R v Osip [2000] VSCA 237

13. On 19 February 1999 the applicant, Robert John Osip, when hunting for deer, shot and killed Gary Francis Paterson (whom I shall call "the deceased"). On 22 May 2000 he was found guilty of manslaughter by a jury in the Supreme Court. The Crown case had been put as one of negligent manslaughter. The maximum penalty for manslaughter is imprisonment for 20 years. The applicant, who was born on 27 August 1978, has no previous convictions. Having heard a plea in mitigation of penalty, in which two witnesses were called, the trial judge on 26 May 2000 sentenced the applicant to be imprisoned for four years and directed that he serve a period of one year before being eligible for release on parole. His Honour made a declaration of three days' pre-sentence detention.

17. The applicant admitted, pursuant to s.149A of the Evidence Act 1958, that a bullet discharged from his firearm struck the deceased and killed him. The evidence showed that this occurred at Warburton East in the Yarra State Forest just off the McDonald Track roughly 200 metres south of the Woods Point-Warburton Road. The deceased resided in the locality, at 19 White Gum Drive, East Warburton, which is in a residential area a little distance to the north of the Woods Point-Warburton Road.

20. 5 The Yarra State Forest is open to the public to enter. It contains wild deer of the Sambar species. The hunting of Sambar deer is permitted in it all year round; and most lawful leisure activities are permitted, including dog walking, picnicking, bushwalking, cycling and off-road motorcycle riding. An average Sambar adult deer stands 50 inches at the shoulder and could be likened to a cow or a pony in size. The males have antlers. Sambar deer inhabit tall open forests rather than paddocks, with the result that the range at which they can be positively identified is restricted.

23. A booklet called "Victorian Hunting Guide", published by the Department of Natural Resources and Environment, is annually forwarded by post to every licensed hunter. Amongst other things, it re-states the Firearms Safety Code. The latter is a booklet which is given to all persons applying for a shooter's licence before they attend a Firearms Safety Course. That course is of some 2½ hours' duration and during it those attending are instructed in the safe handling of firearms in the field, amongst other things. After it they are examined in relation to firearm safety and the law relating to firearms. The Firearms Safety Code sets out the Firearms Safety Rules, the fourth of which reads:

"IDENTIFY YOUR TARGET AND WHAT IS BEHIND IT".

"Make sure of your target before firing. It is not good enough to just think that what you see is your target.".

REMEMBER: DO NOT FIRE AT MOVEMENT ONLY DO NOT FIRE AT COLOUR ONLY DO NOT FIRE AT SOUND ONLY DO NOT FIRE AT SHAPE ONLY

Your target must be positively identified before firing; if in doubt, DON'T SHOOT. In the early morning or late evening, it is not easy to see clearly. Be sure the object you are aiming at is clearly identified and that it is in full view before you shoot."

The evidence of witnesses concerning the examinations administered to applicants for licences differed slightly as to the content of the examinations, but they did agree that all questions relating to the eight basic safety rules had to be answered correctly and that otherwise the applicant is deemed to have failed and the application is refused.

30. The applicant attended a Firearms Safety Course on 8 December 1997 and passed the examination satisfactorily.

33. According to Senior Constable O'Reilly, an accredited firearm safety instructor and immediate past national President of the Australian Deer Association, the most important thing for a shooter in the area where the deceased was shot, who thought that there might be a deer present, was to identify the target. That requires that the shooter must actually sight the animal and be able to recognise the body shape and the colour of the deer and to distinguish it from all else within the environment. Even though one had not found other people in the area on past visits to it, one must always, he said, expect the unexpected and the decision to shoot must be made on what is found in front of the shooter on the particular day.

36. In the 12 months up to 19 February 1999 the applicant and one Brian Anthony Davey had gone hunting for Sambar deer in the same locality 30 to 40 times. The hunting area which they frequented was about 1½ to two kilometres away from the Woods Point Road along the McDonald Track. In 1998 Davey and the applicant had been told by one Rolls, a local resident, himself an experienced shooter and a longstanding member of the Australian Deer Association, who had driven to the intersection of the McDonald Track and Woods Point Road as a result of hearing a number of gunshots consistent with ones from a high powered rifle, that it was not a good idea to shoot in an area close to houses on the main road.

39. During the afternoon of Friday 19 February 1999 Davey and the applicant arranged by telephone to hunt for deer in the Warburton East area during the remaining daylight before going fishing after dark in the same locality. The applicant collected Davey in his Mazda 323 station wagon. Davey took with him a .303 rifle and the applicant carried a .270 Whitworth rifle. That type of rifle was developed for the purpose of hunting medium to large game including Sambar deer. They parked near the gateway to the McDonald Track at about 5.20 p.m. They expected to have some three hours of daylight left. Taking their hunting equipment, including their rifles, which were not loaded at that stage, they walked south along the McDonald Track. When they were near a small pile of crushed rock beside the track, Davey heard the applicant say, "Did you hear that?" and saw him walk over to the downhill side of the track. Davey continued to walk on with his unloaded rifle slung over his shoulder. He then heard a gunshot from behind. He turned around and saw the applicant holding his gun, which was pointing down into the bush. He heard another voice call out, "I've been shot". The applicant said that he thought he had shot someone.

42. The applicant appeared to panic. He came towards Davey and handed him his gun and backpack and the empty cartridge case from the round just fired. With the applicant in the lead they went further along the track to get to a grass track which led back to the area below where the applicant had been standing. They reached a small clearing where they saw the deceased a little above them. The applicant went to the deceased, checked for vital signs and removed the red and white check jacket which the deceased was wearing. They dragged and hauled him up the slope to the McDonald Track. The applicant went back to his car and drove it to where the deceased and Davey were. They put the deceased into the rear of the car and the applicant drove off to the Warburton Hospital. Davey remained at the scene. While he was waiting, a small black and white dog appeared. The deceased owned such a dog.

45. Shortly before 6 p.m. an off-duty employee of the Warburton Hospital saw the applicant dragging the deceased to the main entrance of the hospital. A nurse attended to the deceased. She was unable to find any sign of life and called an ambulance and the local doctor. She asked the applicant what had happened. He told her that he had shot the deceased and that he had been hunting with a friend when it happened. He told her that about ten minutes had elapsed since the shooting and that he had come from Toolangi Forest. Toolangi Forest was a long way away, past Healesville. He said that he thought the deceased had been walking a dog because he saw a dog nearby. A doctor attended at 6 p.m. and confirmed that the deceased was dead.

48. Sergeant Van Gorp and Senior Constable Colquhoun attended the hospital at about 6.20 p.m. The applicant told Colquhoun that he had fired the shot which injured the deceased. Colquhoun cautioned him and took his particulars. In a conversation with Van Gorp the applicant said that he had shot the deceased accidentally. He said that he and Davey were deer hunting in a brush track. They were walking through the bush. He heard noises and shot in the direction unaware that anyone else was in the vicinity. He heard groaning and found the deceased down the embankment, shot.

51. Constable Hilary Baker, who had also attended, was directed by Van Gorp to obtain a statement from the applicant. When cautioned and told his rights, the applicant said that he just wanted to do whatever he could to help. A little later she asked him whether he wanted to tell her anything about the shooting. He said, "I thought it was a deer." He said that after arriving at the McDonald Track, he walked through the scrub for about 600 or 700 metres into the track. "I heard a noise like a deer. I saw a shape and put my gun up, identified it and pulled the trigger. Then I heard a groan sound ... and I realised that I had hit someone." Baker took a statement from the applicant. She wrote it down, asked him to read it and initial any alterations that she had made and he did so. He acknowledged that it was true and correct. In the course of the statement he said:

"I wandered about 6 or 700 metres up the track and I heard a noise like a large animal pushing its way through the scrub. I walked to the edge of the track and looked down into the bush but was unable to see anything. This area is where there are a lot of deer. I stopped and listened and I heard the noise again. I looked in the direction of the noise and saw movement in the trees and I put my gun up to my shoulder and pulled the trigger. I heard what sounded like something heavy falling over and groaning ... and I realised I had shot a person. I then ran down to the fire track and looked up and I saw a person [lying] on their back on some logs. I ran down to this person and it was a man. There was a dog that ran away from me. ..."

55. A post-mortem examination of the deceased showed the gunshot entrance injury on the back right-hand side of the deceased's shoulder. The projectile appeared to have entered at a downward angle of 45°. There was no exit wound and fragments of the bullet jacket and lead were found in the deceased's chest. The bullet damaged ribs, the lung, the liver and major blood vessels causing massive bleeding, from which the deceased died.

58. According to a ballistics expert, there was no exit wound because the bullet functioned as it was designed to do, having expanded upon entry and expended its energy entirely within the deceased. If the bullet had been fired from the rifle into the air at an angle of about 29° above horizontal it would have travelled for approximately 4,000 yards before striking the ground.

61. A survey map prepared on the basis of what was found at the scene and of Davey's evidence as to the position of the applicant and himself showed that the applicant's position when he fired was just over 180 metres from the road, that where the deceased was found was 10.2 metres from the applicant's position when he fired and that the angle of the slope between them was 45°.

64. In the defence case, the applicant gave evidence and called five witnesses to his good character. He himself gave evidence-in-chief that as he walked along the McDonald Track and approached the pile of crushed rock he heard a noise coming from down in the scrub on his left. He walked over to investigate and did not see anything. He was about to walk away when he heard the noise again. He looked down and "saw the shape of the lower neck of a deer and the upper shoulders of that deer." It was very dark brown, almost black, in amongst the trees. He did not see a red and white jacket. He did not see any man. He was "one hundred per cent sure" that he was looking at a deer. He raised the rifle to his shoulder, sighted it to the target, identified it as a deer and pulled the trigger, firing one shot. He then heard the sound of something heavy falling on the ground and heard a voice say something like, "Oh shit" or "I've been shot". He then described discovering the deceased, bringing him up to the track and taking him to the hospital.

67. 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.

70. In further cross-examination he accepted evidence that the deceased was approximately ten metres away from him when he fired. To the question, "[T]he target you aimed at you hit?". He said, "Yes".

74. His Honour charged the jury as to the elements of the offence of negligent manslaughter in unexceptionable terms according to the authorities[1]. He told them that in order to prove manslaughter by criminal negligence the Crown must establish, first, that the applicant caused the death of the deceased, in the sense that the act or acts performed by him was or were the substantial cause of death; secondly, that that act or those acts was or were performed consciously and voluntarily; and, thirdly, that the act or acts was or were criminally or grossly negligent. In explaining the third element, his Honour said that the Crown must prove to the jury's satisfaction that 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, and which involve such a high risk that death or serious bodily injury would follow, that the doing of the act or acts merits criminal punishment." His Honour pointed out to the jury that, although it was a matter for them, the sole issue in the case was whether the act of the applicant could be characterised as grossly negligent as he had defined that concept.

77. His Honour immediately turned to a brief and preliminary summary of the respective contentions of the prosecution and the defence. He told the jury that the Crown submitted that the firing of a high powered rifle designed to kill in an area, close to the roadway and in the vicinity of houses, which was used for recreational purposes and where, as a consequence, one could expect people to be, coupled with the breach of basic firearm safety procedures, in failing adequately to identify the target, created a situation which involved a high risk that death or serious injury would occur and the act of firing constituted such a great falling short of the standard of care a reasonable person would have exercised that it merited criminal punishment. The defence, on the other hand, submitted, he told them, that the case was one of a tragic accident and no amount of hindsight could transform it into a criminal offence. The area itself was one where it was legal to hunt and was relatively isolated. Moreover, the shot was fired down a steep slope into an area of undergrowth. In the circumstances one would not expect a person to be there. The jury should accept that the applicant did endeavour to identify his target, even if he was mistaken about it. It was clear that he did not see the deceased and the deceased may not have been visible to him. Even if the jury found that there was some negligence it was mere negligence falling far short of the gross negligence required for conviction.

80. No exception was taken to his Honour's direction as to the elements of the offence or to his Honour's brief summary or later more detailed summary of the respective contentions.

84. By notices filed on 5 June 2000 the applicant seeks leave to appeal against conviction and against sentence.

88. The grounds of proposed appeal against conviction are:

"1. The learned trial judge erred in that he failed wholly or adequately to direct the jury as to the relevance of the applicant's belief. 2. The learned trial judge ought to have directed the jury that if the accused honestly but mistakenly believed he was firing at a deer then such a belief was a defence. 3. The learned trial judge ought to have directed the jury that if the accused fired the shot in the honest belief that he was shooting at a deer (a) he was entitled to be found not guilty; (b) if the jury were left in a reasonable doubt about the matter the proper verdict was not guilty. 4. Alternatively to grounds 1-3 the applicant's belief needed to be reasonable."

92. In his oral argument in support of the application concerning conviction, Mr. Ross made essentially one submission. This was that a miscarriage of justice occurred because the trial judge on the evidence was bound, but failed, to direct the jury that it was for the Crown to exclude beyond reasonable doubt the possibility that, when he fired, the applicant honestly and reasonably, although mistakenly, believed that he was firing at a deer. Although grounds 2 and 3 of the intended appeal are couched simply in terms of an honest belief, Mr. Ross proceeded in his written outline as well as in his oral argument on the footing that the belief must be reasonable as well as honest. That is the alternative which ground 4 postulates. It has now been held at the highest level in England and Canada that, for the purposes of this "defence", it is sufficient that the belief be honest[2]; but, no doubt because of the High Court cases mentioned below and others, it was accepted that for Australia the belief had also to be reasonable.

95. Mr. Ross readily acknowledged that the trial judge had not been asked to give the direction now propounded and that no exception had been taken on the ground of the judge's failure to do so. Moreover, both counsel before us were in agreement that the argument had not been put by the defence at the trial.[3] Nevertheless, Mr. Ross submitted, it was the duty of the trial judge to identify issues for the jury and direct them properly on those issues, and that, assuming that his Honour was bound to give the propounded direction, a miscarriage of justice occurred by reason of his failure to do so and this Court had a duty to intervene. On the same assumption, I accept the submission.

98. Mr. Ross then submitted that, assuming that the "defence" of an honest and reasonable belief in a state of facts which, if true, would make innocent the act for which a person was charged was available where the charge was manslaughter by criminal negligence, the evidence in this case did raise the issue of such a belief, so that, if his legal submission was correct, the direction was required. Mr. Ross referred to the applicant's lack of any previous conviction and to the strong evidence of good character given by five witnesses and submitted, in reliance on Melbourne v. The Queen[4], that the dual presumptions arose that the applicant was unlikely to commit an offence and that what he said could be relied on. He submitted further that it did not matter whether the applicant's belief was right or wrong or, as I understood him, whether this Court thought (or the judge would have thought) the belief unreasonable. I have already set out in some detail the evidence bearing on this matter, and in particular the various statements made by the applicant on the night of the shooting and in the witness box. Criticism can be made of the lateness of the developed version given in the witness box, though it must be remembered that at the hospital on the evening of the incident the applicant was very upset. I find no need to discuss the various views debated in argument as to what the applicant saw and did. I am prepared to accept that it cannot be said that the issue did not arise on the evidence: I think, with some hesitation, that it could not be held that it was not open to the jury to find that the applicant had a relevant belief that was reasonable.

101. Manslaughter is a crime at common law. Although Mr. McArdle initially submitted that the defence of honest and reasonable mistake applied only to statutory offences, it is clear that it applies, and indeed applied originally, to offences against the common law, and as so applying has existed since at least 1639: R. v**.** Levett[5]; R. v. Tolson[6]; Bank of New South Wales v. Piper[7]; Thomas v. The King[8]; Proudman v. Dayman[9] and He Kaw Teh v. The Queen[10].

104. 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.

107. The linch-pin of the argument for the applicant consisted in two passages from the judgment of McIntyre, J. (with whom L'Heureux-Dubé, J. agreed and Lamer, J. (as he then was) substantially agreed) in the decision of the Supreme Court of Canada in R. v. Tutton & Tutton[15]. That was a case arising under two sections of the Canadian Criminal Code. The indictment as drawn included two offences, namely, manslaughter through criminal negligence causing death and the "included offence" of failing, without lawful excuse, as a parent to provide the necessaries of life for a child contrary to s.197 of the Code. Criminal negligence was defined by s.202 of the Code as by act or omission showing wanton or reckless disregard for the lives or safety of other persons. That, of course, is a higher standard of culpability than gross negligence as judicially defined for manslaughter in Victoria. The defence was that, so far as the Crown case rested on the failure to provide insulin, the Tuttons honestly believed that the victim, their son, had been cured by divine intervention. This raised the defence of an honest mistake of fact. They also argued that, so far as the Crown case depended upon failure to provide timely medical assistance, they were unaware that their son was seriously ill as a result of the withdrawal of insulin and therefore their conduct could not be said to show a wanton or reckless disregard for the life or safety of their son. So far as lawful excuse within s.197 is concerned the trial judge charged the jury that a religious belief that God had told them that it was not necessary to give insulin to the child was not a lawful excuse. That direction seems to have escaped appellate criticism.

110. The first passage relied on reads[16]:

"Negligence connotes the opposite of thought-directed action. In other words, its existence precludes the element of positive intent to achieve a given result. This leads to the conclusion that what is sought to be restrained by punishment under s.202 of the Code is conduct, and its result. What is punished, in other words, is not the state of mind but the consequence of mindless action."

His Lordship went on to state that the section required an objective standard. The test was that of reasonableness and proof of conduct which revealed a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances would justify a conviction of criminal negligence. In the view that the standard was objective McIntyre, Lamer and L'Heureux-Dubé, JJ. differed from the other three members of the court who were parties to the decision, Dickson, C.J.C. and Wilson and La Forest, JJ. In fact the court's discussion of this question was, strictly, obiter, for all members of the court agreed with the Ontario Court of Appeal that there had been a misdirection and that a new trial was accordingly required. McIntyre, J. went on further to say that the application of an objective test must not be made in a vacuum and that the decision about it must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts. That perception was, however, to be considered only in order to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of the facts, was reasonable. That was particularly true where, as there, the accused had raised the defence of mistake of fact. If an accused under s.102 had an honest and reasonably held belief in the existence of certain facts, "it may be a relevant consideration in assessing the reasonableness of his conduct".[17] For example, a welder engaged to work in a confined space, believing on the assurance of the owner of the premises that no combustible or explosive material was stored nearby, should be entitled to have his perception before the jury on a charge of manslaughter when his welding torch caused an explosion and consequent death.

115. The second passage relied on follows that discussion immediately and is as follows[18]:

"As noted earlier, the Tuttons raised the defence of mistake of fact at trial. They argued that the failure to supply insulin was based upon the belief that the child had been cured by divine intervention and that the failure to provide medical care in timely fashion was based upon the belief that the child was not seriously ill... The trial judge, it was argued, was in error in telling the jury that for any such belief to be effective as a defence it must have been reasonably held. It was held in this court in Pappajohn v. The Queen[19] ... that an honest, though mistaken, belief in the existence of circumstances which, if present, would make the conduct in question non-culpable would entitle an accused to an acquittal. It was also held in Pappajohn that the honest belief need not be reasonable, because its effect would be to deny the existence of the requisite mens rea."

As I understand it, this passage was relied on as showing that mistake of fact is a "defence" to a charge of manslaughter by criminal negligence. The passage continues:

"The situation would be different, however, where the offence charged rests upon the concept of negligence, as opposed to that of the guilty mind or blameworthy mental state. In such a case, an unreasonable though honest belief on the part of the accused would be negligently held. The holding of such a belief could not afford a defence when culpability is based on negligent conduct. I would therefore conclude that the trial judge made no error in charging the jury to the effect that any mistaken belief which could afford a defence in a charge of criminal negligence would have to be reasonable."[20]

121. I would not be prepared to hold on the basis of the passages relied on that in a case such as the present the trial judge was bound to give the jury an additional direction as to the "defence" of honest and reasonable mistake. The passages do not form part of a ratio decidendi of the case, though I would acknowledge that, when a decision of a court such as the Supreme Court of Canada is being considered by a Australian court, the more important consideration is the cogency of the reasoning. Secondly, it is a case of omission and turns very much upon provisions of the Code. Thirdly, and importantly, McIntyre, J. set out[21] what he said was "the manslaughter portion of the charge" quoted in the leading judgment in the Ontario Court of Appeal and a further portion of the charge in which the trial judge recapitulated the "essential ingredients that make up this [offence]". The significant point is that neither portion of the charge included the direction now contended for. The involuntary "manslaughter portion of the charge" in particular was approved by the Ontario Court of Appeal and the Supreme Court. It was, in the opinion of those courts, only a reversal of the onus of proof in relation to lawful excuse under s.197 flowing through to the manslaughter case that occurred towards the end of the recapitulation that brought the verdict down.

124. 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.

127. Besides Proudman v. Dayman and Jiminez, neither of which was a manslaughter case, Mr. Ross cited Zecevic v. Director of Public Prosecutions (Victoria)[28] and Viro v. The Queen[29] as supporting his submission denying subsumption. In my view, they do not do so. They treat reasonable belief as an objective concept. It is true that in Viro it was said to be "not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself". But the standard is still what is reasonable. If in the area of mistake the reasonableness of the belief must be determined by reference to all the circumstances in which an accused found himself, the test is still objective. If in that area reasonable belief were a subjective concept it would seem to add little to the requirement that the belief be honest, whereas in Australian law it must be both honest and reasonable. As regards gross negligence, in Adomako[30] Lord Mackay of Clashfern, L.C., with the concurrence of all other members of the House of Lords, said that whether a breach of duty should be characterised as gross negligence and therefore as a crime would depend on the seriousness of the breach "in all the circumstances in which the defendant was placed when it occurred". The jury would 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. The essence of the matter was "supremely a jury question". That makes it clear that the test of gross negligence is objective albeit that it is determined in the context of the circumstances in which the accused is placed.

130. In support of the submission that there is no subsuming reference was also made to the dissenting judgment of Wilson, J. in He Kaw Teh[31] already mentioned and to the judgment of Dawson, J.[32]. To my mind, the first passage does not assist on the topic. In the second passage Dawson, J. passed from a brief consideration of common law offences requiring proof of the intent to a consideration of statutory offences containing no mental element to be proved as an ingredient. In that context he said:

"The defence of honest and reasonable mistake stems from the common law requirement of a guilty mind and it is not, as it is sometimes put, a defence based solely or even primarily upon the absence of negligence: cf. Reg. v. Sault Ste. Marie[33]; Howard, `Strict liability in the High Court of Australia', Law Quarterly Review, Vol.76 (1960), p.547."

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.

135. Although neither counsel cited any North American authority on the question for decision, I mention for completeness that internet searches reveal that in several states of the United States of America and provinces of Canada homicides resulting from the activities of deer or moose shooters are not infrequent, and there are quite a few official and unofficial reports of resultant law cases. For one reason or another, however, the cases which have come to my attention are, with one partial exception, of no real assistance. The exception is People v. Cummings[39]. The defendant had been convicted of involuntary manslaughter following a jury trial. A few minutes prior to the official opening of the deer hunting season the defendant, who was already in position for hunting, heard something. He looked up, thought he saw a deer with antlers, and fired twice. After the second shot he heard the victim yell and fall to the ground. Although the defendant's conviction was vacated for a reason quite immaterial for present purposes, the Michigan Court of Appeals expressly approved as according with established law the trial judge's charge as to the elements of involuntary manslaughter and the matters to be proved to establish gross negligence. Significantly, those directions contain no reference to an honest and reasonable mistake or an honest mistake, notwithstanding that the facts would suggest that the "defence" was open. Indeed, the Court of Appeals rejected a complaint that the trial judge erred in failing to instruct the jury on the defence of accident, holding that it was not a defence. I appreciate both that resort to American authority can, because of conceptual or statutory differences, be dangerous and that the case cannot be treated as a direct or express authority against the applicant's essential contention, for the matter may not have been argued. But, subject to the first caution, it at least points strongly against the contention.

138. Neither counsel was able to refer the court to any textbook or other work of reference dealing directly with the question for decision here. Nor have I found any that does so.

141. It is significant, though not decisive, that, when the same point as is now raised must have been available in many cases over the years, there is no case directly supporting the applicant's essential contention. For the reasons I have given, I do not accept it and would dismiss the application for leave to appeal against conviction.

145. I turn to the application relating to sentence. The grounds of proposed appeal against sentence are:

"1. The learned sentencing judge erred in accepting (a) that the offence occurred in the vicinity of residential property. (b) that the advice proffered by Mr. Rolls as to the inadvisability of shooting in the area was accepted by Mr. Davey and not by the applicant. 2. The learned sentencing judge erred in failing to give adequate weight to factors personal to the accused. 3. The learned sentencing judge erred in placing weight on rehabilitation when the evidence and the judge's own findings of fact demonstrated that such a concept was irrelevant. 4. The learned sentencing judge erred (a) in concluding that general deterrence alone merited a custodial sentence. (b) in failing to take into account the absence of any evidence of like offences. (c) in assuming that ordinary folk could be deterred from making mistakes. 5. The learned sentencing judge failed to give adequate weight to the submission of the prosecutor that the offence did not call for a custodial sentence. 6. The learned sentencing judge erred in law and logic by imposing a sentence of imprisonment to reflect an element of general deterrence while finding that the circumstances giving rise to the offence were rare. 7. The sentence was manifestly excessive."

149. Ground 1 took exception to the following statement of his Honour in the course of his sentencing remarks:

"Your actions on this day breached [the Firearms Safety Code]. Not only that, you fired in an area near a main road, and an area in the general vicinity of residential property. You had previously been cautioned by Mr. Rolls about the inadvisability of shooting in this area - advice apparently heeded by your companion, Brian Davey, but not yourself. Although you had seen only one four-wheel drive vehicle ... you should have been alert to the possibility of persons being in the area, at least in the vicinity of the main road."

It was argued that his Honour had overstated the evidence. As to para.(a) of the ground, Mr. Rolls had assented to the proposition that below (that is, south of) the Warburton-Woods Point Road there was open farming land (scil. to the west of the State Forest). North of that road the area of Whitegum Drive was residential, with about 50 houses there. Mr. Rolls himself lived in Brahams Road on the south side of the Warburton-Woods Point Road. It was said that the argument was about the word "vicinity". I have considered the evidence referred to in argument. Bearing in mind that the applicant was only some 180 metres from the main road when he fired the fatal shot, I think that the finding was open to his Honour.

154. As to para.(b), it is true that Mr. Rolls said in chief and in cross-examination that he had a concern that there could be danger if one was on the highway and the applicant and Davey were firing in that direction. But it is also true that in chief and in re-examination he said that he told the applicant and Davey that he did not think that "shooting in the area being so close to houses" was a good idea. He told them, "[T]here are houses here". Again, the question is one of degree. Mr. Rolls' warning was a general one. I think on balance that the finding was open to his Honour. In any event it was a very subsidiary finding about the offence.

157. Grounds 2 and 3 were argued together. It was submitted that the accused was of good character and, given the nature of his crime, was not in need of rehabilitation. That was to his credit even more than if he were in such need, reference being made to R. v. McCormack[40]. It was submitted that the applicant's good character ought to be given much greater weight where, as here, the crime involved inadvertence or a momentary lapse and R. v. Phelan[41] was cited by way of contrast. In my opinion, it is clear from the sentence that his Honour took account of and gave weight to numerous factors personal to the applicant which his counsel had put before his Honour. Whether he gave adequate weight is best considered under ground 7. As to rehabilitation, his Honour used that concept entirely by way of mitigation of penalty, giving "little, if any, weight" to specific deterrence and making the non-parole period very short in comparison with the head term of imprisonment. After referring to general deterrence, his Honour said, "On the other hand, rehabilitation should be accorded considerable weight." I do not consider that objection can properly be taken to that sentence, for the weight there referred to worked entirely in mitigation of penalty. It may be that his Honour's earlier statement, "[Y]our prospects of rehabilitation are excellent", might better have been couched in terms of rehabilitation achieved; but his Honour had already set out the facts concerning achieved rehabilitation and, in my view, the short passage in what, after all, his Honour indicated was a summary of what had gone before does not detract from the preceding details. Nor would I treat a like expression towards the end of the sentencing remarks as constituting specific error.

160. The last four grounds were argued together. As to ground 5, as was acknowledged in reply, his Honour was not bound by the prosecutor's submission to him. Moreover, what the prosecutor said after having submitted that the circumstances of the offence warranted a sentence of imprisonment was that he did not submit that a suspended sentence would be inappropriate, that the circumstances did not necessarily demand the immediate service of a sentence. But he made it clear twice that it was a matter for his Honour. The judge was entitled to disagree, as he did, with the prosecutor.

163. 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.

166. I do not accept the submissions about deterrence. In my opinion, his Honour was amply entitled to find, consistently with, if not as required by, the verdict of the jury, that the applicant's actions on the day breached Rule No.4 in the Firearms Safety Code. There may have been a mistake in identification, but the applicant had not made sure of his target and had not positively identified it. What the sentence was aimed at deterring was a gross departure from the standard of care which reasonable persons would exercise in relation to the discharge of firearms and in particular breach of Rule 4 of the Firearms Safety Code. It may well be that similar offences are rare in Australia (though not in North America), but that does not mean that his Honour erred in giving effect to the sentencing purpose of general deterrence. The case was an appropriate vehicle for giving a timely warning to shooters. Had the type of offence been prevalent, a more severe penalty might have been appropriate. It must not be overlooked that, as a result of what a jury found to be gross negligence, a man's life was ended. For the foregoing reasons, no part of grounds 4 and 6 is, in my view, made out.

169. There being no specific error, I turn to consider whether the sentence was manifestly excessive. That question does not admit of much argument. The question is not what this Court might, if sentencing the applicant, have imposed, but whether the sentence, both as to its nature and its length, was within the range open to the sentencing judge in the circumstances of the offence and the circumstances of the offender. In my opinion, his Honour was clearly entitled, if not bound, to impose a sentence of imprisonment. Although I regard the term of four years imposed by his Honour as, in all the circumstances mentioned, somewhat severe, I have concluded that it was within the range open to him, bearing in mind that this manslaughter arose out of the grossly negligent use of a notoriously lethal weapon in relatively close proximity to a main road and human habitation. Unless the length of term open to his Honour did not exceed three years, no question of suspension could arise. I have no doubt that his Honour was entitled to require the applicant actually to serve a period of one year's imprisonment. Because each case depends so much on its own facts, reference to other unusual cases is of little assistance. The fact that the applicant has completed terms imposed in other such cases does not assist in the resolution of ground 7.

172. In coming to the conclusion that none of the grounds relating to sentence has been made out and that this application also must be dismissed, I have been well aware of the momentary nature of the offence and of all the extremely favourable personal matters referred to in the submissions for the applicant. Like the sentencing judge, I regard this as a truly sad case and am very conscious of the anguish that must have been caused to the applicant and his family as well, of course, as to the family of the deceased. But I must give effect to my view that no ground for interfering with the sentence is made out.

[1] Nydam v. R. [1977] VicRp 50; [1977] V.R. 430 at 444-445; Wilson v. The Queen [1992] HCA 31; (1992) 174 C.L.R. 313 at 333; and R. v. Tomac [1996] SASC 5638; (1996) 67 S.A.S.R. 376 at 381-382 (a case in which the trial judge had used going shooting as an example); cf. R. v. Pacino (1998) 105 A.Crim.R. 309 at 320-321; and R. v. Adomako [1994] UKHL 6; [1995] 1 A.C. 171 at 187.

[2] B (A Minor) v. D.P.P. [2000] UKHL 13; [2000] 2 W.L.R. 452, HL, and Pappajohn v. The Queen [1980] 2 S.C.R. 120, Supreme Court of Canada.

[3] It seems to me that defence counsel came very close to doing so when, for instance, he spoke of his client firing a gun "believing there to be a deer" and asked the jury, "Why is that unreasonable at all?". At other times he said that his client could be believed (i.e. was honest) and that he had obviously made a mistake.

[4] [1999] HCA 32; (1999) 198 C.L.R. 1.

[5] (1639) Cro.Car. 538; 79 E.R. 1064.

[6] (1889) 23 Q.B.D. 168, esp. at 181 per Cave, J.

[7] [1897] A.C. 383 at 389-390.

[8] [1937] HCA 83; (1937) 59 C.L.R. 279 in the judgment of Latham, C.J. and esp. in that of Dixon, J. (with whom Rich, J. agreed) at 300-306, 309 and 311.

[9] [1941] HCA 28; (1941) 67 C.L.R. 536 at 540 per Dixon, J. (a case of a statutory offence).

[10] [1985] HCA 43; (1985) 157 C.L.R. 523 esp. at 532 per Gibbs, C.J.

[12] (1998) 105 A.Crim.R. 309.

[14] [1952] HCA 55; (1952) 87 C.L.R. 115.

[15] [1989] 1 S.C.R. 1392; (1998) 48 CCC (3d) 129. The case has been discussed in later decisions of the Supreme Court of Canada, but not, so far as I am aware, relevantly for present purposes. The discussion has principally concerned the nature of the test for criminal negligence - objective, modified objective, or subjective.

[17] At (S.C.R.) 1432; (CCC) 141 (emphasis added).

[19] [1980] 2 S.C.R. 120.

[21] At (S.C.R.) 1425 and 1426; (CCC) 136 and 137.

[22] At 389-390 ("the absence of mens rea really consists in an honest and reasonable belief ... which, if true, would make the act ... innocent").

[24] Compare in relation to statutory offences Proudman v. Dayman and Jiminez v. The Queen [1992] HCA 14; (1992) 173 C.L.R. 572 at 583.

[27] Brett, Waller and Williams, Criminal Law - Text and Cases, 7th edn., para.1.14ff and Smith and Hogan, Criminal Law, 8th edn., 222 and 223 (though English law on the point must now be approached with some caution).

[28] [1987] HCA 26; (1987) 162 C.L.R. 645 at 658-659.

[29] [1978] HCA 9; (1978) 141 C.L.R. 88 at 146-147.

[33] [1978] 2 S.C.R. 1299, where, I would add, as in He Kaw Teh, a statutory offence was in question.

[35] (1992) 29 N.S.W.L.R. 497 at 509-511.

[39] (1998) 580 NW (2d.) 480.

[40] [1981] VicRp 11; [1981] V.R. 104 at 110.

[41] (1993) 68 A.Crim.R. 446 at 448.

[42] [1968] HCA 66; (1968) 119 C.L.R. 47 at 68 per Windeyer, J.

[43] R. v. McCormack at 110 (a case of riot); cf Vartzokas v. Zanker (1989) 51 S.A.S.R. 277 at 280 (assault occasioning actual bodily harm).