In NSW, manslaughter by criminal negligence requires proof that the accused's act was 'malicious' within the meaning of s 5 of the Crimes Act 1900 (NSW), which requires proof of recklessness — that the accused adverted to the possibility that some harm to another person would result from the act. The purely objective Nydam test does not fully state the elements of the offence in NSW. Even on the objective Nydam test, the accused's subjective belief about safety is relevant evidence that must not be excluded from the jury's consideration. The defence of honest and reasonable mistake (Proudman v Dayman) is not available as an independent defence to manslaughter by criminal negligence because it is subsumed within the objective test properly applied.
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