Crime 48 - Constructive Manslaughter 7 – The Unlawful Act 6

In addition to the unlawful act being a criminal act i.e. an act prohibited by criminal law and not civil law, the act must also be an act that under most circumstances is viewed as serious. It need not be an act that is fatal or an act that inevitably results in death but rather an act, that most people would view (we can apply the objective test here to determine if the act is serious or otherwise because we are looking at things from a general perspective) as something that is above frivolous or an act that most people would not construe as horseplay.

In R v Church (1965) The victim mocked the accused or the defendant for his inability to perform sexually. The angry defendant punched the victim thereby knocking her unconscious. According to the statement that was given, the defendant tried to revive the victim but after 30 minutes of trying, the defendant thinking that the victim was dead threw her into a river.

The victim’s body was later recovered and according to the autopsy the official cause of death was drowning and that implied that the victim was alive before she was thrown into the river. The defendant was tried and convicted for manslaughter and the defense appealed on the grounds that the defendant was tried only for recklessness and that the issue of provocation was not raised.

It was held that while there may have been a misdirection, the conviction for manslaughter was sound. In the given circumstances it was sufficient that the direction to the jury was based solely on recklessness. Secondly, in order to establish constructive manslaughter, the act must not merely be criminally unlawful. We also have to take into account the degree or the extent of the unlawfulness i.e. the act must be an act that “reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm”.