Manslaughter

Police Interview

The Police will interview you if they suspect you are guilty of Manslaughter. The Police interview is not the time or place for you to tell your side of the story or explain why you did or did not do something. The Police will have already conducted an investigation and gathered evidence which led them to believe you are responsible for someone’s death. Do not speak with the Police thinking that it is casual chat or that you can explain yourself.

If your explanation of events changes at a later stage the Prosecution will show your police interview to the jury as evidence that you are a liar and an unreliable witness. You must speak with a specialist Manslaughter lawyer as soon as you become aware of an allegation of Manslaughter.

Pleading Not Guilty

Specialist Manslaughter lawyers are experts in Criminal Law and are knowledgeable at running trials. If you are facing trial for a charge of Manslaughter, it can be an extremely stressful time. It is important that you engage competent lawyers who know the best strategy to take in defending you against a charge as serious as this.

Many of our lawyers are accredited criminal law specialists and we have in-house counsel who can represent you in court. They have won many Trials through careful cross examination of witnesses. Our expert Manslaughter lawyers are meticulous in their preparation and will devise a defence strategy for you.

Pleading Guilty

Manslaughter is a serious charge, which will lead to a prison sentence. A strong plea in mitigation made on your behalf can make a huge difference to the sentence you receive. Our lawyers know how to prepare strong and persuasive pleas in mitigation.

We will work with you to gather supporting material to properly inform the Court. We can help you obtain medical and psychological reports. Our job is to craft all available material into a persuasive narrative that informs the Court about your personal circumstances and the circumstances of your offending.

Sentencing

Sentencing in the higher courts of Victoria

Which court will the case be heard in?

This offence is heard in the Supreme Court.

Examples of Manslaughter

• A babysitter places a 3-year-old child in a fenced pool area so that they can talk with their partner on the phone and not be bothered by the child. The child cannot swim. The child falls into the pool and drowns.
• The prosecution prove that a person is guilty of murder beyond reasonable doubt, however the defence also prove on the balance of probabilities that the accused caused the victim’s death pursuant to a suicide pact.

Legislation

Manslaughter is a common law offence and, as such, it is not written in a piece of legislation. The offence exists due to case law.

Elements of the offence

There are different offence elements for ‘Manslaughter by Unlawful and Dangerous Act’, ‘Negligent Manslaughter’ and ‘Manslaughter by suicide pact’.

Elements: Manslaughter by Unlawful and Dangerous Act

For an accused to be found guilty of Manslaughter by Unlawful and Dangerous Act, the prosecution must prove the following four elements beyond reasonable doubt¹:

1. The accused committed an act that caused the death of another person
2. The act was committed consciously, voluntarily and deliberately
3. The act was ‘unlawful’
4. The act was ‘dangerous’

Element 1: The accused committed an act that caused the death of another person
The prosecution must first prove that the accused committed an act which caused the victim’s death.² An accused’s conduct will cause a victim’s death if it ‘contributed significantly to that result’ or was a ‘substantial and operating cause’ of it.³

For offences that occur on or after 1 November 2014, a person’s action may cause a victim’s death if they punch the victim and injuries sustained as a result of the punch, but not the punch itself, lead to the victim’s death.⁴ This commonly occurs when a person punches another person and the victim falls and hits their head on the road or pavement, and the impact with the road or pavement, as opposed to the punch, causes the victim’s death.

“Did your act cause the victim’s death?”

Element 2: The act was committed consciously, voluntarily and deliberately
The prosecution must then prove that the accused acted consciously, voluntarily and deliberately.⁵ The prosecution need not prove that the accused intended to cause death or serious injury.⁶

Element 3: The act was unlawful
The prosecution must also prove that the act was unlawful, which means that the act was a breach of criminal law.⁷

Ordinarily the offence relied upon to prove unlawfulness will be assault. However, other offences such as attempted assault, robbery, burglary, unlawful administration of drugs and discharging a firearm in a public place have also been used as unlawful acts to support a manslaughter charge.⁸

An act will not be unlawful if the accused has a defence to the relevant offence, such as self-defence or duress.⁹ The prosecution is required to prove all the elements of the offence that they allege make the accused’s act unlawful.¹⁰

Element 4: The act was dangerous
The final element the prosecution must prove is that the act was dangerous. The test for ‘dangerousness’ is objective. A reasonable person in the position of the accused, performing the relevant act, must have realised that they were exposing the victim to an appreciable risk of serious injury.¹¹ Whether or not the accused realised that their act was dangerous is irrelevant for determining this element.¹²

‘Serious injury’ is an ordinary English term for a jury to determine. The statutory definition of ‘serious injury’ does not apply to manslaughter as it is a common law offence.¹³

A single punch or strike delivered to a person’s head or neck that results in an injury to the head or neck is taken to be a dangerous act.¹⁴

Elements: Negligent Manslaughter

For an accused to be found guilty of Negligent Manslaughter, the prosecution must prove the following elements beyond reasonable doubt¹⁵:

1. The accused owed the victim a duty of care;
2. The accused breached that duty by criminal negligence;
3. The accused committed the act which breached the duty of care consciously and voluntarily;
4. The accused’s breach of the duty of care caused the victim’s death.

Element 1: The accused owed the victim a duty of care
The accused must owe the victim a legal duty to care to satisfy the first element of this offence.¹⁶

Duty of care is a complex legal principle that can arise in different scenarios. Your expert Manslaughter lawyer will be able to ascertain whether you owe a duty of care to your alleged victim. Some of the situations where an accused will owe a duty of care are:

• Doing a dangerous act or being in charge of anything dangerous means an accused must take ordinary precautions to avoid harming other people.¹⁷
• Having a particular relationship with the victim, for example acting in a parental or carer role for a child or infant¹⁸ or living as domestic partners¹⁹;
• A statutory duty of care;
• A voluntarily assumed duty of care²⁰; or
• If the accused deliberately commits a wrongful act that places another person in danger.²¹

The extent of the duty of care will depend on the circumstances.

Element 2: The accused breached the duty by criminal negligence
The prosecution must then prove that the accused breached their duty of care by criminal negligence.²² Criminal negligence requires that the accused’s act or omission falls so far below the standard of care that a reasonable person would have exercised in the accused’s position, and involved such a high risk of death or serious injury, that the act or omission warrants criminal punishment.²³ Negligence that would satisfy civil liability will not necessarily amount to criminal negligence.²⁴

The nature of the duty of care may be relevant when determining the seriousness of the breach.²⁵

As the test for criminal negligence is objective, the prosecution does not need to prove that the accused intended to cause the victim death or serious injury, or that the accused knew that their conduct would result in death or serious injury.²⁶

The jury may take into account the victim’s conduct when determining whether the accused has breached their duty of care by criminal negligence.²⁷

Element 3: The accused committed the relevant act consciously and voluntarily
The prosecution must prove that the relevant act was committed voluntarily and consciously.²⁸

Element 4: The breach of the duty of care caused the victim’s death
The fourth and final element that the prosecution must prove is that the breach of duty of care caused the victim’s death.²⁹ An accused’s breach of their duty of care will cause’ a victim’s death if it ‘contributed significantly to that result or was a ‘substantial and operating cause’ of their death.³⁰

Elements: Manslaughter by Suicide Pact

An accused may be found guilty of manslaughter as an alternative to murder if the jury is satisfied that the prosecution has proven that the accused is guilty of murder beyond reasonable doubt; and the defence has proven, on the balance of probabilities, that the accused caused the death of the victim pursuant to a suicide pact.³¹

To prove that the accused caused the victim’s death pursuant to a suicide pact, a specialist Manslaughter lawyer must prove the following elements on the balance of probabilities³²:

1. That there was an agreement between the accused and the victim to commit suicide;
2. The accused’s acts that caused the death of the victim were committed pursuant to the suicide pact; and
3. At the time the accused caused the victim’s death, the accused had an intention of dying pursuant to the suicide pact.

An agreement the purpose of which is the death of all parties will be a suicide pact, regardless of whether each party to the agreement is to take their own life.³³

An accused must prove that a suicide pact existed. The accused cannot simply state that they had an honest and reasonable belief that a suicide pact existed.³⁴

Defences

Defences to this charge will ordinarily turn on some element of the offence not being made out. The elements for manslaughter are different for ‘Manslaughter by Unlawful and Dangerous Act’ and ‘Negligent Manslaughter’.

Defences: Manslaughter by Unlawful and Dangerous Act

• The accused did not commit the act consciously, voluntarily and deliberately;
• The act was not ‘unlawful’ or ‘dangerous’.

Defences: Negligent Manslaughter

• The accused did not owe the victim a duty of care;
• The accused did not breach any duty of care owed by criminal negligence;
• The accused did not act consciously and voluntarily;
• The breach of the duty of care did not cause the victim’s death;
• The accused acted in an emergency.³⁵

Other defences to both types of manslaughter include duress and self-defence.³⁶ An expert Manslaughter lawyer will consider all the circumstances related to the offending to determine which defence will be appropriate to the case.

Questions in cases like this

• Did the accused act consciously and voluntarily?
• Did the accused act unlawfully and dangerously?
• Was the accused a party to a suicide pact?

Maximum penalty and court that deals with this charge

The maximum penalty for manslaughter is 25 years imprisonment.³⁷

For manslaughter that took place prior to 10 June 2020, the maximum penalty is 20 years imprisonment.

There is a different maximum penalty for manslaughter by suicide pact. The maximum penalty for this offence is 10 years imprisonment.³⁸

Manslaughter is a Category 2 offence under the Sentencing Act 1991.³⁹ As such, the court must sentence an offender to a term of imprisonment if the offender was at the time of the offence at least 18 years old, and is found guilty. There are only very few exceptions to this rule whereby the court is not required to impose a sentence of imprisonment for manslaughter. These are if the offender has assisted or given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence,⁴⁰ or in certain circumstances of impaired mental functioning.

Manslaughter is a very serious offence that will almost always result in a significant term of imprisonment if you are found guilty.

Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a specialist Manslaughter lawyer.

Other important resources

• Sentencing Snapshot – Manslaughter
• Judicial College of Victoria – Manslaughter by Unlawful and Dangerous Act
• Judicial College of Victoria – Negligent Manslaughter
• Judicial College of Victoria – Manslaughter by Suicide Pact

 
_{[1] Judicial College of Victoria, ‘Manslaughter by Unlawful or Dangerous Act’, accessed 16/11/2018 <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4494.htm>.
[2] Aidid v R (2010) 25 VR 593
[3] Royall v R (1991) 172 CLR 378; R v Stein (2007) 18 VR 376
[4] Crimes Act 1958 (Vic) s 4A
[5] Ryan v R (1967) 121 CLR 205
[6] R v Haywood [1971] VR 755
[7] Wilson v R (1992) 174 CLR 313
[8] Withers v R (No 2) [2010] VSCA 151
[9] Boughey v R (1986) 161 CLR 10
[10] R v Stein (2007) 18 VR 376
[11] Wilson v R (1992) 174 CLR 313
[12] R v Holzer [1968] VR 481
[13] R v Vollmer [1996] 1 VR 95
[14] Crimes Act 1958 (Vic) s 4A(2)
[15] Judicial College of Victoria, ‘Negligent Manslaughter’, accessed 16/11/2018, <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4504.htm>.
[16] Nydam v R [1977] VR 430
[17] Callaghan v R (1952) 87 CLR 115
[18] R v Clarke & Wilton [1959] VR 645
[19] R v Reid [2010] VSCA 234
[20] R v Stone & Dobinson [1977] QB 354
[21] R v Reid [2010] VSCA 234
[22] Nydam v R [1977] VR 430
[23] R v Lavender (2005) 222 CLR 67
[24] Nydam v R [1977] VR 430
[25] R v Reid [2010] VSCA 234
[26] R v Lavender (2005) 222 CLR 67
[27] R v Cato [1976] 1 WLR 110
[28] Ryan v R (1967) 121 CLR 205
[29] R v Adomako [1995] 1 AC 171
[30] Royall v R (1991) 172 CLR 378, R v Stein (2007) 18 VR 376.
[31] Crimes Act 1958 s 6B(1A)
[32] Judicial College of Victoria, ‘Manslaughter by Suicide Pact’, accessed 16/11/2018, <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19166.htm>.
[33] Crimes Act 1958 (Vic) s6B(4)
[34] R v Iannazzone [1983]
[35] Crimes Act 1958 (Vic) s 322R
[36] Boughey v R (1986) 161 CLR 10
[37] Crimes Act 1958 (Vic) s 5
[38] Crimes Act 1958 (Vic) s 6B(1A)
[39] Crimes Act 1958 (Vic) s 5
[40] Sentencing Act 1991 s 5(2H(a))}