Criminal Law and Procedure Notes
17
• accused was living with his mother/late wife
• she had acute angina and serious health problems
• he was her primary carer
• he strangled her in her sleep and said she had asked him to do it
• court found guilty of murder because his depression and anxiety was not enough for
him to not be able to tell the difference between right and wrong
Cavanough (2007) NSWSC 561
• offender an indigenous women, alcohol and drug dependent, sexually abused
• stabbed partner in the arm, who later died
• found guilty of manslaughter because jury believed she did not intend to kill or cause
grievous bodily harm
• did not believe she was provoked
• and they did not believe the offender had lost her self control as to not know right
from wrong, even though she was suffering from a depressive disorder
Burden of proof
• S 23A, the onus is on the accused (balance of probabilities) to prove
I. INVOLUNTARY MANSLAUGHTER: UNLAWFUL AND
DANFGEROUS ACT
Involuntary manslaughter involves cases where the accused does not have the necessary
mens rea for murder (or even any mens rea at all), but is still regarded as sufficiently
blameworthy to justify criminal punishment.
The two major categories of involuntary manslaughter are:
1. Unlawful and dangerous act manslaughter; and
2. Negligent manslaughter (which includes negligent manslaughter by omission).
Unlawful and dangerous act (sometimes known as battery manslaughter)
Elements:
1. Act causing death (cannot be an omission Lowe (1973) 1 QB 702)
2. Unlawful act: criminal law and mere statutory prohibitions e.g. speeding
3. Dangerous: reasonable person to an appreciable risk of serious injury
• Wilson (1992) 174 CLR 313 defined it as the killing of a man in the course of
committing a crime is manslaughter. The crime must be an act in serious breach of
the criminal law
