ANNEXURE A
Analysis of Elements of Involuntary Manslaughter
(drawn substantially from the Bench Book at [5-6230]-[5-6260]).
Manslaughter by criminal negligence
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,
5 the death of the deceased; and
6 the accused's [act/omission] was negligent in that the accused breached the duty of care which the accused owed to the deceased; and
7 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].
In relation to element 5, the standard directions include the following [emphasis added]:
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]).]
In relation to element 6 the standard directions include [emphasis added]:
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.
Accordingly, element 5 involves consideration of the breach of duty in terms of reasonableness and element 6 requires an evaluation of that breach against the standard identified. The reasonableness of the accused conduct is therefore central to both elements of the offence which are anticipated to be in dispute. Elements 5 also requires assessment of negligence and Elements 5 and 6 require assessment of an negligence in terms of dangerousness.
Manslaughter by unlawful and dangerous act
The elements of the offence are 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.
In relation to the element 3, the standard directions include that:
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].
Here, the allegation is that the act of tasering the deceased constituted an assault and/or battery that was unlawful because it was not justified by law. In relation to whether the accused could be justified by any law it is anticipated that the following provisions could be relevant.
Section 230 of the Law Enforcement Powers and Responsibility Act (LEPRA) provides as follows:
Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.
Section 20 of the Mental Health Act 2007 empowers paramedics to take a mentally ill or disturbed person to a declared mental health facility if it is in the person's welfare. Police assistance to do so can be requested if there are serious concerns for safety. Section 21 allows police who have been asked by paramedics for assistance to apprehend and take a person to a mental health facility. Section 81 gives paramedics and police the power to use reasonable force to take a person to or from a mental health facility or other health facility. A person can also be sedated by authorised persons for the purpose of being taken to or from a mental health facility, if necessary, under that section.
In relation to element 4, the standard directions include [emphasis added]:
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 [5-623U]). 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.
Accordingly, the reasonableness of the accused's conduct is relevant to both elements 3 and 4. While dangerousness is central to element 4.
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Decision last updated: 29 November 2024