## Facts

- Russell’s wife and two young children died by drowning while Russell was present.
- The prosecution case contemplated that the wife entered the water and drowned the children without Russell’s physical assistance.
- The jury asked whether, if Russell merely “connived” or stood by and did nothing while the wife drowned the children, he could be criminally liable.
- The trial judge instructed that, on those facts, Russell could be guilty of manslaughter because, as husband and father, he owed a legal duty to protect and care for his wife and children.
- The jury convicted Russell of three counts of manslaughter.
- Russell appealed, arguing that a conviction could not rest solely on an omission absent a positive act.

## Issues

1. Whether an omission can constitute the actus reus of manslaughter when the accused owes a legal duty to the deceased.
2. Whether a husband/father who stands by while his wife drowns their children, and fails to intervene, may be convicted of manslaughter despite not physically participating.

## Decision

- The Full Court dismissed the appeal and affirmed the three manslaughter convictions.
- The court held that Russell’s failure to act could ground liability because he owed a legal duty to his wife and children.
- The court accepted that “standing by” in the face of a known, imminent threat to dependants could amount to acquiescence sufficient for manslaughter.

## Legal Principles

- Common law generally does not impose criminal liability for a pure omission absent a legally recognized duty to act.
- Where a legal duty exists (including duties arising from certain family relationships), a wilful failure to act may constitute the relevant conduct for manslaughter if sufficiently connected to the death.
- A person with a duty who is present and able to intervene may incur homicide liability when inaction amounts to acquiescence in, or encouragement of, the fatal conduct.

## Conclusion

The court upheld manslaughter convictions on the basis that a husband and father’s deliberate failure to intervene, despite a legal duty to protect his wife and children, can constitute criminally actionable conduct for homicide where the omission operates as acquiescence in the deaths.


Rex v. Russell, [1933] V.L.R. 59 (Sup. Ct. Vict. Full Ct.)