REYNOLDS, Mathew v Regina

Overview of the Proceedings

1. The following paragraphs address the factual context within which the impugned trial direction takes its place. A more detailed factual analysis is set out below.
2. The case brought by the Crown against the appellant arose out of a tragic boating collision in the early hours of the morning of 1 May 2008. There were two vessels involved.
3. The appellant obtained a work boat which he had access to for the purposes of his employment. Fourteen young persons, including the appellant, were in the work boat at the time of the accident. The boat had uneventfully proceeded from East Balmain to Watson's Bay. On the return journey at about 2:30am, the appellant transferred the helm of the boat to Percy Small.
4. The other vessel was a fishing vessel referred to in evidence as the Jordons. That vessel, prior to the collision, was travelling on a course between a safe water marker located in the Harbour and the Bradley's Headland. Both boats were showing navigation lights. According to the appellant's written submissions at [19], Percy Small said that the Jordons was "Lit up like a Christmas tree" although he failed to see the vessel until the last moment. The vessels were approaching each other bow to bow. There was an issue at trial as to whether the work boat was approaching the Jordons from its starboard aspect so as to have required the Jordons to yield in order to avoid a collision. For the purpose of sentencing the trial judge found on the evidence that the Jordons was proceeding at about 8 to 9 knots and the work boat was travelling at between 20 and 25 knots.
5. The vessels collided. Six passengers were fatally injured. All of the fatally injured victims were seated along the port side bench of the work boat, except for one female who was in the port seat.
6. The defence rested essentially on two propositions. Firstly, that the skipper of the Jordons had contributed causatively to the collision. Secondly, that the Jordons was on the wrong side of the channel, as indicated by its position in relation to a safe water marker.
7. The trial judge in the course of his sentencing remarks analysed the evidence and made findings against both of the above propositions: Remarks on Sentence at pp 6-8.
8. As discussed in detail below, the trial judge gave the jury directions in the course of his summing up upon each of the elements of the offence of manslaughter including, in particular, the issue of causation. That is the issue upon which the ground of appeal focuses.
9. The particular jury question and the challenged direction given by the trial judge in answer to the question were in the following terms: JURY QUESTION: "Could we please have an explanation in relation to the charge against Mr Reynolds. Note a significant and substantial contribution etcetera. What is the legal definition of these terms. Is there any difference between the two?" (AB at p 71) TRIAL JUDGE'S ANSWER (direction): "Thank you members of the jury, I have your note. In response can I say this to you, significant and substantial are ordinary words. They do not have any particular legal definition. They are by their very nature words which are quantitative in their nature. Insofar as you ask me the difference there is no essential difference between the word 'significant' and 'substantial'. It is not a legal definition but if you require some definition of these ordinary English words the best I can do, if it helps you, is to say in reverse substantial and significant means not trivial. That is as much as I can say in response to your enquiry. If you would be good enough to resume your deliberations that is what I can tell you in response to your question." (AB at p 72)
10. The sole ground of appeal is that this answer was erroneous.

Factual Matters

1. The factual background is set out in the Crown's Submissions "A", filed 19 December 2014, as follows: "On the night of 30 April 2008 various people attended the Commercial Hotel in Balmain. The hotel had been sold and was to be handed over to the new owners the following day. Staff had been advised that their employment would not continue and the gathering was in the nature of a 'farewell' celebration. The appellant was in attendance at the hotel as was the co-accused, Mr Small, who had worked part-time at the hotel. The appellant had an employment contract with either Sydney Ship Repairs or a director of Sydney Ship Repairs. The appellant and his uncle had been residing on Goat Island and they had access to a work boat that was owned by Sydney Ship Repairs. The work boat, which was licensed to carry eight people, was available to the appellant for the purpose of transit to and from the island to access food, laundry facilities and the like. The boat was not made available to the appellant for private purposes such as recreational use or fishing (T 1059-1060, 1075). The appellant was the holder of a Certificate of Competency as a Coxswain. He was thereby authorised to undertake duties of a master and/or engineer of a vessel less than 12 metres in length with propulsion power less than 250 kilowatts (T 1164). During the course of the evening, Mr Gene Robson, who was employed as the Night Manager at the hotel, asked the appellant if he would take him, by boat, to Watsons Bay. The appellant agreed that he would do so. The purpose of the journey was to take keys to the current owners so that they could be handed to the new owners the next morning (T 249). After the hotel closed at midnight a number of persons who had been at the hotel gathered at a nearby residence, referred to by a number of witnesses as "Pondy's place". The appellant did not go to the residence. He, in the company of his girlfriend, Ashlie Ayres, went to get the work boat and he drove it to the East Balmain wharf. It became known amongst those who had gathered at the residence that there was to be an excursion on the harbour. Ultimately all twelve persons who were at the residence left and made their way to the wharf and boarded the work boat. A total of fourteen people were on the work boat when it left the wharf. Most of the persons on board the work boat, including the appellant and Mr Small, had consumed alcohol in various quantities during the night. Marijuana and cocaine had also been used by some persons. A quantity of alcohol as well as some marijuana and an implement used for the ingestion of drugs were taken on board the work boat. Cocaine was also available on the work boat. The work boat left the East Balmain wharf at about 1.23 am with the appellant at the helm. As the work boat left the wharf some fishermen who were on the wharf commented to the effect that the work boat appeared to be overloaded. The appellant responded, to the effect, that they would be 'right' (T 232, 325). The work boat proceeded east towards Watsons Bay. At some point during the journey the appellant permitted one of the passengers, Mr Jarrod Chivers, to drive the work boat for a period, estimated by Mr Chivers to be about 5 minutes (T 435). Mr Chivers was the holder of a boat licence (T 434). Mr Robson gave evidence that when he observed Mr Chivers driving he expressed concern to the appellant and told the appellant that he, the appellant, should be driving. The appellant then took back the helm of the work boat and drove it to the wharf at Watsons Bay (T 253). At Watsons Bay, all 14 persons on board the work boat disembarked. The female passengers accompanied Mr Robson to the premises where he delivered the keys. The other males went to a nearby park where alcohol and drugs were consumed by some of them (T 338,440). After about half an hour the 14 persons re-boarded the work boat. The appellant drove the work boat from Watsons Bay to a harbour light marker, described in evidence as the 'Wedding Cake'. Three of the males on board, including Mr Small, got off the work boat and climbed onto the Wedding Cake. While the work boat was stopped at the Wedding Cake there was some discussion about where the work boat would go next and it was decided that it would return to Balmain (T 696). After the three males reboarded the work boat the appellant drove away from the Wedding Cake, heading towards Bradleys Head. As the work boat left the Wedding Cake the appellant raised the boat's propeller to the surface of the water and revved the motor, causing water to spray in what Mr Small described in evidence as a 'rooster tail effect'. The work boat was fitted with two forward facing seats in the partly enclosed cabin. The helm was located in front of the starboard seat. Behind the two forward facing seats were two inward facing benches and most of the passengers were seated along them. When the work boat left the Wedding Cake, Mr Small was sitting on the starboard bench immediately behind the appellant who was in the front starboard seat behind the helm. Ms Ayers [sic] was seated in the front port seat. Shortly after leaving the Wedding Cake the appellant transferred the helm to Mr Small. Mr Small did not have a boat licence and had not previously driven a boat at night (T 1531, 1537). Mr Small gave evidence that the appellant looked down at him and jumped up with his right hand on the steering wheel, pointed to the driver's seat and said 'sit here'. Mr Small did so and grabbed the wheel. The appellant told Mr Small to 'head towards the green marker' (T 1537). The 'green marker' was the marker light at Bradleys Head. Mr Small gave evidence that the work boat was 'probably a degree to the left of the marker' and that he straightened the work boat to that degree and proceeded towards the green marker. Mr Small said that the appellant was on his, Mr Small's, left and standing up. When the work boat was about 400 metres from the marker, the appellant leaned over to Mr Small and told him to 'Make a hard left. That's a peninsula'. Mr Small gave evidence that he then turned the work boat to the left so that it would pass Bradleys Head by about 100 metres (T 1539). At about 2am a fishing trawler, the Jordons, left the Sydney Fish Markets at Blackwattle Bay and proceeded outbound with the intention of proceeding to fishing grounds located off the coast. The vessel was skippered by Mr Peter Evans. A deckhand, Mr Douglas Seiffert, was also on board. At about 2.30am the Jordons rounded Bradleys Head. Mr Evans gave evidence that when he did so the safe water mark was nearly directly behind him (T 757). At the trial a number of witnesses expressed differing views of what was required of vessels passing by the safe water mark. After the Jordons rounded Bradleys Head the two vessels, the Jordons and the work boat, were on courses with their respective bows generally approaching each other. Neither Mr Evans nor Mr Small sighted the other vessel in time to be able to avoid a collision. The vessels collided and the metal anchor fairlead of the Jordons swept along the port side of the work boat (T 1299-1300). The six fatally injured persons were all seated on the port side of the work boat. During the course of cross-examination Mr Evans denied that his vessel was on auto pilot (T 855). He denied that he was not at the helm of the vessel. He denied he was not keeping a proper lookout and he denied that he was on the wrong side of the channel (T 856, 858). There was agreement amongst the expert witnesses who gave evidence as to the speed of the vessels at the time of impact. The Jordons, a displacement vessel, was travelling at a speed of about eight to nine knots and the work boat, a planing vessel, was travelling at between twenty and twenty-five knots (T 1292, 1293). There was evidence that a speed of twenty-five knots was not normally considered to be excessive in that part of the harbour (T 1345). The expert witnesses agreed that the angle of collision was approximately 15 degrees on the Jordons' starboard bow (T 1301). It was considered by those investigating the collision that the weather conditions did not appear to have been a factor in the collision. The conditions were generally very good. There was no breeze and the water surface was rippled or calm (T 1291). A blood sample was taken from Mr Small at 5.30am on 1 May 2008. Analysis revealed the presence of alcohol, the metabolite of cocaine, the active constituent of cannabis and the metabolite of its breakdown. The blood alcohol reading was 0.079 grams per 100 millilitres (T 961). Dr Judith Perl gave evidence that the various readings indicated that Mr Small had most likely used cocaine within a period of probably five or six hours of the sample being taken (T 962) and that he had used cannabis very recently, within about four hours, and probably within a shorter period (T 963). Dr Perl's evidence was that the most likely concentration of alcohol in Mr Small's blood at 2.30am was 0.124 grams per 100 millilitres. The lowest possible level was 0.109 grams per 100 millilitres and the highest was 0.154 grams per 100 millilitres (T 965). Dr Perl gave evidence that at a reading of 0.109 every aspect of one's cognitive and motor skills would be impaired, including impairment of perceptions, judgment, decision making, reaction skills and motor coordination. One's visual functions would also be impaired including a reduction of peripheral vision, as well as an affect upon one's scanning ability and glare resistance (T 965-966). Dr Perl gave evidence that a social drinker, at 0.109, would appear moderately affected by alcohol. At a level of 0.154 a social drinker could be described as 'being drunk'. At a level of 0.124 there would be significant impairment of cognitive and motor skills and the effects would be blatantly obvious to an observer (T 966). Dr Perl's evidence was that there may have been impairment due to cocaine. She said that she would expect it but that she could not say definitely that there was impairment and any impairment would be merely additive to the effects of alcohol (T 970). She said that cannabis is a depressant drug that depresses brain function. It results in similar types of impairment to alcohol with the exception that unlike alcohol it does not increase risk taking but tends to make the user more cautious. However where alcohol is also present, depending on the blood level, the alcohol might be the predominant effect. She said that recent studies had demonstrated that the effects of alcohol and cannabis combined were more than merely additive (T 972). A blood sample was taken from the appellant at 4.30am on 1 May 2008. Analysis of the sample showed a blood alcohol reading of 0.051 grams per 100 millilitres as well as the presence of cocaine and its metabolite (T 974). Dr Perl's evidence was that the minimum level of alcohol in the appellant's blood at 2.30am was 0.071 grams per 100 millilitres, the maximum was 0.101 grams per 100 millilitres and the most likely was 0.081 grams per 100 millilitres (T 975). Dr Perl's evidence was that the effect of alcohol at a level of 0.071 would be that higher levels of performance or cognitive functions and skills performance things such as perception, judgment, information processing, decision making and visual functions would be impaired. At a level of 0.071 simple motor function may or may not be impaired depending on one's level of experience with alcohol (T 975). Dr Perl said that there may have been some additional impairment due to the effect of cocaine but she could not be absolutely certain (T 976)."
2. As noted in the appellant's written submissions, the trial judge identified the principal issues at trial. Importantly, it was conceded by the appellant in his written submissions that he was the master of the vessel at the time of the collision and that he owed the passengers a duty of care.

Trial Judge's Findings

1. In his Remarks on Sentence concerning the appellant and his co-offender, the trial judge made a number of factual findings including findings that were directly relevant to the appellant's culpability including his breach or breaches of duty and the issue of causation. As the single ground of appeal relied upon by the appellant focusses upon an asserted error in a trial direction on the issue of causation, it is necessary to examine in some detail the abovementioned findings and conclusions of the trial judge in his sentencing remarks. I note that in the course of the hearing Senior Counsel for the appellant indicated that he accepted that the findings made by his Honour were consistent with the jury's verdict: T 3 February 2015 at p 7:5-15. The evidence, in my opinion, well-supported the findings. In his Remarks on Sentence the Trial Judge made the following comments: "65. The issue of breach of duty was left to the jury on the bases of three alternatives, that Matthew Reynolds permitted the navigation of the work boat by Percy Small when he knew or ought to have known that Percy Small was affected by the prior ingestion of liquor or drugs, that he failed to supervise Percy Small whilst he was at the helm of the work boat and that he failed to keep a proper look out himself for other vessels which might have been navigating the harbour waters, and to warn Percy Small of the presence of an oncoming craft. It is submitted on behalf of Matthew Reynolds that, for the purposes of sentence, I should be satisfied to the necessary standard only of the breach of the third of those stated reasons. I reject that submission and I am satisfied of his breaches of all three. 66. I accept that Matthew Reynolds would not have known the exact quantities of Percy Small's ingestion of alcohol or drugs prior to his asking him to take the helm and that Percy Small did not say anything to him about it. I recognize that Percy Small himself claimed that he was not staggering but, having regard to the evidence of Dr Perl, I am satisfied that the level of Percy Small's drug and alcohol induced intoxication was such that he would have been manifesting signs that a reasonable observer in the position of Matthew Reynolds must have appreciated Percy Small's unfitness to control the helm of the vessel. 67. Matthew Reynolds' blood analysis (from a sample taken at 4.30 am on 1 May) was 0.051 grams per 100 ml and some trace of cocaine. Dr Perl calculated that at 2.30 am the alcohol level was likely to be in the order of 0.071 grams per 100 ml. In the context, I agree with counsel's submission that the quantity of cocaine was apparently small and that the alcohol ingestion was not (in a broad sense) excessive although I note that it would still lie within the low range of offending if he had been driving a motor vehicle. The essential issue, noting that Dr Perl said that he may have had some impairment, is whether or not Matthew Reynolds should have perceived Percy Small's unfitness. I have discussed Percy Small's situation earlier and am satisfied that his impairment would have been obvious and that Matthew Reynolds ought to have appreciated it. 68. The second alternative relied on as breach concerned lack of supervision. It was submitted that Matthew Reynolds sat close to Percy Small and that the work boat was travelling comfortably in the water. That latter perhaps may offer an explanation for the circumstance that Matthew Reynolds did not watch Percy Small at the helm but rather turned his attention towards Ashlie Ayres who was sitting in the other front seat. Reference was made to Matthew Reynolds saying, according to Percy Small, words to the effect of making a hard left because they were approaching a peninsula. It does not appear that Percy Small in fact precisely made such a turn. The evidence falls far short of demonstrating that Matthew Reynolds was actually supervising him. I am satisfied that he was not so doing because his attention was being directed, as I have already said. The mere fact that Matthew Reynolds was sitting close to Percy Small did not amount to supervising him. 69. The third alternative was conceded by counsel on behalf of Matthew Reynolds. Matthew Reynolds was seated with his back to the direction in which the work boat was travelling. He probably was slightly inclined to port where Ashlie Ayres was sitting. I find this slight turn to be of no significance. Although experts testified, as referred to in written submissions, that there is no requirement only to look ahead when keeping a proper lookout I am abundantly satisfied that Matthew Reynolds was not positioned where he was, generally looking rearwards for the purpose of seeing whether other vessels were approaching from behind. 70. Those breaches of duty in cumulation demonstrate a serious departure from the standards which Matthew Reynolds ought to have observed as skipper of the work boat."
2. As the abovementioned findings indicate, the appellant's breaches of duty occurred at three levels. It is plain that they represented a serious departure from the standards that the appellant was required to have observed as skipper of the work boat: Remarks on Sentence, 25 June 2010, at [70].
3. The number and nature of the appellant's breaches of duty and, in particular, the extent to which there was a departure from acceptable standards, is directly relevant to the causation element of the offence of manslaughter charged, particularly, as expressed by the trial judge, whether the appellant's breaches of duty "… contributed significantly and substantially to the harm suffered by each of the victims which led to their deaths …": Summing Up, 31 March 2010, at p 2-28.

Summing Up by Trial Judge

1. The jury were told by the trial judge that the case was one in which involuntary manslaughter was charged, the elements of which were set out in a written statement. Additionally, the trial judge provided detailed supplementary oral directions on each element: Summing Up at pp 22-28. The jury was instructed that the Crown had to prove the four elements beyond reasonable doubt, they being: 1. That the appellant owed a duty of care towards each of the passengers on the work boat; 2. That the appellant was negligent; 3. That the breach of duty caused the death of each individual deceased; 4. That the breach of duty of care merited criminal punishment.
2. As was made clear to the jury in the summing up, the Crown case alleged negligence in one or more of the following three ways: 1. That the appellant permitted the navigation (that is control of the helm of the work boat) by his co-offender, Percy Small when he knew or ought to have known that Percy Small was affected by the prior ingestion of alcohol or drugs; 2. The appellant failed to supervise Percy Small after he put him at the helm of the work boat; 3. The appellant, having given over the helm of the work boat to Percy Small, had a continuing duty to keep a proper lookout for other vessels which were navigating the Harbour waters and he should have, if he had kept a proper lookout, warned Percy Small of the presence of an oncoming craft but that he failed to do so.

Submissions

1. As stated above, this appeal concerns a direction given by the trial judge to the jury in response to a question about causation set out at [18] above.

Appellant's Submissions

1. The appellant submitted that the trial judge erred in directing the jury, firstly, that there was no essential difference in meaning between the words "significant" and "substantial" and, secondly, that the phrase "significant and substantial" meant "not trivial". The appellant submitted that the two terms had different definitions according to the Oxford Dictionary, and that to state that the words meant "not trivial" devalued their true meaning. The appellant submitted that the error was serious because the defence at trial was based on a claimed absence of evidence on the issue of causation.
2. In the appellant's written submissions it was stated: "While dictionary definitions of 'trivial' include 'not important' and/or 'not significant' it is submitted that to direct the jury that anything other than the 'trivial' will suffice even for the term 'significant' was in the circumstances to devalue the term. It is submitted something could be of minimal probative weight and not be trivial. For instance something may be an ordinary or routine consideration although not trivial, and yet not 'important' and certainly not 'of considerable importance'. In any event, it is submitted that the term 'substantial' in this context could not be described as anything other than the 'trivial.'" (Appellant's Written Submissions at [32])
3. It was also submitted for the appellant that: "… this was an error of considerable importance in the context of this trial because much of the appellant's case was to the effect that if he was negligent, his negligence was not the substantial cause of the collision and that the substantial cause was that of Mr Evans. The jury were in effect directed that as long as any negligence on the appellant's part was found to have even slightly, although not trivially, contributed to the collision then the jury was required to find him guilty in this regard." (Appellant's Written Submissions at [33])

Crown Submissions

1. The Crown submitted that the trial judge had been correct in directing the jury that there was no difference between the terms "significant" and "substantial" in the context of legal causation. Reliance was placed in this respect upon the decision of this Court in R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 at [69]-[71].
2. The Crown observed that the current Bench Book direction on causation models the direction endorsed by the High Court in McAuliffe v The Queen (1995) 183 CLR 108 at 118, that being the use of the words significant OR substantial: Crown Written Submissions at [10].
3. The Crown submitted that although the trial judge's direction to the jury that "it is sufficient that the Crown has proved that his negligence contributed significantly and substantially to the harm" was inconsistent with the Bench Book direction and the weight of the authority, it could not have caused any injustice to the appellant because the formulation stated by the trial judge posed a more stringent test which, in fact, favoured the appellant.
4. In oral submissions the Deputy Director of Public Prosecutions, who represented the Crown in the present proceedings, drew the Court's attention to the decision of this Court in R v Andrew [2000] NSWCCA 310 in support of the proposition that there was no material difference in the way a jury would understand the word "substantial" or "significant" in a context such as arises in the present case.
5. The Crown additionally submitted that the judge was correct to direct the jury that the phrase "significant and substantial" meant "not trivial" in reverse because "not trivial" is an antonym for those terms.
6. In oral submissions the Crown emphasised: "… nowhere in that direction does his Honour say anything other than trivial will make out the offence or demeans the words in any way, shape or form. What his Honour actually just says is, in reverse, substantial and significant means not "trivial". (T 3 February 2015 at p 10)
7. The Crown submitted that, in any event, it was difficult to conceive of the appellant's actions as having been anything other than a substantial or significant cause in the collision.

Test for Causation in Homicide

1. Because this appeal is concerned with a direction made by the trial judge on the issue of causation it is necessary to briefly outline the authorities on causation in homicide cases.
2. The proper test for causation in a case such as the present was whether the accused's conduct was a 'substantial or significant cause of death.' Different formulations of this test were stated by their Honours in Royall v The Queen (1991) 172 CLR 378 ('Royall') and Osland v The Queen (1998) 197 CLR 316. Subsequently there has been some debate in the case law as to whether the terms "significant" and "substantial" are interchangeable.
3. In R v Andrew this Court, having referred to Royall, noted at [58] that "There would be no material difference in the way a jury would understand the words 'substantial' and 'significant' in this context" and then proceeded to adopt the "substantial or significant cause" formulation stated by Deane and Dawson JJ at 411 in that case. In R v Moffatt at [69] Wood CJ at CL made the following observations in relation to a trial judge's summing up: "69. On that issue of causation his Honour then correctly directed himself by reference to the fact that in Royall (1990) 172 CLR 378; 54 A Crim R 53, each of Mason CJ, Deane and Dawson JJ, and Gaudron and Toohey JJ, in their separate judgments, cited with approval: "…the comments of Burt CJ in Campbell [1981] WAR 286' (1981) 2 A Crim R 157, where the following was said (at 290; 161): '(It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.'" 70. The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J said that the accused's act or omission "must contribute significantly to the death of the victim" (at 398; [66]). Deane and Dawson JJ said that it would be sufficient if the accused's conduct "is a substantial or significant cause of death" (at 411, [77]). The "causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused" (at 412; [78]). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon "whether the act of the accused substantially contributed to the death" (at 423; [86]). McHugh J said that the wrongful act must be "An operating cause and a substantial cause" (at 444; [109]). 71. What is clear is that the act of the appellant must have more than a coincidental or insignificant effect - rather it must provide a substantial contribution towards the death of the accused: see also Smith [1959] 2 WB 35; (1959) 42 Cr App R 121; Evans and Gardiner (No 2) [1976] VR 523; Bingapore (1975) 11 SASR 469 at 480; Hallett (1969) SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression "significant" is interchangeable for "substantial" in this context (see S J Odgers and S M H Yeo, "Semantics and the Threshold Test for Imputable Causation" (2000) 24 Crim LJ 73) I am content to accept for the present purpose the latter.'
4. Finally, it is noted that the term 'substantial' in the context of causation has been said to be "a convenient word to use to indicate to the jury that it must be something more than de minimis": Royall at 442 per McHugh J referring to Reg v Hennigan [1971] 3 All ER 133 at 135.

Consideration

1. Contextual Matters
2. The jury question, and the trial judge's answer set out at [18] above, should be considered in the context of the trial. "Context" in the present case has two aspects. The first relates to the content of the trial judge's directions on the elements of the offence of manslaughter given before the jury's question was asked. The second concerns the evidence in the trial, which the jury must be taken as having been established, that the appellant's alleged breaches of duty separately and together represented serious departures from the required standard of care and, on any view, could only be adjudged as having carried powerful and substantive, not trivial, causal consequences.

The Judge's Trial Directions

1. The trial judge gave, and later repeated, clear directions on the issue of causation. The written directions included the following: "The breach of duty need not be the sole cause of death but must have been a significant and substantial contributor to its being occasioned." (AB at pp 37‑38)
2. In his oral directions the trial judge stated: "I would expect, although again it is a matter for you, that you would contemplate that there were other contributors towards the deaths occurring. What you have to determine for the purpose of this exercise is whether or not the breach of duty that is to say the negligence of Matthew Reynolds was a significant and substantial contributor to its being occasioned. That assessment is something which is entirely and appropriately within your discretion of practical judgment." (emphasis added) (AB at p 38)
3. The trial judge returned to the causation element in his summing up, stating: "The next thing that the Crown has to prove after the issue of negligence is that the death was caused by that negligence. As I understand it nobody has suggested that any deceased did not die as a result of the impact when the boats collided. It is the Crown case in relation to this issue of causation that the death of each deceased was caused by the assigning by Reynolds to Percy Small of the control of steering the vessel in the circumstances which amounted to negligence. … When you are looking at the question of cause it is not necessary that the Crown prove that the act of Matthew Reynolds was the sole or the direct cause of the harm to each deceased which led to their deaths. It is sufficient that the Crown has proved that this negligence contributed significantly and substantially to the harm suffered by each of the victims when led to their deaths. You will recall from what you were told yesterday that Mr Turnbull submitted to you that, in effect, it was deficiencies on the part of Mr Evans, the operator of the fishing boat, in being in the wrong place and he himself not keeping a proper lookout or not being at the helm and defects in respect of his ship, who was the causative person in relation to the deaths. It is possible, of course, that more than one person contributes by reason of default to the deaths which occurred. The question you have to ask yourselves is whether the Crown has proved that in the circumstances the action which you find, if you find it was negligent on the part of Reynolds, contributed significantly and substantially to the harm suffered which resulted in the deaths." (emphasis added) (AB at pp 40-41)
4. In addition to the above directions, the trial judge made reference in the course of his summing up to the closing addresses on behalf of the appellant and the Crown on the issue of causation. The jury was reminded of the submission for the appellant that 'the cause of the matter was not significantly or substantially contributed to by any breach of duty on the part of [the appellant]': Summing Up at p 38.
5. The trial judge referred to the Crown closing address on the causation issue in the following terms: "In relation to causation the Crown says look at the overall behaviour, how the circumstances led up to the collision, and the Crown says that on any view once you take a calm, objective and dispassionate view of the circumstances then the negligence which it alleges against Matthew Reynolds must have been a significant substantial contributor to the damage that was caused. (emphasis added) (AB at p 53)
6. Accordingly, the test, which set a high standard for causation, was enunciated and repeated on a number of occasions by the trial judge. The directions left no room for doubt or confusion as to what the proper causal test was and that it was the test which the jury were directed to apply in determining the third element of the offence of manslaughter.
7. The test, as stated by the trial judge, was in line with the authorities discussed above except to the extent that the trial judge used the word 'and' instead of 'or'. I accept the Crown's submission that this could not have prejudiced the appellant in any event.

The Evidentiary Context

1. As stated above, the evidence at trial could not have left any room for doubt that the Crown case, if accepted, was alleging that the appellant's conduct was a major cause of the accident. In practical terms, the jury, upon hearing the trial judge's answer to their question, could not have understood the judge to be indicating that causation need only have been established at a low level somewhere above the point of "trivial". The clear directions given and repeatedly emphasised that the Crown was required to prove beyond reasonable doubt that the appellant's negligence was a significant and substantial contributor to the harm suffered by each of the victims which caused their death. The test as so expressed, imposed a high standard for the element of causation.
2. The evidence at trial, in my assessment, undoubtedly proved that fact to the stated standard. Understandably, the contrary was not suggested in this appeal.
3. Whilst it is doubtful as to whether there is any marked distinction between the words "significant" and "substantial" (see [40] above) the evidence in the present case, as I have indicated, established both a significant and substantial causal connection. The trial judge's reference to "not trivial" must be considered and interpreted in the context of the clear and strong directions given. When so considered, there is no basis, in my assessment, for concluding that the answer given to the jury's question undermined or qualified in any way what had been conveyed as necessary before the Crown could be considered to have proved the element to the requisite standard.
4. I do not consider there is any merit in the ground of appeal relied upon in these proceedings and it should be dismissed.
5. I have concluded that no error has been established and the appeal should be dismissed.

Orders

1. The orders I propose are: 1. Leave be granted to the appellant to appeal out of time. 2. The appeal be dismissed.

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. Decision last updated: 09 March 2015