This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Manslaughter (NSW)


The offence of manslaughter is one of the most serious criminal offences in New South Wales and is closely related to murder. While a murder involves an offender killing a victim with the intention of killing them, causing them really serious injury, or acting with reckless indifference to human life, manslaughter occurs when a victim dies as the result of an act or omission where death or really serious injury was not intended.

Any unlawful homicide that is not a murder may be manslaughter. Manslaughter is commonly charged where a person committed an unlawful and dangerous act which resulted in the death of another person.

The maximum penalty for manslaughter is imprisonment for 25 years.

Legislation

The offence of manslaughter is largely contained in common law principles. In New South Wales, it is also codified in section 18 of the Crimes Act which states that any punishable homicide that does not amount o murder, shall be taken to be manslaughter.

This provision also states that no act or omission which was not malicious, or for which the accused had lawful cause or excuse, or which kills a person by misfortune only, shall be punishable under this section. This means that if a person is charged with manslaughter as the result of an accident or where they had a lawful excuse for their actions, they have a valid defence.

What may constitute manslaughter?

A person may be found guilty of manslaughter where:

  • They punched someone who fell and hit their head on concrete and died;
  • They were a builder who failed to secure the scaffolding on a house, resulting in the death of their apprentice; or
  • They fatally shot a bushwalker while on a hunting trip.

Defences

A person can validly defence a charge of manslaughter by arguing:

Self-defence

Self-defence is a full defence to the charge of manslaughter. If a person kills another person in self-defence, they are not guilty of any criminal offence. Rather, their actions amount to justifiable homicide.

For a defence of self-defence to succeed, the accused must demonstrate that they reasonably believed that their actions were necessary in self-defence.  What it is reasonable to do in self-defence depends on the circumstances and the nature of the threat that was faced.

Once an accused has raised self-defence, the prosecution must prove beyond a reasonable doubt that the accused did not commit the offence in self-defence.

Duress

A person is not guilty of an offence if they committed the offence as a result of duress. Duress exists when a person is subjected to serious and immediate threats against their life if they do not comply with the threat. The rationale behind the defence of duress is that a person should not be held criminally responsible for an act that they were essentially ‘force’ to carry out by someone else.

For a defence of duress to succeed, the accused must prove:

  • that a threat of death or serious harm to them or someone else was made;
  • that the threat was so serious that a person of ordinary firmness and courage and of the accused’s sex and maturity would have yielded to it;
  • that the accused acted as he or she did because of the threat.

Jurisdiction

The offence is a strictly indictable offence and must be finalised in the Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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