The Offence of Involuntary Manslaughter Under New South Wales Law

Hollywood movie star Alec Baldwin has been charged with involuntary manslaughter over the death of cinematographer Halyna Hutchins on the set of the upcoming movie Rust. 

Hutchins was killed when Baldwin fired a pistol during rehearsals believing the weapon to be unloaded. Both Baldwin and the on-set weapons supervisor Hannah Gutierrez-Reed have been charged over the death. 

But what is involuntary manslaughter? And how does it work in the case of seemingly accidental shootings?

What does “involuntary manslaughter” mean in the Baldwin case?

Speaking broadly, involuntary manslaughter encompasses the killing of another person in circumstances where the mens rea (or mental fault element) for murder is not present. 

In the United States, involuntary manslaughter encompasses many circumstances of unintentional killing including unlawful act manslaughter, vehicular manslaughter and manslaughter by criminal negligence.

Recent reports suggest that Baldwin has been charged on the basis of manslaughter by criminal negligence, which under New Mexico law a “wilful disregard of the rights or safety of others”.

Criminal negligence requires a much high level of carelessness than what is described under the civil standard. The prosecution will need to prove, beyond reasonable doubt, that Baldwin was subjectively aware of the risk that the gun was loaded and pointed the gun toward Hutchins and pulled the trigger regardless.

But what if Baldwin were charged in NSW? 

Manslaughter is an offence under section 18(1)(b) of the Crimes Act 1900 (NSW) which, under section 24 of the Act, carries a maximum penalty of 25 years in prison.

Involuntary manslaughter in NSW generally refers to two separate doctrines: manslaughter by unlawful and dangerous act and (similar to the US) manslaughter by criminal negligence.

Manslaughter by unlawful and dangerous act 

Unlawful and dangerous act manslaughter in NSW requires the accused to have performed a voluntary act causing death, in circumstances where: 

• The act was unlawful; and
• The act was dangerous: that is, a reasonable person in the position of the accused would have appreciated they exposed another person to a risk of serious injury.

Unlawful acts include all violations of the criminal law (but exclude breaches of motor traffic regulations, see R v Pullman (1991) 25 NSWLR 89). 

It seems unlikely that Baldwin would be charged on the basis of unlawful and dangerous act manslaughter in NSW, as his actions in pointing the gun at Hutchins were not unlawful.

In R v Lamb [1967] 2 QB 981, two young men were playing with a revolver which contained two bullets. Both men were under the impression that as long as the bullet wasn’t facing the barrel of the gun they were safe. One man (the accused) pointed the gun at the other as a joke and pulled the trigger, however the mechanism in the gun rotated the bullet into the barrel firing the gun and killing the other man. 

The UK Court of Appeal found that no “unlawful act” existed in this case for the purposes of unlawful and dangerous act manslaughter, as the other man did not feel he was in any danger by having the gun pointed at him.

Manslaughter by criminal negligence

The key authority for manslaughter by criminal negligence in Australian  is Nydam v R [1977] VR 430, in which Chief Justice French described the elements of the offence as follows:

“In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.”

In Lavender v The Queen (2005) 222 CLR 67, the High Court found that the degree of negligence that must be proven must be at least as high as recklessness.

Applying the circumstances of the Baldwin case, proving manslaughter by criminal negligence would require establishing that a legal duty of care was owed by Baldwin to Hutchins and that his actions in firing the weapon amounted to a gross falling short of this standard of care.

Defences 

There are a number of defence strategies that, depending on the circumstances of the case, may be used to defeat a charge of involuntary manslaughter. 

These include:

• Establishing that the defendant’s act or omissions were not the substantial and operating cause at the time of the death.
• That the defendant’s actions were either not unlawful or not dangerous (for unlawful and dangerous act manslaughter).
• That the defendant did not owe a duty of care to the victim, or did not substantially fall short of their standard of care (for manslaughter by criminal negligence).

Complete defences also available for involuntary manslaughter including self-defence, duress and necessity. 

In the event the defendant is able to raise evidence of any such defence, the onus of proof then shifts to the prosecution which will be required to establish beyond all reasonable doubt that the defence does not apply.

The defendant must be found not guilty if the prosecution is unable to fulfil that requirement.

Charged with a serious crime?

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