I INTRODUCTION
The legal issue to be determined is the criminal liability of Mr Byrne for Thomas Cox’s
death.
Criminal law is not enumerated under the Commonwealth’s powers in the Constitution1 so it
is left to the States to legislate. Queensland has a Criminal Code2 (‘the Code’) which applies
to crimes committed in Queensland.3 Under the Code, any person who unlawfully kills
another is guilty of either murder or manslaughter.4
II MURDER
A Physical Elements
Murder is defined physically as an unlawful killing5 where the accused has caused the death
of the victim.6 Voluntariness will not be of issue.
Firstly, it is stated that Thomas died in hospital so the primary element of death is easily
satisfied.
Where causation is not clear, it is considered through a series of objective tests set out by the
High Court in Royall,7 followed by an inquiry into intervening acts and deemed causation.
Firstly, the court needs to consider whether but for Mr Byrne’s conduct, Thomas would have
died. This is easily fulfilled: but for Mr Byrne leaving the firecrackers in front of Mr Smith’s
door, Thomas’s ball would not have hit the envelope, triggering a bang that caused the fall
that killed him. Secondly, there is the (largely disapproved8) test of reasonable foreseeability.
1
Australian Constitution s 51.
2
Criminal Code Act 1899 (Qld) sch 1 (‘Criminal Code’).
3
Ibid s 12(1).
4
Ibid s 300.
5
Ibid s 302.
6
Ibid s 293.
7
R v Carter (2003) 141 A Crim R 142, 144 citing Royall v The Queen (1991) 172 CLR 378.
8
Krakouer v Western Australia (2006) 161 A Crim R 347.
1
The likelihood of someone being hurt by firecrackers placed in a public area is significant but
death is not reasonably foreseeable given the nature of the firecrackers. The natural
consequences test is not applicable as Thomas’s death was not caused by conduct arising
from fear.9 Finally, causation can be satisfied by the fact that the presence of firecrackers (a
result of Mr Byrne’s conduct) was a significant cause of Thomas’s death.10
Once there is a link between conduct and result, the court must consider acts which would
sever that link.11 Thomas’s actions did not break the chain of causation as Thomas is not a
third party to the events. Nor did he perform actions that could constitute the immediate cause
of his own death. Furthermore, the deemed causation provisions establish that is immaterial
to causation that Thomas’s death may have been prevented had he taken better precaution, or
had the hospital been found to not have taken proper care in treating his injuries.12
Considered cumulatively, it is highly likely a jury would conclude that Mr Byrne caused
Thomas’s death.
B Mental Elements
Murder requires not merely a realisation that death may occur13 but rather an intention to
cause death or grievous bodily harm.14 It is irrelevant whether the victim is the person to
whom the accused intended to cause such harm.15 Failing those, the Code sets out alternative
mental elements, most relevantly that of ‘unlawful purpose’.16
Mr Byrne’s intention was merely to frighten Mr Smith, not to cause his death. Furthermore,
as the ‘small fright’ Mr Byrne intended to elicit does not constitute the loss of a body part,
9
Royall v The Queen (1991) 172 CLR 378, 398.
10
R v Sherrington [2001] QCA 105, 105.
11
R v Hallett [1969] SASR 141,149.
12
Criminal Code s 297.
13
R v Willmot (No 2) [1985] 2 Qd R 413.
14
Criminal Code s 302(1)(a).
15
Criminal Code s 302(2).
16
Ibid s 302(1)(b).
2
disfigurement, nor a life-endangering or permanently disabling injury,17 it is impossible to
argue that he intended to cause grievous bodily harm.
A mental element may be constructed if it is proven that the death was caused by an act done
in the prosecution of an unlawful purpose and that act was of a kind likely to endanger human
life.18 The common law states that it must be proven that there was the ‘inherently dangerous
act which caused the victim’s death’19. Placing the firecrackers at Mr Smith’s door is not
sufficiently dangerous to constitute murder in the eyes of a jury and Thomas’s death is
unlikely to be held as foreseeable. Furthermore, the common law requires that there be an
unlawful purpose beyond the doing of the act.20 Placing an envelope of firecrackers in order
to inflict injury is likely to be considered a case where act and purpose are the same.
Therefore, no mental elements are present to find Mr Byrne liable for murder.
III MANSLAUGHTER
Manslaughter is a secondary offence which is relevant when the circumstances do not
constitute murder.21 Where mental elements are not made out, involuntary manslaughter is
considered. There exist three types: ‘violent act’ manslaughter, negligent manslaughter by
act, and negligent manslaughter by omission.
A Violent Act Manslaughter
Violent act manslaughter requires the accused to have committed an act that is illegal and
objectively dangerous, such that the accused is aware of the risk to which it exposes people.22
This is a very high threshold; it is unlikely that a jury would hold the conduct here to be equal
to an intentional assault, the usual scenario for this type.
B Negligent Manslaughter by Act
17
Ibid s 1.
18
Ibid s 302(1)(b).
19
R v Lui (2011) 219 A Crim 47, 62.
20
Stuart v The Queen (1974) 134 CLR 426, 448.
21
Criminal Code s 303.
22
Wilson v The Queen (1992) 174 CLR 313, 325 citing R v Holzer [1968] VR 481, 482.
3
Negligent manslaughter by act is the most appropriate negligent manslaughter type to apply
here as the wrongful conduct – leaving the firecrackers – was a positive act. This offence
comprises two possible physical elements and a mental element.
1 Physical Elements
The physical element of negligent manslaughter by act (in addition to death and causation
considered under murder) is either doing a dangerous act23 or controlling a dangerous thing.24
The latter is the most adapted to the scenario as the former is tailored to application in a
medical setting.
Therefore, there needs to be proven, firstly, that there was a dangerous thing and, secondly,
that the accused was in control of that thing.25 Dangerousness of an item is determined by the
item’s practical use on the facts, not the use for which it was designed.26 The firecracker was
intended to release a small explosion but on the facts it caused such a large noise as to cause
Thomas to trip and fall to his eventual death. Therefore, it was undoubtedly a dangerous
thing. However, it is more contentious whether the firecrackers were under Mr Byrne’s
control: Thomas’s fall occurred more than an hour after Mr Byrne left. However, control in
this case should be understood in the sense that Mr Byrne placed the firecrackers where
Thomas could find them and could have removed them at any time.27 Therefore, the physical
elements of negligent manslaughter are likely to be made out.
2 Mental Elements
The mental element of negligent manslaughter is that of criminal negligence: that the
accused’s conduct did not exhibit a reasonable standard of care and their acts therefore merit
criminal punishment.28 If some serious harm was foreseeable to Mr Byrne, his actions can
23
Criminal Code s 288.
24
Ibid s 289.
25
Ibid.
26
R v Dabelstein [1966] Qd R 411, 430.
27
R v Stott [2002] 2 Qd R 313, 320.
28
Nydam v The Queen [1977] VR 430, 445.
4
constitute criminal negligence.29 Mr Byrne deposited an envelope of firecrackers, the
instructions for which he was unable to read in a public area of a multi-storey building. It is
therefore foreseeable that some harm could occur despite the fact that Mr Byrne himself
never considered the danger. It can hence be established that he did not take reasonable care
as he had every opportunity to prevent danger.30 It should therefore not be suggested here that
danger was too remote and required conscious disregard.31 It is thus possible for a jury to find
Mr Byrne deserving of criminal punishment as he did not take reasonable care and his
conduct was of a kind that society would seek to condemn.
3 Defences
It is no defence to negligent manslaughter to argue that the circumstances were
unforeseeable.32 Mr Byrne is permitted to raise the defence of mistake of fact.33 However, as
it is stated that he did not consider the possibility that someone could get hurt, it cannot be
said that he was under the mistaken belief that no injury would arise.
IV CONCLUSION
Predicated on a jury finding criminal negligence, it is likely that Mr Byrne will be held liable
for the manslaughter of Thomas Cox and sentenced accordingly.34
29
R v Hodgetts [1990] 1 Qd R 456, 463-4.
30
R v Clark (2007) 171 A Crim R 532, 537.
31
Ibid.
32
R v Stott [2002] 2 Qd R 313, 321; Criminal Code s 23.
33
Criminal Code s 24(1).
34
Ibid s 310.
5
V BIBLIOGRAPHY
A Articles/Books/Reports
Gibson, Andy, ‘Criminal Negligence: The Decision in R v Clark’ (2007) 71 ANZSLA
Commentator [3]-[5]
B Cases
Krakouer v Western Australia (2006) 161 A Crim R 347
Nydam v The Queen [1977] VR 430
R v Carter (2003) 141 A Crim R 142
R v Clark (2007) 171 A Crim R 532
R v Dabelstein [1966] Qd R 411
R v Hallett [1969] SASR 141
R v Hodgetts [1990] 1 Qd R 456
R v Lui (2011) 219 A Crim R 47
R v Sherrington [2001] QCA 105
R v Stott [2002] 2 Qd R 313
R v Willmot (No 2) [1985] 2 Qd R 413
Royall v The Queen (1991) 172 CLR 378
Stuart v The Queen (1974) 134 CLR 426
Wilson v The Queen (1992) 174 CLR 313
C Legislation
Australian Constitution
Criminal Code Act 1899 (Qld) sch 1 (‘Criminal Code’)
6