R v Lavender

GILES JA : Wayne Kelvin Lavender was charged with manslaughter, alternatively dangerous driving occasioning death, in relation to the death of Michael Milne. He was found guilty of manslaughter, and was sentenced to imprisonment for four years with a non-parole period of eighteen months. Mr Lavender appealed against his conviction and the Crown appealed against the sentence. For convenience, I will refer to Mr Lavender as the appellant and to the Crown as such. The charges

By count 1 of the indictment the appellant was charged - “That he on 2 October 2001 at Redhead in the State of New South Wales, did feloniously slay Michael Milne.”

Manslaughter is a common law offence, but s 18 of the Crimes Act 1900 provides - “18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.”

By s 24 of the Crimes Act , a person convicted of manslaughter is liable to imprisonment for twenty five years.

Upon the appellant’s conviction for manslaughter the alternative charge of dangerous driving occasioning death fell away. Some regard to it, however, is necessary in considering the appellant’s appeal.

By count 2 in the indictment the appellant was charged in the alternative - “That he on 2 October 2001 in Redhead in the State of New South Wales, did drive a motor vehicle, namely a ‘Komatsu’ loader in a manner dangerous to a person or persons, whereby the vehicle was involved in an impact as a result of which the death of Michael Milne was occasioned.”

Dangerous driving occasioning death is a statutory offence under s 52A(1) of the Crimes Act , which relevantly provides - “52A Dangerous driving: substantive matters (1) Dangerous driving occasioning death. A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: … (c) in a manner dangerous to another person or persons.” The grounds of appeal

The appellant’s grounds of appeal were - “1. The learned Trial Judge erred in failing to direct the jury that it was for the prosecution to exclude an honest and reasonable belief in the appellant that it was safe to proceed and in directing the jury that the appellant’s belief was ‘immaterial’. 2. The learned trial judge erred in directing the jury that the belief of the appellant at the relevant time was ‘immaterial’ and that ‘it does not matter’ what the appellant believed to be the case. In particular the learned trial Judge erred in not directing the jury in terms that they should consider the subjective belief of the appellant in determining whether the Crown had proved beyond reasonable doubt that he acted unreasonably. 3. The learned trial judge erred in his summing up by treating the offence of manslaughter as an absolute one.”

The Crown appealed on the ground that the sentence was manifestly inadequate.

The appellant initially put forward only one ground of appeal, the first ground set out above. At the hearing of the appeal it became apparent that the consideration given by counsel to the issues and the authorities in the appellant’s appeal had not been sufficient for their submissions properly to assist the Court; further, that the appellant might wish to add grounds of appeal. The hearing of the Crown appeal was completed, and the appellant’s appeal was adjourned part-heard with directions as to amendment to the grounds of appeal and further written submissions from the appellant and the Crown. The appellant’s grounds of appeal were amended and the further written submissions were received.

The framing of the appellant’s grounds of appeal left some obscurity in the questions for determination. At the trial the appellant’s counsel had asked for a direction that it was for the prosecution to exclude an honest and reasonable belief in the appellant that it was safe to proceed, but there had otherwise been no issue about materiality of the appellant’s subjective belief or whether the offence was an absolute one. The further written submissions were ample, but less than clear in relation to the basis for separate error in these latter respects. It was not practicable to reconvene the Court, and the Court was regrettably deprived of the clarification and development which comes from oral argument. Facts

The appellant was employed at a sand mine at Redhead south of Newcastle. He drove a Komatsu front end loader moving unprocessed sand to the washing plant and processed sand from the plant. The loader was a large vehicle, some 25 tons in weight and much higher and longer than a car. The bucket at the front of the loader impeded the driver’s forward vision.

The sand mine was in an area of sand dunes variably covered with vegetation. In places the vegetation was quite thick and comprised bushes and trees up to four metres high, and the vision of a person driving the loader through the vegetation was further impeded. The site of the sand mine was unfenced.

On 2 October 2001 Michael Milne and three friends went to the sand mine to play. Michael Milne was thirteen years old. The other boys were aged 11, 14 and 15. The boys had gone to the mine site on previous occasions. Although the site was not fenced and there were no signs, at least one of the boys said that he knew that they should not have been there, and that on a previous occasion they had been told by an employee at the mine not to go to where sand was being taken.

The boys were playing on the processed sand pile. The appellant saw them as he was coming out of the lunch room. He knew they were not allowed to be there, and on other occasions had stopped boys and told them to get off the mine site. He said in a police record of interview - “… and I hopped in the loader and was gunna go over and speak to them, tell them to move from the premises, you know. So I went after them, you know, and, to try and tell them to get away. … I was going over to tell them to get out, off the premises.”

The appellant drove the loader towards the sand pile. The boys saw him and ran into an area of regenerated scrub part of the thick vegetation. The appellant followed them, driving the loader on a disused track through the scrub at something like four kilometres per hour. He lost sight of the boys as he went along the track. He continued to a place where he could turn around, turned, and went back into the scrub. He saw two of the boys running away from him through the scrub, and left the track and followed them. The other two boys, one of whom was Michael Milne, were hiding behind trees in the scrub. As the appellant drove the loader through the scrub it came into contact with Michael Milne, causing injuries from which he died.

Evidence was given in the Crown case by Mr Allan Davis, a fellow employee of the appellant who also chased the boys on a loader on 2 October 2001, and by the three boys who had gone to the sand mine with Michael Milne. Police evidence excluded malfunction of the loader. Other police evidence described the loader, the terrain, the scrub through which the appellant had driven and the area where Michael Milne had been, with many photographs. Edited videos of an ERISP interview and a walk-around interview with the appellant were tendered. There was extensive cross-examination, but in the end little dispute as to the facts. The appellant did not give evidence. The course of the trial

It is pertinent to the appellant’s appeal to understand when and how any question of the appellant’s belief arose in relation to the charge of manslaughter.

The Crown opened to the jury a case of manslaughter by criminal negligence, through highly negligent behaviour in disregard for the safety of others. The Crown Prosecutor’s opening included - “What was that particular behaviour? The Crown relies upon the proposition that the accused, in driving his loader in order to scare the boys off the site, off the property, drove his loader into a bush area where he knew there were four boys in there somewhere, who he couldn’t see, by reason of the nature and structure of his vehicle, couldn’t hear, drove into an area of bush which he traversed for some 140 metres without seeing anybody. Those boys were in there and at one stage frighteningly close to the passage of his loader. He continued to drive his loader, the Crown alleges, in circumstances where the topography , the undulating nature of the surface, the vegetation and the nature and structure of his vehicle, meant that his capacity to see was necessarily restricted, and that he knew or ought to have known, that his capacity to see was necessarily restricted but continued to drive his vehicle in that manner in any event. In order for him to proceed through the bush he had to lower his bucket to flatten vegetation before the loader to clear a course for his wheels with the necessary consequences that at one stage dead trees, in the order of 15 to 20 feet, were being flattened in the ongoing course of the loader. The Crown alleges that the accused failed to steer a course which was consistent with safety and that was particularly so once he entered the bush. That he failed to keep a proper lookout and that in the circumstances, once he entered in the bush that he was travelling at a speed which was unsafe in the sense that any speed in those circumstances was unsafe.”

The Crown Prosecutor also said - “CROWN PROSECUTOR: Members of the jury, just to recap in relation to that first charge of manslaughter, the essence of it is that the Crown alleges that the accused drove the front-end loader in circumstances which created, objectively – that’s to say that a reasonable person in his position would have or ought to have realised that he was creating a high risk that serious injury or death would follow his actions . That’s the essence of it, together with such a serious disregard for the safety of the boys and Michael Milne in particular, that you are satisfied that this was negligence of such a high order as to amount to, to use an old phrase in the law, wicked negligence and of itself a crime against the community. You understand, members of the jury, that it doesn’t matter whether the accused intended or not to inflict serious hurt or death and nobody suggests that he did. It’s an objective test whether, in all of those circumstances, a reasonable person in his position would have realised or ought to have realised the danger that was being created, that’s the essence of it .” (emphasis added)

Counsel for the appellant opened to the jury at the conclusion of the Crown’s opening. He did not take issue with the Crown Prosecutor’s references to an objective test and to the irrelevance of whether the appellant intended or not to inflict serious hurt or death. He appeared to accept those matters, including as extended to the charge of dangerous driving causing death, saying - “First, members of the jury, it is disputed that objectively Mr Lavender was driving in a manner dangerous to the public or to a person or persons. Objectively has been explained to you by my learned friend, no doubt you’ll hear more about it. But what it doesn’t mean is with the wisdom of hindsight. That’s what it doesn’t mean. In other words looking back on what we all now know members of the jury is not the way to assess whether objectively the driving or the manner of driving was dangerous to a person or persons.”

In relation to the charge of manslaughter, the thrust of counsel’s opening was that the appellant’s actions did not “[come] anywhere near the kind of degree of negligence contemplated by a manslaughter charge”, and that Michael Milne’s death was not attributable to the appellant’s actions but to his own “unexpected and unpredictable act”. Counsel summarised the appellant’s position - “It is disputed that Mr Lavender drove in a manner dangerous. It is disputed that the Crown would be in a position to establish the high degree of negligence required for a charge of manslaughter. It will be disputed that Mr Lavender’s acts caused the death of Michael Milne and it will be disputed that the death was in any way attributable to those acts.”

There was a hint of regard to the appellant’s belief, but no more, when towards the end of counsel’s opening he said - “You will be, I anticipate invited by me to infer, that he had simply no idea that the boy would take the action which I have described as unpredictable, that action of hiding in that area, in the path of the car. And you might think relevant to that is evidence you’ll hear as to the noise of the vehicle and evidence again of the speed of the vehicle and evidence of Mr Roddom, Aaron Roddom, as to what he did.”

As I have said, the appellant did not give evidence. The interviews recorded in the videos did not deal with the appellant’s belief as to whether it was safe for him to proceed, save that in relation to turning off the track and having to push a lot of dead timber over - “Q197 Would, I know this probably a hard question to answer, with the advantage of hindsight, but wouldn’t you think that was dangerous? A Well the boys were a long way in front of me by then. Q198 But wasn’t it the case that initially you’ve seen four boys, on the sand pile? A I did see four on the sand pile, yeah. Q199 So at this stage you know where two are. A Yeah. Q200 Did you know where the other two were [sic]? A No, I didn’t. … (deleted) SENIOR CONSTABLE BOSWELL Q203 So what were you thinking at the time? A To tell them, to try and stop the boys and tell them to get out of the property, the property.”

In relation to the charge of manslaughter, the Crown Prosecutor’s address to the jury began - “In order for the Crown to make out that offence it has to satisfy you, as I told you at the outset, of the ingredients, the elements that go to make up that offence and they consist of the Crown satisfying you firstly, that Michael Milne died; secondly, that Michael Milne died as a consequence of the actions of the accused; thirdly, that the accused owed a duty of care to Michael Milne, and indeed to any person who was in the vicinity of his loader when it was operating; next, that the accused acted in and with reckless disregard for the safety of the boys, and more particularly Michael Milne; next, that the actions of the accused created a high risk that serious injury or death would follow. You understand that the Crown does not have to establish that the accused intended to create this level of danger, or even that he appreciated there was such a level of danger. Only that in an objective sense, in the sense that a reasonable person observing these events would say to themselves, ‘This conduct has reached this particular level’. I will have more to say about that objective test a little later. It matters not for the purpose of this test whether the accused intended or even appreciated the danger that was being created by his actions . Finally, it is a matter for you as representatives of the community – that’s what you are, that’s what you’re here for – to determine that the actions of the accused were of such a high disregard for the safety of Michael Milne as to amount of itself to a crime; to amount of itself to conduct deserving of punishment.” (emphasis added)

The Crown Prosecutor later spoke of “this objective test of negligence of conduct amounting to driving in a manner dangerous”, and his address was predicated on an objective test as to both the charge of manslaughter and the charge of dangerous driving occasioning death.

Only towards the end of the address of counsel for the appellant was there reference to the appellant’s belief that it was safe to proceed. Counsel said, after referring to some evidence of the boys’ movements through the scrub (the transcript appears to have errors, but the substance is there) - “ … Mr Lavender thought it was safe to proceed. He thought it was safe to continue on that track, having gone through it once and out the other side and coming back, he thought it was safe to proceed. I’d ask you to infer that that is what he believed and that he believed it honestly and that he believed it reasonably. And that’s where my learned friend says his state of mind has nothing to do with it, where, perhaps, that’s putting it a bit strong. Submit that he honestly and reasonably held the belief that it was safe to proceed and that the fatal moment happened after that dramatic conversation between Mr Roddom and Mr Milne in which Mr Milne made that decision. My respectful submission those findings of fact are put not guilty verdicts in relation to both of these charges. I submit that commonsense and an application of the directions that his Honour will give you about this crime of felonious slaying or manslaughter, or gross or criminal negligence, would lead you to the conclusion that Mr Lavender did not act with such a high degree of recklessness as to found, by community standards, a conviction for that crime. I submit to you in relation to the second charge, members of the jury, that those facts, as I urge you to find them, are such that objectively he was not driving in a manner dangerous to the public. I don’t mean to be repetitive, and I am, but objectively does not mean objectively (with the benefit of hindsight) or knowing what we know now.”

A little later counsel said, referring to both charges - “Fifth, that Mr Lavender honestly and reasonably believe that he was safe to proceed. These crimes are not absolute crimes, they’re not crimes of intention, but nor are they absolute crimes. That is to say, a crime where the Crown doesn’t have to prove any state of mind. No, if he honestly and reasonably believed in a set of facts which, if true, would render his actions innocent then he is to be found not guilty.”

It is unfortunate that the question of the appellant’s belief, more specifically his honest and reasonable belief that it was safe to proceed, arose in this way and, it must be said, in a rather confusing manner. There had been no indication that it was to be raised with the jury. The judge was placed in a difficult position if, as turned out to be the case, he ruled that the appellant’s honest and reasonable belief should not be part of his directions to the jury. And the judge and the Crown were hampered by lack of notice in the consideration they could give to what the appeal has shown to be a difficult area. The summing-up

The transcript records, at the conclusion of the address of counsel for the appellant and before adjournment to the next day - “IN THE ABSENCE OF THE JURY HIS HONOUR: Mr Hamill, you’ve raised in your address the defence under section 52A? HAMILL: Yes your Honour. HIS HONOUR: And I take it you want me to put that to the jury? HAMILL: Yes your Honour. HIS HONOUR: And you’ve also raised the Proudman v Dayman issue? HAMILL: Yes your Honour. HIS HONOUR: What do you say about that Mr Crown? CROWN PROSECUTOR: Well your Honour, that’s available to my friend - HIS HONOUR: Yes. CROWN PROSECUTOR: - it’s subsumed within the section and the Crown simply says that the actions weren’t reasonable. As it does in regard to any question of lawfulness. Of the actions of the boys I mean, in being on the site at all.”

The “defence under section 52A” appears to have been the defence in s 52A(8) of the Crimes Act , relevantly that the death occasioned by the impact was not in any way attributable to the speed at or manner in which the vehicle was driven. The “ Proudman v Dayman issue” was a reference to the defence of honest and reasonable mistake considered in Proudman v Dayman (1941) 67 CLR 536. In relation to the offence of permitting an unlicensed driver to drive a motor vehicle on a road, in that case Dixon J said (at 540) - “It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. 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 doing what would otherwise be an offence.”

The appellant submitted that the Crown accepted at this point that the jury should be directed that it was for the prosecution to exclude an honest and reasonable belief in the appellant that it was safe to proceed, and that the Crown later reneged. I do not agree. The Crown Prosecutor appears to have taken the “ Proudman v Dayman issue” as material only to the charge of dangerous driving occasioning death, perhaps because the judge referred to it immediately after referring to “the defence under s 52A”, and his response was that it was “subsumed within the section”. He appears to have meant that the “issue” was available to the appellant in that proof of objectively dangerous driving necessarily negated a reasonable belief that it was safe to proceed. The Crown Prosecutor’s perception of the materiality of the issue, and his response, may have been incorrect, but the debate on the next day suggests that he would have responded in a similar way in relation to the charge of manslaughter. There was confusion, perhaps because of the unfortunate way in which the question of the appellant’s belief arose. It does not matter. Whatever the Crown’s immediate response, the appellant’s appeal is concerned with the correctness of the course ultimately taken.

The next morning the judge provided to counsel written statements of the elements of each of the offences with which the appellant was charged. He proposed that they be provided to the jury. The statement in relation to the charge of manslaughter was - “ COUNT 1 - Manslaughter The Crown must prove to your satisfaction beyond reasonable doubt ALL of the following: 1. That on 2 October 2001 the accused had a duty of care to Michael Milne. 2. That the accused was negligent in that by his actions that day he was in breach of that duty of care. 3. That such actions were deliberate. 4. That such actions of the accused caused the death of Michael Milne. 5. That such actions: (i) fell so far short of the standard of care which a reasonable person would have expected in the circumstances; and (ii) involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.”

The Crown had no objection to the form of the statement. Counsel for the appellant said - “HAMILL: You Honour, I would invite your Honour to add, in relation to the manslaughter, a sixth element, being that the accused did not hold an honest and reasonable belief that it was safe to proceed.”

Counsel did not ask for a similar addition in relation to dangerous driving occasioning death: perhaps he would have done so in due course, but the debate moved on. The judge said - “HIS HONOUR: Well, that was the next thing I was going to talk to you about. I don’t see any room for a Proudman v Dayman type issue in either of these counts. If the Crown establishes the necessary element of negligence to the required degree, he couldn’t, in any circumstances, as a matter of law, I would have thought, the test being an objective one, have said that the accused may have had a reasonable belief that it was safe to proceed. Likewise with the count of driving in a manner dangerous.”

In the exchanges which followed counsel for the appellant referred to Jiminez v The Queen (1992) 173 CLR 572, a case of dangerous driving occasioning death in which it was held that the defence of honest and reasonable mistake was available. He submitted that “the same applies here”, and that the jury could infer from the records of interview that the appellant “believed in all the circumstances that it was safe to drive”. The transcript records - “HIS HONOUR: There is no doubt in my mind that the jury would be entitled to draw a conclusion, on the evidence, that Mr Lavender thought it was safe to drive into the bush. But the question of reasonableness is an objective test, is it not? HAMILL: It’s an objective test, as it is in dangerous driving, and as it was in Jiminez. HIS HONOUR: Well, in the manslaughter count, before the Crown could succeed, the jury would have to find objectively that the accused was negligent and that that negligence was of such a high degree that it merited criminal punishment. Also as a matter of objectivity, how can it then be said that he could have held a reasonable belief that it was safe to proceed, if the jury are satisfied of that? HAMILL: But the same applies, in my submission, as a matter of principle to that case of Jiminez.”

The judge called on the Crown. The Crown Prosecutor submitted that there was “nothing in the evidence that would support the holding on the part of the accused of such a positive belief [as to safety to proceed], as distinct from simply not adverting to the possibility”. The judge said that he was “against you on that”, and asked, “But what about the question of reasonableness?”

The judge expressed some discontent with the Crown’s response to this question, it seems because the response was to the effect that the evidence did not support the holding of a reasonable belief and his Honour thought that it did not engage with whether there was room for the defence of honest and reasonable mistake. The transcript records - “HIS HONOUR: I think what I am trying to say, Mr Crown, is that the Proudman v Dayman type issue, in such cases as Jiminez, seems to arrive in the main where there is some latent defect, such as in a dangerous driving situation, where a person is driving with defective brakes, that they may not know it and may not have any cause to know it, so that the driving is objectively dangerous, but because of that, because they hold an honest and reasonable belief that the case is in sound mechanical order, they are entitled to be acquitted on the Proudman v Dayman issue. And likewise in Jiminez, where the driving was said to have been dangerous because the accused went to sleep, it was, as I understand it, applicable in that case because he, whilst the driving was objectively dangerous, he had no warning that he was about to go to sleep and held an honest and reasonable belief in the circumstances, or may have, that it was safe to proceed. But those cases seem to be to be different to a case such as here, where no such latent problem arises, but where it’s the manner of driving that is very much in issue, and at all relevant times the evidence is that the accused was acting voluntarily. So that if the jury were satisfied beyond reasonable doubt on count 1, that the accused was negligent and that that negligence was of such a high degree that it warranted criminal punishment as being an offence against the State, it couldn’t then be said that any belief that he had that it was safe to proceed was reasonable. Likewise in the case of driving in a manner dangerous, if the jury was satisfied beyond reasonable doubt that the driving was dangerous in the way in which the Crown alleges, then it couldn’t be said, the test also being an objective one, that any belief that Mr Lavender had could have been a reasonable belief. That’s as I see it. CROWN PROSECUTOR: With respect, your Honour, I agree. HIS HONOUR: If the jury aren’t satisfied that the negligence was of such a high degree in count 1 as to constitute that element of manslaughter, then they don’t get to a Proudman v Dayman situation; the verdict is not guilty. Likewise, if they are not satisfied beyond reasonable doubt that the driving alleged in count 2 was dangerous in the sense in which the Crown alleges, gain they don’t get to the Proudman v Dayman issue. Whereas in the cases that I have researched, and in particular in Jiminez, it was only after, really, the jury concluded that the driving objectively was dangerous that the Proudman v Dayman issue then arose. It seems to me it can’t arise in these charges. CROWN PROSECUTOR: Yes, your Honour, I agree.”

The judge returned to counsel for the appellant. Their exchanges included - “HIS HONOUR: Do you say that a jury could come to the conclusion objectively in count 1 that the negligence – that there was negligence and that it was of such a high degree that it was deserving of criminal punishment, but that, nonetheless, the accused may have held a belief that it was safe to proceed and that belief objectively was reasonable? HAMILL: Yes. HIS HONOUR: That seems to me to make no sense at all.”

Counsel for the appellant referred to no authority other than Jiminez v The Queen. The Crown Prosecutor referred to no authority at all. The judge did not receive much assistance, although his Honour had clearly given much thought to the problem overnight and spoke of “the cases I have researched”. In the end the judge ruled - “HIS HONOUR: My view is, Mr Hamill, that for the reasons that I have said already, that whilst in some cases a Proudman v Dayman type issue could arise, it can’t in these circumstances, and I wouldn’t direct the jury on it.”

The written statements of the elements of the offences were used in the summing-up. The judge appropriately directed the jury as to the need for a high degree of negligence for the crime of manslaughter. Having summarised the Crown and defence cases as to the extent of negligence, the judge said - “Now members of the jury, they are matters for you to determine. A determination of this question of negligence and the degree of negligence is an objective test. You have to compare the conduct of the accused, as you find it to have been, with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused in the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have, and determine on that basis whether the Crown has made out its case. In other words, it is an objective test. The Crown does not have to prove that the accused appreciated that he was being negligent or that he was being negligent to such a high degree . It is your task to determine whether having decided on the conduct of the accused, whether his actions amounted to negligence based upon, as I say, what you think a reasonable person in the position of the accused would have done.” (emphasis added)

As he moved to the charge of dangerous driving occasioning death, the judge said - “Can I just reiterate members of the jury, it is immaterial in this case, both in relation to count 1 and count 2, what the accused believed to be the case at the time . The test is an objective one, that is to say you must try to put yourself in the position of a reasonable person in the position of the accused, same age, knowing what he knows and a person of ordinary fortitude and strength of mind, and ask yourselves would that person have done what the accused did. Was it reasonable for him to have done that? If not, were his actions negligent, were they deliberate, and I do not mean deliberate in the sense of intending to hurt Michael Milne, no one has suggested that, but deliberate in the sense that he had control over his vehicle . Were the actions the cause of Michael Milne’s death and were the actions so far short of the standard of care which a reasonable person would have exercised, and did they involve such a high risk of death or really serious bodily injury that would follow that they merit criminal punishment?” (emphasis added)

In the directions as to dangerous driving occasioning death the judge again said that the test as to whether the appellant’s conduct was dangerous was an objective one, that “[i]t does not matter whether the accused thought his driving was safe or dangerous”, and that “the Crown does not have to establish that the accused knew or realised that his driving was dangerous”.

In conformity with the earlier ruling, no direction was given that it was for the Crown to prove that the appellant did not hold an honest and reasonable belief that it was safe to proceed.

At the conclusion of the summing-up the judge asked if there were any matters to be raised. The Crown Prosecutor had none. Counsel for the appellant said - “ … The first thing just concerns the question that we discussed before, your Honour’s comments in relation to the accused’s belief in the course of your summing-up. Obviously my submission is that those are erroneous and effectively make the offences absolute offences when they’re not, and I know your Honour’s heard me on that. So that’s the first one. But that’s really a question of the applicability of the honest and reasonable mistake which your Honour heard me on before the summing-up. HIS HONOUR: Yes.” Categories of offences

The criminal law has distinguished between offences which require mens rea, offences which do not require mens rea but for which a defence of honest and reasonable mistake is available, and offences which neither require mens rea nor have a defence of honest and reasonable mistake. If the offence requires mens rea, the prosecution must prove that the accused had a state of mind necessary for the offence. Depending on the offence, the state of mind may be motive, intention, recklessness, or particular knowledge or belief. If mens rea is not required but a defence of honest and reasonable mistake is available, the accused must raise the existence of reasonable grounds for believing in, and belief in, a state of facts which if true would mean the offence had not been committed, and it is then for the prosecution to negate the belief or its reasonableness. If mens rea is not required and the defence of honest and reasonable mistake is not available, the offence is said to be absolute.

This taxonomy, not universally reflected in the cases or the language used in the cases, has become more significant with the growth of statutory offences, for which it must be decided whether a state of mind is an ingredient of the offence and, if not, whether the defence of honest and reasonable mistake is available. Proudman v Dayman provides an illustration. Each of Rich ACJ and Dixon and McTiernan JJ held that the prosecution did not have to prove knowledge that the driver was unlicensed (at 538, 541-2, and 542-3). Rich ACJ and Dixon J considered that the question of honest and reasonable mistake did not arise on the facts (at 538-9,541), but Dixon J went on to say that the defence of honest and reasonable mistake was distinct from the requirement of mens rea and would have been available (at 541). McTiernan J considered that the defence of honest and reasonable mistake was not available, but on the basis that it was the obverse of a requirement of mens rea (at 542-3).

Dixon J distinguished between the requirement of mens rea and the defence of honest and reasonable mistake, and described the availability of the latter, as follows - “It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. 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 doing what would otherwise be an offence. The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one. Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation. But, although it has been said that in construing a modern statute a presumption as to mens rea does not exist (per Kennedy L.J, Hobbs v. Winchester Corporation , it is probably still true that, unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence. There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also. Doubtless over a wide description of legislation the presumption in favour of its application is but a weak one: See Maher v. Musson ; Thomas v. The King , and three papers referred to in that report. But it still remains a presumption, and in relation to s. 30 there appears to be no sufficient reason for treating it as rebutted. The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt. But, in the present case, the applicant assigned reasons for her alleged belief which neither the magistrate nor the Full Court found convincing or sufficient. Indeed, it may be doubted if she thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting licence.”

The tripartite categorisation is reflected in the statement in Jiminez v The Queen at 581-2 - “A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake. In a well-known passage in Proudman v Dayman , Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute.”

I have observed that the taxonomy is not universally reflected in the cases or the language used in the cases. In He Kaw Teh v The Queen (1984) 157 CLR 523 Gibbs CJ observed at 533 - “These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. However there are a number of questions which have not been clearly answered. The first is whether the absence of an honest and reasonable belief in the existence of facts which would have made the act innocent is a form of mens rea or whether, on the other hand, an honest and reasonable mistake affords the accused a defence only when he is charged with an offence of which mens rea is not an element. … ” His Honour noted (at 534) that in some cases absence of mens rea had been equated with the honest and reasonable but mistaken belief of the accused. (McTiernan J in Proudman v Dayman took this approach.)

Gibbs CJ added - “It may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring mens rea, or as something the absence of which constitutes mens rea. The matter is largely one of words. On either view the words of the statute and the nature of the offence must be considered in deciding what mental state is required, and whether an objective test of reasonableness is to be applied together with the subjective test of whether there was a mistaken belief.”

In He Kaw Teh v The Queen itself Brennan J referred to the absence of an honest and reasonable but mistaken belief as “a form of mens rea at common law and an element of the offence which the Crown must prove” (at 574), but apparently accepted that it was necessary for the accused to “raise a reasonable doubt as to [the belief’s] non-existence” (ibid). Dawson J distinguished between “mens rea as an ingredient of the offence to be proved by the prosecution” and, if not, an offence “of strict liability which, while not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation” (at 590). His Honour regarded the latter as “a mental element imported into the offence of strict liability short of requiring proof of mens rea by the prosecution” (ibid), which no doubt explains his observation that “[t]he defence of honest and reasonable mistake stems from the common law requirement of a guilty mind and it is not, as it is sometimes put, a defence based solely or even primarily upon the absence of negligence” (at 592).

In R v Wampfler (1987) 11 NSWLR 541 at 546 Street CJ, with whom Hunt and McInerney JJ agreed, rather blended the concepts - “He Kaw Teh is authority for the proposition that for the purpose of considering criminal intent, statutory offences fall into three categories: (1) Those in which there is an original obligation on the prosecution to prove mens rea. (2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. (3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.”

There is a difference between a state of mind which the prosecution must prove in the first instance and a belief which the prosecution must negate once a basis has appeared for the accused honestly and reasonably holding it. Further, an honestly but unreasonably held belief may negative a necessary state of mind, but the defence of honest and reasonable mistake looks beyond mere belief to the belief being honestly held and upon reasonable grounds. The difference should be recognised, and remains notwithstanding that, as Dawson J said in He Kaw Teh v The Queen at 592-3 - “No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.” The questions in the appellant’s appeal

The principal question, found in the original ground 1, was concerned with the defence of honest and reasonable mistake. The assertion in ground 1 of error in directing the jury that the appellant’s belief was immaterial was another way of expressing error in declining to direct the jury on the “ Proudman v Dayman issue”. The question involved the sub-questions whether the defence was available at all, and if it was, whether there was evidence which raised it so that it fell to the Crown to negate the holding of the belief or that the belief was held honestly and on reasonable grounds.

Ground 2 must have been concerned with something else. On one view it was concerned with mens rea, and the question was whether, quite apart from negation of an honest and reasonable mistake, it was necessary for the prosecution to prove a state of mind to which the appellant’s belief was relevant. On another view it was not concerned with mens rea, and the question was whether the belief of the appellant was relevant to determining whether the Crown had proved a high degree of negligence.

Ground 3 was consistent with the latter view of ground 2. If it was not necessary for the prosecution to prove a state of mind to which the appellant’s belief was relevant, a negative answer to the principal question would mean that the offence was an absolute one. Alternatively, ground 3 could have been intended to reinforce the former view of ground 2. In either event, it did not add anything.

It was tolerably clear that Ground 2 was intended to assert error in that the belief of the appellant was relevant to determining whether the Crown had proved a high degree of negligence. Whether it was intended to assert error in relation to mens rea was obscured by generalities and imprecision in the submissions. I have earlier referred to the circumstances whereby there was not clarification and development from oral argument. There was sufficient suggestion of the latter error, however, that the better course is to address both questions within ground 2.

The appellant’s submissions relied on s 18(2)(a) of the Crimes Act . In considering the questions in the appellant’s appeal I will initially pass over that provision, and will come to it separately later in these reasons. The principal question in the appellant’s appeal: the defence of honest and reasonable mistake

The two categories of involuntary manslaughter at common law are (a) causing death by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and (b) causing death by criminal negligence ( Wilson v The Queen (1992) 174 CLR 313 at 333).

The element of lack of care in manslaughter by criminal negligence has been variously stated. An accepted statement, on which the judge’s directions were founded, is that in Nydam v The Queen (1977) VR 430 at 445, namely - “ … 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”.

The obvious difficulty in applying the notion of meriting criminal punishment has often been noted, but was not in issue in the appeal. There must be lack of care and risk of death or injury to a degree meriting criminal punishment, hence the shorthand of criminal negligence. Lack of care is at the heart of this category of the offence, and it is judged objectively by the standard of the care a reasonable person in the position of the accused would have exercised.

Neither at the trial nor on appeal did the appellant dispute that the lack of care alleged against him was to be assessed objectively, according to the standard of care a reasonable person in the position of the appellant would have exercised and thus with the consciousness a reasonable person in that position would have had of the risk to the boys. At the trial the issue was not one of mens rea, but of the defence of honest and reasonable mistake. (a) Was the defence available at all?

Dixon J in Proudman v Dayman referred to the defence of honest and reasonable mistake “[a]s a general rule” (at 541). A general rule is not a universal rule. Just as in the case of statutory offence the general rule may be excluded by “the words, context, subject matter or general nature of the enactment” (ibid), so also it may be excluded by the nature of the common law offence.

The Crown case of manslaughter was that the appellant had been negligent to a high degree, his lack of care being assessed objectively. As a matter of principle the defence of honest and reasonable mistake was not available. If the prosecution proved negligence to a high degree, objectively assessed, there could not be reasonable grounds for belief in a state of facts which, if true, would mean that the offence had not been committed; on the same objective assessment, any such belief formed by the appellant could not be a reasonable belief. That was the judge’s reasoning, and while it may not have been correct as to dangerous driving occasioning death I consider that it was correct as to manslaughter.

The appellant relied on R v Lamb (1967) 2 QB 981 and Jiminez v The Queen .

In R v Lamb the accused was charged with manslaughter by an unlawful and dangerous act and by criminal negligence. He pointed a revolver at his friend, in jest, and pulled the trigger. The revolver had two bullets in the chambers, neither being opposite the barrel, and he did not intend to fire a bullet. Pulling the trigger rotated the chambers and placed a bullet opposite the barrel, so that it fired. The accused’s defences included that he was not aware that pulling the trigger would bring a bullet into the firing position opposite the barrel and that the killing was an accident. There was evidence that the accused’s mistake was natural for someone unaware of the way in which the revolver’s mechanism worked.

The directions were such that this defence was not left to the jury. On appeal it was said by Sachs LJ (at 990) - “When the gravamen of a charge is criminal negligence – often referred to as recklessness – of an accused, the jury have to consider among other matters the state of his mind, and that includes the question of whether or not he thought that that which he was doing was safe. In the present case it would, of course, have been fully open to a jury, if properly directed to find the defendant guilty because they considered his view as to there being no danger was formed in a criminally negligent way. But he was entitled to a direction that the jury should take into account the fact that he had undisputedly formed that view and that there was expert evidence as to this being an understandable view.”

The appellant submitted that this supported the defence of honest and reasonable mistake. He said that underlying it was that the accused honestly and reasonably believed that a bullet would not be brought into the firing position opposite the barrel, a fact which if true would make his act innocent. I do not agree. When considering mens rea later in these reasons I refer to the ambiguity of recklessness and to the former recognition in England of reckless manslaughter. R v Lamb was an instance of importation of recklessness into manslaughter, whereby the accused’s state of mind became relevant. That was different from the defence of honest and reasonable mistake. The accused’s belief of itself would not have made his act innocent, because holding the belief was consistent with lack of care in, amongst other things, coming to and acting on the belief. This passage from R v Lamb was not concerned with the defence of honest and reasonable mistake.

The appellant in R v Taylor (1983) 9 A Crim R 358, a case of manslaughter by overdosing a sedative, relied on the same passage in R v Lamb . She submitted that a doctor’s advice that it was safe to use a dosage over 5 ml might have led to a mistaken belief in the safety of a large dose. Lush J, with whom Young CJ and O’Bryan J agreed, said (at 359-60) - “The first sentence quoted from the judgment of Sachs LJ is, with respect, not good law either in England or in Victoria. In England, in Newbury [1977] AC 500 at 509, Lord Salmon treated Lamb’s case as not opposed to the general body of authority that in manslaughter all that is required is an intention to do the acts which led to death. In the same speech, at 506-507, his Lordship approved authority which makes it clear that in manslaughter the question whether what was done was dangerous is to be objectively determined without regard to the particular belief of the accused. In Victoria the sentence under discussion is diametrically opposed to a statement of this Court on the same point in Nydam [1977] VR 430 at 444: ‘The requisite mens rea in the latter crime’ (that is manslaughter by negligence) ‘does not involve a consciousness on the part of the accused of the likelihood of his acts causing death or serious bodily harm to the victim … ‘. This Court has in a recent case, Wills [1983] VR 201, again applied the objective test to the determination of the potential danger of the accused’s acts, and has commented on the question of the ’circumstances’ which are relevant to the formation of the objective assessment. The final sentence quoted from the judgment of Sachs LJ may, if I may say so with respect, be accepted as a statement that in inquiring whether a reasonable man would have realised that the act was dangerous, the jury would have been entitled to consider, and in the circumstances should have been directed to consider, whether a reasonable man might have entertained the mistaken belief held by the accused. All that the applicant was entitled to in the present case was a direction that, in deciding whether or not a reasonable man in all the circumstances would have regarded the administration of a large dose of Noctec as dangerous, they should regard as among the circumstances which were to be taken into account and in which the hypothetical reasonable man was to be placed the facts that the doctors had given the prescriptions and the advice as to dosage to which I have referred.”

R v Lamb was distinguished in R v Lipman (1970) 1 QB 152, a case of manslaughter by an unlawful and dangerous act in which it was said that, apart from the intent necessary for the unlawful act, “no specific intent has to be proved to convict of manslaughter” (at 156). This did not directly bear upon the passage presently under consideration, which was concerned with manslaughter by criminal negligence. If it is not necessary that an accused appreciate that his conduct was dangerous for manslaughter by an unlawful and dangerous act, however, it should not be necessary for manslaughter by criminal negligence. Culpability through unlawfulness is not present, but its equivalent is the high degree of negligence. In Director of Prosecutions v Newbury (1977) AC 500 Lord Salmon said at 509 that R v Lamb was not authority that manslaughter needs more than an intention to do the acts which constitute the crime.

In Jiminez v The Queen the applicant was charged with culpable driving under an earlier version of s 52A of the Crimes Act which required that at the time of the impact causing death he was driving the vehicle “at a speed or in a manner dangerous to the public”. The Crown case was that the applicant had been tired and drowsy and had fallen asleep.

In the judgment of Mason CJ and Brennan, Deane, Dawson, Toohey and Gaudron JJ it was said that for the driving to be dangerous there “must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle”, and it was emphasised “that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public “ (at 579). After citing from McBride v The Queen (1966) 115 CLR 44 at 49-50 per Barwick CJ, their Honours said (at 579-80) - “It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as "driving in a manner dangerous" is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public.”

After referring to the decision in R v Gosney (1971) 55 Crim App R 502, their Honours said (at 583) - “To our eyes what the appellant was attempting to do in Gosney was to establish an honest and reasonable mistake, a defence which, in this country, makes it unnecessary to introduce fault as an element of that offence. Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order. And the same issue is raised when, in a case like the present where the dangerous manner of the driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep. It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. Apart from any inference that might be drawn from the fact that the applicant had fallen asleep, there was little in the evidence to support a finding that the applicant had felt drowsy or that he had reason to believe that he was tired. He had had four hours' sleep shortly before setting out on the trip and a further period of up to three hours while the deceased woman drove the car. He had not been driving for an excessive period before the accident. There was no evidence before the jury that he had consumed any alcohol or drugs. He was thinking of stopping at the next town, but that could be explained by his statement that he intended to have breakfast there. The fact that he slept for some hours after the accident could, in the light of the other evidence including evidence that he was emotionally upset and affected by grief, scarcely found an inference that he had had insufficient sleep beforehand. In these circumstances, the inference that the applicant believed that, in all the circumstances, it was safe to drive might have been drawn by the jury from the very fact of his driving. The absence of any warning of the onset of sleep, if the jury found that there had been none, laid a foundation for that being an honest and reasonable belief. Lack of warning as to the onset of sleep is only one of a number of circumstances that may bear on the question whether a driver honestly and reasonably believed that it was safe for him to drive. Ordinarily, the circumstances which bear on whether the driving was dangerous will also bear on this question. If, in a case based on tiredness, there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must be instructed with respect to that issue. In particular, they must be told that if they conclude that the driving was a danger to the public, they must also consider whether the driver might honestly have believed on reasonable grounds that it was safe for him to drive. And, of course, they must be instructed in appropriate terms that the onus of negativing that defence rests with the prosecution.”

The appellant cited R v Warner (1979) 1 A Crim R 18, without explanation but presumably for the observation (at 21), with reference to R v Gosney (1971) 2 QB 674 at 680, that fault or culpability on the part of the driver was necessary for dangerous driving. In R v Buttsworth (1983) 1 NSWLR 658 O’Brien CJ of Cr D, with whom Street CJ and Nagle CJ at CL agreed, considered that dangerous driving involved “a degree of negligence for the safety of other road users” (at 686), and although accepting that it was not sufficient to describe it as a degree of negligent driving said that it was correctly described as “being that degree of negligence which amounts to a manner of driving which is dangerous to the public”. I do not think this has survived Jiminez v The Queen . Driving without due care and attention may amount to dangerous driving, but the negligence is not what makes the offence.

The appellant submitted, as had been submitted to the judge, that the acceptance in Jiminez v The Queen of the defence of honest and reasonable mistake flowed through to manslaughter by criminal negligence. He said that the reasoning was equally applicable. I do not agree. In Jiminez v The Queen the offence depended on proof of the driver’s condition, a condition which made his driving dangerous to the public. It did not depend on the driver failing to take due care in falling into that condition or in driving while in that condition, and their Honours did not regard fault as an element of the offence. Since the offence depended on the fact of the driver being affected by tiredness to an extent that his driving was objectively dangerous, there was room for the defence of honest and reasonable mistake as to that fact, described by their Honours as honest and reasonable belief that it was safe to drive. For the reasons I have given, it is otherwise for the offence of manslaughter by criminal negligence.

Jiminez v The Queen has relevantly been considered in two subsequent decisions. Neither assists the appellant’s submission.

In R v Franks (1999) 1 VR 518 the applicant was charged with culpable driving under s 318(2)(b) of the Crimes Act 1958 (Vic), which provided that a person drives a motor vehicle culpably if he drives it - “(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case”. The offence depended on proof of negligence, and it was said that the standard of care of which the provision spoke was “the equivalent of criminal negligence sufficient to support the crime of manslaughter” (at 520).

The applicant had been driving a semi-trailer which collided with the rear of a truck. The Crown case was that the applicant had driven for excessive periods over a number of days leading up to the accident and had had inadequate rest in that time, and that the gross departure from the standard of care of the reasonable driver lay in his continuing to drive the semi-trailer when he was or should have been aware of the risk of falling asleep or being unable to react to foreseeable contingencies. It was held that the jury had been misdirected in a number of respects, only one of which is presently relevant.

Winneke P said (at 527-8) - “It was also erroneous in my view for his Honour to have told the jury that, in considering the “simple issue” of “fatigue”, they could take into account whether the accused “might honestly have believed on reasonable grounds that it was safe for him to drive”. Quite apart from the fact that the jury were not directed to the time at which the accused might have held such a belief, it was simply not relevant to the establishment of the offence created by s. 318 of the Crimes Act, at least where the offence is alleged to have been constituted by “grossly negligent driving”, for the jury to determine whether the accused had an honest belief that it was safe for him to drive or whether that belief was based on reasonable grounds. It seems that his Honour was induced to give such a direction as a consequence of the decision of the High Court in Jiminez v. R. at 582, where the court held that a “defence” of “honest and reasonable mistake” would be available in a charge of “causing death by dangerous driving”. Although such a “defence” can be raised to a charge which depends for its proof upon the Crown establishing that the relevant driving was objectively dangerous, it cannot in my view have any relevance to an offence which depends for its proof upon the establishment that the relevant driving of the accused departed so far from the standard of care expected of the reasonable and prudent driver that it amounted to “gross negligence”. Although Mr. Francis sought to argue before this court that such a “defence” could be raised to the charge in this case, and that the judge had misdirected the jury in respect of it, I cannot accept that contention. The misdirection is to be found in inviting the jury to consider the beliefs of the accused. In a case where it was being asserted by the Crown that the accused had driven for excessive periods over 18 days and had falsely and inaccurately recorded the extent of that driving, an invitation to the jury to consider generally the honesty and reasonableness of the accused’s beliefs was calculated to divert the jury’s attention from the focal issue in the case; an issue which was quite unrelated to his beliefs, whether they were honest or dishonest, reasonable or unreasonable, or otherwise.”

Tadgell JA said (at 532) - “The judge’s instruction to the jury, in effect, that they were at large to decide that the applicant’s driving when fatigued could constitute gross negligence was a misdirection. So also was the instruction that the jury “must decide whether [the applicant] might honestly have believed on reasonable grounds that it was safe for him to drive”. This was not an issue in the case; and to continue by way of instruction to the jury that "[i]f you do come to [the] conclusion that he believed on reasonable grounds that it was safe for him to drive, then of course the prosecution must negate that by the evidence it has adduced” was, I am obliged to say, calculated to confuse the jury as to the onus of proof.”

Batt JA agreed that the trial miscarried in the respects identified by Winneke P, and said (at 533) that Jiminez v The Queen was distinguishable.

In R v Osip (2000) 116 A Crim R 578 the applicant shot a man whom he mistook for deer. He was found guilty of manslaughter by criminal negligence. He submitted that the judge erred in failing to direct the jury that it was for the Crown to exclude beyond reasonable doubt the possibility that when he fired he honestly and reasonably, although mistakenly, believed that he was firing at a deer. Batt JA, with whom Phillips CJ and Tadgell JA agreed, said (at [35]) - “In my opinion, contrary to a submission for the applicant, the ‘defence’ of honest and reasonable mistake is subsumed in the direction as to gross negligence. In essence, the jury could not have been satisfied beyond reasonable doubt that, in his Honour’s words, the act or acts of the accused was or were performed by him ‘in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised … ‘ without concluding that any belief which the applicant had that the target at which he aimed was a deer was not a reasonable belief. Mr Ross submitted that the concept of reasonableness was not to be subsumed into the ‘reasonable man aspect’ of the elements of the offence. Reasonableness in the defence of mistake, he said, had never been synonymous with a reasonable man test and it was submitted that no part of the criminal law where reasonable belief or reasonable mistake is referred to equates such reasonableness with the reasonable man. I disagree. The last few lines of the last passage I have set out from the case relied on, Tutton , are directly against the submission as it also a passage in Bank of NSW v Piper , cited by Gibbs CJ in He Kaw Teh . There is, I think, still room for debate whether involuntary manslaughter is a crime without mens rea (as Canadian cases seem to suggest), or whether, relevantly, the gross negligence constitutes mens rea, in the form, for example, of inadvertence or incautiousness. That view is supported by Nydam, Tolson and various text writers. If, as I am at present inclined to think, that is the better view, it supports Mr McArdle’s submission that the ‘defence’ of honest and reasonable mistake was simply a denial of or joinder of issue on mens rea. Even if involuntary manslaughter has no mens rea, the point is substantially the same, in that the ‘defence’ denies or puts in issue the element of gross negligence. The ‘defence’ is, in short, not a superadded matter to be disproved.” (italics in original)

The applicant had relied, amongst other cases, on Proudman v Dayman and Jiminez v The Queen . Batt JA said (at [36]) that “neither … was a manslaughter case”. After reference to further cases, his Honour said (at [37]) - “Here, however, gross negligence or gross fault is an element of the offence of manslaughter by criminal negligence, and for the reasons I have earlier given it seems to me inescapable that the "defence" of honest and reasonable mistake of fact entails the absence of negligence and that the presence of negligence denies the reasonableness of any relevant mistake. The two cannot co-exist.”

It will be noted that Batt JA adverted to mens rea, as a possibility “in the form … of inadvertence or incautiousness”. If negligence is proved, the accused was inadvertent or incautious. The accused does not have to be aware that he is inadvertent or incautious – the nature of negligence is such that the accused will generally not be so aware. His Honour appears to have referred to mens rea as a way of describing the element of negligence to a high degree, rather than a state of mind in the accused. Whether or not a state of mind in that form is required, there is no occasion for a separate defence of honest and reasonable mistake.

Arguably supporting the appellant’s submission is R v Pacino (1998) 105 A Crim R 309. The deceased was attacked and killed by the applicant’s dogs. The applicant was charged with unlawful killing contrary to s 266 of the Criminal Code (WA) , by which he was under a duty to “use reasonable care and take reasonable precautions” in the control of his dogs to avoid endangering the life, health or safety of others. In Callaghan v The Queen (1952) 87 CLR 115 it was held that the same degree of negligence was required as for manslaughter by criminal negligence. The judge declined to leave to the jury the question of honest and reasonable mistake under s 24 of the Criminal Code , reading - “24. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.”

Kennedy J, with whom Wallwork and Steytler JJ agreed, said (at 319-20) - “It could hardly be described as a case of "grave moral guilt" on the part of the applicant if the Crown should not be able ultimately to exclude beyond reasonable doubt that he had an honest and reasonable but mistaken belief that the dogs were not dangerous. It accords with the general rule that 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 doing what would otherwise be an offence — see Proudman v Dayman (1941) 67 CLR 536, per Dixon J at 540. In my opinion, her Honour erred in holding that a defence under s 24 of the Code was not available to the applicant. In the present case, there was no evidence that the applicant's dogs had ever actually attacked a human, notwithstanding the fact that they, or at least some of them, had been permitted to roam the neighbourhood. The applicant denied that they had ever bitten anyone. The victim had been a frequent visitor to her garden, with no suggestion of her having had any concerns regarding the dogs. The evidence of the applicant was to the effect that he did not believe they presented a risk to anyone. The evidence upon which the Crown fundamentally relied was that of an expert, who drew upon his own background and training to say that the dogs presented a danger. But it remains possible that a reasonable person might honestly have believed that they did not present a risk to humans . In my opinion, therefore, this defence should have been left with the jury. I accept that the question of whether the dogs were such that, in the absence of care or precautions in their care or management, they might endanger the life, safety or health of a person is "a state of things" for the purpose of s 24. I do not accept that the operation of s 24 has been excluded by the implied provisions of s 266. This is not to say that a defence of mistake would necessarily have succeeded in this case. It was, however, a defence which the applicant was entitled to have the jury consider. I would accordingly allow this ground of appeal, with the consequence that the applicant's conviction must be quashed.” (emphasis added)

Kennedy J cited from R v Lamb , including the passage earlier set out, but did not expressly apply that passage. His Honour did not refer to Jiminez v The Queen . There is, with respect, some tension in his Honour’s reasoning. The key to his conclusion appears to have been the emphasised words “that a reasonable person might honestly have believed that [the dogs] did not present a risk to humans”. If the reasonable person could have done so, the Crown failed to prove the requisite negligence. Section 24 of the Criminal Code postulated the applicant’s own belief, but his Honour’s conclusion turned on the reasonable person’s belief and was really concerned with proof of the prosecution case rather than the application of s 24. I do not think the case provides support for the appellant.

In my opinion, the defence of honest and reasonable mistake was not available to the appellant. Treating the request of counsel for the appellant as a request for a direction appropriate to the defence of honest and reasonable mistake, as was clearly enough understood, the judge did not err in declining to give the direction. (b) Was there evidence raising the defence of honest and reasonable mistake?

In the light of what I have said, this does not arise. It is nonetheless appropriate to consider it, on the assumption that the defence of honest and reasonable mistake was available.

I have referred to the judge’s observation that there was evidence from which the jury could conclude that the appellant “thought it was safe to drive into the bush”. Thinking that it was safe to drive into the bush was not the same as reasonably thinking that it was safe to drive into the bush. The Crown Prosecutor seems to have had that in mind when, following the judge’s indication that he considered that the evidence supported the holding of a positive believe as to safety to proceed, he responded to the effect that the evidence did not support the holding of a reasonable belief. The judge’s mind, however, was on whether there was room for the defence of honest and reasonable mistake, and his Honour did not develop his observation.

For the defence of honest and reasonable mistake it was necessary to identify a state of facts which, if true, would mean that the offence had not been committed. There had to be a basis for the appellant honestly and reasonably holding a belief in that state of facts.

In his appeal the appellant initially identified as the state of facts that it was safe to proceed. He referred to the observation in Jiminez v The Queen (at 583, part of the passage set out at [74] above) that an inference that the applicant believed it was safe to drive “might have been drawn by the jury from the very fact of his driving”. The appellant submitted that the mere fact that he drove the loader into the bush founded an inference that he believed it was safe to proceed. I do not agree that the fact that the appellant drove the loader into the bush of itself founded an inference that he believed it was safe to proceed. It was consistent with the appellant not thinking about safety at all and holding no belief as to safety to proceed. I do not think that Jiminez v The Queen supports inference from no more than driving to a belief as to safety in driving. The fact of driving was placed by their Honours in circumstances including reasonable prior sleep and no alcohol or drugs, and the “very fact of his driving” was in those circumstances.

In the present case, however, I consider that there was evidence going beyond driving the loader from which the jury could have inferred that the appellant believed that it was safe to proceed. It is sufficient to refer to the part of the recorded interviews set out in [24] above in which the appellant, when asked whether going through the scrub was dangerous, said, “Well the boys were a long way in front of me by then”. The appellant then accepted that he did not know where two of the boys were, which went to the reasonableness of his belief. But his answer could found an inference that he held a belief that it was safe to proceed, even if his thinking was inadequate and part of his lack of care.

However, I do not think that a belief that it was safe to proceed was a state of facts for the purposes of the defence of honest and reasonable mistake.

In McLuckie v Williams (1995) 82 A Crim R 118 the appellant, an ambulance driver, drove through a red light without using his siren. His ambulance was struck by another vehicle. He was charged with dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA), the offence being driving “in a manner … that is, having regard to all the circumstances of the case, dangerous to the public or to any person”. He relied on s 24 of the Criminal Code , which has been set out above.

Murray J said (at 126) - “As was said in Kaighin , the test as to whether driving is dangerous is objective. It could not therefore be relevant to the potential application of s 24 of the Code that the defendant honestly, or honestly and reasonably, believed that his manner of driving was safe. That would not be a belief in a relevant state of things, but a subjective evaluation of the quality of the driving. As the High Court put it in Coventry (1938) 59 CLR 633 at 637: ‘The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard … ‘.”

His Honour went on to hold that the statutory defence of honest and reasonable mistake was not otherwise made out because the appellant’s (more specific) belief that no other vehicle was approaching the intersection could not have been reasonably held.

In Jiminez v The Queen their Honours spoke of a belief that it was safe for the applicant to drive. That related to the applicant’s condition, not to the carefulness of his driving, and was shorthand for whether he was affected by tiredness to an extent that his driving was objectively dangerous. Negligence does not make the offence of dangerous driving. It is at the heart of manslaughter by criminal negligence. But for both the standard is objective, in the one driving which was dangerous although the driver may have believed he was driving carefully and in the other conduct greatly falling short of the standard of care which a reasonable person would have exercised. The appellant’s belief that it was safe to proceed did not mean that it was safe to proceed or that he was acting with objectively reasonable care.

The appellant then identified as the state of facts that none of the boys was in the path of the loader. He relied principally on the part of the recorded interviews in which he answered that the boys were a long way in front of him, but also on parts of the interviews and other evidence to the effect that the loader was heavy and travelled slowly, that it was noisy, that the closest he thought he got to the boys was about 25 metres and the loader was not gaining on them. He also relied on the evidence that the boy who was with Michael Milne wanted to run away from the loader as it came through the scrub and began to do so, although there was nothing to suggest that he was aware of this.

The appellant had to believe in a state of facts other than the state of facts which existed. Much of what the appellant relied on represented the state of facts which existed, not some other state of facts which if they existed would make the appellant’s conduct innocent. That none of the boys was in the path of the loader could be a state of facts. The appellant’s answer that the boys were a long way in front of him must be read with his immediate acceptance that he did not know where two of the boys were, and does not provide a basis for belief that none of the boys was in the path of the loader. I doubt that, alone or together with the other parts of the records of interview and the other evidence, there was a basis for a belief in the appellant that none of the boys was in the path of the loader. He did not know where two of the boys were. He was chasing them in the loader. That they had been running away and the loader was noisy and fairly slow was hardly sufficient for a belief that they were out of the loader’s path. Whether or not that be correct, I do not think the evidence raised the holding by the appellant of a reasonable belief that none of the boys was in the path of the loader. What I have already said shows why.

The assumption that the defence of honest and reasonable mistake was available becomes untenable as reasonableness of the appellant’s belief is addressed. At an evidentiary level, I consider that it was not incumbent on the judge to direct the jury that it was for the Crown to prove that the appellant did not hold an honest and reasonable belief that it was safe to proceed, or otherwise appropriately to the defence of honest and reasonable mistake. The further questions in the appellant’s appeal: relevance of the appellant’s belief

I have referred to two views of ground 2 and the two questions. The first was concerned with mens rea, and was whether it was necessary for the prosecution to prove a state of mind to which the appellant’s belief was relevant. The second was whether the belief of the appellant was relevant to whether the Crown had proved a high degree of negligence. (a) Mens rea

I take the appellant to have submitted that the appellant’s belief was material because, quite apart from the defence of honest and reasonable mistake, it was for the prosecution to prove a state of mind as an element of the offence and the appellant’s belief went to that state of mind.

That had not been a matter with which the appellant’s counsel troubled the judge at the trial. As has been seen, an objective test was common ground. No objection was taken to the judge’s statement of the elements of the charge of manslaughter on the ground that the third element, “That such actions were deliberate”, was deficient and the prosecution had to prove some other state of mind in the appellant. The debate was as to the defence of honest and reasonable mistake. After the summing-up the only matter relevantly raised, although in terms of the judge’s “comments in relation to the accused’s belief”, was specifically related to “the question that we discussed before” and “the question of the applicability of the honest and reasonable mistake which your Honour heard me on before the summing-up”.

The appellant did not in his appeal suggest a direction as to mens rea which should have been given. He did no more than assert error in directing the jury that his subjective belief was immaterial and did not matter. How it was material and mattered, and what direction should have been given, were left obscure.

It may be that leave pursuant to rule 4 of the Criminal Appeal Rules should be refused, an outcome to which the obscurity in the submissions could contribute. On the other hand, if a state of mind in the appellant was necessary to which his belief went, and the jury were not appropriately directed, the conviction should not be permitted to stand.

In Nydam v The Queen it was held that manslaughter by criminal negligence did not require mens rea, other than in the sense that there must be an intent to do the acts which constitute the offence. With a detailed discussion of the authorities, the Court considered that the negligence was to be measured objectively and that there was no requirement of mens rea involving “a consciousness on the part of the accused of the likelihood of his acts causing death or serious bodily harm to the victim or persons placed in a similar relationship as the victim was to the accused” (at 444). In a passage part of which has already been set out, the Court said that it was 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.” (at 445)

Nydam v The Queen has generally been accepted in this State, and the judge’s directions to the jury were in accordance with it. The Crown submitted that it was approved in Wilson v The Queen at 333, but the approval was confined to the test of a high risk of death or grievous bodily harm as a different test of dangerousness from that required for manslaughter by an unlawful and dangerous act. Wilson v The Queen was a case of manslaughter by an unlawful and dangerous act. The unlawfulness required proof of whatever mens rea was necessary for the crime in question, but the dangerousness was assessed objectively and it was not necessary that the accused intended to commit a dangerous act (see at 325, 327, 334, 336; see also Director of Public Prosecutions v Newbury ). It would not be consistent with that if, for a case of manslaughter by criminal negligence, consciousness of risk of death or grievous bodily harm was required, and to that extent Wilson v The Queen is supportive of Nydam v The Queen .

The appellant’s submission appeared to be no more than that the High Court’s decisions in He Kaw Teh v The Queen and Jiminez v The Queen cast doubt on Nydam v The Queen and that the decision of this Court in R v Taktak (1988) 14 NSWLR 226 did the same.

Jiminez v The Queen has been earlier considered. In He Kaw Teh v The Queen it was held by majority that, for the offence under s 233B(1)(b) of the Customs Act 1901 (Cth) of importing a prohibited import, the prosecution bore the onus of proving that the accused knew that he was importing a prohibited import. Gibbs CJ, with whom Mason J agreed, considered that the common law presumption that “full mens rea” (at 535) was required was not displaced. Brennan J also gave weight to a presumption in favour of mens rea, his Honour including in mens rea absence of honest and reasonable mistake (see at 582-3). Dawson J was less receptive to a presumption of mens rea in a statutory offence, while accepting a presumption in favour of the defence of honest and reasonable mistake (at 591).

In neither of these cases was manslaughter or Nydam v The Queen in question. The common law presumption in favour of mens rea “is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals” ( Sherras v De Rutzen (1895) 1 QB 918 at 921, adopted in He Kaw Teh v The Queen at 529, 566). I do not think He Kaw Teh v The Queen or Jiminez v The Queen cast doubt on Nydam v The Queen.

R v Taktak was a case of manslaughter by criminal negligence. The Crown case was that the accused should have obtained medical treatment for the deceased when the deceased had taken an overdose of drugs, but failed to do so. One ground of appeal was that the trial judge “erred in following Nydam v The Queen … “ (at 236); another was that the verdict was unsafe and unsatisfactory. Yeldham J upheld the latter ground, saying (at 247) that a finding that the accused was criminally negligent could not be supported and that “mere negligence or mere inadvertence is not enough”. His Honour did not address the former ground or refer to Nydam v The Queen . Carruthers and Loveday JJ relevantly agreed with Yeldham J, and in the course of his additional remarks Carruthers J stated the elements of the offence in terms taken from, and with citation of, Nydam v The Queen .

The appellant relied on the citation by Yeldham J of a passage from R v Stone (1977) 1 QB 354, which should be seen in its context (at 247) - “But in any event, whether the likely time of death be as Dr Brighton said, or whether Dr d'Souza's evidence, which is the subject of challenge, is to be preferred, I am of the view that any conclusion that the appellant was guilty of manslaughter, having regard to the high degree of negligence required, should be set aside as being unsafe and unsatisfactory. I mention but few of the authorities. In R v Nicholls Brett J (at 76) told the jury that a grown up person who chooses to undertake the charge of a human creature who is helpless is bound to execute that charge "without (at all events) wicked negligence ... Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of the opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not". In R v Bonnyman (1942) 86 Sol Jo 274; 28 Cr App R 131, the Lord Chief Justice, after referring to R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8 and to Andrews reiterated the need for "a very high degree of negligence" to be proved before the felony of manslaughter is established. In R v Stone & Dobinson it was said that "... it is to Andrews v Director of Public Prosecutions ... that one must turn to discover the definition of the requisite degree of negligence". At 363 reference is made to the words of Lord Hewart CJ in R v Bateman which were quoted with approval by Lord Atkin in Andrews (at 582). In R v Stone & Dobinson it is said that: ‘It is clear from that passage that indifference to an obvious risk, and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness ... What the prosecution have to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant's conduct could properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.’: see also R v Holzer [1968] VR 481.’ In the present case, although it is clear that a doctor should have been called to the deceased at an early stage, and that (assuming she was then alive) if he had given her the appropriate treatment, she may well not have died, I consider that a finding that the appellant was criminally negligent cannot be supported. Mere negligence or mere inadvertence is not enough.”

The appellant’s submission must have been that the reference to recklessness in determination to run a foreseen risk endorsed a necessary state of mind beyond that thought sufficient in Nydam v The Queen .

The high degree of negligence required for the present category of manslaughter has on occasions been described as recklessness. The language can mislead. Recklessness can mean acting negligently unaware of the risk of death or grievous bodily harm, or acting despite awareness of the risk of death or grievous bodily harm. If there is reckless indifference to human life, the offence is murder ( Crimes Act , s 18(1)(a)). Hence in Nydam v The Queen the Court sought to distinguish between murder by recklessness and manslaughter by criminal negligence (at 444-5), and arrived at the statement of the latter earlier set out. R v Holzer (1968) VR 481, which had required for manslaughter recklessness in the sense of realisation of a risk of serious bodily injury, was disapproved.

In England the ambiguity of recklessness as spoken of in Andrews v Director of Public Prosecutions (1937) AC 576 led to a number of cases in which reckless manslaughter, involving acting despite awareness of the dangerousness, was recognised. As I have said, R v Lamb was an instance of importation of recklessness into manslaughter. The place of recklessness was reconsidered in The Queen v Adomako (1995) 1 AC 171, in which the use of “reckless” was accepted “in the ordinary connotation of that word” (at 187), as a use to indicate “the extent to which a defendant’s conduct must deviate from that of a proper standard of care” (at 189). R v Stone was described as a use of the word in that ordinary connotation (at 187). Despite the label of ordinary use of the word, recklessness became a statement of severe departure from the standard of care of the reasonable person.

R v Stone was an example of recognition of reckless manslaughter. It was ambivalent, referring also to indifference to risk as distinct from appreciation of risk. So far as it referred to determination to run a foreseen risk, that was a sufficient but not necessary state of mind, and as a necessary state of mind could not stand with Nydam v The Queen . It is scarcely conceivable that Yeldham J was unaware of the import of Nydam v The Queen , and intended so casually to depart from it and to reinstate R v Holzer . Nor can Carruthers J have believed that that was entailed in his agreement. In my opinion, Yeldham J was not concerned with the accused’s consciousness of risk or of his negligence. His Honour was concerned with the necessary degree of negligence, being more than mere negligence or mere inadvertence, and cited R v Stone , together with other cases, in that connection. This anticipated its interpretation as a case of recklessness in deviation from the proper standard of care. I do not think that R v Taktak calls for departure from the acceptance in this State of Nydam v The Queen .

The Crown case against the appellant was not one of recklessness in negligently exposing the boys to a foreseen risk. It was expressly that a reasonable person in the appellant’s position would or ought to have realised that he was creating a high risk that serious injury or death would follow his actions. No reason has been shown for the judge departing from Nydam v The Queen and directing the jury that the prosecution had to prove that the appellant had a state of mind beyond an intention to do the acts which constituted the offence. To repeat, the appellant did not say how his subjective belief was material and mattered. Assuming he meant that it was necessary for the Crown to prove that he did not believe that it was safe to proceed, as the context would suggest, I do not think that it was necessary, and the Crown case did not make his belief relevant.

Since writing the foregoing I have read the reasons of Hulme and Adams JJ in draft. Their Honours have gone far beyond the appellant’s submissions as to mens rea.

Adams J considers that it is necessary that the accused realised that there was an appreciable risk of death or grievous bodily harm and continued despite it. His Honour sees realisation and continuance as providing the “moral turpitude” involved in departure from an objective standard of care deserving criminal punishment. I respectfully suggest that appreciation of risk is not necessary for a sufficiently great falling short of the objective standard of care, and that the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger. Hulme J considers that it is not necessary that there be awareness of risk or indifference to consequences. His Honour’s discussion of the cases confirms my conclusion that it was not necessary for the Crown to prove that the appellant did not believe that it was safe to proceed. (b) Extent of negligence

The appellant submitted that his belief was material because the jury could “consider the question of the appellant’s belief in a practical way as being a factor to take into account when determining the question of whether his acts amounted to ‘criminal’ or ‘gross’ negligence”.

At the trial counsel for the appellant did not invite the jury to use a belief that it was safe to drive the loader as a litmus test for objective reasonableness. Counsel addressed on a defence of honest and reasonable mistake. Nor did counsel ask the judge to direct the jury that the appellant’s belief was a factor to be taken into account when determining whether he was negligent or in determining the extent of his negligence. Counsel asked for a direction as to the defence of honest and reasonable mistake.

As I have indicated, the unfortunate way in which the defence arose placed the judge in a difficult position. It was necessary for him to make clear to the jury, having ruled that the defence of honest and reasonable mistake was not available, that the defence and as part of that defence the appellant’s belief as introduced in the address of the appellant’s counsel were not a matter for their consideration. In their context, the judge’s words were directed to that, and to reinforcing that the appellant’s negligence was to be assessed objectively. They would have been understood by the jury in that way, and there was otherwise no issue presented for the jury as to taking the appellant’s belief into account in determining the quality of the departure from the standard of care. Even if there had been error in failing to direct the jury to take the appellant’s belief into account in the manner now suggested, I consider that leave pursuant to rule 4 of the Criminal Appeal Rules should be refused.

In any event, I do not think that the direction was required.

The appellant relied on R v Lamb for relevance of the appellant’s state of mind, specifically whether he thought that what he was doing was safe, to proof of lack of care. I have already referred to the intrusion of recklessness into the Court’s reasoning. Mens rea in the form of consciousness of risk of death or grievous bodily harm was not required, as I have concluded, and the appellant’s belief as to whether it was safe to proceed was not relevant to that proof.

I repeat part of Lush J’s observations in R v Taylor , when he said of R v Lamb (see para [70] above) - “The final sentence quoted from the judgment of Sachs LJ may, if I may say so with respect, be accepted as a statement that in inquiring whether a reasonable man would have realised that the act was dangerous, the jury would have been entitled to consider, and in the circumstances should have been directed to consider, whether a reasonable man might have entertained the mistaken belief held by the accused. All that the applicant was entitled to in the present case was a direction that, in deciding whether or not a reasonable man in all the circumstances would have regarded the administration of a large dose of Noctec as dangerous, they should regard as among the circumstances which were to be taken into account and in which the hypothetical reasonable man was to be placed the facts that the doctors had given the prescriptions and the advice as to dosage to which I have referred.”

The mistaken belief held by the accused to which his Honour referred in the first paragraph must have been his belief that the revolver would not fire, he being unaware that pulling the trigger would bring a bullet into the firing position opposite the barrel. It was not the more generalised belief that whatever he was doing was safe, as is shown by his Honour’s following paragraph.

In assessing the lack of care the standard was that of a reasonable person in the position of the appellant. The position of the appellant included what he saw and did not see as he drove the loader, amongst other things the evidence that the boys were a long way in front of him as qualified by not knowing where two of the boys were and the other evidence about the loader being slow and noisy. It was no part of the Crown case that the position of the appellant included that he thought that what he was doing was dangerous, as a matter going to departure from the standard of care or the quality of that departure, and the appellant’s belief had no place in assessing the lack of care. As was pointed out in McLuckie v Williams , see para [97] above, the belief is the accused’s subjective evaluation. It is not part of an objective evaluation of the accused’s conduct.

Only if the appellant’s conduct was first judged reasonable could his belief in its reasonableness add anything, but that was what was in issue. Directing the jury to take the appellant’s belief into account could only bring confusion. A belief that it was not safe to proceed did not contribute to proof of the offence on the objective standard of the care a reasonable person would have exercised. A belief that it was safe to proceed did not provide exculpation.

Hulme J is of the view that the direction that it was “immaterial in this case … what the accused believed to be the case at the time” was erroneous, because the jury should have taken into account any beliefs the appellant had as to primary factual matters: he identifies an arguably relevant belief that the boys were not in the path of the loader. In this respect his Honour attributes more to the appellant’s ground of appeal than did the appellant. As I have indicated, the judge’s words would have been understood as directed to the belief as introduced in the address of the appellant’s counsel, the belief that it was safe to proceed. The belief that none of the boys was in the path of the loader was not stated by the appellant, but was a construct of facts such as that the boys were a long way in front of the loader, the loader was noisy and travelled slowly and the appellant had seen (two of) the boys a long way in front of him. Those facts were part of the appellant’s knowledge attributed to the reasonable person, and the directions sufficiently instructed the jury to have regard to them.

Thus the directions earlier set out included that the appellant’s conduct was to be compared “with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused in the circumstances in which he found himself … “, and that the jury were to put themselves “in the position of a reasonable person in the position of the accused, same age, knowing what he knows … “. The judge’s summary of the defence case as to the extent of negligence included, in the appellant’s favour using the expression “safe to proceed” - “Mr Hamill says that you have got to put this in perspective, that this loader was large and noisy, it could have been readily seen and heard, there was nothing to suggest that these boys were other than fit, that it was only going at four to five k’s an hour and that any reasonable person in the position of the accused would have expected that it was safe to proceed in that there was no reason why these boys simply could not have avoided it either by running away or stepping to the side or whatever.” Section 18(2) of the Crimes Act

Section 18 of the Crimes Act has been set out. The appellant submitted that s 18(2)(a) qualified the lack of care in the common law offence of manslaughter by criminal negligence, so far as it provided that “[n]o act or omission which was not malicious … shall be within this section”. Section 5 of the Crimes Act provides - “ Maliciously : Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.”

The appellant submitted both that s 18(2)(a) “preserved” the defence of honest and reasonable mistake, and that it imported malice into the offence so that “the absence of malice in conduct causing death will take that conduct outside the scope of the crime of manslaughter”.

There is little authority on s 18(2). The submissions were scanty, and did not endeavour to place s 18(2) in a historical context or to analyse to any extent why it had or did not have either of the consequences for which the appellant contended.

Murder as defined in s 18(1)(a) is clearly enough subject to s 18(2)(a), the acts or omissions there referred to being “within this section”. The relationship between s 18(1)(a) and s 18(2) has caused difficulty, see Mraz v The Queen (1955) 93 CLR 493 and Royall v The Queen (1990) 172 CLR 378, in the latter of which it was noted (at 429) that as to that offence s 18(2) has effectively been disregarded in this State.

The relationship between s 18(1)(b) and s 18(2) is no less difficult, and the disregard of s 18(2) appears to have extended to manslaughter, at least since R v Harvey (1887) 8 NSWR 39 and R v Sadler (1900) 21 NSWR 380 as to its predecessor. The first question is whether s 18(2)(a) qualifies the common law offences which are referred to, but not defined or made statutory offences, in s 18(1)(b). If it does, the second question is what effect it has on proof or defence in relation to that offence.

In Royall v The Queen Toohey and Gaudron JJ said (at 429-30) - “In this regard it should be kept in mind that, while s 18(1)(a) defines the offence of murder, par(b) does not define the offence of manslaughter. It provides: ‘Every other punishable homicide shall be taken to be manslaughter’, thereby making it necessary to resort to the common law to determine what constitutes a ‘punishable homicide’ other than murder. On the face of the section, a homicide, punishable at common law, is no longer punishable if the act or omission constituting the homicide (be it murder or manslaughter) was not malicious or was an act or omission for which the accused had lawful cause or excuse. Section 18 thus emerges as a rather unsatisfactory mix of statutory definition coupled with retention of the common law, the operation of which is at the same time qualified by the terms of the section.”

On one view the acts or omissions constituting a punishable homicide other than murder are “within this section”, although only because s 18(1)(b) takes up the excepted common law offences and ascribes to them the label of manslaughter. On another view the words “within this section” do not go that far. The Crown’s submissions did not dispute that s 18(2)(a) applies to the common law offences falling within s 18(1)(b), as Toohey and Gaudron JJ seem to have accepted. I proceed on that basis.

On its face, s 18(2)(a) means that the acts or omissions constituting manslaughter by criminal negligence must be malicious, the meaning of malicious coming from the definition of “maliciously”. In Royall v The Queen Toohey and Gaudron JJ posed whether s 18(2) “operate[d] as a defence, with the onus cast on the accused to bring himself or herself within the subsection”, or whether “absence of malice [was] a factor which the Crown must prove as part of its case”. Their Honours said that “[t]he construction of s 18 tends to suggest the former” (at 428-9). This must have looked beyond malice, to lawful cause or excuse and perhaps killing by misfortune. Neither the appellant nor the Crown addressed any submissions to this. I do not think that it matters in the present case.

In R v Coleman (1990) 19 NSWLR 467 Hunt J said (at 472) that “it should be stated (yet again) that the definition of ‘maliciously’ in s 5 is not a happily drafted one”. It does not merely restate the common law (ibid at 474), and must be construed in the normal way. In R v Safwan (1986) 8 NSWLR 97 at 101-2 there was reference to the need to “edit” the definition to the words within it appropriate to the case in order to avoid confusion in the summing-up. If it be needed, this underlines that the definition is multi-faceted.

Let it be asked whether the Crown has proved malice, or the accused has raised absence of malice. The Crown must prove that the accused’s acts were done , or the accused must raise that his acts were not done – (a) “of malice”; (b) “without malice but with indifference to human life or suffering”; (c) “with intent to injure … and without lawful cause or excuse“; or (d) “recklessly or wantonly”.

None of this is proof of or raising an honest or reasonable belief in a state of facts which, if true, would make the accused’s acts or omissions innocent. Whatever s 18(2)(a) addresses, it is not the defence of honest and reasonable mistake.

Alternative (b), “without malice but with indifference to human life or suffering”, plainly means something different from alternative (a) and must mean something different from alternatives (c) and (d). It must be satisfied by something less than recklessness, as is confirmed by the contrast with “reckless indifference to human life” in s 18(1)(a). The indifference goes beyond acting despite awareness of a risk to human life or of suffering, and must encompass indifference to human life or suffering in the sense of being unaware of a risk to human life or of suffering when it would be grossly negligent not to recognise the risk.

In my opinion, s18(2)(a) does not require more in manslaughter by criminal negligence than the high degree of negligence to which I have earlier referred; it does not require that the Crown prove consciousness of risk of death or grievous bodily harm, initially or upon the accused raising its absence.

Hulme J is of the view that the summing-up was deficient because the jury was not directed to consider whether, in accordance with s 18(2)(a), the appellant acted with indifference to human life or suffering, recklessly or wantonly. I respectfully do not think that it was necessary that the jury be so directed (and the judge was not asked to so direct the jury). If s 18(2)(a) means that the acts or omissions constituting manslaughter by criminal negligence must be malicious, it could hardly require a direction that the acts or omissions be (for example) with intent to injure. The directions must sufficiently embody the aspect of the definition of “maliciously” appropriate to the offence. In a case of manslaughter by criminal negligence that is indifference to human life or suffering, understood as I have explained above, and s 18(2)(a) is satisfied by directions having the effect that indifference to human life and suffering is required. Directions in accordance with Nydam v The Queen , with their need for a great falling short of the standard of care which a reasonable man would have exercised in the face of a high risk of death or grievous bodily harm, are more than sufficient. It is not necessary to use the words of s 18(2)(a) if the directions encompass their effect, and that may well be why the view taken by Hulme J has not previously come to prominence. Other matters

Hulme and Adams JJ point out that directions in accordance with Nydam v The Queen should be so framed that whether the accused’s actions merit 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 really serious bodily harm. I agree. Adams J suggests that the judge’s directions were deficient in their reference to a duty of care, in inadequately requiring grave moral guilt, and in other respects involving fortitude and strength of mind and right-thinking. None of these was raised by the grounds of appeal or was the subject of submissions. I respectfully do not think that the appeal can be determined by regard to them, and prefer not to venture any comment.

There is divergence in our reasons, not for want of communication. For trial judges, there can be found the following propositions - (a) in cases of manslaughter by criminal negligence juries should be directed in accordance with Nydam v The Queen ; (b) 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; (c) evidence of the accused’s belief in primary factual matters is relevant; and (d) there is no separate defence of honest and reasonable mistake. The Crown appeal

The Crown submitted that both the sentence imposed and the non-parole period were manifestly inadequate. It was said that the sentence did not adequately reflect the objective criminality of the offence, and that too little weight had been given to the seriousness of the offence and too great weight to subjective matters in the appellant’s favour. It was accepted that a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was justified, but it was submitted that the non-parole period was too short.

The Crown correctly drew attention to two considerations. One was that the taking of a human life, by manslaughter as by any other offence, is regarded in the community and under law as a most serious matter. The other was that the circumstances giving rise to a conviction for manslaughter can vary greatly, and culpability can correspondingly vary greatly, so that, while the starting-point is the gravity of the taking of a human life, the range of available sentences is very wide. It is sufficient to refer to cases such as R v Hill (1981) 3 A Crim R 397 and R v Blacklidge (CCA, 12 December 1995, unreported).

The subjective matters in the appellant’s favour were impressive. He was forty-five years old when he was sentenced. He had some minor traffic infringements but no relevant criminal history. The judge accepted that he was a person of excellent character who until the events of 2 October 2001 could only be described as a model citizen. He had been greatly affected by what had occurred and was genuinely remorseful. In R v Musumeci (CCA, 30 October 1997, unreported), a case of dangerous driving occasioning death, it was said that courts “must tread warily in showing leniency for good character”. This was taken up in R v Do [2000] NSWCCA 459 at [14], a case of manslaughter by criminal negligence. The appellant was nonetheless entitled to the benefit of the subjective matters.

The gravamen of the Crown appeal lay in observations by the judge in his remarks on sentence as to abandonment by the appellant of responsibility for his actions.

After recounting the facts the judge said - The overwhelming inference is that at no time did the offender turn his mind to where the two boys were who remained unsighted, one of them being Michael Milne. At no stage was he in a position to see them because of the lack of visibility to which I have referred. Significantly, the offender conceded to police that his area of work did not include the scrub to which I have referred and that he had only driven into the scrub to chase the boys and scare them off. He referred to there having been vandalism at the site on previous occasions. I should say at this point that there is absolutely no evidence to suggest that Michael Milne or his companions were responsible for this. In my view, it is unnecessary to refer to the evidence in this matter in any further detail. The stark reality is that the offender embarked upon a course of action which was criminally negligent. The learned Crown Prosecutor in his address to the jury described it as a brain snap and maybe this is close to the truth. However, the reality also is that any reasonable person in the position of the offender would have and must have realised that from the moment he entered the scrub in pursuit of these boys, the danger of serious injury or death was high. His visibility was poor and no doubt at times non existent. Whilst the Crown conceded that the offender was driving his loader at a very low speed, maybe as low as four kilometres per hour, he in effect drove blind. Whilst there can be no doubt that the offender did not have any intention to injure these boys, he simply did not direct his mind to what was an obvious risk. The inference is that he assumed that because he was driving a very large vehicle which was readily visible and very noisy at a very slow speed, that the boys would have been able to readily avoid him. This was an assumption that no person in his position was entitled to make and the horrific consequences of this mistaken assumption were realised on this occasion. Whilst the offender’s actions might well be categorised as a result of a brain snap as referred to by the learned Crown Prosecutor, they could not be said to amount to any momentary inattention or inadvertence on his part. The fact is that he drove a very heavy vehicle, albeit at a slow speed, through an area of scrub in pursuit of young children in circumstances where his vision was significantly and sometimes totally obscured by the vegetation in the area and the configuration of the vehicle that he was driving. He did this for some one hundred and forty-odd metres, coming so close to at least one of the children that that child could have touched the vehicle. Not only did he then return to the area of scrub but, having seen two of the four children, he diverged from his course to follow them in circumstances where he had absolutely no idea where the other two children, one of whom was Michael Milne, were. As a result he came into contact with Michael Milne who died as a result. From the time that the offender first entered the scrub in pursuit of Michael Milne and his friends, in my view, he completely abandoned responsibility for his actions and their obvious possible consequences. The verdict of the jury in my view leads to this inescapable conclusion.”

The judge later said that “the last thing on [the appellant’s] mind that day would be the possibility that by his actions he would occasion the death of a child,” but reiterated - “Nonetheless, the reality is as I said earlier that from the time the offender took the loader into the scrub in pursuit of the deceased and his friends, whatever the motive, in my view he completely abandoned responsibility and the dire consequences which ensued must have been well within the contemplation of any reasonable person in his position.”

Later again the judge said that he agreed with the Crown’s submissions to the effect that the appellant deliberately drove through the scrub in pursuit of the boys, that it was not a case of momentary inattention, and that the appellant had “completely abandoned responsibility for his actions” and “abandoned all responsibility at that point”. His Honour continued - “The learned Crown Prosecutor conceded that the Court would be entitled to find that the offender had an honest belief at all stages that it was safe to do what he did, presumably because he thought that the fact that his vehicle was large and noisy and slow the children would easily be able to avoid it. But, the learned Crown, said in reality, that the offender should have been loudly and clearly aware of the danger of what he did, particularly in the light of the unpredictable behaviour of children. Again I agree with this submission.”

The Crown fastened upon the judge’s acceptance that there was not momentary inattention, but an abandonment of responsibility. It was submitted that the appellant’s culpability was therefore high, and all the higher because all the boys were put at risk and because of the gravity of the risk and its realisation in the death of Michael Milne. The culpability was such, it was said, that there was manifest inadequacy in the sentence.

There was not momentary inattention, but a course of conduct engaged in through lack of care is not necessarily of higher culpability than an isolated act. If, as the judge said was conceded, the appellant honestly believed that it was safe to do what he did, and believed that the loader was large, noisy and slow so that the boys could easily avoid it, that bore upon the culpability of his course of conduct. The judge’s references to abandonment of responsibility are understandable, but must be read subject to the acceptance of the appellant’s honest belief.

Objectively, the appellant’s conduct was wholly irresponsible. But it was not a case of conduct regardless of whether it was safe. Rather, his conduct was in the honest but negligently formed belief that it was safe. The judge’s remarks on sentence must be read as a whole. I do not think that manifest inadequacy has been shown, whether as to the sentence or the non-parole period. The result

In my opinion, the appellant’s appeal and the Crown appeal should both be dismissed.

HULME J: The circumstances which have led to the Appellant’s conviction and this appeal are set out in the reasons for judgment of Giles JA which I have had the advantage of reading. Accordingly I can proceed immediately to the issues which arise. The Common Law Test for Liability in Manslaughter by Criminal Negligence

I do not, by choice of heading, pre-judge the issue for determination. The expression “manslaughter by criminal negligence” is time honoured.

The written directions on the topic of manslaughter given to the jury were in terms:- “The Crown must prove to your satisfaction beyond reasonable doubt ALL of the following:- 1. That on 2 October 2001 the accused had a duty of care to Michael Milne. 2. That the accused was negligent in that by his actions that day he was in breach of that duty of care. 3. That such actions were deliberate. 4. That such actions of the accused caused the death of Michael Milne. 5. That such actions: (i) Fell so far short of the standard of care which a reasonable person would have expected in the circumstances; and (ii) Involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.”

Subject to one matter arising out of the manner of formulation of paragraph 5 and to which I will come, his Honour’s oral directions followed these written directions.

The words in paragraph 5 follow virtually word for word the suggested directions in the Judges’ Bench Book and echo those of Young CJ, McInerney and Crockett JJ in Nydham v R [1977] VR 430 at 445 where, after an extensive review of authority, it was said:- “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.”

So stated, the test of liability, culpability or fault for a conscious, voluntary act is purely objective. That is not to say, of course, that there is not an element of judgment involved in any determination of whether, on the facts of a particular case, the test has been met.

Before proceeding further I should say that the manner in which paragraph 5 of the written directions is set out, even if the words are otherwise correct, is unfortunate. The test set forth in Nydam v R for determining whether an accused’s actions merit criminal punishment is a composite one and comprises two elements. The words “that the actions merit criminal punishment” should not have been included in subparagraph (ii) which deals with only one of those elements but as part of the body, albeit at the end of, paragraph 5. The Bench Book needs correcting in this regard. However, in his oral directions the trial judge stated the test in the composite form on at least 4 occasions and on at least 2 others emphasized that the negligence had to be so great as to be judged criminal or a crime. In these circumstances I am satisfied that the error in the written directions did not appreciably disadvantage the Appellant.

It was submitted on behalf of the Appellant that Nydam v R was wrong and inconsistent with the decision of this court in R v Taktak (1988) 14 NSWLR 226. In that case the gravamen of the charge was that the appellant had taken to some premises and put to bed an apparently sick and unconscious 15 year old heroin addict without then seeking medical attention for her. In quashing a conviction, Yeldham J said (at 247):- “I am of the view that any conclusion that the appellant was guilty of manslaughter, having regard to the high degree of negligence required, should be set aside as being unsafe and unsatisfactory. I mention but few of the authorities. In R v Nicholls [1874] 13 Cox CC 75, Brett J (at 76) told the jury that a grown up person who chooses to undertake the charge of a human creature who is helpless is bound to execute that charge ‘without (at all events) wicked negligence… Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of the opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not’. In R v Bonnyman (1942) 86 Sol Jo 274; 28 Cr App R 131, the Lord Chief Justice, after referring to R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8 and to Andrews reiterated the need for a ‘very high degree of negligence’ to be proved before the felony of manslaughter is established. In R v Stone & Dobinson it was said that ‘… it is to Andrews v DPP … that one must turn to discover the definition of the requisite degree of negligence’. At 363 reference is made to the words of Lord Hewart CJ in R v Bateman which were quoted with approval by Lord Atkin in Andrews (at 582). In R v Stone & Dobinson it is said that: “It is clear from that passage that indifference to an obvious risk, and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness … What the Prosecution have to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s conduct could properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it:” See also R v Holzer [1968] VR 481. In the present case, although it is clear that a doctor should have been called to the deceased at an early stage, and that (assuming she was then alive) if he had given her the appropriate treatment, she may well not have died, I consider that a finding that the appellant was criminally negligence cannot be supported. Mere negligence or mere inadvertence is not enough.”

In R v Taktak, Yeldham J did not refer to the decision in Nydam v R . Loveday J simply agreed with Yeldham J’s reasons. The third member of the court Carruthers J said (at p250):- “The offence with which the appellant was charged may conveniently be referred to as manslaughter by criminal negligence. Thus it was incumbent upon the Crown to prove beyond reasonable doubt: (1) That the appellant owed a duty of care in law to Miss Kirby. (2) That it was the omission of the appellant to obtain medical treatment which was the proximate cause of Miss Kirby’s death (3) That such omission by the appellant was conscious and voluntary, without any intention of causing death 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 would follow that the omission merited criminal punishment. See Nydam v R [1977] VR 430 at 445; R v Taylor (1983) 9 A Crim R 358; R v Wills [1983] 2 VR 201 and Re Lamperd (1983) 63 FLR 470 at 475-476 ALR 371 at 375; 1 A Crim R 417 at 420.”

His Honour went on to say that, with a reservation not presently relevant, he generally agreed with the judgment of Yeldham J. His Honour did not advert to what Adams J and I see as an irreconcilable difference between the approach of the Court in Nydam v R and that of Yeldham J. The latter’s apparent acceptance of the law as set forth in R v Holzer , and of the proposition that “the defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually seen the risk but to have determined nevertheless to run it” and, depending on what meaning one gives to the words “reckless” and “careless” of the proposition that a jury “must be of the opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not” is to endorse an approach quite different from the objective one laid down in Nydam v R.

A choice must be made between these approaches. In that connection it is relevant to bear in mind that Nydam v R was a decision of the Victorian Full Court while R v Taktak was a decision of this Court. More important, however, is the fact that reference to other authority, including authority in this State and in the High Court, shows that Yeldham J’s approach, at least so far as the common law is concerned, was wrong.

But before turning to that authority I may say that it seems to me clear that much confusion in this area has arisen because of the width of meaning which “reckless” and its derivates may bear and, if not looseness in expression, differences in understanding or the meaning given to those words.

The Oxford English Dictionary defines reckless as “to neglect; to be negligent or heedless of (a thing)”. “Recklessly” is defined variously as “in a reckless manner”, “carelessly, negligently”, “without regard to consequences, rashly” and “through carelessness; accidentally”. “Recklessness” is defined as “the quality of being reckless” and “neglect or disregard (of something)”.

This breadth of meaning extending from carelessness or negligence on the one hand to indifference to or “without regard to consequences” is important to bear in mind whenever the term is used in the passages to which I refer below.

The imprecision in the term was adverted to by Barwick CJ in Pemble v R (1971) 124 CLR at 119-121. It is unnecessary to quote from those remarks but, because they are relevant both here and as to the test to be applied in cases such as this, it is appropriate to refer to some remarks of Windeyer J in R v Phillips (1971) 45 ALJR 467 where the same point is made. In that case the offender had been convicted of murder under the provisions of the Tasmanian Criminal Code. An appeal to the Court of Criminal Appeal of Tasmania had been allowed and a new trial ordered. The High Court dismissed an appeal by the Crown seeking to have the conviction restored, the majority taking the view that on a retrial a conviction for murder or manslaughter was open. At page 478 Windeyer J said:- “At this point I should add that when he was directing the jury on the basis that it was open to them to find that death was caused by an omission within the purview of s56(2)(b) “amounting to culpable negligence”, his Honour told them that culpable negligence was conduct that was “utterly reckless not merely negligent”. Some criticisms were made of this. If the question were one of manslaughter by criminal negligence according to the common law, then the words his Honour used could not I think be said to be erroneous, although they might be said to be inadequate. The word reckless has often been used, in this Court and elsewhere, to describe negligent conduct of such a degree that it is felonious: Lord Atkin in Andrews v DPP [1937] AC 576, at p583, said: ”Probably of all the epithets that can be applied, “reckless” most nearly covers the case”. Reckless negligence can thus be a conventional and convenient description of negligence of an aggravated and criminal kind.”

Windeyer J then referred to McCarthy v R and Callaghan v R, to which reference is made below, and continued:- “In the judgment of this Court in the last mentioned case it was said (at p123) that “in order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence”. In explaining this to a jury it seems to me that, although the word reckless would not be out of place, it might be better avoided. “Reckless” and “rash” have been commonplaces of English speech for centuries, at least since Shakespeare’s day. Today “reckless” is often used, with little attention to its etymology, to describe a quality of actions rather than a mental attribute of the actor. But in recent times textbook writers on jurisprudence and criminal law have urged that, for legal purposes, a man is only properly to be called reckless when he was aware of the probability of harmful consequences of his conduct, but nevertheless pursued it. Recklessness, it is said, involves consciously disregarding consequences, as when the New South Wales Crimes Act, 1900, s18, speaks of an act “done with reckless indifference to human life”. An illustration from another field is when a statement is said to have been made with reckless disregard of its truth or falsity. But despite the efforts of learned lawyers who engage in lexicography of their own devising, the word itself remains imprecise in ordinary parlance.”

His Honour went on to refer to the remarks of Barwick CJ in Pemble v R which I have mentioned.

The doubts of these 2 members of the High Court were not shared by Lord Hailsham in R v Lawrence [1982] AC 510 who said (at p520) that the word had been ‘in general use at least since the 8th century AD almost always with the same meaning”. There is a degree of inconsistency between his Lordship’s certainty and the indications in Lord Diplock’s speech, in which the other Lords agreed, that it was desirable to explain the term to a jury. The slightly earlier case of R v Caldwell [1982] AC 341, in which Lord Diplock also gave the leading judgment, and notwithstanding his Lordship’s definition of the term, provides a clear indication of how bedevilled the law has been in trying to give a meaning to the term “reckless” and its derivatives. See also R v Prentice [ 1994] QB 302 at 319 and, on appeal, R v Adomako [1995] 1 AC 171 to which I refer in more detail below.

A convenient starting point in the consideration of prior authority dealing with the concept of manslaughter by criminal negligence is Bateman (1925) 19 Cr App R 8, one of the two most commonly cited authorities in this area of the law. Having regard to what I see as the misunderstanding or misrepresentation of what was said in this and other cases, it is necessary to quote from them at some length. In the course of delivering the reasons of the court, Hewart LCJ said (at p10-12):- “In expounding the law to juries on the trial of indictments for manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A. has caused the death of B. by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B. To convict A. of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.’s negligence amounted to a crime. In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea … “In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as “culpable”, “criminal”, “gross”, “wicked”, “clear”, “complete”. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard to the life and safety of others as to amount to a crime against the State and conduct deserving punishment. It remains to consider the application of this principle to cases like the present where death has been caused, in the exercise of his calling, by the alleged negligence of a person professing special knowledge and skill, and a charge of manslaughter is preferred. The following cases may be cited as illustrating the language in which criminal negligence of this kind has been discussed and explained by judges in modern times.”

His Lordship then referred to some 15 prior decisions, including R v Nicholls (1884) 13 Cox CC 75, referred to by Yeldham J and R v Doherty (1887) 16 Cox CC 306 which was referred to in Callaghan v R (1952) 87 CLR 115 and continued (at p12-13):- “The law as laid down in these cases may be thus summarised: If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward. It is for the judge to direct the jury what standard to apply and for the jury to say whether that standard has been reached. The jury should not exact the highest, or a very high, standard, nor should they be content with a very low standard. The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient’s death has been caused by the defendant’s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness. No further observation need be made with regard to cases where the death is alleged to have been caused by indolence or carelessness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare. In the case of the quack, where the treatment has been proved to be incompetent and to have caused the patient’s death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving the gravest risk to his patient, when he knew he was not competent to deal with it, or would have known if he had paid any proper regard to the life and safety of his patient. The foregoing observations deal with civil liability. To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

A number of observations may be made concerning these remarks. The first is that His Lordship’s references to recklessness in the course of making remarks concerning civil liability tend to demonstrate the point made above concerning the imprecision of the term. It cannot be thought that his Lordship was, by his use of the term in that context, intending to indicate a need for either an awareness of risk or indifference as to consequences, matters quite unnecessary for civil liability.

Secondly, when discussing manslaughter, nowhere does his Lordship suggest that in addition to the appropriate degree of negligence there must also be either an awareness of risk or indifference to it. Thirdly the tenor of the paragraph commencing with the words “In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime” is quite inconsistent with the proposition that the negligence referred to would not amount to a crime unless it were accompanied by one or both of an awareness of risk and indifference to consequences.

The second of the two most commonly cited cases in this area is Andrews v DPP [1937] AC 576. The substance of the reasoning of Lord Atkin, with whom the other members of the House of Lords agreed, is contained in the following passage at p581-3 (and which for convenience I have broken into paragraphs):- “In the present case it is only necessary to consider manslaughter from the point of view of an unintentional killing caused by negligence, that is, the omission of a duty to take care. I do not propose to discuss the development of this branch of the subject as treated in the successive treatises of Coke, Hale, Foster and East and in the judgments of the Courts to be found either in directions to juries by individual judges or in the more considered pronouncements of the body of judges which preceded the formal Court of Crown Cases Reserved. Expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared. After all, manslaughter is a felony, and was capital, and men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence. The stricter view became apparent in prosecutions of medical men or men who professed medical or surgical skill for manslaughter by reason of negligence. As an instance I will cite Rex v Williamson (1807) 3 C & P 635 where a man who practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. ‘To substantiate that charge’ – namely, manslaughter – Lord Ellenborough said, ‘the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.’ The word “criminal” in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in Rex v Bateman (1925) 19 Cr App R 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson’s case. In a considered judgment of the Court the Lord Chief Justice, after pointing out that in a civil case once negligence is proved the degree of negligence is irrelevant said (19 Cr App R 11), ‘In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea.’ After citing Cashill v Wright (1856) 6 E & B 891 a civil case, the Lord Chief Justice proceeds: ‘In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as “culpable”, “criminal”, “gross”, “wicked”, “clear”, “complete”. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.’ Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise. The principle to be observed in that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied “reckless” most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for “reckless” suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman’s case is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly.”

Prior to the statement in the last paragraph “Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case”, there is nothing in his Lordship’s remarks to suggest that in addition to negligence of appropriate gravity, one or both of appreciation of risk or indifference to consequences is a pre-condition of liability. “Negligence”, “the omission of a duty to take care” “grossest ignorance”, “most criminal inattention” – explained as “a high degree of negligence”, and “a very high degree of negligence” are the terms used to describe the conduct giving rise to the liability for conviction of manslaughter.

And when his Lordship did come to use the term “reckless” he did so, not in terms indicative of something more than the conduct he had previously been referring to being required, but by using that term as an “epithet” which most nearly encompassed those to which he had earlier referred.

It may be acknowledged that his Lordship recognised that “reckless” suggests an indifference to risk and, at least implicitly, suggests that such conduct and also awareness of risk accompanied by a high degree of negligence in seeking to avoid it would justify conviction. However, it is impossible on a fair reading of all his Lordship said to conclude that negligence he had previously referred to as “of a “high degree”, “culpable”, “criminal”, “gross”, “wicked”, or “going beyond a mere matter of compensation between subjects and show(ing) such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment” was not sufficient for liability unless also there was in an accused an appreciation of the risk or an indifference to it.

And if, as is suggested in the last paragraph quoted, appreciation of the risk and a “high degree of negligence in the means adopted to avoid” it, is sufficient for liability, why should not a (sufficiently) “high degree of negligence” in other respects, for example not appreciating the risk, not be a sufficient criteria for liability?

Of the other cases referred to in R v Taktak, R v Stone & Dobinson [1977] 1 QB 354 is sufficiently summarised in the passage I have quoted from Yeldham J’s reasons. Although accepting that the relevant law was laid down in Andrews v DPP and in the approval given in that case to remarks in R v Bateman, and then quoting the passage towards the end of the third paragraph of the passage I have quoted from Andrews v DPP commencing with the words “Simple lack of care such as will constitute civil liability is not enough”, the court in R v Stone & Dobinson went on to make the lengthy assertion which Yeldham J quoted.

However, and despite what was said in R v Adomako [1995] 1 AC 171, a simple comparison of what was said in Bateman and Andrews on the one hand and the statement from R v Stone & Dobinson demonstrates that those earlier authorities provide no support whatsoever for the proposition adumbrated in that latter case (at p363) to the effect that the prosecution “ have to prove” conduct which “could properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person” or that “the defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.” (my emphasis)

Indeed the latter passage is quite inconsistent with a passage from remarks in Bateman quoted just above it – [1977] 1 QB at 363:- “(Reckless driving) is probably not all embracing for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet have shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction”.

R v Nicholls (1874) 13 Cox CC 75, relied upon by Yeldham J in R v Taktak (at p247) for the proposition that an offender must have “a wicked mind, in the sense that she was reckless and careless whether the creature (her grandchild) died or not”, is certainly authority for that proposition. However, R v Nicholls was one of the fifteen cases referred to towards the beginning of the passage I have cited from Bateman and was thus clearly considered by the court in that case. Consisting as the passage does as part of a single judge’s direction to a jury it does not have the authority of the Court of Criminial Appeal in Bateman or the House of Lords in Andrews v DPP. Whether what was said in R v Nicholls goes beyond what was said in those 2 cases depends on the meaning one attributes to the words used but if and insofar as it does go beyond the law as laid down in Bateman and Andrews v DPP , the remarks must be regarded as wrong.

R v Bonnyman [1942] 28 Cr App R 131 was another of the cases referred to by Yeldham J in R v Taktak . In that case the Court of Criminal Appeal referred to, inter alia, the cases of Nicholls, Bateman and Andrews and (at p 135-6) pointed out that the word “reckless” had now been “approved by the House of Lords as probably in all the circumstances the best epithet to use to help a jury to understand that a special or a high degree of negligence must be found by them before they can return a verdict of manslaughter.” That statement does little to elucidate what was meant by the term “reckless”.

In the last of the cases referred to by Yeldham J, R v Holzer [1968] VR 481, Smith J said (at 482):- “We are not here concerned with any possible doctrine of felony manslaughter: Furthermore, we are not here concerned with the doctrine of manslaughter by criminal negligence, under which, as I understand the law found upon the House of Lords’ decision in Andrews v DPP [1937] A.C. 576; [1937] 2 All E.R. 552, the accused must be shown to have acted not only in gross breach of a duty of care but recklessly, in the sense that he realized that he was creating an appreciate risk of really serious bodily injury to another or others and that nevertheless he chose to run the risk.”

These remarks were made in the course of a trial and were obviously obiter. They suffer from the fact that, as I have pointed out, Andrews v DPP is not authority for the propositions his Honour attributed to it. In Nydam v R (at 439-440) the court said that the dictum of Smith J had been accepted as a correct statement of law in that State but that it should not be.

There are 3 further English authorities to which I should refer. The first is Akarele v R [1943] AC 255. That was a decision of the Privy Council in a case where a medical practitioner had been found guilty, in a judge alone trial, of manslaughter. In the course of their advice their Lordships said (at p261-4 and omitting the footnotes):- “The learned judge goes on to ask whether, on this evidence, it can be said that the accused was guilty of negligence in a criminal degree in causing the death of Kalu Ibe. No complaint can be made of what he says in reference to the degree which the courts have held essential to constitute a criminal offence of negligence. He quotes the observations of Lord Hewart CJ in R v Bateman : that a doctor is not criminally responsible for a patient’s death unless his negligence or incompetence “went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State”, and adds from Halsbury’s Laws of England, 2nd Ed., Vol. ix., tit. “Criminal Law” p444: “What amount of negligence is to be regarded as gross is a question of degree for the jury, depending on the circumstances of each particular case”. Both statements are true and, perhaps, cannot safely be made more definite, but it must be remembered that the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. The further words spoken by the Lord Chief Justice in the same case are, in their Lordships’ opinion, at least as important as those which have been set out: “It is desirable that, as far as possible, the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime”.

In R v Adomako [1995] 1 AC 171, the defendant was an anaesthetist during an operation in which the patient died. The occasion of the matter coming before the House of Lords was because that body had, in prior decisions – see R v Lawrence (Stephen) [1982] AC 510; R v Seymour (Edward) [1983] 2 AC 493 - said that the test for motor manslaughter was different from that which was thought to apply to other cases of manslaughter by criminal negligence.

The Lord Chancellor, with whom the other Law Lords agreed, quoted at length from R v Bateman and Andrews v DPP and continued (at p187-9):- “In my opinion the law as stated in these two authorities is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships’ House, it remains the most authoritative statement of the present law which I have been able to find… On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission… I consider it perfectly appropriate that the word “reckless” should be used in cases of involuntary manslaughter, but as Lord Atkin put it “in the ordinary connotation of that word”. Examples in which this was done, to my mind, with complete accuracy are R v Stone [1977] QB 354 and R v West London Coroner ex parte Gray [1988] QB 467. In my opinion is quite unnecessary in the context of gross negligence to give the detailed directions with regard to the meaning of the word “reckless” associated with R v Lawrence [1982] AC 510… For these reasons I am of the opinion that this appeal should be dismissed and that the certified question should be answered by saying: “In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R v Bateman 19 Crim App R 8 and Andrews v DPP [1937] AC 576 and that it is not necessary to refer to the definition of recklessness in R v Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word “reckless” in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.”

The “gross negligence test set out by the Court of Appeal” to which reference was made was in these terms – see R v Prentice [1994] QB 302 at 322 (a case which contains a very useful discussion of the topic): “Accordingly, except in motor manslaughter, the ingredients of involuntary manslaughter by breach of duty which need to be proved are (1) the existence of the duty; (2) a breach of the duty causing death; (3) gross negligence which the jury consider justifies a criminal conviction.”

What was said in R v Stone & Dobinson has already been referred to. In R v West London Coroner, Ex parte Gray [1988] QB 467, Watkins LJ, with the concurrence of Roch J, said (at p476-7), in the context of a challenge to the instructions given to a coroner’s jury on the topic of unlawful killing:- “What the jury should have been told was that when considering manslaughter by neglect, they would have to be satisfied upon the evidence of these four ingredients of the offence: (1) A police officer had the duty of regarding the health and welfare of Mikkelsen. (2) He failed to do what in the circumstances he ought to have done for the health and welfare of Mikkelsen. (3) That his failure was a substantial cause of Mikkelsen’s death. (4) That in failing to act for the benefit of Mikkelsen’s health and welfare he acted recklessly. It should be explained that to act recklessly means that there was an obvious and serious risk to the health and welfare of Mikkelsen to which that police officer, having regard to his duty, was indifferent or, recognising that risk to be present, he deliberately chose to run the risk by doing nothing about it. It should be emphasised, however, that a failure to appreciate that there was such a risk would not by itself be sufficient to amount to recklessness.”

I understand the endorsement in R v Adomako of R v Stone & Dobinson and R v West London Coroner, Ex Parte Gray to be only as to their exposition of the concept of recklessness. Otherwise it is impossible to reconcile the suggestion in these cases that recklessness or indifference to, or appreciation of risk are required, with the balance of the remarks I have quoted from R v Adomako ( or with those in Akarele v R , Bateman or Andrews v DPP ).

I turn to some other Australian authorities. R v Gunter (1921) 21 SR (NSW) 282 was a case where the conduct which had led to the charge involved applying a douche to a pregnant woman. The Chief Justice, with the assent of the other members of the Court of Criminal Appeal said (at 286):- “(The trial judge) pointed out to the jury that the negligence necessary to make a man criminally responsible must be gross negligence. The cases in which that topic has been discussed are fairly numerous, and, carefully abstaining from any attempt to put into new language the principles laid down by the Judges, I think it is very plain from many authorities that that negligence which is essential before a man can be criminally convicted must be culpable, exhibiting a degree of recklessness beyond anything required to make a man liable for damages in a civil action. It must be such a degree of culpable negligence as to amount to an absence of that care for the lives and persons of others which every law-abiding man is expected to exhibit. Short of this he may be blameworthy because he has not exhibited the caution reasonable to be expected from an ordinarily prudent person in the particular situation, and this would expose him to an action for damages. But the charge of a criminal offence based on negligence must be supported by a culpable recklessness in taking risks at the expense of other people’s lives or limbs.”

The Chief Justice referred to the evidence and the trial judge’s summing up, quoting the following passage (at p 287):- “If he held himself out to be a skilled man, and, having treated those people for years, he used an instrument that he ought not to have used, and used it so carelessly as to pump air in, and not into the part that he intended to, but something higher up and much more dangerous, was he guilty of gross negligence or not. That is the question for you.” … When a man therefore undertakes and holds himself out to be able to do a particular kind of work, and in this case whether he be a doctor or not, if he holds himself out to be able to wash out a woman’s private parts, he is supposed to have sufficient skill for that purpose. If he does it so negligently as to place the instruments that he uses in the wrong spot, or to force in something that he ought not to force in, it will be a question for you whether he is guilty of gross negligence, and if you find that he has been guilty of such negligence, then you will find a verdict of manslaughter against Gunter.”

The Chief Justice then proceeded:- “It seems to me that the attention of the jury was directed to the real points arising for their consideration in the case and that there was sufficient evidence of such gross and culpable negligence as to support the conviction. For those reasons it seems to me that this appeal ought to be dismissed and leave to appeal on the facts refused.”

Although in the first of the passages I have quoted the Chief Justice used the term “recklessness” as descriptive of the conduct required for a conviction, his Honour’s acceptance of the trial judge’s expression “gross negligence” demonstrates that the former expression was not being used to indicate that there must be either a conscious appreciation of the risk or indifference to it.

In R v Newell (1927) 27 SR (NSW) 274 at 276-7 Street CJ, with the concurrence of the other members of the Court, quoted that part of the passage I have first set out from R v Gunter as commences “I think it very plain” and concludes “is expected to exhibit” and continued:- “In Bateman’s Case (19 C A R 8), Lord Hewart LCJ, in dealing with the question of criminal responsibility for negligence, said: ‘To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability, except pecuniary loss, and in addition must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State, and conduct deserving punishment’.”

His Honour went on:- “Applying those principles to the facts of this case, was there any evidence on which the jury would be justified in coming to the conclusion that the applicant exhibited such culpable negligence as to make him criminally responsible for what happened?”

Nowhere in the case is there any suggestion that appreciation of risk or indifference to consequences was required, before conviction was justified.

In R v Wood [1957] SR (NSW) 638 the trial judge had directed a jury to the effect that the test was whether the offender’s conduct as amounted to negligence or carelessness was “gross” or “culpable” or something more than a right of action between A and B and “something in which the State is concerned.” The Court held that His Honour having also directed the jury that before they could convict they must find the Appellant drove a car in such a fashion that death or destruction was likely to occur the directions were adequate and that it was not necessary for the jury to be directed in the terms of the passage in R v Gunter, viz., “(T)hat negligence which is essential before a man can be criminally convicted must be culpable, exhibiting a degree of recklessness beyond anything required to make a man liable for damages in a civil action. It must be such a degree of culpable negligence as to amount to an absence of that care for the lives and persons of others which every law-abiding man is expected to exhibit.”

Again, there is no suggestion that appreciation of risk or indifference to consequences was required before the offence of manslaughter by criminal negligence was made out.

In Brown v Robinson (1960) 60 SR (NSW) 297 the Court of Appeal had to consider whether an acquittal of someone charged with manslaughter by criminal negligence involved, in the circumstances of the case, a finding that he was not under the influence of alcohol at the time. In the course of their reasons Herron and Maguire JJ remarked (at 302-3):- “… it now seems to be established by a decision of the House of Lords that in road accident cases at any rate some other element (i.e. other than an unlawful act) of a subjective character must be present and that element is tantamount to criminal negligence. Andrews v DPP (1937) AC 576. … In R v Larkin (1943) 1 All E R 217 Humphreys J., who delivered the judgment of the Court of Criminal Appeal at 219 said: “Perhaps it is as well that once more the proposition of law should be stated which has been stated for generations by judges and, so far as we are aware, never disputed or doubted. If a person is engaged in doing a lawful act, and in the course of doing that lawful act behaves so negligently as to cause the death of some other person, then it is for the jury to say, upon a consideration of the whole of the facts of the case, whether the negligence proved against the accused person amounts to manslaughter, and it is the duty of the presiding judge to tell them that it will not amount to manslaughter unless the negligence is of a very high degree; the expression most commonly used is unless it shows the accused to have been reckless as to the consequences of the act. That is where the act is lawful. Where the act which a person is engaged in is unlawful, then …”

Given the issue which was before the Court and the absence of any considered discussion on the topic, I regard the remarks quoted as having some, but slight, weight against the conclusion which I prefer as to the necessary elements of manslaughter by criminal negligence.

In R v Buttsworth [1983] 1 NSWLR 658 O’Brien CJ of Cr D discussed at length the differences between what he referred to as “motor manslaughter”, “culpable driving” or “driving in a manner dangerous to the public”, and negligence. The other judges sitting on the Court agreed with his remarks. It is sufficient for present purposes to quote a short passage (at 676-7):- “(The offences) were designed to enforce the duty of the driver of a motor vehicle to take care for the safety of other users of the road and were concerned not with his state of mind but with his conduct in the management of his vehicle. … Being each designed to enforce a duty of care to other users of the road, the distinction between them depended fundamentally on the degree to which the driving departed form the standard of care to be expected of the ordinary reasonable man in the circumstances. … The departure from the standard of the ordinary reasonable man in the circumstances is variously defined but they remained a specification of the degree by which the driving departed from that standard. In particular the negligence in driving appropriate to manslaughter is described as reckless, an expression which may be further explained after a fashion which Lord Atkin approved in Andrews’ case. It is a degree of negligence greater than that described by driving in a manner dangerous to the public …”

Despite the reference to “reckless”, I find it impossible to reconcile these remarks with a requirement in the case of manslaughter that there must be appreciation of risks or indifference to consequences. Earlier (at p675), O’Brien CJ At Cr D had referred to Nydam v R as laying down an objective test and, it seems to me, by way of drawing support from that decision for his own approach.

In R v Pullman (1991) 25 NSWLR 89 Hunt CL at CL said (at p91) that in a case of manslaughter based on criminal negligence “it is necessary for the Crown to establish such a high degree of negligence or disregard for the life and safety of others as to be regarded as a crime against the community generally and as conduct deserving punishment: Andrews v DPP (1937) AC 576 at 582-583”. Later (at p.93), his Honour said that the issue raised and decided in Andrews was “simply that, where an act is relied upon as being negligent and as amounting to manslaughter in the category of criminal negligence, the high degree of negligence described in R v Bateman had to be established”. So far as is presently relevant, the other members of the Court agreed.

As its name implies, NSW Sugar Milling Co-operative Limited v EPA (1992) 59 A Crim R 6 was not a case of manslaughter. It involved a question whether there had been a breach of s6(1) of the Environmental Offences and Penalties Act which, so far as is presently relevant made it an offence for someone to “wilfully or negligently cause any substance to leak, spill or otherwise escape … in a manner which harms or is likely to harm the environment”. Hunt CJ at CL said, at p7, that “In considering whether a defendant has acted negligently, the issue is decided upon an objective basis” both in civil cases and under the criminal law, citing for the latter part of this proposition R v Nydam and R v Buttsworth . His Honour also agreed generally with the reasons of Enderby J.

Enderby J said (at p11) that negligence was not a subjective, but an objective test and one which did not involve an enquiry into the subjective thinking of the person who is said to have been negligent. Allen J (at p12) also agreed generally with the reasons of Enderby J, going on to say that “The question is whether (the Appellant) fell so far short of the standard of care of an objectively reasonable person in the position in which it found itself that it was negligent to the criminal degree.”

In Callaghan v R (1952) 87 CLR 115 the High Court had to consider the meaning to be given to the expression “to use reasonable care and take reasonable precautions” in two sections of the Western Australian Criminal Code. The sections were in terms:- “266. It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health or any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty. 291A (1). Any person who has in his charge or under his control any vehicle and fails to use reasonable care and take reasonable precautions in the use and management of such vehicle whereby death is caused to another person is guilty of a crime and liable to imprisonment with hard labour for five years. (2) This section shall not relieve a person of criminal responsibility for the unlawful killing of another person.”

For reasons it is unnecessary to recount the High Court concluded that breach of the duty of care imposed by Section 266 became one of the constituents of the crime of manslaughter. Their Honour’s conclusion was that the standard set by both sections should be regarded as that set by the common law in cases where negligence amounts to manslaughter. In arriving at their conclusion the Court, consisting of Dixon CJ, Webb, Fullager and Kitto JJ said (at p122-4):- “In his judicial capacity Sir James Fitzjames Stephen in summing up to a jury explained as follows the neglect which may make a man guilty of manslaughter. ‘Manslaughter by negligence occurs when a person is doing anything dangerous in itself, or has charge of anything dangerous in itself and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence and ought to be punished. As to what act of negligence is culpable you, gentlemen, have a discretion and you ought to exercise it as well as you can’. R v Doherty (1887) 16 Cox CC 306 at 309 In Andrews v DPP Lord Atkin deals with the common law felony of manslaughter a little differently: ‘Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied “reckless” most nearly covers the case.’ …. In Sir James Fitzjames Stephens History of Criminal Law , vol. 3, pp 9-11, there is a treatment of the common law in relation to killing by omission representing the same approach as these sections of the Bill exhibit. The author says: ‘By the law of this country killing by omission is in no case criminal unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary in the first place to ascertain the duties which tend to the preservation of life’. He proceeds to enumerate these duties. In his enumeration, he includes a duty to do dangerous acts in a careful manner, and a duty to take proper precautions in dealing with dangerous things. He deals with the question of the degree of want of care in the following passage: ‘To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more; but no one can say how much more negligence than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case’. … In McCarthy v The King (1921) 59 DLR 206 at 208 Duff J expressed his view of a provision of the Canadian Criminal Code … similar to s266 of the Western Australian Code. He said that it did not, he thought, substantially change the common law. He then proceeded: ‘There may I think, be cases in which the Judge ought to tell the jury that the conduct of the accused in order to incriminate him under this section must be such as to imply a certain indifferent to consequences, but such cases, I think, must be rare and this assuredly is not one of them. Where the accused, having brought into operation a dangerous agency which he has under this control (that is to say dangerous in the sense that it is calculated to endanger human life), fails to take those precautions which a man of ordinary humanity and reasonable competent understanding would take in the given circumstances for the purpose of avoiding or neutralising the risk, his conduct in itself implies a degree of recklessness justifying the description “gross negligence’.”

I have quoted at length from Callaghan v R for, although the matter at issue in that case was as to the proper construction of sections of the Western Australian Criminal Code, the standing of the court and of the judges who participated in the decision is such as to put almost beyond argument the correctness of the law as stated. Their Honour’s reliance on the statements of Sir James Fitzjames Stephen indicates they agreed with, or at least accepted the accuracy of, what he had said. His statements make it clear that the test for manslaughter by negligence, in circumstances when things dangerous are being done or used, is simply negligence or carelessness which is bad enough to fit within the descriptions “culpable”, “ought to be punished” or “gross”, it being a matter for a jury to decide whether the offending conduct falls within that description.

Furthermore, their Honours quotation from McCarthy v The King means that they cannot but have been conscious of the difference between negligence or gross negligence on the one hand and recklessness in the sense of indifference to consequences and, implicitly, recognition of the risk of such consequences on the other. Their reference, without adverse comment, to the remarks they quoted from McCarthy v The King that it will be a rare case where indifference to consequences will be spoken of to a jury is a further endorsement of the view that indifference, and therefore appreciation, is not an essential ingredient of manslaughter by criminal negligence.

Nydam v R has been followed or accepted both in Victoria and elsewhere – see Re Lamperd & Courts-Martial Appeal Tribunal [1983] 8 Crim R 417, Nuri v R [1990] VR 641, [1989] 49 A Crim R 253; R v Tomac [1996] 67 SASR 376; Taylor (1993) 9 A Crim R 358; R v EMJ [2001] WACC 7; De’zilwa (2002) 133 A Crim R 501. In Wilson v R (1991-1992) 174 CLR 313 at 333 four members of the High Court cited Nydam v R for the proposition that in the case of manslaughter by criminal negligence, the test of dangerousness is “a high risk that death or grievous bodily harm would follow”. It strikes me as highly unlikely that if what was said in Nydam v R as to the balance of the test for manslaughter by criminal negligence was as wrong as R v Taktak would suggest, the judges in the High Court would not have at least expressed some reservations about the matter.

Although I do not suggest that my citation of authority is complete, it is sufficient. Upon the basis of the remarks of the High Court in Callaghan v R and in most of the decisions of this Court which I have cited and of the Court of Criminal Appeal and House of Lords in Bateman and Andrews v DPP as properly understood, I am satisfied that the test of liability in cases where manslaughter by criminal negligence is relied upon is objective and does not require that there be any awareness of risk or indifference to consequences. The decisions in Akarele v R and R v Adomako , showing as they do a marked similarity with the approach of Sir James Fitzjames Stephen, support this view. I am satisfied that, at least so far as the common law is concerned, the test laid down in Nydam v R is correct and the remarks in R v Taktak are not good law.

Nothing I have said, of course, is intended to suggest that consciousness of risk or indifference to consequences may not be relevant. But their relevance is only insofar as they bear upon the test posed in Nydam v R .

Since the above was written, I have had the advantage of reading in draft the reasons for judgment of Adams J and his citation of the remarks of Menzies J in Pemble v R [1971] 124 CLR 107 and of Begg J in R v Solomon [1980] 1 NSWLR 321. While accepting that they argue against the conclusion at which I have arrived, they do not persuade me that that conclusion is wrong.

I should also acknowledge, as Giles JA has pointed out, that the above discussion goes beyond the arguments of counsel and their reference to authority. Unfortunately, having made the submission that Nydam v R and R v Taktak were inconsistent, counsel for the Appellant chose not to develop that submission to any appreciable extent, notwithstanding its obvious importance to the determination of the appeal.

It will be apparent from my embracement of the authorities to which I have referred that I do not share many of my brother Adams’ criticisms of the directions and summing-up in this case. Without seeking to be exhaustive, I see no foundation for including as an element in manslaughter by criminal negligence concepts of “grave moral guilt” or turpitude – c.f. Jackson & Hodgetts (1989) 44 A Crim R 320 at 324 - or a need to be able to characterise or to describe an accused’s conduct as “wicked”. In light of Bateman , I of course do not suggest that that term may not be appropriate. In many cases, particularly when the conduct relied on is action and not omission, there will be no need to mention “duty of care” although both this expression and negligence have been so commonly used that, subject to the impact of ss5 and 18 of the Crimes Act, I see no objection to them beyond the general one that it is better, in directing a jury, to exclude the unnecessary. Commonly, of course, it will be convenient to contrast the negligence giving rise to civil liability with the gravity of the conduct needed for manslaughter.

In light of the weight of the authorities to which I have referred, I do not however find it necessary to consider a number of the authorities to which the Court was referred including Gray v Barr (1971) 2 QB 554 at 568 and R v Lamb (1967) 2 QB 981 upon which the Appellant heavily relied. Insofar as they differ from the law as laid down in the authoritative statements which I have quoted, they are wrong.

An ancillary question arises from the trial judge’s attempt to explain when actions might merit criminal punishment. What his Honour said in this regard was as follows:- “Now members of the jury, the conduct of a person to merit criminal punishment only occurs if you are satisfied that not only were the actions so far short of the standard of care which a reasonable person would have exercised in the circumstances involving a high risk that death or really serious bodily injury would follow from those actions, but also that right thinking members of the community would regard the degree of negligence involved in that conduct as so serious that it should be treated as criminal conduct. That is to say, you have to put yourself in a position of right thinking members of the community and ask yourselves having found factually what occurred on this day, if you find that there was negligence, would right thinking members of the community regard the degree of negligence as being so serious that it should be treated as a crime. If you are not so satisfied members of the jury, then your verdict on the manslaughter count will be not guilty.”

The reference to “right thinking members of the community” was no doubt inspired by a passage in the Judges’ Bench Book. What the expression may be thought to add to the test reflected in paragraph 5 of the written directions is not apparent to me and my view is that it would be better omitted. The issue was whether, in the circumstances envisaged in paragraph 5, the jury was persuaded that the actions merited criminal punishment. However, I do not think this aspect of the summing up provides any grounds for thinking that the Appellant was disadvantaged. There is nothing in the summing up to explain what his Honour meant by “right thinking members of the community”, and I have no doubt that in that situation all members of the jury would have equated the expression with “reasonable persons” and regarded themselves as, or acting in a capacity, answering both descriptions. “Maliciously” and Crimes Act Section 18

In New South Wales the common law as to manslaughter is affected by Section 18(2) of the Crimes Act and the definition of “maliciously” in Section 5. The terms of these provisions are:- “18(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 5 “ Maliciously” : Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.

These provisions appeared first in the Criminal Law Amendment Act 1883, an Act which was intended to change the law – see R v Coleman (1990) 19 NSWLR 467 at 474.

Though it may well be that s18(2) has no practical effect in the case of murder, upon the basis that the elements of that offence set forth in sub-section (1) necessarily establish the presence of malice – see R v Coleman (at p473) – the same cannot be said of the offence of manslaughter. On the face of the section, no act or omission which would otherwise be manslaughter can be such if it was not malicious, or one for which the accused had lawful cause or excuse – see Royall v R [1990] 172 CLR 378 at 429. No question of lawful cause or excuse arises in this case. Hence for the Appellant to be guilty, it would be necessary for his conduct to fall within one or more of the expressions:- (i) of malice, (ii) with indifference to human life or suffering, (iii) with intent to injure some person or persons, (iv) done recklessly or (v) (done) wantonly.

The charge and conduct of the trial means that one can put aside without further discussion paragraphs (i) and (iii). It has not been explicitly or implicitly suggested that the Appellant’s conduct fell within either of these paragraphs. However, the substantial issue in the trial was as to the proper characterisation, or the jury’s judgment of the seriousness, of the Appellant’s conduct. Thus whether the Appellant’s conduct fell within one or other of the paragraphs (ii), (iv) or (v) was a question requiring answer. It is apparent that it did not occur to anyone at the trial, Crown Prosecutor, counsel for the Appellant or Judge to raise that question although counsel for the Appellant did rely on s18 in support of a contention that manslaughter was not an absolute offence and an honest and reasonable belief by the Appellant that it was safe for him to drive as he did was something the jury were entitled to take into account.

Neither s18 nor s5 are mentioned in the grounds of appeal. In the Appellant’s written submissions, the provisions are dealt with, albeit not in any ordered way, in terms:- (i) The terms of s18(2)(a) unequivocally provide that an act which is not malicious falls outside the ‘definition’ of manslaughter. Under s5 the concept of malice involves subjective element. While the test of negligence is objective – just as the test of dangerousness is objective – nevertheless if an accused person believes on reasonable grounds in a factual scenario which if true would make his actions innocent, he is entitled to be acquitted. In this regard the learned trial judge has appeared to fail to distinguish the actus reus of the offence form its mens rea or mental element. (ii) The directions given to the jury in the present case (i) effectively denied the appellant the ‘defence’ of honest and reasonable belief which is preserved by s18(2) Crimes Act (NSW) 1900 … (iii) that the ultimate effect of s18(2) might be to make the law accord with that Lord Denning M R in Gray v Barr (1971) 2 QB 554 at 568 derived from Lamb (1967) 2 QB 981, viz. “in manslaughter of every kind there must be guilty mind. Without it, the accused must be acquitted”: (iv) having regard to the provisions of s18(2) it is wrong to describe manslaughter as a ‘felonious slaying with out malice” as the Crown had suggested; and (v) the decisions of courts of Victoria must be qualified in their application to New South Wales by reason of the absence of any statutory equivalent of s18(2).

There was little or no development of any of these propositions other than that part of the first as related to honest and reasonable mistake, and the second.

Neither did the Crown direct attention to the question whether the Appellant’s conduct had been shown to exhibit indifference to human life or suffering or was reckless or wanton or whether any such questions should have been raised for the decision of the jury. In fact, arguably the terms of the statutory provisions make a radical change to the law of manslaughter.

I have not found any authorities on the meaning of “indifference”. Among the meanings given to that term in the OED are: “The quality of being indifferent.” “Absence of feeling for or against; hence esp. absence of care for or about a person or thing.”

The definition of “indifferent” includes:- “Having no inclination or feeling for or against a thing; hence … unconcerned, … apathetic….” “Of no consequence of matter either way, … immaterial.”

There is nothing in the definitions to suggest that indifference includes ignorance of the matters, or of the possibility of the matters in respect of which the indifference exists. Thus to justify a conviction of manslaughter upon the basis that the relevant act was done with indifference to human life or suffering, it would need to be shown, not that the offender did not think about those matters but at the time of his acts did not care whether suffering or damage to life occurred.

I doubt if anything turns on it beyond an illustration of the difficulty of understanding expressions in this area but, so interpreted, the expression “indifference to human life or suffering” is virtually identical with the explanation of recklessness in R v Stones [1955] 56 SR (NSW) 25 at 34 where the Court said:- “Thus the standard test of a man’s mind in the commission of an act is the foreseeable consequences. If he applies his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness.”

Turning to the use of the word “recklessly” in the definition of “maliciously”, in R v Coleman Hunt CJ at CL said (at p475):- “At the time of that decision ( R v Crabbe (1985) 156 CLR 464), it was also generally accepted law in Australia that, in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted”

The other members of the Court concurred. The approach was reaffirmed, again with the concurrence of the other members of the Court in Stokes & Difford [1990] 51 A Crim R 25 at 40. Distilled, Hunt CJ at CL was saying, that for the purposes of establishing that an act was done maliciously, recklessness involved a realisation by an accused of the possibility of some physical harm and going ahead and acting.

In R v Caldwell [1982] AC 341 another definition or explanation of the term “reckless” was given. At p353-4, Lord Diplock said that in ordinary speech the meaning of the word “reckless” included: “Not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.”

The first part of this explanation accords closely with that of Hunt CJ at CL, i.e., a realisation by an accused of the possibility of some physical harm and ignoring it, (in, implicitly, going ahead and acting). The second part, failing to give thought to an obvious risk, is an additional concept.

In R v Lawrence [1982] AC 510, Lord Diplock said (at p525) that in R v Caldwell it had been decided that in the context of the Criminal Damage Act 1971, “reckless… had not acquired a special meaning as a term of legal art, but bore its popular or dictionary meaning of careless, regardless, or heedless of the possible harmful consequences of one’s acts. The same must be true of the adverbial derivative of “recklessly”.” It is not clear whether this exposition is intended to refer to only an attitude to recognised consequences, or to include also, failure to have care, regard or heed to possible consequences, whether any thought was given to that topic or not.

Later, Lord Diplock returned to R v Caldwell , and said (at p526):- “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible.”

For completeness I should point out also that in R v Lawrence, attention was also given to sections 1 and 2 of the Road Traffic Act 1972, created offences of or including driving recklessly. As to these provisions, Lord Diplock gave another explanation of “recklessly” which it is unnecessary to set out.

The foundations for the conclusions in both R v Coleman and R v Caldwell were statements contained in statements in the 1902 edition of Kenny’s Outlines in Criminal Law and subsequently repeated, and R v Cunningham (1957) 2 QB 396 which had also relied on them. So far as is presently relevant those statements were:- “In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).”

The most appropriate explanation of “wantonly” in the OED is: “Recklessly, unadvisedly; without proper excuse or motive; without regard for right or consequences; in a way that betrays delight in wrong doing or mischief, wilfully.”

Stroud’s Judicial Dictionary , 5th Ed, says of “reckless and wanton” in the Canadian Criminal Code that in R v Canadian Liquid Air Ltd (an unreported case from British Columbia) it was held that: “’Reckless’ means that a person shows a carelessness for the consequences of his act so far as the lives or safety of other persons are concerned. “Wanton” has much the same meaning but includes not only an indifference to consequences but an unrestrained disregard of them.”

The principle of construction that, prima facie, different words should be interpreted differently means that “wantonly” should be regarded as having a meaning different from “recklessly” and of the possibilities mentioned, “without regard for right or consequences” or “an unrestrained disregard of (consequences)” seem the most appropriate.

I return then to the issue of what operation or meaning should be given to the word “recklessly” in the definition of “maliciously”. I do not see that any of the meanings which should or might be given to the expressions “with indifference to human life or suffering” and “wantonly” assist in a choice between the various possible meanings of “recklessly” to which I have referred.

The term “maliciously” is used widely in the Crimes Act - and was so used in 1883 - including in sections dealing with sending threats (s31), wounding (s35), and damaging property (s196). The use of the term in those and other like provisions argues for a definition of “recklessly” along the lines of what Hunt CJ at CL said in R v Coleman rather than the somewhat wider one advanced in R v Caldwell . The extension of meaning so as to encompass also a failure to think of obvious risks does not sit as happily with those other offences as does the more restricted meaning. Furthermore, it is clear that in Kenny’s Outlines in Criminal Law on which both Hunt CJ at CL and Lord Diplock relied, “recklessness” is regarded as having the narrower meaning. When to those matters is added the fact that R v Coleman and Stokes & Difford are decisions of this Court, “recklessly” should be regarded as having the meaning given to it in those cases. Furthermore, there is no basis upon which the expression can be regarded as having a different operation in the case of manslaughter than in the case of other offences.

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 p179; R v Bikic [2002] NSWCCA 227 at [147] et seq.

The test of criminal liability put to the jury in the Appellant’s trial, and in particular paragraph 5 thereof, viz- 5. That such actions: (i) Fell so far short of the standard of care which a reasonable person would have expected in the circumstances; and (ii) Involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.” neither expressly nor impliedly required determination of any of the issues referred to in the immediately preceding paragraph.

The matter was put to the jury as one of (criminal) negligence. Nowhere in his Honour’s summing up do the words “indifference to human life or suffering”, “recklessly” or “wantonly” appear. Thus, as manslaughter required an act that was malicious, it follows that the jury were not asked a question essential to any determination of the Appellant’s guilt. Furthermore, the omission was not in respect of minor issues. As I have said, the substantial dispute in the trial was as to the proper characterisation, or the jury’s judgment of the seriousness, of the Appellant’s conduct. In this situation, and notwithstanding the decision in Jones (1995) 78 A Crim R 504, there is much to be said for the view that the Appellant’s trial involved such a departure from the essential requirements of the law that it went to the root of the proceedings – Glennon v R (1994) 179 CLR 1 – and on that ground it would be inappropriate to apply the proviso. The matter is so fundamental that the failure by the Appellant’s counsel to raise it at the trial, and the restrictive terms of rule 4 must also be overlooked.

But in any event, it cannot be said that by the omission to require the jury to address the issues raised by s18 and the definition of “maliciously” the Appellant did not lose a chance of acquittal fairly open. Thus the proviso cannot be applied and the appeal must be allowed.

In New South Wales, no longer is the common law requirement of criminal negligence sufficient for a conviction of manslaughter. The combined effect of s18 and s5 is to significantly change that law and to require directions to a jury additional to those suggested in R v Nydam . The tribunal of fact must be satisfied that the conduct relied on by the Crown fulfils the Nydam test and one or other of the descriptions I have set out above. I appreciate that in saying this I may be differing from the way manslaughter was dealt with in the New South Wales reports to which I have previously made reference. I am certainly differing from the way the matter is dealt with in the Judges’ Bench Book. However the need in any trial for manslaughter based on criminal negligence to have regard to the operation of s 18 and 5 is, to me, plain.

For completeness, I draw attention to the question, adverted to in Royall v R [1990] 172 CLR 378 at 428-9, whether the issues raised by these sections are elements of the offence which the Crown must prove or matters of “defence” which an accused must first raise. That question does not arise in this appeal. Mistaken Belief

The original, and until the hearing only, ground of appeal was:- “The learned trial judge erred in failing to direct the jury that it was for the prosecution to exclude an honest and reasonable belief in the Appellant that it was safe to proceed and in directing the jury that the Appellant’s belief was “immaterial’

In light of the conclusion I have just expressed it is strictly unnecessary that I pursue this ground. However, as the matter has been argued and raises issues likely to extend well beyond the confines of this appeal, it seems to me desirable that I say something about the matter.

Any judgment concerning the issues posed by paragraph 5 of the written directions necessarily involves a consideration of all of the circumstances which bear on the reasonableness of an accused’s actions. These circumstances will include matters known to an accused and also those which should have been known to him or at least in his contemplation. They will include his beliefs, at least as to what may be described as primary factual matters, and whether or not those beliefs be accurate or inaccurate.

To take an example removed from the facts of this case, if a person is killed due to a car being driven with defective brakes and it is shown that the driver had some prior knowledge of that condition, any belief on the part of the driver that the brakes had therafter been fixed would also be relevant. Clearly such a belief should be taken into account in any judgment whether his actions fell short and, if so, how far short, of the standard of care a reasonable person would have exercised and whether his actions merited criminal punishment.

So also will the care with which such beliefs were formed be properly the subject of consideration for, although I do not suggest that the two can be completely divorced, fault or a breach of the standard of care may proximally lie rather in the formation of the belief, than in the actions done in reliance on it.

Ignorance may also be relevant. If one person shoots another, it is hardly an answer to a suggestion that reasonable care had not been exercised for the offender to say simply that he did not know the gun was loaded.

It may be accepted that there is a general principle of the criminal law of this State that an honest and reasonable belief in a state of affairs (or of fact) which, if it had existed, would make an accused’s act innocent, constitutes a defence to a criminal charge and, if there is evidence raising the issue, a matter the Crown must negative pursuant to its obligation to prove a charge beyond reasonable doubt. Authorities establishing or recognising the proposition include the following: Hardgrave v R (1906) 4 CLR 232 at 237; Thomas v R (1937) 59 CLR 279 at 286-8, 295, 305-6; Proudman v Dayman (1941) 67 CLR 536 at 540; He Kaw Teh v R (1984) 157 CLR 523; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-7; Jiminez v R (1992) 173 CLR 572 at 581-3 . See also R v Ianazzone (1983) 1 VR 649 at 655 which makes it clear that it is only mistakes the effect of which is to make actions innocent, not some other or lesser offence, which are within the principle.

The statements in these authorities also make it clear that the principle is restricted to mistakes as to factual matters.

However, there is no scope for the principle to operate in cases such as this where such beliefs are an essential component of what I may call the basic test of liability. Any belief which would be relevant under the doctrine of honest and reasonable mistake of fact would necessarily have to be taken into account in the basic test of negligence. As was said in R v Osip (2000) 116 A Crim R 578 at [35], “the ‘defence’ of honest and reasonable mistake is subsumed in the direction as to gross negligence”.

In the opening paragraph of this section of my reasons, I said that an accused’s beliefs, at least as to primary factual matters, were among the circumstances which bear on the reasonableness of his actions. Examples of matters which would fall within that description are: that the speed was 20 kilometres per hour, that the brakes were working normally, and that there was no one present. A belief that it was “safe to proceed” does not fall within that description. Analysed, such a belief is really an opinion arising from a judgment made as to the impact of a number of matters, or perhaps more accurately beliefs as to them, falling within the category of those I have called “primary factual matters”.

The distinction is exemplified by remarks such as those of Barwick CJ in Marwey v R (1977) 138 CLR 630 where, at p637, his Honour said that he questioned ”whether the necessity of doing the fatal act (by way of self defence) can properly be said to be a state of fact for the purposes of s24” of the Queensland Criminal Code. Section 24 provides, in summary, that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist.

In McCullough (1982) 6 A Crim R 274 at 282, the Tasmanian Court of Criminal Appeal observed:- “An apprehension that a person is about to cause one death or grievous bodily harm is not a belief in a state of facts, nor is a belief that one cannot preserve oneself otherwise than by causing death or grievous bodily harm to the assailant. Both are exercises of judgment or opinion …”

In R v Allwood (unreported, Qld CA, 22 August 1997, BC9704073), citing these cases and Lean (1989) 42 A Crim R 149, Pincus JA expressed a similar view. See also Williams J.

In McLuckie v Williams (1995) 82 A Crim R 118 Murray J had to consider whether an ambulance driver, who collided with another vehicle in an intersection, had been guilty of dangerous driving. In the course of his judgement Murray J said (at 126):- “As was said in Kaighin (1990) 1 WAR 390, the test as to whether driving is dangerous is objective. It could not therefore be relevant to the potential application of s24 of the Code (the provision dealing with honest and reasonable mistake of fact) that the defendant honestly, or honestly and reasonably, believed that his manner of driving was safe. That would not be a belief in a relevant state of things, but a subjective evaluation of the quality of the driving.”

Along similar lines are the remarks of Gleeson CJ, with the concurrence of the other members of the Court in Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751 where under consideration was a statutory provision requiring members of a Local Government Council to disclose any pecuniary interest in a matter with which the Council was concerned. Albeit influenced by the nature of the subject matter, Gleeson CJ said:- “It is one thing … to accept that a member of council has made an honest and reasonable mistake about a matter of primary fact. It is another thing to treat as decisive the member’s judgment upon matters of opinion or degree which may be involved in proceeding from a premise as to the existence of certain primary facts to a conclusion as to the existence of ‘pecuniary interest’.”

And as Giles JA has pointed out, it was a suggested honest and reasonable belief “that it was safe to proceed” that the trial judge refused to include in his directions to the jury in this case. In this refusal his Honour was correct.

In this case, the relevant issue as presented to the jury was simply whether, by the objective standard to which I have earlier referred, the accused’s actions were negligent. To that issue, his opinion on the matter was irrelevant. Neither was it the product of any specialised knowledge such that it could have assisted the tribunal charged with determining the issue of negligence. Nor would evidence of such beliefs be necessary to obtain an adequate account or understanding of an accused’s perception of primary facts. Indeed, such beliefs would seem to me confusing. They would be the product of some judgment, made by reference to an unknown standard which did not necessarily coincide with that by which his conduct should be judged.

That is not to say that such a belief would always be irrelevant. If the case had been presented upon the basis that his conduct was reckless in the sense of recognising a risk and electing to run it, or being indifferent as to consequences, then his subjective belief on the issue of the risks or safety involved would be relevant as tending to contradict the case made against him. However, the case sought to be made against the Appellant in this case did not fall into this latter category and, on the basis of the case as presented, the trial judge was correct in refusing to put to the jury a suggested belief on the part of the Appellant “that it was safe to proceed”.

I should not leave this topic without adverting to language used by the High Court in Jiminiz v R (1992) 173 CLR 572 and which, at first blush, may suggest that the conclusion at which I have arrived is wrong. Thus at p583, it was said:- “It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. Apart from any inference that might be drawn from the fact that the applicant had fallen asleep, there was little in the evidence to support a finding that the applicant had felt drowsy or that he had reason to believe that he was tired.”

However, the court was not dealing with the issue with which I am presently concerned. There was no discussion of limitations as to the type of mistakes that may be taken into account or of the body of cases to which I have referred. In context, the expression “it was safe to drive” was, it seems to me, just an alternate way of saying “he was not tired”.

However, it does not follow that what the trial judge did say to the jury was correct. His Honour’s directions included the following:- “A determination of this question of negligence and the degree of negligence is an objective test. You have to compare the conduct of the accused, as you find it to have been, with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused in the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have, and determine on that basis whether the Crown has made out its case. In other words it is an objective test.” and later:- “(I)t is immaterial in this case, both in relation to count 1 and count 2, what the accused believed to be the case at the time. The test is an objective one, that is to say you must try to put yourself in the position of a reasonable person in the position of the accused, same age, knowing what he knows and a person of ordinary fortitude and strength of mind, and ask yourselves would that person have done what the accused did.”

Consistently with what I have said in the opening paragraphs of this section of my reasons, the direction in the first sentence of the second of the paragraphs just quoted was wrong. The jury should have taken into account any beliefs the Appellant had as to primary factual matters.

And there was one which was arguably relevant. There was evidence that the Appellant believed that there were not boys in his path. I agree with Giles JA that the Appellant’s driving is consistent with him not thinking about the position of the boys at all. However, I think the more probable inference is that he thought the boys were not in his way. In any event, I agree with Giles JA that the Appellant’s answer, when questioned, “Well the boys were a long way in front of me by then”, albeit followed by an acknowledgment that he did not know where 2 of the boys were, is capable of giving rise or, as I think strengthening, this inference. The jury was entitled to take this into account.

It is true that counsel did not ask the judge to so direct the jury. It is apparent that he did not appreciate the distinction between the belief on which he sought, but was not entitled, to rely, viz. that it was safe to proceed, and the one on which he was entitled to rely, viz. that the Appellant believed the boys were not in his path. But equally, the trial judge should not have excluded from the jury’s deliberations all of the Appellant’s beliefs or those the Appellant may have had.

Would, or might, it have made any difference? The judge told the jury that they should try to put themselves in the position of the accused, knowing what he knew. If in the jury’s judgment it was grossly negligent of the Appellant to drive in the state of knowledge he had, must they not equally have concluded that he was grossly negligent either in the formation of a belief that the boys were not in his path, or in driving on the strength of that belief or in a combination of the two?

In my view the answer to that question is “No”. Certainly a consideration of any belief may have made no difference to the result. But on the other hand, it seems to me it may have. Conceptually, I think it harder to conclude there was gross negligence if the two-stage process is gone through. Mistaken beliefs are formed. Given the slow speed and great noise of the equipment the Appellant was driving, I would not regard the formation of a belief that the boys were not in its path as necessarily grossly negligent or so obviously unreasonable that it should not have been left to the jury. And, once such a belief was formed, acting on it is also understandable. For the trial judge to preclude the jury from engaging in this 2 stage analysis by directing them that “It is immaterial … what the accused believed” arguably prejudiced him. The direction was wrong and it cannot be said that he did not thereby lose a chance of acquittal fairly open.

In arriving at this conclusion, I do not ignore the fact that the judge did tell the jury that they should try to put themselves in the position of the accused, knowing what he knew. However this was not done in terms often or strong enough to enable one to say that his earlier direction that it was immaterial what the accused believed could have had no impact on the jury.

Accordingly, even had I taken a different view on the operation of s5 and s18 of the Crimes Act, I would have allowed the appeal on this ground. I so conclude notwithstanding counsel’s failure to take the precise point because of what I see as the fundamental nature of the issue and the fact that counsel did squarely raise the topic of the Appellant’s belief. Orders

It follows from what I have said that the Appellant’s conviction and sentence must be quashed. Pursuant to the terms of s6(2) and s8 of the Criminal Appeal Act the Court has a discretion whether to enter a verdict of acquittal or to order a new trial.

The indictment upon which the Appellant was tried included as an alternative count, a charge of “culpable driving”, i.e. driving a vehicle in a manner dangerous to another person or persons whereby the vehicle was involved in an impact as a result of which death occurred. Pursuant to s7 of the Act the Court may, if it appears that the jury must have been satisfied of facts which proved the Appellant guilty of that offence, enter a verdict of guilty of that offence and sentence him accordingly.

The conclusion at which I have arrived is that there should be no order for a retrial on the charge of manslaughter and that the Court should not enter a verdict of guilty on the alternate count.

Factors which incline me to those conclusions include the following. The Crown sought to have, and succeeded in having, the Appellant convicted of manslaughter on a basis which was wholly wrong and which the Crown should have known was wrong. On the basis of the much higher test which should have been applied in the case of manslaughter, and of the fact that any belief the Appellant had that his path was clear will have to be taken into account, the Crown’s prospects of success on that charge will be substantially reduced. Thus at any re-trial the Appellant may well not be convicted of manslaughter.

Of the sentence imposed of 4 years including a non-parole period of 18 months, the Appellant has served virtually 12 months imprisonment. Some time is bound to expire before any fresh trial can be had. The Appellant had no prior convictions of any significance. He has never previously been in custody. He would thus be entitled to bail if he applied for it pending any re-trial. It is in the highest degree unlikely that if he were again convicted of manslaughter, any longer sentence than that presently operating would be imposed. Upon the basis that to do so after he has been at liberty again would be oppressive, there is a good chance that even if re-convicted he would not be returned to full time custody.

I have said that it is in the highest degree unlikely that if he is again convicted, any longer sentence than that presently operating would be imposed. That situation applies after any offender’s retrial. In this case there is an additional factor. In the course of considering a Crown appeal against sentence – which in the circumstances it is unnecessary to pursue – I had occasion to consider some to the trial judges findings. One view I formed was that I could see no basis for a finding his Honour made to the effect that the Appellant “completely abandoned responsibility for his actions and their obvious consequences”. That finding of his Honour must have operated in the direction of increasing the sentence from that which would otherwise have been imposed.

The Court is not justified in convicting the Appellant on the alternate count. He was entitled to have taken into account on that charge any belief he may have had to the effect that the path was clear. Accordingly, this Court is unable to be satisfied as s7 of the Criminal Appeal Act requires before such a conviction can be entered. While the Crown’s prospects of a conviction on that charge on any retrial are probably greater than they are on a charge of manslaughter, because the alternate charge relates to a less serious offence, one would expect that any sentence imposed for it would be lower than that which the Appellant is currently serving. Otherwise many of the considerations to which I have earlier referred apply.

It was for the above reasons that I favoured the making, some days ago, of orders:- (i) The appeal is allowed; (ii) The Appellant’s conviction and sentence are quashed: (iii) Direct that a judgment and verdict of acquittal be entered.

ADAMS J : I have had the advantage of reading the judgement in draft of Giles JA and adopt with gratitude his Honour’s account of the evidence and the trial. INTRODUCTION

I should state, at the outset that, if Nydam v R [1977] VR 439 at 445 be a correct and comprehensive statement of the law in this State, then I agree with his Honour’s conclusion that that it is not necessary to direct the jury as to the application of the defence of honest and reasonable mistake and with his Honour’s reasons for so concluding. This is, however, subject to the proviso that it is understood that reasonableness applies not only to the standard of care but the appreciation of the “high risk” of death or grievous bodily harm (see below). As I endeavour to explain below, Nydam was not followed in this respect. THE OBJECTIVE TEST OF LIABILITY FOR NEGLIGENT MANSLAUGHTER?

The appellant’s grounds of appeal raise, one way or another, the question of the relevance of the appellant’s belief that what he did was safe to the charge of manslaughter by criminal negligence. The charge to the jury reflected the formulation of liability set out in Nydam [1977] VR at 445 (set out below). This brings into question the correctness of the view of the Full Court of the Supreme Court of Victoria as to the entirely objective character of the offence, as there expressed. Although Nydam has been referred to with approval in this Court on occasions (see eg, R v Manh Viet Do [2001] NSWCCA 19; R v Vukic [2003] NSWCCA 13) and in the High Court of Australia ( Wilson v The Queen [1991-1992] 174 CLR 313 at 333), the question whether the test of liability for negligent manslaughter is purely objective was not in issue in those cases.

Nydam concerned a conviction of murder following directions as to the significance of what was alleged to be the appellant’s recklessness, that is to say, his decision to undertake a course of action which he knew would probably cause the death or grievous bodily harm of the victims, and the question on the appeal was whether murder by recklessness should have been left to the jury. The appeal was allowed upon the basis that the directions did not adequately summarise for the jury the evidence that might have borne on the appellant’s state of knowledge. Amongst other things, the Full Court was concerned to distinguish between the character of the accused’s knowledge on a charge of murder by recklessness on the one hand and a charge of manslaughter by recklessness on the other. The Court concluded that the essential difference was that, on a murder charge, the accused must be proved to have actual knowledge of the extent of the risk whilst, on a manslaughter charge, the test is objective, namely whether a reasonable person would have appreciated the danger ([1977] VR at 439). Their Honours’ frankly acknowledged, however, that “there are undoubtedly cases of manslaughter by negligence in which a subjective test has been applied by most eminent judges” ([1977] VR at 442), citing amongst others the following dictum of Smith J in R v Holzer [1968] VR 481 at 482 (said by their Honours to “have been accepted [in Victoria] as a correct statement of the law”) – “…we are not here concerned with the doctrine of manslaughter by criminal negligence, under which, as I understand the law founded upon the House of Lords’ decision in Andrews v Director of Public Prosecutions [1937] AC 576; [1937] 2 All ER 552, the accused must be shown to have acted not only in gross breach of a duty of care but recklessly in the sense that he realized that he was creating an appreciable risk of really serious bodily injury to another or others and that nevertheless he chose to run the risk.” The Court went on to say (at 444-445) – “No doubt manslaughter does involve mens rea . But…the necessary intent is no more than an intent to do the acts which constitute the crime. The problem is to formulate the requirement in terms which will enable the jury to determine whether the case is one of murder by recklessness or manslaughter by criminal negligence. The requisite mens rea in the latter crime does not involve a consciousness on the part of the accused of the likelihood of his act’s causing death or serious bodily harm to the victim or persons placed in a similar relationship as the victim was to the accused. The requisite mens rea is, rather, an intent to do the act which, in fact caused the death of the victim, but to do that act in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed, that is to say such a risk as to warrant punishment under the criminal law. This formulation proceeds on the footing that the accused man did not in fact advert (although a reasonable man would have adverted) to the probability that death or grievous bodily harm would ensue. … 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.”

I interpolate here that the introduction of the putative reasonable man strikes me as an unnecessary complication. It is simpler, and more easily understood – with no loss of meaning – if the issue is posed as one of the reasonableness of the accused’s conduct. At all events, it appears that, according to Nydam , the test of criminal liability for careless acts is purely objective. For the reasons that follow, I would hold, with respect that this is not the law in New South Wales and that here the law is as enunciated by Smith J in the passage cited above.

It is convenient first to deal with several of the seminal English decisions. The first is R v. Bateman (1925) 19 Cr App R 8, where Lord Hewart CJ said (at 10-11) – "In expounding the law to juries on the trial of indictments for manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A has caused the death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea ." Later his Lordship said (at 11-12) – "In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as 'culpable,' 'criminal,' 'gross,' 'wicked,' 'clear,' 'complete.' But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment." After dealing with a number of cases, the Chief Justice went on (at 12-13) – “The law requires a fair and reasonable standard of care and competence...If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness. No further observation need be made with regard to cases where the death is alleged to have been caused by indolence or carelessness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare. In the case of the quack, where the treatment has been proved to be incompetent and to have caused the patient's death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving the gravest risk to his patient, when he knew he was not competent to deal with it, or would have known if he had paid any proper regard to the life and safety of his patient." "The foregoing observations deal with civil liability. To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment."

To my mind the phrase “disregard for the life and safety of others” implies some appreciation by the accused of the nature of the risk which is disregarded, although the distinction between the objective and subjective appreciation of risk is certainly not plainly addressed. This view is reinforced by Lord Hewart’s apparent endorsement of the epithets to which he referred. Kennedy J, in Pacino (1998) 105 A Crim R 309 at 320, observed that “ Bateman has been the subject of some criticism because it is said to be lacking in precision and that it fails to make clear the greater degree of culpability necessary to establish manslaughter than that required for civil liability” and thought the problem of closer definition had not been solved by Nydam, a view with which I would respectfully agree. In Pacino , the trial judge had directed the jury, inter alia that “criminal negligence is recklessness involving grave moral guilt”. Kennedy J made the point that “grave moral guilt” had hardly been proved if the Crown had not been able to exclude the reasonable possibility that the appellant had an honest and reasonable but mistaken belief that his dogs (which had caused the death) were safe: ibid at 319. Thomas J in Jackson & Hodgetts (1989) 44 A Crim R 320 at 324, observed – “Appropriate directions upon the nature of proof of criminal negligence are not well established…They require, inter alia, recklessness involving grave moral guilt.” (See also Stott & Van Embden (2001) 123 A Crim R 359 at 369.) The phrase “grave moral guilt” is to my mind equivalent in meaning to “wickedness”. So far as my limited researches show, the phrase “grave moral guilt” in the present context originated in Callaghan v The Queen (1952-1953) 87 CLR 115 at 124, where the High Court concluded that the test of criminal negligence was not “as low as the standard of fault sufficient to give rise to civil liability”. (I deal with this decision in more detail below.)

As Hulme J observed, the second most commonly cited case in this area is Andrews v DPP (1937) AC 576, especially the following passage from the speech of Lord Atkin, with whom the other members of the House of Lords agreed (581-583) – “Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days when any homicide involved penalty the law has gradually evolved 'through successive differentiations and integrations' until it recognises murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill but with the presence of an element of 'unlawfulness' which is the elusive factor. In the present case it is only necessary to consider manslaughter from the point of view of an unintentional killing caused by negligence, that is, the omission of a duty to take care. I do not propose to discuss the development of this branch of the subject as treated in the successive treatises of Coke, Hale, Foster and East and in the judgments of the courts to be found either in directions to juries by individual judges or in the more considered pronouncements of the body of judges which preceded the formal Court of Crown Cases Reserved. Expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared. After all, manslaughter is a felony, and was capital, and men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence. The stricter view became apparent in prosecutions of medical men or men who professed medical or surgical skill for manslaughter by reason of negligence. As an instance I will cite Rex v. Williamson (1807) 3 C. & P. 635 where a man who practised as an accoucheur , owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. 'To substantiate that charge' - namely, manslaughter - Lord Ellenborough said, 'the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.' The word 'criminal' in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in Rex v. Bateman , 19 Cr.App.R. 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson's case. [Lord Atkin then referred to the judgment of Lord Hewart CJ from which I have already quoted and went on.] “Here again I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise. The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman's case, 19 Cr.App.R. 8 is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly.” [Emphasis added.]

Although, again, the precise question whether the accused must be proved to have had an awareness of the risk of serious injury is not articulated, the language of his Lordship rather supports, as it seems to me, with respect, the notion that such awareness is necessary. This follows from the discussion of “indifference to risk”, where both examples necessarily imply a realization of its existence and, of course, to his Lordship’s reference to the meaning of “reckless”. It seems clear that his qualification of the use of “reckless” did not affect its subjective character. It may well be the case, of course, that in the case of road traffic criminal negligence, the risk will almost always be so obvious that it is a given.

In R v Stones [1955] 56 SR (NSW) 25 the Court said (at 34) – “Every crime involving mens rea requires…[either intention or recklessness], so that if it does not positively require intention. It requires either intention or recklessness; and particularly is this so in crimes requiring malice…Thus the standard test of a man’s mind in the commission of an act is the foreseeable consequences. If he applies his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness.” This was stated in the context of a trial for murder where it became necessary to consider the significance of the accused’s drunkenness. However, the observation about the meaning of recklessness is not so confined. If recklessness is an essential element (I would say, it is the characterising element) of negligent manslaughter, it seems somewhat arbitrary, if I may respectfully say so, to apply a different meaning to the notion than that which it bears where intention or malice must be proved.

The last of the English decisions to which I need refer is R v Adomako [1995] 1 A.C 171 where Lord Mackay of Clashfern LC said (at 187) – “In my opinion the law as stated in these two authorities [ Bateman and Andrews ] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter…On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.” This does not deal with precisely with the issue we are here considering, although a requirement to weigh the moral culpability of the accused would, as it seems to me, require the jury to consider the extent, if any, to which he or she appreciated the risk of serious injury and, if there was no such appreciation, to acquit. At all events, a requirement to consider moral culpability necessarily involves, to my mind, a consideration of the judgment actually formed by the accused as to the risk of his or her actions and the reasons for that judgment, in short, to consider whether the accused honestly believed that what he or she intended to do was safe. There is no reason in principle why such a consideration should be excluded and to do so strikes me as arbitrary, if not capricious.

I now return to Australian authority. In Pemble v The Queen (1971) 124 CLR 107, the appellant had shot and killed his de facto wife whilst brandishing a loaded firearm. Amongst other things, he claimed that the gun fired accidentally when he stumbled. He appealed successfully to the High Court from his conviction of murder. The other members of the Court did not find it necessary to deal with the elements of criminal negligence, it being clear that, at all events, there was a clear case of manslaughter by an unlawful and dangerous act; however, in the course of his judgment dealing with the directions of the trial judge on manslaughter, Menzies J said (at 133ff) – “That direction should have informed the jury not only that in… [certain specified] circumstances they could not find murder but also that whether or not they found manslaughter would depend upon their being satisfied beyond reasonable doubt either that the accused shot the girl while he was using the rifle to commit a dangerous assault or that in acting as he did he was guilty of criminal negligence. As to this I agree with the observations of Smith J. in Reg. v. Longley [1962] VR 137 at 148, where he said: ‘The charge should also, in my opinion, have included corresponding directions in relation to manslaughter. It should have directed the jury that if they rejected the applicant's account of the wounding, but were not satisfied that he was guilty of murder, then before they could find him guilty of manslaughter they must be satisfied beyond reasonable doubt: (i) That he caused the death by using the gun to commit an unlawful and dangerous assault; or else (ii) that he caused the death by handling the pistol with criminal negligence, realising the danger he was creating and recklessly choosing to run the risk. And the charge should have gone on, I consider, to say that, since the Crown case of manslaughter rested on circumstantial evidence, the jury could not be satisfied of his guilt on either of these alternative bases unless, in their view, the facts proved were inconsistent with any reasonable hypothesis falling short of manslaughter.’ It is no longer sufficient to sustain a verdict of manslaughter to establish merely that the homicide occurred in the course of the commission of an unlawful act: Andrews v. Director of Public Prosecutions (1937) AC 576 ; Reg. v. Church (1966) 1 QB 59, at pp 69, 70 ; Reg. v. Holzer (1968) VR 481. In the last-mentioned case Smith J., having summarized the law established by Andrews v. Director of Public Prosecutions (1937) AC 576 when referring to manslaughter by criminal negligence, by saying (1968) VR 481, at p 482 : ‘…the accused must be shown to have acted not only in gross breach of a duty of care but recklessly, in the sense that he realized that he was creating an appreciable risk of really serious bodily injury to another or others and that nevertheless he chose to run the risk’ went on to say, in relation to manslaughter by unlawful dangerous act: ‘In relation to the unlawful dangerous act doctrine, the unlawful act, it seems clear, must consist of a breach of the criminal law. The weight of authority, as it appears to me, is against the view that the accused must be shown to have acted with realization of the extent of the risk which his unlawful act was creating. Authorities differ as to the degree of danger which must be apparent in the act. The better view, however, is I think that the circumstances must be such that a reasonable man in the accused's position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable risk of really serious injury. The view which I have expressed, that realization of the risk created does not have to be proved against the accused, is a factor in persuading me that the degree of apparent danger must be that which I have attempted to define, and that it is not sufficient, as it was held to be in Reg. v. Church (1966) 1 QB 59, to show there was a risk of some harm resulting, albeit not serious harm. I may add that although, under the doctrine of manslaughter by unlawful dangerous act, mens rea is necessary, this requirement, in my view, is satisfied by proof of an intention to commit the assault or other criminally unlawful act of which the accused has been guilty. On that aspect I would refer to Reg. v. Lamb (1967) 2 QB 981."

It will be seen that Menzies J gave unqualified support to the formulation of liability for criminal negligence enunciated by Smith J in both Longley and Holzer , in particular, to the requirement that the accused must realize that he or she was creating an appreciable risk of serious injury. Menzies J added (124 CLR 137) – “The conclusion which I have just expressed is sufficient to determine this case, but, I should add, that I do not think that his Honour succeeded in the very difficult task of distinguishing clearly between what may be described as a reckless killing constituting murder and a negligent killing constituting manslaughter. The difference, as I apprehend it, is that to do an unjustifiable act causing death, knowing that it is likely to cause death or grievous bodily harm, is murder, whereas to do a careless act causing death, without any conscious acceptance of the risk which its doing involves, is manslaughter, if the negligence is of so high a degree as to show a disregard for life deserving punishment. An instance of the former might be to kill a person in a street by intentionally dropping a large block of stone from a high building into the crowded street below: an instance of the latter might be to kill a person in a street by carelessly letting fall a large block of stone from a high building into a crowded street below. It would not be a misuse of language to use the word ‘reckless’ both in relation to dropping and to letting fall the stone, but that word without more in relation to the first would not, of itself, bring out the essential difference between the first and the second. The use of the words ‘recklessness’ or ‘reckless indifference’ of itself would not bring home to the jury that it is only a recklessness that involves actual foresight of the probability of causing death or grievous bodily harm and indifference to that risk which does constitute the mental element that must be found to support a conviction for murder. The difference between murder and manslaughter is not to be found in the degree of carelessness exhibited; the critical difference relates to the state of mind with which the fatal act is done.”

In my respectful opinion, this passage does not qualify what his Honour had earlier said (in the passages above quoted) about the need for advertence to risk. The distinction made in this passage concerns the difference between intentionally acting in the knowledge of the likelihood of death or grievous bodily harm on the one hand and acting carelessly where the risk is appreciated on the other.

In Callaghan v The Queen (1952-1953) 87 CLR 115, the High Court considered an appeal from a conviction under s 291A of The Criminal Code 1913-1945 (WA), which provided – “(1) Any person who has in his charge or under his control any vehicle and fails to use reasonable care and take reasonable precautions in the use and management of such vehicle whereby death is caused to another person is guilty of a crime and liable to imprisonment with hard labour for five years. (2) This section shall not relieve a person of criminal responsibility for the unlawful killing of another person".

A conviction under this provision was available as an alternative count to a charge of manslaughter, which was not defined in the Code except as an unlawful killing not being either wilful murder or murder (ss278, 279, 280). Section 266 provided – "It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty".

The Court pointed out (87 CLR at 119) that “breach of the duty of care imposed by the section becomes one of the constituents of the crime of manslaughter. The duty is ‘to use reasonable care and take reasonable precautions to avoid such danger’.” The identity of language between s291A and s266 led to the conclusion that “the standard of duty must be the same” in both sections, with the consequence that “two crimes which are indistinguishable except in their penal consequences” were created. This led to the crucial question in the appeal, namely “what is the standard of negligence required by s266 and s291A”, in particular, whether reference to the civil standard of negligence was appropriate (87 CLR at 121). As to this problem, the Court said – “The question obviously is one of difficulty but in the end it appears to depend upon a choice between two courses. One is to treat the omission to perform the duty to use reasonable care and take reasonable precautions as a description of negligent conduct to be applied according to a single and unvarying standard no matter what the purpose for which the description is employed. The other is to recognize that it may have different applications when it is a description of fault so blameworthy as to be punishable as a crime and when it is used to describe a basis of civil responsibility for harm that is occasioned by the omission.”

The Court cited Andrews with approval and the following passage from Sir James Fitzjames Stephen’s History of Criminal Law , vol 3 at 9-11, dealing with “the question of the degree of want of care” – “To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more; but no one can say how much more negligence than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case".

The Court concluded its review of authority (87 CLR at 124) by the following quotation from McCarthy v The King (1921) 59 DLR 206 per Duff J at 208, dealing with a provision of the Canadian Criminal Code similar to s266 of Western Australian Code – “There may I think, be cases in which the Judge ought to tell the jury that the conduct of the accused in order to incriminate him under this section must be such as to imply a certain indifference to consequences, but such cases, I think, must be rare and this assuredly is not one of them. Where the accused, having brought into operation a dangerous agency which he has under his control (that is to say dangerous in the sense that it is calculated to endanger human life), fails to take those precautions which a man of ordinary humanity and reasonable competent understanding would take in the given circumstances for the purpose of avoiding or neutralising the risk, his conduct in itself implies a degree of recklessness justifying the description 'gross negligence'."

This passage certainly does not reject the relevance of the subjective understanding of the accused: the reference to “control” suggests the accused knows the agency is dangerousness; and, that his recklessness amounts to gross negligence is implicit from the failure to act with reasonable precautions, is no more than to say that the failure to take reasonable precautions is, except in the “rare” case, sufficient evidence of gross negligence, not that ipso facto it establishes gross negligence. With respect, Duff J did not, I think, suggest that “a certain indifference to consequences” is not an element of the offence but that in most cases under this section , it was unnecessary to direct the jury to this effect.

The High Court‘s conclusion reiterates the crucial question for determination – “The conclusion we have formed is that the expression ‘omission to perform the duty to use reasonable care and take reasonable precautions’ which in effect is that of s. 266 and s. 291A must be regarded from the point of view of the context where it occurs. It is in a criminal code dealing with major crimes involving grave moral guilt. Without in any way denying the difficulties created by the text of The Criminal Code , we think it would be wrong to suppose that it was intended by the Code to make the degree of negligence punishable as manslaughter as low as the standard of fault sufficient to give rise to civil liability. The standard set both by s. 266 and by s. 291A should, in our opinion, be regarded as that set by the common law in cases where negligence amounts to manslaughter. We, therefore, are of opinion that the direction given is wrong and that a conviction under s. 291A is not warranted by a degree of negligence which is no greater than would suffice to make the accused civilly liable in respect of any damage caused by his fault.”

With respect, Callaghan should not be read as dealing with the question in issue here, although it emphasises the necessity to bear in mind that the offence of negligent manslaughter, however formulated, is a crime that involves – and its formulation must unambiguously reflect – grave moral guilt.

In R v Phillips [1971] ALR 740 at 756-757, Windeyer J discussed the meaning of reckless for the purposes of manslaughter as follows – “At this point I should add that when he was directing the jury on the basis that it was open to them to find that death was caused by an omission within the purview of s56(2)(b) [of the Criminal Code 1924-1968 (Tas)] ‘amounting to culpable negligence’, his Honour told them that culpable negligence was conduct that was ‘utterly reckless, not merely negligent”. Some criticisms were made of this. If the question were one of manslaughter by criminal negligence according to the common law, then the words his Honour used, could not, I think, be said to be erroneous, although they might be said to be inadequate. The word reckless has often been used, in this Court and elsewhere, to describe negligent conduct of such a degree that it is felonious: Lord Atkin in Andrews v DPP [1937] AC 576 at 583 said: ‘Probably of all the epithets that can be applied, “reckless” most nearly covers the case’. Reckless negligence can thus be a conventional and convenient description of negligence of an aggravated and criminal kind. Duff J, in the Canadian case, McCarthy v R (1921) 59 DLR 206 at 208, in a passage quoted by the Court in Callaghan v R (1952) 87 CLR 115 at 124 spoke of ‘conduct [that] in itself implies a degree of recklessness justifying the description “gross negligence”’. In the judgment of this Court in the last-mentioned case it was said (87 CLR at 123) that ‘in order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence’. In explaining this to a jury it seems to me that although the word reckless would not be out of place, it might be better avoided. ‘Reckless’ and ‘rash’ have been commonplaces of English speech for centuries, at least since Shakespeare’s day. Today ‘reckless’ is often used, with little attention to its etymology, to describe a quality of actions rather than a mental attribute of the actor. But in recent times textbook writers on jurisprudence and criminal law have urged that, for legal purposes, a man is only properly to be called reckless when he was aware of the probability of harmful consequences of his conduct, but nevertheless pursued it. Recklessness, it is said, involves consciously disregarding consequences, as when the New South Wales Crimes Act 1900 s18 speaks of an act “done with reckless indifference to human life”. An illustration from another field is when a statement is said to have been made with reckless disregard of its truth or falsity. But despite the efforts of learned lawyers who engage in lexicography of their own devising, the word itself remains imprecise in ordinary parlance…If I that that it was necessary in this case for his Honour to have explained to the jury what ‘culpable negligence’ meant in s156 of the Code, I would be inclined to say that ‘reckless’ would not be enough unless accompanied by some explanation of the sense in which it was used…”

It is clear from this passage, at the least, that Windeyer J did not think that either McCarthy or Callaghan limited the question of culpability for criminal negligence to purely objective considerations. Moreover, as it seems to me, his Honour’s reference to “reckless indifference” in s18 of the Crimes Act 1900 (NSW) suggests that he did not consider that “reckless indifference” as used in s18 was meant in a special or exceptional sense. I will return to this aspect later, but I note here that it seems to me that the word “reckless” in this sub-section bears the same meaning as it bears in the definition of “maliciously” in s5 of the Act. The word “indifference” is used to identify the precise matter to which the accused’s indifference renders him or her liable to conviction for murder, namely, “human life”; it is not intended to specify a special form of recklessness – namely, as carrying a subjective element – as distinct from the purely objective sense in which it is supposedly used elsewhere in the Act.

The function of the phrase was considered in R v Solomon [1980] 1 NSWLR 321, where the appellant was convicted of murder following a direction that the jury could do so if it were satisfied that he was recklessly indifferent to the probability that his actions would cause death or grievous bodily harm. The appeal was allowed, essentially upon the ground that the Prosecutor had specifically based the case upon an alleged intention to kill or cause grievous bodily harm and had eschewed the possible ground for conviction based on reckless indifference. In dealing with the question whether advertence to the probability of grievous bodily harm fell within the “reckless indifference to human life ” ground for finding murder of s 18(1)(a) of the Crimes Act 1900 (emphasis added) Begg J considered ([1980] 1 NSWLR at 338) the meaning of “reckless” for the purposes of manslaughter by negligence – “(52) If one looks at the matter historically, it will be seen that the difficulties have started to creep into the criminal law when determining the proper charge to a jury in relation to the alternative finding of manslaughter. As Lord Atkin said in Andrews v Director of Public Prosecution [1937] AC 576 at 581: ‘My Lords, of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days when any homicide involved penalty the law has gradually evolved 'through successive differentiations and integrations' until it recognizes murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill but with the presence of an element of 'unlawfulness' which is the elusive factor.’ “(53) In dealing with an indictment for manslaughter under the Road Traffic Act, 1934 (Imp) , the Court was there concerned to consider the very high state of negligence required to be proved before the felony of manslaughter was established. Lord Atkin said further ([1937] AC at 583): ‘Probably of all the epithets that can be applied 'reckless' most nearly covers the case.’ He went on to point out that ‘reckless’ suggests an indifference to risk. So it was that Smith J, in R v Holzer [1968] VR 481 at 482, summarized the law relating to manslaughter by criminal negligence by saying: ‘…the accused must be shown to have acted not only in gross breach of a duty of care but recklessly, in the sense that he realized that he was creating an appreciable risk of really serious bodily injury to another or others and that nevertheless he chose to run the risk." This statement was cited with approval by Menzies J in Pemble's case (1971) 124 CLR 107 at 134. “(54) Accordingly, if one attempts to endeavour to explain this matter to a jury in cases under the New South Wales Act, where a direction of reckless indifference to human life is required by the facts, I think it would be far preferable to use the words ‘indifference to human life’ alone, because, if one talks in terms of consequential ‘death or grievous bodily harm ’, and later seeks to charge a jury on manslaughter in terms of consequential ‘serious bodily injury’ the jury's task would be nearly impossible. What they may ask to consider is the difference between ‘ serious bodily injury ’ and ‘ grievous bodily harm ’. The problem is particularly emphasized when one considers the customary direction to a jury as to what is ‘grievous bodily harm’. Those words are given their ordinary and natural meaning, namely: ‘really serious bodily harm’: see Director of Public Prosecutions v Smith [1961] AC 290 at 334. “(55) Having pointed to the problem, I am of the opinion that another practical solution will most usually lie in refraining from using the legal category containing a description of criminal negligence as amounting to manslaughter, and to rely purely, in a murder trial, on the alternative charge to the jury based upon "unlawful and dangerous act". In my opinion, there will be few murder cases indeed where it would not be proper to put to a jury that the Crown case involved the doing of a dangerous and unlawful act. These concepts, from a practical point of view, are easily understood by a jury.” It seems to me, with respect, that Begg J considered that the test of recklessness proposed by Smith J in Holzer and approved by Menzies J in Pemble followed the judgment of Lord Atkin in Andrews and represented the law in New South Wales.

The last substantial discussion in this State of the elements of criminal negligence occurs in R v Taktak (1988) 14 NSWLR 226, where the appellant had taken a young prostitute apparently suffering from a heroin overdose from premises where she had been working to his premises where she died some hours later, the doctor having been called too late to treat her. The Crown case was that, having taken charge of the deceased when she was helpless, the appellant’s omission to obtain medical help for her was criminally negligent. The appellant submitted that he was not under a duty to obtain medical help. After a thorough review of the textbooks and the cases, Yeldham J concluded “although not without hesitation…[that] there was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might have rendered or obtained aid for her” but that the hesitation with which his Honour reached this conclusion, combined with other matters, led to the result that the conviction was unsafe and unsatisfactory and should be quashed (14 NSWLR at 246). In dealing with the other relevant matters, Yeldham J noted that the relevant negligence must be “wicked”, citing with approval ( inter alia ) the directions of Brett J in R v Nicholls (1874) 13 CCC 75 at 76 and the following passage from R v Stone & Dobinson (1977) QB 354 at – “It is clear from that passage that indifference to an obvious risk, and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness...What the prosecution have to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant's conduct could properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it’ : see also Holzer [1968] VR 481.” [Emphasis added.]

Although Yeldham J did not specify the passage from Holzer which he had in mind, there can be little doubt that the passage is that set out above, which the Full Court expressly disapproved in Nydam . His Honour added (at 247-248) – “In the present case, although it is clear that a doctor should have been called to the deceased at an early stage, and that (assuming she was then alive) if he had given her the appropriate treatment, she may well not have died, I consider that a finding that the appellant was criminally negligent cannot be supported. Mere negligence or mere inadvertence is not enough...He said that he did not seek medical attention for her "because I thought that when she got over the dose she had she would be all right". The appellant himself was a heroin addict. He had no medical knowledge. The time involved, on any view, was short. Plainly he did make some ineffectual attempts to bring her out of her apparent state of unconsciousness. Reasonable care and common prudence demanded that he should have called medical help, notwithstanding the hour of the morning. But to hold that he was criminally negligent, and that such negligence caused or accelerated death, was in my opinion a verdict which was dangerous and unsatisfactory. There was no evidence that the appellant knew the extent of the ingestion by the deceased of any drug or that, if medical help was not obtained for her, she would be likely to die. Nor is there any evidence that he was aware that death, if likely, might have been prevented by the administration of Narcan or any other preparation. Any finding against him on these issues involved at least some guesswork.”

This analysis necessarily involves reasoning which assumes that, in order to assess the appellant’s wickedness, his subjective understanding of the extent of the risk of death or grievous bodily harm to which the deceased was exposed if he failed to obtain medical help for her was relevant and, I think, decisive. Yeldham J did not advert to Nydam . It is difficult to conclude otherwise than that his Honour regarded the law in New South Wales as settled and uncontroversial and, hence, that it was unnecessary to discuss Nydam . Carruthers J applied the objective test articulated in Nydam which I have set out above, although his Honour said that he agreed generally with the judgment of Yeldham J, except that he did not share his Honour’s reservations about whether the Crown had established that, in the circumstances, the appellant owed a duty of care to the deceased by voluntarily assuming control over her (14 NSWLR at 250). In the result, Carruthers J considered that the “wholly uncertain state of the evidence” as to how long the deceased was alive and in the exclusive care of the appellant meant that the jury could not have been satisfied either as to causation or that there was a sufficient “falling short of the standard of care which a reasonable man would have exercised” ( ibid at 251). I do not consider that, despite his reference to Nydam , his Honour was seeking to qualify the requirement of wickedness identified as vital by Yeldham J. His Honour was referring to the standard of care, not to the considerations that determined whether the departure from that standard merited criminal punishment. Loveday J agreed with Yeldham J’s reasons and commented that, despite the morally reprehensible conduct of the appellant, “the evidence fell short of establishing negligence of the degree required to justify a conviction for manslaughter” ( ibid at 251). His Honour made no reference to Nydam .

The Bench Book suggests that the jury should be directed, in respect of the concluding words of the Nydam formulation in the following way – “The conduct of [ the accused ] merits criminal punishment only if you are satisfied not only that the [ act/omission ] of [ the accused ] fell so far short of the standard of care which a reasonable person would have exercised in the circumstances involving such a high risk that death or really serious bodily injury would follow from that act or omission, but also that right thinking members of the community would regard the degree of negligence involved in that conduct as so serious that it should be treated as criminal conduct.”

A direction to this effect has usually been associated in this State with the elaboration that that the Crown must establish that the accused’s conduct was wicked as, indeed, it was in the present case: the jury was orally directed that “a person has to be wickedly negligent before they can be convicted of manslaughter” although, regrettably, this consideration was omitted from the written directions given to the jury and, I think, was probably thought by them (wrongly, as I think) to be comprehended by those directions. The Bench Book direction, I would respectfully point out, however, does not acknowledge that, as was shown by Yeldham J in Taktak , the accused’s appreciation and judgment of the circumstances is relevant and possibly decisive in determining whether he or she had, indeed, acted in a way that was so wicked as to deserve criminal punishment.

It appears that the requirement of moral turpitude, which (as it seems to me) has always been regarded as an essential element of the crime of manslaughter by negligence, was intended to be satisfied in the Nydam formulation by requiring “such a great falling short from the standard of care” of the reasonable person that it “involved such a high risk that death or grievous bodily harm would follow” as to merit criminal punishment. With unfeigned respect, I am unable to see how, unless this test involves some level of indifference to a risk perceived by the accused, it involves moral turpitude, let alone the notion of wickedness or grave moral guilt. The word “great” does not carry by any means the same character as “wicked”. If no moral turpitude is involved, it is impossible, as I see it, for an act to “[merit] criminal punishment”. The only relevant criterion for deciding whether the act in question “merited criminal punishment” (the other elements being proved) is the extent of the risk of death or grievous bodily harm, objectively determined. I do not see any room for considering the actual moral turpitude of the accused in this formula.

To my mind, the distinction between manslaughter by gross negligence and murder by recklessness at common law is sufficiently made by the distinction between the realization of the accused in the former case that he or she “was creating an appreciable risk of really serious injury to another or others and that nevertheless he chose to run the risk” (my italics), and, in the latter case, the formulation expressed in Crabbe v R (1985) 156 CLR 464, namely that intentional conduct causing death in the knowledge that death or grievous bodily harm was probable is murder. In a case of manslaughter by an unlawful and dangerous act, as Smith J stated in Holzer ([1968] VR at 482), “the circumstances must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realized that he was exposing another to an appreciable risk of really serious injury”. His Honour’s formulation was approved by Mason CJ, Toohey, Gaudron and McHugh JJ in Wilson v The Queen [1991-1992] 174 CLR 313 at 333, except for the use of the qualifier “really”. Their Honours also noted that manslaughter by an unlawful and dangerous act and manslaughter by criminal negligence differed in that in the latter case the relevant act did not need to be unlawful and the “tests of dangerousness are different” (emphasis added): in the latter case, the test is “a high risk that death or grievous bodily harm would follow”, quoting Nydam at [1977] VR 445. Noting that the question of manslaughter by criminal negligence was not raised in the appeal, their Honours expressly refrained from saying anything “more as to the appropriateness of the distinctions that presently exist between this category of manslaughter and manslaughter by an unlawful and dangerous act” – pointing, as it seems to me, to precisely the distinction made by Smith J in Holzer, which, as I mention above, was cited with approval in connection with the elements of manslaughter by unlawful and dangerous act. In the absence of any discussion of the line of cases dealing with manslaughter by negligence, I do not consider that this passage intended to suggest that grave moral guilt on the part of the accused was no longer required and, hence, that the extent of subjective realization by the accused of the risk of death or injury was irrelevant. (In the case of manslaughter by an unlawful and dangerous act, the requirement of moral turpitude is supplied by the intentional commission of the foundational criminal offence: cf Holzer [1968] VR at 482).

In NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6, a question at issue was whether an offence under s6(1) of the Environmental Offences and Penalties Act 1989 for having negligently caused a substance to escape from a container in a manner which was likely to harm the environment was committed although the relevant employee’s conduct was, he believed, reasonable. However, the Court was agreed that the test for negligence and, in particular, foreseeability, was that of a reasonable person in the position of the defendant. Hunt J said (ibid at 7) that “the criminal law has…adopted an objective test of foreseeability”, citing both Nydam and Buttsworth (1983) NSWLR 658 at 675. This was not a case, of course, dealing with manslaughter by criminal negligence; it did no more, to my mind, than consider the meaning of “negligence” in the section creating the statutory offence. At all events, it is not suggested here that the standard of care is other than objective. However, the determination that the accused has acted inconsistently with the objectively measured standard of care is to satisfy but one of the elements of the offence although it is, no doubt, cogent evidence of recklessness (in the sense that I propose). In Buttsworth , a case dealing with dangerous driving causing death under s52A of the Crimes Act 1900, O’Brien CJ at CL noted that Nydam established an objective test for the standard of negligence set by the common law: (1983) 1 NSWLR 658 at 675. His Honour also noted that “the negligence in driving appropriate to manslaughter is described as reckless, an expression which may be further explained after a fashion which Lord Atkin approved in Andrews’ case ”, quoting (1937) AC 576 at 583, set out above. Thus, there is no support in O’Brien CJ at CL’s judgment in Buttsworth for the position that appreciation by the accused of the existence of the risk of death or grievous bodily harm is irrelevant; Indeed, despite his Honour’s citation of Nydam, he went on to observe that causing death by reckless driving had been left in this State “to the common law of manslaughter by negligence for which Andrews’ case is still the authority” ([1983] 1 NSWLR at 682-3), an acceptance, as I take it, of Lord Atkin’s sense of “reckless”.

The law on this question as articulated by Yeldham J in Taktak represents, in my respectful opinion, the ratio decidendi of that decision and, accordingly, represents the law in this State. It should be applied in this case. Accordingly, adapting the formulation expressed by Smith J in Holzer (in the passage disapproved in Nydam but approved by Yeldham J in Taktak ), to prove manslaughter by criminal negligence the Crown must establish: first, that the death was caused by the act (or, where relevant, the omission) of the accused; second, that that conduct was intentional and voluntary; third, that a reasonable person in the position of the accused would have realized that the conduct involved a high risk that death or grievous bodily harm would follow; fourth, that the accused realized that there was an appreciable risk of death or grievous bodily harm and continued despite it; and, fifth, that the conduct of the accused was so wicked or involved such grave moral guilt as to warrant criminal punishment.

It is worth noting that it will very often be the case that the conclusion that a reasonable person in the accused’s position would have realized there was a high risk of death or grievous bodily harm will constitute persuasive evidence justifying the conclusion that, indeed, the accused realized at least there was an appreciable risk of death or grievous bodily harm. (Of course, if the accused actually realized that death – or, at common law, grievous bodily harm – was a probable result of his or her conduct, then the offence committed in the event that death was thereby caused is murder, not manslaughter.) The conclusion will also provide persuasive evidence that the accused’s conduct was indeed so morally grave as to warrant criminal punishment. But the essential character of the conclusion (as I think, with respect, it ought to be characterised) involves the personal moral turpitude of the accused which, to my mind, is an essential characteristic of criminal liability at common law.

It follows that the learned trial judge erred in directing the jury in accordance with Nydam .

For the reasons outlined by Hulme J, it is necessary also to consider the effect of ss 5 and 18(2) of the Crimes Act 1900. I respectfully agree with his Honour’s conclusion that, in s5, “indifference to human life or suffering” requires proof that the accused “did not care whether suffering or damage to life occurred, or something along those lines”, and that “wantonly” means “without regard for right or consequences” or “an unrestrained disregard of (consequences)” or something along those lines. I would, however, qualify his Honour’s definition of “recklessly” (in the present context) as “involv[ing] a realisation of the possibility of some physical harm but nevertheless going ahead and acting” by the requirement that the physical harm be not inconsequential. I am mindful of the adoption by Mason CJ, Toohey, Gaudron and McHugh J in Wilson (174 CLR at 333) of the notion of “serious harm” in place of “some harm” as unsuitable for “contemporary law” in the context of the offence of manslaughter. However, there are a number of other offences under the Crimes Act of which recklessness is an element and it seems to me that the notion should be consistent throughout the Act; “inconsequential” points to the need for real, rather than formal or technical, wrongdoing and enables the reckless element to be applied (of course, where there is no intent) with reference to the context of the injury specified in the offence. THE DIRECTIONS TO THE JURY

I turn to the directions in the present case. The written directions note first that the jury needed to determine, amongst other things, whether the appellant had a duty of care to the deceased. The learned trial judge orally directed the jury as follows – “Now, members of the jury, every person owes a duty to so conduct himself that he will not cause injury to another person in circumstances where a reasonable person in the position of the accused would have foreseen a risk of injury from such conduct to another person.” I have considerable difficulty in accepting that the notion of a duty of care drawn from the elements of the civil tort of negligence is relevant to the crime of manslaughter by negligence. The reference here to the duty of care appears to be taken from the Bench Book and reflects, I think, the judgment of Carruthers J in Taktak , to which I have referred above. However, in that case the foundation of the appellant’s criminal liability was his omission to obtain medical care for the deceased, and hence it was necessary to prove that he had a legal, as distinct from a moral, duty to obtain that care. I do not think that there is a general obligation in the criminal law not to cause objectively foreseeable injury, whether deliberately or negligently, though it will often be the case that intentionally or recklessly causing injury will constitute a particular crime. However, since this point was not the subject of submissions before us, it is unnecessary to say anything more about it. I would, however, add the comment that the word “negligence” is unnecessary and should be avoided. The word carries such a range of meanings in general parlance that it is, I think, liable to confuse rather than explain. If the impugned conduct needs to be characterised, “careless” is simpler and more appropriate.

It follows that I am doubtful that the second element specified in the written directions – that the accused was negligent by actions that breached his duty of care – is an appropriate direction. The Crown must prove that the acts of the accused caused the death of the victim. However, as I have already pointed out, whether his conduct is relevantly culpable and, hence, “in breach of his duty of care” cannot be considered before a determination is made of the existence and extent of the danger reasonably to be apprehended. The oral directions emphasised that the accused’s duty was to avoid the risk of causing injury that a reasonable person would have foreseen. Moreover, the learned trial judge in effect directed the jury that it was enough if a reasonable person would have foreseen the “possibility of injury”. At this point, these directions were consistent with the reasoning that the appellant had breached the duty of care if there was a merely bare possibility of some injury, however slight. His Honour characterised the Crown case in this way as to the first two elements – “What the Crown says is that the accused should have foreseen that there was a risk of injury by proceeding into the bush in the way that the Crown said he did and the Crown says that by doing that he was negligent. He was careless and because of that he breached that duty of care.”

This direction, with respect, appears to me to emphasise the error which I have identified above. There is simply no duty of care in the criminal law not to be careless or not to undertake an act that a reasonable person would think carried a risk of injury. Such a line of reasoning (involved in following the written directions step by step) seems likely to deflect a jury from the real question to be determined and proposed, as it were, an interim answer, which was capable of being highly prejudicial, to an irrelevant question. It implies much more than the line of reasoning that asked whether the appellant was careless and, if so, to what extent. Rather, it appears to require an adverse finding of legal culpability on the path to a consideration of the real question, which was (accepting the Nydam formulation to be correct) whether the accused’s conduct “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…[it] merited criminal punishment”. Again, no submissions were made as to this matter and I refrain from further discussion of it.

The written directions then move to the requirements that the accused’s actions – “5 (i) fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (ii) involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.”

With respect, it is not appropriate to separate these issues in this way. The first question can only be answered by assessment of the extent of the risk. Furthermore, although the standard of reasonableness is an element of the first question, the direction disregards its relevance to the second, whereas it is a vital consideration that a reasonable person in the position of the accused would have perceived the extent of the risk for the purpose of considering whether what the accused did merited criminal punishment. The terms of the second question are consistent with being read with the words “as it happened” implicitly inserted at the commencement. In other words, the form of language not only does not adequately set out the matters to which the standard of the reasonable person applies but also invites judgment by hindsight. It is to this problem, in particular, that I referred to in the Introduction to this judgment. On the assumption that Nydam was rightly decided, these directions (so far as they go) would not be objectionable if they read as follows – “The Crown must prove that the accused’s actions – “(i) fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (ii) which a reasonable person would have realized, involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.”

The oral directions as to these issues were as follows – “Finally, the Crown has to prove that that action of driving into the bush in the circumstances that the Crown says obtained, fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that the actions merit criminal punishment. Members of the jury can I say this here and now that the degree of negligence required to constitute the crime of manslaughter is very high indeed. It has been described in the past as having to be wicked. In other words, a person has to be wickedly negligent before they can be convicted of the crime of manslaughter. The Crown in this case says that you would be satisfied beyond reasonable doubt that the actions of the accused did amount to such a high degree of negligence. The Crown says that you would be satisfied beyond reasonable doubt that the accused intentionally drove the loader into an area of bush where he knew there were four boys. In circumstances where he had lost sight of the boys, he continued to drive his loader in that area where the Crown says the evidence would satisfy you that the topography and the vegetation combined with the nature and structure of the loader, necessitated an inability on the part of the accused to see and hear adequately and to proceed with safety. The Crown says in those circumstances, you would be satisfied that his actions fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that they merit criminal punishment.”

The direction as to the need for the appellant’s negligence to be wicked was not included in the written directions, which were given to the jury as being, in substance, the only questions that needed to be answered. Nor was there a suggestion that the written directions as to the requirement that the accused’s conduct merited criminal punishment were to be understood in the sense that the negligence must be proved to be “wicked”. In my view, the jury would have understood that the accused’s negligence was relevantly culpable if the last two paragraphs pf the written directions were satisfied. This point is emphasised by the ultimate directions dealing with the requirement of criminality set out below. For the reasons that I have already given, the written formulation, as it seems to me, did not reflect the requirement that the appellant’s conduct must involve grave moral guilt. At all events, it will be seen that, as with the written directions, the jury were not directed, as they should have been (accepting Nydam as correct), that the question whether the risk of death or grievous bodily harm was so high as to merit criminal punishment was to be measured by the understanding or appreciation of the reasonable person. Indeed, as I think, the judge introduced another and quite misleading notion to this consideration. The learned trial judge returned to the issue later on – “A determination of this question of negligence and the degree of negligence is an objective test. You have to compare the conduct of the accused, as you find it to have been, with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused in the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have, and determine on that basis whether the Crown has made out its case. In other words, it is an objective test. The Crown does not have to prove that the accused appreciated that he was being negligent or that he was being negligent to such a high degree. It is your task to determine whether having decided on the conduct of the accused, whether his actions amounted to negligence based upon, as I say, what you think a reasonable person in the position of the accused would have done.”

I interpolate the point that the notion of the “fortitude and strength of mind” (repeated twice more) of the reasonable person is entirely irrelevant. This language suggests the jury should consider not only the reasonable person’s understanding and actions but other immaterial putative qualities which add a nuance rather suggestive of admirable character than ordinary reasonableness. The use of the construction “reasonable man” rather than the simple notion of reasonableness encourages this kind of inappropriate confusion.

At the end of the directions on criminal negligence, his Honour said – “Can I just reiterate members of the jury, it is immaterial in this case, both in relation to count 1 and count 2, what the accused believed to be the case at the time. The test is an objective one, that is to say you must try to put yourself in the position of a reasonable person in the position of the accused, same age, knowing what he knows and a person or ordinary fortitude and strength of mind, and ask yourselves would that person have done what the accused did. Was it reasonable for him to have done that? If not, were his actions negligent, were they deliberate, and I do not mean deliberate in the sense of intending to hurt Michael Milne, no one has suggested that, but deliberate in the sense that he had control over his vehicle. Were the actions the cause of Michael Milne’s death and were the actions so far short of the standard of care which a reasonable person would have exercised, and did they involve such a high risk of death or really serious bodily injury that would follow that they merit criminal punishment? Now members of the jury, the conduct of a person to merit criminal punishment only occurs if you are satisfied that not only were the actions so far short of the standard of care which a reasonable person would have exercised in the circumstances involving a high risk that death or really serious bodily injury would follow from those actions, but also that right thinking members of the community would regard the degree of negligence involved in that conduct as so serious that it should be treated as criminal conduct. That is to say, you have to put yourself in a position of right thinking members of the community and ask yourselves having found factually what occurred on this day, if you find that there was negligence, would right thinking members of the community regard the degree of negligence as being so serious that it should be treated as a crime. If you are not so satisfied members of the jury, then your verdict on the manslaughter count will be not guilty.”

The introduction of the putative “right-thinking members of the community” suggested to the jury not only that it should set rather than reflect community standards but that this standard should be somewhat higher than that of the ordinary reasonable person: that it should be aspirational rather than actual and that the jury should defer to the higher degree of propriety. Not only was there no mention of the need to assess the culpability of the accused’s conduct by reference to what would or would not have been done by the reasonable person, the jury were directed, in effect, to consider whether a “right minded” person would think the accused’s conduct was criminal. To my mind, this was a serious misdirection, even accepting that the test of culpability is an objective one: it both failed to mention the relevant test (assuming Nydam to be right on this point) and introduced a misleading test, moreover a test that invited ex post facto reasoning. It was for the jury itself to consider whether the conduct of the accused, considered from his point of view, departed so greatly from that of the reasonable person (or, more appropriately, in my view, was so unreasonable) in light of the high risk of death or grievous bodily harm as to be correctly characterised as meriting criminal punishment, not for them to ask what the “right minded” person would think. (I reiterate that, in my opinion, the requirement that the accused’s conduct be wicked necessarily involved an assessment of the risk as he understood it to be and, accordingly, required the jury to consider whether, indeed, he thought he was acting safely and believed that he had a reasonable basis for so thinking.)

As I am in agreement with Hulme J that the jury were not directed in accordance with s5 of the Crimes Act 1900 and that this was an error that went to the root of the trial, it is unnecessary for me to deal further with the matters to which I have drawn attention so far as the directions are concerned. HONEST AND REASONABLE MISTAKE

I wish, however, to make some observations about the defence of honest and reasonable mistake.

Even if, as Giles JA has concluded, the defence is not available as an independent consideration where appropriate directions have been given as to the measure of the extent of the dangerousness of the accused’s conduct by reference to what would have been realized by a reasonable person, if the directions do not clearly convey that the appropriate standard is that of the reasonable person both as to the relevant conduct and the culpability of the departure from that standard (again, assuming that the Nydam formulation is correct), then the basis for refusing to give the direction falls away. The essential reason, as I understand the judgment of Giles JA, for declining to accept the applicability of the Proudman v Dayman (1941) 67 CLR 536 defence in cases of manslaughter by criminal negligence is that it is logically unnecessary. However, in this case the failure of the directions to give a clear explanation to the jury of the elements of criminal liability (even accepting Nydam as rightly applied) obligated the judge, in my view, to accede to the defence application to give the direction sought. Moreover, a Proudman v Dayman direction would also have cut across, if it did not entirely cure, the introduction of the notion of “right-mindedness”.

In this case, the defence argued (in substance) that the risk of serious injury was so small or, more precisely, that the Crown had not established beyond reasonable doubt that a reasonable person would have appreciated that the risk of serious injury was so great that a reasonable person would not have done what the accused did and that, even if this element were satisfied, the Crown had not established that his conduct was so unreasonable as to warrant criminal punishment. If the learned trial judge had given the Proudman v Dayman direction, this would have had the advantage of bringing to the jury’s attention the crucial issue in the case, namely whether the Crown had proved beyond reasonable doubt that the accused’s conduct involved such a high risk of death or grievous bodily harm and was so unreasonable as to render his conduct criminally culpable. To my mind, even if a direction (such as this) is not necessary in strict logic – as being otherwise implicit in the formulation of the elements of the offence – it will be rare case that a judge would be justified in refusing to put the defence case as it wished it to be considered by the jury providing, of course, that no confusion would thereby arise. Here, even if the defence was but an alternative approach to the issues in the case, I cannot see why the defence request that it should be put to the jury should not have been acceded to as a matter of fairness. However, I would not go so far as to say that, in this case (accepting for present purposes that the reasoning of Giles JA as to the application of the defence in cases of negligent manslaughter is correct), this consideration alone gives rise to a mistrial.

Giles JA has concluded that, at all events, there was no evidence that raised the defence of honest and reasonable mistake. At face value, the mistake made by the appellant was his belief that it was safe to drive as he did. If the jury thought that it was not unreasonable for the appellant to have so believed, then the Crown must have failed. To my mind, that the appellant in fact thought it was safe to drive as he did was implicit in the very circumstance that he did so drive but, at all events, he asserted the belief in his interview with the police, which was placed before the jury. The mere fact that that the appellant’s driving was logically consistent with his not thinking about safety at all and not holding a belief as to safety as well as the belief that it was safe does not, if I may say so with all respect, mean that the defence was not raised. At all events, the possibility that the appellant did not think of safety at all was, in the circumstances, far less likely than that he in fact thought it was safe.

Of course, as McLuckie v Williams (1995) 82 A Crim R 118 makes clear, it is necessary to unpack the meaning of “safe” in the circumstances. In my view, the appellant was really saying that he believed that no child was in the path of his vehicle. The mere fact that, when further questioned by the police about his belief of safety, he conceded that he did not actually know where all the children were, does not mean that he did not have an honest belief as to a relevant fact or that the inference that there was no child in his path was unreasonable. At most it might mean that it was not based on a logical analysis of all the reasonably open possibilities. With respect, I would hold that there was a sufficient evidentiary basis for the Proudman v Dayman defence. If the risk that there was a child in his path was remote (which seems to me at all events to have been a reasonable possibility), whether even the Nydam test for criminal culpability had been satisfied would have been very much a live issue as would, of course, whether his conduct involved grave moral guilt. Of course, if the appellant believed (as he implicitly asserted) that no child was in the path of his vehicle and it was reasonable for him to do so, then he must have been acquitted.

I am also in respectful disagreement with the conclusion of Giles JA that the jury inevitably would have concluded that the mistaken belief that no child was in the path of the appellant’s vehicle was unreasonable. To my mind it was open to the jury to conclude that the Crown had not established beyond reasonable doubt that it was unreasonable to believe that no child was in the path of the vehicle. But this is to oversimplify somewhat the content of the appellant’s belief. It was equally, perhaps more, consistent with the appellant’s conclusion that it was safe to proceed that he believed that there was no appreciable risk of injury by virtue of its slow and noisy progress and the likelihood, if not the certainty, that the children were more or less together and some distance away. Even a child in his path could easily have avoided the vehicle. I am far from sure that it was necessarily established beyond reasonable doubt that such a belief was not reasonable or, at least, that a jury could not properly so conclude. Of course, if the vehicle actually struck someone, the risk of serious injury was very high indeed but the crucial issue was the risk that the vehicle might, indeed, strike someone. If a reasonable person might have believed that the risk of collision was not so high as to mean that he would not have driven in the path the appellant took, then he must have been acquitted. If the appellant could not be certain that the children he could not see were distant, he had no particular reason to think one or more was close, especially since they were in a group and he had seen two of them a distance away and where the vehicle was easily observable and easily avoided. THE ADMISSIBILITY OF THE BELIEF THAT THE ACT WAS SAFE

If it be correct (either by virtue of the common law or under s5 of the Crimes Act 1900) that the Crown was required to prove recklessness in the sense of proceeding despite actual advertence by the appellant to an appreciable risk of death or grievous bodily harm, then the appellant’s appreciation of the danger and his belief that he was acting safely was relevant, whether or not it was reasonable. I also respectfully agree with Hulme J’s conclusion that (accepting Nydam to be rightly decided) the evidence was relevant to the determination of the issues as identified in par5 of the written directions and with his Honour’s reasoning. It follows, in light of the direction that the jury must disregard what the appellant believed, that the conviction cannot stand for this reason alone.

I wish, however, to briefly discuss the relevance of the excluded evidence in light of my view as to the true character of the offence. As I have already made clear, I find it difficult to accept that the modern criminal law holds that a person can be guilty of an unintentional crime involving grave moral guilt if he or she believes that what he or she is doing is safe, still less that the law requires the trier of fact to completely disregard what the accused believed. Consideration of the question whether the appellant acted with substantial moral turpitude, such as could fairly described as wicked, thus required consideration of the appellant’s belief that he was acting safely. It seems to me that his belief about this matter was directly relevant to the issue of the extent of his culpability. It is obvious that, in considering whether it was criminally culpable for the appellant to have driven as he did, all the surrounding circumstances were relevant: the speed of the vehicle, the opportunity for observation of its path; the extent to which the bucket and the scrub obscured actually vision; the amount of light; the extent of shade; the observed behaviour of the children; and his understanding of where the children were or were not. This was far from a case in which conviction was inevitable and the accused’s opinion in the circumstances was, or may reasonably have been thought to be, of significant probative worth. CONCLUSION

Accordingly, I would uphold the appeal against conviction.

None of the errors that I have identified, of course, concern the alternative offence of dangerous driving causing death under s52A of the Crimes Act 1900. However, having regard to the nature of the Crown case and the term so far served by the appellant, I would not order a new trial.

If it were necessary to consider the Crown appeal against sentence, I would reject it for the reasons given by Giles JA.