Gross Negligence Manslaughter - Summary 1
In
addition to involuntary manslaughter and reckless manslaughter there is a third
category of manslaughter called gross negligence manslaughter. The test that is
to be applied in order to determine if the defendant is guilty of gross
negligence manslaughter or otherwise is the test in R v Cunningham (1957) and
what is required is as follows:-
(1)
An actual intention to do the particular kind of harm that in fact was
done;
or
(2)
Recklessness as to whether such harm should occur or not. It is neither limited
to nor does it indeed require any ill will towards the person injured.
However
subjective recklessness is not a prerequisite to obtaining a conviction for
gross negligence manslaughter if it can be proven that the conduct of the
defendant was reckless see A-G’s ref no 2 of 1999 (2000).
Between
R v Cunningham (1957) and A-G’s ref no 2 of 1999 (2000) there were a series of
cases that broadened the scope of liability and the restrictive approach in R v
Cunningham (1957) was widened in R v Lawrence (1981). The cases dealt with
deaths caused by reckless driving.
The
court in R v Lawrence (1981) held that in order for a rider or a driver to be
guilty of manslaughter the following criteria or requirements had to be
satisfied:-
1)
The accused was riding or driving in a manner that created an obvious and
serious risk to other road users and property.
2)
The rider or the driver by riding or driving in the manner he or she did, did
not give thought to the risk or having given it some thought dismissed it.
The
test in R v Lawrence (1981) has an objective element in it. For example when
deciding if the accused was riding or driving in a manner that created an
obvious and serious risk to other road users, the benchmark that is to be used
to determine whether there was an obvious and serious risk to other road users
is that of the reasonable man.
The
decision in R v Lawrence (1981) was reaffirmed in two other cases. In both
cases the deaths were caused by either reckless driving or reckless piloting of
a craft . The cases are:-
1. R
v Seymour (1983)
2. Kong
Cheuk Kwan v The Queen (1985)
At
that stage the courts had yet to introduce the duty of care principle which was
largely applied and limited to civil cases into criminal law and they first did
so in the case of R v Adomako (1994).
The
facts of the case were different from the facts of R v Lawrence (1981), R v
Seymour (1983) and Kong Cheuk Kwan v The Queen (1985) and it is fair to
say that the test in R v Lawrence (1981) should be limited to cases involving
reckless driving.
Copyright
© 2019 by Dyarne Ward
Comments
Post a Comment