In the matter of an appeal against conviction by Lamperd, Glennis Royden and in the matter of a case stated by the Courts-Martial Appeal Tribunal and in the matter of a transmission by the Attorney-General of a case stated to the Federal Court of Australia [1983] FCA 16

Federal Court of Australia|1983-07-01|Before: Fitzgerald JJ

NEW SOUTH WALES DISTRICT REGISTRY No. G 157 of 1982.

IN THE MATTER of an appeal against conviction by GLENNIS ROYDEN LAMPERD

AND IN THE MATTER of a case stated by the Courts-Martial Appeal Tribunal

by the Attorney-General of a case stated to the Federal Court of Australia.

Page 2, after Questian l(c)"........degree of negligence?"

"2. Whether the Judge Advocate should have told the Court-Martial that the act or omission relied upon would constitute negligence within the meaning of s.19 of the said Act only if there was a great falling short of the standard of care which a reasonable officer in the appellant's position would have exercised combined with a

CATCHWORDS Defence Forces - Reference from Courts-Martial Appeal Tribunal -

Degree of negligence required to support a conviction of negligent stranding - Whether degree similar to manslaughter - Context of disciplinary offences - Whether an intermediate degree of criminal negligence - Whether an additional element of

Courts-Martial Appeals Act 1955, ss.51 and 52. Naval Defence Act 1910 (Cwth.) s.34.

CASE STATED BY COURTS-MARTIAL APPEAL TRIBUNAL No. G157 of 1982.

CORAM: Bowen C.J., Northrop, Lockhart, Ellicott and Fitzgerald

NEW SOUTH WALES DISTRICT REGISTRY No. G157 of 1982.

IN THE MATTER of an appeal against conviction by GLENNIS ROYDEN LAMPERD

AND IN THE MATTER of a case stated by the Courts~Martial Appeal Tribunal

AND IN THE MATTER of a transmission by the Attorney-General of a case

JUDGES MAKING ORDER: Bowen C.J., Northrop, Lockhart, Ellicott and Fitzgerald JJ.

l. The two questions of law referred to this Court pursuant

to a certificate of the Attorney-General of the Commonwealth

under s.52(2) of the Courts-Martial Appeals Act 1955 be answered

QUESTION 1: Whether the degree of negligence required to found

a charge under s.19(a) of the Naval Discipline Act (1957) (Imp.) applicable to the Navy being other than a charge in respect of acting wilfully or with wilful neglect is:-

that described as doing something which a reasonbly capable and careful person of the appellant's seniority and experience in the service would not have done or alternatively omitting to do something which a reasonably capable and careful person of the appellant's seniority and experience in the service would have done being an act the performance of which or an omission which in all the circumstances was blameworthy or culpable; or

No. No. That degree of negligence which can be described as - "doing something which in all

the circumstances a reasonably capable and careful person of the appellant's seniority and experience in the service would not have done or alternatively omitting to do something which in all the circumstances a reasonably capable and careful person of the accused's

s.19 of the said Act only if there was a great falling short of the standard of care which a reasonable officer in the appellant's position would have exercised combined with a high risk that the stranding of the ship would follow from the

) No. G157 of 1982. NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of an appeal against conviction by GLENNIS ROYDEN LAMPERD

AND IN THE MATTER of a transmission by the Attorney-General of a case stated to the Federal Court of Australia.

CORAM: Bowen C.d., Northrop, Lockhart, Ellicott and Fitzgerald JJ.

THE COURT: Two questions of law have been referred to this Court pursuant to aa certificate of the Attorney-General of the Commonwealth under sub-s.52(2) of the Courts-Martial Appeals Act 1955 that they are of exceptional public importance and that it is desirable in the public interest that they should be so referred. The questions are raised in a Case which was stated by the Courts-Martial Appeai Tribunal ("the Tribunal") after it gave a decision upholding an appeal by Commander Glennis Royden Lamperd against his conviction and sentence by a Court-Martial. The Tribunal was bound to state the case following a request by the Chief of Naval Staff to the Tribunal that it refer the

questions of law to this Court (ss.51 and 52 of the

The two questions of law as stated in the Case are:-

Whether the degree of negligence required to found a charge under s.19(a) of the Naval Discipline Act 1957 (Imp.) applicable to the Navy, being other than a charge in respect of acting wilfully or with wilful neglect is:-

(a) the same degree of negligence as that required to found a charge of manslaughter; or

(b) that described as doing something which a reasonably capable and careful person of the

appellant's (i.e. Commander lLamperd's) seniority and experience in the service would

not have done or alternatively omitting to do something which a reasonably capable and

careful person of the appellant's seniority and experience in the service would have done being an act the performance of which or an

omission which in all the circumstances was blameworthy or culpable; or (c) some other, and if so what, degree of negligence? The circumstances in which the questions of law arose may be stated briefly. In January 1981 Commander Lamperd was the

Commanding Officer of Her Majesty's Australian Ship "Adelaide"

("the Ship") and subject to the Naval Discipline Act 1957 (Imp.)

in its application to the Naval Forces of the Commonwealth by virtue of s.34 of the Naval Defence Act 1910 (Cwth.) On 7 and 8 January 1981 the Ship was engaged in acoustic

ranging trials in Carr Inlet near Seattle in the United States of

America. At about 0233 local time on the morning of 8 January 1981 the Ship stranded on Fox Island on the north eastern shore

Court-Martial was duly convened to try Commander Lamperd on four

charges, three charges under s.7 and one charge under s.19(a) of the Naval Discipline Act. Only the charge under s.19 is directly

relevant in the present proceedings as the questions of law

"19. Every person subject to this Act who, either wilfully or by negligence:

(a) causes or allows to be lost, stranded or hazarded any of Her Majesty's ships or vessels; or

shall be liable, if he acts wilfully or with wilful neglect, to imprisonment for any term or any less punishment authorised by this Act, and in any other case to imprisonment for a term not exceeding two years or any less punishment so authorised".

"On the eighth day of January 1981, he, Glennis Royden Lamperd, did by negligence cause Her Majesty's

Australian Ship ADELAIDE to be stranded (Naval Discipline Act s.19(a)).

l. The accused failed to check the navigational plan of the Officer~of-the-Middie Watch for the safe

conduct of the ship when the ship was conducting acoustic trials on the Carr Inlet Acoustic Range,

and in particular, he failed to ensure that clearing ranges were drawn on the forward Bridge SPA-25 radar display;

The accused failed to ensure the setting of a watch

appropriate to the ship's circumstances when the ship was conducting acoustic trials at night on the Carr Inlet Acoustic Range and, in particular, he

failed to ensure that the following were closed up:

(b) The Blind Pilotage Team or any modified version thereof;

The accused failed to ensure that the Navigation Officer was on the Bridge of the ship when the ship

resumed high speed trials on the Carr Inlet Acoustic Range at about 0230 hours;

The accused failed to check that the alteration of course to starboard, which was ordered by the

Officer-of-the-Watch, at about 0233 hours, did not place the ship in danger;

The accused directed the Officer-of-the-Watch to carry out a Williamson turn at about 0233 hours when, in all the circumstances, 1t was unsafe to carry out such a manoeuvre; and

The accused directed that the ship proceed at 25 knots prior to turning onto the course required to proceed up the Carr Inlet Acoustic Range, at about

0233 hours, a speed which was unnecessary and, in all the circumstances, excessive".

On 3 March 1981 the Court-Martial found Commander Lamperd guilty of the offences charged in all four charges. The Court-Martial ordered that Commander Lamperd be dismissed from the Ship.

Commander Lamperd appealed to the Tribunal against his conviction and sentence. On 30 October 1981 the Tribunal upheld the appeal, quashed the convictions of the Court~Martial and set aside the order dismissing Commander Lamperd from the Ship.

The Tribunal quashed the convictions on all charges on various grounds. We shall not trouble to refer to any grounds other than those relating directly to the two questions of law before us.

The Tribunal held that the direction by the Judge Advocate to the Court-Martial was inadequate on the question of negligence. The Judge Advocate instructed the Court-Martial in

substantially the same form as that expressed in Question l(b),

namely that, before Commander Lamperd could be convicted, it had to be satisfied not only that he had been negligent in that he

failed to meet reasonable standards appropriate to an officer of

his seniority and experience, but that he had departed from such standards to a degree which was "culpable or blameworthy". The Tribunal considered that the requisite degree of negligence was similar to that- required to support a conviction for manslaughter. The Tribunal favoured a direction in the form contained in Question 2.

The relevant part of the Tribunal's reasons for decision

"Negligence The appellant submitted that the direction in respect of negligence was inadequate. In directing the jury on the

question of negligence the learned Judge Advocate told the court that they had to consider whether the

negligent failure or performance of a duty was culpable or blameworthy. In doing so the Judge Advocate may have

thought that he was following what was said by this Tribunal in Dean's Appeal 13 F.L.R. 247. We think, however, that Dean's Case is distinguishable in that it was concerned basically with a charge of neglect and not with a charge of negligence as such.

In our opinion this direction was inadequate. The negligence alleged here constitutes an offence which may be punishable by imprisonment for up to two years. In

those circumstances we think that the degree of negligence requisite to found these charges is the same as that required to support a charge of manslaughter - see R. v Shields (1981) 2 A. Crim. R. 237 and R. v Leskinen [1978) 36 F.L.R. 414 and the authorities therein cited. Consequently, in relation to the degree

of negligence required to establish the charge, the court should have been told that the act or omission relied upon was the breach of the duty of care which a reasonable officer in the appellant's position wouid have exercised; that the act or omission would constitute negligence only if it merited punishment under the criminal law; and it would do so only if there was a great falling short of the standard of care

combined with a high risk that the stranding of the ship would follow from the breach - cf. Shield's Case at p.244.

The direction which in our opinion is the correct one, is substantially more favourable to the accused than the

one which was given. Most negligence is culpable or blameworthy; and we do not think that to describe it in that fashion" indicated sufficiently to the court the very high degree of negligence necessary to found a

conviction on the first charge. Consequently we think this ground has been made out. This direction relates to the principal ingredient of the first charge. It occurred in combination with a somewhat unsatisfactory direction on a matter as basal as the onus of proof. In the circumstances we do not feel any confidence that the

court would necessarily have convicted on the first charge if adequate directions had been given as to these

two matters.....Consequently we are of the view that the first charge should be quashed".

Counsel for Commander Lamperd submitted that the word "negligence" in s.19(a) refers to a degree of negligence similar to that necessary for manslaughter at common law, that is, gross negligence, to choose one of the very many epithets which have been applied. A similar degree of negligence was necessary to breach s.19, it was argued, in light of the serious consequences of a conviction for this offence.

The policy underlying the high degree of negligence required in cases of manslaughter was briefly stated by Atkin

L.J. in Andrews v Director of Public Prosecution [1937] A.c. 576

"...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 same caution found expression in R. v Bateman (1925) 19 Cr. Appeal Reports 8 and Nydam v R. [1977] V.R. 430 at p. 445. A similarly high degree of negligence has been seen as necessary to support a conviction for negligent driving causing grievous

bodily harm in Shield's Case [1981] V.R. 717 and R. v Leskinen

(1978) 36 F.L.R. 414, and for some other statutory criminal offences involving negligence in the operation of motor vehicles; see e.g. Callaghan v R. (1952) 87 C.L.R. 115.

However, not all criminal offences dependent on negligence have been held to require the same high degree of

negligence: see, e.g. Dabholkar v R. [1948] A.C. 221 (P.C.);

Winticlich v Lenthall [1932] S.A.S.R. 61; and Neale v Watch

It is clear from the cases referred to that there is no absolute rule that where negligence is the basic element of a statutory offence, the degree of negligence to be proved is that required to found a charge of manslaughter. It is a question of construing the statute in each case. In assessing the standard set by a particular provision, it will be appropriate to have regard to various considerations; for example, whether as in Callaghan's Case the provision is "in a criminal code dealing with major crimes involving grave moral guilt", and to the

"nature and consequences" of the offence created (Dabholkar's

The policy considerations underlying the high degree of

negligence required for manslaughter do not warrant the like

conclusion in respect of the negligence necessary to support a

charge against s.19 and the statutory context is to the contrary. Section 19 is not confined to negligence causing loss of life or indeed even to negligence producing injury or damage. It extends to merely "hazarding" a vessel by negligence.

Further, Part 1 of the Act, in which s.19 is to be found, contains an extensive and detailed catalogue of offences which may be committed by members of the Royal Australian Navy and of the punishments which such offences may attract. The provisions of Part 1 impose a code of conduct for times of peace and war in respect of both officers and sailors and are plainly concerned with discipline as well as criminality. The offences

covered range from those dealt with under such sub-headings as

"Misconduct in action and assistance to enemy" and "Mutiny" to "Fighting and quarrelling" (s.13) "Malingering" (s.27), "Drunkenness" (s.28), and negligence which is the subject not only of ss.7 and 19 but also s.30 (waste of service property) and s.31 (pawning decorations). Although, for some offences, a

greater punishment is permissible, nowhere in Part 1 of the Act

is the maximum punishment in respect of any offence fixed below that for negligence which, by paragraph 43(1)(d), is "imprisonment for a term not exceeding two years". Further, the punishment attracted by the offence of negligence may be as little as a reprimand. It appears incompatible with the high

standards of performance required of naval officers that only

gross departues from those standards should constitute negligence in the statutory sense and it seems incongruous to suggest that

gross negligence should be necessary before conviction of an

offence the punishment for which may be merely a reprimand. On the other hand, the seriousness of a charge, e.g. of negligence under s.19, 1s recognized by the application of the criminal onus of proof beyond reasonable doubt and provisions such as s.58 of

Part 1 of the Act cannot be considered to be confined to conduct which involves moral guilt so grave as to be characterized as criminal. There is no good reason for importing into the provisions which make negligence an offence a requirement that such negligence be "gross" or otherwise culpable to a degree sufficient to attract criminal responsibility at common law or, indeed blameworthy to any higher degree than is necessarily involved in the particular negligent conduct. On the contrary, it seems clear that the degree of deviation from the duty of care, whether or not that duty be of a high standard such as that required of a ship's commander, is not relevant to the

question whether an offence has been committed but is one of the

matters relevant to the punishment which is appropriate to meet

that offence. Although we are not persuaded that the High Court accepted in Callaghan's Case that there is an intermediate degree

of negligence which is appropriate for some criminal offences,

there is authority that that is so: see the judgment of Atkin

L.J. in Andrew's Case, supra, at p. 583 and Dabholkar's Case,

However, we are unable to accept that what is required

to sustain a conviction under s.19 is appropriately described as

the degree of negligence necessary for civil liability with the

additional requirement that there be an element of culpability or blameworthiness. Any attempt to specify some sort of "half-way house" standard of negligence for the operation of s.19 would, in our opinion, do no more than introduce imprecision and uncertainty into an area of the law which is already sufficiently confused. In the factual context in which s.19 is operative, a want of due care seems to us inevitably blameworthy. The better approach is to seek to define the standard of care required,

departure from which will be negligent, rather than to nominate a

degree of departure which is necessary to make the negligence an

offence. In Archbold Criminal Pleadings, Evidence and Practice, 40th Ed. paragraph 1443, the following definition of negligence

in indictable offences apart from manslaughter, is set out:-

"A person is negligent if he fails to exercise such

care, skill or foresight as a reasonable man in his situation would exercise".

No more is necessary for the purpose of a direction in proceedings for a charge against s-19 than to give "negligence" a meaning consistent with its ordinary usage in everyday life expressed in terms appropriate to its service context. Emphasis to the special context is, of course, appropriate. The duty of

care of a member of the armed forces may be influenced by special

circumstances and cannot always simply be defined by reference to

the duty owed to one's neighbour as has been appropriate for

ordinary civil and criminal purposes: cf. Groves v The

We would favour a direction as to negligence in s.19 in the following terms:- "That degree of negligence which can be described as

reasonably capable and careful person of the accused's seniority and experience in the Service would not have

done or alternatively omitting to do something which in all the circumstances a reasonably capable and careful

person of the accused's seniority and experience in the

To attribute such a meaning to "negligence" in s.19 allows "negligence" to be interpreted consistently throughout the

code of offences in the Naval Discipline Act. In our view, it

accords with the policy underlying the section. It may be noted

that it accords generally with the statements in the British and Australian Manuals of Naval Law.

(a) No. (b) No. (c) That degree of negligence which can be described as - "doing something which in all

experience in the Service would not have done alternatively omitting to do something which in all the circumstances a reasonably capable

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Judgment (148 paragraphs)