Derek David Rowe v Sasha Alexander Manevski and the State of South Australia No. SCGRG 93/1523 Judgment No. 4629 Number of Pages 15 Criminal Injuries Compensation

[1994] SASC 4629

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), PRIOR(3) AND PERRY(1) JJ

CWDS
Criminal injuries compensation - discharge of firearm "without reasonable cause" - Victim of shooting accident alleged breach of s.51 of the SummaryOffences Act 1953 as basis fo claim for compensation under the CriminalInjuries Compensation Act 1978 - held on appeal that on the facts, the person handling the rifle which had been discharged so as to injure the plaintiff had satisfied the onus on him of proving that he had discharged the rifle "with reasonable cause" - trial Judge held to have applied the wrong test in holding that there was a failure to prove reasonable cause if there was a failure to exercise reasonable care - satisfaction of the elements of the offence of discharging a firearm without reasonable cause in the circumstances of this case required something more than a departure from the civil standard of proof of negligence. Criminal Injuries Compensation Act 1978s7 and s8 and Summary Offences Act 1953s5 and s51. Hayward v Whitbread (1966) SASR 1; He Kaw Teh v R (1985) 157 CLR 523; Black v City of Melbourne (1963) VR 34; Commonwealth of Australia v Connors (1989) 86 ALR 447; Taylor v Haves (1990) 53 SASR 282; Young v Gilmore and Anor (Full Court) Judgment No 4025, 3 August 1993; De Vries and Anor v Australian National Railways Commission and Anor (1993) 112 ALR 641; Wilson v R (1992) 174 CLR 313 and R v Bacon (1977) 2 NSWLR 507, considered.

HRNG ADELAIDE, 10 June 1994 #DATE 22:7:1994

Counsel for appellant:                Mr P.J. Humphries

Solicitors for appellant:             Reilly Basheer Downe and
  Humphries

Counsel for respondent Manevski:     Mr G.A. Britton

Solicitors for respondent Manevski: Adams Kandelaars

Counsel for respondent SA:            Mr M.R. Penhale

Solicitors for respondent SA:         Mr B.M. Selway,
  Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant, together with the State of South Australia, was the respondent to an application by Sasha Alexander Manevski in the Central District Criminal Court for an award of compensation under the CriminalInjuries Compensation Act 1978 ("the Act") in respect of injuries suffered by Manevski on Saturday 8 September 1990 at Lake Caddy approximately 110 kilometres from Coober Pedy.

2. After hearing the evidence, the learned trial Judge found in favour of Manevski on the issue of his entitlement to compensation, and awarded the agreed sum of $20,000 against the appellant and the State of South Australia. The appeal to this Court is against that award.

3. On the day preceding the incident in question, Manevski, the appellant and another man, Darren Joseph Hrotek, left Coober Pedy, where they resided, on a rabbit shooting trip. Each of them was armed with a .22 calibre rifle. They camped overnight in the bush about 100 kilometres out of Coober Pedy. Early the following morning they left the vehicle in which they had been travelling and went off on foot in search of rabbits. They were not successful. By about 8 am they decided to give up and return home. At that stage they were some distance from the campsite.

4. Before returning, they decided to have a break, and at the same time have some target practice. For that purpose they set up a piece of cardboard against a tree stump or branch in a creek bed. The three of them then positioned themselves between 20 and 25 feet away from the target, lying down in the creek bed, from which position they fired at the target.

5. After this had gone on for a few minutes, Manevski and Hrotek stopped firing and sat down to have a smoke. It seems likely that the two of them drew back a little from the position they had been in when firing, so that they were slightly behind Rowe. Rowe, who was a non-smoker, remained lying down. Hrotek was on Rowe's right and Manevski on his left.

6. According to the evidence of Manevski, while he and Hrotek were sitting down smoking, there was some discussion during which it was agreed that they would return to the campsite. Manevski stood up and began to walk along the creek bed in the direction of the campsite, which was also towards the target. By that stage, the appellant, who was still lying down with the rifle in his hands, was looking through the telescopic sight attached to his rifle in readiness to fire at the target. The telescopic sight severely narrowed his field of vision. Unknown to him, Manevski had moved close to the line of fire. When he discharged the rifle, the shot struck Manevski in the back of his right leg in the vicinity of the knee, causing a serious injury.

7. At the time of the incident, the three young men were aged between 18 and 20 years. All three of them gave evidence at the hearing. Hrotek was called to give evidence on behalf of the appellant.

8. The account which I have given so far of the factual circumstances corresponds substantially but not entirely with the evidence of all three. During the course of his evidence, Manevski said that when he walked off he did so at an angle of about 90 degrees to the tree stump. His evidence as to this, however, became a little confusing as he later agreed with the question in examination in chief that he "walked towards the target rather than away from the target". Later again in cross examination he was asked:
    "Q. When you headed off with Darren with the intention
    of going back to your camp, isn't it the case that the
    path you took was across the creek, not necessarily in
    line with the tree, but at an angle. If you imagine a
    straight line across the creek from where Derek was
    sitting to the thee, that you were heading off across
    the thee at an oblique angle but not walking along the
    creek bed as such in the general direction across, but
    away from the tree.
    A. Quite far away from the tree, yes."

9. Manevski was asked to draw a sketch which was tendered in evidence in which he depicted the tree as lying across the creek from one side to the other, and which showed himself and the other two young men on one side of the creek bed.

10. Manevski's evidence was that just before he and Hrotek decided to leave, the appellant "... was doing a bit of target practice and he was acting a bit stupid sometimes, like lolling around and shooting at other branches and other places, so that's when Darren and I got up and decided to leave, decided to go."

11. The appellant, on the other hand, denied that there was any discussion about stopping the target practice and heading back to camp. He said that "Nothing like that was said". He was, however, aware that the other two had withdrawn slightly from the positions in which they had been shooting and were somewhere behind him. He said specifically that he thought Manevski "was behind me at the time". He did not see him again until he fell after being hit. The appellant said in evidence that at the time of the shot which caused the injury, he thought that the other two were sitting down, and he was not aware of any movement on their part. He denied that there had been any "sort of indiscriminate firing of the rifle" while they were stopped in the creek. He said that when he fired he did not think that there would be any danger, and that he intended no injury or fright to Manevski.

12. Hrotek said that he could not remember any discussion to the effect that they return to the camp. He said that he had not finished shooting but was standing reloading his rifle with another bullet when he saw Manevski in front of him and heard the gunshot. Hrotek denied that they were shooting across the creek, but said that they were shooting down the creek in the direction of the camp which, by necessary inference, meant that if Manevski was moving off in the direction of the camp he would have been moving down the creek in the direction of the target. This conflicted with what Manevski said to be the direction of fire.

13. At the hearing, it was incumbent upon Manevski to prove his entitlement to compensation, having regard in particular to the requirements in Part II of the Act. In particular, it was necessary for him to prove within the meaning of s.7(1) that he was the "victim of an offence". "Offence" is defined in the Act to mean "an offence, whether indictable or not, committed by one or more persons ..." (s.4).

14. S.8 of the Act provides in part as follows:
    "(1) Subject to this section, any fact to be proved by
    a claimant in proceedings under this Act is
    sufficiently proved if it is proved on the balance of
    probabilities.
    (1a) No order for compensation may be made (except by
    consent) on an application under this Act unless-
    (a) the commission of the offence to which the
    application relates has been proved beyond reasonable
    doubt;
    (b) a causal connection between the commission of the
    offence and the injury or death to which the
    application relates has been proved on the balance of
    probabilities.
    (1b) Where an order for compensation is sought in
    respect of an offence, and no person has been brought
    to trial charged with the offence, the evidence of the
    claimant as to the commission of the offence, unless
    supported in a material particular by corroborative
    evidence, is not sufficient to establish the commission
    of the offence.

(2) ..."

15. At the trial it was agreed between counsel that the appellant had not been charged with any offence as a result of the incident, other than the offence of being in possession of a firearm without holding the licence required by the Firearms Act 1977. Manevski did not attempt to rely on that offence as a basis for an award of compensation under the Act.

16. Rather, Manevski maintained that the appellant had been guilty of a breach of s.51 of the Summary Offences Act 1953. That section provides:
    "(1) A person who discharges a firearm or throws a
    stone or other missile, without reasonable cause and so
    as to injure, annoy or frighten, or be likely to
    injure, annoy or frighten, any person, or so as to
    damage, or be likely to damage, any property, is guilty
    of an offence.
    Penalty: Division 5 fine or division 5 imprisonment.

(2) In this section - "firearm" means a gun or device,
    including an airgun, from or by which any kind of shot,
    bullet or missile can be discharged: "throw" includes
    to discharge or project by means of any mechanism or
    device."

17. S.5 of the Summary Offences Act provides:
    "Subject to any provision to the contrary, where this
    Act provides that an act done without lawful authority,
    without reasonable cause, without reasonable excuse,
    without lawful excuse or without consent constitutes an
    offence, the prosecution need not prove the absence of
    lawful authority, reasonable cause, reasonable excuse,
    lawful excuse or consent, and the onus is upon the
    defendant to prove any such authority, cause, excuse or
    consent upon which he or she relies."

18. The combined effect of the two sections in their application to this case meant that there was an onus on Manevski to prove beyond reasonable doubt that the appellant discharged his rifle "so as to injure" Manevski. If those matters were proved, the offence under s.51(1) was proved unless the appellant proved on the balance of probabilities that the discharge of the rifle was done "with reasonable cause". If the appellant discharged that onus no offence was proved.

19. I mention in passing that I realise that s.1(1a)(b) of the Act speaks only of an obligation to prove the "causal connection" between the offence and the injury on the balance of probabilities. But where the occasioning of the injury is an element in the offence, clearly the higher onus of proof beyond reasonable doubt must apply.

20. I do not accept the contention of Mrs Shaw for the appellant that it was incumbent upon Manevski to prove that there was an intention on the part of the appellant to injure the respondent. The onus on Manevski was discharged when he proved, as he clearly did, that the appellant deliberately or intentionally fired the rifle, and that as a result he was injured. The only mens rea which Manevski had to prove was an intentional firing of the rifle. It was not necessary for him to prove an intention to injure. But on the other hand, as will be seen, it was relevant for the appellant to prove, as part of the process of proving that he acted with reasonable cause, that he did not intend to injure any person.

21. During the course of his reasons for judgment, the learned Chief Judge of the District Court summarised the contentions of the respective parties as follows:
    "Counsel for the applicant contended that it (the
    Summary Offences Act) required that the respondent
    Rowe's conduct should be examined in order to determine
    whether or not it was reasonable in all of the
    surrounding circumstances. He contended that the
    respondent Rowe had not taken reasonable care having
    regard to the high potential of firearms to cause
    serious injury and that, accordingly, there was not
    reasonable cause for the discharge of the firearm. It
    followed, he argued, that the commission of the offence
    had been proved. ....... Counsel for the respondent
    Rowe argued that there was an element of mens rea
    involved in the commission of the offence. He
    contended that, for the offence to be committed, it
    must be established that there was an appreciation by
    the respondent Rowe that the discharge of the firearm
    was likely to cause injury or that the respondent Rowe
    discharged the firearm with reckless indifference as to
    the consequences. His contention was that, on the
    facts, the mental element had not been established."

22. There is very little authority as to the elements of the offence created by s.51 of the Summary Offences Act. In his reasons for judgment, the learned Chief Judge referred to Hayward v Whitbread (1966) SASR 1. In that case, Mitchell J held that a complaint was bad which did not allege that the firearm had been discharged "without reasonable cause". Her Honour found also that quite apart from the deficiency of form in the complaint, the Justices appealed from in that case had failed to apply their minds to the question whether there was reasonable cause. In referring the matter back for re-hearing, Her Honour did not find it necessary to define what might constitute "reasonable cause" for the purposes of the section. Accordingly, her judgment does not throw any light on that aspect of the matter insofar as it is relevant to this case.

23. The learned Chief Judge was referred to cases concerning s.233B(1) of the Customs Act 1901 (Commonwealth) which provides that: "Any person who .... (c) without reasonable excuse (proof whereof shall be upon him) has in his possession prohibited imports ... shall be guilty of an offence."

24. While the learned Chief Judge, correctly, in my view, considered that the phrase "reasonable excuse" could be equated with the expression "reasonable cause", it does not appear to me that the authorities to which His Honour was referred dealing with alleged offences against s.233B(1) were of much assistance in determining the question at issue in this case.

25. The principal authority to which he was referred in that connection was He Kaw Teh v R (1985) 157 CLR 523. His Honour cited the judgment of Gibbs CJ (with whom Mason J agreed) in that case, and in particular the passage in Gibbs CJ's judgment where the learned Chief Justice discusses the question of the nature of the mens rea required in establishing a breach of s.233B(1) (see 528).

26. With respect to the learned Chief Judge, it does not seem to me that the considerations which led the High Court in He Kaw Teh to hold that the prosecution in charging an offence under s.233B(1)(b) bears the onus of proving that the accused knew that he was importing a prohibited import, is of assistance in considering either the mens rea necessary to support a conviction under s.51 of the Summary Offences Act 1953, or in throwing light on the meaning of the words "reasonable cause" where they appear in that section.

27. Neither do I think that much assistance was to be gained from other decisions referred to by the learned Chief Judge, being decisions in which the words "reasonable cause" were considered in other statutory contexts. These decisions included Black v City of Melbourne (1963) VR 34, where the Full Court of the Supreme Court of Victoria considered the meaning of the words where they appear in the Limitation of Actions Act 1958 (Vic), and Commonwealth of Australia v Connors (1989) 86 ALR 447, where the Federal Court of Australia considered the meaning of the same expression in s.16 of the Commonwealth Employees Compensation Act in the context of a failure to give notice of a claim.

28. After his discussion of the various authorities, the learned Chief Judge continued as follows:
    "Drawing together the various threads above discussed,
    I think that I may now reach some conclusions with
    respect to the present case. In stating the general
    principles to be applied to the interpretation of
    section 51 of the Summary Offences Act, I could do no
    better than adopt the words of Brennan J in He Kaw Teh
    v The Queen (supra) at p 582 as follows:
    '1. There is a presumption that in every statutory
    offence, it is implied as an element of the offence
    that the person who commits the actus reus does the
    physical act defined in the offence voluntarily and
    with the intention of doing an act of the defined kind.

2. There is a further presumption in relation to the
    external elements of a statutory offence that are
    circumstances attendant on the doing of the physical
    act involved. It is implied as an element of the
    offence that, at the time when the person who commits
    the actus reus does the physical act involved, he
    either -
    (a) knows the circumstances which make the doing of
    that act an offence; or
    (b) does not believe honestly and on reasonable grounds
    that the circumstances which are attendant on the doing
    of that act are such as to make the doing of that act
    innocent.

3. The state of mind to be implied under (2) is the
    state of mind which is more consonant with the
    fulfilment of the purpose of the statute. Prima facie,
    knowledge is that state of mind.

4. The prosecution bears the onus of proving the
    elements referred to in (1) and (2) beyond reasonable
    doubt except in the case of insanity and except where
    statute otherwise provides.'

Applying those principles, I conclude that the onus is,
    firstly, upon the applicant to prove beyond reasonable
    doubt that the respondent Rowe discharged his firearm
    with the intention of so doing. Secondly, it is for
    the applicant to prove beyond reasonable doubt that, as
    a result of the discharge of the firearm, the applicant
    was injured. Upon the facts as I have found them,
    there can be no doubt that the elements thus far
    discussed have been proved. The third, and critical,
    issue is whether the respondent Rowe discharged the
    firearm without reasonable cause. Nothing in this case
    turns upon the reversal of the onus of proof contained
in section 5 of the Summary Offences Act. All of my
    findings have been made, as previously stated, on the
    basis of my being satisfied about them beyond
    reasonable doubt. In the light of the authorities that
    have been discussed, I would pose the critical element
    as a question in the following terms. In discharging
    the rifle as and when he did, did the respondent Rowe
    act without reasonable cause in the sense that to act
    in the way that he did was unreasonable, having regard
    to the facts and circumstances known by him or which
    should have been known by him at the time? To put the
    question in another way: would a reasonable person have

    discharged the firearm knowing the facts and
    circumstances as the respondent Rowe knew them or
    should have known them at the time? ... Applying the
    test as I have formulated it, I am satisfied that the
    applicant has made out his case. I am satisfied that a
    person acting with the appropriate responsibility and
    reasonableness that the situation required, would not
    have discharged a weapon at the time when the
    respondent Rowe fired his final shot. He knew that
    there were two other persons in his immediate vicinity.
    He must have heard the applicant speak about moving on.
    He should have been aware that the applicant and Hrotek
    were getting up from the ground and preparing to move.
    Even if he had not been aware of the activity about
    him, he should have checked the general area of his
    line of fire with normal vision before taking his line
    through the telescopic sight. Being aware of the
    movements of his companions, he should have been all
    the more careful in this regard. Had he looked about
    him before sighting for his final shot, he would have
    realised that the others were up and moving about.
    Bearing in mind the potential of firearms to do serious
    injury, there was a heavy onus upon him to ensure in
    all of the circumstances that it was safe for him to
    fire his rifle before he pressed the trigger. One
    feels sympathy for both the applicant and the
    respondent Rowe. They were both young and
    inexperienced at the time. This was not a case of
    wanton recklessness on the part of the respondent Rowe.
    It was a very unfortunate accident caused through
    inexperience and momentary lack of proper care on both
    sides. Nevertheless, I have no doubt that the
    respondent Rowe failed to meet the objective standard
    of care required of him by the law."

29. The learned Chief Judge was clearly correct in concluding that the onus was on the applicant "to prove beyond reasonable doubt that the respondent Rowe discharged his firearm with the intention of so doing". Equally, he was clearly correct in holding that it was for the applicant to prove beyond reasonable doubt that as a result he was injured. The satisfaction of those elements posed no difficulty on any view of the facts of the case.

30. The learned Chief Judge correctly observed that the critical element in the case was whether the respondent Rowe "discharged the firearm without reasonable cause". However, the learned Chief Judge fell into error in noting that "nothing in this case turns upon the reversal of the onus of proof contained in s.5 of the Summary Offences Act", and in ultimately concluding that the appellant "failed to meet the objective standard of care required of him by the law' in that he had been guilty of a "momentary lack of proper care".

31. The critical issue, allowing for the reversal of the onus of proof was whether or not the appellant had satisfied the onus of proving that when he discharged the rifle he did so with reasonable cause. The reasoning applied by the learned Chief Judge, correcting his view as to the onus, would result in the proposition that there is a failure to prove reasonable cause if on the facts the Court concludes that there was a failure to exercise reasonable care.

32. In my opinion, a person charged with a breach of s.51(1) might, nonetheless, prove reasonable cause, even if he or she was to be guilty of a failure to exercise reasonable care. To hold otherwise, would be to expose a person to the risk of conviction for a criminal offence on the basis of a mere want of due care. To do so would be to ignore the fact that the level of misconduct leading to criminal culpability (except in the case of absolute offences) is generally higher than that giving rise to civil liability. A penal statute should be construed consistently with that distinction.

33. It would be neither wise nor profitable to attempt the task of offering a definition of "reasonable cause" which would be apt to provide an answer to every possible case. The circumstances in which there may be an act or omission having the potential of constituting a breach of s.51 of the SummaryOffences Act are so varied that no single formula could possibly provide an answer in every case. What might amount to reasonable cause in one case may not amount to reasonable cause in another.

34. In addressing the question whether the appellant discharged the onus of proving "reasonable cause", it is necessary to have regard to all of the surrounding circumstances proved in evidence. Having done so, it is then necessary to determine objectively whether those circumstances amount to proof on the balance of probabilities, of the existence of reasonable cause. In making that determination, the considerations to which I have referred should be borne in mind.

35. Where it has been suggested that there was a lack of due care, that becomes a relevant matter in determining whether the appellant discharged the onus of proof of "reasonable cause". But the want of care required before it could be said that the onus was not discharged, must be more serious than a departure from the standard of care which would result only in a finding of liability in negligence. In the circumstances of this case, the existence or not of "reasonable cause" involves a question of the degree of the departure, if any, from the purpose for which the group had paused in the creek bed, and of the degree of departure from an appropriate standard of care in discharging the firearm.

36. It remains for this Court to determine whether, having regard to the facts as established by the evidence, the appellant discharged the onus of proving reasonable cause.

37. The task of this Court in approaching the questions of fact relevant to the issues in the case is no different from the task of a single Judge on an appeal under the Justices Act, in the context of which in Taylor v Hayes
(1990) 53 SASR 282 I made the following observations (292):
    "... the task of this Court on such an appeal is to
    reach its own view of the case by making an independent
    review of the evidence. An appeal may be allowed even
    if there is evidence to support the Magistrate's
    findings. While it must give due weight to the
    advantage held by the Magistrate in seeing and hearing
    the witnesses, if this Court reaches a different view
    on the evidence, it must give effect to that by
    substituting its view for that reached by the
    Magistrate ..."

38. That dictum was upheld in the Full Court in Young v Gilmore and Anor (Full Court) (unreported) Judgment No 4025, 3 August 1993.

39. A similar statement of the law appears in Laurie v Nixon (unreported) (Full Court) 3.10.91 162 LSJS 16.

40. Nothing which fell from the High Court in De Vries and Anor v Australian National Railways Commission and Anor (1993) 112 ALR 641 gives cause to qualify the pronouncements to which I have referred. That case simply emphasised that the advantage of the trial Judge in seeing and hearing witnesses is not lightly to be discounted. As was observed by Deane and Dawson JJ in their joint judgment in that case (647):
    "In a case where it appears that a challenged finding
    of fact has to a significant extent, been based on the
    trial judge's observation of the demeanour of the
    witnesses, the members of the appellate court are
    inevitably placed in a position of real disadvantage
    compared with the trial Judge. Even in such a case,
    however, 'the Court cannot excuse itself from the task
    of weighing conflicting evidence and drawing its own
    inferences and conclusions'."

(citing The Glannivantar (1876) 1 PD 283 per James LJ, Baggallay JA and Lush J at 287, referred to by Dixon CJ and Kitto J in Paterson v Paterson (1953) 89 CLR 212 and 219). In this case, the learned Chief Judge had the benefit of seeing and hearing the three young men involved give their evidence. He did not express any findings as to credit. It is clear, however, that he must have disbelieved Manevski on some issues.

41. There is no reason to doubt his finding:
    "... that the applicant's injury was an accident in
    the sense that the respondent Rowe had not the
    slightest intention of firing at, or injuring either of
    his companions. He did not, however, check his line of
    fire other than through the narrow vision of the
    telescopic sight immediately before pulling the trigger
    to fire his last shot."

42. I have some difficulty, however, in accepting his finding (speaking of the appellant):
    "He knew that there were two other persons in his
    immediate vicinity. He must have heard the applicant
    speak about moving on. He should have been aware that
    the applicant and Hrotek were getting up from the
    ground and preparing to move."

43. I have already referred to the evidence of the appellant and Hrotek that the former repudiated any suggestion that there was any discussion about moving on, and that the latter disclaimed any knowledge of any such discussion. There seems no reason to doubt the evidence of Hrotek that he was standing up emptying the breach of his rifle preparatory to inserting another bullet, when the accident occurred.

44. The appellant was lying on the ground concentrating his attention on focusing his rifle on the target, and in that situation he was hardly in an ideal position to be aware of what was occurring behind him, or even to his side.

45. If I was to assess the evidence for myself I would have some hesitation in reaching a finding, even on the balance of probabilities, that the appellant "must have heard the applicant speak about moving on". On the whole of the evidence there must be some doubt as to whether or not that statement was made at all, quite apart from who might have heard it. I note that the learned Chief Judge did not refer at all to the evidence of Hrotek in that regard.

46. But even conceding the advantage of the learned trial Judge in seeing and hearing the witnesses, and assuming that his finding as to Manevski speaking about moving on was based on a preference for his evidence over that of the other two young men, it does not follow that the conclusion which he ultimately reached was sound. There is nothing in his finding, or in the evidence of Manevski on the topic, which makes it clear as to how any discussion between Manevski and Hrotek might have been couched, and whether or not it was expressed in terms which should have brought home to Rowe not only that there was talk of moving on, but that it was about to occur, and that it was necessarily foolhardy for him in those circumstances to persist in the process of taking a final shot at the target. He was, after all, lying down and lining up the target in the sights of his rifle, which was a fact plainly to be seen by the other two. It would not have been unreasonable for him to have assumed, even allowing for some discussion about moving on, that they would keep clear of his line of fire.

47. Assuming some discussion about moving on, and accepting that the appellant should have (to use the words of the learned Chief Judge) "looked about him before sighting for his final shot", in my opinion, the appellant's conduct fell short of gross negligence or gross recklessness. Indeed, I do not think that a finding of gross negligence or gross recklessness could be supported on any reasonable view of the evidence.

48. The appellant was entitled to assume that firing one further shot was within the scope of the purpose for which the group had come to, and remained, at the place at which the accident occurred, albeit that that purpose was almost spent.

49. Relevantly for the purposes of proof of reasonable cause, having regard to the matters to which I have referred, the appellant proved on the balance of probabilities that when he fired the rifle he:
    (a) did not intend to injure the respondent, or any
    person;
    (b) was still carrying out the purpose which the group
    had agreed they would carry out when they paused in the
    creek bed on their return to camp;
    (c) was not guilty of any grossly negligent or grossly
    reckless behaviour when he fired the shot.

50. Having proved those matters, he proved that he was acting with reasonable cause. It follows that the onus upon the appellant was discharged.

51. In my opinion, Manevski failed to prove that he was the "victim of an offence" within the meaning of s.7(1) of the Criminal Injuries CompensationAct, and the application for compensation should have been dismissed.

52. I would allow the appeal and substitute an order dismissing Manevski's application for compensation.

JUDGE2 KING CJ I agree that this appeal should be allowed and that the application for compensation should be dismissed, for the reasons given by Justice Perry. I wish to add only a few remarks as to the relationship of the concepts of recklessness and negligence to the concept of reasonable cause in s.51 of the Summary Offences Act.

2. I agree that the absence of gross negligence or reckless behaviour is a relevant consideration on the facts of the present case in determining whether there was reasonable cause. Negligence and recklessness must not be confused, however, with the absence of reasonable cause. It must be stressed that the reasonable cause in question is reasonable cause for the discharge of the firearm. If the cause for discharging the firearm is reasonable, reasonable cause within the section exists notwithstanding any negligence or recklessness, whether gross or otherwise, in the manner of its discharge.

3. That is not to say, however, that concepts of recklessness and negligence have no part to play in determining the existence of reasonable cause to discharge the firearm. Reckless or negligent failure to ascertain whether any person is in the danger area, for example, may be an important factor in determining the existence of reasonable cause.

4. If it had been proved in the present case that the appellant had been reckless or grossly negligent in failing to realize that Manevski had walked or might have walked into his line of fire, reasonable cause for the discharge of the firearm in those circumstances, might well have been negatived. I agree, however, that on the evidence the probabilities are against any such finding.

JUDGE3 PRIOR J I agree with Justice Perry that in this case the respondent Manevski did not have to prove an intention on the part of the appellant to injure him. All that the respondent had to prove beyond reasonable doubt was that the appellant deliberately or intentionally fired the rifle and that as a result that respondent was injured. Those things being proved beyond reasonable doubt, an onus passed to the appellant to prove on the balance of probabilities that he acted with reasonable cause.

2. In his findings, the Chief Judge has rejected the appellant's denial that Manevski said "Let's go back to the camp". That finding cannot be disturbed on appeal. Whilst it may be open to and appropriate to differ from the Chief Judge's view that the appellant "should have been aware that the applicant and Hrotek were getting up from the ground and preparing to move", on the Chief Judge's finding that the appellant did hear what Manevski said about going back to the camp, the appellant should have checked his field of fire before pulling the trigger. Indeed, against that finding he should have indicated that he was about to fire before he did so. I agree with the Chief Judge that the applicant was required to ensure that it was safe for him to fire his rifle before he pressed the trigger.

3. As Justice Perry observes, the reversal of the onus of proof by s5 of the Summary Offences Act is significant. In this case, a failure to exercise reasonable care will mean that the appellant has failed to prove that he discharged the firearm with lawful excuse. A failure to meet an objective standard of care may mean that the onus of proof is not discharged. No reasonable cause is made out if a reasonable person in the appellant's position would have realized that he or she was exposing another or others to an appreciable risk of serious injury: Wilson v The Queen (1992) 174 CLR 313.

4. In my view the appellant failed to discharge the onus on him. That onus extended to requiring the appellant to prove on the balance of probabilities that when he fired the rifle he was not intending to injure anyone but pursuing the agreed group activity with due care. In my judgment it is not correct to say that the applicant discharges his onus by showing he was neither grossly negligent nor guilty of grossly reckless behaviour when he fired the shot. This particular offence calls upon the accused to show that he was neither reckless as to the consequence of his intentional act nor negligent in doing what he did. Recklessness is a form of advertent negligence. Inadvertent negligence is a concept known to the Criminal law and means a non intentional failure to conform to the conduct of a reasonable person in respect of the consequence in question. It involves both a subjective and an objective enquiry. Of course a state of mind is a general requirement for the commission of crime at common law. Of course negligence is not usually sufficient to constitute a crime. The justification for punishing thoughtlessness is not as strong as the justification for punishing foresight. However, in this particular case, the effect of the imposition of the burden of proof upon the applicant is to call upon him to show that his intentional act of firing the rifle, having a particular consequence was with reasonable cause. It may not be with reasonable cause if the appellant has been reckless or negligent.

5. A person may discharge the onus imposed here by showing that that person's conduct proceeded from a bona fide mistake of fact based on reasonable grounds: R v Bacon (1977) 2 NSWLR 507 at 512. The appellant could therefore have discharged the onus upon him had he satisfied the Chief Judge that he reasonably believed that both his companions were still out of harm's way. The Chief Judge's finding that the appellant must have heard Manevski speak of going back to the camp, prevented such a finding. The defence was not made out.

6. I would dismiss this appeal.