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

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When to use this charge

This charge should be used if manslaughter by unlawful and dangerous act is left as an alternative to murder, and the accused is alleged to be the principal offender.

The charge will need to be adapted if:

  • The charge is based on principles of accessorial liability; or
  • The jury must consider multiple bases of manslaughter.

If the accused is charged with manslaughter by an unlawful and dangerous act as the principal offence use Charge: Manslaughter by Unlawful and Dangerous Act (Principal Offence) instead.

 

Manslaughter

I must also direct you about the alternative offence of manslaughter. This is an alternative to the offence of murder. That means that you will only be asked to return a verdict on this offence if you are not satisfied that the prosecution has proved the offence of murder beyond reasonable doubt. If you decide that NOA is guilty of murder, then you do not need to deliver a verdict on this alternative.

To prove the offence of manslaughter, the prosecution must prove the following 4 elements beyond reasonable doubt:

One – the accused committed an act that caused the victim’s death.

Two –this act was committed consciously, voluntarily and deliberately.

Three – this act was unlawful.

Four – this act was dangerous.

I will now explain each of these elements in more detail. [1]

Cause of Death

The first element that the prosecution must prove is that the accused committed an act that caused the victim’s death. This is the same as the first element for murder.

[If this element is not in issue, add the following shaded section.]

In this case it is not disputed that NOA [identify unlawful act], and that doing so caused NOV’s death. You should therefore have no difficulty finding this element proven.

[If this element is in issue, add the following shaded section and the relevant additional section.]

To determine if this element has been proven, you must first determine whether NOA [identify unlawful act]. You must then determine whether that act caused NOV’s death.

[If the cause of death is not disputed, but the accused denies committing the relevant acts, add the following shaded section.]

In this case it is not disputed that [identify unlawful act] caused NOV’s death. However, the defence contends that NOA did not commit that act. For this element to be met, you must be satisfied, beyond reasonable doubt, that it was NOA who [identify unlawful act].

[Summarise relevant evidence and arguments.]

[If cause of death is in issue because of multiple possible causes (whether combined or competing), add the following shaded section.]

In this case you have heard evidence that NOV’s death [resulted/may have resulted] from a number of [describe basis of uncertainty, e.g. possible, competing, inconsistent etc.] causes. [Insert relevant evidence and causal explanations.]

The law says that for NOA’s acts to have caused NOV’s death, they do not need to have been the only cause of that result, or the direct or immediate cause. You may find that his/her acts caused the death if they were a substantial or significant cause of that result.

You should approach this question in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

[If this element is in issue for another reason (e.g. there may have been an intervening act or the victim’s own acts could have caused his or her own death) insert appropriately adapted sections from Charge: Intentional Murder here.]

Voluntariness

The second element that the prosecution must prove is that the accused committed the relevant act consciously, voluntarily and deliberately. This is the same as the second element for murder. I have already explained the legal meaning of these terms.

[If this element is not in issue, add the following shaded section.]

In this case there is no issue that [if/when] NOA [describe alleged unlawful act, e.g. "punched NOV"] s/he did so consciously, voluntarily and deliberately, so you should have no difficulty finding this element proven.

[If voluntariness is in issue, add the following shaded section.]

In this case the defence argued [2] that the prosecution has failed to prove that [identify alleged unlawful act] was [select term(s), e.g. conscious, voluntary, deliberate].

The defence submitted that that act was committed [describe and discuss the relevant form of involuntary conduct raised as an issue in the trial, such as accident; reflex acts; physically compelled acts; acts performed in an automatic state.] The prosecution denied that this was the case. [Summarise relevant prosecution arguments and/or evidence.]

[If the act on which the jury must focus differs from that in relation to murder, add the following shaded section.]

While this element is the same as the second element of murder, the act you must examine is different. For murder, the prosecution argued that [describe relevant act for murder] was conscious, voluntary and deliberate. In contrast, for the offence of manslaughter, you must determine whether [describe relevant act for manslaughter] was conscious, voluntary and deliberate. That is a different act and therefore your findings on this element may be different.

It is for the prosecution to prove, beyond reasonable doubt, that NOA was acting consciously, voluntarily and deliberately when s/he committed the relevant act. If you are not satisfied that that was the case, then you must find NOA not guilty of manslaughter.

Unlawful Act

The third element the prosecution must prove is that the relevant act was unlawful. That is, the prosecution must prove that NOA’s act that caused NOV’s death breached the criminal law and was committed without lawful excuse.

[If this element is not in issue, add the following shaded section.]

In this case, the relevant act is [identify relevant act, e.g., "punching NOV"]. It is not disputed that such an act is unlawful. That means that, if you find that NOA [describe relevant act, e.g. "punched NOV"], you should have no difficulty finding this element proven.

[If this element is in issue, add the following shaded section.]

In this case, the relevant act is [identify relevant act, e.g., "punching NOV"]. [3] The prosecution alleged that by doing so, NOA committed the crime of [identify alleged crime, e.g., "assault"].

To prove that NOA committed the crime of [identify alleged crime] — and so to prove that NOA committed an "unlawful" act — the prosecution must prove [instruct jury on all elements of the relevant offence, [4] including the mental elements].

[If any defences are in issue, insert any relevant directions here and explain any differences between the defences for murder and manslaughter.]

[Summarise prosecution and defence evidence and arguments.]

Dangerousness

The fourth element the prosecution must prove is that the alleged unlawful act was dangerous.

[If the prosecution relies on the conduct being deemed dangerous under Crimes Act 1958 s4A, add the following shaded section]

I direct you that, if you are satisfied that NOA’s relevant act was a single punch or strike to the head or neck which, by itself, caused injury to the head or neck, then as a matter of law, that act is dangerous and this fourth element is proved.

For this purpose, the law defines an injury to the head or neck as a physical injury or harm to mental health, whether temporary or permanent. [5]

[If the prosecution relies on the conduct being dangerous at common law, add the following shaded section]

[If the prosecution relies on both deemed dangerousness and common law dangerousness, add the following shaded section]

If you are not satisfied that NOA’s relevant act was a single punch or strike which, by itself, caused injury to NOV’s head or neck, then you must determine whether his/her conduct was dangerous in accordance with the following directions.

The word “dangerous” has a technical legal meaning. An act is dangerous if a reasonable person, in the position of the accused, would have realised that s/he was exposing the victim to an appreciable risk of serious injury.

This is an objective test. That means that the prosecution does not need to establish that NOA realised that what s/he was doing was dangerous. What matters is what a reasonable person of ordinary strength of mind in his/her situation would have realised. [6] If a reasonable person in that situation would have realised that s/he was exposing the victim to an appreciable risk of serious injury, then this element will be satisfied.

[If the jury have been directed on reckless murder, explain the difference between recklessness and dangerousness]

When I say "serious injury", I am not using a technical legal phrase. These are ordinary English words, and it is for you to determine what this phrase means to you as jurors. I note, however, that it is a lower level of harm than is required for the third element of murder, where the prosecution must establish that the accused intended to cause death or really serious injury. [7]

[If there is an issue about the difference between injury and serious injury, adapt the direction on the meaning of “serious injury” from Charge: Intentionally Causing Serious Injury.]

The prosecution argued that this element is satisfied because [summarise relevant prosecution evidence and arguments]. In response, the defence say [summarise relevant defence evidence and arguments].

It is for you to determine whether the prosecution has proven, beyond reasonable doubt, that the accused’s acts were dangerous, in the way that I have described. If they have, then this fourth element will be met.

Relate Law to the Evidence

[If not previously done, summarise the evidence and relate the law to the evidence.]

Summary

To summarise, if you unanimously agree that NOA is not guilty of murder, then you will be asked to return a verdict on the offence of manslaughter. Before you can find NOA guilty of manslaughter the prosecution must prove to you beyond reasonable doubt:

One — that NOA committed an act that caused NOV’s death; and

Two — that that act was committed consciously, voluntarily and deliberately; and

Three — that that act was unlawful; and

Four — that that act was dangerous.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of manslaughter.

 

Notes

[1] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven."

[2] If the defence did not raise the issue of voluntariness, but it arises on the evidence, this section will need to be modified accordingly.

[3] If there are multiple acts of the accused that may have caused the victim’s death, this element must be modified to require the jury to consider the unlawfulness of the act they found to be a cause of the victim’s death.

[4] Although not clear, it seems that only mens rea offences can fulfil the ‘unlawfulness’ criteria. See Manslaughter by Unlawful and Dangerous Act for further information.

[5] In cases where the meaning of injury and its operation in the case is not in issue, the judge will need to consider whether to give this definition of injury.

[6] If the reasonable person must be imbued with particular knowledge or characteristics of the accused, add "In this case, the reasonable person is [describe relevant facts or attributes which apply to the reasonable person]."

[7] If reckless murder has been left to the jury, add "or knew that his/her acts would probably cause such harm".

Last updated: 17 November 2014

See Also

7.2.2 - Manslaughter by Unlawful and Dangerous Act

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

7.2.2.3 - Checklist: Manslaughter by Unlawful and Dangerous Act