R v Osip [2000] VSCA 237

R v Osip [2000] VSCA 237 - VSCA 2000 case summary — Zoe

[25]

In cross-examination the applicant said that he did not regard what Davey called the "hunting zone" as commencing about a kilometre down the McDonald Track. He said that he loaded his rifle when he stepped off the track on hearing the noise, putting the sixth cartridge into the breach once he had identified the target. He said that in his 30 or 40 trips to the area he had never shot a deer. He had only once seen a deer in that area many months before in a gully along a creek further into the bush. He had once seen a four-wheel drive at the fire break where he and Davey had been. He agreed that there was a lot of rubbish amongst the bush where the deceased was and that people would from time to time go to that area to dump rubbish. He had seen a marijuana plantation about one and a half to two kilometres further along the McDonald Track. He recalled the occasion when a local resident had spoken to him and Davey. He knew of some houses and farms on the southern side of the Warburton-Woods Point Road. He agreed that it would not be surprising to find a resident walking his dog in the vicinity of the McDonald Track. He could not recall telling police on the night of the incident that he had walked 600 or 700 metres up the track before firing the shot. He agreed that the distance was certainly not that. One could say that he was eager to shoot a deer. He was well aware of the fourth safety rule and the four points made under it. He said that he saw the lower neck and upper shoulders of a deer only, no legs, body, head, ears or antlers. He fired at the target that he identified as a deer, aiming at the patch of colour. The rifle had open sights. He made sure that he sighted the target and had identified it, and pulled the trigger. He maintained that he had identified his target. He agreed that he had never mentioned to the police throughout the whole proceeding that he had seen the neck and shoulders of a deer. He denied reconstructing his story or making a mistake on the evening.

[37]

The question for decision, however, is whether a direction as to honest and reasonable mistake of fact is required in any case of involuntary manslaughter by criminal negligence where the judge gives the standard charge based on R. v. Nydam as to the element of gross or criminal negligence. Mr. Ross stated that he had not found a case where the "defence" of honest and reasonable mistake had arisen in manslaughter. None of the cases so far cited was concerned with manslaughter by criminal negligence or indeed any other crime of negligence. Mr. Ross did refer to the dissenting judgment of Wilson, J. in He Kaw Teh[11] in support of his submission that an honest and reasonable mistake of fact will be a ground of exemption in cases, such as this, where actual knowledge is not required as an element of the offence; but I do not consider that his Honour's statement assists to answer the question which arises for decision here. Of greater apparent relevance, although it is a case of an offence and a defence under the Criminal Code of Western Australia, is R. v. Pacino[12], which Mr. Ross cited. In that case the applicant was found guilty of unlawful killing and the Western Australian Court of Criminal Appeal held that the trial judge had erred in holding that a defence under s.24 of the Code of honest and reasonable but mistaken belief was not available. The court quashed the conviction and directed a re-trial. The Crown case against the applicant was that, in breach of his duty under s.266 of the Code, having in his charge or under his control dogs of such a nature that, in the absence of care or precaution in their management, the life, safety or health of a person might have been endangered, he failed to use reasonable care and to take reasonable precautions to avoid that danger, with the result that, pursuant to the section, he was to be held responsible for any consequences resulting to the life or health of any person by reason of his omission to perform that duty. The consequence in question was the death of an elderly woman who had been attacked by the applicant's dogs. In what was effectively the judgment of the Court, Kennedy, J. referred[13] to the fact that in Callaghan v. The Queen[14] the High Court held that the same degree of negligence was required to establish manslaughter under s.266 of the Code as was required at common law in cases where negligently causing death amounted to manslaughter. It appears that the trial judge's direction as to criminal negligence, in accordance with the Western Australian practice at the time, did not include the second element in the charge based on Nydam, namely that the conduct must involve a high risk of death or injury. On its face, it may be thought that Pacino supports the applicant's essential submission. But on closer examination it does not do so, in my view. The reason that the defence of honest and reasonable but mistaken belief that the dogs were (as the applicant claimed) not dangerous was open was because it went to one of the factual elements in s.266 namely, that in the absence of care and precaution life, safety or health might be endangered. That is not a factual element in manslaughter by criminal negligence at common law. The basis of the direction was not the aspect of negligence.

[47]

In my opinion, contrary to a submission for the applicant, the "defence" of honest and reasonable mistake is subsumed in the direction as to gross negligence. In essence, the jury could not have been satisfied beyond reasonable doubt that, in his Honour's words, the act or acts of the accused was or were performed by him "in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised ..." without concluding that any belief which the applicant had that the target at which he aimed was a deer was not a reasonable belief. Mr. Ross submitted that the concept of reasonableness was not to be subsumed into the "reasonable man aspect" of the elements of the offence. Reasonableness in the defence of mistake, he said, had never been synonymous with a reasonable man test and it was submitted that no part of the criminal law where reasonable belief or reasonable mistake is referred to equates such reasonableness with the reasonable man. I disagree. The last few lines of the last passage I have set out from the case relied on, Tutton, are directly against the submission as is also a passage in Bank of New South Wales v. Piper[22], cited by Gibbs, C.J. in He Kaw Teh[23]. There is, I think, still room for debate whether involuntary manslaughter is a crime without mens rea (as Canadian cases seem to suggest[24]), or whether, relevantly, the gross negligence constitutes mens rea, in the form, for example, of inadvertence or incautiousness. That view is supported by R. v. Nydam[25], R. v. Tolson[26] and various text writers[27]. If, as I am at present inclined to think, that is the better view, it supports Mr. McArdle's submission that the "defence" of honest and reasonable mistake was simply a denial of or joinder of issue on mens rea. Even if involuntary manslaughter has no mens rea, the point is substantially the same, in that the "defence" denies or puts in issue the element of gross negligence. The "defence" is, in short, not a superadded matter to be disproved.

[51]

Brennan, J. expressed a somewhat similar view[34]. But it is of fundamental importance to appreciate that their Honours' remarks occur in judgments concerned with offences which were statutory and of which negligence was not an element. Moreover, Dawson, J. "readily admit[ted] that there [was] an element of rationalization" in his explanation of the operation of the "defence" in relation to statutory offences. The passage from his Honour's judgment has been referred to in a number of subsequent cases, but the only relevant discussion of substance is the judgment of Abadee, J. (with whom Carruthers, J. and, with qualifications, Badgery-Parker, J. agreed) in the New South Wales Court of Criminal Appeal in Australian Iron & Steel Pty. Ltd. v. Environment Protection Authority[35]. The case was not cited to us by counsel. Abadee, J. held that there was no defence of "due diligence" to a prosecution for polluting waters under the Clean Waters Act 1970 (N.S.W.), a statutory offence, and in the course of doing so criticised the judgment of Dickson, J. (as he then was) in Sault Ste. Marie. He agreed[36] with a submission that the High Court had not accepted that the defence of honest and reasonable mistake of fact entailed the absence of fault or the absence of negligence. For this he cited the passage in Dawson, J.'s judgment in He Kaw Teh, saying that Dawson, J. was rejecting the concept that an absence of negligence was an appropriate description of mistake of fact in Australia. Abadee, J. also referred[37] to a statement in Jiminez[38] to the effect that the defence of honest and reasonable mistake made it unnecessary to introduce fault as an element of the offence under consideration. Here, however, gross negligence or gross fault is an element of the offence of manslaughter by criminal negligence, and for the reasons I have earlier given it seems to me inescapable that the "defence" of honest and reasonable mistake of fact entails the absence of negligence and that the presence of negligence denies the reasonableness of any relevant mistake. The two cannot co-exist.

[63]

In support of the remaining grounds it was pointed out, correctly, that manslaughter varied from a merely nominal crime to the very confines of murder and that the sentence can vary from very light to very severe, support for those two propositions being derived from Timbu Kolian v. The Queen[42]. Criticism was directed at his Honour's statement that courts must past sentences which deter those who may be minded to discharge lethal weapons in disregard of "those standards" (apparently a reference either to the standard of care of a reasonable person or to the observance of safety precautions, both of which the matters had been referred to by his Honour in his immediately preceding remarks). Counsel also fastened on his Honour's statement that, whilst the sentence imposed must reflect an element of general deterrence, the need for it must be tempered by the reality that the circumstances giving rise to this offence were rare. It was said that neither the prosecution nor the defence could find a similar offence in Australia. There was no need "to send a message" where there was a mistake in identification. This was not a case where potential offenders rationally weigh up the advantages and disadvantages of the course of conduct and are deterred from shooting people by reason of the sentence on the applicant. The case was also contrasted with culpable driving, a far more prevalent crime, in which general deterrence was of considerable importance. This was not a case, it was submitted, where the deterrent principle must take priority or one where it was appropriate to take the "grave step to decide to impose upon young men previously of good character, the potentially devastating and corrupting influence of a prison term."[43]. It was submitted that the sentence of four years' imprisonment was too high, given the momentary lapse that occasioned the crime, the applicant's age, good character, and exemplary behaviour afterwards, his assistance to the authorities and his remorse. It was said that the "grave step" had been too easily taken, especially given the submission from the prosecution. The applicant had now completed terms that were imposed in other unusual manslaughter cases.

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Judgment (94 paragraphs)

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