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7.2.2 - Manslaughter by Unlawful and Dangerous Act

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Scope

  1. This topic only addresses manslaughter by unlawful and dangerous act. For information concerning other forms of manslaughter, see:

    The Elements

  2. Manslaughter is a common law offence. One of its forms is manslaughter by an unlawful and dangerous act causing death. This form of manslaughter has the following four elements, each of which the prosecution must prove beyond reasonable doubt:
    1. That the accused committed an act that caused the death of another person;
    2. That the relevant act was committed consciously, voluntarily and deliberately;
    3. That the relevant act was "unlawful"; and
    4. That the relevant act was "dangerous".

    The act caused the victim’s death

  3. The first element that the prosecution must prove is that the accused committed an act that caused the victim’s death (R v Stein (2007) 18 VR 376; R v Summers [1990] 1 Qd R 92; Aidid v R (2010) 25 VR 593).
  4. For offences committed on or after 1 November 2014, the Crimes Act 1958 s4A provides that:

    (4) A single punch or strike may be the cause of a person's death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person's head or neck but another injury resulting from an impact to the person's head or neck, or to another part of the person's body, caused by the punch or strike.

    Example

    If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death.

  5. Crimes Act 1958 s4A(4) is not a deeming provision, but recognises that the cause of death, for the purpose of manslaughter, may include injuries sustained as a consequence of the accused’s punch or strike. This does not change existing principles of causation.
  6. For information concerning causation, see Causation and Intentional or Reckless Murder.

    The act was conscious, voluntary and deliberate

  7. The second element that the prosecution must prove is that the relevant act was committed consciously, voluntarily and deliberately (Ryan v R (1967) 121 CLR 205; R v Haywood [1971] VR 755; R v Winter [2006] VSCA 144; R v Williamson (1996) 67 SASR 428).
  8. While the prosecution must prove that the accused acted voluntarily, they do not need to prove that the accused intended to cause death or really serious injury (R v Haywood [1971] VR 755; R v Vollmer [1996] 1 VR 95).
  9. For information on this element, see Intentional or Reckless Murder.

    The act was unlawful

  10. The third element the prosecution must prove is that the relevant act was ‘unlawful’.
  11. To be unlawful, the act must have involved a breach of the criminal law (Wilson v R (1992) 174 CLR 313; Pemble v R (1971) 124 CLR 107).
  12. However, it seems that not all breaches of the criminal law are classified as "unlawful" for the purpose of this element. Although not clear,[2] it appears that only offences requiring proof of mens rea fall within that category (R v Nguyen(Ruling No 2) [2010] VSC 442).
  13. Offences dependent on negligence or gross negligence therefore may not qualify as "unlawful". Deaths resulting from such offences may need to be determined under the principles of Negligent Manslaughter instead (see Boughey v R (1986) 161 CLR 10; Andrews v DPP [1937] AC 576. See also R v Powell [2002] 1 NZLR 666).
  14. As acts that give rise to civil liability are not a breach of the criminal law, they are not unlawful for the purpose of this element (R v Lamb [1967] 2 QB 981).
  15. While the offence most commonly relied upon to prove unlawfulness is assault, other offences that have been relied upon include attempted assault, attempted robbery, burglary, unlawful administration of drugs and discharging a firearm in a public place (see Withers v R (No 2) [2010] VSCA 151).

    Defences

  16. An act will not be "unlawful" if the accused had a defence to the relevant offence. The jury will therefore need to consider any relevant defences, such as consent, duress or self-defence (Boughey v R (1986) 161 CLR 10; R v Lamb [1967] 2 QB 981).
  17. It should be noted that while consent may ordinarily be available as a defence to the relevant offence (e.g., assault), it may not be available where death occurs. For example, consent is not available as a defence when death occurs during sado-masochistic sexual activities (R v Stein (2007) 18 VR 376; R v Emmett 18/6/1999 Vic CA; R v McIntosh [1999] VSC 358). See Common Law Assault for further information.
  18. Consent will not be available as a defence to a fight that takes place in a public place, if that fight constitutes an affray (see Aidid v R (2010) 25 VR 593).
  19. The fact that consent may not be relevant to a charge of unlawful and dangerous act manslaughter does not mean that it will be irrelevant to a charge of negligent manslaughter (R v Cato [1976] 1 WLR 110).
  20. For general information on defences, such as self-defence and duress, see Part 8: Victorian Defences.

    Charging the Jury About Unlawfulness

  21. In charging the jury about this element, the judge must:
  22. The prosecution must prove all of the elements of the offence that they allege made the accused’s act unlawful (e.g., assault). As that includes proving that the accused had the mental state required for that offence (e.g., an intention to apply force), the test for manslaughter is not wholly objective (R v Lamb [1967] 2 QB 981; R v Haywood [1971] VR 755. See also R v Stein (2007) 18 VR 376).
  23. The prosecution does not need to prove that the unlawful act was directed against the victim (R v Mitchell [1983] QB 741).

    The act was dangerous

  24. The fourth element the prosecution must prove is that the relevant act was "dangerous".
  25. The test for "dangerousness" is objective. It requires the jury to find that a reasonable person in the position of the accused, performing that act, would have realised that he or she was exposing the deceased to an appreciable risk of serious injury (Wilson v R (1992) 174 CLR 313; R v Holzer [1968] VR 481. See also R v Klamo (2008) 18 VR 644).
  26. The test of an appreciable risk of serious injury describes the minimum proof required to establish manslaughter. Proof that the act created a greater risk, such as an appreciable risk of death, does not preclude a finding that the act was dangerous (R v Fragomeli [2008] SASC 96).
  27. It is not sufficient for the jury to find that the reasonable person would have realised that the unlawful act was likely to expose the deceased to an appreciable risk of serious injury. They must find that the reasonable person would have realised that he or she was exposing the deceased to such a risk (R v Gould [2009] VSCA 130).
  28. The jury does not need to find that the reasonable person would have thought that serious injury was "certain" or "probable". They only need to find that the reasonable person would have realised there was an "appreciable risk" of such injury (R v Holzer [1968] VR 481).
  29. For offences committed on or after 1 December 2014, Crimes Act 1958 s4A contains a deeming provision in relation to certain forms of dangerous conduct. See ‘Single punch or strike as dangerous act’ below.

    "Serious injury"

  30. The reasonable person in the position of the accused must have realised that he or she was exposing the deceased to an appreciable risk of "serious injury" (Wilson v R (1992) 174 CLR 313; R v Schaffer (2005) 13 VR 337; R v McCullagh (No 3) [2007] VSCA 293).
  31. "Serious injury" is an ordinary English term. It is for the jury to determine, as a question of fact, whether there was an appreciable risk of "serious" injury, rather than any lesser degree of injury (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari [2002] VSCA 186).
  32. The statutory definition of serious injury [4] does not apply to manslaughter, which is a common law offence (R v Vollmer [1996] 1 VR 95).
  33. The jury should assess the meaning of the term "serious injury", and the question of whether the accused realised that he or she was exposing the deceased to an appreciable risk of such injury, using logic, common sense and experience (Aidid v R (2010) 25 VR 593).
  34. While serious injury may include physical injury caused by shock in response to a frightening experience, an emotional disturbance is not sufficient to constitute a serious injury (R v Dawson (1985) 81 Cr App R 150).
  35. As the phrase "serious injury" differs from (but is very similar to) the phrase "death or really serious injury", which is used in the murder context, it is especially important to distinguish between the two phrases when murder and manslaughter are both left to the jury (Wilson v R (1992) 174 CLR 313; R v Schaffer (2005) 13 VR 337; R v McCullagh (No 3) [2007] VSCA 293; DPP v Singleton (2010) 29 VR 351).[5]
  36. For further information on the meaning of serious injury, see Intentionally Causing Serious Injury.

    The accused’s mental state is not relevant

  37. As the test for dangerousness is objective, the prosecution does not need to prove that the accused realised that his or her act was dangerous (R v Holzer [1968] VR 481; Nydam v R [1977] VR 430; R v Stein (2007) 18 VR 376; R v Vollmer [1996] 1 VR 95).
  38. In assessing whether the act was dangerous, the jury must not consider the accused’s mental state, or any matters that may have affected the accused’s reasoning or judgment (R v Wills [1983] 2 VR 201; R v Lavender (2005) 222 CLR 67). [6]
  39. This means that the jury must not consider matters such as the accused’s emotional state, whether he or she was under the influence of drugs or alcohol at the relevant time, or the accused’s subjective, mistaken belief that an action was safe (R v Wills [1983] 2 VR 201; R v Ball [1989] Crim LR 730).

    The "reasonable person in the position of the accused"

  40. The test for dangerousness requires the jury to consider what risk the reasonable person in the position of the accused would have realised he or she was creating. They must determine how the reasonable person would have assessed the situation as perceived by the accused (R v Cornelissen [2004] NSWCCA 449).
  41. In making this determination, the reasonable person should be considered to be the same age as the accused, and to have any specialised knowledge and experience that the accused had (e.g., knowledge of the recommended dosage for medication) (R v Edwards [2008] SASC 303; R v Taylor (1983) 9 A Crim R 358).
  42. However, the reasonable person does not share the accused’s gender and should not be considered to be suffering from any injuries that affected the accused at the relevant time, such as concussion (Stingel v R (1990) 171 CLR 312; R v Edwards [2008] SASC 303).
  43. The reasonable person should not be endowed with greater knowledge of the peculiarities or weaknesses of the victim (e.g., coronary artery disease) than that possessed by the accused at the time of committing the unlawful act, or that the accused acquired in the course of the criminal enterprise (R v Dawson (1985) 81 Cr App R 150; R v Stein (2007) 18 VR 376; R v Watson [1989] 1 WLR 684).

    Explaining the meaning of dangerousness to the jury

  44. The judge must ordinarily explain the meaning of the term "dangerous" to the jury. Without such an explanation there is a risk that the jury may consider that conduct is dangerous if it creates an appreciable risk of injury, rather than serious injury (Wilson v R (1992) 174 CLR 313).
  45. However, there is no need to explain the meaning of "dangerous" if this element is not in dispute (e.g., if the dispute only relates to the identity of the person who performed clearly dangerous acts) (See R v Panozzo [2007] VSCA 245).
  46. The judge must make it clear that the purpose of considering whether a reasonable person would have realised that the conduct would create an appreciable risk of serious injury is so that the jury can determine whether the conduct was "dangerous" (R v Zikovic (1985) 17 A Crim R 396).

    Single punch or strike as dangerous act

  47. Crimes Act 1958 section 4A was introduced by the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014, which commenced operation on 1 November 2014.
  48. The section states:

    (1) This section applies to a single punch or strike that—

    (a) is delivered to any part of a person's head or neck; and

    (b) by itself causes an injury to the head or neck.

    (2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

    (3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a series of punches or strikes.

    (5) Nothing in this section limits the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

    (6) In this section—

    injury has the same meaning as in Subdivision (4);

    strike means a strike delivered with any part of the body.

  49. The effect of this provision is that, as a matter of law, a single punch or strike to a person’s head or neck and which, by itself, causes injury to the head or neck, is deemed to be a dangerous act.
  50. Under subsection (3), the single punch or strike may be one of a series of punches or strikes. Where the prosecution wishes to rely on the deeming provision in subsection (2), it will need to identify a single punch or strike, delivered in the course of the confrontation, which it relies on as the dangerous act. It cannot rely on the cumulative effect of multiple punches or strikes for this purpose.
  51. Depending on the issues in the case, the judge may need to leave the question of dangerousness on two bases:

    The Judge Must Identify the Relevant Acts

  52. The judge must not leave the jury at large to decide whether the accused committed some unlawful and dangerous act that caused the victim’s death. The judge must identify the act[s] the prosecution relies upon to prove the offence (R v Stein (2007) 18 VR 376).

    Explain the Difference Between Reckless Murder and Manslaughter

  53. Where manslaughter by unlawful and dangerous act is left as an alternative to reckless murder, the judge must clearly explain the difference between:
  54. Failing to provide a clear explanation of the difference may create a risk that the jury will substitute the dangerousness direction for the meaning of recklessness (R v TY (2006) 12 VR 557; R v Barrett (2007) 16 VR 240; Pemble v R (1971) 124 CLR 107 per Barwick CJ). [7]
  55. The judge should warn the jury not to reason that the accused must have been aware that his or her actions would cause death or really serious injury because a reasonable person in the situation of the accused would have appreciated that risk (R v TY (2006) 12 VR 557; R v Barrett (2007) 16 VR 240; Pemble v R (1971) 124 CLR 107 per Barwick CJ).

    Accessorial Liability

  56. The ordinary principles of accessorial liability are capable of applying to manslaughter (Giorgianni v R (1985) 156 CLR 473; R v Chai (2002) 187 ALR 436; Markby v R (1978) 140 CLR 108).
  57. Where the prosecution relies on the principles of joint criminal enterprise or on a person entering into an agreement, arrangement or understanding contrary to Crimes Act 1958 s323 to establish unlawful and dangerous act manslaughter, the unlawful and dangerous act must be within the scope of the agreement or understanding. (R v Hartwick, Hartwick& Clayton (2005) 14 VR 125; Gillard v R (2003) 219 CLR 1; R v Chai (2002) 187 ALR 436; R v Andreevski [2010] VSC 568). For more information on the application of these doctrines see Statutory Complicity and Joint Criminal Enterprise.
  58. If the prosecution relies on the doctrine of extended common purpose based on the existence of an agreement to commit a lesser offence that is not dangerous, the prosecution must prove that the accused foresaw the possibility that a co-offender would commit the relevant unlawful and dangerous act (R v Hartwick, Hartwick& Clayton (2005) 14 VR 125; R v PDJ (2002) 7 VR 612). For more information on the application of this doctrine, see Extended Common Purpose. [8] For offences committed on or after 1 November 2014, the doctrine of extended common purpose is abolished. The prosecution must instead prove that the accused foresaw the probability that a co-offender would commit the relevant unlawful and dangerous act. See Statutory Complicity.
  59. It is possible for a co-offender to be convicted of murder as a principal offender, and the accused to be convicted of manslaughter as an accessory. This will be the case, for example, where:
  60. In such cases, the judge must not direct the jury that they may only convict the accused of manslaughter as an accessory if they find the principal offender guilty of manslaughter. The judge must direct the jury that they may convict the principal offender of murder and convict the accused of manslaughter, and explain how this is possible (R v Nguyen (2010) 242 CLR 491).

    Alternative Verdicts

    Intentional or reckless murder

  61. At common law, a judge must leave manslaughter as an alternative verdict to intentional or reckless murder if there is a "viable" case available on the evidence. Under Part 3 of the Jury Directions Act 2015, this obligation is reduced and the judge must consider whether the parties asked the judge to leave the alternative offence and, if the parties did not ask for the alternative, whether there are substantial and compelling reasons to leave the verdict. See Alternative Verdicts.
  62. The jury may only return a verdict on manslaughter as an alternative to murder if the jury unanimously agrees that the accused is not guilty of murder. In the event of a disagreement on the verdict for murder, the jury cannot return a verdict of "at least manslaughter" (Stanton v R (2003) 198 ALR 41; Gammage v R (1969) 122 CLR 444; R v McCready [1967] VR 325).

    Constructive murder

  63. A person commits constructive murder if he or she unintentionally causes the victim’s death through an act of violence, in the course or furtherance of a crime the necessary elements of which include violence (Crimes Act 1958 s3A). See Constructive Murder (Topic Not Yet Complete).
  64. Manslaughter by unlawful and dangerous act may or may not be available as a alternative to constructive murder, depending on the facts of the case (see R v Galas (2007) 18 VR 205; R v Butcher [1986] VR 43).

    Negligent manslaughter

  65. The prosecution does not need to specify a particular form of manslaughter in a charge. That is a matter for particulars. A single charge of manslaughter may encompass both unlawful and dangerous act manslaughter and negligent manslaughter without raising duplicity issues (see, e.g., R v Cramp (1999) 110 A Crim R 198; R v Isaacs (1997) 47 NSWLR 374).
  66. The judge should not direct the jury on both unlawful and dangerous act manslaughter and negligent manslaughter if the issues are relevantly identical and there is a risk that the directions would confuse the jury. Such confusion is particularly likely when the judge leaves manslaughter as an alternative to reckless murder. The judge should generally resolve this situation by directing on one form of manslaughter the jury can understand and apply (R v Windsor [1982] VR 89; R v Edwards [2009] SASC 233).
  67. In determining which form(s) of manslaughter to leave to the jury, the judge should consider whether there is a practical prospect of the jury reaching different conclusions on the two forms of manslaughter, and whether omitting a form of manslaughter may prejudice the prosecution or the accused (R v Windsor [1982] VR 89).

    Manslaughter as an accessory

  68. The obligation to leave a viable case of manslaughter to a jury as an alternative to a charge of murder includes an obligation to instruct the jury on appropriate forms of accessorial liability for manslaughter (R v Makin (2004) 8 VR 262. See also R v Panozzo [2007] VSCA 245; R v Nguyen (2010) 242 CLR 491).
  69. Judges must be careful to only leave appropriate forms of accessorial liability to the jury. Leaving an inappropriate form of accessorial liability may deprive the accused of an opportunity of being acquitted of murder and convicted on a form of manslaughter that is reasonably open on the evidence (R v Makin (2004) 8 VR 262. See also R v Panozzo [2007] VSCA 245). See Part 5: Complicity for information concerning the different forms of accessorial liability.

    Manslaughter and Unanimity

  70. In some cases it may be necessary to direct the jury that they must be unanimous about a particular matter (in addition to being unanimous about whether or not the accused is guilty of manslaughter).
  71. In addressing this issue, a distinction is drawn between three types of cases:
    1. Those in which alternative legal bases of liability are proposed by the prosecution;
    2. Those in which alternative factual bases of liability are proposed by the prosecution; and
    3. Those in which one offence is charged, but a number of discrete acts are relied upon as proof, any of which would entitle the jury to convict (R v Walsh (2002) 131 A Crim R 299; R v Klamo (2008) 18 VR 644; R v Cramp (1999) 110 A Crim R 198).
  72. While a specific unanimity direction will not be required in the first type of case, such a direction will be necessary in the second and third types. For more information on this topic and sample charges, see Unanimous and Majority Verdicts.

    Murder, Manslaughter and Self-Defence

  73. Where manslaughter is left as an alternative to murder and the issue of self-defence arises, the jury may need to consider self-defence separately for each offence. The fact that the jury excludes self-defence as a defence to murder does not invariably mean that they must also exclude it as a defence to manslaughter (R v Bednikov (2000) 95 A Crim R 200; R v Fragomeli [2008] SASC 96).
  74. The judge may therefore need to address the issues concerning self-defence that arise in relation to murder and manslaughter separately. In doing so, the judge should bear in mind that:

    Notes

[1] While provocation has been abolished as a partial defence to murder (Crimes Act 1958 s3B), it remains available as a partial defence for offences alleged to have been committed prior to 23 November 2005.

[2] The outer limits of what is classified as an "unlawful act" are uncertain. In R v Pullman (1991) 25 NSWLR 89, Hunt CJ (Campbell and Newman JJ concurring) held that a breach of a statutory or regulatory prohibition alone is not sufficient to constitute an unlawful act, and the act must be unlawful for some reason other than the breach. However, in R v Borkowski [2009] NSWCCA 102, Simpson J (McClelland CJ at CL and Howie J not deciding) expressed reservations about that distinction, given the need for the act to be both unlawful and dangerous.

[3] As an act will not be "unlawful" if the accused had a defence to the relevant offence, this includes charging the jury about any available defences.

[4] See Crimes Act 1958 s15.

[5] While the need to avoid the phrase "really serious injury" arises due to the risk of confusion between the tests for murder and manslaughter, the meaning of dangerousness does not vary depending on whether or not manslaughter is left as an alternative to murder. References in R v Lavender (2005) 222 CLR 67 to the test being a risk of "really serious injury" were not intended to change the law from Wilson v R (1992) 174 CLR 313 (DPP v Singleton (2010) 29 VR 351; [2010] VSC 428).

[6] The accused’s state of mind may, however, be relevant for certain defences, such as self-defence and emergency (see R v Edwards [2009] SASC 233).

[7] The risk of confusion between recklessness and dangerousness is particularly acute where the directions on the two topics are separated by intervening matters, such as evidentiary directions and adjournments (R v TY (2006) 12 VR 557).

[8] It was once thought that there was an additional form of manslaughter by concert ("Markby manslaughter"), which applied where a party to an agreement caused the death of the victim by acts which a reasonable person would have realised were a possible consequence of an agreement. It is now understood that this is not an available form of accessorial liability, and that liability for acts that are outside the scope of the agreement depends on the principles of extended common purpose (R v PDJ (2002) 7 VR 612; R v Hartwick, Hartwick & Clayton (2005) 14 VR 125).

Last updated: 29 June 2015

In This Section

7.2.2.1 - Charge: Manslaughter by Unlawful and Dangerous Act (Principal Offence)

7.2.2.2 - Charge: Manslaughter by Unlawful and Dangerous Act (Alternative to Murder)

7.2.2.3 - Checklist: Manslaughter by Unlawful and Dangerous Act

See Also

7.2 - Homicide

7.2.1 - Intentional or Reckless Murder

7.2.3 - Negligent Manslaughter

7.2.4 - Defensive Homicide

7.2.5 - Culpable Driving Causing Death

7.2.6 - Dangerous Driving Causing Death or Serious Injury