Special Bulletin 12 — August 2005
The Queen v Lavender [2005] HCA 37
Malice not an element in involuntary manslaughter
On 4 August 2005, the High Court unanimously upheld the appeal by the Crown against the majority judgments of the Court of Criminal Appeal which quashed a conviction of the respondent on one count of manslaughter by criminal negligence (see s 18(1)(b) and (2)(a) of the Crimes Act 1900 (NSW)).
The conviction arose out of the allegedly dangerous manner in which the respondent drove a front-end loader which resulted in the death of a 13-year-old boy.
The primary issue before the High Court was whether malice (as defined in s 5 of the Crimes Act) is an ingredient in the crime of involuntary manslaughter (including, of course, manslaughter by criminal negligence). This question was answered in the negative in joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ with the concurrence of Kirby, Callinan and Heydon JJ all expressed in separate judgments. The court held that “[o]n the true construction of s 18 of the Crimes Act, understood in context, the section did not alter the common law of unlawful homicide by involuntary manslaughter” (joint judgment at [54]).
A subsidiary issue was whether the trial judge erred in directing the jury that it was not necessary for the Crown to prove that the respondent did not hold an honest and reasonable belief that it was safe to operate the front-end loader in the fashion which he did, before the jury could convict. The joint judgment (Kirby J agreeing at [83]) held that Giles JA’s conclusion, that the trial judge did not err, was correct (at [56]).
The High Court agreed on this issue with the Court of Criminal Appeal. This is because, inter alia, the question whether the accused held the above mentioned belief was a question of opinion and could not constitute an honest and reasonable mistake of fact, as explained in Ostrowski v Palmer (2004) 78 ALJR 957.
The members of the High Court were unanimous in the view that the trial judge was correct in directing the jury in accordance with the common law of manslaughter by criminal negligence as expressed by the Full Court of the Supreme Court of Victoria in Nydam v The Queen [1977] VR 430 at 445, as approved in Wilson v The Queen (1992) 174 CLR 313 at 333.
Appropriate amendments will be made to the Bench Book to incorporate the above principles to the extent necessary.