R v Lavender

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow,Hayne JJ,Kirby J,Callinan J,Heydon J
• Judgment Date: 04 August 2005
• Neutral Citation: [2005] HCA 37,2005-0408 HCA A,2005-0804 HCA B
• Court: High Court
• Docket Number: S499/2004
• Date: 04 August 2005

[2005] HCA 37

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

S499/2004

The Queen

Appellant

and

Wayne Kelvin Lavender

Respondent

Representation:

G E Smith SC with J A Girdham for the appellant (instructed by Solicitor for Public Prosecutions (NSW))

P Byrne SC with P J D Hamill SC for the respondent (instructed by Legal Aid Commission of New South Wales)

Crimes Act 1900 (NSW), ss 5, 18.

The Queen v Lavender

Criminal law — Manslaughter — Involuntary manslaughter by criminal negligence — Respondent killed a 13 year old boy by running over him with a front end loader — Crimes Act 1900 (NSW), s 18 — Whether malice an element of the offence — Relevance of former statutory requirement that indictment include a charge of maliciously killing for murder but not for manslaughter — Interaction of provisions of the Crimes Act with the common law of punishable homicide — Application of the defence of honest and reasonable mistake of fact to manslaughter by criminal negligence — Distinction between murder and manslaughter.

Statutes — Interpretation — Relevance of historical context in resolving questions of statutory construction — Relevance of past amendments to Act — Use of contemporary historical materials in statutory construction — Relevance of the rule of strict construction of penal statutes — Relevance of uniformity in the criminal law throughout Australia.

Sentencing — Appeal on sentence — Whether matter before the High Court — Restoration of custodial sentence after entry of an acquittal by New South Wales Court of Criminal Appeal — Whether parties now entitled to seek leave of Court of Criminal Appeal to appeal against sentence.

Practice and procedure — Trials — Jury directions.

Words and phrases — ‘malice’, ‘maliciously’.

ORDER

• 1. Appeal allowed.

• 2. Orders 1, 2 and 3 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 21 May 2004 on the appellant's appeal against conviction set aside. In place of those orders, order that the appeal against conviction be dismissed.

• 3. Orders 1 and 2 take effect from 10.00 am on 1 September 2005.

1 Gleeson CJ, McHugh, Gummow AND Hayne JJ. Section 18 of the Crimes Act 1900 (NSW) (‘the Crimes Act’) defines the crime of murder, and goes on to provide that every other punishable homicide shall be taken to be manslaughter. The principal issue in this appeal concerns the elements of that form of punishable homicide commonly described as involuntary manslaughter.

2 As this Court held in Wilson v The Queen1, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender's conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind. The Crimes Act makes specific provision with respect to provocation (s 23) and impairment (s 23A), but it makes no specific provision concerning the elements of involuntary manslaughter. Consistently with the common law, the Crimes Act treats manslaughter as a residual category of punishable homicide. It states the elements of murder, and then provides that all other forms of punishable homicide are manslaughter. It is necessary to look to the common law in order to understand what is meant by the reference in s 18 to ‘other punishable homicide’. The Crimes Act is not a Code. Although in some respects it makes detailed provision for, and in that sense codifies, aspects of the criminal law, it does not exclude the common law.

3 In the present case, the Court of Criminal Appeal of New South Wales (Hulme and Adams JJ, Giles JA dissenting) 2 allowed the respondent's appeal against a conviction for manslaughter by criminal negligence on the basis that, at trial, counsel for both the prosecution and the defence, and the trial judge, fundamentally misconceived the nature of the offence in question by failing to advert to what was said to be an essential element of the offence, that is to say, malice as defined in s 5 of the Crimes Act. The prosecution appeals to this Court, contending that malice is not an element of involuntary manslaughter, either at common law or under the Crimes Act, and that the decision of the Court of Criminal Appeal is contrary to principle, to the language of the statute, particularly when understood in context, and to more than a century of practice in New South Wales.

4 Subsidiary issues in the appeal concern two challenges to the trial judge's directions to the jury, one of which was taken at trial and the other of which was not. It is convenient to put those subsidiary issues to one side for the present.

The facts

5 The following summary of the facts is taken substantially from the reasons of Giles JA.

6 The case involved alleged criminal negligence by the respondent in the driving of a front end loader which ran over and killed a 13 year old boy. There was an alternative charge of dangerous driving occasioning death, but because the jury found the respondent guilty of manslaughter they did not need to deal with the alternative.

7 The respondent was employed as the operator of a front end loader at a sand mine at Redhead near Newcastle. The loader weighed 25 tons, and was much higher and longer than a car. It only travelled at about four kilometres per hour. The driver's vision was obscured by a bucket at the front end. The function of the machine was to move processed and unprocessed sand within the area of the mine. The mine site was unfenced, and was in an area of sand dunes covered with vegetation. In places the vegetation was thick, and consisted of bushes and trees up to four metres high. On 2 October 2001, the victim, and three friends aged respectively 11, 14 and 15, went to the mine site to play in the sand. They should not have been there. The respondent decided to chase them away. He drove the loader towards the boys. They ran into an area covered by thick vegetation. The respondent pursued them, driving the loader through the scrub. It was difficult for him to see where he was going. He ran over the victim, causing injuries resulting in death.

8 In sentencing, the trial judge referred to a submission made by counsel for the respondent, who said that of all offences known to the criminal law, manslaughter, because it involves in most cases no criminal intent or malice, is the one which attracts the widest variety of sentences. That submission reflects the way in which the case for the respondent was conducted at trial. Counsel for the respondent described the test of criminal negligence as ‘objective’. In his argument on sentencing, he said the case was one of a ‘gross error of judgment’ on the part of the respondent.

9 The trial judge said that the respondent ‘embarked upon a course of action which was criminally negligent’. Although the front end loader was moving only slowly, the respondent ‘in effect drove blind’. The judge said:

‘Whilst there can be no doubt that the offender did not have any intention to injure these boys, he simply did not direct his mind to what was such an obvious risk. The inference is that he assumed that because he was driving a very large vehicle which was readily visible and very noisy at a very slow speed … the boys would have been able to readily avoid him. This was an assumption that no person in his position was entitled to make and the horrific consequences of this mistaken assumption were realised on this occasion.’

10 If the prosecution had alleged that the respondent had intended to drive the front end loader into or over the victim, and if the jury had found that to be proved beyond reasonable doubt, then the case would have been one of murder. Such use of the front end loader would obviously have been likely to cause either death or grievous bodily harm. The respondent was not charged with murder. The charge of manslaughter assumed that he did not intend to run over, or into, the boys. The proceedings were conducted on the basis that the act causing death was not intentional.

11 The respondent was sentenced to imprisonment for four years with a non-parole period of 18 months. He appealed against his conviction.

The directions to the jury

12 Before the commencement of the summing-up, and in the absence of the jury, the trial judge gave counsel a written outline of the directions he proposed to give, and invited submissions. The only submission of direct relevance to this appeal concerned one of the subsidiary issues. It will be considered later. As to what has now become the principal issue, no objection was taken to the proposed directions.

13 The trial judge told the jury that, relevantly to this case, there were five elements in the offence of involuntary manslaughter. The first was that the respondent had a duty of care to the victim. The second was that he was in breach of that duty. The third was that his actions were deliberate in the sense that he was in control of the vehicle. The fourth was that the actions of the respondent in driving the vehicle caused the death of the victim. The trial judge explained those four elements, but that explanation is not presently relevant. It is what he said about the fifth element that is now important.

14 The trial judge said:

‘And finally, the Crown has to prove that that action of driving into the bush in the circumstances that the Crown says obtained fell so far short of the standard of care which a...