Crime XXXXIX - Constructive Manslaughter VIII – The Unlawful Act VII
In
R v Dawson (1985) the defendant attempted to rob a petrol station armed with a
gun and an axe-handle. The defendant pointed the gun at the attendant but did
not in any way attempt to use the gun or the axe-handle. The attendant pressed
the alarm button and as soon as the alarm rang the defendant ran away.
Unknown
to the defendant the attendant suffered from a serious heart condition and once
the defendant had fled the attendant had a heart attack and collapsed. He died
soon after. The defendant was tried and convicted for constructive manslaughter
and the defense appealed.
The
conviction was quashed. It was quashed on the grounds that there was a
misdirection by the trial judge. The jury were aware of the attendant’s heart
condition and the defendant was not. The question that was to be asked was
whether the defendant would have foreseen the risk of physical injury
(resulting in death) given the fact that he was not aware of the attendant’s
heart condition.
The
above test makes it more difficult to obtain a conviction for constructive
manslaughter because if the defendant did not foresee a risk of physical injury
(resulting in death) or did not intend to cause the defendant any type or form
of physical injury than it would not be possible to obtain a conviction for
constructive manslaughter.
Secondly,
would the thin skull rule apply? According to the thin skull rule the defendant
ought to take the victim as he or she finds them.
Thirdly,
is pointing a gun at the attendant with one hand while holding an axe-handle in
the other hand sufficient to constitute assault i.e. put the victim in fear of
his life? - keeping in mind that there was nothing to suggest that the
defendant was brandishing the axe-handle i.e. waving it in a threatening manner
at the defendant. A lot would depend on the evidence and it would be possible
to say with some degree of certainty if the defendant’s actions constituted
assault or otherwise if there was video footage from a security camera
available.
It
is also worth asking the question if anyone with a heart condition is suitable
to be employed as a petrol station attendant given the fact that there is a
very real likelihood of a robbery occurring at some point of time or other. Do
employment laws allow employers to employ those with heart conditions as
attendants in their petrol stations?
Lastly,
is physical injury which is different from exacerbating a pre-existing medical
condition a prerequisite to obtaining a conviction for constructive
manslaughter or unlawful act manslaughter or establishing constructive
manslaughter or unlawful act manslaughter?
Copyright
© 2019 by Dyarne Ward
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