Crime XXXXIX – Constructive Manslaughter VIII – The Unlawful Act VII

In R v Dawson (1985) the defendant attempted to rob a petrol station armed with a gun and an axe-handle. The defendant pointed the gun at the attendant but did not in any way attempt to use the gun or the axe-handle. The attendant pressed the alarm button and as soon as the alarm rang the defendant ran away.

Unknown to the defendant the attendant suffered from a serious heart condition and once the defendant had fled the attendant had a heart attack and collapsed. He died soon after. The defendant was tried and convicted for constructive manslaughter and the defense appealed.

The conviction was quashed. It was quashed on the grounds that there was a misdirection by the trial judge. The jury were aware of the attendant’s heart condition and the defendant was not. The question that was to be asked was whether the defendant would have foreseen the risk of physical injury (resulting in death) given the fact that he was not aware of the attendant’s heart condition.

The above test makes it more difficult to obtain a conviction for constructive manslaughter because if the defendant did not foresee a risk of physical injury (resulting in death) or did not intend to cause the defendant any type or form of physical injury than it would not be possible to obtain a conviction for constructive manslaughter.

Secondly, would the thin skull rule apply? According to the thin skull rule the defendant ought to take the victim as he or she finds them.

Thirdly, is pointing a gun at the attendant with one hand while holding an axe-handle in the other hand sufficient to constitute assault i.e. put the victim in fear of his life? – keeping in mind that there was nothing to suggest that the defendant was brandishing the axe-handle i.e. waving it in a threatening manner at the defendant. A lot would depend on the evidence and it would be possible to say with some degree of certainty if the defendant’s actions constituted assault or otherwise if there was video footage from a security camera available.

It is also worth asking the question if anyone with a heart condition is suitable to be employed as a petrol station attendant given the fact that there is a very real likelihood of a robbery occurring at some point of time or other. Do employment laws allow employers to employ those with heart conditions as attendants in their petrol stations?

Lastly, is physical injury which is different from exacerbating a pre-existing medical condition a prerequisite to obtaining a conviction for constructive manslaughter or unlawful act manslaughter or establishing constructive manslaughter or unlawful act manslaughter?

 Copyright © 2018 by Dyarne Ward

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