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Court of Criminal Appeal 21 May 2004

R v Lavender

[2004] NSWCCA 120

Homicide
MANSLAUGHTER BY CRIMINAL NEGLIGENCE WHAT MENS REA REQUIRED EFFECT OF CRIMES ACT S 18(2)(A)

Citation: R v Lavender [2004] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 21 May 2004
Judge(s): Giles JA; Hulme J; Adams J

Background

The appellant, Wayne Lavender, was charged with manslaughter and, in the alternative, dangerous driving occasioning death, following the death of Michael Milne on 2 October 2001 at Redhead, NSW. The incident involved the appellant driving a Komatsu loader. He was convicted of manslaughter in the District Court before Coolahan DCJ and sentenced to four years imprisonment with a non-parole period of eighteen months.

The appellant appealed against his conviction. The Crown separately appealed on the ground that the sentence was manifestly inadequate.

At trial, the judge directed the jury that the appellant's belief that it was safe to proceed was "immaterial" and that it "does not matter" what the appellant believed. The appellant challenged that direction as a fundamental misdirection on the law of manslaughter by criminal negligence.

  • Whether manslaughter by criminal negligence requires proof of a purely objective standard of conduct (falling short of a reasonable person's standard of care), or whether the accused's subjective belief about the safety of their conduct is relevant
  • Whether the trial judge erred in directing the jury to disregard the appellant's belief that he was acting safely
  • Whether the offence of manslaughter was treated as an absolute liability offence, in error
  • Whether the defence of honest and reasonable mistake of fact was available
  • Whether s 18(2)(a) of the Crimes Act 1900 (NSW), which requires that an act be "malicious" to fall within the section, had any bearing on the required mental element
  • Whether the Crown's sentence appeal should be upheld

Decision

The Court of Criminal Appeal allowed the appeal and quashed the conviction. All three judges agreed that the trial judge's direction that the appellant's belief in the safety of his conduct was "immaterial" constituted a fundamental error in law.

Hulme J (with whom the others agreed on the central issue) held that manslaughter by criminal negligence is not an offence of absolute liability. The test for criminal negligence requires conduct that falls so far short of the standard of a reasonable person as to warrant criminal punishment, but the accused's own belief about the safety of their conduct remains a relevant consideration in that assessment. Directing the jury to entirely disregard that belief deprived the accused of a proper evaluation of all the circumstances bearing on culpability.

Adams J expressed the additional view that it is difficult to accept that a person can be found guilty of an unintentional crime involving grave moral turpitude if they genuinely believed their conduct was safe. On this analysis, the appellant's belief that his path was clear was directly relevant to whether his conduct reached the level of wickedness or moral culpability required for criminal negligence manslaughter.

The Court declined to order a new trial, and also declined to enter a verdict of guilty on the alternative dangerous driving count. The key reasons were: the Crown had advanced the manslaughter case on a legally incorrect basis; the prospects of conviction on a re-trial (applying the correct, higher standard) were substantially reduced; the appellant had already served approximately twelve months of his sentence; and a re-trial was unlikely to result in a longer effective custodial term. Given those circumstances, the Court entered a verdict of acquittal. The Crown's sentence appeal did not require determination in light of the acquittal.

Orders Made

  • Appeal against conviction allowed
  • Conviction and sentence quashed
  • Verdict and judgment of acquittal entered
  • Crown's sentence appeal not pursued (rendered unnecessary by the acquittal)

Key Takeaways

  • Manslaughter by criminal negligence in NSW is not an offence of absolute liability: an accused's honest belief that their conduct was safe is relevant to the jury's assessment of culpability and cannot simply be directed out of the case.
  • The Court of Criminal Appeal confirmed that the correct test for criminal negligence requires conduct falling so far below the standard of a reasonable person as to merit criminal punishment, but that this assessment must take into account all relevant circumstances, including the accused's state of mind.
  • Under s 18(2)(a) of the Crimes Act 1900 (NSW), the requirement that an act be "malicious" is a consideration that reinforces the relevance of subjective mental state to manslaughter, rather than supporting a purely objective approach.
  • A misdirection that removes from jury consideration a factual matter directly relevant to the degree of moral culpability will ordinarily be sufficient, of itself, to quash a conviction.
  • Discretion not to order a retrial may be exercised where the Crown has prosecuted on a legally incorrect basis, the appellant has served significant time, and a higher correct legal standard would substantially reduce the prospects of re-conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 24, 52A
- Criminal Appeal Act (NSW), ss 6(2), 7, 8

Key Cases
- Nydam v The Queen [1977] VR 430
- R v Bateman (1925) 19 Cr App R 8
- Andrews v Director of Public Prosecutions [1937] AC 576
- The Queen v Adomako [1995] 1 AC 171
- Proudman v Dayman (1941) 67 CLR 536
- He Kaw Teh v The Queen (1984) 157 CLR 523
- Jiminez v The Queen (1992) 173 CLR 572
- McBride v The Queen (1966) 115 CLR 44
- R v Taktak (1988) 14 NSWLR 226
- R v Stokes and Difford (1990) 51 A Crim R 25
- R v Blacklidge (CCA, 12 December 1995, unreported)
- R v Bikic [2002] NSWCCA 227