Manslaughter

Question 1

Voluntary manslaughter

Answer 1

Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.

Question 2

Involuntary manslaughter

Answer 2

Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause grievous bodily harm.

Question 3

When you come across a killing that is a result of a sudden fight, you need to consider whether there was:

Answer 3

• self-defence
• the requisite mens rea for a murder charge.

Question 4

It is crucial for you to consider these issues if you are to decide the way in which the killing should be viewed:

Answer 4

• If the homicide can be justified as having arisen out of self-defence (s48) the proper verdict is an acquittal.
• If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter.

Question 5

Four-point test for proving an unlawful act for manslaughter.

Answer 5

1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death

Question 6

Negligent Drivers

Answer 6

Juries have been reluctant to convict negligent drivers of manslaughter, so alternative offences have been formulated. These are contained in s36A, 38, 39 and 39AA of the Land Transport Act 1998 and relate to aggravated careless, dangerous and reckless driving causing death.

Question 7

The ‘Major Departure’ Test

Answer 7

The ‘major departure’ test in s 150A(2) requires a high degree of negligence, corresponding to the common law standard of gross negligence, if a person is to be criminally responsible under s 160(2)(b) for manslaughter by negligent omission to perform or observe any of the legal duties specified in s 150A(1)(a) or under s 160(2)(a) for manslaughter by an unlawful act requiring proof of negligence or imposing strict or absolute liability

Question 8

Gross Negligence Objective Test

Answer 8

The test of gross negligence is objective and that the defendant’s state of mind is not a prerequisite to conviction for manslaughter by gross negligence. All the circumstances of the case must be considered and a defendant’s state of mind may be relevant to whether there was gross negligence. This may be more readily found if, for example, the defendant knowingly ran a risk or was indifferent to an obvious risk of death.

Question 9

Punishment of manslaughter

Answer 9

177 Punishment of manslaughter
(1) Every one who commits manslaughter is liable to imprisonment for life.

However, the judge, taking all matters into consideration, may impose any penalty from a fine to life imprisonment, depending on the circumstances.

Question 10

Common law defines two distinct types of manslaughter:

Answer 10

− voluntary manslaughter
− involuntary manslaughter.

Question 11

If a homicide arose out of self-defence

Answer 11

The defendant should be acquitted; if it arose out of a suicide pact the charge should be manslaughter.