Cameron v The Queen

[1995] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 1994

B e t w e e n -

TROY ANTHONY CAMERON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 11.57 AM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear for the applicant.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC:   I appear for the respondent, if your Honours please.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DEANE J:   Mr Odgers.

MR ODGERS:   Thank you, your Honour.  The point that is raised in this application is the test for negligence in negligent manslaughter.  The trial judge directed the jury in accordance with the test derived from the English Court of Appeal decision in Bateman which is the test that is generally applied in New South Wales and the direction that is generally given in New South Wales.  The direction is to be found at page 8 of the application book.  It is actually repeated on a number of occasions:  your Honours, at the bottom of page 8 and over to page 9.  I think it is a fair summary of what his Honour said:

Regardless of what he might have intended, it is for you to make a finding as to whether his conduct in fact demonstrated criminal negligence.  That is to say you look at what he did, and you do not concern yourself with what his intentions were.

To repeat myself, because it is important that you get this right.  What the Crown has to prove is that the accused threw that copper rod across those live wires thereby causing a broken live wire to fall down.  And that he then failed to take any action to rectify the situation.  That the totality of this conduct demonstrated such a high disregard for the life and safety of others, that it constituted conduct so gross that the community would require that he be punished for an offence against that community.

His Honour put it in a slightly different way, also consistently with Bateman, at the top of page 8, if I can take your Honours back to that.  He said:

To put it another way you must pose the question, were the accused’s actions so grossly serious that the community should regard them as going beyond a matter of mere civil negligence giving rise to a claim for compensation for damages.

It is the submission of the applicant that while that is the conventional direction given in New South Wales in respect of negligent manslaughter that it was quite inadequate in the circumstances of this case. 

The basic facts were, as found by the jury, that the applicant threw a bar or a rod onto some power lines.  That caused one of the lines to break; it fell, and he did not inform the authorities in respect of that.  The critical matter from the point of view of the applicant though was that he testified and there was considerable evidence to show that he believed there was no risk, and he believed that because he believed that when the power lines break the power is cut off.  He testified to that.  The other two boys involved testified to that.  There was evidence that he was walking around in the area afterwards and riding his bicycle around in the area afterwards.  So, plainly there was considerable evidence to support that assertion.

In the applicant’s submission, in those circumstances, it was necessary to direct the jury more adequately as to the nature of negligent manslaughter and, in turn, that raises the critical issue:  what direction should be given?  What is the test?  It is the applicant’s submission that the first question is assuming, for the purposes of argument - and there is authority for it, clearly - that it is an objective test and accepting that applying an objective test a jury should assume a hypothetical, reasonable or ordinary person in the circumstances of the applicant or the accused, the critical question is what characteristics of the applicant should be taken into account in applying that test.

Of course, the judge gave no directions in respect of any of that but it is the applicant’s submission that, in accordance with considerable authority to support it, factors like his age - he was 18 years old at the time - his level of education, those kinds of characteristics must be taken into account if you are applying that kind of purely objective test.  McHale v Watson is authority for the age point in civil cases and there are criminal cases which have applied that in respect of negligent manslaughter:  the Tasmanian case of Holness.

Another question is how the jury is to use the evidence that he believed there was no risk.  On one view of it the law would be that that is completely irrelevant and, indeed, in the way that the judge directed the jury it seems to be, the way the directions are given - the Bateman test - regarded as irrelevant.

TOOHEY J:   Is it in fact the way in which the judge directed the jury, Mr Odgers?  I was just looking at page 26, that passage that begins at about line 15.

MR ODGERS:   Yes.  Your Honours, the judge at this point was summarising the defence arguments.  He had directed them in accordance with what the test is at law, the Bateman test for criminal negligence, and now he is summarising what defence counsel has put to the jury and, of course, defence counsel pointed to the fact that the applicant was not very intelligent and not very well educated and that there was evidence that he believed there was no risk.  His Honour does not direct them that they must take it into account but he says:

whatever it was you would not find that his conduct was so grossly serious that it was deserving of punishing, that it was deserving of punishment because it was such an affront to the community, it was an offence to the community which deserved a criminal sanction.

His Honour does not in any way explain how they are going to use this factual information, this material relating to the subjective characteristics of the accused in applying the Bateman test.

TOOHEY J:   No, but in a sense that is the note on which the jury go out.

MR ODGERS:   Actually, that is not quite true, your Honour, because the note that they go out on was consciousness of guilt.  They came back and asked questions about that.  This is not a point that is raised as a special leave point but his Honour essentially said that lies told by the accused as to whether he was present at the time could be used to prove his guilt of the crime of manslaughter.  Now, a point was taken in the court below but, in my submission, the jury is now in a situation where they are given this very, very general test of negligence.  They are told that they can take into account the lies of the accused, of which there was abundant evidence, as evidence of consciousness of guilt of the crime of manslaughter and then they go out and after they are given that direction they convict.

The critical point is how are they going to relate this information about his subjective characteristics to the test?

TOOHEY J:   Perhaps the answer to that is that the judge should have been asked to give more explicit directions on that point.

MR ODGERS:   Your Honour, it is difficult to criticise counsel for not doing that in circumstances where the Bateman test is the conventional direction that is given.

DEANE J:   Take the summary of argument.  When you look at 1.1, in the context of this case one would have thought that, really, that is the last direction that counsel would have wanted and far better to have everything a bit messy and a bit blurry.  I mean, I may be wrong but I simply cannot conceive that a jury would have the slightest doubt that any reasonable person taking an objective test would appreciate the incredible danger of bringing that - - -

MR ODGERS:   If you know - - -

DEANE J:   No, even if you do not understand electricity - of bringing down an electric wire and just leaving it there without checking or without doing anything where young people are riding bikes and so on.  It just passes belief.

MR ODGERS:   With respect, your Honour, there was evidence that the normal thing that happens when a line breaks is that there are procedures in place to prevent the power continuing.  But surely this, with respect, raises the question:  if, as in this case it seems, the applicant positively believed that there is no electricity and therefore no risk, what approach is a jury to take?  Is it is say, “Well, would an ordinary person having that level of knowledge and that belief have realised that it was likely that death would follow?”  Of course not.  The answer would be that they would have to acquit in those circumstances.  If you say it is simply not relevant, well then, my submission is that that cannot be right.  It raises very precisely how a jury is to use, firstly, his age, then his education and then the precise belief that he had.

Your Honours, in England, for a number of years, the test for negligent manslaughter has been recklessness broadly defined.  Indeed, that test - - -

DEANE J:   Mr Odgers, do not misunderstand me, I understand the force of what you are saying about the need of a 1.1 direction.  All I am suggesting to you is in this case a direction which focused on criminality was a much better one from the accused’s point of view than a direction which focused on 1.1 and a statement in a context of statements that he somehow believed that once electric lines were broken that was the end of electric current.

McHUGH J:   Can I just add to that.  It may well be the case that the Bateman test has only survived because it suits defence counsel.  It is absolutely meaningless.

MR ODGERS:   Yes, but imagine the position of the jury in this case.  We are not speculating, but a jury knows that a young boy has died.  It is tragic.  They know that the power line was alive.  They are told, “Don’t take into account the state of mind of the accused, look at the act that he did.  The alleged negligence is he’s knocked the line down; he failed to tell the authorities, and you can take into account his lies as evidence of consciousness of guilt.”  In those circumstances it is inevitable that they are going to convict because the jump - - -

TOOHEY J:   But why do you say do not take into account his state of mind?  Where does the judge say that?

MR ODGERS:   The passage I read out to your Honours at pages 8 and 9 of the application book.  At the top of page 9:

That is to say you look at what he did, and you do not concern yourself with what his intentions were.

Of course it may be that I am being a little unfair and that he is referring specifically to intention as in the sense of intention to cause grievous bodily harm.

TOOHEY J:   Yes, I would have thought so.

MR ODGERS:   But my submission is that - again, this makes the point - his Honour should say, “But you must take into account his foresight” and it would be a very relevant consideration, in accordance with Lamb and Taktak and other cases like that, that he positively believed there was no risk.

TOOHEY J:   But no doubt counsel for the accused would have emphasised in final address the characteristics of the accused so far as they were relevant.  Then you have that passage on page 26 that has been referred to already and you point out, rightly, that the jury did come back and ask for some further directions.  But when you look at the direction overall, it is not really an unfavourable one to the applicant, is it?

MR ODGERS:   In my submission, to tell the jury that defence counsel has pointed out these things and that therefore, the defence counsel has argued, he is not truly a criminal and not deserving of punishment does not really assist the defence.

TOOHEY J:   Perhaps not of itself but, in the absence of any express direction by the trial judge that the jury were to ignore those characteristics, that lends much more force to what appears on page 26 than might otherwise be the case.

MR ODGERS:   The difficulty with that is that they are required to apply the test that the judge has told them as to the law and the requirement that it is gross negligence, without explaining what that concept is.  It is just simply saying, “If you find gross negligence, then you must convict.  The defence has referred to these characteristics as being somehow relevant to that issue.”  But, in my submission, in fact, as a matter of law - if one wants to go this far, that if you apply the English law until recently, you could not be guilty of negligent manslaughter if you believe there is no risk.  The approach of the English courts until recently has been that negligence means that you foresee a risk and decide to do nothing about it or you do not think about it at all.

Now, the third scenario is you think about it and you conclude, for whatever reason, that there is no risk.  If the English tests until recently were applied, this applicant, if the jury accepted that it was reasonably possible he did not believe there was a risk, would be compelled to acquit.  So, if I am forced to it, that is the position I would go to but my submission is that either that is the case, in which case he is not guilty at all, or the jury should be assisted in the way in which they take into account these characteristics as bearing on the ultimate question of whether or not he is negligent.  That, in turn, requires them to be told, assuming that what I have just said is wrong about you are not guilty if you think there is no risk, but assuming that you can still be guilty, it requires the jury to be told, “Well, you mustn’t just apply - look at it in hindsight and apply the test of a reasonable prudent person, a person who knows about risks and science and the dangers of electric lines falling to the ground.

You have to say would an ordinary person, in the position of this accused, given his age, given his level of scientific knowledge, taking into account that there is abundant evidence that he positively believed there’s no risk, would such a person have”, to use the language of 1.1, “realised that it was likely that death or grievous bodily harm would have followed.”  In my submission, if a jury had been directed in those terms it is entirely plausible that a different result would have followed.             The critical question here is whether or not a general direction, “You can only convict if you think this person is a criminal or has engaged in criminal conduct” - certainly it is very general and, on one view of it, might be seen to, in many cases, assist the defendant but not in this case.

Your Honours, I might hand up a decision of the Canadian Supreme Court in a case called Tutton 48 CCC (3d).  This is the most recent decision I can find on Canadian law in respect of - I hand up five copies.  This case, with respect, demonstrates the difficulties in this area and, indeed, perhaps, in my submission, the difficulties in this particular case.  In Tutton the Supreme Court split - and I will take your Honours just very briefly to the headnote if I might on page 130.  Three members of the Canadian Supreme Court decided that the test for criminal negligence is a subjective one which requires some degree of awareness or advertence to the threat or, alternatively, a wilful blindness to that threat.  Two members of the court, that is Justices McIntyre and L’Heureau-Dube decided that it was an objective test but that in applying that test the jury is required to take into account the accused’s perception of the facts.  So, even on that approach, the jury is required to take it into account.

McHUGH J:   That case turned on the statutory formula, did it not, about wanton or reckless disregard?

MR ODGERS:   It did, your Honour.  But, of course, in England it has been understood on many occasions that recklessness is a term which can be applied to gross negligence and the point, with respect, is that the Canadian Supreme Court was well aware that recklessness could have different meanings and the critical question was what really is required for criminal negligence. 

There are authorities in Australia which have said that sometimes you can use the word “recklessness” in its common sense meaning.  The only other point I would make is that Justice Lamer, at the bottom of page 131, said, yes, it is:

an objective test -

but -

a generous allowance must be made for factors which are particular to the accused such as youth, mental development and education.

So, what he is saying is, “You, as members of the jury, in determining whether an ordinary person in the circumstances of the accused would have foreseen the danger here, should take into account his age and his circumstances, his education and the characteristics”, which, I submit, the judge should have directed the jury in this case.

The critical question on this application is whether, if the judge had directed the jury in the way that I submit he should have, requiring them to postulate an ordinary hypothetical person with the characteristics of the

accused:  age, education and, in my submission, his positive belief of no risk, would they have necessarily convicted applying that test?  The answer, in my submission, is you certainly cannot reach that conclusion.  Those are my submissions.

DEANE J:   Thank you, Mr Odgers.  The Court need not trouble you, Mr Cowdery.

Having regard to the particular circumstances of this case and the absence of any relevant request for amended or further directions at the trial, the Court does not consider that an appeal based on alleged error or inadequacy in the directions given would enjoy sufficient prospect of ultimate success to warrant a grant of special leave to appeal.  Accordingly the application for special leave to appeal is refused.

MR ODGERS:   If the Court pleases.

AT 12.19 PM THE MATTER WAS CONCLUDED