LAWS 1022 Criminal Laws

Transcription

1 Semester LAWS 1022 Criminal Laws UNSW

2 Chapter 5 - Homicide: Murder and Involuntary Manslaughter Legal Framework Crimes Act > s18 -> murder -> relies on the heads of intent to kill. Cause GBH or reckless indifference to human life Constructive murder in Coleman -> death caused by an act done in an attempt to commit, or during or immediately after the commission of, a crime punishable by imprisonments for life or for 25 years -> GBH is defined in s4 of Crimes Act Manslaughter is completely undefined and must turn to common law there are 2 categories of involuntary manslaughter: manslaughter by an unlawful and dangerous act Causation Law of homicide demands a consequence = death Most a person can be held criminally liable for if they fail to bring about death is an attempt -> need to be proof of actual intent to kill (Knight (1992)) Murder and involuntary manslaughter Distinction between murder and involuntary manslaughter is drawn in terms of means rea-> murder required proof of malice aforethought -> all the state of minds that constitute sufficient mens rea for murder o Reckless indifference requires foresaw probability of death Involuntary manslaughter -> liability is not absolute -> turns on what jury would impute to a reasonable person if placed in accused s position. Would they have expected it to happen? o Objective standards used for both manslaughter by unlawful act and crim neg o Accused foresaw the possibility of death occurring o Set the lowest threshold, below is realm of non-criminal + accidental homicide Murder emphasises the actual state of mind of the defendant at the time of the acts causing death as relevant criterion -> reflect general positions in relation to common law offences Over simplified to determine the culpability by saying those who intend to kill are necessarily the most culpable, e.g. mercy killing of terminally ill relative Constructive Crime Constructive murder -> if act or omission casing death was done in attempt to commit, or during, or immediately after commission by the accused or some accomplice with him of a crime punishable by imprisonment for life or for 25 years Voluntary manslaughter Defences such as self defence produce a not guilty verdict, BUT other partial defence reduce the offences from murder to manslaughter Jury agreed that accused met mens rea BUT other circumstances mitigating culpability such as provocation, substantial impairment, excessive self defence and infanticide Historical aspects Conceptions of criminal homicide have changed fundamentally over time Wilson (1992) o Common law of homicide began with the principle that all who cause death, whether intentionally or accidentally are liable to conviction for murder 2

3 o o o o Homicide was culpable if the death occurred during commission of unlawful act 16 th century culpable homicide was thought of as single undivided offence and judge were concerned with distinguishing between culpable homicide and what was covered by such defences such as self defence and misadventure Emergence of manslaughter as an offence separate from and lesser than murder marks beginning of an approach that causing death is innocent unless additional factors -> but Coke maintained that the unavailability of the plea per infortunium meant that the killing was murder Unlawful and dangerous act was not a rationale or basis for liability but a factor negativing a defence which otherwise was available to cut down what approached strict liability for causing death Suicide S31A of Crimes Act 1900, no longer a criminal offence for a person to attempt to commit suicide but it s an offence of aiding and abetting suicide under s31c Protecting the foetus Violence to a foetus which causes its death in utero does not amount to murder or manslaughter because a foetus is not treated as a human being Where the foetus does not survive an attack, NSW CCA has held that this still constitutes GBH to the pregnant woman even where no other harm is cause to her (King(2003)) If child is born alive but dies because of earlier violence inflicted while it was still in the womb, this can constitute criminal homicide (F (1993)) S20 of Crimes act 1900 defined child shall be born alive if it has breathed and has been wholly born into the world o Any sign of life after delivery is sufficient to satisfy the common law rule (Iby [2005]) Prosecution Process When murder is charged, there s always alternative verdict of manslaughter available to jury A possible approach which could be taken by police -> when deciding initial charge DPP simply charge murder and leave question of whether the accused is guilty or lesser offence of manslaughter to trial judge and jury Charged with murder might be more likely to contest the charge by pleading not guilty, and seeking convictions of the lesser charge of manslaughter o Great disparity between sentences for murder and manslaughter, greater the likelihood that those charged with murder will contest the charge Sentence Before the Crimes (Homicide) Amendment Act 1982, sentence for murder was a mandatory one of life imprisonment where manslaughter is maximum of life imprisonment Following the enacted in 1982, position in certain limited circumstances the trial judge sentencing a murderer had a discretion to give a sentence other that life imprisonment In Crimes (life Sentence) Amendment 1989, 2 stage process set up by the 1982 legislation was abandoned, decision on whether to order life sentence on conviction for murder was left to the discretion of the trial judge o Sentence for manslaughter was reduced from life imprisonment to 25 years Non-parole periods Standard non parole period for murder is 20 years raised to 25 in some instances where victim is a police officer or under 18. Non parole period is the period during which an offender must be detained and cannot be released on parole 3

4 Sentencing judge has a broad discretion to exercise, it is not a standard form of mandatory sentencing (Way (2004)) if reasons to differ just record its reasons Objective behind establishing standard non parole was to make sentencing more consistent and transparent BUT underlying aim to increase sentences No standard non parole period is specified for manslaughter because range of culpability is so broad, may enhance inducement to those murder accused to contest charge Interconnected Issues Homicide trial are rarely single issue proceedings -> prosecution may have alternative pathways to convictions whereas defence may argue accuse is not guilty of manslaughter thus necessary for judge to direct jury on difference manslaughter vs non-criminal homicide Working on different versions of what took place,, jury must decide what facts the prosecution has proved beyond a reasonable doubt Role of the appeal court is to ascertain whether the trial judge gave a correct direction on the law in relation to each and every possible version of the facts Trial judges have to discuss whole range of possible alternatives because unaware of whose version of the fact jury will accept Intent and Reckless Indifference Crabbe (1985) o Facts: he drove a road train, consisting of a prime mover and 3 trailers. He visited inland motel and drank in a crowded car. His behavior in the bar caused nuisance and annoyance and thus he was physically ejected from the bar. He then drove the vehicle through the wall and into the bar, 5 persons died and many injured o HELD: APPEAL DISMISSED If he blinds himself to the possibility so to speak, well he cannot hide behind that. He cannot say that hiding behind his lack of actual knowledge Majority of full court held that jury was misdirected, assuming doctrine of willful blindness Erroneous to refer to the foresight of a possibility rather than probability Fails to mention any elements of deliberation t suggests that person should be treated as having knowledge of facts if he neglects to take reasonable steps. Conduct of a person who does an act, knowing he death or grievous bodily harm is a probably consequence, can naturally be regarded for the purpose of criminal law as just as blameworthy as the conduct of one who does an act intended to kill to do grievous bodily harm OR a person who does an act knowing its probably consequences may be regarded as having intended those consequences to occur Settled law in Australia a person who without lawful justification or excuse does an act knowing that it is probably that death or GBH will result is guilty of murder if death in fact results Act may be lawful that is justified or excuse by law, e.g. surgeon performing a hazardous but necessary operation, for its social purposes and utility. Foresight of circumstances is irrelevant, test simple is whether accused Peron know his action would probably cause death of GBH R v Caldwell a person cannot in any intelligible meaning of the words, close his mind to a risk unless he first realizes that these is a risk, and if he realizes that there is a risk that is the end of matter 4

5 Application of Crabbe in NSW Royall (1991) held that mens rea for mens rea for murder at common law should apple equally to the interpretation of reckless indifferent to human life in s18 of Crimes Act o Prosecution to prove that accused foresaw the probability of death In NSW, the defendant who is recklessly indifferent to serious bodily harm and not to death itself will be guilty to manslaughter rather than murder One consequence is in trials, in NSW, need to direct jury on intent to cause GBH, which is clearly a head for murder, will have to carefully distinguish between intent and reckless indifference. Probabilities and Possibilities Boughey (1986) o Facts: doctor was convicted of murder. He had killed the deceased by applying manual pressure to her neck. B claimed that the application of pressure to the carotid arteries in the neck was a technique of sexual arousal that he had practiced on other occasions with the deceased and other women in consent Mason Wilson and Deane JJ equating likely with probable and went on to trial judge s direction contained helpful guidance for jury about the expression likely to cause death His honour was correct in introducing an added requirement, attempted to calculate, degree of mathematically probability that his acts was.. more likely or not or an odds on chance Gibbs J agreed, likely meant probably not possible, in particular the judge ought not to refer to such matters as odds on chance or more than 50% chance BUT trial judge shouldn t elaborate beyond words of legislation Brennan J agreed but dissented, held there was a misdirection by trial judge. There was real difference between asking whether death was known to be probably and asking whether the defendant known to be probably and asking whether defendant knew there was a good chance his act would cause death THIS drew line between foresight of probability vs foresight of possibility Faure [1999] o Facts: deceased died on the 4 th shot in a game of Russina roulette in which they had agreed to fire two shots at each other from 6 shot revolver in which there 1 bullet o HELD: probable as distinct from possibile but not likely meant a substantial, or real and not remote, chance whether or not it is more than 50% Annakin (1988) o Facts: milperra Massacre 2 rival bikie groups fought with each toher o HELD: likely to happen = event is doing to happen only on a matter of probability, may well result/may well happen = it could happen White, Eaves and Parker (1988) held that it is a misdirection to associate might well cause death directly with possibility rather than probability La Fontaine (1976) o Facts: after drink heavily, they had a quarrel and deceased locked the front door. L entered house by another door with rifle and loaded. Brothers tried to intervene but they were pushed away, deceased advance and L took step backwards and rifle was discharged killing the deceased. And said I am going to bloody put a hole in you L said his intent was to shoot near to his brother to scare him o HELD: 5

6 It doesn t matter that the accused did not intend the precise way in which the death actually occurred, provided one mental state for murder is present, causation is satisfied. I find it acceptable in relation to murder only if reckless indifference is to consequence, which is known to be probable, which is expected to occur. Reckless indifference to a consequence of death or serious bodily injury which is not expected to occur but which is appreciated may possibly occur in my opinion, properly treated as manslaughter. Constructive Murder Ryan [1967] o The generally accepted rule of the common law today is, however that an unintended killing in the course of or in connextion with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person. o Lanham 18 th century development doctrine that accidental killing in the course of felony was murder arose from a series od misunderstanding which involved relying on authorities which flatly contradicted the rule and failure to take account of authorities which undermined its function o Facts: the accused was robbing a store. He was pointing a gun, loaded and cocked towards a store attendant. Attendant made sudden movement, gun discharged in an alleged reflex movement. The accused argued that he did not intend to kill. o HELD: APPEAL DISMISSED The only intent which needs to be proved is the intent for the 'base crime' during which the death occurred. Besides that, there is the need to prove 'voluntariness' (an actus reus component, follow the link for more info). In this case, voluntariness was proved because of the chain of events leading up to the discharging (i.e., loading, cocking, pointing the gun). Menzies: ss18, 98 in my opinion, the effect of these sections so far as here relevant is that if Taylors death was caused by a bullet fired by accused, albeit accidentally while he was robbing Taylor, the accused was guilty of murder. Taylor and Owen JJ s98 could form the basis of constructive murder and did not require proof of an intent to wound. Munro (1981) o Facts: the accused entered the flat of an old man to steal things. He hurt the man causing him some injuries. The man died two days later from pneumonia, which was partly caused because of the injuries. The accused was charged with constructive murder and argued that there was no causal connection between his act and death. o HELD: there is no relevant requirement of the casual link between the felony relied upon as constituting the homicide one of felony murder and death other than stated in 18(1)(a) itself, that is to say the act of accused causing death was done during or immediately after the committing of a life sentence crime. Mind is a complete answer to the contention that there must be found to be some element of malice and hence some guilty mind linking the s96 offence over on the death Trial judge erred in that he should simply have directed the jury the Crown must prove that the act of accused directly caused the death I can see no basis for thus confining the scope of the causative link between act and the death 6

7 THE TEST IS: whether the injuries was an operative and substantially contributing cause of death Constructive murder and mens rea Under the doctrine of constructive murder, a conviction could be secured even if consequence was accidental. o The prosecution does not have to prove that the defendant realized that death or any other consequence was a possible result of his or her action o Or that reasonable person would have appreciated any such risk in arguing for a conviction or murder based on constructive malice. o Accused can only argue consequence was accidental and involuntary Base offence Law has been amended so that constructive murder is now based on the commission of an offence punishable with 25 years imprisonment for life or 25 years After Ryan, it is sufficient under s 98 for the prosecution to prove that the act causing a wound was voluntary. In other words, there is no mens rea requirement extending to this aspect of Actus Reus an accidental wounding is sufficient provided that it is voluntary Consequently the mens rea on which constructive murder is based is the means rea for the offence under s97 In Foster (1995) attacker produced a knife after he had snatched amphetamines, HELD: if the show of force did not take place until after the theft, offence of armed robbery (s98) would not have been committed and therefore could not form basis for constructive murder Manslaughter by Unlawful Act Involuntary manslaughter - this is where the defendant does not satisfy the sufficient mens rea for murder. o Further divided into two classifications: manslaughter by an unlawful & dangerous act, or manslaughter by criminal negligence Voluntary manslaughter - this is where the defendant has satisfied the mens rea for murder, but there were mitigating circumstances (ie, successful partial 'defences'). These include: o Provocation o Substantial impairment o Excessive self-defence o infanticide Subjective manslaughter - this is where the defendant only partially meets the requirements set by case law to reckless indifference to human life. This can occur in two ways: o The defendant foresaw the probability of grievous bodily harm as opposed to the probability of death (note: this is reckless murder in other Australian jurisdictions) o The defendant foresaw the possibility of death (as opposed to the probability) Wilson (1992) o Facts: W hit the deceased on the face, causing him to fall to the ground and to hit his head. W s companion then went through his pockets and smashed his head on concrete. The deceased died from brain damage and Crown suggested most likely cause of death was the fall from W s punch. Both W and his companion were charged with murder on the basis of the doctrine of constructive manslaughter. W was convicted of manslaughter. o HELD: 7

8 R v Franklin (1883) unlawfulness was not mey by act in question being no more than a civil wrong. R v Larkin [1943] required that the unlawful act be dangerous and that it be likely to injure. DPP v Newbury [1977] held the accused was guilty of manslaughter if he intentionally did an act that was lawful and dangerous and the act inadvertently caused death, that it was unnecessary to prove that the accused knew that act was unlawful or dangerous Mamote-Kulang v Queen (1964) death resulting from intentional infliction of pain by an unlawful blow could constitute manslaughter at common law R v Holzer circumstances must be such that a reasonable man in the accused s position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable of really serious injury Pemble the unlawful act was so obviously capable of causing GBH that the question of the degree of potential harm required to render an act dangerous did not arise for consideration Notion of manslaughter by the intentional infliction of some harm carries with it the consequence that a person may be convicted of manslaughter for an act which was neither intended nor likely to cause death Person may be held guilty of manslaughter for a death that was quite unexpected, whether the test applied in that respect is subjective or objective. Emphasis on really serious injury brings manslaughter perilously close to murder in this respect it is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury NARROWING OF DEFINITION OF MANSLAUGHTER Characteristics of a reasonable person Wills [1983] when looking at the circumstance in which the accused man s or reasonable man s a[[recitation of danger are to be assessed I would not for my part include the idiosyncrasies of the accused man or his ephemeral emotion or mental state. They are matters peculiar to him which would affect his judgment or danger but relevant judgment must be by definition the judgment of a reasonable man o Fullagar J: circumstances of the accused s situation which may be taken into account...cannot include which are calculated to influence the judgment of the actor himself as to whether the act was dangerous or not because that would be to bring into the equation a judgment by a man whose reason and judgment are in a morbid and clouded condition Unlawful Act Before the reasonable person test is triggered, prosecution must prove that there was an unlawful act. An act performed in self-defence is not an unlawful act. Downes (1985) defence of rescue could be made out Lamb [1967] jokingly pointed a revolver at his friend as a joke. 3 expert witnesses gave evidence that this was a natural mistake by somebody who was unaware of the mechanism worked. Gun discharged and defendant s friend was skilled o Manslaughter by an unlawful act was not triggered because there was no unlawful act: L did not have the mens rea for assault Excluded unlawful acts Even where a criminal offence is committed, it will not necessarily form the basis of unlawful act manslaughter 8

9 Pullman (1991) act amounts to a breach of statutory or regulatory prohibitions, such as traffic regulations does not for that reason alone make it an unlawful act on which a charge of unlawful act manslaughter can be based. Cramp [1999] case for manslaughter by unlawful act rested on argument that the accused had aided and abetted the deceased, 16 years old learner driver, to drive the accused s car dangerously and while she was under alcohol influence Lowe [1973] alleging cruelty to a child by willfully neglecting it so as to cause unnecessary suffering or injury o Distinction between an act of omission and an act of commission If, however, I omit to do something with the result that is suffers injury to health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence, even if omission is deliberate Administering Drugs There was a debate of whether drug offences constitute a sufficient unlawful act to found a manslaughter conviction. Cato [1976] and Dalby [1982] represent the two extremes: Cato was convicted administering a destructive or noxioius thing so as to endanger life s39 formed basis for unlawful act manslaughter, Dalby acquitted unlawfully supply a drug to the deceased. Current position: In the UK, the House of Lords held in Kennedy (No 2) that there cannot be a conviction where the administration of drugs was the result of voluntary and informed decisions by the deceased. o The Australian authorities applied a similar narrow approach in Wilhelm (the Diane Brimbles Case). It was not enough to prove that the accused administered the drug to the deceased and encouraged her to take it she needed to have her will overborne, and he had to be in a position of authority. Manslaughter by Criminal Negligence The underlying idea behind manslaughter by criminal negligence is that the act of the accused fell so short of the standard of care that a reasonable person (in such highly risky circumstances), that it actually merited criminal punishment. The main difference between manslaughter by criminal negligence to manslaughter by an unlawful act is that it is unnecessary to prove that the accused s act was unlawful. Nydam [1977] o Facts: The Defendant's [Nydam] relationship with the victim was deteriorating. After failing to persuade her to speak to him, he threw petrol over her and lit a a cigarette lighter. An explosion occurred and the victim died instantly o HELD: In this case, the direction of the trial judge to the jury did not properly state this test and therefore a new trial was ordered The test for manslaughter by criminal negligence is: Actus reus: act must be voluntary. Mens rea: an objective test of whether the reasonable man: o Would have appreciated a probability of death or grievous bodily harm, and o Whether the conduct of the accused fell well below that of the reasonable person. 'In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great 9

10 falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow'. Lavender [2005] o Facts: The Defendant [Lavender] drove a sand-loader in a desert. The area was covered by thick vegetation visibility was low. Some boys, who should not have been there, were playing in the area. To teach them a lesson, the Defendant chased after them in the sand-loader. He lost sight of the boys, but kept driving, and ended up driving over and killing one of them. After being convicted of manslaughter, the Defendant successfully appealed on the ground that the trial judge had erred in his failure to direct the jury on the need for the prosecution to prove malice. The prosecution appealed. o HELD: Malice is not an element of manslaughter. s 18 (which deals specifies malice) only deals with murder, leaving manslaughter defined by the common law. The court then examined some subsidiary issues relating to manslaughter by criminal negligence: There is no element which considers the defendant's opinion, because the test is objective. It would be unfair if the defendant was acquitted where s/he did not actually foresee the danger (ie, but reasonable person would). Accordingly, there is no defence of honest and reasonable mistake of fact, since that would make the standard subjective. Justifying the objective standard: someone who fails to foresee the consequences of their actions may still be culpable (Kirby J). The reasonable person possesses the same personal attributes as the defendant - the same age, having the same experience and knowledge, & the circumstances in which found him/herself. Nydam is reaffirmed. The concept of 'wickedly negligent' is affirmed (ie, that there had to have been such a high degree of negligence that it actually merited criminal punishment). Distinguishing manslaughter by an unlawful act Justification for relying on objective test of criminal negligence was if a subjective standard was used by crim neg, out of line manslaughter by unlawful act But if objective standard, manslaughters will become difficult to distinguish. Nydam in Lavender o For accused to be convicted of crim neg manslaughter, prosecution must prove that the intentional act of the accused causing death because it fell short of the standard of care that a reasonable person would have exercised where they would have appreciated a high risk that serious bodily harm would result o For accused to be convicted of manslaughter on basis of unlawful act the unlawful act must be reasonable person in accused position would have realized that they were exposing someone to an appreciable risk of serious injury Degree of Negligence Required Lavender [2004] emphasizes the importance of making it clear to juries that the rest in Nydam requires negligence to be of such a high degree that it merits criminal punishment o High court approved the use of adjective wicked to describe the high degree of negligence required. 10

11 Cittadini [2009] managing director of a company, which was engaged to construct a yacht but usually not significantly, engaged in yacht building. Contract was oral and no provisions relating to quality control, yacht failed at sea, crew members died. o No evidence as to who was responsible, no evidence that accused knew that it had been done, convicted manslaughter that CCA held that verdict of the jury was unreasonable: Level of supervision was inadequate so that the appellant breaches his duty much less to the criminal standard. Reasonable Person in the Position of the Accused Lavender, trial judge told jury reasonable person in the position of the accused possesses the same attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused and the circumstances in which he found himself Standard is not entirely objective but is a hybrid, stop at this subjectivising and must have ordinary fortitude and strength of mind which a reasonable person would have HC approved and said that it should taken into account the facts and cricustmanes known to the accused when applying the standards of the reasonable person Hukme J insisted that jury should have been directed to take into account the accused s beliefs as to what he referred to as primary factual matter Reasonable person s reaction must be considered in the context of any genuine mistakes made by the accused about primary factual matters which existed regardless of whether or not the mistakes are reasonable Sam and Sam (No 17) [2009] o Facts: the mother and father of a deceased child were charged with manslaughter for allowing their daughter s eczema to go untreated, from which she later died. The father was a homeopathic doctor who had practised in India before obtaining his licence in NSW. It is apparent he administered homeopathic remedies on his daughter, refusing allopathic cures. o Held: the judge told the jury that the 'reasonable person' in the father's position possessed the father's knowledge and practice in practice of homeopathy and medicine in India and Australia and his education, training, practice nad teaching of homeopathy in NSW. Justifying an objective standard Kirby J sought to justify the use of objective standard to determine liability for manslaughter o People of ordinary capacity who negligently cause an undesirable outcome may be open to blame notwithstanding the absence of subjective intention to produce that outcome o Person who intends to bring about an undesirable outcome or who is reckless as to the possibility of that outcome but proceeds anyway is more culpable that a person who negligently causes the same outcome o Overwhelming major cases of person who causes death by aggravated criminal negligence will be regarded as extremely blameworthy. The criminal law by fixing liability only on those who act with aggravated negligence confined liability to cases of very serious wrongdoing in circumstance of moral blame o There must be close correlation between moral culpability and legal responsibility. o Moral culpability is not the prerogative of the subjective test. Someone who fails to foresee the consequences of their actions may still be culpable. Deaths on the Road Offence of causing death by culpable driving, first introduced s52a of the Crimes Act

12 o Where death or GBH is caused to a person by the negligent driving of a motor vehicle by another reluctant to convict of the serious crime of murder or manslaughter or of doing GBH Jiminez (1992) - actus reus of the offence of causing death by driving at speed or in a manner dangerous to public is concerned prosecution has to prove as part of actus reus that the driving was danger to the public as a matter of objective fact Gillet [2006] irrelevant that the accuse did not know that he was suffering from sleep apnoea, condition that increase the risk of epileptic seizure which resulted in fatal collision Jminiez liability was strict, accused would be guilty of the offence unless they could successfully raise the excuse of reasonable mistake of fact o Mens rea for causing death by driving at a speed or in a manner dangerous to the public clearly demarcates this offence from manslaughter by criminal negligence o Only escape route if they can satisfy an evidentiary burden of showing that they had reasonable grounds for believing that the driving was not dangerous Corporate Homicide Early example 1978 Ford Pinto case -> 3 teenagers died after 1973 Ford Pinto burst into flames after minor rear end collision -> prosecutor argued official knew that petrol tanks would explode when struck from behind o Relevant legislations: a person engaged in conduct recklessly if they engaged ing eh conduct in plain, conscious and unjustifiable disregard of harm that might result and disregard involves a substantial deviation from accepted standards of conduct o Company was acquitted at trials after jury had deliberated for 25 hours Herald of Free Enterprise disaster 193 lives were lost after Herald of Free Enterprise left port with tis bow doors open -> inquiry suspected captain cert of competency for 1 year and chief officer watching door for 2 years -> Sheen J more specifically said company and its representatives failed to give serious consideration to a proposal that warning lights should be fitted Coroner expressed cannot combine several acts of neglect by different people -> them individually doesn t constitute gross negligence -> no evidence of manslaughter by company Need to show that those who represented the directing mind and will of the company the embodiment of the company itself were at fault (identification doctrine -> Tesco) -> applies to prosecution of corporations for manslaughter Mens rea cannot be based on aggregated fault different individuals in company Another way of approach if objective standard for manslaughter by criminal negligence why is search for directing mind and will of company relevant at all? Why not consider standard a reasonable company would have exercised? Coroner s jury brought verdict of unlawful killing of 187 deaths but not allowed to sheet responsibility home to any individual Townsend board was replaced and company was succeeded by P&O European Ferries, DPP sued all personnel related but halfway through Turner J directed prosecution be dropped for 5 of them and eventually last 2 were dropped too Wells argues that social perceptions of industrial and transport related deaths are accident rather than crimes, tendency of people to view homicide as act of interpersonal violence -> notion socially constructed Corporate Manslaughter In determining whether a corporation was negligent, its conduct could be view as a whole, aggregate the conduct of its officers and employees 12

13 There are two pathways for prosecuting corporate homicide in NSW: o The general criminal law offences (ie, manslaughter). o OHS offences (Occupational Health and Safety Act 2008, s 32A). General Criminal Law o For a finding of corporate homicide, it must be found that the people who represent the directing mind and will of the company, and control what it does, has been guilty of conduct amounting to homicide. o This is known as the identification doctrine, formulated by Denning LJ in Tesco Supermarkets Ltd v Nattrass [1972] and reaffirmed in Australia in AC Hatrick Chemicals Ltd (1995) o It involves a personification of the corporation the managers as the 'heads', the employees as the 'arms and legs'. o It rejects the 'aggregation principle', which involves looking at the total acts and policies of a company to see whether they fell short of the standard of care. Industrial Manslaughter Corporation charged with criminal negligence? -> corporate homicide saved from criminal justice system by definition of corporate actions leading to death as infringement of regulatory legislation Question of corporate manslaughter prosecutions for conventional industrial accidents is only likely to be an issue in a small number of cases Even though manslaughter offence is a response to workplace death -> broader question is how should highly hazardous environment be regulated to prevent harm Victorian case -> Denbo Pty Ltd & Nadenbousch -> someone died when the truck driver drove down a step and dangerous inclined and not warned and truck with faulty brakes o In sentencing, even though the company is in liquidation still set a fine -> substantial because it ought to be directed at achieving a generally deterring effect -> o Safety of employees must be given the highest possible priority by every employer. If it is not, the employer should have to pay dearly Hopkins argued that there is a culture of denial that existed enabled unwanted evidence to be dismissed even when there is warning signs. Even if evidence was normalized, ad hoc criteria, which raised the threshold of what would count as danger, were introduced and intermittent warning signs were discounted. Workplace safety depends not only on safety management system but also development of culture of safety at organisational level o Hopkins argue that threat of criminal liability might undermine development of safety cultures in a context where regulations are likely to be more effective than criminal law in inducing best practice Culture of risk awareness vs risk blindness -> fear of legal liability can impeded learning by undermining industrial incidents and distorting a company s internal auditing of accidents Actus Reus: Homicide by Omission S18 provides murder by omission without qualification so we look at common law Russell [1933] o Facts: woman had drowned herself and her children while the alleged Russell husband, looked on. R was convicted on 3 counts of manslaughter o Held: McArthur J upheld conviction for children as father has reasonable steps to take care of his children including preventing the commission of crime against them by third party -> R s failure to make effort -> direct cause of death 13