I’m a nerd and I want to discuss the test question. I’m hoping that by sharing what I got for the test question, it at least gets fellow students in my cohort thinking.
I’m unsure if my answer is right.
Maybe I got it wrong.
Who knows? But here it goes!
Off the top of my head:
1. Dave not culpable for homicide under s 160(2) failing on mens rea.
2. Dave not culpable for manslaughter under s 160(2) failing on causation.
Unlawful action 3 step process.
Was there an unlawful action and if so what? Dave hitting Charlie on the side of the head is an unlawful action under s (I don’t remember, eek!) of The Crimes Act 1961
Was the unlawful action inherently dangerous? Yes, Lee held that the unlawful action must be more than trivial to the victim. Dave hitting Charlie for not behaving when applying the sunscreen, and subsequently hitting his head on the towel rack causing temporal damage to Charlie’s scull and an untreated concussion. Charlie being kicked in the head in the pool and losing consciousness while face down in the water for five minutes resulted in Charlie’s death.
So far the test passes, however it fails on the third point of causation. It cannot be proven on the facts that the “substantial and operating” cause of Charlie’s death was from Dave’s blow to Charlie’s head because Charlie died from drowning. It can be argued that Dave’s unlawful act was a contributing factor but it cannot be proven on the facts within reasonable doubt that it is the cause of Charlie’s death.
3. Maureen not culpable for manslaughter on omission under s 160 (2)(b).
Case law cited: Gedson* held that the courts can contextualize the objective standard in an omission to place the objective person into the position of the accused. The context added is that Maureen did not know that only 1 lifeguard was on duty when her son Charlie drowned. Had Maureen likely known, she would’ve not been sleeping in the sun trying to get a tan, she would’ve most likely been watching her two sons in the water.
4. Leon culpable for manslaughter on omission under s 160(2)(b).
3 step process to prove culpability.
1st step: was a duty of care owed?
Yes under s 156 establishes the legal duty of care for anyone who has an inherently dangerous thing in their charge or under their control.
A large body of water is an inherently dangerous thing. People drown all the time.
Yes, as a lifeguard it is your job to ensure the safety of all pool patrons.
A duty of care is established.
2nd step: Proof of Major Departure under s 150 (A) to show culpability.
Two step process:
Step 1. What is the objective standard of care expected of a reasonable person?
When Beryl, Leon’s boss, told Leon to tell the pool patrons that they were one lifeguard short and that parents were expected to supervise their children, Leon failed to do so.
The objective standard of care expected of a reasonable person is basic communication when responsible for operating an inherently dangerous thing.
Counter: Leon is young and shy — Hamer held a that the objective standard is not to be altered to take into account extenuating circumstances.
2nd counter: Leon was hungover — Kamipeli held that voluntary intoxication is not to be applied to the objective standard. Meaning, the objective standard of care expected of a reasonable person is always sober.
You cannot apply any caveats to the objective standard.
2. Was the actions of the accused a major departure from the standard of care expected?
Most likely yes. The Kuka case citation: “but for” the defendants’ actions the victim would or would probably not have died — a high threshold that Leon arguably meets.
But for Leon’s failure to notify Maureen that only 1 lifeguard was on duty, Charlie most likely — on the balance of probabilities — would probably not have died.
It is noted by the medical examiner that had Charlie been found within two to three minutes of being face down in the water, and gone to a hospital within the hour, Charlie would have survived.
Leon finding Charlie face down after five minutes is a Major Departure of the standard of care expected further proves criminal liability — a failure to act by omission under s 160 (2)(b).
Thereby making Leon criminally culpable for manslaughter and Charlie’s death.
— that’s what I got off the top of my head.
*Gedson — I cited an unlawful acts case on an omission, eek! Is that okay? I don’t know. Worth a shot I guess? Idk man. Could’ve cost me… have to wait and see!