What Is Involuntary Manslaughter?

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Melbourne Freeway

Melbourne trucking company manager Simiona Tuteru is currently facing four charges of manslaughter in relation to the deaths of four police officers who were killed when they were run over by truck driver Mohinder Singh in April 2020 on Melbourne’s Eastern Freeway.

Mr Singh was found to have been driving the truck while he was intoxicated on crystal methylamphetamine, or ‘ice’.

He has already been tried on charges of culpable driving causing death, drug trafficking and drug possession. He was found guilty and sentenced to a full term of 22 years in prison .

Mr Tuteru’s case is still before the courts. The manslaughter charges arise from allegations he knew his employee was intoxicated but allowed him to drive regardless.

The offence of manslaughter in New South Wales

Manslaughter is an offence under section 18(1)(b) of the Crimes Act 1900 (NSW) which, under section 24 of the Act, carries a maximum penalty of 25 years in prison.

Subsection 18(1)(b) of the Act makes clear that “[e]very… punishable homicide… [other than murder] shall be taken to be manslaughter.”

Unlike the offence of murder, manslaughter does not require the prosecution to prove reckless indifference to life or an intent to kill or cause grievous bodily harm.

Categories of manslaughter

There are at three broad categories of manslaughter in New South Wales:

  1. Manslaughter by unlawful and dangerous act,
  2. Manslaughter by criminal negligence, and
  3. Manslaughter by excessive self-defence.

The first two categories amount to involuntary manslaughter, while the third is a form of voluntary manslaughter which can arise due to provocation, substantial impairment and excessive self-defence.

Here’s an outline of the first two categories.

Manslaughter by unlawful and dangerous act

Manslaughter by unlawful and dangerous act does not involve an intention to kill the other person.

However, the unlawful and dangerous act that results in the death of another must be a wilful action carried out by a person voluntarily. In addition to this, a reasonable person would have had to have realised the act was exposing the deceased to the risk of injury.

In order to be found guilty of involuntary manslaughter by way of an unlawful and dangerous act, the prosecution must prove beyond reasonable doubt that:

  1. A person was killed,
  2. The death was caused by an act of the defendant,
  3. The defendant intended to commit the act that caused the death,
  4. The act was unlawful, and
  5. The act was dangerous.

The ‘dangerous and unlawful act’ must be one that a reasonable person in the position of the defendant would have appreciated as exposing another or others to the risk of serious injury; Wilson v The Queen (1992) 174 CLR 313.

Manslaughter by criminal negligence

Manslaughter by criminal negligence is also where there is no intent to kill.

It is a conscious act which entails such reckless disregard of the standard of care and high risk of injury that it merits criminal punishment.

To establish the offence of involuntary manslaughter by criminal negligence, the prosecution must prove beyond reasonable doubt that:

  1. The defendant owed a legal duty of care to the deceased,
  2. The defendant committed an act or omitted to do an act,
  3. The act or omission substantially caused or accelerated the death of the deceased,
  4. The act or omission breached the duty of care owed to the deceased, and
  5. The act or omission amounted to criminal negligence and deserved criminal punishment for the offence of manslaughter because:
  • it fell far short of the standard of care which a reasonable person would have exercised in the circumstances; and
  • involved such a high risk that death or really serious bodily harm would follow as a result of it.

In Lavender v The Queen (2005) 222 CLR 67, the High Court found that the degree of negligence must be at least as high as recklessness.

Past examples of manslaughter by criminal negligence

Australian courts have been loath to impose positive obligations on individuals when it comes to assisting others.

However, they have found that liability for manslaughter may arise in the following situations.

  • Where the defendant had a legal obligation to care for the deceased – eg was a parent or carer – and failed to do so; Russell[1933] VLR 59.
  • Where the defendant assumed a duty of care towards a helpless person and secluded them so as to prevent others from rendering assistance; Stone and Dobinson [1977] 1 QB 354, Taktak (1988) 14 NSWLR 226.

Currently before the courts

A manslaughter case currently before the courts involves the fatal shooting of an indigenous man in custody.

An inquest into the death of Wiradjuri man Dwayne Johnstone last year resulted in manslaughter charges being laid against the corrections officer who shot him.

CCTV footage shows that a warning shot was fired at Mr Johnstone who was running away, while shackled and handcuffed prior to the fatal shot.

The NSW Corrections Officer is the first man to be charged over an Indigenous death in custody.

What penalties are actually handed-down by the courts for manslaughter?

As stated, the maximum penalty for manslaughter is 25 years in prison.

However, statistics published by the Judicial Commission of New South Wales suggest that the median full term of imprisonment for persons convicted of manslaughter is 9 years.

The median non-parole period is 6 years. A non-parole period is the minimum term a person is required to spend behind bars before they are eligible for release into the community on parole – which is a form of supervised release.

98.2% of people convicted of manslaughter were sent to prison, while the remaining 1.8% received community correction orders.

Charged with manslaughter?

If you or a loved-one has been accused of manslaughter, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a conference with a specialist criminal defence lawyer who is experienced in defending and winning manslaughter and murder cases.

Have a look through our recent case results for information about our exceptional track record of success in the most serious and complex criminal cases in Australia.

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