7.2.4 – Manslaughter by Unlawful and Dangerous Act[1]
7.2.4.2 – Charge: Manslaughter by Unlawful and Dangerous Act (Principal Offence)
When to use this chargeThis charge should be used if the accused is charged with manslaughter by an unlawful and dangerous act as a principal offender.
The charge will need to be adapted if:
- The charge is based on principles of accessorial liability; or
- The jury must consider multiple bases of manslaughter.
The Elements
I must now direct you about the crime of manslaughter. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:
One –the accused committed an act that caused the victim’s death.
Two–this act was committed consciously, voluntarily and deliberately.
Three – this act was unlawful.
Four – this act was dangerous.
I will now explain each of these elements in more detail.[2]
Cause of Death
The first elementthat the prosecution must prove is that the accused committed an act that caused the victim’s death.
[If this element is not in issue, add the following shaded section.]
In this case it is not disputed that NOA [identify unlawful act], and that doing so caused NOV’s death. You should therefore have no difficulty finding this element proven.
[If this element is in issue, add the following shaded section and the relevant additional sections.]
To determine if this element has been proven, you must first determine whether NOA [identify unlawful act]. You must then determine whether that act caused NOV’s death.
[If the cause of death is not disputed, but the accused denies committing the relevant acts, add the following shaded section.]
In this case it is not disputed that [identify unlawful act] caused NOV’s death. However, the defence contends that NOA did not commit that act. For this element to be met, you must be satisfied, beyond reasonable doubt, that it was NOA who [identify unlawful act].
[Summarise relevant evidence and arguments.]
[If cause of death is in issue because of multiple possible causes (whether combined or competing), add the following shaded section.]
In this case you have heard evidence that NOV’s death [resulted/may have resulted] froma number of [describe basis of uncertainty, e.g. possible, competing, inconsistent etc.] causes.[Insert relevant evidence and causal explanations.]
The law says that for NOA’s acts to have caused NOV’s death, they do not need to have been the only cause of that result, or the direct or immediate cause.You may find that his/her acts caused the death if they were a substantial or significant cause of that result.
You should approach this question in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.
[If this element is in issuefor another reason (e.g., there may have been an intervening act or thevictim’s own acts could have caused his or her own death) insert appropriately adapted sections from Charge: Intentional Murder here.]
Voluntariness
The secondelement that the prosecution must prove is that the accused committed the relevant act consciously,voluntarily and deliberately. These words each have a special meaning in law, which I will briefly explain.
The requirement that the relevant act was committed “consciously” means that this element will not be satisfied if that act was done by an unconscious person, such as a sleepwalker, or a person rolling over in bed.
The requirement that the act was committed “voluntarily” means that this element will not be satisfied if the act was not “willed”. For this element to be met, the act must have resulted from the accused’s control of his/her own actions. This element will therefore not be satisfied if the accused acted while operating in one of a number of rare mental states where the mind loses control of the body’s actions.
The requirement that the act was committed “deliberately” means that this element will not be satisfied if the act was accidental. For example, an act which results from falling over or fumbling an item is not “deliberate”.
[If this element is not in issue, add the following shaded section.]
In this case there is no issue that [if/when] NOA [describe alleged unlawful act, e.g. “punched NOV”] s/he did so consciously, voluntarily and deliberately, so you should have no difficulty finding this element proven.
[If voluntariness is in issue, add the following shaded section.]
In this case the defence argued[3] that the prosecution has failed to prove that [identify alleged unlawful act] was [select term(s), e.g. conscious, voluntary, deliberate].
The defence submitted that that act was committed [describe and discuss the relevant form of involuntary conduct raised as an issue in the trial, such as accident; reflex acts; physically compelled acts; acts performed in an automatic state.] The prosecution denied that this was the case. [Summarise relevant prosecution arguments and/or evidence.]
It is for the prosecution to prove, beyond reasonable doubt, that NOA was acting consciously, voluntarily and deliberately when s/he committed the relevant act. If you are not satisfied that that was the case, then you must find NOA not guilty of manslaughter.
Unlawful Act
The third element the prosecution must prove is that the relevant act was unlawful. That is, the prosecution must prove that NOA’s act that caused NOV’s death breached the criminal law and was committed without lawful excuse.
[If this element is not in issue, add the following shaded section.]
In this case, the relevant act is [identify relevant act, e.g., “punching NOV”]. It is not disputed that such an act is unlawful. That means that, if you find that NOA [describe relevant act, e.g. “punched NOV”], you should have no difficulty finding this element proven.
[If this element is in issue, add the following shaded section.]
In this case, the relevant act is [identify relevant act, e.g., “punching NOV”].[4] The prosecution alleged that by doing so, NOA committed the crime of [identify alleged crime, e.g., “assault”].
To prove that NOA committed the crime of [identify alleged crime]— and so to prove that NOA committed an “unlawful” act — the prosecution must prove [instruct jury on all elements of the relevant offence,[5] including the mental elements].
[If any defences are in issue, insert any relevant directions here.]
[Summarise prosecution and defence evidence and arguments.]
Dangerousness
The fourth element the prosecution must prove is that the alleged unlawful act was dangerous.
[If the prosecution relies on the conduct being deemed dangerous under Crimes Act 1958 s4A, add the following shaded section]
I direct you that, if you are satisfied that NOA’s relevant act wasa single punch or strike to the head or neck which, by itself, caused injury to the head or neck, then as a matter of law, that act is dangerous and this fourth element is proved.
For this purpose, the law defines an injury to the head or neck as a physical injury or harm to mental health, whether temporary or permanent.[6]
[If the prosecution relies on the conduct being dangerous at common law, add the following shaded section]
[If the prosecution relies on both deemed dangerousness and common law dangerousness, add the followingshaded section]
If you are not satisfied that NOA’s relevant act wasa single punch or strike which, by itself, caused injury to NOV’s head or neck, then you must determine whether his/her conduct was dangerous in accordance with the following directions.
The word “dangerous” has a technical legal meaning. An act is dangerous if a reasonable person, in the position of the accused, would have realised that s/he was exposing the victim to an appreciable risk of serious injury.
This is an objective test. That means that the prosecution does not need to establish that NOA realised that what s/he was doing was dangerous. What matters is what a reasonable person of ordinary strength of mind in his/her situation would have realised.[7] If a reasonable person in that situation would have realised that s/he was exposing the victim to an appreciable risk of serious injury, then this element will be satisfied.
[In cases where the degree of injury was unexpected, add the following shaded section]
It is not sufficient for you to find that the reasonable person in the position of the accused would have realised s/he was exposing the victim to an appreciable risk of injury. In this context, there are two levels of harm known to the law: “injury” and “serious injury”. There are no other classes such as “very serious injury” or “minor injury” or anything else.
You may consider that there is a spectrum of injuries. At one end are trivial injuries like a paper cut or a grazed knee. At the other end of the spectrum are life-threatening injuries or permanent brain damage and the like.
The phrase “serious injury”, is not a technical legal phrase. These are ordinary English words, and it is for you to determine what this phrase means to you as jurors. It is for you to determine, using your common sense and experience, whether the reasonable person in the position of the accused would have realised that [describe act] exposed NOV to an appreciable risk of serious injury. An appreciable risk of injury is not sufficient.
The prosecution argued that this element is satisfied because [summarise relevant prosecution evidence and arguments]. In response, the defence say [summarise relevant defence evidence and arguments].
It is for you to determine whether the prosecution has proven, beyond reasonable doubt, that the accused’s acts were dangerous, in the way that I have described. If they have, then this fourth element will be met.
Relate Law to the Evidence
[If not previously done, summarise the evidence and relate the law to the evidence.]
Summary
To summarise,before you can find NOA guilty of manslaughter the prosecution must prove to you beyond reasonable doubt:
One — that NOA committed an act thatcaused NOV’s death; and
Two — that this act was committedconsciously, voluntarily and deliberately; and
Three — that this act was unlawful; and
Four — that this act was dangerous.
If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of manslaughter.
[1] This document was last updated on 17 November 2014
[2]If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: “It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven.”
[3]If the defence did not raise the issue of voluntariness, but it arises on the evidence, this section will need to be modified accordingly.
[4] If there are multiple acts of the accused that may have caused the victim’s death, this element must be modified to require the jury to consider the unlawfulness of the act they found to be a cause of the victim’s death.
[5] Although not clear, it seems that only mens rea offences can fulfil the ‘unlawfulness’ criteria. See the Bench Notes for further information.
[6] In cases where the meaning of injury and its operation in the case is not in issue, the judge will need to consider whether to give this definition of injury.
[7] If the reasonable person must be imbued with particular knowledge or characteristics of the accused, add “In this case, the reasonable person is [describe relevant facts or attributes which apply to the reasonable person].”