Centre for Crime Policy & Research
Flinders Law School
GPO Box 2100
Adelaide SA 5001
Tel: (08) 8201 5976/ 0433 408 257
Fax: +61 8 8201 3630
email: [email protected]
www.flinders.edu.au/CCPR
CURRENT LAW OF MURDER AND MANSLAUGHTER IN SOUTH AUSTRALIA AND
THE CONTEXT FOR A NEW INDUSTRIAL MANSLAUGHTER OFFENCE
INTRODUCTION
This submission to the Parliamentary Committee on Occupational Safety, Rehabilitation and
Compensation is prepared by way of background on the existing homicide provisions in South
Australia. It considers the way in which its status as a common law jurisdiction affects the
operation of the proposed new industrial manslaughter offence as currently drafted. It outlines and
compares our murder and existing manslaughter provisions, and then addresses specific
differences and similarities between that law and the proposed new offence. Finally it provides
general commentary on the proposed new offence and that of industrial manslaughter offences in
the UK and the ACT.
The focus of this submission is solely that of existing criminal law. It is not intended to comment
on the utility or desirability in principle of an industrial manslaughter offence. It does not provide
commentary on relevant social or legal issues and considerations which are specific to the
industrial sector, as those are outside the experience and work of the members of the CCPR.
Rather, the Centre hopes to provide information which may benefit the Committee in its
deliberations in this area and its response to the Workplace Health and Safety (Industrial
Manslaughter) Amendment Bill 2015.
1) LIABILITY FOR MURDER
In South Australia, the elements of murder are governed by common law: the offence of murder is
proscribed but not defined under s 11 of the Criminal Law Consolidation Act 1935 (SA). Section
11 prescribes a mandatory life sentence for murder. There is also a mandatory non parole period of
20 years for murder in South Australia due to the operation of other sentencing provisions.
Liability for murder involves physical elements (the actus reus, or guilty acts, in latin) along with
one of several mental elements (mens rea, or guilty mind).
Physical elements:
The physical elements are traditionally articulated as “causing the death of a human being”.
Causation is defined in case law as being an act (or in some cases an omission) which is a
‘substantial and operating cause’ of the death. 1 The requirement that a cause be ‘operating’ at the
1
R v Hallett [1969] SASR 141, 149.
time of the death means that other factors may intervene and effectively supersede the actions of
the defendant as the legal cause of death, known as ‘breaking the chain of causation’.
This will only happen in very limited circumstances. As a very general rule, the occurrence of
routine events which might be considered to be normal or predictable in the response to and
treatment of fatal injury will not break the chain, but other more extraordinary circumstances
might, if they are sufficient to relegate the original injury into the background setting of the death.
Mental elements:
A person will not be guilty of the offence of murder only by reason of causing the death of a
human being. Their actions in doing so must be accompanied by one of four mental elements:
either the intent to kill, or the intent to cause grievous bodily harm, or alternatively recklessness as
to killing or causing grievous bodily harm. Recklessness for murder is defined as being the
subjective awareness of a probability that the consequence (i.e. death or grievous bodily harm)
would occur, but nonetheless continuing to act.
It is the mental element which distinguishes murder from manslaughter. At common law,
manslaughter also involves causing the death of a human being by a voluntary act/omission.
However, it does not involve doing so with any intention or recklessness about the death.
General comments:
The elements of murder in Australia vary, both between the code jurisdictions and also between
those jurisdictions and the common law states. Common law murder (which applies in South
Australia), is quite different in terms of its mental elements from the murder offence in code
jurisdictions. The mental elements for our murder offence are quite broad, and much broader than
those in code jurisdictions in one relevant respect: in South Australia, it is murder if a person
causes the death of a human being while being reckless as to causing grievous bodily harm. This
mental element is insufficient for murder in code jurisdictions. In those jurisdictions, it would
leave an offender potentially liable for manslaughter.
There are three ramifications of these variations which are immediately relevant to any
formulation of an industrial manslaughter offence:
1) If uniformity is being sought between the jurisdictions in how the industrial manslaughter
offence is constructed, then the extent of change effected in the law in South Australia will
be greater than that which would occur in, for example, a Code state. An industrial
manslaughter offence which is modelled on Code jurisdictions will vary significantly from
the current common law manslaughter offences. Some of those differences seem to
underlie concerns raised by the Law Society.
2) The availability of defences may vary greatly between the common law manslaughter
offences and the new industrial manslaughter offence, for the same reasons.
2
3) The proposed industrial manslaughter offence contains overlap with the current common
law murder offence, within its mental elements. Similar to code jurisdictions, the proposed
offence in the Bill has an alternative mental state of being reckless as to causing ‘really
serious harm’. That mental state would be sufficient for murder, in SA.
2) LIABILITY FOR MANSLAUGHTER
At common law, there are two different types of manslaughter – voluntary manslaughter, and
involuntary manslaughter. Voluntary manslaughter covers situations in which a person’s liability
for murder is effectively downgraded to manslaughter due to operation of various doctrines or
defences – for example, a person convicted of manslaughter due to provocation, intoxication, or
manslaughter due to excessive self-defence.
Involuntary manslaughter covers forms of manslaughter in which there is no automatic application
of particular doctrines or defences. There are two of these: unlawful and dangerous act
manslaughter, and manslaughter by criminal negligence. It is the latter which is most usually
considered analogous to an industrial manslaughter offence, and where most concerns about
duplicating current liability arise if a new industrial manslaughter offence were introduced.
The two forms of involuntary manslaughter may both potentially be applied to the same factual
situation as alternative or concurrent paths to a manslaughter verdict, 2 although it is more common
for the prosecution to argue the applicability of one over the other. This is because the offence
charged is ‘manslaughter’ under s 13 of the Criminal Law Consolidation Act 1935 (SA) and the
two forms of it, while having different elements at common law, are not two alternate offences.
The offence of manslaughter in s 13 simply proscribes the offence, it does not define it. The
elements of manslaughter (and defences to it) are therefore still those as set out at common law.
Unlawful and Dangerous Act Manslaughter
Unlawful and dangerous act manslaughter commonly covers situations in which the defendant is
involved in some form of violence or illegal activity which gets out of control and results in an
accidental death.
It requires that the defendant:
1) Engages in voluntary conduct which is unlawful: that is, contrary to the criminal law. 3
2) The conduct is objectively dangerous, namely, a reasonable person would realise that the
conduct carries with it an appreciable risk of serious injury
3) The conduct must cause the death of the victim. Causation here applies the same test as for
murder, i.e. a substantial and operating cause
2
3
See, for example, R v Edwards [2009] SASC 233.
Wilson v The Queen (1992) 174 CLR 313.
3
The level of dangerousness required was confirmed as that of ‘serious injury’ in the High Court
case of Wilson v The Queen. 4 The High Court rejected an argument that a lower level of injury
was sufficient to fulfil the definition of ‘dangerous’ in the common law formulation.
Manslaughter by Criminal Negligence
Manslaughter by criminal negligence essentially covers situations where the conduct of the
defendant is not unlawful or necessarily objectively dangerous, but instead where the conduct of
the defendant is grossly negligent:
1)
2)
3)
4)
The defendant’s conduct is voluntary
The defendant owed the deceased a duty of care
The defendant’s conduct amounted to a breach of that duty
A reasonable person in the position of the defendant would realise that the conduct
involved a high risk of death or grievous bodily harm occurring
5) The defendant’s conduct involved such a great falling short of the standard of care
required that the doing of the act merits criminal punishment (the common law test in
Nydam v R, 5 approved by the High Court in Wilson).
6) The defendant’s conduct caused the death of the victim. Causation is again tested in the
same way as for murder, namely, that it be a substantial and operating cause.
In both forms of voluntary manslaughter the test is measured against a reasonable person. This
means it is tested objectively. There is no requirement that the defendant realises the
dangerousness of their actions (for unlawful and dangerous act manslaughter) or realises that their
conduct was grossly negligent (for manslaughter by criminal negligence). Instead what is required
is that a reasonable person in the position of the accused would have realised that their conduct
involved a high risk that death or grievous bodily harm would occur.
This is what differentiates negligence from the mens rea element of recklessness in murder.
Recklessness is subjective – it requires the actual awareness of the defendant – whether she or he
foresaw that it was probable that death or grievous bodily harm would occur. If a defendant had
recklessness as their mental state, if they were doing acts which caused the death while being
aware of a probability that death or grievous bodily harm would result, then the appropriate verdict
would be murder.
Negligence requires no actual awareness/recklessness on the part of the defendant, and a
manslaughter charge does not allege it. Instead, negligence is tested against the reasonable person.
For criminal negligence, the level of negligence is variously described, usually as a ‘great falling
short’, or ‘gross negligence’. Therefore it requires that the defendant be doing acts which a
reasonable person in their position would realise involved a high risk of death or grievous bodily
harm occurring to the victim.
Combined with the negligence itself being of that standard (i.e. involving a high risk of death or
grievous bodily harm), the jury must also be satisfied that the circumstances of the negligence
involved such a great falling short of the standard of care required that the doing of the act merits
4
5
(1992) 174 CLR 313.
[1977] VR 430.
4
not just civil action, but criminal punishment. The person’s liability in negligence stems not from
being aware of that danger and continuing on regardless, but essentially by doing something that
dangerous in breach of their duty of care, when a reasonable person would have seen the risk and
ostensibly not continued.
This test originates in Nydam and continues to be good law in South Australia, most recently
applied and approved in R v Colbert. 6 As noted in R v Johnston, 7 there is a wide range of conduct
which can amount to criminal negligence for this form of manslaughter. In addition to the types of
conduct seen recently in Colbert, some examples of conduct which is seen to meet the required
level of negligence (often referred to by the shorthand of ‘gross negligence’) are:
1) Firing a loaded gun at a group of intruders intending to scare them: R v Tomac. 8
2) Failing to properly feed an infant which died of malnutrition: R v Johnston.
3) Requiring a small child to continually ride an oversized motorbike despite falling and
injuring herself multiple times, and failing to seek medical attention for the semi-conscious
child for several hours afterwards: R v McPartland & Polkinghorne. 9
4) Driving a front end loader through thick scrub aimed towards a group of children despite
being unable to see where the vehicle was going: The Queen v Lavender. 10
5) Applying pressure to the carotid arteries for a prolonged period of time such as to cause
unconsciousness and death: R v Edwards. 11 Note this conduct also amounted to an
unlawful and dangerous act in the circumstances of this case.
PROPOSED INDUSTRIAL MANSLAUGHTER OFFENCE
A) Comparison between manslaughter offence structures
The proposed industrial manslaughter offence varies significantly from existing common law
manslaughter. It would be contained within the Work Health and Safety Act 2012 (SA), not the
Criminal Law Consolidation Act 1935 (SA). The standard of proof for work health and safety
offences is beyond reasonable doubt given that they are all criminal offences, despite the
regulatory nature of some of them and the preventative or regulatory purposes of the Work Health
and Safety Act itself. Industrial manslaughter would be classified as a major indictable offence due
to its penalty. It carries a lesser maximum penalty than the s 13 manslaughter offence, being 20
years compared to possible life imprisonment. It does not apply to all workers, but only to
employers, including corporate employers, or to officers of a body corporate employer. For those
reasons it would introduce another species of manslaughter offence which is distinct from existing
provisions, despite several areas of overlap.
6
[2016] SASCFC 12.
[2007] SASC 300.
8
(1996) 67 SASR 376.
9
[2014] SASCFC 84.
10
(2005) 222 CLR 67.
11
[2009] SASC 233.
7
5
The elements of the proposed offence involve several differences from the existing common law
manslaughter offences:
1) The elements of liability deviate from the language used in elements of manslaughter by
criminal negligence and unlawful and dangerous act. This leaves open questions of
meaning and thus the intended scope and operation of the proposed industrial manslaughter
offence in several respects:
a) Section 268A (1)(b) requires that
the employer knew, or ought reasonably to have known, or was recklessly indifferent
as to whether, the act or omission constituting the breach would create a substantial
risk of serious harm to a person;
The phrase ‘ought reasonably to have known’ clearly establishes an objective test, in
common with both forms of involuntary manslaughter. However, the risk which the
employer should have known about differs from both criminal negligence and unlawful
and dangerous act. It is a ‘substantial’ risk. This may or may not equate to the level
required at common law for manslaughter by criminal negligence, which is ‘such a high
level…. that the doing of the act merits criminal punishment’. It seems intended to mirror
that test but does not do so precisely, which may leave room for uncertainty.
b) The risk set out in the proposed s 268A also differs from both common law
formulations. Apart from a risk of death, for manslaughter by criminal negligence, the
risk must be of ‘grievous bodily harm’. Grievous bodily harm is also known at
common law as ‘really serious harm’, which does not automatically equate to ‘serious
harm’. The concept of ‘serious harm’ has substituted for grievous bodily harm in South
Australia’s assault provisions in the Criminal Law Consolidation Act. It has not done
so in relation to our homicide offences, as those are governed by the common law. The
common law has expressed the phrase ‘really serious harm’ as analogous to ‘grievous
bodily harm’.
‘Serious harm’ has a precise statutory definition within the Criminal Law
Consolidation Act. It is not clear whether the common law meaning of grievous bodily
harm or the existing statutory definition of serious harm is intended to be adopted for
the proposed industrial manslaughter offence. Serious harm is not defined in the Work
Health and Safety Act. ‘Serious injury’ is defined in section 36, in terms which are
similar but not identical to those of ‘serious harm’ in the Criminal Law Consolidation
Act. As it is a different phrase, ‘serious harm’ would be interpreted to have a different
meaning than that of ‘serious injury’ in s 36.
c) In unlawful and dangerous act manslaughter, the level of risk is ‘serious injury’ (as
defined at common law), which bears some similarity to ‘serious harm’ under the
proposed s 268A. However, there is no need for the risk to be a ‘substantial’ one. It
only needs to be ‘appreciable’. This is because in contrast to manslaughter by criminal
negligence, liability for manslaughter by unlawful and dangerous act is partly due to
engaging in the act with the attendant risk, but also by engaging in an act that was itself
a breach of criminal law.
6
2) The elements of liability import a subjective mental state of recklessness into industrial
manslaughter, which does not exist at common law.
Neither manslaughter by criminal negligence nor unlawful and dangerous act manslaughter
has any requirement of the defendant being aware of the level of risk or dangerousness that
their actions/omissions involved. This is ordinarily a key factor in deciding to prosecute for
manslaughter rather than murder. The industrial manslaughter offence in s 268A would
uniquely introduce a form of manslaughter that has a subjective element, and that overlaps
with common law murder.
As outlined earlier, common law murder has a broader mental element that those found in
Code jurisdictions. In South Australia, a person who is aware of a probability that grievous
bodily harm would occur as a consequence of their action/omission can be liable for
murder if the victim dies. In Code jurisdictions it would generally amount to manslaughter.
Section 268A takes the approach of the Code jurisdictions, and is very similar in wording
to the ACT offence. Therefore, if ‘serious harm’ in s 268A is interpreted as analogous to
grievous bodily harm/really serious harm, there will be an overlap between that
formulation of liability for industrial manslaughter, and our existing offence of murder.
This has the potential to cause problems procedurally regarding prosecutorial discretion,
plea negotiations and also considerable confusion for jury directions. For example, the
DPP would need to determine whether or not to charge an industrial manslaughter
homicide which involved recklessness as murder, or whether to charge it as industrial
manslaughter. Alternative verdicts and plea negotiations would also be affected.
This may be significant within the context of a regime which involves a high level of
prosecutorial discretion. Substantive issues of justice also arise, given that within the
industrial context the same (recklessness) scenario would at once be classified as murder
and manslaughter, yet if it occurred in a non-industrial context it would only be classified
as murder. This may exacerbate existing concerns as to the seriousness with which
workplace death is viewed within society and under the criminal law.
3) The industrial manslaughter offence utilises a different test of causation, namely,
‘substantial contribution’, in subsection (5). This contrasts with the common law test which
requires a cause to be both substantial and operating, in order to be a legal cause of death.
It is the breach of a Part 2 Division 2 duty which must cause the death. ‘Substantial
contribution’ to a breach of a duty will be sufficient to amount to a breach of duty. South
Australia is not a Code jurisdiction. Therefore ‘substantial contribution’ does not strictly
replace the common law test of causation for manslaughter, because industrial
manslaughter is a new offence. It would not become the test for all forms of manslaughter,
but only for industrial manslaughter. Principles of statutory construction make it clear that
each word and choice of word is deliberate on the part of Parliament, and will be taken to
have meaning. 12 Therefore this provision may well be interpreted to exclude the
availability of an argument that an external event or action might break the chain of
causation and remove the liability of the employer.
12
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Phanos (2015) 122 SASR 129.
7
By choosing this phrase, Parliament may well be taken to have intended to introduce a
different causation test, due to the omission of the words ‘and operating’, and the use of
new phrase ‘substantial contribution’.
4) The operation of s 267 of the Criminal Law Consolidation Act is specifically excluded
from applying to the offence of industrial manslaughter. This means that a person whether
an employer or another worker) could not be convicted as an accessory to that offence –
i.e. for aiding, abetting, counselling or procuring it. This is again a point of deviation from
common law offences of manslaughter. It may be that the common law doctrines of
complicity, namely joint criminal enterprise or extended joint criminal enterprise have not
been excluded.
5) Subsection (3) sets out a defence to the offence of industrial manslaughter, namely that the
breach which caused the death was ‘authorised’ by another law or an emergency.
Statutory interpretation principles may apply here to mean that by including this defence,
existing common law defences to manslaughter do not apply to industrial manslaughter. 13
This might include self defence under s 15 and 15A of the Criminal Law Consolidation
Act, which is available to both forms of involuntary manslaughter. 14 However, a separate
principle of statutory interpretation is that penal provisions are to be strictly construed, 15
and that clear words of intent would be needed to remove existing common law defences to
a major indictable offence such as industrial manslaughter. 16 An argument could be made
that this defence should be narrowly interpreted as being introduced to supplement those
available at common law (particularly by introducing a defence of emergency) rather than
to exclude all common law defences automatically.
Additionally, an argument could be made that a self-defensive action which amounted to a
breach was ‘authorised’ by s 15 or 15A. This would only apply to acts which are capable at
law of constituting defensive actions. 17
B) Other features of the proposed industrial manslaughter offence
The proposed industrial manslaughter offence in s 268A covers both natural and corporate
employers, rather than corporate employers only. This seems to be a point of difference in
structure from the approach taken in the UK corporate manslaughter offence. However, subsection
(5)(a) (discussed above) may provide additional scope for a negligent corporate culture to be
considered when assessing a breach of duty, as it is similar to section 1(e) of the Corporate
Manslaughter and Corporate Homicide Act 2007 (UK), which contains the last requirement for
corporate manslaughter to be established, namely where ‘the way in which the organisation’s
activities were managed or organised by its senior management was a substantial element in the
gross breach of the relevant duty of care’. Section 268A(5)(a) provides that ‘the way in which the
activities of the employer were managed or organised causes a breach of duty if it substantially
contributes to the breach’.
13
Franklin v Stacey (1981) 27 SASR 490.
R v Edwards [2009] SASC 233.
15
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85.
16
R v B, MA [2007] SASC 384.
17
Police v M [2004] SASC 281.
14
8
A notable point of difference between the usages of this concept in the two offences is that in the
proposed s 268A, the faulty management/organisational practices are one way of establishing a
breach of duty. However, the UK offence goes further. These practices must always be present as
an additional element of the UK corporate manslaughter offence. This may be due to the broader
scope of the SA provision, which covers natural employers and officers in addition to corporate
employers. Additionally, in SA the breach of duty concerned must still be that of an employer or
officer, who knows or ought reasonable to have known, or is recklessly indifferent to the level of
risk being created by the breach. This requirement is not found within the UK offence. Instead,
corporate manslaughter will be made out if the organisation owes a duty which is grossly breached
in some way and which caused the death; with the management of the organisation’s activities
being a substantial element in the breach itself.
The similarities and differences between these offences raise the question of whether or not the
structure of the SA offence alters the common law ‘guiding mind’ principle. The UK’s
formulation replaces it, whereas the SA formulation still requires either a specific person’s
recklessness, or their negligence.
The ACT industrial manslaughter offence operates within a code jurisdiction, and cannot easily be
compared and contrasted, or imported, into South Australian law for that reason. However,
structurally, differences and similarities can be seen which may be instructive in determining
whether and how to alter the current common law on corporate liability for manslaughter under the
proposed s 268A.
Section 49(C) of the Crimes Act 1900 (ACT) requires the employer to be either reckless to causing
serious harm, or negligent relating to the death. Section 49(D), which applies to senior officers,
uses the same formulation. These are very similar to the content of the proposed SA offence,
which has been discussed above.
However, the ACT offence does not utilise the ‘guiding mind principle’. Instead, section 52 of the
Criminal Code 2002 (ACT) provides that aggregation of the conduct of a number of officers,
employees or agents of a corporation may be used to establish the element of negligence against a
corporation. The proposed SA offence does not include a similar provision.
9
SUMMARY
1) The content of the proposed manslaughter offence in the Work Health and Safety
(Industrial Manslaughter) Amendment Bill varies from both the existing common law and
the two other jurisdictions which have comparable industrial manslaughter offences.
2) The proposed offence as currently drafted does not clearly alter existing common law in a
way which remedies the most criticised deficiency of existing manslaughter provisions in
their application to corporations: that of the ‘guiding mind principle’.
3) Due perhaps to the differences in existing South Australian law and that of Code
jurisdictions, the wording of the proposed offence raises questions of which particular
meanings are intended, and the extent to which existing common law principles are to be
altered or kept.
Ms Jenny Richards
Centre for Crime Policy and Research
Flinders University.
10