R v Lavender [2004] NSWCCA 120 | Case summary

Court of Criminal Appeal (NSW)|2004-02-05|Before: Giles JA, Hulme J, Adams J

INTRODUCTION 296 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? 297 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. 298 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." 299 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. 300 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." 301 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.) 302 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.] 303 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. 304 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.

305 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.

306 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." 307 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." 308 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. 309 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". 310 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". 311 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." 312 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". 313 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'." 314 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. 315 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." 316 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. 317 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…" 318 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. 319 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. 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.

THE DIRECTIONS TO THE JURY 332 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. 333 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." 334 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. 335 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." 336 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." 337 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." 338 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." 339 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. 340 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." 341 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.) 342 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 343 I wish, however, to make some observations about the defence of honest and reasonable mistake. 344 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". 345 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. 346 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. 347 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. 348 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 349 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. 350 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 351 Accordingly, I would uphold the appeal against conviction. 352 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. 353 If it were necessary to consider the Crown appeal against sentence, I would reject it for the reasons given by Giles JA.

Last Modified: 05/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R v Lavender [2004] NSWCCA 120 HEARING DATE(S) : 5 February 2004 JUDGMENT DATE : 21 May 2004

CATCHWORDS : Manslaughter - by criminal negligence - whether falling short of reasonable person's standard of care objectively assessed - what mens rea required - relevance of accused's belief in safety of acts - whether defence of honest and reasonable mistake - effect of Crimes Act s 18(2)(a) - consideration of other aspects of summing-up - consideration of adequacy of sentence. D Akarele v R (1943) AC 255; Andrews v Director of Public Prosecutions (1937) AC 576; Brown v Robinson (1960) 60 SR (NSW) 297; Callaghan v The Queen (1952) 87 CLR 115; Chan Wing-Sui v R (1985) AC 168; Crabbe v R (1985) 156 CLR 464; Director of Prosecutions v Newbury (1977) AC 500; Glennon v R (1994) 179 CLR 1; Gray v Barr (1971) 2 QB 554; Hardgrave v R (1906) 4 CLR 232; He Kaw Teh v The Queen (1984) 157 CLR 523; Jiminez v The Queen (1992) 173 CLR 572; Marwey v R (1977) 138 CLR 630; McBride v The Queen (1966) 115 CLR 44; McCarthy v R (1921) 59 DLR 206; McLuckie v Williams (1995) 82 A Crim R 118; Mraz v The Queen (1995) 93 CLR 493; NSW Sugar Milling Co-operative Ltd v EPA (1992) 59 A Crim R 6; Nuri v R (1990) VR 641; Nydam v The Queen (1977) VR 430; Pemble v R (1971) 124 CLR 107; Proudman v Dayman (1941) 67 CLR 536; The Queen v Adomako (1995) 1 AC 171; R v Allwood (unreported, Qld CA, 22 August 1997); R v Bateman (1925) 19 Cr App R 8; R v Bikic [2002] NSWCCA 227; R v Bonnyman (1942) 28 Cr App R 131; R v Blacklidge (CCA, 12 December 1995, unreported); R v Buttsworth (1983) 1 NSWLR 658; R v Caldwell (1982) AC 341; R v Canadian Liquid Air Ltd (unreported, British Columbia); R v Coleman (1990) 19 NSWLR 467; R v Cunningham (1957) 2 QB 396; R v De'zilwa (2002) 133 A Crim R 501; R v Do [2000] NSWCCA 459; R v Doherty (1887) 16 Cox CC 306; R v EMJ [2001] WACC 7; R v Franks (1999) 1 VR 518; R v Grosney (1971) 55 Crim App R 502; R v Gunter (1921) 21 SR (NSW) 282; CASES CITED : R v Harvey (1887) 8 NSWR 39; R v Hill (1981) 3 A Crim R 397; R v Holzer (1968) VR 481; R v Ianazzone (1983) 1 VR 649; R v Jackson & Hodgetts (1989) 44 A Crim R 320; R v Jones (1995) 78 A Crim R 504; R v Lamb (1967) 2 QB 981; R v Lean (1989) 42 A Crim R 149; R v Lipman (1970) 1 QB 152; R v Lawrence (1982) AC 510; R v Manh Viet Do [2001] NSWCCA 19; R v McCullough (1982) 6 A Crim R 274; R v Musumeci (CCA, 30 October 1997, unreported); R v Newell (1927) 27 SR (NSW) 274; R v Nicholls (1884) 13 Cox CC 75; R v Osip (2000) 116 A Crim R 578; R v Pacino (1998) 105 A Crim R 309; R v Phillips (1971) 45 ALJR 467; R v Prentice (1994) QB 302; R v Pullman (1991) 25 NSWLR 89; R v Sadler (1900) 21 NSWR 380; R v Safwan (1986) 8 NSLWR 97; R v Seymour (1983) 2 AC 493; R v Solomon (1980) 1 NSWLR 321; R v Stokes & Difford (1990) 51 A Crim R 25; R v Stone (1977) 1 QB 354; R v Stones (1955) 56 SR (NSW) 25; R v Taktak (1988) 14 NSWLR 226; R v Taylor (1983) 9 A Crim R 358; R v Tomac (1996) 67 SASR 376; R v Vukic [2003] NSWCCA 13; R v Wampfler (1987) 11 NSWLR 541; R v Warner (1979) 1 A Crim R 18; R v West London Coroner, Ex parte Gray (1988) QB 467; R v Wood (1957) SR (NSW) 638; Re Lamperd & Courts-Martial Appeal Tribunal (1983) 8 Crim R 417; Royall v The Queen (1990) 172 CLR 378; Sherras v De Rutzen (1895) 1 QB 918; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745; Thomas v R (1937) 59 CLR 279; Von Lieven v Stewart (1990) 21 NSWLR 52; Wilson v The Queen (1992) 174 CLR 313. PARTIES : Regina v Wayne Kelvin Lavender FILE NUMBER(S) : CCA 60229/03, 60532/03 COUNSEL : P Byrne SC & P Hamill - Lavender Dr P Power SC - Crown SOLICITORS : S O'Connor - Lavender S Kavanagh - Crown

(a) Was the defence available at all? 64 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. 65 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. 66 The appellant relied on R v Lamb (1967) 2 QB 981 and Jiminez v The Queen. 67 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. 68 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." 69 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. 70 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." 71 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. 72 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. 73 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." 74 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." 75 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. 76 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. 77 Jiminez v The Queen has relevantly been considered in two subsequent decisions. Neither assists the appellant's submission. 78 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".

(a) Mens rea 104 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. 105 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". 106 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. 107 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. 108 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) 109 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. 110 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. 111 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). 112 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. 113 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. 114 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." 115 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. 116 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. 117 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. 118 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. 119 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. 120 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. 121 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.

The Crown appeal 149 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. 150 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). 151 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. 152 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. 153 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." 154 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." 155 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." 156 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. 157 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. 158 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.

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." 163 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. 164 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." 165 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. 166 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. 167 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." 168 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." 169 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. 170 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. 171 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. 172 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)". 173 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. 174 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." 175 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." 176 His Honour went on to refer to the remarks of Barwick CJ in Pemble v R which I have mentioned. 177 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. 178 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." 179 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." 180 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. 181 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. 182 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." 183 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. 184 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. 185 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. 186 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? 187 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. 188 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) 189 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". 190 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. 191 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". 192 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." 193 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. 194 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". 195 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. 196 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." 197 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." 198 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." 199 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). 200 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." 201 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."

218 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. 219 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. 220 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. 221 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. 222 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. 223 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. 224 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. 225 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. 226 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. 227 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." 228 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 18 229 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. 230 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. 231 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. 232 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. 233 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). 234 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. 235 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. 236 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." 237 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." 238 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. 239 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." 240 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" 241 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. 242 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." 243 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. 244 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. 245 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." 246 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. 247 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)." 248 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." 249 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." 250 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. 251 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. 252 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. 253 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. 254 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."

R v Lavender

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (41)

Cited By (4)