Manslaughter

Question 1

Manslaughter is..

Answer 1

Traditionally divided into voluntary and involuntary manslaughter with a maximum penalty upon conviction of 20 years imprinsonment

Question 2

Infanticide is where a mother kills her child

Answer 2

when the balance of her mind was disturbed because of not having fully recovered from the effect of giving birth to that child within the previous two years; or a disorder consequent to her giving birth to that child within the preceding two years

Question 3

When the accused kills the victim because they honestly but unreasonably believe the conduct is necessary to defend themselves or onother; or to prevent the deprivation of liberty, excessive self defence will be;

Answer 3

A partial defence reducing murder to manslaughter or defensive homicide

Question 4

What is the burden of proof regarding provocation?

Answer 4

The accused bears the evidential burden of ensuring that there is material, on the issue of provocation, for they jury to consider, but the prosecution bears the legal burden of proof

Question 5

In the leading case of Parker v R (1964) provocation was not raised by defence but it was held to be a question of law that should have been left open to the jury because;

Answer 5

It was for them to consider the nature and duration of the provocation and whether it was reasonably calculated to deprive any ordinary person of the power of self control

Question 6

In Masciantonio v R 1995 the high court considered whether conduct ‘must have been capable of provoking the ordinary person to the degee and metho and continuance of violence which produces death’ it was held that;

Answer 6

Matter arising from the ethnic or cultural background of the accused CAN be taken into account in determining whether an ordinary person would have lost their self-control

Question 7

The homosexual advance defence is;

Answer 7

A homophobic interpretation of the ‘ordinary person’ that is not applicable in contemporary Australian society

Question 8

In R v Parsons 2000 the stress of family court proceedings was raised as provocation but the victom was stabbed 48 times with a kitchen kiife at adjournment of the proceedings. Provocation

Answer 8

Was an issue that should have been withdrawn from the jury, as otherwise this would ‘encourage savagery at the expense of civilized behaviour’

Question 9

Defensive homicide is;

Answer 9

Where the accused honestly believed at the time of the killing, that the conduct was necessary to defend themselves or another. However, the response was not reasonable in the circumstances

Question 10

Involuntary manslaughter is;

Answer 10

The category of unlawful homicide where an accused lacks the mens rea for murder but is regarded by the law as sufficiently culpable t

Question 11

The 2 types of involuntary manslaughter are

Answer 11

Negligent manslaughter and unlawful and dangerous act manslaughter

Question 12

In R v Wilson 1992 the test for unlawful dangerous act manslaughter was formulated as follows;

Answer 12

The act must be a breach of criminal law; and the act must be such that a ‘reasonable person would realise that it was exposing others to an appreciable risk of serious injury’

Question 13

According to Nydam v R & R v Lavender 2005 negligent manslaughter is..

Answer 13

Causing death by an act or omission falls so far short of the standard of care required of a reasonable person that it is worthy of criminal punishment

Question 14

In cases of negligent manslaughter by omission a duty of care must exist between the D and the victim. Duties can exist as a matter of law or can arise in the circumstances like;

Answer 14

Paren/child relationships, voluntary employment that bears upon public safety; and voluntary assumption of care of helpless persons as well as situations where the D has created a situation of danger

Question 15

What is the best term to be used to describe the standard of negligence required for this category of involuntary manslaughter?

Answer 15

Criminal negligence

Question 16

In Wilson v R 1992 the high court confirmed the approach taken by justice smith in R v Holzier 1968 that the unlawful and dangerous act manslaughter doctrine should apply

Answer 16

Where a reason person in the accuseds position performing the very act which the accused performed, would have realised that he was exposing another or others to an appreciable risk of really serious injury

Question 17

The leading case of Nydam v R defined negligence as involving a great falling short of the standard of care which a reasonable man would have exercised; and which involved

Answer 17

High risk of death or grievous bodily harm would follow

Question 18

In R v Stone, R v Dobinson 1977 A duty of care was

Answer 18

imposed because the accused was a relative of the victim and together with the co accused assumed a duty of care by making attempts to care for her without summoning help

Question 19

Is the test for negligent manslaughter similar to statutory culpable driving provisions involving negligence?

Answer 19

Yes – both D’s have to fail to a gross degree to observe the standard of care a reasonable man would have observed in all the circumstances of the case