LAWS1206 Lecture Notes - Lecture 9: Bacteremia, Wilfred Fullagar, Obiter Dictum
Week 5 Wednesday
Wednesday, 22 March 2017
16:00
Overview:
Punishment for manslaughter under the Crimes Act 1900 (NSW): s 24.
Manslaughter defined (?) under s 18(1)(b).
NB the core physical element of manslaughter is the same as for murder –
causing the death of a human being.
Distinction between:
Voluntary manslaughter
Involuntary manslaughter
Categories of involuntary manslaughter:
Unlawful and dangerous act manslaughter (see Wilson v The Queen
(1992) 174 CLR 313); and
Criminal negligence manslaughter (see Nydam v The Queen [1977] VR
430)
Status of battery manslaughter after Wilson?
Categories of involuntary manslaughter post Wilson
Unlawful and dangerous act manslaughter:
(see Wilson v The Queen (1992) 174 CLR 313 re test for “dangerous”).
Criminal negligence manslaughter:
(see Nydam v The Queen [1977] VR 430).
Confirmed and applied in subsequent cases:
“Involuntary manslaughter is the product of the common law. There are two categories
so recognised - manslaughter by unlawful and dangerous act, and manslaughter by
criminal negligence. The same conduct may give rise to liability under either
category: Burns v The Queen [2012] HCA 35; 246 CLR 334 at [6].” (Lane v R [2013]
NSWCCA 317 at [51]).
Central issue in Wilson
“…was the act of the appellant in punching the deceased dangerous? That question
in turn gives rise to another: was it enough that the appellant (that is, a reasonable person in his
position) appreciated the risk of some injury to the deceased from the act or did the jury have to
be satisfied that he appreciated the risk of really serious injury?” [31]
Held:
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Test of dangerousness applying on these facts was “whether the appellant’s act
in punching the deceased was, from the standpoint of a reasonable person, an act
carrying with it an appreciable risk of serious injury to the deceased.” [53]
Note: Nothing in the judgment on the meaning of “serious injury” or
“appreciable risk”.
Contrast with test for criminal negligence manslaughter:
“In the case of manslaughter by criminal negligence, it is unnecessary to prove that the
accused’s act was unlawful (Andrews v DPP [1937] AC 567). And the tests of
dangerousness are different. An appreciable risk of serious injury is required in the case
of manslaughter by an unlawful and dangerous act. For manslaughter by criminal
negligence, the test is “a high risk that death or grievous bodily harm would follow”
(Nydam v the Queen [1977] VR 430 at 445).” [49] :
Nydam test: codified definition for criminal negligence, in criminal law
Main points from Wilson:
There are only two categories of involuntary manslaughter – unlawful and
dangerous act manslaughter and criminal negligence manslaughter. There is no battery
manslaughter.
Re unlawful and dangerous act manslaughter:
Unlawful act = “an act in serious breach of the criminal law”, ie a
criminal offence; and
Dangerous act = on an objective test, the accused’s conduct (which
was unlawful) exposed the victim to an appreciable risk of serious harm.
Re criminal negligence manslaughter (obiter): the degree of “danger” required
for criminal negligence manslaughter is higher than for unlawful and dangerous act
manslaughter – “a high risk that death or grievous bodily harm would follow” (Nydam)
What are the parameters of the objective test of dangerousness?
What circumstances or attributes of the accused are relevant to the
consideration of the level of danger a reasonable person would appreciate?
What about: the physical circumstances and actions of the accused?
(INCLUDED, PART OF THE TEST)
What about: Emotions? Passions? Mental State? Heightened
emotional state? (idiosyncratic feelings are NOT relevant)
What about: Knowledge? Age? Intellectual Disability?
Wills approach confirmed in Besim v R (2004)
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Detailed analysis of what circumstance and knowledge of what a reasonable
person would appreciate
Involved the death of a circumstance of domestic violence, wife caused the
death of husband
Husband previously inflicted harm
Objective test: allowed the victim's emotion etc to be considered ?
What is and isn’t relevant to the test of dangerousness
Particular emotions felt by the emotion are not relevant
[35] The judgments in R v Wills support the broad proposition that anything
personal to the accused which may affect the accused's reasoning or judgment is
not to be attributed to the reasonable person. The reasoning of both Lush J and
Fullagar J makes clear that the objective nature of the inquiry precludes any
consideration of the reduced personal capacity of the accused to assess the risk. The act
is to be judged according to the capacity for foresight of the reasonable person…
[38] The expression “a reasonable man in the accused’s position performing the very act
the accused performed” relates to the physical circumstances of the accused and the
nature of the act performed by the accused as viewed by a reasonable person. It is an
objective test concerned with forseeability of serious harm to the victim. Emotions,
passions or the mental state of the accused at the time the act was performed and which
may have impaired the accused's capacity to assess the risk are not to be attributed to the
reasonable person.
[39] While the idiosyncrasies or mental state of the accused which may diminish the
accused's capacity to reason are not to be taken into account, any knowledge possessed
by the accused that would bear upon whether the act was dangerous is to be attributed to
the reasonable person: R v Wills and R v Dawson.
The objective test - What about children? :
DPPVTY (2006)
14 year old, struck the deceased with a golf umbrella
Penetrated the brain
Fatally wounded, died within 3 days
[4] For a conviction of manslaughter, the prosecution must prove, beyond reasonable
doubt, that a reasonable person in the accused’s position would have realised he or she
was exposing another person to an appreciable risk of serious injury. When the accused
is a child, should the jury be told to take his or her age into account when applying this
legal standard? Should the jury be told, in effect, to treat the reasonable person as a
reasonable child of a similar age to the accused, in this case a young teenage boy?
[5] I have been informed there has been no previous decision on point, and my own
research has not revealed otherwise…
The case wasn't really about age irrelevant (two 15 yrs old boy murder case)
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Document Summary
Punishment for manslaughter under the crimes act 1900 (nsw): s 24. Nb the core physical element of manslaughter is the same as for murder causing the death of a human being. Unlawful and dangerous act manslaughter (see wilson v the queen (1992) 174 clr 313); and. Criminal negligence manslaughter (see nydam v the queen [1977] vr. Unlawful and dangerous act manslaughter: (see wilson v the queen (1992) 174 clr 313 re test for dangerous ). Criminal negligence manslaughter: (see nydam v the queen [1977] vr 430). Involuntary manslaughter is the product of the common law. There are two categories so recognised - manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence. The same conduct may give rise to liability under either category: burns v the queen [2012] hca 35; 246 clr 334 at [6]. (lane v r [2013]
