Crime XXXXXII – Constructive Manslaughter XI – The Unlawful Act X

When the defendant argues or claims that the unlawful act was the result of a mistaken belief, in order to assess the dangerousness of the act or the extent of the unlawfulness, the courts will apply the objective test or take into account the perceptions of the reasonable man. Would a reasonable man have perceived the act to be dangerous?

In R v Ball (1989) the victim parked her car on the defendant’s land. The defendant and the victim then got into an argument and the victim drove off in her car. She returned later with two men and the defendant went off and came back with a shotgun. He pointed the gun at the victim and pulled the trigger and the victim died as a result.

The defendant argued that he did not intent to kill the victim and that he merely intended to scare her away and honestly believed that the gun was loaded with blanks at the time he pulled the trigger. The defendant was tried and convicted for constructive manslaughter.

The defense appealed. According to the defense the dangerousness of the act or the extent of the unlawfulness should be assessed in accordance with the perceptions of the defendant and not in accordance with that of the reasonable men (as the trial judge had directed).

The appeal was dismissed. It was held that that the dangerousness of the act or the extent of the unlawfulness should be judged in accordance with the perceptions of the reasonable man and not that of the defendant i.e. in order to determine the level of dangerousness or the extent of the unlawfulness the test that should be applied is the objective test and not the subjective test (the subjective test looks into the defendant’s state of mind at the time he committed the act).

If we were to use the subjective test or look into the defendant’s state of mind we won’t be able to set any determinants because perceptions will differ from person to person and often depends on the situation. In order to gauge the dangerousness of the act or the extent of the unlawfulness it is best to use the objective test.

In order to scare the victim all the defendant had to do was to point the gun and there was no need to pull the trigger. Pulling the trigger after pointing the gun clearly tells us that the defendant was prepared to go one step further in his attempt to scare the victim.

Copyright © 2019 by Dyarne Ward