Manslaughter – sections 18 and 24 of the Crimes Act 1900.

• It is a voluntary act of the accused that is unlawful and dangerous.
• The test is that a reasonable person in the position of the accused would have realised that such an act exposed another person to a risk of serious injury. Burns v The Queen (2012) 246 CLR 334 at [75]; Lane v R [2013] NSWCCA 317 at [57].
• An accused person’s age or a moderate or extreme intellectual disability may be considered when assessing whether a reasonable person would have realised that such an act exposed another person to a risk of serious injury.

The High Court in Burns v The Queen (2012) 246 CLR 334 at [19] approved the definition in Nydam v R [1977] VR 430 at [445] as follows:

• It is a voluntary act of the accused where no intention of causing death or grievous bodily harm exists.
• It involves a strong departure of the standard of care exercised by a reasonable person.
• There is a high risk that death or grievous bodily harm would follow.

NB: A mere breach of duty cannot secure a conviction for manslaughter where criminal negligence is in issue. The standard of departure of care must be more than careless.

Further:

• The accused must owe a legal duty of care to the deceased. Burns v The Queen at [97], [107].
  • The law recognises that one person owes a legal duty of care to another in certain situations where a reasonable person in his or her position would have foreseen a risk of injury from such conduct to that other person. EG. parent-child, doctor-patient, employer-employee.
  • A reasonable person is a person of a similar age, and similar experience, training and knowledge as the accused person.
• The act or omission amounting to a breach of duty must be that which causes death: Justins v R (2010) 79 NSWLR 544 at [97].
  • The accused’s act was substantial cause of or accelerated the death of the deceased.

The maximum penalty for manslaughter is imprisonment for 25 years

This option is recommended only where you accept that manslaughter occurred through:

• an unlawful and dangerous act
  • where your act caused the death of the deceased; and
  • you intended to commit the act that caused death, and
  • the act was unlawful; and
  • the act was dangerous
• or through criminal negligence
  • where you owed a legal duty of care to the deceased; and
  • omitted or committed an act; and
  • it was a substantial cause of death or accelerated the death of the deceased; and
  • it amounted to criminal negligence because it breached the duty of care owed to the deceased because:
    • it involved a strong departure of the standard of care exercised by a reasonable person; and
    • there was a high risk that death or grievous bodily harm would occur.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• Community Corrections Orders (“CCO”)
  • A court may exercise this option when aggravating circumstances exist. An example of an aggravating circumstance includes a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• your act was unlawful and dangerous act
  • where your act caused the death of the deceased; and
  • you intended to commit the act that caused death, and
  • the act was unlawful; and
  • the act was dangerous
• or that you were criminally negligent
  • where you owed a legal duty of care to the deceased; and
  • omitted or committed an act; and
  • it was a substantial cause of death or accelerated the death of the deceased; and
  • it amounted to criminal negligence because it breached the duty of care owed to the deceased because:
    • it involved a strong departure of the standard of care exercised by a reasonable person; and
    • there was a high risk that death or grievous bodily harm would occur.

If the Prosecution cannot prove the relevant elements beyond reasonable doubt, then the court must find you not guilty.

Defences to involuntary manslaughter:

• Self defence
  • This defence is only available where you believe that your conduct was necessary to defend yourself or another person, and it is a reasonable response in the circumstances as you perceive them.
• Intoxication
  • A defence of intoxication only applies if the consumption of drugs and alcohol was involuntary. Intoxication may then be used an argument that the accused could not have formed the requisite intent to commit the crime.
  • Self-induced intoxication will not suffice as a defence. R v Gosling [2002] NSWCCA 351 at [25] and Zaro v R [2009] NSWCCA 219 at [34]–[37] provide instances of where directions were given that self-induced intoxication was to be disregarded as a defence.
• Novus Actus Interveniens (Latin for “new intervening act”)
  • This is where an intervening act was a substantial or significant cause of death to a victim, rather than an act of an accused person being a substantial or significant cause of death.Swan v The Queen [2020] HCA 11 at [24].
• Automatism
  • Criminal responsibility may be avoided where a person has involuntarily killed another person. Automatism can be:
    • insane (a disease of the mind). EG.
      • schizophrenia,
      • brain injuries.
    • sane (no disease of the mind present.) EG
      • Sleepwalking, R v Tolson (1889).
      • Epilepsy (not all cases), R v Youssef (1990) .
      • An act done under anaesthesia, R v Sullivan (1984).
      • An act done under a state of transient disassociation after severe emotional shock or psychological trauma that an ordinary person would not have withstood, R v Falconer (1990).
• Duress
  • You were threatened or intimidated into carrying out the act.