R v BBD [2006] QCA 441

SUPREME COURT OF QUEENSLAND

CITATION: R v BBD [2006] QCA 441

PARTIES: R v BBD (appellant)

FILE NO/S: CA No 166 of 2006 / DC No 293 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 3 November 2006

DELIVERED AT: Brisbane

HEARING DATE: 16 October 2006

JUDGES: Jerrard JA, Mackenzie and Philip McMurdo JJ / Separate reasons for judgment of each member of the Court, Jerrard JA and Mackenzie J concurring as to the orders made, Philip McMurdo J dissenting in part

ORDERS: 1. Appeal against conviction allowed 2. Conviction set aside 3. No new trial ordered 4. Verdict of acquittal entered

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant was convicted of unlawfully omitting to do an act, which it was her duty to do, thereby causing bodily harm pursuant to s 328 of the Criminal Code 1899 (Qld) – appellant was supervising her two grandchildren – the older grandchild was driving a forklift up and down a driveway and the other was riding on the same forklift – where appellant had to go inside the house – during appellant’s absence an accident occurred and the younger boy was trapped beneath the forklift – appeal against conviction – whether trial judge erred in explaining the degree of fault required for criminal negligence – whether trial judge erred by not specifically explaining to the jury the meaning of “recklessness” / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – whether the trial judge erred in summing up by not instructing the jury as to the possible operation of s 25 of the Criminal Code (extraordinary emergencies) / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant owed a duty under s 286 of the Criminal Code (duty of person who has care of a child) and a separate duty under s 289 of the Criminal Code (duty of persons in charge of dangerous things) – whether the trial judge erred in summing up to the jury by failing to distinguish between the separate duties under ss 286 and 289 of the Criminal Code / Criminal Code 1899 (Qld), s 25, s 286, s 289, s 328, s 668E(1A) / Crimes Act 1900 (NSW), s 61R(1) / Andrews v Director of Public Prosecutions [1937] AC 576, cited / Banditt v R (2005) 223 ALR 633; [2005] HCA 80 discussed / Evgeniou v The Queen (1964) 37 ALJR 508, discussed / R v Bateman (1925) 19 Cr App R 8, cited / R v Hodgetts and Jackson [1990] 1 Qd R 456, discussed / R v Scarth [1945] St R Qd 38, cited / R v Thomas [2002] QCA 23; CA No 253 of 2001, 15 February 2002, applied / La Fontaine v The Queen (1976) 136 CLR 62, discussed

COUNSEL: A M West for the appellant / D R MacKenzie for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA: In this appeal I have read McMurdo J’s reasons for judgment and agree with His Honour that the appeal should be allowed and the conviction set aside. Where I respectfully disagree is that I would not order a new trial, and would order that an acquittal be entered. That is because I very much doubt if the facts in this case actually satisfied the test for the high standard of negligence necessary to constitute criminal negligence. In Andrews v Director of Public Prosecutions [1937] AC 576, Lord Atkin approved the statement:

“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.” (Citing from the judgment in R v Bateman (1925) 19 Cr App R 8).¹

Lord Atkin went on:

“[A] very high degree of negligence is required to be proved before the [crime] is established.”

2. The majority decision in R v Scarth [1945] St R Qd 38 approved the application in Queensland of the common law test for criminal negligence. In Evgeniou v The Queen (1964) 37 ALJR 508 McTiernan and Menzies JJ wrote that:

“[T]o constitute a breach of s 289 [of the Code]; there must be negligence according to the standard of the criminal law, which may be described shortly as recklessness involving grave moral guilt.”²

The jury in this case clearly had difficulty understanding what at least the first of those latter two concepts meant; it would have been appropriate to repeat to them the description from R v Bateman (1925) 19 Cr App R 8, describing criminal negligence as negligence showing “such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

3. That accords with the judgment of Thomas J in R v Hodgetts & Jackson [1990] 1 Qd R 456 at 463, where His Honour wrote of s 289 that a defendant could not be found criminally negligent unless at least some serious harm was reasonably foreseeable by the defendant. To prove criminal negligence the prosecution had to show that Mrs BBD disregarded such an obvious risk of injury to the children that, beyond reasonable doubt, she breached a duty of care to a degree amounting to a crime and deserving punishment.

4. The evidence did not establish that against Mrs BBD. The forklift was a very small one, probably smaller than most ride-on mowers. Mrs BBD was not shown to have known or have reason to know that the younger boy was getting on and off it as the older boy drove it slowly along. That is what the older boy told the police that the younger boy had begun to do, and which led to his being run over. When Mrs BBD was watching the two boys, the younger boy was staying on the forklift and the older boy was driving it in a safe manner. In fact, he did that at all times; it was the younger boy’s behaviour that directly led to his injury. Failing to foresee the behaviour by the younger boy that led to the accident, when she stopped supervision to go to the toilet, was not criminal neglect of her duty of care imposed by s 286 of the Criminal Code 1899 (Qld). She also suffered the misfortune of facing accusations that she was in breach of two separate duties of care. Those were her asserted breach of her duty to take care of the children imposed by s 286, and her duty as a person in charge of a motor vehicle, imposed by s 289. Those were two quite separate duties, and the latter one was not explained to the jury at all.

5. MACKENZIE J: This is an appeal against conviction for an offence under s 328 of the Criminal Code 1899 (Qld). The appellant is the grandmother of the complainant and his brother. They were seven and a half and nine and a half years of age respectively at the time of the incident. They and their mother had stayed overnight at the premises where the appellant and her husband lived and also carried on a general carrier business. A small forklift had very recently been acquired for the purpose of the business. On the evening before the incident which led to these proceedings, the boys’ grandfather had instructed them how to drive it and given them safety instructions over a period of about an hour. The evidence is ambiguous as to whether they actually drove the vehicle that evening. Certainly the boys’ grandfather familiarised them with how it operated. The complainant’s brother who was driving the forklift the next day when the incident happened, was not unfamiliar with vehicles. He had previously been allowed to drive a tractor and a motor vehicle, perhaps two or three times each, in a paddock under the guidance of his grandfather. He had also won motocross and BMX trophies.

(a) a person omitted to do an act which it was the person’s duty to do;

(b) the omission was unlawful; and

(c) the omission caused actual bodily harm.

The injuries undoubtedly constituted bodily harm. There was apparently a concession that the appellant was subject to the duties prescribed in s 286 and 289. Whether there was an unlawful omission to comply with them was the critical issue as the trial was conducted. The record shows that it was accepted by defence counsel at trial, who also appears on appeal, that the appellant had a dangerous thing, the forklift, in her charge or under her control, enlivening s 289. In the case of s 286, the focus seems to have been a failure to take reasonable precautions to avoid danger to the child’s safety, and perhaps failure to remove the child from danger.

11. The prosecution particularised three respects in which it was alleged the appellant had failed in her duties. One was that she allowed the complainant to ride on the forklift driven by his brother. Another was that, while she was supervising them before going upstairs, she was some distance away. Another was that she left them unsupervised and went upstairs. The essential question is whether, on the proven facts, the alleged breaches of duty particularised, separately or in combination, amounted to criminal negligence.

12. In a case where an accused person does not have actual physical possession of the dangerous thing, whether the person has it in his or her charge or under his or her control requires careful consideration.

13. In R v Thomas (2002) 35 M.V.R. 381, it was rightly pointed out that what amounts to being in charge of or having control of a thing (in that case a motor vehicle) will vary greatly according to the circumstances of the case. The issue will always be a question of fact for the jury to determine on the facts of each particular case. This is further highlighted by the distinguishing, in R v Thomas, of R v Stott and Van Embden [2002] 2 Qd R 313 and R v Kidd [2001] QCA 536 on the ground that they depended on the particular and peculiar facts of the respective cases. It may be added that, in Thomas, the occasion and the opportunity for intervention by the appellant to modify the driver’s conduct were clearly more obvious and immediate than in the present case.

[14] It is unnecessary, in view of the conclusion I reach as to the outcome of the appeal to do more than make those observations about the risk in assuming uncritically that a dangerous thing is in the charge of or under the control of a person merely because the person is in a position of authority to direct the person in actual physical possession to desist from using the thing in a particular way, or at all. As Thomas says, the facts of the particular case are determinative.

[15] Subject to that, I am in agreement generally with the reasons of McMurdo J in the sections relating to the summing up, the first ground of appeal and the second ground of appeal. It follows that the appeal must be allowed and the conviction set aside.

[16] The remaining question is whether a new trial should be ordered. Where duties such as those in s 286 or s 289 are relied on as the foundation for a criminal offence, criminal negligence must be proved (R v Scarth [1945] St R Qd 38). That concept involves a departure from reasonable standards of care that is serious enough for the State to intervene and punish the person because he or she has behaved with so little regard for the safety of others that the person deserves to be punished as a criminal. The conduct must demonstrate a serious departure from the standard of care that a reasonable member of the community would observe in the same circumstances. Since it involves an assessment of the standard of care a reasonable member of the public would use in those circumstances and the seriousness of the degree of departure from it by the accused, once there is evidence sufficient to reach the threshold at which criminal negligence may be left to the jury, it is a matter for the jury to decide whether the conduct was criminally negligent or fell short of the degree of deviation from proper standards necessary to prove criminal negligence beyond reasonable doubt.

[17] The facts have been set out at the beginning of these reasons. Up to the time the appellant went inside to go urgently to the toilet, the boys had been using the forklift for some time. They had been behaving responsibly, as they had been taught. There was, of course, the reasonably foreseeable possibility, inherent in childhood, that one or other of them might act mischievously, but there was no sign of it actually occurring up to the time she went inside. When the accident occurred, it was primarily caused by the complainant jumping off and somehow being run over. There was nothing to suggest that the applicant intended to absent herself for longer than was necessary.

[18] On those facts, it is in my view not a case where, as it was put in R v Bateman (1925) 19 Cr App R 8, the applicant showed “such disregard for the life and safety of others as to amount to a crime against the State …”. In my view, while the appellant in all probability was negligent in the civil sense, the case falls short of one in which a properly instructed jury might reasonably find that she had been criminally negligent. I would therefore order that the appeal be allowed, the conviction quashed, that there be no new trial, and that a verdict of acquittal be entered.

[19] PHILIP McMURDO J: After a two day trial in the District Court, the appellant was convicted of unlawfully omitting to do an act, which it was her duty to do, thereby causing bodily harm. She was fined $800. She appeals against that conviction, ultimately upon arguments which criticise the summing up.

[20] The appellant was looking after two of her grandchildren, who had stayed overnight at the place where she and her husband lived and from which they conducted a business. There was a forklift at that place which the appellant’s husband had taught the older of the boys, who was aged 9½, to drive the previous evening. On the next morning, that boy was playing with the forklift by driving it up and down a driveway. His younger brother, who became the complainant, was riding with him. He was aged 7½. From nearby she watched them do this before she went inside, she said, to use the lavatory. Whilst she was inside the house, there was an accident by which the younger boy became trapped beneath the forklift. The appellant found the boy lying between the front and rear wheels. She had to use a jack to free him. He suffered a fracture to the right sacroiliac joint and the left pubic bone body with swelling of the adjacent soft tissues.

[21] She was convicted of an offence under s 328 of the Criminal Code 1899, which provides that any person who unlawfully does any act, or omits to do any act which it is the person’s duty to do, by which act or omission bodily harm is actually caused to any person, is guilty of a misdemeanour. Section 328 creates the offence but does not itself impose any duty. The prosecution case was that the appellant owed a duty derived from two other sections of the Code.

[22] The first was s 286, which relevantly provides that it is the duty of every person having the care of a child under 16 years to take the precautions that are reasonable in all the circumstances to avoid danger to the child’s life, health or safety and to take the action that is reasonable in all the circumstances to remove the child from any such danger. It defines “person who has care of a child” to include any adult in charge of the child, and there was and is no contest that the appellant was the person having the care of each of these boys and subject to the duty prescribed by s 286.

[23] The other duty said to have been owed and breached was that prescribed by s 289 of the Code, which requires reasonable care and precaution by a person who has in her charge or under her control a dangerous thing. The prosecution said that the forklift was a dangerous thing, that it was in her charge or under her control and she was obliged to use reasonable care “in its use or management”.

[24] That reliance upon s 286 and s 289 was made apparent by the prosecutor’s opening. It did not appear from the indictment. The case was conducted by everyone, including the learned trial judge, on the premise that both s 286 and s 289 were relevant. They are distinct duties but the prosecution was entitled to advance its case in the alternative, and at no stage has the appellant said otherwise.

[25] The evidence for the prosecution comprised an audio tape of an interview by police of the older boy (the driver), an audio tape of the police interview of the appellant and some photographs of the forklift and the driveway. The complainant’s injuries were admitted, as was the fact that they constituted bodily harm. The appellant did not give or call evidence.

[26] There was a problem with the audio tape of the interview of the boy. The trial judge several times referred to the difficulty in hearing some of the tape. The jury were given transcripts but her Honour correctly instructed them that it was what they could hear, and only that, which constituted the evidence. Her Honour saw fit to have each of the tapes, in its entirety, replayed during the course of her summing up, after the transcripts had been taken back from the jury. That was to endeavour to have the jury rely only upon what they could hear. In the notice of appeal, there is a ground that the verdict was unsafe and unsatisfactory because of the poor quality of the tape. That ground however was abandoned at the commencement of the appeal. And the appellant’s counsel agreed that there was no evidence within the boy’s interview which significantly affected the appellant’s account given in her interview. So if the jury could not hear all of the boy’s interview, it is now conceded that there was no impact upon a fair trial.

[27] With the abandonment of that ground of appeal, there is no argument that the verdict was unreasonable. The grounds which were argued were that the summing up did not sufficiently explain the degree of fault involved in criminal negligence and that the jury should have been instructed as to the possible operation of s 25 of the Code. Before going to those grounds, it is necessary to say something more of the facts.

[28] The accident occurred on 1 December 2004 at the house in which the appellant lived with her husband. The boys are the sons of their daughter. Their parents are separated and ordinarily they live with their mother elsewhere. But they and their mother were then staying with their grandparents.

[29] The appellant and her husband operated a transport business from their house. They kept trucks there and next to the house was a yard used for the business. It was for that business that they had a forklift, which had been delivered only a day earlier. The boys’ grandfather had then told them how to drive it. This occurred over about one hour that evening. The appellant said that her husband had “told them all the rules and the safety procedures of how to stop, go forward, how to drop the forks, and never stand around them, you know, because of how it can turn … when you’re standing so close … just general things like that”. She also described how the boys were able to drive a car, sitting on her lap “down the paddock and stuff” and that the older boy had “actually driven tractors”. The grandfather had taught the boys something about driving a tractor “a couple of years ago”. The boys were said to have won trophies on motocross motor bikes.

[30] On the following morning, the boys had their grandfather start up the forklift at a time which the appellant put at about 6.30 am. The accident happened at about 9.30 am. The grandfather was with the boys for most of the intervening time before he went out. The boys’ mother was unwell and was still in bed. So that left the appellant as the child minder. They were still playing on the forklift when their grandfather left. The appellant said this was 10 minutes or so before the accident. For some time prior to then, the appellant had been outside in the vicinity, watching the boys play on the forklift under the supervision of their grandfather.

[31] After he left, she stayed outside continuing to watch the boys. She was then at least 20 feet from them. The forklift had one seat, which was occupied by the older boy. The complainant sat next to him, on a flat metal panel in what space there was between the seat and one side of the vehicle.

[32] About 10 or 15 minutes after her husband had left, she went upstairs into the house. She said that she had an urgent need to use the lavatory. She said she “was in a terrible situation”. While she was upstairs, she heard a noise that sounded like the boys were attempting to switch on the forklift. Then she heard the older boy’s cry for help, looked out the window of the bathroom and saw the older boy trying to lift the back of the forklift to free his brother who was trapped beneath it. She called out to the older boy to get the jack for the forklift, which he retrieved by the time she was downstairs. The complainant was face down with his head protruding from one side of the forklift and his feet from the other. He was between the front and the rear wheels. By this stage the boys’ mother was with her. With the older boy’s assistance, the appellant managed to jack up the forklift to enable the complainant to crawl out from beneath it. The ambulance was then called.

[33] The Crown particularised the appellant’s alleged negligence as:

Allowing the complainant to ride on the forklift in a position which was unsecured;

Supervising the children on the forklift from an inadequate distance;

Leaving the children on the forklift unsupervised to go upstairs.

The summing up

[34] The trial judge read to the jury s 328 of the Code, before saying:

“What duty exists at law? That’s another section in the Criminal Code and that’s the one that I invited you to write down yesterday and I’d ask you to check those notes that you have it accurately.”

Her Honour then read s 286 to the jury, telling them that there was no issue that at the relevant time the complainant was in the care of the appellant.

[35] The next thing which her Honour said was precisely in the terms of s 289 of the Code (although the jury were not told that). With apparent reference to that duty, the s 289 duty, her Honour added that:

“You will appreciate here that what the case is concerned with is the forklift and, in particular, the driving of the forklift by (the older boy) and the injury to (the complainant)”.

[36] Her Honour then identified three elements which required proof. As to the first element, she said that the prosecution “must show that she owed a duty of care and I’ve read out to you what that duty is.” Her Honour remarked that “the duty of care is not really an issue in this trial. It’s fairly clear on the evidence, you might think, that she owed a duty of care. The question more in this trial is: did she omit to perform that duty and did she by her omission cause the bodily harm to (the complainant)?” Those issues of breach and causation were identified as the second and third elements.

[37] It appears that the appellant’s counsel had accepted that his client did owe a duty. The other adult then in the house was the boys’ mother but she was unwell and asleep or lying down inside. The appellant’s case not surprisingly accepted that the appellant had the care of the children at the relevant time and thereby owed the duty prescribed by s 286.

[38] The prosecution had opened its case by express reference to both s 286 and s 289. Had the appellant’s counsel argued that the jury should not be satisfied that the appellant owed the discrete duty under s 289, presumably her Honour would not have made that passing reference to s 289 and commented that the existence of “a duty of care” was not in issue. And no request for a re-direction in this respect was made. It thereby appears that the appellant’s counsel also accepted that his client owed the duty prescribed by s 289.

[39] The directions given to the jury are likely to have made them think that there was but one duty of care, the breach of which they were to assess, rather than distinct duties. In my opinion the learned trial judge should have told the jury that these were distinct duties and explained their respective elements. In principle, the jury had to consider whether each duty was breached by reference to the content of that duty in the facts of the case. But it appears that the appellant’s case was conducted in a way which enabled the judge to fairly comment that there was no issue that the appellant owed a duty (in either respect). In particular, it seems that the appellant’s counsel accepted that the appellant had the forklift in her charge or under her control. That concession is not surprising. A person may be in charge of or have control of a vehicle without having actual physical possession of it at all times: R v Thomas (2002) 35 M.V.R. 381 at [26]. The appellant’s argument, which was that she had the whole situation under reasonable control, may well have been weakened by an argument that at the same time she did not have the forklift itself under her control.

[40] Although the failure of the summing up to distinguish the respective duties owed by the appellant is not an error raised by the appellant’s argument, it must be considered. Is there a risk that the jury did not understand the content of the duty which they found was breached? In particular, by merging the respective duties into one “duty of care”, did the learned trial judge describe the duty as one which was more demanding of the appellant than either of those under s 286 or s 289? The jury was made to believe that there was one duty which was relevant, and that its content was by a combination of the requirements of those two sections. In the circumstances of this case however, and having regard to the way the prosecution case was particularised and argued, the process of the jury’s reasoning could not have been affected. The jury was asked to be satisfied that letting the complainant ride on the forklift as he did, or at least letting him do that whilst the appellant was upstairs and not watching him, was such a serious neglect of her duty to look after him that she should be convicted of the charge. Ultimately that was the question for the jury, regardless of whether the starting point was a duty under s 286 or one under s 289. Had the jury been considering distinctly a breach of the s 286 duty, they would have brought into account the fact that the appellant was able to stop the complainant from riding on the forklift by her control of the forklift. And had they been considering distinctly a breach of the s 289 duty, they would have brought into account the fact that it was then the appellant who then had the children in her care. Ultimately then, the learned trial judge’s failure to explain these duties as distinct duties could not have been productive of any injustice.

First ground of appeal

[41] The learned trial judge directed the jury as to the degree of fault which had to be proved, in terms which closely followed the Court’s benchbook. Her Honour at first correctly referred to the difference between criminal and civil negligence, and told the jury that they had to be satisfied that the appellant’s conduct “so far departed from the standard of care incumbent upon her to use reasonable care to avoid a danger to life, health and safety as to amount to recklessness involving grave moral guilt deserving of punishment.” Her Honour then added that the question had two parts, which were whether the appellant had used reasonable care and, if not, whether that amounted to recklessness involving grave moral guilt deserving of punishment.

[42] No challenge was made by either counsel to that direction. Indeed it plainly appears from the summing up that the appellant’s counsel had already read to the jury the same passages from the benchbook. The ground of appeal concerns what happened when the jury later sought a clarification of that direction.

[43] About 45 minutes after the jury had retired, they sent a note as follows:

“The jury needs to hear the three points of law regarding duty of care .. performed or omitted to be performed, an act that resulted in bodily harm, did omission .. required standard of care as to be regarded as ‘recklessness’ and direction regarding these points”.

Her Honour then had typed for the jury a document which was intended to answer those questions. The document is not within the appeal record but neither counsel suggests that it is now significant. Her Honour described the document as “essentially just extracts from the direction”. The transcript shows that the document again repeated the phrase “recklessness involving grave moral guilt deserving of punishment”.

[44] Before the jury had returned, the appellant’s counsel suggested that the jury was asking for assistance with the meaning of the word “recklessness”. From my reading of the jury’s note, they were. But the appellant’s counsel then submitted that they should not be told what “recklessness” means, saying that “we shouldn’t get into trying to explain ‘recklessness’ to them”, to which her Honour agreed.

[45] The jury then returned to be given the typed document and were asked “Is that OK Mr Speaker?”. His response was to say:

“The point that we found we were having a little bit of trouble with was the final few words of (indistinct) two on here as amount of recklessness involving grave moral guilt. Our sticking point, I think, was the word ‘recklessness’”.

Her Honour immediately responded that the term “does not have a legal meaning”, to which each counsel added his agreement. Her Honour told them that the meaning was its “ordinary dictionary community ordinary meaning”. She added:

“I suspect some of you, from time to time, accuse your partner or your children or somebody you know of being reckless. Grave moral guilt is perhaps a little old fashioned but then a lot of our Criminal Code is and I think you understand it.”

The jury then retired and within half an hour, had found the appellant guilty.

[46] The appellant now argues, by the same counsel who told the trial judge that the term “recklessness” need not be explained, that the jury should have been given an explanation. He now says that the jury should have been told that “reckless” meant “utterly careless of the consequences of action; without caution”³ or “devoid of caution, regardless of consequences, rash, heedless of danger”⁴. He further submits that instead of being told that the appellant’s conduct had to involve “grave moral guilt deserving of punishment”, the jury should have been told that the conduct had to be not only reckless but “so far outside the ordinary range of acceptable conduct as to merit punishment by the criminal law”.

[47] As already mentioned, the directions to the jury, at least before their note to the judge, followed the draft direction recommended by the benchbook. That draft direction derives from what was said in R v Hodgetts and Jackson [1990] 1 Qd R 456. In particular, Thomas J there said⁵ that appropriate directions in relation to criminal negligence are well established and “they require, inter alia, recklessness involving grave moral guilt.” His Honour there cited, amongst other cases, Evgeniou v The Queen (1964) 37 ALJR 508, where in the joint judgment of McTiernan and Menzies JJ it was said that⁶:

“Negligence sufficient to meet the standard of civil liability is not enough to constitute a breach of s 289; there must be negligence according to the standard of the criminal law, which may be described shortly as recklessness involving grave moral guilt”.

[48] The difficulty with directing a jury that criminal negligence involves an essential element of recklessness is in the fact that recklessness has many meanings, both according to ordinary speech and in law. It is that ambiguity which made the jury’s inquiry in this case, as to what is meant by recklessness, an unsurprising one. Contrary to what the learned trial judge said to the jury, with which each counsel expressly agreed, the term “recklessness” not only has a legal meaning: it has several. Thus in Banditt v R [2005] HCA 80; (2005) 224 CLR 262, which concerned the express element of recklessness in s 61R(1) of the Crimes Act 1900 (NSW), Gummow, Hayne and Heydon JJ began by noting that the term “reckless” has various uses as a criterion of legal liability, so that when used in the tort of negligence, the yardstick is objective rather than subjective, but when used in the context of an action in deceit, it involves an inquiry as to the defendant’s actual state of mind. In England, the meaning of “recklessness” was the subject of considerable controversy after the decision of the House of Lords in R v Caldwell [1982] AC 341, which culminated in the overruling of that decision by a unanimous decision of the House in R v G [2004] 1 AC 1034. It is unnecessary to discuss here that controversy or instances of a similar debate in Australian case law, in jurisdictions applying the common law or a statute which expressly provides for an element of recklessness. It suffices to say that the meaning of “recklessness” has been controversial in certain contexts, and as was recently noted in Banditt, its meaning varies from one context to another. Their Honours there cited the judgment of Gibbs J in La Fontaine v The Queen (1976) 136 CLR 62, in which, as their Honours said, Gibbs J discountenanced, in those States where legislation did not adopt terms such as “reckless” or “reckless indifference”, their use in summing up in a trial on a murder count. Gibbs J there said⁷:

“To tell a jury that they may convict of murder when they are satisfied that the accused acted with recklessness or reckless indifference is to invite confusion between murder and manslaughter resulting from criminal negligence. In many, if not most, cases where the Crown alleges that the accused acted knowing that his act would probably cause death or grievous bodily harm it will also be alleged by the Crown, in the alternative, that the accused was guilty of criminal negligence. The expression ‘reckless’ is also used to describe that very high degree of negligence which, if it causes death, amounts to manslaughter. It is not easy to explain to a jury the difference between the reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter. The purpose of a summing up is not to endeavour to apprise the jury of fine legal distinctions but to explain to them as simply as possible so much of the law as they need to know in order to decide the case before them.”

[49] Undoubtedly it was recklessness of the second kind described by Gibbs J which Thomas J (and Ambrose J who relevantly agreed with him)⁸ had in mind in Hodgetts. However the problem is that a jury might not have the same meaning in mind, so that without further instruction, they might be under a misunderstanding. And if further instructions as to the particular meaning of recklessness must be given, the jury must then be apprised of what Gibbs J described as fine legal distinctions which go beyond an explanation of so much of the law which that jury needs to know.

[50] In Queensland, where recklessness is not an express element of an offence under s 328, it is unnecessary, and in my respectful view, conducive to unnecessary complication to direct a jury that they must find recklessness. What is essential is that a jury understands that the prosecution must prove that the defendant’s default was so serious that it should be regarded as a crime and deserving of punishment. Accordingly the standard direction according to the benchbook makes the distinction between negligence which supports a civil claim for compensation and that more serious act or omission which warrants criminal punishment. In making that distinction, it is apt to tell juries that the defendant’s conduct must be deserving of moral condemnation.⁹ Hence the benchbook direction as to the element of “grave moral guilt deserving of punishment”. But it is unnecessary and undesirable to add recklessness, as if it were a separate element of the offence.

[51] The learned trial judge, at first, was simply following the benchbook. Although it would have been preferable for her Honour to have departed from it by making no reference to recklessness, her initial directions are not said to have caused any misunderstanding. It is what her Honour said in response to the jury’s questions, and in particular as to the speaker’s question, which is challenged. At that point, the jury had made it clear that they did not understand what was meant by “recklessness involving grave moral guilt” and in particular by the word “recklessness”. What her Honour needed to then explain was that the jury had to be satisfied that any want of due care by the appellant was also so serious that it deserved punishment as a crime. Instead, her Honour said of recklessness that “I suspect some of you, from time to time, accuse your partner or your children or somebody you know of being reckless”, a comment which was likely to diminish the level of culpability which had to be proved, by equating criminal behaviour with that the subject of everyday family life. Then when referring to “grave moral guilt”, her Honour’s comment that this notion was “a little old fashioned” was, with respect, unhelpful and again was likely to diminish the level of misconduct which the prosecution was required to prove. And unfortunately, in these answers to the jury’s critical question, her Honour did not remind them that they had to be satisfied, as members of the community, that the defendant’s negligence was so serious as to warrant the community’s punishment as a crime. The result was that the jury were not properly instructed as to what the prosecution had to prove to establish a breach of duty.

Second ground

[52] It is further argued that the jury should have been instructed in terms of s 25 of the Code, which provides that a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

[53] The argument is that there was an extraordinary emergency by the appellant’s need to use the lavatory. But irrespective of s 25, the existence of that circumstance, and its significance when considered with the other relevant circumstances, were already matters for the jury’s consideration. That circumstance had to be considered in the jury’s assessment of whether there was any breach of duty and if so whether it was such a serious breach as to amount to an offence. There is no complaint that the jury was not properly instructed as to the relevance and possible significance of that circumstance (assuming that the fact of the circumstance could not be excluded by the jury). To have instructed the jury specifically in terms of s 25 would not have resulted in any different process of reasoning, except perhaps by some confusion caused by the undue complication of this case by reference to s 25. Put another way, there is no rational basis upon which the jury could have convicted the appellant but for s 25, but been left in reasonable doubt by reference to s 25. This ground of appeal fails.

The proviso: s 668E(1A)

[54] The respondent’s submissions rely upon the proviso only in relation to that last mentioned ground of appeal: the s 25 ground. There is no argument that if the jury were not properly instructed as to what constitutes a culpable breach, then this Court should apply the proviso.

[55] Ultimately the question for a jury, properly instructed as to that matter, is one which is particularly suitable for determination by a jury. This case raises questions of what is reasonable or otherwise by the standards of today, when community expectations as to safety in the use of vehicles may or may not be more demanding than previously. It is understandable then that the respondent does not press for the application of the proviso in the event that the appeal succeeds on what I have described as the first ground.

Conclusion

[56] In my conclusion the appeal against conviction should be allowed. I would order a new trial.

Footnotes

1. [1937] AC 576 at 582-583. ↩

2. (1964) 37 ALJR 508 at 509 ↩

3. A Delbridge et al, The Macquarie Dictionary 3rd ed , Macquarie Library Pty Ltd, St Leonards, 1997. ↩

4. J B Sykes (ed), The Concise Oxford Dictionary of Current English 6th ed, Claredon Press, Oxford, 1976. ↩

5. [1990] 1 Qd R 456 at 461. ↩

6. (1964) 37 ALJR 508 at 509. ↩

7. (1976) 136 CLR 62 at 76-77. ↩

8. [1990] 1 Qd R 456 at 477. ↩

9. See R v Lavender (2005) 222 CLR 67 at 108; [2005] HCA 37 at [127]. ↩