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

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. 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)


Manslaughter is closely related to the more serious offence of murder. Both murder and manslaughter are homicide offences, which are offences involving one person killing another. New South Wales also has other homicide offences, with which a person can be charged as an alternative to the charge of manslaughter.

In New South Wales, the partial defence of provocation can be argued to a charge of murder. If successful, provocation reduces a conviction for murder to one for manslaughter. 

The legislation

The laws surrounding manslaughter in New South Wales are contained in the Crimes Act 1900.

Manslaughter

A fatal assault committed in circumstances that do not amount to murder is manslaughter. However, an act that is not malicious or for which the accused has a lawful excuse does not amount to manslaughter.

Under the common law, a person must be found to have been grossly negligent in order to be guilty of manslaughter. 

A manslaughter charge can validly be defended by arguing that the accused was not grossly negligent, that the accused did not do the alleged acts, or by arguing that the accused person was acting in self-defence or was acting under duress.

Penalties

The maximum penalty for manslaughter in New South Wales is imprisonment for 25 years.

Manslaughter as an alternative verdict

New South Wales retains the partial defence of extreme provocation for a charge of murder. If a person accused of murder is found to have killed the victim in response to extreme provocation, they will be found guilty of manslaughter and not murder if:

  • Their act was in response to conduct of the deceased;
  • The deceased’s conduct was a serious indictable offence;
  • The deceased’s conduct caused the accused person to lose self-control;
  • The deceased’s conduct could have caused an ordinary person to lose self-control to the point of intending to kill or cause grievous bodily harm to a person.

A non-violent sexual advance.is not extreme provocation.

Defences to manslaughter

A number of defences can be used to secure an acquittal on a manslaughter charge.

Self-defence

A person is not guilty of manslaughter if they killed the victim in self-defence. This is because the law recognises that a person must be extended the right to defend themself from a physical attack or threatened attack. Self-defence includes defending another person.

When a defendant raises the defence of self-defence, the prosecution bears the burden of proving that the accused was not acting in self-defence. If the prosecution cannot prove this beyond a reasonable doubt, the accused must be acquitted.

For the defence of self-defence to succeed, the accused must have reasonably believed that their actions were necessary in self-defence. Whether the accused’s actions were reasonable in self-defence will be assessed based on the extent of the threat they were facing.

Duress

A valid defence to a charge of manslaughter is that the accused was acting under duress. A person is acting under duress when their actions are performed because of threats of death or really serious injury that would be likely to cause a person of ordinary courage to yield.

If the defence raises the defence of duress, the prosecution bears the burden of proving that the accused’s actions were not carried out under duress.

Other defences that may be relied on in relation to a manslaughter charge are automatism and involuntary intoxication.

Other homicide offences

When a mother kills her baby (aged under twelve months) because the balance of her mind has been disturbed as a result of giving birth, she can be found guilty of the offence of infanticide. This offence can be charged as an alternative to the charge of manslaughter and carries the same penalty.

Section 25A of the Crimes Act makes it an offence, punishable by imprisonment for a maximum of 20 years, to assault a person by hitting them, causing their death. This offence is known as ‘one punch manslaughter.’ A person can be found guilty of this offence regardless of whether or not the victim’s death was reasonably foreseeable.

Which court will hear the matter?

Manslaughter is an indictable offence, which can only be heard by the District Court or Supreme Court of New South Wales.

If you need legal advice on a criminal law matter or any other legal matter please contact Armstrong Legal. 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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