Manslaughter

[5-6200] Introduction

There are two broad categories within the offence of manslaughter: voluntary manslaughter and involuntary manslaughter. In cases of voluntary manslaughter the elements of murder are present, but the culpability of the offender’s conduct is reduced by reason of provocation or substantial impairment by abnormality of mind: The Queen v Lavender (2005) 222 CLR 67 at [2]; Lane v R [2013] NSWCCA 317 at [50], [63]. Manslaughter by excessive self-defence established under s 421 Crimes Act 1900 is also a form of voluntary manslaughter: Lane v R at [50]. The offender has one of the mental states for murder but a reasonable person in his or her position would not have considered a lethal response was reasonable in the circumstances: Grant v R [2014] NSWCCA 67 at [63]–[66].

As to Provocation see [6-400], Substantial impairment because of mental health impairment or cognitive impairment see [6-550] and Self-defence see [6-450].

Manslaughter may be charged as a separate count in the indictment or an accused may be convicted of manslaughter on an indictment charging murder alone: R v Downs (1985) 3 NSWLR 312. This chapter focuses upon involuntary manslaughter.

Where the Crown alleges the accused’s liability arises from a joint criminal enterprise, see [2-770]. The maximum penalty for manslaughter is 25 years imprisonment: s 24 Crimes Act.

[5-6210] Involuntary manslaughter

There are two categories of involuntary manslaughter at common law:

(i): manslaughter by unlawful and dangerous act, and
(ii): manslaughter by criminal negligence.

A helpful general discussion of these discrete types of manslaughter can be found in Lane v R [2013] NSWCCA 317 at [51]–[65].

[5-6220] Act of the accused caused death

The act of the accused — or in the case of (ii) in [5-6210] above, the act or omission — must cause the death of the deceased: Lane v R [2013] NSWCCA 317 at [63]–[64]. For Causation generally, see [2-300] and for the Voluntary act of the accused, see [4-350].

[5-6230] Manslaughter by unlawful and dangerous act

Manslaughter by unlawful and dangerous act occurs where the accused causes the death of the deceased by a voluntary act that was unlawful and dangerous: a dangerous act being one that a reasonable person in the position of the accused would have appreciated was an act that exposed another person to a risk of serious injury: Wilson v The Queen (1992) 174 CLR 313; Burns v The Queen (2012) 246 CLR 334 at [75]; Lane v R [2013] NSWCCA 317 at [57]. A breach of the motor traffic regulations is not an unlawful act for this form of manslaughter: R v Pullman (1991) 25 NSWLR 89 and see R v Borkowski (2009) 195 A Crim R 1 where a majority of the court at [1] and [51]–[54] applied R v Pullman. It is essential that the jury is directed that the relevant test is the reasonable person in the accused’s position: R v Cornelissen [2004] NSWCCA 449 at [82]–[83] applying Wilson v The Queen at 334. That requires attributing to the reasonable person the accused’s awareness and knowledge of the circumstances surrounding the alleged act: R v Thomas [2015] NSWSC 537 at [41], [71].

In assessing whether the reasonable person would have realised the act was dangerous, the fact finder can take into account, in appropriate cases, the accused’s age (DPP (Vic) v TY (2006) 14 VR 430 at [12]), or a moderate or extreme intellectual disability. It has been held these are “objectively ascertainable attribute[s]”: R v Thomas at [69]. The significance of these factors will of course vary from case to case and will only need to be referred to if they are in some way relevant.

Where the accused’s intellectual disability is to be taken into account, the description of the degree of disability will ordinarily involve using terms used by experts (for example “moderate”, “severe” or “profound”). These terms do not have the meaning a lay person might think and may without explanation be misleading. There is a helpful discussion in Muldrock v The Queen (2011) 244 CLR 120 at [50]. For this reason, it will be necessary to explain to the jury the meaning of the terms used by the experts to assess a person’s intellectual functioning.

A transitory emotional or mental state which the accused might have had at the time cannot be taken into account: R v Wills [1983] 2 VR 201 at 212. The approach taken in R v Edwards [2008] SASC 303 at [385], of utilising the test for manslaughter by gross criminal negligence and attributing a variety of factors personal to the accused to the reasonable person, was disapproved in R v Thomas at [44]–[48].

As to manslaughter by unlawful and dangerous act generally, see: Criminal Practice and Procedure NSW at [8-s 18.55]; Criminal Law (NSW) at [CA.24.60]ff.

[5-6240] Suggested direction — manslaughter by unlawful and dangerous act

Note: The following suggested direction assumes that the act of the accused caused the death of the deceased and that the accused’s act was intentional. Alternatives to this scenario are provided in square brackets.

The accused is charged with the offence of manslaughter. Manslaughter is the unlawful killing of another human being. Although it is an offence of homicide, it is a less serious offence than murder because the Crown does not allege that the accused acted with the intention of killing the deceased. It is not the Crown’s case that the accused intended to inflict any serious harm upon the deceased.

The offence of manslaughter can be committed in a number of ways but here the Crown alleges that:

1.: the death of the deceased was caused by an act of the accused
2.: the accused intended to commit the act that caused death
3.: the act of the accused was unlawful, and
4.: the act of the accused was dangerous.

1. The death of the deceased was caused by an act of the accused

[If causation is not in issue, add:

The Crown must prove beyond reasonable doubt that the intentional act of the accused caused the death of the deceased. That is not an issue in this case and you can proceed on the basis that this fact has been proved beyond reasonable doubt.]

[If causation is in issue, then directions need to be given as to the basis upon which the Crown alleges that an act of the accused substantially contributed to the death of the deceased: see Causation at [2-300]ff.]

2. The accused intended to commit the act that caused death

[If it is not in issue that the act of the accused was intentional, add:

The Crown must prove beyond reasonable doubt that the act of the accused was intentional. This case is not in dispute. So you should find that particular ingredient of the crime to be proved beyond reasonable doubt.]

[If there is an issue of whether the act of the accused was intentional then directions should be given according to the issues in the case. See Voluntary act of the accused at [4-350].]

3. The act of the accused was unlawful

The Crown must prove beyond reasonable doubt that the accused’s act was unlawful. The Crown asserts that the act was unlawful because … [set out the Crown’s allegation].

[If the question of self-defence arises, then see the suggested directions at [6-460].]

4. The act of the accused was dangerous

Finally, the Crown must prove beyond reasonable doubt that the act of the accused was not only unlawful but also dangerous. An act is dangerous if a reasonable person, in the position of the accused at the time the act was committed, would have realised that the act exposed another person, whether it be the deceased or not, to a risk of serious injury. It does not matter whether the accused believed that their act was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused, would have realised or appreciated that the act was dangerous.

In deciding whether the reasonable person in the position of the accused would have realised that the act was dangerous you can take into account any evidence of the accused’s awareness and knowledge of the circumstances surrounding the alleged act.

[The following further directions in relation to the reasonable person need not necessarily be given and should be adapted to the circumstances of the case:

A reasonable person in the position of the accused is one who is not subject to the peculiar eccentricities of the accused or any temporary or fleeting emotional or mental state to which the accused might have had at the time. The reasonable person is not affected by alcohol or drugs.

[Where appropriate: the reasonable person is to be taken as being of the age and maturity of the accused at the time of the alleged act.]

[Where appropriate: the reasonable person is taken to be a person with the accused’s intellectual disability.]

Therefore, the reasonable person in this case is to be taken as …

[Where appropriate: set out the relevant evidence of the accused’s age and maturity/intellectual disability at the time of the act alleged. In relation to the attributes of the intellectual disability, explain any expert opinion admitted in the proceedings (see earlier discussion at [5-6230]). For example, in R v Thomas [2015] NSWSC 537, the accused had an impaired ability with the processing of information and conceptual reasoning.]

The question is whether the Crown has proved beyond reasonable doubt that a reasonable person in the position of the accused, would have realised that the act allegedly committed by the accused exposed another person to a risk of serious harm.]

[5-6250] Manslaughter by criminal negligence

Last reviewed: April 2024

In cases of manslaughter by criminal negligence, juries should be directed in accordance with Nydam v R [1977] VR 430 at 445 which the High Court approved in The Queen v Lavender (2005) 222 CLR 67 at [17], [60], [72], [136] and Burns v The Queen (2012) 246 CLR 334, per French CJ at [19]. In brief, the offence was described in Nydam v R as follows:

In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.

Before the offence can be committed the accused must owe a legal duty of care to the deceased, such a duty having been recognised by the common law: Burns v The Queen at [97], [107]; Lane v R [2013] NSWCCA 317 at [59]–[62]. As to where such a duty commonly exists, see R v Taktak (1988) 14 NSWLR 226 and Burns v The Queen at [97]. The question of whether a given set of facts gives rise to a duty of care is a question for the judge. It is a question for the jury whether the facts exist: Burns v The Queen per French CJ at [20]. It is essential that the act or omission that amounts to a breach of duty is the act or omission that causes death: Justins v R (2010) 79 NSWLR 544 at [97]; Lane v R at [61]. Causation can be established where the acts or omissions accelerate death, even where the deceased’s death was inevitable from pre-existing conditions: Baker v R [2023] NSWCCA 262 at [55], [58]. See also [2-305] Causation generally.

The common law defence of honest and reasonable mistake of fact does not apply to the offence: The Queen v Lavender at [57]–[60].

The test for criminal negligence is objective: The Queen v Lavender at [60]; Patel v The Queen (2012) 247 CLR 531 at [88]. The court in R v Sam (No 17) [2009] NSWSC 803 at [14], [21], [31] articulated the personal attributes of the accused that may be assigned to the reasonable person. The standard to be applied in some cases must take account of special knowledge on the part of a person, as relevant to how a person with that knowledge would act: Patel v The Queen at [90].

As to manslaughter by gross criminal negligence generally, see: Criminal Practice and Procedure NSW at [8-s 18.50]; Criminal Law (NSW) at [CA.24.180]ff.

[5-6260] Suggested direction — manslaughter by criminal negligence

Note: The suggested direction below assumes that the death of the victim is not a fact in dispute and that the accused’s act/omission caused or accelerated that death. The direction assumes that the facts, which the Crown alleges gives rise to the existence of a duty of care, are in issue. There may be cases where there is no such issue, for example, where the offence involves a parent and child, and, therefore, it is unnecessary to direct the jury on the existence of a duty of care generally.

The accused is charged with the offence of manslaughter. Manslaughter is the unlawful killing of another human being. Although it is an offence of homicide, it is a less serious offence than murder because the Crown does not allege that the accused acted with the intention of killing the deceased. It is not the Crown case that the accused intended any harm at all to be inflicted upon the deceased let alone that the deceased should die.

The offence of manslaughter can be committed in a number of ways but here the Crown alleges that the killing of the deceased was caused by a deliberate [act/omission] of the accused that was so seriously negligent on the part of the accused and created such a high risk of serious injury or death to another person that it amounted to a criminal offence.

In order to prove manslaughter on this basis the Crown must prove a number of facts beyond reasonable doubt. Unless you find each of these facts proved to that standard the accused must be acquitted.

The Crown must prove each of the following beyond reasonable doubt:

1.

the death of the deceased; and

2.

the accused owed a legal duty of care to the deceased; and

3.

the accused [committed an act/omitted to do an act]; and

4.

the [act/omission] caused (that is, was a substantial cause of) or accelerated, the death of the deceased; and

5.

the accused’s [act/omission] was negligent in that the accused breached the duty of care which the accused owed to the deceased; and

6.

the accused’s [act/omission] amounted to criminal negligence and merited criminal punishment for the offence of manslaughter because:

(a): it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and
(b): involved such a high risk that death or really serious bodily harm would follow as a result of the [act/omission].

1. The death of the deceased

The Crown must prove beyond reasonable doubt the death of the deceased. That is not an issue in this case and you can proceed on the basis that this has been proved beyond reasonable doubt.

2. The accused owed a legal duty of care to the deceased

The Crown must prove that the accused owed a legal duty of care to the deceased. Every person owes a duty to conduct himself or herself in a manner that he or she will not cause injury to another person in circumstances where a reasonable person in his or her position would have foreseen a risk of injury from such conduct to that other person. The law recognises that one person owes a legal duty of care to another in certain situations.

[It is suggested that any examples given to the jury concerning a legal duty of care should be relevant to the kind of case that is before the court, that is, negligence based on an omission to act (see Burns v The Queen (2012) 246 CLR 334 at [97], [107]) as opposed to negligence arising from an act of the accused such as driving. The following may be used as examples depending on the facts of the case. In the majority of cases no exposition upon legal duties of care will be necessary but the following may be added if it is thought a particular case warrants it.

Generally speaking one citizen owes no duty of care to another citizen. Therefore, by way of example, a member of the community is under no legal duty to save a stranger from drowning, even if there were no risk to the safety of the potential life-saver. Similarly, the law does not impose a duty of care on suppliers of prohibited drugs to take reasonable steps to preserve the life of their customers.

There are other circumstances where the law does recognise one person owes a legal duty of care to another. For example, when you drive a motor vehicle on a public street then you owe a duty of care to other road users, whether they are drivers or pedestrians. When you breach that duty of care you may be driving negligently because your standard of driving has fallen short of what is expected of a reasonable, prudent driver in the particular situation in which you were driving. This is simply an example of how a duty of care arises and the consequences of breaching that duty of care.]

A duty of care owed by one person to another can normally arise in at least four situations: first, because of an obligation imposed by law, such as the driving of a motor vehicle; secondly, because of a certain relationship between the two persons, for example the relationship of a parent and child, or a doctor and patient; thirdly, where a person has assumed a duty of care over another by a contractual relationship, for example in an employment relationship; and, fourthly, where, by the person’s voluntary conduct, he or she has assumed a duty of care for another person.

The Crown here asserts that the accused owed a legal duty of care to the deceased because [set out the Crown’s allegation of the way in which the duty of care has arisen]. I direct you that, if you find beyond reasonable doubt on the evidence before you that the facts are as the Crown alleges them to be, then according to the law the accused owed a duty of care to the deceased.

[If there is an issue as to whether the facts giving rise to a duty of care exist then set out the arguments of the parties.]

**3. The accused [committed an act/omitted to do an act]**

[See ingredient 4 below.]

**4. The [act/omission] caused (that is, was a substantial cause of) or accelerated, the death of the deceased**

I now turn to ingredients three and four. The Crown must prove beyond reasonable doubt that the accused [committed an act/omitted to do an act] and that this [act/omission] caused (that is, was a substantial cause of) or accelerated the death of the deceased. In this case neither ingredients three and four are in issue. Therefore, you can proceed on the basis that the Crown has proved these ingredients beyond reasonable doubt.

**5. The accused’s [act/omission] was negligent in that they breached the duty of care which the accused owed to the deceased**

The Crown must prove beyond reasonable doubt that the accused breached the duty of care owed by the accused to the deceased. The Crown alleges that the accused [state Crown allegation that the accused acted or omitted to act in such a way as to constitute a breach of that duty of care].

It is for you, as the jury, to determine the standard of care required to be exercised by a reasonable person, that is an ordinary member of the community, in the situation in which the accused was placed. If the accused failed to do what a reasonable person would have done [or did what a reasonable person would not have done] in the situation in which the accused found themself then you would find that the accused breached the duty of care owed to the deceased. Unless you are satisfied beyond reasonable doubt that there was a breach of duty of care, then the accused cannot be guilty of manslaughter.

In deciding whether there was a breach of duty of care, you have to consider what a reasonable person would have done in the situation in which the accused was placed. A reasonable person is one who has some, but not all of the personal attributes of the accused. A reasonable person is a person of generally the same age as the accused; with their experience and [training] and with their knowledge of the facts. The reasonable person is a person of normal courage and resolve. So you have to put this reasonable person into the accused’s shoes at the time of the incident and attribute to that person the accused’s knowledge of the circumstances at the time the accused committed the act or acts, or failed to take a relevant course of action.

If the accused failed to act as a reasonable person would have done in that situation, then the accused has breached the duty of care that they owed the deceased. It does not matter whether the accused knew that they were breaching their duty of care, or whether the accused believed that they were acting in an appropriate way in the circumstances which they faced. You are not concerned with the accused’s personal beliefs about the correctness or appropriateness of their conduct. You are concerned with what a reasonable person in the accused’s position would have thought was appropriate and necessary.

[If applicable:

In deciding that issue the accused has invited you to take account of ... [insert particular fact or circumstance which the accused knew, or thought they knew which contributed to their opinion that they were acting in an appropriate way (see The Queen v Lavender (2005) 222 CLR 67 at [59]–[60]).]

**6. The accused’s [act/omission] amounted to criminal negligence and merited criminal punishment for the offence of manslaughter**

The Crown must prove beyond reasonable doubt that the accused’s [act/omission] amounted to criminal negligence and merited criminal punishment for the offence of manslaughter.

A mere breach of duty is not enough to amount to the offence of manslaughter. A breach of duty is often called carelessness or negligence. A breach of the duty of care may make a person liable to pay compensation to another person for damages in a civil action. However, that liability is not sufficient for the offence of manslaughter. The accused’s conduct must be so gravely in error and carry with it such a high risk of serious injury that it deserves to be punished as a serious criminal offence.

The breach of duty must have a certain quality before the accused can be guilty of this offence. The accused’s conduct must, first, fall so short of what was required and, secondly, must give rise to such a high risk of serious injury or death, that the conduct deserves criminal punishment. Often negligence giving rise to manslaughter is described as gross or even wicked. It is negligence of such a serious kind that it far exceeds simple carelessness or negligence that occurs frequently in our society.

If the accused’s breach of duty meets this level of seriousness and carries with it a high risk of serious injury or death, it does not matter that the accused never intended, or appreciated that their actions might harm the deceased.

[5-6270] Alternative verdicts

Section 25A(7) Crimes Act 1900 provides that, in a trial for manslaughter, the jury can return an alternative verdict for an offence of assault causing death while intoxicated (s 25A(2)) or an offence of assault causing death under s 25A(1). Sections 52AA(4) and 52BA(4) Crimes Act permit the jury to return an alternative verdict for the offences under ss 52A and 52B where the accused is indicted for murder or manslaughter.

See [5-6340] as to the judicial requirement to leave manslaughter as an alternative to murder.