Problem Question:

Homicide
Mens rea: Recklessness
Actus Reus
One Sunday in Summer, Martin is out in his speed boat when he sees a party of
surfers in the water near the beach. He accelerates towards them intending to give them a
fright. Nigel, one of the surfers who is a little apart from the others, is struck and knocked
unconscious.
He is brought ashore, and one of his companions runs to fetch Paul, a medical
attendant, from the First Aid post. Paul, thinking that Nigel is dead, does not give
artificial respiration.
An ambulance arrives shortly afterwards and the attendants try to revive Nigel.
They are unsuccessful, and Nigel dies shortly afterwards.
Discuss the potential liability of both Martin and Paul for manslaughter
Martins intention is to give the surfers a fright
He does not have the mens rea to kill or cause GBH
Is he being reckless?
Recklessness is the taking of an unjustified risk. It is the taking of a substantial
unreasonable risk.
It can be interpreted both subjectively and objectively
Subjective this concerns the defendants actual state of mind what the
defendant believes, intends, is aware of, was the defendant aware of the risk but
still made a conscious decision to take that risk? advertant recklessness
Objective the defendant is judged on the standard of a reasonable, ordinary
person. It is not concerned with what the defendant thought was a risk, but what
an ordinary reasonable person would have seen as a risk and taken. inadvertent
recklessness.
Subjective recklessness conscious taking of an unjustified risk
Subjective test whether the defendant foresaw the possibility of the consequence
occurring; and whether it was unjustifiable and unreasonable to take the risk.
Cunningham recklessness R v Cunningham
Martin just intended to give them a fright. Did he foresee the possibility of the
consequence occurring? Was it unjustifiable and unreasonable to take the risk?
Objective recklessness a person is reckless where there is an obvious risk and the
defendant recognises the risk and carries on regardless or fails to give any thought
to the possibility of an obvious risk. Objective recklessness has been overruled by R
v G.
Martin hits the surfer and commits a battery