quote:

Originally posted by Sarg:
Bushchook, What part of negligent firearms handling causing death would not be Manslaughter ?

quote:

Originally posted by Sarg:
Bushchook, What part of negligent firearms handling causing death would not be Manslaughter ?

quote:

MANSLAUGHTER UNDER THE CRIMINAL CODE (WA)

The elements of manslaughter are that:
• the accused caused the death of the victim;8
• the accused did not intend to kill or intend to cause grievous bodily harm to any person
(or that the circumstances were such that the offence does not constitute wilful murder or murder); and
• the killing is not authorised, justified or excused by law.9


There are two broad categories of manslaughter under the Code: intentional and unintentional

The second category—unintentional manslaughter—applies to unlawful killings where the accused did not form
the required intention for wilful murder or murder. This category is similar, but not identical, to the category
of involuntary manslaughter at common law.16
Under the Commission’s recommendations this category will apply where the accused caused death but did not intend to
kill and did not intend to cause an injury likely to endanger life.
17 Unintentional manslaughter can be divided into two further categories.
18 The first category applies where death is caused by a deliberate (voluntary) act.
19 The second category, also known as manslaughter by criminal negligence, applies where death is caused by negligent conduct.

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page 103

The Commission does not consider that there is any need to exclude criminal negligence from the offence of manslaughter in Western Australia.
The test for criminal negligence ensures that only extremely culpable negligence will suffice to establish criminal responsibility.
Bearing this in mind the two categories of unintentional manslaughter are essentially comparable in terms of moral culpability .
Any difference in culpability can be taken into account during sentencing because all sentencing dispositions are available for manslaughter.

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page 91

Manslaughter by criminal negligence

Under the Code and at common law an accused may be convicted of manslaughter on the basis of criminal
negligence. Manslaughter by criminal negligence may arise as a result of either a negligent act or a negligent omission.
Generally, there is no criminal liability for failing to act.46
However, both the Code and the common law recognise ‘a series of specific duties to act based on special relationships or
understandings between the parties or upon responsibility for a dangerous situation’.47

Sections 262 to 267 of the Code provide for two different types of duties. The first category (found in ss 262–263) imposes a duty
where there is a special relationship between two people so that one person owes a duty to provide the necessaries of life to the other.
The second category (found in ss 265, 266 & 267) provides for particular duties in relation to dangerous conduct. In order to provide a basis
for criminal liability there must be a duty to act and a breach of that duty – the ‘duty is to do whatever would be reasonable to prevent harm
from occurring’.48
The effect of failure to perform the duty is that the accused is held to have caused any consequences resulting to the life or health of another
person by reason of the failure to comply with the duty.

In Callaghan,49 the High Court considered s 266 of the Code which defines the duty of persons in charge of dangerous objects .
The court held that the degree of negligence required under s 266 is the same as the degree of negligence required for manslaughter at
common law.50

The common law test for manslaughter by criminal negligence, as pronounced in Nydam,51 is that there must have been such a great 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 that the doing of the act merited criminal punishment.5

Thus, manslaughter by criminal negligence requires an objective assessment of what a reasonable person would have done in the circumstances.
In some cases an accused may have been aware of the risk of harm but failed to comply with the relevant duty to act; whereas in other cases an
accused may be held criminally responsible on the basis of a failure to appreciate the risk in the circumstances. 53 But a mere failure to do
what a reasonable person would have done in the same circumstances is not sufficient. There must have been ‘a serious departure from the standard
of care that a reasonable member of the community would observe in the same circumstances’54 or in other words, a ‘serious degree of negligence’.55