Homicide II: Involuntary manslaughter Flashcards
Involuntary manslaughter
Involuntary manslaughter is distinguished by the mens rea as there is no requirement to prove that the defendant intended to kill or cause grievous bodily harm.
Two types: Unlawful act manslaughter and Gross negligence manslaughter
Unlawful act manslaughter
Unlawful act manslaughter is also referred to as unlawful and dangerous act manslaughter – a title that includes many of the elements required to establish the offence
Actus reus of unlawful act manslaughter
The defendant must:
* do an unlawful act; which
* is dangerous; and
* causes the victim’s death
Mens rea: unlawful act manslaughter
Intent or recklesness
Elements: Unlawful act
There must be an unlawful act with a mens rea of intent or recklesness.
The only requirement is that the unlawful act is a criminal offence in law
Elements: Dangerous act
- ‘Dangerous’ means the act carries the risk of some harm to some person, but not necessarily serious harm.
- The defendant need not foresee the precise form or sort of harm that ensues.
- The test is entirely objective, namely, whether all sober and reasonable people would think the act was dangerous; not whether the defendant themselves did.
- The reasonable person is deemed to have the knowledge the defendant had, or should have had, at the time of the offence, had they been present at the scene of the crime and watched the whole act being performed.
Element: Causes death
The final element of the actus reus of unlawful act manslaughter is that the unlawful act causes the victim’s death
Gross negligence manslaughter
To convict a defendant of gross negligence manslaughter, the court must be satisfied that:
* the defendant owed the victim a duty of care;
* the defendant breached that duty;
* the breach caused the death of the victim; and
* the defendant’s conduct was grossly negligent.
Gross negligence manslaughter: Duty of Care
A defendant will only be liable for gross negligence manslaughter if a duty exists. Determining this issue is a matter of both law and fact.
* Where there is a clear duty, as between a medical practitioner and a patient, or a statutory duty, the judge can direct the jury that a duty of care exists.
* Where the existence of a duty is not clear, the judge must decide whether there is any evidence that is capable of establishing one. If not, the offence falls at the first hurdle.
* If there is such evidence, the jury will determine whether a duty of care is present in the scenario before it.
Gross negligence manslaughter can be committed by omission, as well as where the defendant does a positive act or behaves negligently
Gross negligence manslaughter: Breached that duty
The prosecution must also prove that the defendant breached their duty of care towards the victim, either by the performance of a positive act or by a failure to act. The ordinary principles of negligence will apply to ascertain whether a breach has occurred.
* A defendant will breach their duty of care to the victim where their conduct falls below that expected of a reasonable person. There is no need to establish that the defendant was aware their conduct may fall below this standard – just that it did.
* Where the defendant has special knowledge or expertise, such as a doctor, they will be expected to meet the standard of care expected of a reasonable person with that knowledge or expertise.
Gross negligence manslaughter: Causes death
It must be shown that the defendant’s breach of duty caused the death of the victim and the usual rules of causation will apply here
Gross negligence manslaughter: Gross negligence
The breach of duty must be grossly negligent. This means that the conduct of the defendant must be sufficiently bad as to justify the law imposing a criminal penalty.
For the defendant to be criminally liable for gross negligence manslaughter, there must be a risk their conduct could cause death.
