R [1977] VicRp 50; [1977] VR 430. The Court said:
"No doubt manslaughter does involve mens rea. But to use the language of Lord Salmon in Newbury's Case [Director of Public Prosecutions v Newbury [1976] UKHL 3; [1976] 2 WLR 918, at p 923], the necessary intent is no more than an intent to do the acts which constitute the crime. The problem is to formulate the requirement in terms which will enable the jury to determine whether the case is one of murder by recklessness or manslaughter by criminal negligence. The requisite mens rea in the latter crime does not involve a consciousness on the part of the accused of the likelihood of his act's causing death or serious bodily harm to the victim or persons placed in similar relationship as the victim was to the accused. The requisite mens rea is, rather, an intent to do the act which, in fact, caused the death of the victim, but to do that act in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed, that is to say, such a falling short and such a risk as to warrant punishment under the criminal law. This formulation proceeds on the footing that the accused man did not in fact advert (although a reasonable man would have adverted) to the probability that death or grievous bodily harm wound ensue. It adopts the view of Menzies, J, in Pemble v R, supra, and of Lord Hailsham in Hyam v Director of Public Prosecutions [[1974] UKHL 2; [1974] UKHL 2; [1975] AC 55, at p 79] that if the accused knows that the act is likely to cause death or grievous bodily harm, and consciously accepts that risk, it is murder. The formulation is consistent with the objective test of manslaughter by an unlawful and dangerous act approved by the House of Lords in DPP v Newbury, supra."
The Full Court concluded:
"In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment."
The latter formulation has been expressly approved by the High Court: see Lavender at [136]; Wilson at p 333 [49]; Burns at [19], per French CJ.
As was pointed out in Justins, it is necessary that there be identity of the act or omission constituting the breach of duty of care, and the act or omission causing death; that is, it is essential that the act or omission that amounts to a breach of duty is the act or omission that causes death (Justins, at [97]).
Accordingly, to sustain a conviction of this category of manslaughter, it is necessary that the Crown prove:
(i) that the accused owed the victim a duty of care;
(ii) that the accused acted or omitted to act in such a way as to constitute a breach of that duty of care;
(iii) that that act or omission caused the death of the deceased; and
(iv) that the breach of duty was of such magnitude that it merited criminal punishment.
Other Sources:
Other Cases:
Extracted Legislation:
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.
(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.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.
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.