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.
320 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.]
321 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."
322 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.
323 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."
324 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.
325 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.
326 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).
327 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".
328 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.
329 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.
330 It follows that the learned trial judge erred in directing the jury in accordance with Nydam.
331 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.