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8.2.7 - Charge: Manslaughter Self-Defence

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Warning: This charge relates to the defence of "manslaughter – self-defence" (Crimes Act 1958 s9AE). As this defence has so far been the subject of only limited judicial interpretation, the charge should be treated with caution.

 

[This charge should be given if manslaughter is available as a verdict in relation to a homicide committed on or after 23 November 2005 and before 1 November 2014, and there is evidence from which a jury might infer that the accused was acting in self-defence. It is recommended that the charge be given immediately after directing the jury about the elements of manslaughter.]

If it is alleged that the homicide was committed on or after 1 November 2014, see Charge: Statutory Self-Defence.

If it is alleged that the homicide was committed before 23 November 2005 see Charge: Common Law Self-Defence]

Introduction

As I have already mentioned, in this case the defence has alleged that NOA was acting defensively when s/he killed NOV.[1] I have already explained the law of self-defence in relation to murder, as well as directing you about the offence of defensive homicide. I now need to tell you about the law of self-defence in relation to manslaughter.

The law says that people may commit acts that would otherwise be classified as "manslaughter" if they believe, on reasonable grounds, that it is necessary to commit those act to defend themselves. So even if you are satisfied that the prosecution has proven all of the elements of manslaughter beyond reasonable doubt, NOA will not be guilty of that offence if s/he acted in self-defence.

As is the case for self-defence in relation to murder, it is for the prosecution to prove, beyond reasonable doubt, that NOA was not acting in self-defence when s/he committed the acts that would otherwise be considered "manslaughter".[2] It is not for NOA to prove that s/he did act in self-defence.

So before you can find the accused guilty of manslaughter, you must be satisfied that the prosecution has proven, beyond reasonable doubt:

In relation to manslaughter, there are two possible ways for the prosecution to prove that the accused was not acting in self-defence.

First, the prosecution can prove that when NOA killed NOV, s/he did not believe that it was necessary to do what s/he did to defend him/herself.

As with self-defence in relation to murder, this involves assessing the accused’s state of mind at the time s/he killed NOV. What threat did s/he believe s/he faced? Did s/he believe it was necessary to react to the threat with force, and to do what s/he did in order to defend him/herself - or was s/he acting for some other purpose, such as [insert relevant example from the evidence and/or arguments – e.g. to attack another or in retaliation for a past attack]?

Secondly, the prosecution can prove that even if NOA believed his/her acts were necessary, that belief was not based on reasonable grounds.

This again requires you to consider the circumstances as NOA perceived them to be at the time s/he killed NOV, as is the case in relation to defensive homicide. You must determine whether the prosecution has proven that there was no reasonable basis for the accused to have believed that it was necessary to act in the way s/he did, in response to the threat s/he believed s/he faced.

If the prosecution fails to prove to you beyond reasonable doubt either that NOA did not believe it was necessary to act in the way s/he did to defend him/herself, or that that belief was not based on reasonable grounds, then you must find him/her not guilty of manslaughter. It is only if you are satisfied that the prosecution has proven one or other of these matters that you may convict him/her of manslaughter – as long as you are also satisfied that all of the elements of the offence have been proven.

Considerations

In making your determination, you must again take into account all of the circumstances in which the killing took place, including the fact that a person cannot be expected to weigh precisely the exact amount of self-defensive action required to respond to an imminent threat.

You should also take into account the same factors that I mentioned in relation to murder self-defence and defensive homicide, such as [insert relevant factors from the following list:

[If it is alleged that the accused was intoxicated, add the following shaded section]

As is the case in relation to murder self-defence and defensive homicide, you can also take into account the accused’s intoxication when assessing whether s/he believed it was necessary to act in the way s/he did. However, you must not take any intoxication into account in determining whether the accused’s belief in the necessity of his/her actions was based on reasonable grounds.[3] The law requires you to consider whether a person who was not intoxicated would have had reasonable grounds for believing those actions were necessary, in the circumstances as perceived by the accused.

Summary

To summarise, even if you decide that all of the elements of manslaughter have been proven beyond reasonable doubt, you may find that NOA was not guilty of that offence because s/he was acting in self-defence.

Before you can find NOA guilty of manslaughter, you must therefore be satisfied not only that all of the elements of the offence have been met, but also that the prosecution has proven, beyond reasonable doubt, that NOA either:

If the prosecution cannot prove one or other of these matters beyond reasonable doubt, then you must find NOA not guilty of manslaughter.

Notes

[1] This charge is drafted for use in cases in which the principal charge is murder, manslaughter is raised as an alternative verdict, and the defence does not deny that the accused killed the victim, but contends that it was done in self-defence. It assumes that the jury has already been charged in relation to murder self-defence and defensive homicide (see Charge: Murder Self-Defence and Charge: Defensive Homicide).

The charge will need to be modified if used in the following circumstances:

- If manslaughter is the principal charge;

- If the jury has not been instructed about murder self-defence;

- If self-defence arises on the evidence, but is not alleged by the defence;

- If the defence denies that the accused killed the victim; or

- If there is evidence that the accused was acting in defence of another or to prevent or terminate the unlawful deprivation of liberty.

[2] This charge assumes that the defence does not deny that the accused killed the victim, but contends it was done in self-defence. If the defence does deny that the accused killed the victim, parts of the charge will need to be modified.

[3] If it is alleged that the intoxication was not self-induced, this section will need to be modified (see s9AJ(4)). See Crimes Act 1958 ss9AJ(5) and (6) for the definition of "self-induced" intoxication. Model charges are available from Charge: Statutory Intoxication (23/11/05 – 31/10/14) (Self-induced) or Charge: Statutory Intoxication (23/11/05 – 31/10/14) (Self-induced contested), as relevant.

Last updated: 1 November 2014

See Also

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.2.1 - Charge: Murder Self-Defence

8.2.2 - Charge: Defensive Homicide

8.2.3 - Checklist: Murder Self-Defence with Manslaughter

8.2.4 - Checklist: Murder Self-Defence with Criminal Negligence Manslaughter

8.2.5 - Checklist: Murder Self-Defence with Unlawful and Dangerous Act Manslaughter

8.2.6 - Checklist: Murder Self-Defence with No Manslaughter

8.2.8 - Checklist: Manslaughter Self-Defence

8.2.9 - Checklist: Unlawful and Dangerous Act Manslaughter

8.2.10 - Checklist: Criminal Negligence Manslaughter