7.2.5.1 - Bench Notes: Negligent Manslaughter1
Scope of these Notes
1.
These Notes only address negligent manslaughter. For information
concerning other forms of manslaughter, see:

Bench Notes: Manslaughter by Unlawful and Dangerous Act;

Bench Notes: Provocation;2

Bench Notes: Suicide Pact.
The Elements
2.
Manslaughter is a common law offence. One form of manslaughter is
by criminal negligence. This form of manslaughter has the following
four elements, each of which the prosecution must prove beyond
reasonable doubt:
i)
The accused owed the victim a duty of care;
ii)
The accused breached that duty by criminal negligence;
iii)
The act which breached the duty of care was committed
consciously and voluntarily;
iv)
The accused’s breach of the duty caused the victim’s death (R v
Sood (Ruling No 3) [2006] NSWSC 762).
3.
The prosecution does not need to establish any element of malice to
prove negligent manslaughter (R v Lavender (2005) 222 CLR 67).
4.
The prosecution does not need to establish that the accused’s actions
were unlawful. This is one of the differences between negligent
manslaughter and unlawful and dangerous act manslaughter (Wilson
v R (1992) 174 CLR 313).
The accused owed a duty of care
5.
The first element the prosecution must prove is that the accused
owed the victim a duty of care (Nydam v R [1977] VR 430).
6.
Only a legal duty of care can give rise to liability for manslaughter.
1
This document was last updated on 2 November 2014.
While provocation has been abolished as a partial defence to murder (Crimes
Act 1958 s3B), it remains available as a partial defence for offences alleged to
have been committed prior to 23 November 2005.
2
1
Moral duties, such as the obligation to help a stranger in distress or
inform emergency services about a fire, are not relevant for this
offence (R v Taktak (1988) 34 A Crim R 334).
When Does the Accused Owe a Duty of Care?
Duty to Avoid Harming Others
7.
The common law imposes a general duty on all people who are doing
a dangerous act, or who have charge of anything dangerous, to take
ordinary precautions to avoid harming other people (see R v Doherty
(1887) 16 Cox CC 306; Callaghan v R (1952) 87 CLR 115).
Duty to Act (Omissions)
8.
While the accused has a duty to take care to avoid committing
harmful actions, he or she will generally not have a legal duty to act
in a particular manner. For example, he or she would usually not be
legally required to rescue a stranger who is in danger (R v Rao
[1999] ACTSC 132).
9.
However, there are a number of broad reasons why the accused may
have a duty to act in a certain way:
i)
Due to his or her relationship with the victim (including any
contractual relationship);3
ii)
Due to a statutory obligation;
iii)
Due to the accused voluntarily assuming a duty to act; or
iv)
Due to the accused wrongfully placing a person in danger
(Jones v United States of America 308 F 2d 307 (1962); R v
Taktak (1988) 34 A Crim R 334; R v Reid [2010] VSCA 234).4
Relationship duties
10. The accused may have a duty to act in a certain way due to his or
her relationship with the victim. For example:

A person standing in loco parentis of an infant or child owes a
duty to protect the infant or child and provide adequate food,
shelter, warmth and medical care. This includes a duty to
Where the relationship arises out of a contract, see Cittadini v R [2009]
NSWCCA 302; R v Instan [1893] 1 QB 450; R v Marriott (1838) 8 C & P 425.
3
In some cases, failure to comply with a duty to act may found liability for
murder (e.g., where the accused intended, by his or her failure, to kill or really
seriously injure the victim) (see R v Taber (2002) 56 NSWLR 443; R v Phillips
(1971) 45 ALJR 467; R v Gibbons & Proctor (1918) 13 Cr App R 134).
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2
intervene to stop acts of violence against the infant or child (R v
Clarke & Wilton [1959] VR 645; R v Taktak (1988) 34 A Crim R
334; R v Nicholls (1874) 13 Cox CC 75; H Ltd v J [2010] SASC
176; Reynolds & Melville v R [2008] NTSC 30; R v Russell
(1933) VLR 59).

Those who live together as domestic partners (including
husbands, wives and de facto partners) owe each other a duty
to provide care if the other person is left helpless or unable to
care for himself or herself due to injury or illness (R v Reid
[2010] VSCA 234).

Where there is a relationship of protector and protected, and
the protector knows that the protected person is in peril, the
protector must take steps to rescue the protected person.
However, the protector does not need to jeopardise his or her
own life (People v Beardsley 113 NW 1128 (1907), quoted in R
v Taktak (1988) 34 A Crim R 334).

A person who has imprisoned or otherwise rendered a person
helpless (e.g., a prison warden) is under a duty of care towards
that person (R v Shepherd (1862) Le & Ca 147).
Statutory duties
11. Parliament may create a duty of care to take certain acts or avoid
specified omissions. The range of possible statutory duties is beyond
the scope of these Bench Notes.
Voluntarily assumed duties
12. The accused may voluntarily assume a duty to care for a person who
is helpless or otherwise unable to care for himself or herself due to
age or infirmity. In such circumstances the accused must provide
competent care (R v Stone & Dobinson [1977] QB 354; R v Taktak
(1988) 34 A Crim R 334; R v Hall [1999] NSWSC 738; H Ltd v J
[2010] SASC 176).
13. Before a voluntarily assumed duty of care will arise, the prosecution
must prove that the accused isolated the victim in such a way that
others could not render assistance. It is not necessary, however, to
prove that the victim was isolated for the purpose of preventing
others from assisting (see R v Stone & Dobinson [1977] QB 354; R v
Taktak (1988) 34 A Crim R 334; R v Rao [1999] ACTSC 132. But c.f.
R v Hall [1999] NSWSC 738; R v Burns [2009] NSWDC 232).
14. A duty may be assumed by making some efforts to care for the
person, such as providing meals, or making ineffectual attempts to
obtain medical assistance (see R v Stone & Dobinson [1977] QB
354).
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Wrongful Creation of Danger
15. If the accused deliberately commits a wrongful act that places
another person in danger, he or she owes that person a duty to take
reasonable steps to render assistance and redress the danger (R v
Reid [2010] VSCA 234; R v Lawford (1993) 69 A Crim R 115; R v
Taber (2002) 56 NSWLR 443; R v Phillips (1971) 45 ALJR 467).
Content of the Duty of Care
16. It can be seen from the sections above that the content of the duty
of care is defined by the circumstances. For example:

The duty a parent owes a child is to protect him or her, and to
provide adequate food, shelter and warmth;

The duty owed by a person who creates a danger is to take
reasonable steps to redress the danger.
17. Where the accused is a member of a profession requiring particular
skill or knowledge (such as a doctor), he or she owes a duty to
exercise the skill of a reasonably competent member of that
profession. He or she is not required to perform at the level expected
of the most skilled member of that profession (R v Bateman (1925)
19 Cr App R 8; R v Adomako [1995] 1 AC 171).
The accused breached the duty by criminal negligence
18. The second element the prosecution must prove is that the accused
breached the duty of care by criminal negligence (Nydam v R [1977]
VR 430; R v Osip (2000) 2 VR 595; Wilson v R (1992) 174 CLR 313).
19. This requires the accused’s act or omission to have fallen so far
below the standard of care a reasonable person would have
exercised, and to have involved such a high risk of death or really
serious injury, that the act or omission merits criminal punishment
(R v Lavender (2005) 222 CLR 67; Wilson v R (1992) 174 CLR 313;
Andrews v DPP [1937] AC 576; R v Bateman (1925) 19 Cr App R 8;
R v A C Hatrick Chemicals (1995) 152 A Crim R 384; R v Richards &
Gregory [1998] 2 VR 1).
20. This is the same degree of negligence required to establish culpable
driving by gross negligence and negligently causing serious injury (R
v Shields [1981] VR 717; R v De’Zilwa (2002) 5 VR 408).
21. The test for criminal negligence imports a community standard,
which determines whether the breach was sufficiently severe to
warrant criminal punishment (R v Mitchell [2005] VSCA 304).
22. Negligence that would support civil liability (i.e., that the accused fell
short of the standard of care that would have been taken by a
reasonable person in the circumstances) is not sufficient to establish
criminal negligence. The prosecution must establish such a high
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degree of negligence, involving disregard for the life and safety of
others, as to amount to a crime and be deserving of punishment
(Nydam v R [1977] VR 430; Andrews v DPP [1937] AC 576; R v
Bateman (1925) 19 Cr App R 8; Cittadini v R [2009] NSWCCA 302; R
v Wright [1999] 3 VR 355).
23. A “significant departure” from the standard of care required is not
sufficient. Judges should ensure that their directions do not lower the
degree of negligence required (see R v De’Zilwa (2002) 5 VR 408).
24. While a test of liability that requires proof that the act or omission
merits criminal punishment involves a degree of circularity, the
question is one of degree that cannot be defined more precisely (R v
Adomako [1995] 1 AC 171).
25. The nature of the duty of care may be relevant when determining the
seriousness of any breach. For example, where the duty arises
because of the accused’s deliberate wrongful conduct (e.g., where
the accused injured the victim), the accused’s obligation to remedy
the danger created may be quite strict (e.g., he or she may be
required to secure medical attention, even if the victim initially
refuses). A failure to act accordingly may be viewed as a serious
breach (see R v Reid [2010] VSCA 234).
26. In directing the jury on the degree of negligence required, a
comparison between civil and criminal negligence is often helpful (R
v Shields [1981] VR 717).
Objective nature of criminal negligence
27. The test for criminal negligence is objective. The jury must compare
the acts or omissions of the accused against the behaviour expected
of a hypothetical reasonable person in the situation of the accused (R
v Richards & Gregory [1998] 2 VR 1; R v Lavender (2005) 222 CLR
67; R v Sam [2009] NSWSC 803).
28. The element will only be met if a reasonable person would have
realised that the accused’s acts or omissions created a high risk of
death or really serious injury (R v Richards & Gregory [1998] 2 VR 1;
R v Lavender (2005) 222 CLR 67; R v Sam [2009] NSWSC 803).
29. As the test for negligence is objective, the prosecution does not need
to prove that the accused intended to cause death or really serious
injury, or that the accused knew that his or her conduct would likely
cause death or really serious injury. Those states of mind would
establish murder (R v Lavender (2005) 222 CLR 67; Nydam v R
[1977] VR 430; R v Sam [2009] NSWSC 803).
30. The accused’s belief or opinion about whether he or she was in
breach of the duty of care is not relevant. The jury must make its
own assessment of whether the acts or omissions were negligent,
based on the information available to a reasonable person in the
position of the accused at the time of the events in question (R v
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Lavender (2005) 222 CLR 67; R v Reid [2010] VSCA 234; R v Taylor
(1983) 9 A Crim R 358).5
31. It does not matter whether or not the accused was capable of
meeting the relevant standard. Matters such as the accused’s
inability to meet the standard, or deficiencies in the accused’s
reasoning processes, are relevant only to sentencing (R v Richards &
Gregory [1998] 2 VR 1).
32. In some cases, common practice within a field may be relevant to
determining whether the accused breached the standard of care by
acting in the way that he or she did. However, there are occasions
when common industrial practice is negligent (see Dovuro Pty Ltd v
Wilkins (2003) 215 CLR 317; Cittadini v R [2009] NSWCCA 302).
The reasonable person in the position of the accused
33. The test for criminal negligence requires the jury to determine how
the reasonable person of ordinary fortitude and strength of mind, in
the position of the accused, would have acted in the circumstances.
In making this determination, the reasonable person should be
considered to be the same age as the accused, and to have any
specialised knowledge and experience that the accused had (R v
Edwards [2008] SASC 303; R v Taylor (1983) 9 A Crim R 358; R v
Sam [2009] NSWSC 803; R v Lavender (2005) 222 CLR 67).
34. However, the reasonable person should not be considered to have
any of the accused’s deficiencies in reasoning capabilities, or to have
been suffering from any injuries that affected the accused’s
reasoning processes at the relevant time, such as concussion (R v
Edwards [2008] SASC 303).
35. The reasonable person also does not share the accused’s beliefs,
values or attitudes (R v Sam [2009] NSWSC 803).
Guard against risks of hindsight
36. The mere fact that a person to whom the accused owed a duty of
care died does not mean the accused must have been criminally
negligent. A duty of care to avoid a particular risk is not a duty to
ensure that the risk does not eventuate (Cittadini v R [2009]
NSWCCA 302; Gordon v Ross [2006] NSWCA 157; R v Smith [2006]
VSCA 92).
37. It is therefore important to ensure that the jury does not reason that
the accused must have been criminally negligent because otherwise
the event in question would not have occurred. The jury should take
care not to use the benefits of hindsight when determining the
However, the accused’s subjective beliefs may be relevant for certain defences,
such as self-defence and emergency (see R v Edwards [2009] SASC 233).
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degree of negligence (see Cittadini v R [2009] NSWCCA 302; Gordon
v Ross [2006] NSWCA 157; R v Smith [2006] VSCA 92).
Negligence and recklessness
38. The difference between negligent manslaughter and reckless murder
lies in the state of mind of the accused and the degree of foresight
regarding the consequences of his or her actions, rather than in the
degree of carelessness (Pemble v R (1971) 124 CLR 107 per Menzies
J).
39. While, in ordinary language, the type of behaviour necessary to meet
the test of criminal negligence might be described as “reckless”,
judges should avoid using that term because of the risk of confusion
that arises from the meaning of recklessness in the law (R v
Adomako [1995] 1 AC 171; La Fontaine v R (1976) 136 CLR 62 per
Gibbs J).
The relevant act was voluntary
40. The third element that the prosecution must prove is that the act
which breached the duty of care was committed consciously,
voluntarily and deliberately (Ryan v R (1967) 121 CLR 205; R v
Haywood [1971] VR 755; R v Winter [2006] VSCA 144; R v
Williamson (1996) 67 SASR 428).
41. While the prosecution does not need to prove that the accused
intended to cause death, they must still prove that the relevant act
was committed consciously and voluntarily (R v Haywood [1971] VR
755; R v Vollmer [1996] 1 VR 95).
42. While the law predominantly focuses on the need for an act to be
voluntary, there may be cases where the defence argues that an
omission is involuntary. In such cases, the judge may need to direct
the jury on the need to prove that the omission was conscious,
voluntary and deliberate. Alternatively, the judge may identify an act
within the omission and may instruct the jury to consider whether
the accused committed that act consciously, voluntarily and
deliberately.
43. For further information on voluntariness, see Bench Notes:
Intentional or Reckless Murder.
The breach of the duty of care caused the victim’s death
44. The fourth element that the prosecution must prove is that the
breach of the duty of care caused the victim’s death (R v Adomako
[1995] 1 AC 171; Cittadini v R [2009] NSWCCA 302).
45. As the prosecution must prove that it was the accused’s criminal
breach of the duty of care that caused the death, it is important that
the judge precisely identify the act or omission alleged to have
caused the victim’s death (Cittadini v R [2009] NSWCCA 302; Justins
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v R [2010] NSWCCA 242).
46. Where the evidence reveals more than one possible breach of duty,
the judge must decide, based on the factual circumstances, whether
the separate breaches may be aggregated into a single breach for
the purposes of causation (R v Pace & Conduit (Ruling No 2) [2008]
VSC 308).
47. For further information about causation, see Bench Notes: Causation
and Bench Notes: Intentional or Reckless Murder.
Defences
48. The prosecution must disprove any relevant defences, including selfdefence, duress and emergency (R v Edwards [2009] SASC 233. See
also Crimes Act 1958 ss9AE, 9AG, 9AI).
49. Civil law principles relating to contributory negligence, consent and
voluntary assumption of risk do not provide a defence to a charge of
negligent manslaughter. The jury may, however, take the victim’s
conduct into account when determining whether the second element
has been met (i.e., whether the accused acted with criminal
negligence) (R v Cato [1976] 1 WLR 110; R v Edwards [2008] SASC
303. But c.f. R v Fleeting [No 1] [1977] 1 NZLR 343; R v Storey
[1931] NZLR 417; R v Jones [1870] 11 Cox CC 544).
50. In some cases the accused will allege that he or she had an honest
and reasonable belief in a set of facts which, if true, would have
rendered the conduct innocent. In such cases, the prosecution does
not need to disprove this allegation. The issue of an accused’s honest
and reasonable mistake of fact should be considered as part of the
second element (i.e., as part of the jury’s determination of whether
the accused’s acts or omissions were criminally negligent) (R v Osip
(2000) 2 VR 595; Lavender v R (2005) 222 CLR 67).
51. Where manslaughter is left as an alternative to murder and the issue
of self-defence arises, the jury may need to consider self-defence
separately for each offence. The fact that the jury excludes selfdefence as a defence to murder does not invariably mean that they
must also exclude it as a defence to manslaughter.
52. The judge may therefore need to address the issues concerning selfdefence that arise in relation to murder and manslaughter
separately. See Bench Notes: Statutory Self-Defence, Bench Notes:
Statutory Self-Defence (Pre - 1 November 2014) and Defensive
Homicide and Bench Notes: Common Law Self-Defence for further
information.
Accessorial Liability
53. The ordinary principles of accessorial liability are capable of applying
to manslaughter (Giorgianni v R (1985) 156 CLR 473; R v Chai
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(2002) 187 ALR 436; Markby v R (1978) 140 CLR 108). See Part 5:
Complicity for information concerning these principles.
Alternative Verdicts
Intentional or reckless murder
54. A judge must leave manslaughter as an alternative verdict to
intentional or reckless murder if there is a “viable” case available on
the evidence. See Bench Notes: Alternative Verdicts.
55. The jury may only return a verdict on manslaughter as an alternative
to murder if it unanimously agrees that the accused is not guilty of
murder. In the event of a disagreement on the verdict for murder,
the jury cannot return a verdict of “at least manslaughter” (Stanton v
R (2003) 198 ALR 41; Gammage v R (1969) 122 CLR 444; R v
McCready [1967] VR 325).
Unlawful and dangerous act manslaughter
56. The prosecution does not need to specify a particular form of
manslaughter in a charge. That is a matter for particulars. A single
charge of manslaughter may encompass both unlawful and
dangerous act manslaughter and negligent manslaughter without
raising duplicity issues (see, e.g., R v Cramp (1999) 110 A Crim R
198; R v Isaacs (1997) 47 NSWLR 374).
57. The judge should not direct the jury on both unlawful and dangerous
act manslaughter and negligent manslaughter if the issues are
relevantly identical and there is a risk that the directions would
confuse the jury. Such confusion is particularly likely when the judge
leaves manslaughter as an alternative to reckless murder. The judge
should generally resolve this situation by directing on one form of
manslaughter the jury can understand and apply (R v Windsor
[1982] VR 89; R v Edwards [2009] SASC 233).
58. In determining which form(s) of manslaughter to leave to the jury,
the judge should consider whether there is a practical prospect of the
jury reaching different conclusions on the two forms of
manslaughter, and whether omitting a form of manslaughter may
prejudice the prosecution or the accused (R v Windsor [1982] VR
89).
Manslaughter as an accessory
59. The obligation to leave a viable case of manslaughter to a jury as an
alternative to a charge of murder includes an obligation to instruct
the jury on appropriate forms of accessorial liability for manslaughter
(R v Makin (2004) 8 VR 262. See also R v Panozzo [2007] VSCA 254;
R v Nguyen [2010] HCA 38).
60. Judges must be careful to only leave appropriate forms of accessorial
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liability to the jury. Leaving an inappropriate form of accessorial
liability may deprive the accused of an opportunity of being acquitted
of murder and convicted on a form of manslaughter that is
reasonably open on the evidence (R v Makin (2004) 8 VR 262. See
also R v Panozzo [2007] VSCA 254). See Part 5: Complicity for
information concerning the different forms of accessorial liability.
Manslaughter and Unanimity
61. In some cases it may be necessary to direct the jury that they must
be unanimous about a particular matter (in addition to being
unanimous about whether or not the accused is guilty of
manslaughter).
62. In addressing this issue, a distinction is drawn between three types
of cases:
i)
Those in which alternative legal bases of liability are proposed
by the prosecution;
ii)
Those in which alternative factual bases of liability are proposed
by the prosecution; and
iii)
Those in which one offence is charged, but a number of discrete
acts are relied upon as proof, any of which would entitle the
jury to convict (R v Walsh (2002) 131 A Crim R 299; R v Klamo
[2008] VSCA 75; R v Cramp (1999) 110 A Crim R 198).
63. While a specific unanimity direction will not be required in the first
type of case, such a direction will be necessary in the second and
third types. For more information on this topic and sample charges,
see Bench Notes: Unanimous and Majority Verdicts.
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