Crime XXXXVIII - Constructive Manslaughter VII – The Unlawful Act VI
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, 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 which 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 on 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 only 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”.
Copyright
© 2019 by Dyarne Ward
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