ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal Law-Manslaughter-Dangerous driving causing death - Failure to use H. C. OF
reasonable care and take reasonable precautions in use and management of vehicle-Standard of negligence-The Criminal Code 1913-1945 (W.A.) (No. 28 of 1913-No. 40 of 1945), SS. 23, 266, 268, 280, 291A.
The degree of negligence required to establish manslaughter under The Criminal Code 1913-1945 (W.A.) is the same as that required to establish MELBOURNE, a charge under S. 291A of the Code of failure to use reasonable care and take reasonable precautions in the use and management of a vehicle thereby causing death. The standard of care in each case is that required by common law in cases where negligence amounts to manslaughter.
R. v. Scarth (1945) Q.S.R. 38, approved. Decision of the Court of Criminal Appeal of Western Australia reversed.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of Western Australia.
John William Callaghan was tried on indictment charging manslaughter the charge arising out of his running down and killing one Strickland on 19th April 1952. The trial was held in Perth before Walker J. and a jury.
The trial judge directed the jury substantially in the following terms :--" If satisfied that he (the accused) was to some degree negligent then you would have to go further and consider what degree of negligence is indicated. If there were lack of care but not a gross lack of care then your verdict would be dangerous driving causing death. If you think it was gross negligence then your verdict would be one of manslaughter". The jury retured a verdict of dangerous driving causing death.
An appeal by Callaghan to the Court of Criminal Appeal was dismissed.
Callaghan sought special leave to appeal to the High Court. The relevant statutory provisions are sufficiently set forth in
THE QUEEN. the judgment thereunder.
C. B. Gibson (with him H. N. Guthrie), for the applicant. The standard of care required by S. 266 of The Criminal Code 1913-1945 (W.A.) is the same as that required by S. 291A. The critical words in each section are: to use reasonable care and take reasonable precautions' The two crimes are not capable of being distinguished except for the penalty. As the jury found the accused not guilty of manslaughter they should also have found him not guilty of dangerous driving causing death.
R. v. Nevile, Crown Solicitor for the State of Western Australia, for the respondent. The questions raised by this application are of great public importance and the application for special leave is not opposed. The appeal raises not only the question of the standard of care required under S. 291A of The Criminal Code 1913-1945 (W.A.), but also the standard of care required under S. 266 in the case of manslaughter. The standard of care in each case is the same and corresponds with the standard of care breach of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Callaghan v The Queen [1952] HCA 55
Case
[1952] HCA 55
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by John William Callaghan, who had been convicted of dangerous driving causing death under section 291A of The Criminal Code 1913-1945 (W.A.). The charge arose from an incident where Callaghan's vehicle struck and killed a pedestrian, Strickland. Callaghan had been indicted for manslaughter, but the jury returned a verdict of guilty of the lesser offence of dangerous driving causing death, having been directed by the trial judge that a lesser degree of negligence was required for this offence than for manslaughter. The Court of Criminal Appeal of Western Australia had dismissed Callaghan's appeal against this conviction.
The central legal issue before the High Court was to determine the standard of negligence required to establish manslaughter under section 266 of The Criminal Code, and whether this standard was the same as that required for the offence of dangerous driving causing death under section 291A. Specifically, the court had to consider whether the wording "to use reasonable care and take reasonable precautions" in both sections implied the same standard of negligence, or if the distinction in penalties between the two offences indicated a difference in the required degree of culpability.
The High Court reasoned that the statutory language in both section 266 (manslaughter) and section 291A (dangerous driving causing death) used the identical phrase "to use reasonable care and take reasonable precautions." The Court concluded that this phrasing, when used within the context of a criminal code, should be interpreted as requiring the same standard of negligence as that which constitutes manslaughter at common law. This standard requires a "very high degree of negligence," often described as gross negligence or recklessness, and not merely the degree of negligence sufficient for civil liability. The Court found that the trial judge's direction, which differentiated the standards of negligence between manslaughter and dangerous driving causing death based on the penalty, was erroneous.
Consequently, the High Court granted special leave to appeal, treated the application as the appeal, and allowed the appeal. The conviction and sentence were set aside. The Court noted that while the jury's verdict implied a lack of the requisite degree of negligence for manslaughter, it also found the appellant guilty of the offence under section 291A. Given the circumstances, including the appellant having served part of his sentence, the Court determined not to order a new trial and instead quashed the conviction.