Special Bulletin 10 — June 2004
This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book
R v Lavender [2004] NSWCCA 120
Directions in relation to manslaughter by criminal negligence
The judgments of the Court of Criminal Appeal in Lavender raise important matters for consideration by judges in trials for manslaughter by criminal negligence at common law which offence has been held to be subject to s 18(1)(b) of the Crimes Act 1900.
The appellant was convicted of manslaughter by criminal negligence. By majority (Hulme and Adams JJ; Giles JA dissenting) the appeal was upheld and the conviction quashed.
Factual background
The appellant was employed as the driver of a large front end loader at a sand mine. A group of young boys, including the 13 years old deceased, had from time to time played on the sand dunes at the mine. On the day of the alleged offence, the appellant drove his front end loader towards the boys to tell them to get off the mine site. The boys ran into an adjoining scrub area which was not part of the mine site. The appellant chased them on the front end loader into the scrub and the loader fatally struck the deceased. The defence denied negligence and contended that the Crown must establish that the accused did not hold an honest and reasonable belief that it was safe in the circumstances to proceed.
Relevant written direction
The trial judge provided the jury with written directions generally in accordance with the following passage from Nydam v R [1977] VR 430 at 446:
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
Relevant principles for which the case is to be treated as authority
A number of issues were raised in the appeal and the judgments vary with regard to the resolution of most of the issues. However, for the assistance of trial judges, Giles JA helpfully listed at [148] the following four principles for which his Honour considered the case is to be treated as authority. They are as follows:
- 1.
-
In cases of manslaughter by criminal negligence, juries should be directed in accordance with Nydam v R. In this respect, trial judges should emphasise that the answer to whether the accused’s act merited criminal punishment is directed to the two elements of falling short of a reasonable person’s standard of care and a high risk of death or grievous bodily harm: (see [147]).
- 2.
-
Juries should also be directed in terms of the expression or expressions in the definition of “maliciously” in s 5 of the Crimes Act appropriate to the facts. In the instant case, Hulme J considered the following three expressions in s 5 to be relevant, viz “with indifference to human life or suffering”; “wantonly”; and “recklessly”. His Honour made the following general comments with regard to these three expressions (at [253]):
“In summary, ‘with indifference to human life or suffering’ involves that the alleged offender did not care whether suffering or damage to life occurred, or something along those lines; ‘Wantonly’ means ‘without regard for right or consequences’ or ‘an unrestrained disregard of (consequences)’ or something along those lines. ‘Recklessly’ involves a realisation of the possibility of some physical harm but nevertheless going ahead and acting. Of course, the possibility must be one that is real or substantial, as distinct from one that is negligible. As to the distinction, see Chan wing-Sui v R [1985] AC 168 at p 179; R v Bikic [2002] NSWCCA 227 at [147] et seq.”
- 3.
-
Evidence of the accused’s belief in primary factual matters is relevant and admissible on the question whether the accused’s conduct involves such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
This would include evidence of the accused’s beliefs (whether accurate or inaccurate) relevant to the issues in the trial. These circumstances will include matters known to the accused and also those which should have been known to him or her or at least in his or her contemplation. However, a belief by the accused for example, that it was “safe to proceed” would not be within that description because that is really a judgment on primary factual matters (at [268]).
- 4.
-
A defence of honest and reasonable mistake based upon Proudman v Dayman (1941) 67 CLR 536 is not available to a charge of manslaughter by criminal negligence. The relevant passage in the judgment of Dixon J in Proudman at p 540 reads:
“As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for what would otherwise be an offence”
Therefore, in the instant case, it was held that the trial judge was correct not to direct the jury, as requested by defence counsel, that the Crown must establish that the accused did not hold an honest and reasonable belief that it was safe to proceed.
Appropriate amendments will be made to the Bench Book to incorporate the above principles to the extent necessary.