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Citation: Taktak (1988) 14 NSWLR 226

This information can be found in the Textbook: Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 481-5.


Background facts

  • The Defendant [Taktak] picked up some prostitutes with his heroin supplier.
  • The supplier and the prostitutes went to a party, and later the Defendant picked one of the prostitutes up from the party, because she was extremely sick.
  • He tried to wake up in a variety of methods, and eventually called the doctor, but she had already died from a drug overdose.
  • It was unclear what the time of death was, and how much time elapsed between when the Defendant picked her up and when she died (ie, his window of opportunity to call for help).

Legal issues

  • Homicide by Omission
    • The proper formulation of the test for whether an omission constitutes sufficient actus reus for manslaughter. In particular, determining whether a duty of care is owed.


  • The test for homicide by omission is formulated as follows:
    1. The defendant must have owed the deceased a duty of care. Quoting Jones v USA,[1], a duty of care is owed in one of the following scenarios:
      1. Where statute imposes a duty of care.
      2. Where one stands in a certain status relationship to another.
      3. Where one has assumed a contractual duty to care for another.
      4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
    2. The omission alleged was the proximate cause of the deceased's death.
    3. The omission was conscious and voluntary, and in circumstances which fell short of the reasonable standard of care that it merited criminal punishment (wickedly negligent).

USG notes: The test above is paraphrased from the judgment, but the part in requirement no. 3 relating to the conduct being wickedly negligent presumably refers to the mens rea requirements of manslaughter by criminal negligence, and has nothing to do with the general test of whether an omission constitutes sufficient actus reus.

  • In the present case:
    1. The Defendant owed a duty of care under the 4th scenario: he had voluntarily assumed a duty of care for the helpless deceased by taking her from the street to a house, thereby isolating her from others' assistance.
    2. There is no sufficient evidence that the omission was the cause of death, because of the uncertainty with regards to time (ie, it could have already been too late by the time he picked her up).
    3. The Defendant was not found to be sufficiently 'wickedly negligent'.
  • The Defendant was therefore acquitted.


  1. (1962) 308 F 2d 307, 310.
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