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 (Vic)
Murder and manslaughter are among the most serious criminal offences in Victoria. They are strict indictable offences and must be finalised in the Supreme Court after a committal hearing in the Magistrates Court. There are several different manslaughter offences in Victoria. Manslaughter is also available as an alternative verdict when a person is charged with murder but cannot be found guilty of murder beyond a reasonable doubt.
Voluntary manslaughter
Voluntary manslaughter is the intentional killing of a person where mitigating factors are present. An example of this is where a fatal assault is committed in circumstances amounting to provocation, meaning that voluntary manslaughter, rather than murder, is the appropriate verdict.
Involuntary manslaughter
Involuntary manslaughter is the unlawful killing of a person without intent to kill, such as in a car accident that results from reckless driving or a death that results from an illegal and dangerous act. For a court to find a person guilty of involuntary manslaughter, it must be satisfied beyond a reasonable doubt that the death was the result of an illegal act, an omission, an act of neglect or a failure to take reasonable care.
Penalty
Under section 5 of the Crimes Act, a person found guilty of manslaughter is liable to a maximum penalty of imprisonment for 25 years.
If manslaughter is committed in circumstances of gross violence, the court must impose a sentence with a non-parole period of ten years.
Defences
There are a number of defences that can validly be advanced in response to a manslaughter charge.
Self-defence
Self-defence is a complete defence to murder or manslaughter which leads to an acquittal. It can also be a partial defence to murder, which leads to a finding of guilt for manslaughter.
If an accused who is charged with manslaughter carried out the act in self-defence, then the accused is not guilty. (Crimes Act, Section 322K). The defence of self-defence is applicable to all assault offences and personal violence offences.
In considering whether the accused genuinely believed that the act was necessary, all the characteristics and circumstances of the accused at the time of the offence will be taken into account. The court must then determined whether the accused’s actions were reasonable in the circumstances as they perceived them.
Where a person charged with murder believed their conduct was necessary in self-defence, but the infliction of death is found not to have been a reasonable response, the accused may be found not guilty of murder but guilty of manslaughter. This is also known as the defence of excessive self-defence.
Provocation
In Victoria, provocation was abolished as a defence to murder in 2005. Although the defence of provocation no longer exists in Victoria, the state now has the alternate verdict of voluntary manslaughter, which can be delivered in circumstances where a person was killed in response to provocation.
Other defences that may be run where a person is charged with manslaughter include the defence of duress and the defence of automatism.
Single punch manslaughter
Under Section 4A of the Crimes Act, which was introduced in 2014, a person in Victoria can be found guilty of manslaughter after delivering a single punch to another person’s head or neck if that one punch causes the victim’s death. This is the case even if the victim dies from an impact other than the punch itself. For example, if A punches B and B falls over and hits his head on the road and dies, A is guilty of single punch manslaughter.
When a victim dies as a result of a single punch in circumstances where the victim was not expecting to be hit and the offender knew that the victim was not expecting to be hit (commonly known as a coward’s punch), the accused must be sentenced to a minimum non-parole period of ten years. (Sentencing Act, section 9C).
Workplace manslaughter
In July 2020, a new offence of workplace manslaughter was introduced into the Occupational Health and Safety Act 2004. The offence is contained in section 39G and aims to prevent workplace deaths and to deter people from non-compliance with workplace safety laws.
Workplace manslaughter is committed when a person who is not a volunteer engages in conduct that is negligent and amounts to a breach of a duty owed to another person and causes the death of that other person. Employers, partners and other duty holders may be charged with workplace manslaughter.
The maximum penalty for workplace manslaughter is imprisonment for up to 25 years for an individual and a fine of up to 100,000 penalty units (currently $16,522,000), for a body corporate.
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