Crime XXXXXXXII - Gross Negligence Manslaughter IV
The
duty of care principle that was applied in R v Adomako (1994) is similar to the
duty of care principle that is applied in Tort or negligence (civil negligence)
and the prosecution must establish duty, breach and causation.
The
elements that are required for a conviction are as follows: -
1. The
defendant must owe the victim a duty of care
2. The
defendant must have breached that duty of care
3. The
breach of the duty must have caused the death of the victim and
4. The
conduct of the defendant was so bad (gross) that a crime could easily be
inferred.
Gross
negligence is a strict liability offence and therefore there is no need to
establish the mens rea or satisfy the mental element. It can be inferred from
the defendant’s conduct.
In
A-G’s ref no 2 of 1999 (2000) the defendant, a rail operator, was charged with
manslaughter, following a train accident in which 7 passengers lost their
lives. During the trial it became evident that despite the driver being an
experienced driver, relevant safety procedures were not observed and it was the
lack of compliance or the inability to comply with the stipulated safety
procedures at the time, that had caused the accident.
One
of the questions that was asked was can the defendant be convicted of gross
negligence without taking into account the defendant’s state of mind? The answer
is yes. The test that is to be applied is the objective test and the defendant
can be convicted for gross negligence manslaughter without taking into account
his state of mind, though it is easier to do so if it can be established that
he was reckless. It (gross negligence) is a strict liability offence and
therefore there is no need to establish the mens rea (or the mental element).
Copyright
© 2019 by Dyarne Ward
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