REYNOLDS, Mathew v Regina

1. [1]

   GLEESON JA: I agree with Hall J.

2. [2]

   JOHNSON J: I agree with Hall J.

3. [3]

   HALL J: On 22 February 2010, the appellant, Mathew Reynolds, was indicted in respect of six counts of manslaughter and, in the alternative, to six counts of aiding and abetting dangerous navigation occasioning death.

4. [4]

   A co-accused, Percy Small, was indicted on six counts of dangerous navigation occasioning death. The appellant and Mr Small both pleaded not guilty to each count charged and they were tried together.

5. [5]

   On 6 April 2010 the jury returned verdicts of guilty in respect of each of the six charges of manslaughter against the appellant. Mr Small was found guilty on each of the six charges of dangerous navigation occasioning death.

6. [6]

   On 25 June 2010 the appellant was sentenced to a total effective sentence of 7 years and 6 months with an effective non-parole period of 5 years commencing 12 February 2010. The appellant was eligible for release to parole on 11 February 2015. Mr Small was sentenced to the same effective sentence, the commencement date of which was 3 April 2010. (Crown Submissions “A” at p 1)

7. [7]

   The appellant now seeks leave to appeal, out of time, against his convictions in respect of all six counts.

8. [8]

   The Notice of Appeal filed on 29 October 2014 contained a single ground of appeal which sought to impugn a direction given by the trial judge by way of answer to a jury question, details of which are set out below.

9. [9]

   In support of the application to appeal out of time, the appellant relies upon the affidavit of Timothy John Heenan, solicitor, sworn 2 February 2015. In that affidavit a history explaining the delay in pursuing proceedings in this Court is set out prior to 1 October 2013 on which date initial contact was made between the applicant’s present solicitors and the applicant’s mother. Mr Heenan then set out the relevant history concerning a Legal Aid application and prior applications that had been made for extensions of time following the filing of a Notice of Intention to Appeal against conviction on 14 July 2010.

10. [10]

    The Crown did not advance any particular matters against the grant of leave.

11. [11]

    In all the circumstances, I consider that leave should be granted to the applicant to appeal out of time.

Overview of the Proceedings

1. [12]

   The following paragraphs address the factual context within which the impugned trial direction takes its place. A more detailed factual analysis is set out below.

2. [13]

   The case brought by the Crown against the appellant arose out of a tragic boating collision in the early hours of the morning of 1 May 2008. There were two vessels involved.

3. [14]

   The appellant obtained a work boat which he had access to for the purposes of his employment. Fourteen young persons, including the appellant, were in the work boat at the time of the accident. The boat had uneventfully proceeded from East Balmain to Watson’s Bay. On the return journey at about 2:30am, the appellant transferred the helm of the boat to Percy Small.

4. [15]

   The other vessel was a fishing vessel referred to in evidence as the Jordons. That vessel, prior to the collision, was travelling on a course between a safe water marker located in the Harbour and the Bradley’s Headland. Both boats were showing navigation lights. According to the appellant’s written submissions at [19], Percy Small said that the Jordons was “Lit up like a Christmas tree” although he failed to see the vessel until the last moment. The vessels were approaching each other bow to bow. There was an issue at trial as to whether the work boat was approaching the Jordons from its starboard aspect so as to have required the Jordons to yield in order to avoid a collision. For the purpose of sentencing the trial judge found on the evidence that the Jordons was proceeding at about 8 to 9 knots and the work boat was travelling at between 20 and 25 knots.

5. [16]

   The vessels collided. Six passengers were fatally injured. All of the fatally injured victims were seated along the port side bench of the work boat, except for one female who was in the port seat.

6. [17]

   The defence rested essentially on two propositions. Firstly, that the skipper of the Jordons had contributed causatively to the collision. Secondly, that the Jordons was on the wrong side of the channel, as indicated by its position in relation to a safe water marker.

7. [18]

   The trial judge in the course of his sentencing remarks analysed the evidence and made findings against both of the above propositions: Remarks on Sentence at pp 6-8.

8. [19]

   As discussed in detail below, the trial judge gave the jury directions in the course of his summing up upon each of the elements of the offence of manslaughter including, in particular, the issue of causation. That is the issue upon which the ground of appeal focuses.

9. [20]

   The particular jury question and the challenged direction given by the trial judge in answer to the question were in the following terms:

10. [21]

    The sole ground of appeal is that this answer was erroneous.

Factual Matters

1. [22]

   The factual background is set out in the Crown’s Submissions “A”, filed 19 December 2014, as follows:

2. [23]

   As noted in the appellant’s written submissions, the trial judge identified the principal issues at trial. Importantly, it was conceded by the appellant in his written submissions that he was the master of the vessel at the time of the collision and that he owed the passengers a duty of care.

Trial Judge’s Findings

1. [24]

   In his Remarks on Sentence concerning the appellant and his co-offender, the trial judge made a number of factual findings including findings that were directly relevant to the appellant’s culpability including his breach or breaches of duty and the issue of causation. As the single ground of appeal relied upon by the appellant focusses upon an asserted error in a trial direction on the issue of causation, it is necessary to examine in some detail the abovementioned findings and conclusions of the trial judge in his sentencing remarks. I note that in the course of the hearing Senior Counsel for the appellant indicated that he accepted that the findings made by his Honour were consistent with the jury’s verdict: T 3 February 2015 at p 7:5-15. The evidence, in my opinion, well-supported the findings. In his Remarks on Sentence the Trial Judge made the following comments:

2. [25]

   As the abovementioned findings indicate, the appellant’s breaches of duty occurred at three levels. It is plain that they represented a serious departure from the standards that the appellant was required to have observed as skipper of the work boat: Remarks on Sentence, 25 June 2010, at [70].

3. [26]

   The number and nature of the appellant’s breaches of duty and, in particular, the extent to which there was a departure from acceptable standards, is directly relevant to the causation element of the offence of manslaughter charged, particularly, as expressed by the trial judge, whether the appellant’s breaches of duty “… contributed significantly and substantially to the harm suffered by each of the victims which led to their deaths …”: Summing Up, 31 March 2010, at p 2-28.

Summing Up by Trial Judge

1. [27]

   The jury were told by the trial judge that the case was one in which involuntary manslaughter was charged, the elements of which were set out in a written statement. Additionally, the trial judge provided detailed supplementary oral directions on each element: Summing Up at pp 22-28. The jury was instructed that the Crown had to prove the four elements beyond reasonable doubt, they being:

   1. (1)

      That the appellant owed a duty of care towards each of the passengers on the work boat;

   2. (2)

      That the appellant was negligent;

   3. (3)

      That the breach of duty caused the death of each individual deceased;

   4. (4)

      That the breach of duty of care merited criminal punishment.

2. [28]

   As was made clear to the jury in the summing up, the Crown case alleged negligence in one or more of the following three ways:

   1. (1)

      That the appellant permitted the navigation (that is control of the helm of the work boat) by his co-offender, Percy Small when he knew or ought to have known that Percy Small was affected by the prior ingestion of alcohol or drugs;

   2. (2)

      The appellant failed to supervise Percy Small after he put him at the helm of the work boat;

   3. (3)

      The appellant, having given over the helm of the work boat to Percy Small, had a continuing duty to keep a proper lookout for other vessels which were navigating the Harbour waters and he should have, if he had kept a proper lookout, warned Percy Small of the presence of an oncoming craft but that he failed to do so.

Submissions

1. [29]

   As stated above, this appeal concerns a direction given by the trial judge to the jury in response to a question about causation set out at [18] above.

2. [30]

   The appellant submitted that the trial judge erred in directing the jury, firstly, that there was no essential difference in meaning between the words “significant” and “substantial” and, secondly, that the phrase “significant and substantial” meant “not trivial”. The appellant submitted that the two terms had different definitions according to the Oxford Dictionary, and that to state that the words meant “not trivial” devalued their true meaning. The appellant submitted that the error was serious because the defence at trial was based on a claimed absence of evidence on the issue of causation.

3. [31]

   In the appellant’s written submissions it was stated:

4. [32]

   It was also submitted for the appellant that:

5. [33]

   The Crown submitted that the trial judge had been correct in directing the jury that there was no difference between the terms “significant” and “substantial” in the context of legal causation. Reliance was placed in this respect upon the decision of this Court in R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 at [69]-[71].

6. [34]

   The Crown observed that the current Bench Book direction on causation models the direction endorsed by the High Court in McAuliffe v The Queen (1995) 183 CLR 108 at 118, that being the use of the words significant OR substantial: Crown Written Submissions at [10].

7. [35]

   The Crown submitted that although the trial judge’s direction to the jury that “it is sufficient that the Crown has proved that his negligence contributed significantly and substantially to the harm” was inconsistent with the Bench Book direction and the weight of the authority, it could not have caused any injustice to the appellant because the formulation stated by the trial judge posed a more stringent test which, in fact, favoured the appellant.

8. [36]

   In oral submissions the Deputy Director of Public Prosecutions, who represented the Crown in the present proceedings, drew the Court’s attention to the decision of this Court in R v Andrew [2000] NSWCCA 310 in support of the proposition that there was no material difference in the way a jury would understand the word “substantial” or “significant” in a context such as arises in the present case.

9. [37]

   The Crown additionally submitted that the judge was correct to direct the jury that the phrase “significant and substantial” meant “not trivial” in reverse because “not trivial” is an antonym for those terms.

10. [38]

    In oral submissions the Crown emphasised:

11. [39]

    The Crown submitted that, in any event, it was difficult to conceive of the appellant’s actions as having been anything other than a substantial or significant cause in the collision.

Test for Causation in Homicide

1. [40]

   Because this appeal is concerned with a direction made by the trial judge on the issue of causation it is necessary to briefly outline the authorities on causation in homicide cases.

2. [41]

   The proper test for causation in a case such as the present was whether the accused’s conduct was a ‘substantial or significant cause of death.’ Different formulations of this test were stated by their Honours in Royall v The Queen (1991) 172 CLR 378 (‘Royall’) and Osland v The Queen (1998) 197 CLR 316. Subsequently there has been some debate in the case law as to whether the terms “significant” and “substantial” are interchangeable.

3. [42]

   In R v Andrew this Court, having referred to Royall, noted at [58] that “There would be no material difference in the way a jury would understand the words ‘substantial’ and ‘significant’ in this context” and then proceeded to adopt the “substantial or significant cause” formulation stated by Deane and Dawson JJ at 411 in that case. In R v Moffatt at [69] Wood CJ at CL made the following observations in relation to a trial judge’s summing up:

4. [43]

   Finally, it is noted that the term ‘substantial’ in the context of causation has been said to be “a convenient word to use to indicate to the jury that it must be something more than de minimis”: Royall at 442 per McHugh J referring to Reg v Hennigan [1971] 3 All ER 133 at 135.

Consideration

1. [44]

   Contextual Matters

2. [45]

   The jury question, and the trial judge’s answer set out at [18] above, should be considered in the context of the trial. “Context” in the present case has two aspects. The first relates to the content of the trial judge’s directions on the elements of the offence of manslaughter given before the jury’s question was asked. The second concerns the evidence in the trial, which the jury must be taken as having been established, that the appellant’s alleged breaches of duty separately and together represented serious departures from the required standard of care and, on any view, could only be adjudged as having carried powerful and substantive, not trivial, causal consequences.

3. [46]

   The trial judge gave, and later repeated, clear directions on the issue of causation. The written directions included the following:

4. [47]

   In his oral directions the trial judge stated:

5. [48]

   The trial judge returned to the causation element in his summing up, stating:

6. [49]

   In addition to the above directions, the trial judge made reference in the course of his summing up to the closing addresses on behalf of the appellant and the Crown on the issue of causation. The jury was reminded of the submission for the appellant that ‘the cause of the matter was not significantly or substantially contributed to by any breach of duty on the part of [the appellant]’: Summing Up at p 38.

7. [50]

   The trial judge referred to the Crown closing address on the causation issue in the following terms:

8. [51]

   Accordingly, the test, which set a high standard for causation, was enunciated and repeated on a number of occasions by the trial judge. The directions left no room for doubt or confusion as to what the proper causal test was and that it was the test which the jury were directed to apply in determining the third element of the offence of manslaughter.

9. [52]

   The test, as stated by the trial judge, was in line with the authorities discussed above except to the extent that the trial judge used the word ‘and’ instead of ‘or’. I accept the Crown’s submission that this could not have prejudiced the appellant in any event.

10. [53]

    As stated above, the evidence at trial could not have left any room for doubt that the Crown case, if accepted, was alleging that the appellant’s conduct was a major cause of the accident. In practical terms, the jury, upon hearing the trial judge’s answer to their question, could not have understood the judge to be indicating that causation need only have been established at a low level somewhere above the point of “trivial”. The clear directions given and repeatedly emphasised that the Crown was required to prove beyond reasonable doubt that the appellant’s negligence was a significant and substantial contributor to the harm suffered by each of the victims which caused their death. The test as so expressed, imposed a high standard for the element of causation.

11. [54]

    The evidence at trial, in my assessment, undoubtedly proved that fact to the stated standard. Understandably, the contrary was not suggested in this appeal.

12. [55]

    Whilst it is doubtful as to whether there is any marked distinction between the words “significant” and “substantial” (see [40] above) the evidence in the present case, as I have indicated, established both a significant and substantial causal connection. The trial judge’s reference to “not trivial” must be considered and interpreted in the context of the clear and strong directions given. When so considered, there is no basis, in my assessment, for concluding that the answer given to the jury’s question undermined or qualified in any way what had been conveyed as necessary before the Crown could be considered to have proved the element to the requisite standard.

13. [56]

    I do not consider there is any merit in the ground of appeal relied upon in these proceedings and it should be dismissed.

14. [57]

    I have concluded that no error has been established and the appeal should be dismissed.

Orders

1. [58]

   The orders I propose are:

   1. (1)

      Leave be granted to the appellant to appeal out of time.

   2. (2)

      The appeal be dismissed.