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7.2.3.1 - Charge: Negligent Manslaughter

Click here to obtain a Word version of this document for adaptation

 

This charge should be used if the accused is charged with negligent manslaughter by a positive act.

The charge will need to be adapted if:

  • The charge is based on principles of accessorial liability;
  • The jury must consider multiple bases of manslaughter;
  • The charge is left as an alternative to murder;
  • The charge is based on a negligent omissions.

 

I must now direct you about the crime of manslaughter. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - that the accused owed the victim a duty of care.

Two - that the accused breached that duty by being criminally negligent.

Three - that the act which breached the duty of care was committed consciously, voluntarily and deliberately.

Four, that the breach of duty caused the victim’s death.

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

Duty of Care

The first element that the prosecution must prove is that the accused owed the victim a duty of care.

The law imposes a duty [describe class of persons covered by the duty and the content of the duty, [2] e.g. "on a parent to provide for the welfare of his/her child" or "on a person who is doing a dangerous act to take ordinary precautions to avoid harming others"].

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

It is not disputed that NOA owed a duty of care to NOV because [describe basis for the duty, e.g., "s/he was his/her parent"]. You should therefore have no difficulty finding this element proven.

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

The prosecution argued that NOA owed NOV a duty because [describe basis for the duty and summarise prosecution evidence and/or arguments]. In response, the defence argued that [summarise relevant defence evidence and/or arguments].

I direct you as a matter of law that if you are satisfied beyond reasonable doubt that [describe findings of fact required to establish the duty], then NOA owed NOV a duty to [describe content of the duty]. If you are not satisfied that this was the case, then you must find NOA not guilty of manslaughter.

Criminal Negligence

The second element that the prosecution must prove is that the accused breached the duty of care by being criminally negligent.

A person acts with "criminal negligence" if his/her acts fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of death or really serious injury, that it deserves criminal punishment.

This requires you to compare NOA’s conduct with the "standard of care" that a reasonable person would have exercised in the circumstances. Precisely what that standard would have been is for you to decide, taking into account all of the circumstances, such as [describe relevant factors].

This is an objective test. That means that the prosecution does not need to establish that NOA intended to cause death or really serious injury or that s/he realised that his/her conduct was negligent. What matters is what a reasonable person in his/her situation would have known and done.

For this element to be met, you must find that the reasonable person in the accused’s situation would have realised that his/her conduct created a high risk of death or really serious injury. You must also find that, when compared against the standard of care that a reasonable person would have exercised in the circumstances, NOA’s conduct fell so far short that it deserves criminal punishment.

In making your determination, you should consider the reasonable person to be the same age as the accused, to have any specialised knowledge and experience the accused had, and to be of ordinary strength of mind. In particular, [describe characteristics of the accused that are relevant to the reasonable person, including training and experience].

[If there are qualities of the accused that are not relevant, add the shaded section below.]

However, the reasonable person is not [describe any adverse traits of the accused that are irrelevant, such as intoxication, concussion or carelessness].

In considering this question, remember that people do not always act perfectly. Even the most careful person can occasionally lose attention for a moment, or make minor mistakes. This offence is not concerned with minor breaches of the expected standard of care, even if they result in someone being hurt. While that might establish negligence in a civil case, it is not sufficient to establish guilt in a criminal case. For a person to be guilty of negligently causing serious injury, more is required – NOA’s conduct must have been "criminally negligent".

[Summarise relevant evidence and/or arguments.]

Voluntariness

The third element that the prosecution must prove is that the accused’s act which breached the duty of care was committed consciously, voluntarily and deliberately. These words each have a special meaning in law, which I will briefly explain.

The term "conscious" excludes the acts of an unconscious person, such as a sleepwalker, or a person rolling over in bed.

The term "voluntary" directs you to the requirement that the act which killed the deceased must be a "willed" act, that is, one resulting from the control by the accused of his/her own actions. This excludes the acts of a person operating in one of a number of rare mental states where the mind loses control of the body’s actions.

The term "deliberate" excludes accidental acts, such as the consequences of falling over or fumbling an item.

[If the case involves an accident and the element is not in issue, add the following shaded section.]

In this case, you have heard [counsel / witnesses] describe the [describe relevant event, e.g. ‘death of NOV’] as an accident. For the purpose of this third element, you must look at [describe relevant voluntary act, e.g. ‘whether the accused took proper safety precautions’], rather than [describe relevant accident, ‘whether NOV falling through the roof was an accident’]. There is no issue that [if/when] NOA [describe alleged breach of the duty of care] s/he did so consciously, voluntarily and deliberately, so you should have no difficulty finding this element proven.

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

There is no issue that [if/when] NOA [describe alleged breach of the duty of care] 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.]

The defence argued [3] that the prosecution has failed to prove that [describe alleged breach of the duty of care] was [select term(s), e.g. conscious, voluntary, deliberate].

The defence submitted that this breach was committed [describe and discuss the relevant form of involuntary conduct raised as an issue in the trial, such as 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.]

It is for the prosecution to prove, beyond reasonable doubt, that the act which breached the duty of care was committed consciously, voluntarily and deliberately. If you are not satisfied that this was the case, then you must find NOA not guilty of manslaughter.

Cause of death

The fourth element that the prosecution must prove is that the accused’s breach of the duty of care caused the victim’s death.

For this element to be met, you must determine whether any criminal negligence you found for the purpose of the second element was a substantial or significant cause of NOV’s death. It does not need to be the only cause, or the direct or immediate cause.

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.

[Summarise relevant evidence and/or arguments.]

Summary

To summarise, before you can find NOA guilty of manslaughter the prosecution must prove to you beyond reasonable doubt:

One — that NOA owed NOV a duty of care; and

Two — that NOA breached that duty of care by being criminally negligent; and

Three — that the act which breached the duty of care was committed consciously, voluntarily and deliberately; and

Four — that NOA’s breach of the duty caused NOV’s death.

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] See Negligent Manslaughter for information concerning the people to whom the accused owes a duty of care and the content of the duty.

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

Last updated: 3 December 2012

See Also

7.2.3 - Negligent Manslaughter

7.2.3.2 - Checklist: Negligent Manslaughter