Omodei v The State of Western Australia
[2006] WASC 210
OMODEI -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 210 | |
| Case No: | SJA:1119/2005 | 30 MARCH 2006 | |
| Coram: | JOHNSON J | 19/09/06 | |
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL DOMINIC OMODEI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal negligence Standard of care when handling a firearm Alleged failure by the Magistrate to consider s 23 and s 24 of the Criminal Code |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2) Criminal Code (Qld), s 289 Criminal Code (WA), ch 27, s 23, s 24, s 266, s 302(1), s 304(1)(a), s 304(2) Firearms Act 1973 (WA) |
Case References: | Agnew v The Queen [2003] WASCA 188 Callaghan v The Queen (1952) 87 CLR 115 Evgeniou v The Queen (1964) 37 ALJR 508 Griffiths v The Queen (1994) 69 ALJR 77 Kaporonovski v The Queen (1973) 133 CLR 209 Nydam v The Queen [1977] VR 430 Pacino v The Queen (1998) 105 A Crim R 309 Pemble v The Queen (1971) 124 CLR 107 R v Bateman (1925) 19 Cr App R 8 R v EMJ (2001) 27 SR (WA) 265 R v Guise (1998) 101 A Crim R 143 R v Hodgetts and Jackson [1990] 1 Qd R 45 R v Lamb [1967] QB 981 R v O'Halloran [1967] Qd R 1 R v Taktak (1988) 14 NSWLR 226 The State of Western Australia v Newland [2005] WADC 125 Betts v Hardcastle (2001) WAR 559 Hajinoor v Dench [2005] WASC 274 Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 R v Lavender (2005) 222 CLR 67 Weiss v The Queen (2005) 80 ALJR 444 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P M HEANEY
File No : MJ 403 of 2004
Catchwords:
Criminal negligence - Standard of care when handling a firearm - Alleged failure by the Magistrate to consider s 23 and s 24 of the Criminal Code
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (Qld), s 289
Criminal Code (WA), ch 27, s 23, s 24, s 266, s 302(1), s 304(1)(a), s 304(2)
Firearms Act 1973 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Mr N J Mullany
Respondent : Mr C G Astill & Ms C L Noonan
Solicitors:
Appellant : Mark Andrews & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Agnew v The Queen [2003] WASCA 188
Callaghan v The Queen (1952) 87 CLR 115
Evgeniou v The Queen (1964) 37 ALJR 508
Griffiths v The Queen (1994) 69 ALJR 77
Kaporonovski v The Queen (1973) 133 CLR 209
Nydam v The Queen [1977] VR 430
Pacino v The Queen (1998) 105 A Crim R 309
Pemble v The Queen (1971) 124 CLR 107
R v Bateman (1925) 19 Cr App R 8
R v EMJ (2001) 27 SR (WA) 265
R v Guise (1998) 101 A Crim R 143
(Page 3)
R v Hodgetts and Jackson [1990] 1 Qd R 45
R v Lamb [1967] QB 981
R v O'Halloran [1967] Qd R 1
R v Taktak (1988) 14 NSWLR 226
The State of Western Australia v Newland [2005] WADC 125
Case(s) also cited:
Betts v Hardcastle (2001) WAR 559
Hajinoor v Dench [2005] WASC 274
Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
R v Lavender (2005) 222 CLR 67
Weiss v The Queen (2005) 80 ALJR 444
(Page 4)
1 JOHNSON J: The appellant was convicted after trial on a charge under s 304(1)(a) of the Criminal Code (WA) that he omitted to do an act that it was his duty to do which resulted in bodily harm caused to his son, Paul Dominic Omodei Jr. The act which the appellant omitted to do was to make safe a .22 Hornet calibre Kriko bolt-action rifle. Because the appellant and the victim share the same name, for clarity and convenience, and without intending offence, I propose to refer to Mr Omodei Jr as "the son".
2 The appellant initially appealed against his conviction on four separate grounds. Each ground was expressed in general terms with a number of particulars. Some of those particulars were statements of fact relevant to the ground rather than a particularisation of the alleged error. For that reason, in setting out the grounds of appeal I have omitted those particulars which are mere factual statements. Further, at the hearing of the appeal, counsel for the appellant, by consent, amalgamated grounds 2 and 3 of the appeal and substituted a consolidated ground as ground 2. The consolidated ground of appeal also includes particulars which are statements of fact which I have similarly omitted. Notwithstanding the amalgamation of grounds 2 and 3, it was decided that ground 4 would retain that number. Consequently, the grounds of appeal for determination are grounds 1, 2 and 4 and are in the following terms:
Grounds of Appeal
"1. The learned magistrate erred in law by failing to properly consider whether the Appellant had discharged his duty under the provisions of s 266 of the Criminal Code to use reasonable care or to take reasonable precautions to avoid danger to the complainant.
Particulars
(e) It was … necessary for the Magistrate to consider whether the act of engaging the safety catch discharged the duty under s 266.
(g) The failure of the magistrate to consider the issue was an error of law.
2. The learned magistrate erred by failing to consider and apply the defence of accident.
(Page 5)
- 4. The learned magistrate erred by failing to consider the defence of honest and reasonable mistake of fact."
Summary of Facts
3 The events which culminated in the appellant being charged with this offence occurred in the evening of 23 October 2004. The appellant and his son had gone out shooting on the appellant's 80 hectare property on the Vasse Highway, north of Pemberton. They were hunting rabbits and kangaroos that had been attacking the grapes that were being grown on the property. The appellant had with him his .22 rifle which he had owned for a number of years and with which he was familiar. The appellant, holding his rifle, was seated in the front passenger seat of a Toyota Landcruiser utility ("the utility") which his son was driving. They had been driving around for approximately 20 minutes during which time the appellant had taken a number of shots.
4 As it was dark, the appellant was using a portable lighting system attached to the rifle by way of a bracket which was connected to the scope and allowed the torch to slide on and off the rifle. The light faced forward over the barrel so that, if the person holding the rifle was pointing at a target, the light would be pointing directly at that target. However, on the evidence of the son, the light illuminated a greater area than simply the target itself. The purpose of the light was so the person using the rifle could shine a light on the target and shoot at the same time. The light was a new fitting put on the rifle only recently. Indeed, it was the first time that the son had seen the light on the rifle. Although the light is attached to the top of the rifle, it can easily be removed and used independently as a spotlight. In the course of his evidence, the son showed the ease with which this could be done.
5 At approximately 8.15 pm the son noticed that water was spurting up in to the air out of the top of one of the sprinklers on a part of the property next to the Vasse Highway. The sprinkler was at the bottom of the right hand side of a group of trees. It was obviously damaged so he stopped the utility to inspect it. According to the son, he had driven the utility just past and to the left of the group of trees when he stopped. When he got out, leaving the driver's door open, he realised that there was not enough light for him to see what could be done to fix the problem. In particular, because he had driven just past the area, the headlights of the utility were not shining directly on the sprinkler. The son asked the appellant to shine the torch over the area to light it up. The appellant got out of the passenger side door and jumped on the back of the utility. Because the
(Page 6)
- son was bending down attending to the sprinkler he did not see what happened thereafter. However, he was aware that the area was then lit up sufficiently to enable him to see the sprinkler.
6 The light attached to the rifle was powered by the car and connected to the cigarette lighter. On the appellant's evidence, it was because the cord was not long enough to reach around the front of the utility, the appellant climbed into the back to shine the light so his son could see the sprinkler. Resting his finger on the trigger guard, the appellant began to pull against the cord connecting the light to the car in order to bring the light closer so his son was better able to see the sprinkler. At that point the gun discharged and the son was shot in the hand.
7 The son heard a loud bang after the area lit up and a deep burning sensation. He did not realise he had been shot until a few seconds later when he felt his thumb sitting on the back of his left hand. The son immediately grabbed his wrist and went around to the front of the utility to inspect his hand in the light of the headlights. He saw that his thumb was hanging by a piece of skin. The appellant had jumped down from the back of the utility leaving the rifle there. When the son got into the passenger side of the utility the appellant drove back to the house. The appellant had already contacted his wife on the two-way radio he had with him and arranged assistance for his son. The son was driven to Manjimup Hospital, received some preliminary treatment and was then moved to Bridgetown Hospital where he saw a specialist and received treatment. To fix the injury, transplanted tissue was taken from his thigh and used on his thumb. He had a piece of bone taken out of his forearm which was transplanted into the knuckle of his thumb. He also had a bone graft from both his hips to fill in the site where the bone was taken from, in order to strengthen his arm. Fortunately, his recovery has been excellent. It is apparent from the evidence of the injury to the thumb, and its treatment, that the element of the offence that bodily harm resulted would be easily met.
Statutory Provisions
8 Before considering each ground of appeal I will set out the terms of the statutory provisions under which the appellant was charged.
9 Section 304(1)(a) of the Criminal Code, which is the section which creates the offence with which the appellant was charged, is in the following terms:
(Page 7)
- "If a person omits to do an act that it is the person's duty to do, or unlawfully does any act, as a result of which -
(a) bodily harm is caused to any person; or
(b) the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 5 years."
10 The relevant duty is set out in s 266 of the Criminal Code which provides:
"It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."
11 The degree of negligence required to establish an offence relying on s 266 of the Criminal Code is described as gross or criminal negligence. Criminal negligence is, in turn, described as recklessness involving grave moral guilt and as being of such a degree as to warrant the sanction of the criminal law: see Callaghan v The Queen (1952) 87 CLR 115 (at 121). In R v Bateman (1925) 19 Cr App R 8 (at 10 – 11) Lord Hewart CJ defined negligence in the following terms:
"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment."
(Page 8)
12 Subsequent attempts to reformulate the test have included reference to the high risk of endangering the life, safety or health of another: see Nydam v The Queen [1977] VR 430 (at 445); R v Taktak (1988) 14 NSWLR 226 (at 249 - 250). In Pacino v The Queen (1998) 105 A Crim R 309 Kennedy J stated (at 320 - 321) that it would have been desirable to make some reference to "risk" in the context of describing the degree of negligence necessary to be found to sustain a conviction. In R v EMJ (2001) 27 SR (WA) 265 (at 273) French J observed:
"Although reference to such a high degree of negligence lacks precision, it is clear that this is an evaluative process that must of necessity amount to a judgment based on all the circumstances attending the individual case."
13 At trial, the defence position was that the duty outlined in s 266 of the Criminal Code is not the duty referred to in s 304(1). The learned Magistrate did not accept that submission but in this appeal no issue has been taken with that aspect of the decision at first instance.
14 On the 7 September 2005, prior to trial, Mr Astill from the Office of the Director Public Prosecutions wrote to the appellant's solicitor particularising the omission on which the prosecution would rely in the following terms:
"The omitted act which the prosecution will be relying upon to establish that your client failed to 'make safe' the rifle is that he failed to unload the rifle prior to pointing it at the complainant. The prosecution will maintain that such a duty arose pursuant to section 266 of the Code."
15 The respondent's case at trial was that the appellant's rifle was a dangerous thing and the appellant's duty with respect to the rifle was to take reasonable care and to take reasonable precautions to avoid danger to the life, health, or safety of others, in this case his son. The act or omission which was said, in the prosecutor's opening address, to breach the duty in the circumstances of this case was the appellant's failure to make safe the rifle. That breach of duty was said by the respondent to have caused bodily harm to the son. The case, as put to the Court by the respondent, was that the appellant was criminally negligent in pointing the loaded rifle in the general direction of his son when he should have unloaded the weapon.
16 In this case, it was not really in issue that a firearm is a dangerous thing; that is, something of such a nature that, in the absence of care and
(Page 9)
- precaution in its use or management, the life, safety or health of a person may be endangered. The high risk of physical injury resulting from a breach of the duty to take reasonable care and precautions with a firearm is obvious. If it is loaded, or turns out to be loaded, the potential for serious injury and even death if it discharged in an area where people are present is very real indeed. In fact, the Magistrate had no difficulty in making a specific finding to that effect. Further, it was not in dispute that the appellant had the rifle in his charge and under his control at the relevant time. However, any determination of what was required of the appellant in his handling of the rifle, in order to satisfy the duty to use reasonable care and take reasonable precautions, depends on the circumstances with which the appellant was faced at the time. Further, the duty may vary as the circumstances vary and the person who owes the duty must adapt his or her conduct accordingly.
17 In a case such as this, it is always necessary to avoid being wise in hindsight. However, in order to identify the circumstances the appellant faced when he decided to use the rifle as a light source, it is helpful to consider the evidence as to exactly what was required in order for him to provide the light requested by his son. Although the evidence will be scrutinised in greater detail later in these reasons, it is sufficient to note that the appellant got out of the passenger side window whilst holding the rifle which was attached to the cigarette lighter by a flexi-cord. He climbed into the back of the utility with the flexi-cord stretching across the gun, with his right hand on the grip and his index finger around the trigger guard. He was then required to pivot, whilst manually pulling the cord further, in order to provide the greater degree of light requested by his son.
18 It can be seen that the relevant circumstances include actions affecting balance as well as actions placing pressure on the cord which was stretched across the gun and touching, not only the light, but also the surface of the rifle. Therefore, in discharging his duty with respect to the rifle, the appellant was required to take these factors into account; that he would be moving with the rifle and that pressure would be applied to him and to the rifle because of the fact that the rifle was connected by the flexi-cord to the interior of the utility.
19 There are a number of ways in which a rifle can be "made safe"; the term used throughout this case. Some examples are completely dismantling the rifle, removing the bolt and the magazine, checking for bullets and removing them, and putting on a safety catch. As I have noted, which, if any, of these actions meets the duty to take reasonable
(Page 10)
- care and precautions to avoid danger will depend on the particular circumstances. Some such actions may well satisfy the duty but may represent an excess of caution not reasonably required in every case or in any particular case. Others may be reasonable in certain circumstances but not in others. Similarly, if reasonable steps are taken but then the circumstances change, a different or further step may reasonably be required to meet those circumstances without being in breach of the duty owed.
20 In this case, in broad terms the duty on which the respondent relied was a duty to make the rifle safe. However, that duty was further particularised to mean unloading the weapon. Of course, the duty would then necessarily involve checking the weapon to see if it is loaded and, if so, unloading it. In order to determine whether a rifle is actually unloaded it will in all cases be necessary to check the weapon, or to have a specific recollection of checking the weapon and finding it to be empty, or to have a precise recollection that the number of shots fired equalled the number of bullets placed in the firearm. The adequacy of the last two methods of ensuring a firearm is unloaded will depend on other factors such as the acuity of a person's memory, the time lapse involved, and the existence of any intervening or distracting events.
21 It is important to note that it is not an element of this offence that the person on whom the duty is placed intended any harm. An act of that type would result in a charge being brought under s 304(2) of the Criminal Code which attracts a far higher penalty. As I have indicated, that is not the section under which the appellant was charged.
22 In the usual course of events, a charge of this nature would give rise to a number of issues; whether the accused was in charge of a dangerous thing, the nature of the duty, whether the accused's conduct was in breach of the relevant duty, whether any breach of the duty caused the injury and whether the injury amounted to bodily harm. Although the respondent was required to establish each of these elements beyond a reasonable doubt, and to negative any defence raised by the appellant, the main issues at trial were the scope of the duty to take reasonable care and precautions with the rifle, and whether there had indeed been a breach by the appellant of that duty.
23 I propose to deal with each ground of appeal in the order of the grounds in the notice of appeal, as amended at trial, but before I do it will be useful at this point to identify the evidence of the witnesses relating to the firearm and, in particular, the appellant's use of the firearm on that
(Page 11)
- day. I also propose to identify the findings that were open to the Magistrate. In the event that any of the grounds of appeal are determined in the appellant's favour, the findings which were available to the Magistrate may assist in determining whether there has been "no substantial miscarriage of justice": s 14(2) Criminal Appeals Act 2004 (WA).
Evidence of the Condition and Use of the Firearm
24 The respondent's case included the evidence of a Ballistics Officer from the Police Service, Constable Malonas, who identified the fundamental rules of firearm safety and provided the results of various tests carried out on the rifle.
25 At the time of the hearing, Constable Malonas was attached to the Ballistics Division of the Police Service as a Forensic Investigations Officer. He has been working in that position for nine years. His duties as a Forensic Investigations Officer include the examination and safety testing of firearms and the collection and preservation of firearm related exhibits.
26 Constable Malonas gave evidence of his examination of the appellant's rifle which he described as a .22 Hornet calibre Grieco make bolt-action repeating rifle. In cross-examination Constable Malonas agreed that the rifle was approximately 25 years old and in reasonable condition.
27 He carried out a function test which involved loading the firearm and test firing it to ascertain whether it functioned appropriately, which it did. He also conducted a drop test which involved loading the rifle with a primed cartridge case in the chamber, cocking the firearm, disengaging the safety, then holding the firearm vertically and dropping it butt first onto a rubber mat backed with a steel plate from a height of no more than 45 centimetres. The purpose of the test was to see if the rifle discharged in those circumstances. The test is repeated three times. The rifle did not fire during any of the three drop tests. Constable Malonas then carried out a strike test which required the rifle to be loaded with a primed cartridge case, cocked, the safety disengaged and then placed on a jig. The jig which holds a horizontal hammer weighing 600 grams with a wooden handle of 100 grams held 30 centimetres above the area of the rifle which is to be struck. The hammer is then allowed to fall under its own weight onto various portions of the rifle on six occasions. The results were that the rifle did not discharge when struck with the hammer on any of the six occasions. Constable Malonas also carried out a hammer bolt strike test.
(Page 12)
- This is a variation of the strike test with the jig having the same configuration, although a slightly different hammer was used, but the bolt is closed and the firing pin is held back under tension ready to be fired with rearward pressure on the trigger. That test was carried out once and the rifle did not discharge. Consequently, the appellant's rifle passed all of these safety tests.
28 The final test carried out by Constable Malonas was a trigger pressure test. This test is designed to test the amount of rearward pressure on the trigger required to fire the firearm. The test is conducted with an electronic force gauge which gives a digital reading. The trigger pressure is recorded on six occasions and a mean average calculated. The appellant's rifle failed this particular safety test because the mean average trigger pressure was 0.51 of a kilogram. In fact, every trigger pressure reading was well below the pressure required for licensing purposes under the Firearms Act 1973 (WA) which is one kilogram. On that basis, the firearm would not have been passed for registration.
29 Constable Malonas was asked to identify anything that might have a noticeable effect on the trigger pressure. He explained that the amount of grease or oil could reduce friction between parts of the trigger mechanism which would lighten the trigger pressure. Wear and tear, as well as any adjustments made to the trigger mechanism, could also affect trigger pressure. He was unable to determine the cause of the reduced trigger pressure on the appellant's firearm. When questioned in cross-examination Constable Malonas said that he could not establish from looking at the rifle whether it had recently been serviced. He did agree that when a firearm is serviced it is sometimes oiled or greased, although he saw no signs of it with the appellant's firearm. He also agreed that oil in the trigger mechanism can lighten the friction area and account for the lessened trigger pressure. Constable Malonas indicated that he was aware of the name of the gunsmiths that, on the appellant's evidence, had very recently serviced his rifle and knew that they had been in business for a very long time.
30 Constable Malonas also examined the safety catch which was on the right hand side of the bolt. He explained that the safety was activated by pulling the catch back towards the person holding the rifle. When moved forward away from the holder of the rifle, the rifle is in the "fire" position. On testing the rifle with the safety in the safe position it prevented the rifle from being fired by preventing the rearward movement of the trigger. He found no fault with the safety catch concluding that it was in good working order. In cross-examination Constable Malonas agreed that, even
(Page 13)
- with the reduced trigger pressure, the rifle could not have fired with the safety catch on. Constable Malonas had been asked to ascertain whether the safety catch could have been moved forward by the light cord. He said that he held the cord in his hand, and tried to manually move the safety switch forward into the "fire" position with the cord but was unable to do so. However, Constable Malonas agreed in cross-examination that, although he was unable to move the safety catch to the fire position by the action of the spotlight cord rubbing against it, he could not exclude the possibility that the safety catch could be moved in that way. But the fact remains that he was unable to achieve that result despite his best efforts.
31 Constable Malonas was also asked whether he was aware of a syndrome called sympathetic muscle response where, if a person is doing something with one hand, the other hand might unconsciously react as well. Constable Malonas was aware of the syndrome and agreed that it was a known feature with firearms. The affect of the syndrome is that, where a person is doing something with their left hand and holding a gun in their right hand the person will unconsciously move their trigger finger as an automatic reaction of moving the other hand. Constable Malonas agreed with the proposition that, if someone is holding a gun and is moving a cord which is attached to the gun with the other hand, it is possible that, subconsciously the trigger finger might activate the trigger. However, for the firearm to fire, the safety catch would have to be in the "fire" position.
32 Constable Malonas was also asked to consider the situation which the defence allege caused the rifle to fire in this case; a situation in which the safety catch might be accidentally moved into the "fire" position. It is said that if the rifle is being held whilst the cord is a being stretched in a rearward direction, then the rifle is being subjected to a force acting in a rearward direction. If the rifle is being held in one hand and near the vicinity of the safety catch and trigger, then an attempt to move the rifle further forward would increase the force acting on the rifle, and could cause the hand to move forward enough to manipulate the safety catch forward in the "fire" position. In this situation, the forward movement of the rifle by the hand holding it is said to increase the force acting on the rifle thereby causing the same hand to move forward. Constable Malonas confirmed that the movement of the hand on the gun in this example would be inadvertent. However, the firearm would have to be cocked and the bolt closed and the safety catch in the "safe" position.
33 Constable Malonas was asked to comment on another scenario put to him in cross-examination which involved the impact on the right hand if
(Page 14)
- the left hand was carrying out some action with a rearward pressure. Unlike the previous situation, this scenario involves an impact on the right hand resulting from the action of the left hand. According to Constable Malonas, if a person is climbing onto the back of the utility or trying to move the rifle forward that little bit more and if the right hand was on the pistol grip, which is a common place to hold a firearm, it is possible for the right hand to slip forward and move the safety from "safe" to "fire". However, for the rifle to fire the trigger has to be pulled as well and the outcome would also depend on where the index finger is and if the firearm was to push rearwards and the finger was to slip off the trigger at the same time. Constable Malonas emphasised that, in this scenario, disengaging the safety catch would not necessarily be a manifestation of the sympathetic muscle reaction but the pulling of the trigger could be. This proposition was initially put to Constable Malonas on the basis that the pulling of the trigger would be a manifestation of the sympathetic muscle reaction. He corrected that proposition by stating that it could be a manifestation of that reaction. In his evidence, Constable Malonas agreed that each of these propositions were examples of ways in which a rifle might discharge independently of the will of the holder and were quite possible.
34 It is apparent that, in Constable Malonas' opinion, the circumstances of the four scenarios put to him possibly could have resulted in the safety catch being moved from the "safe" position into the "fire" position and also, in three of the four scenarios, in the exertion of pressure on the trigger. Therefore, they could explain how the appellant might have accidentally fired the rifle, even if he had put the safety catch on. However, the scenarios upon which he was questioned also indicate the importance, particularly where the holder of the firearm is moving about, of doing something other than putting on a safety catch in order to ensure that the rifle did not present a danger by firing.
35 In addition, Constable Malonas provided his expert opinion in relation to other aspects of the rifle and the light attachment. He stated that the light attached to the rifle could be used independently; it did not need to be attached to the firearm to operate. He explained that, for the rifle to discharge or fire, it is necessary to have a live cartridge in the chamber. This can be done either by loading the magazine, which holds five live cartridges, or by manually inserting one through the ejection port into the chamber of the firearm. For example, to fire a round from the rifle, a cartridge can be inserted into the ejection port, the bolt closed, the safety in the "fire" position (the "off" position) and the trigger pulled. In order to prevent the gun from being able to be fired, the safety would have
(Page 15)
- to be placed in the "safe" position and there would have to be no cartridges inside the chamber. He agreed that, in normal circumstances, it would be a reasonable precaution to take in ensuring that a gun did not go off to activate the safety. He agreed that someone would be diligent if they did that. However, Constable Malonas did not elaborate on what "normal circumstances" were. An example of a normal circumstance in which putting the safety catch on might be a reasonable precaution would be when the appellant was in the process of driving around shooting at rabbits and kangaroos where he was seated, waiting for the next target, not aiming at or near any person but needing to be able to fire fairly quickly.
36 In Constable Malonas' opinion, the best way to ensure that a gun cannot fire is to unload it. In his view, although the safety catch is a safety feature of firearms, one should not entirely rely on it. He stated that the three fundamental rules of firearm safety should always be relied upon. They are: (1) treat all firearms as loaded, (2) always point the muzzle in a safe direction and (3) keep your finger off the trigger. Constable Malonas reinforced the view that, as a principle of firearm safety, one should never point a loaded gun at somebody. Although the rules are not statutory rules, they are the rules adopted by the National Rifle Association and are adopted in most jurisdictions nationally. When it comes to determining whether a person's conduct with a firearm amounts to criminal negligence, in my view it matters not whether the accepted principles of firearm safety are statutory requirements or whether they are the established practices of those experienced in the safe handling of firearms.
37 The appellant's son was called to give evidence at the trial as a prosecution witness. The son confirmed that his father's rifle had just come back from being serviced and it was the first time he had seen the light on it. The son agreed in cross-examination that it was not necessary to point the gun in the specific direction of an object to get light on it because the light had a very broad ray. He said that, in order to illuminate an area, the barrel could be pointing off on a 40 degree angle and would have to be pointing in the fall of 180 degrees. However, if the rifle is pointing at a target, the light would be pointing directly at the target.
38 The son said that he had been shooting with his father on many occasions and that his father was usually an exceptionally careful shooter. For example, he had always taught his son to put the safety catch on and, over the years that they had been shooting together, his father always applied the safety catch when he was not shooting. However, he did agree
(Page 16)
- that on the night he was injured he was not in a position to say if the safety catch was on or off at the time he was shot.
39 When first asked, the son's recollection was that his father had at least three or four shots prior to when they stopped at the sprinkler. However, he agreed that he could not exclude the possibility that the appellant shot four or more times. Although he saw the appellant load the rifle, he was not aware of how many bullets he put in. He could not recall the rifle being re-loaded.
40 The son's evidence of when he stopped at the broken sprinkler was in the following terms:
"I asked Dad to give me some light, because I knew he had the spotlight on top of the gun, so – and because the vehicle had driven past, the lights from the head - - the headlights from the vehicle weren't actually shining in the area of the sprinkler …
Well, while I was actually bending down on the ground, looking for what I could do, anyway, that was about the time that Dad got out of the passenger side, and jumped on the back of the ute, but what he did after that, I couldn't tell you."
41 He was asked if the area did light up. The son's reply was: "I had enough light to be able to see; yes." The next thing he recalled was a loud bang and then he felt the thumb on his left hand sitting on the back of his hand. By that time the light had gone and there was no light on his hand so he went around to the front of the utility to actually see what had happened to him. On the son's evidence, by that time his father had alighted from the utility and left the gun on the back of the utility. The son then got into the passenger side and his father drove him back to the house. There is a conflict between the evidence of the son and the appellant concerning the circumstances in which the request for extra light, which resulted in the discharge of the firearm, came about. On the son's evidence, the light on the rifle was not in use when he asked to be given some light. The appellant got into the back of the utility and shone the light and it was then that the rifle fired. On the appellant's evidence, to which I will shortly refer, the appellant was already in the back of the utility using the light when he was asked by his son to provide more light and it was then that the shot was fired.
42 Senior Constable Peter Davis, who was stationed at Pemberton Police Station at the relevant time, gave evidence of his involvement following the incident, including the statement he took from the appellant.
(Page 17)
- He said that he received a phone call from the Manjimup Police telling him that an incident had occurred. He then attended the appellant's property and spoke to the appellant. The appellant told him that he was out rabbit shooting and the gun that he had went off and he shot his son in the hand. The appellant was asked to make a statement and he agreed. In the statement the appellant described himself as a regular shooter over 25 years although he had never been in a gun club. He was licenced to own firearms, including the rifle used on that night, and considered himself to be a safe and competent shooter. He said that the rifle was fitted with a Lightforce spotlight that attaches to the top of the sight. The light is powered by the cigarette lighter connection and can be switched off and on by a push button switch on the light. The balance of the appellant's statement dealt more directly with the events of that evening and is in the following terms:
"When we go shooting, I sit in the passenger side of my ute, and Paul, junior drives. I aim the rifle out of the passenger window with the light on in order to see any vermin. We had been out for about 20 minutes, and had not shot a round, after completing a circuit of the property. By that, I mean I tried to shoot a couple of rabbits twice, but missed.
Whilst driving, we saw a leaking water sprinkler, and stopped to investigate. We stopped, and Paul, junior, got out to look. He then asked for some light. I got out of the passenger side with the rifle, and the light attached to the rifle, with the cord in the lighter socket. I left the passenger door open, and climbed onto the back tray of the ute. I did this, because the leak was on the driver's side of the car, and the car was blocking the view.
As I climbed up, the cord was stretching across the gun. It is possible that this caused the safety to disengage, as I am usually careful to ensure the safety is always on. However, I must have disengaged it, accidentally, whilst moving the gun to the ute.
Whilst on the back of the ute, Paul has asked for more light. I have then pivoted the rifle and light to the left, stretching the cord further to its almost limit. I have had to tug a bit harder to make the light reach, and that action caused my grip on the rifle to tighten and the firearm discharged.
When I was moving the gun around, my right hand was on the grip with my index finger around the trigger guard. My left
- hand was pulling on the cord to the light, in order to stretch it further. As I said, I believe it was this action that caused my finger to slip off the guard into the trigger area, causing it to discharge. I'd never been on the back of the ute before with this gun and light set-up.
Back to when the gun went off, Paul, junior was only 2 to 3 metres away from me, to my left side, standing upright and facing me. The bullet hit Paul in the left thumb, near the meaty part of the joint to the hand. I hit him on the inside of the hand, almost severing his thumb.
Immediately upon realizing Paul was injured, I removed the magazine and bolt from the gun, making it safe before rendering assistance to him. I disconnected the light from the car, and got Paul to medical help before calling the police. Paul and I did not consume alcohol this night."
43 The appellant then went with the police to the scene to show them what had happened. Whilst on the back of the utility (on the driver's side of the utility about half way in the back on the right), he showed the police where his son was and said that he had the light to the right of him. The appellant told the police that his son then asked for more light because it was to the right and was not pointing at him at all. The appellant had to move the light to get more light upon the sprinkler area and, as that action happened and he pivoted, the firearm had gone off. The action to which he was referring was moving the light towards his son so that the sprinkler would be better illuminated. The appellant showed the police officer how he tried to get "that last little bit of cord" and the gun went off.
44 Constable Davis seized the firearm and the light and returned to the station. Unfortunately, he neither inspected nor seized the magazine. Consequently, there is no evidence of the state of the magazine or the number of cartridges in it, if any. Constable Davis explained that the appellant removed the rifle from his firearms cabinet and gave it to him. The gun was empty and there was no magazine in it. Constable Davis said that, at the time, he did not think it was important to see the magazine to see how many bullets were in it. He conceded that, in retrospect, this was a mistake.
45 The appellant gave evidence in his defence. He agreed that the contents of his statement to the police were true and correct as best as he
(Page 19)
- could recollect. He said that he has held a firearms licence for approximately 35 years. He owns two rifles, including the one which he was using when his son was shot, which he had owned for about 25 years. He said that he always made sure that his firearms were well looked after. The appellant stated that he considers himself competent in the use of firearms and has never been charged with a firearms offence. He said that he is always very careful in the way he uses firearms and certainly believes, and has always carried out, all the rules mentioned by Constable Malonas. He said that he was very much aware that a firearm is a dangerous thing. In particular, he said that pointing the rifle at someone, whether it was empty or with bullets in it, is always a definite "No". He added:
"I've always been careful when I have taken other people shooting, or I've been shooting with other people, realizing the that - - the damage that a firearm can do."
47 The appellant explained that he has gone shooting less frequently in the last 10 years than when he was a full-time farmer. His firearms are mainly used for shooting rabbits and kangaroos, also birds. He would probably now go shooting five or six times a year, sometimes with a backpack with a spotlight on the top of the rifle and other times on the back of or in the utility.
48 The appellant dealt in his evidence with the circumstances which culminated in shooting his son in the hand. He said that he probably loaded the gun in the utility on the way to the back vineyard as they started the circuit. That was his usual practice. He put five bullets into
(Page 20)
- the magazine which is all that it holds. He said it is possible to get six bullets into the rifle if you put one into the breach, but that was something he never did. According to the appellant, on the night of the incident he noticed with the first couple of shots that there was a lot of smoke from the rifle which he presumed was a result of the barrel being oiled. He said that after servicing the barrel usually you would expect to have a bit more smoke than usual. The only comment he was able to make in relation to the trigger pressure was that it may have been oiled recently by the gunsmith because he certainly could not tell the difference between half pressure and full pressure.
49 The appellant said there were no bullets in the breach until they got close to where the animals were and that he had the safety on at all times. He said: "I always keep the safety on. It's been a fundamental rule of mine ever since I was a kid". On the appellant's evidence, he would only move the safety catch when he was lining up either a kangaroo or a rabbit.
50 Initially the appellant said that he had "a few shots" before stopping at the sprinkler "on the way back". Later in his evidence he said this:
"I fired probably four or five times, as - as we went around the circuit; in the distance, a couple of kangaroos which we had looked like hitting, as Paul said, and a couple of - - and a couple of rabbits, so it was a fairly quick circuit."
51 Because the conduct of the appellant with respect to the rifle is central to the resolution of the appeal, it is preferable to rely on the exact words used by the appellant to explain what occurred when his son stopped the utility to check the sprinkler. The appellant said:
"So he stopped, and was looking for the sprinkler on the ground outside the door of the - - of the ute, and at that stage obviously, being dark and top of the sprinkler being very small, I got out of the - - the passenger side window, and climbed into the back of the ute to provide some more light … I took the gun with me, as I climbed out of the ute. The - - the - - the light has a flexi-cord - - a curly cord that was in the cigarette lighter, and as I got out onto the back of the ute - - I took the gun with me, out onto the back of the ute. At no time did I point the gun in - - in Paul's direction - directly at Paul at all. The gun was at least 45 degrees away, so that he was in the peripheral light of the - - of the spotlight - - ."
(Page 21)
52 The appellant was asked what he would say to the proposition that he actually pointed the gun at his son. He replied:
"Well, I think it's an insult to my intelligence, for a start, but I've never, ever pointed a gun at anybody, whether full or empty, and nobody who did that … but always very careful in - in where I point firearms, knowing full well - - particularly at that range, with a high powered rifle."
53 The appellant continued his account of the event. He said:
"I'm pointing the light away on an angle … shining it on to the Macadamia tree, so there's sort of a reflected light off the Macadamia tree, and, of course, not pointing it in his - - at his - - at him at all, but pointing it on the ground. We're looking for the sprinkler top. I wasn't looking to shoot anything else. I just wanted to use that as the light. So I had the - - the gun in the pistol - - on the pistol grip, and I had the cord, which was coming out of the window of the ute, behind me like this … , and I was holding it tight like that with the gun in this hand, and - - and when Paul asked for some more light, obviously, this was fairly tight, and when it - - it could have been hooked on the lip of the - - of the windowsill - - I don't know - - but as I pulled further on that cord, that action, it went - - the gun went off … "
- He denied intentionally firing the gun.
54 The appellant said that the last shot he had was at a rabbit about five minutes before they got to the Macadamia trees. Significantly, he said he was not intending to do any more shooting that night. On that basis, the duty to make safe the rifle was not affected by the circumstance that he would need to fire it within a short period of time. In that circumstance, it was open to the appellant to have checked to see if the rifle was empty and unloaded it if it was. He could even have removed the bolt if he wished to make sure the rifle could not be fired in any circumstance. The appellant said that, at that stage, he thought the gun was empty and the safety was on. He said it was never ever contemplated that the gun would go off. Of course, that observation would be true of almost every person charged with an offence based on the criminally negligent handling of a firearm.
55 It is apparent that when the appellant first spoke in his evidence about the safety catch, the appellant said that he thought the safety was on.
(Page 22)
- The appellant was then asked by his counsel if he could remember in what state the safety catch was at the time he arrived at the Macadamia trees. He said: "Immediately after the last shot, I would have always put the safety on just by habit". Again, his response did not include a belief based on his recollection of what he in fact did on that occasion. It was made clear to him that it was not his habit but what he actually did that the Court needed to know. He then said: "As soon as we had the last shot, I put the safety on." He was again asked what his belief was in the state of the safety catch as he approached the Macadamia trees. He said that he understood the safety catch to be on and therefore the gun could not be fired: (at 65). His next statement on the issue was that he was "firm of the belief" that the safety catch was on. At another point in his evidence he said that, when he pointed the rifle in the general direction of his son and the tree, he believed the safety catch was on and, therefore, the gun could not be fired. The appellant also said that he could not really recall exactly what happened. He said it was obvious that the safety was dislodged at some stage between when he was in the utility and when the gun went off because his habit has always been to put the safety catch off so he would have automatically done that. It is presumed that the appellant meant to say that it was his habit to put the safety catch on.
56 Under cross-examination the appellant agreed that he was presuming the safety catch was on because that was his habit. However, when it was put to him that he did not have an independent recollection of being able to recall checking the safety he said: "Yes. After the last shot, I always put the safety catch on". He was then asked: But do you have an independent recollection of that occurring. He said "No". He added that he could not recollect actually checking whether the safety was on but he always put the safety catch on.
57 In my view, the only conclusion which can be drawn from the evidence on this issue is that the appellant never checked if the safety was on and any belief he had that the safety was on was a presumption based on what he usually did.
58 The appellant was asked about his belief as to whether the rifle was loaded. He said: "I really thought that the gun was empty, actually. Obviously, there was a bullet in the … breach." Again, the appellant did not make a statement of fact or recollection as to whether the rifle was loaded, stating only his belief. Under cross-examination the appellant conceded that he had not checked to see if the rifle was empty when he got out of the car to use the spotlight as a light. He simply presumed it was empty. He was aware that the bolt was in place in the locked down
(Page 23)
- position and the rifle was ready to fire if the safety was not on. He was asked why he had left the gun in a locked position and it was put to him that he could have unlocked the bolt. He said: "Well, that's what I normally do". My understanding of that evidence, based on subsequent comments, is that leaving the bolt locked down is what the appellant would normally do and that is how he stores the rifle. On the appellant's evidence then, the appellant was using the safety catch as a safety device for a gun he believed to be empty.
59 The appellant's evidence about the number of shots he fired is such that he could not reasonably have formed any firm view on whether the rifle was loaded when it was used to provide light for the son to inspect the broken sprinkler. It is clear from his evidence under cross-examination that he did not check the rifle, he simply made a presumption that it was not loaded. In my view, presuming a rifle is empty does not discharge a duty to ensure that a rifle is empty, nor does it discharge a duty to ensure that a firearm is safe. It would be necessary to check the firearm or specifically recall the result of a recent check before a conclusion could be drawn that the firearm was not loaded. Even the latter circumstance may not discharge the duty because of the imperfections of memory and, in particular, the impact of intervening events on a person's recollection of their previous actions.
60 In the course of his evidence the appellant provided an explanation for how the rifle may have fired. He said that it may well have been that the safety catch was dislodged as he climbed out of the window and onto the back of the utility. He added that it could have been as a result of the movement of his hand on the gun because he was pulling on the cord with his left hand and holding the gun and the grip on the other side. He was then asked if he was able to explain how the safety catch might have come off, if indeed it was on. He explained that it could have come off when he was climbing on to the back of the utility. He said it also could have come off as he pulled the cord; the cord possibly becoming hooked on the corner of the window of the utility and then, as he pulled or jerked the cord, it came off and that movement shifted the gun. He added that his finger was on the outside of the guard. He said that was his normal position when carrying a gun. The appellant maintained that if his finger was on the trigger it certainly would not have been intentionally. He was also asked whether he was conscious of the safety catch moving. He said he could not really recall.
61 The appellant was asked about the statement that he made to the police where he stated that he had his right hand on the grip with his index
(Page 24)
- finger on the trigger guard. He agreed that was what he had been saying in his evidence. He also agreed that he was pulling on the cord to try and stretch it further. However, he said that at no time was the rifle pointed directly at his son. He was asked to explain how it was then that the shot which was discharged actually hit his son if the gun was not facing in his direction. His response was that obviously the reaction of pulling the cord, and the movement of his left hand in conjunction with the right hand, caused the rifle finally to be pointed at him. However, he maintained that it certainly was not his intention to point the gun at his son. Curiously, contrary to the evidence of the son, the appellant maintained that his son was directly facing him at the time he was hit in the left thumb.
62 The appellant's account of what he did immediately after his son was injured, provides a clear account of the sort of conduct which would ensure that a rifle which was no longer being used was safe. He said he took the cord out of the cigarette lighter, made sure the gun was unloaded, removed the bolt and the magazine and put them in the front of the utility and laid the rifle on the back floor of the utility. He made no examination of the safety catch area. He presumed it had been off because the gun had discharged.
63 In cross-examination the appellant agreed that, whilst he and his son were keen to get back home because it was the end of a long day, there was no urgent need to do so. He maintained that he had fired four to five shots despite the fact that, in his statement to the police, his account was that he had tried to shoot a couple of rabbits twice but missed and that he agreed that a person's recollection is always better just after the event rather than months later. Accepting, for the purpose of questioning, that the account given to the police equated to using four bullets, the appellant was asked to explain the discrepancy. He then, for the first time, either to the police or in his evidence, mentioned that he had shot at a kangaroo in the distance as well as the three or four shots at the rabbits. The appellant explained that the statement to the police was made when he was attempting to find a hand surgeon for his son and it was not paramount in his mind. However, that would not explain why he had not mentioned it previously in the course of his evidence.
64 The appellant was also asked if there was any reason why he did not disengage the light, leave the rifle in the cabin of the utility and take the light onto the back of the utility. He said he probably could have but he never thought about that, at that stage. "You know, stopping for the sprinkler might have been a 30-second stop. You know, we were on the
(Page 25)
- way home." At another point in his evidence the appellant agreed that it was simpler and quicker for him to take the rifle, with the light attached, and point it in the general direction of his son. However, it remains the fact that, on the appellant's evidence, he had finished shooting. Irrespective of the length of the stop at the sprinkler, there was no impediment to emptying the rifle and taking the light off; something that would no doubt be done in any event when they arrived home and the rifle was stored. The appellant agreed that it would have been safer to do so. Clearly the factor operating on the appellant's mind at the time was to repair the sprinkler as quickly as possible.
65 When asked whether he could have used the headlights of the utility to illuminate the sprinkler he said that his son would have to be asked this question because he was driving the utility. When it was suggested to him that, as his son was the one asking for the light, the appellant could have simply reversed the utility, his response was "Possibly". When pressed, the appellant conceded that he could have reversed the utility if he had wanted to but he questioned whether that would have given the light that was necessary bearing in mind that the sprinkler was under the tree. However, the photograph of the scene which was tendered into evidence shows that the sprinklers sit well above the ground and that the tree foliage is well above the sprinklers. It is not immediately apparent why the utility headlights would not have improved the lighting situation. In any event, it could be said that it was at least worth making an attempt before using a loaded firearm as a light source with the attendant risks involved.
66 Unfortunately, in terms of the risk involved, the appellant chose the means of providing light which carried with it the most risk. Indeed, he chose the only means available to him which carried any risk at all. However, it is not the appellant's choice of options which is under consideration; it is whether he took sufficient care and precautions with respect to the option he did choose.
67 The appellant was asked what the first thing was that he did when he realised he had shot his son. His response was that he jumped down from the utility and saw him. He then went back to the gun, took the bolt and the magazine out and put it in the front of the utility. That, of course, is contrary to the chronology given to the police officer shortly after the event. In his statement the appellant said that he made safe the rifle before going to his son's aid. Following his evidence under cross-examination, it was not clear whether he took the bolt and the magazine out of the rifle before checking on his son and then returned to
(Page 26)
- collect the bolt and magazine and put it in the front of the utility leaving the rifle in the back. His explanation for doing so was that he did not want a loaded gun bouncing round the back of the utility. He corrected that to a "possibly" loaded gun.
68 He did agree that what he had done had rendered the rifle perfectly safe and that it could not have fired because it had no bullets in it. He also agreed that he could have removed the bolt and the magazine in the first place before getting onto the back of the utility in a relatively precarious position trying to tug the cord and at the same time pointing the light in the general direction of his son.
69 The appellant was asked why he went to the extra step of ensuring that the bolt and magazine were removed when he could have just put the safety on, which, prior to the event, he said he believed was appropriate. He said he could have put the safety on. He added that he was not sure if he did or not at that stage.
70 The appellant also said that when he got onto the back of the utility he pointed the gun away from his son, at the Macadamia tree, so that his son was in the peripheral light. Then, when his son asked for some more light, he pulled on the cord. As I have noted, this account is not consistent with that of the son. The appellant explained that it was only that action of pulling the cord that caused the rifle to go that much closer. Otherwise, he said, he would not have been pointing it anywhere near his son. The appellant made that observation despite the fact that he was trying to get the beam to move closer to his son. He said there was no way that he would ever have pointed the gun at his son because it is dangerous.
71 Despite maintaining that he took care when handling weapons, the appellant agreed that, when he got out of the utility he made a number of assumptions. He assumed that the gun was empty and he assumed that the safety was on; even though he was not in a hurry and could have checked if he had wished to. Under cross-examination the appellant maintained that at no time did he point the gun at his son. He agreed that he did point it in his general vicinity. He agreed that pulling the cord as he was climbing in the back of the utility with a gun was somewhat cumbersome. Despite making these concessions, the appellant prevaricated when asked whether pointing a gun in the general vicinity of a person constituted a general danger in circumstances where the gun had not been checked to see if it was loaded or had the safety catch on. Ultimately, his response was to state that the gun was pointing in the general direction of the Macadamia tree. The significance of the
(Page 27)
- distinction is not apparent when one considers that the son was standing in front of the tree at the time. In re-examination the appellant was asked whether he considered that having the safety catch on was, at the time, adequate to ensure the safety of the rifle. He said: "Obviously, if the safety catch is on, the rifle can't go off".
Ground 1
72 Under this ground the appellant alleges that the learned Magistrate erred in law by failing to properly consider whether the act of engaging the safety catch discharged the duty under s 266 of the Criminal Code. It is said that the Magistrate simply applied an incorrect test in relation to whether or not there had been a breach of the duty imposed by s 266 in that he judged the appellant's conduct by reference to what he did not do, rather than by reference to what he did do. Counsel for the appellant submitted that the learned Magistrate approached the task of determining what conduct on the part of the appellant was required in the circumstances to discharge the duty, by considering whether the test identified by the respondent was a reasonable one. Support for that submission is said to be found in the following statement made by the Magistrate:
"There can be no argument that it is unreasonable to expect and require that on the completion of the use of a firearm that all unused bullets be removed from the firearm."
73 On the appellant's position, the fact that there might have been different or more effective measures which could have been taken to minimise or prevent exposure to the danger does not lead inevitably to the conclusion that the measures which were adopted by the appellant were not reasonable in the circumstances. In this case, the fact that the standard of care that the prosecution were asserting (that the rifle be checked to see if it is loaded and then unloaded if necessary) was a reasonable course to take does not mean that the course adopted by the appellant of putting the safety catch on was not reasonable. To the contrary, it is said that, if you have a belief that the rifle is empty and you have the safety catch on, that conduct would satisfy the minimum requirement of the duty. In this regard, it is submitted by counsel for the appellant that the use of the safety catch was uncontentious and unchallenged. Counsel also referred to Constable Malonas' evidence that it would be a reasonable precaution to ensure a gun did not go off to put the safety catch on.
74 Each of these propositions needs to be considered in light of both the evidence and the reasons given by the learned Magistrate. Further, the
(Page 28)
- specific statements of the Magistrate relied upon by the appellant must be considered in their context.
75 In his reasons for decision, the learned Magistrate outlined the relevant statutory provisions. He then concluded that there could be no dispute that a rifle is a dangerous thing. He outlined the relevant duty as requiring the person in charge of a rifle "to take reasonable care and take reasonable precautions to avoid such danger". It is clear that he understood the general nature of the duty; that is, he understood that the conduct required to satisfy the duty must be such as to avoid the danger but the conduct must also be reasonable.
76 The learned Magistrate drew the conclusion that the issue before the Court was the fact of the appellant's failure to unload the rifle prior to pointing it in the direction of his son. This is said to be based on the following statement of the prosecutor: "The prosecutions ultimate submission will be that the duty [required pursuant to section 266] was breached by his failure to unload the weapon". It is also said to be based on this statement of senior counsel for the appellant:
"… Its [sic] not about pointing a rifle, negligently pointing it, its failing to do something that he's required by law to do. This is about an omission and whether the omission of failing to unload is that which is caught."
- Specific reference was also made to the prosecution's letter of 7 September 2005 in which the omission in breach of the duty was identified as the failure to unload the rifle prior to pointing it at the complainant.
77 It is apparent from the trial transcript that the defence position was that the standard of care adopted by the appellant, placing the safety catch on, was sufficient to comply with the duty required of the appellant. The prosecution's position was always that the requirement to unload the gun was the minimum standard of care required to meet the duty and, therefore, an honest belief that the gun was empty and the safety catch on was insufficient and inadequate to discharge the duty. Not only are those issues apparent from the trial transcript, I consider they are also evident in the reasons for decision where both issues are clearly addressed. The reference in the early part of the reasons for decision to the duty to ensure that the gun was unloaded is not, in my view, a reference to a benchmark against which the appellant's conduct is to be considered. It is no more than an identification of what the responsent is required to establish in order for the charge to be proved.
(Page 29)
78 The Magistrate then addressed matters of fact, including the issue of the safety switch. He noted that at the moment the rifle discharged the safety switch was not on, but recognised that compliance with the duty falls to be considered at a point prior to the act which causes the injury. Reference was also made to the appellant's evidence that he always, as a matter of consistent practice, put the safety switch on when he finished shooting and also to his statement that, on this occasion, he would have put the safety switch on. The Magistrate also referred to the prosecution's apparent concession that it cannot be inferred from the fact that the gun fired that the safety catch was not put on at an earlier time.
79 In his summary of the evidence the Magistrate included reference to the appellant's understanding of whether the safety catch was on and whether there were any bullets left in the rifle. Mention is made of the fact that the son was not aware whether the safety catch was on or off although he did give evidence that his father was exceptionally careful and always put the safety catch on. The son's recollection of the number of shots which had been fired was three or four or possibly five. On this point, the appellant's evidence was that he had fired the rifle four or five times. Reference is also made in the Magistrate's reasons to the appellant's evidence that his fundamental rule was to put on the safety catch and to the fact that he was adamant that he had finished shooting and that after the last shot he put the safety catch on and as he got to the area of the broken sprinkler he understood that the gun was empty and the safety catch was on.
80 Significantly, the Magistrate's summary of the evidence includes the evidence concerning the circumstances in which the rifle came to discharge. Reference is made to the fact that the appellant got out of the utility cabin, climbed into the back of the utility to provide light from the spotlight by pointing the rifle at a 45 degree angle away from his son. The Magistrate states that, in doing that the appellant needed to stretch the spotlight cord to enable him to give more light to his son and he unwittingly pulled the rifle around so that it was pointing at his son as the trigger was accidentally pulled. Specific reference was made by the Magistrate to the appellant's demonstration of how his finger was on the guard of the gun and not the trigger and of how his finger must have slipped off the trigger. I consider the final sentence in the Magistrate's reference to the appellant's account of the incident to be particularly relevant to the proposition being put on behalf of the appellant. The Magistrate states:
(Page 30)
- "He indicated how his finger must have slipped off the trigger and suggested that the safety catch must have come dislodged between getting out of the cabin and onto the back, of the ute."
- I presume the Magistrate meant that the appellant indicated how his finger slipped off the trigger guard on to the trigger. Indeed, in the very next paragraph the Magistrate said this:
"… in the process of manoeuvring the beam of the spot light into a better position he inadvertently pulled the rifle in such a manner that it pointed at his son the moment his finger slipped onto the trigger."
82 Having considered the evidence, the Magistrate then addressed the efficacy of the conduct identified by the prosecution and that identified by the defence. He states:
"The prosecution concedes that it would have been unable to prove one way or the other whether Mr Omodei Snr had turned [the safety catch] on when he finished shooting. The prosecution did, however, make the point that even if Mr Omodei Snr did put the safety switch on when he finished shooting, it was insufficient to prevent the firearm from subsequently discharging, under the peculiar circumstances [in] which it did discharge.
… there can be no doubt that Mr Omodei Snr omitted to remove the last bullet from the magazine when he finished shooting. I can readily accept that it was his understanding, his belief that he had used all the bullets and that there were none left in the magazine or barrel. But no matter how strong that belief was and no matter how he came to that conclusion the simple undeniable fact is that there was at least one bullet left in the gun when he finished shooting. And there can be no dispute that if he had taken the steps to examine the magazine and the barrel and remove any remaining bullets, then the rifle would not and could not have discharged under any circumstances."
(Page 31)
83 In my view, it is apparent from this analysis that the Magistrate has indeed considered whether the act of engaging the safety catch discharged the duty under s 266 of the Criminal Code and found that, in the "peculiar" circumstances in which the appellant was using the rifle, it did not discharge the duty because it did not prevent the rifle from firing, and hence did not avoid the danger inherent in firearms. However, having considered the conduct identified by the respondent, ensuring that the rifle was empty, the Magistrate concluded that such conduct would ensure that the rifle would not, and could not, discharge under any circumstances.
84 When the portion of the reasons of which complaint is made is considered in this context, the error of principle alleged is not apparent. The proposition that the appellant could have absolutely avoided the danger by checking for and then removing any remaining bullets from the magazine and the barrel of the rifle is a statement of fact rather than principle; it is not an identification of the nature of the duty as one requiring the absolute prevention of harm. In my view, the word "absolutely" describes the effectiveness of the care taken, not the degree of care required.
85 The observation that the appellant could have absolutely avoided the danger by checking the rifle to see if it was empty leads into the next two, somewhat tautologous, paragraphs which state:
"I can see no scope for an argument that the simple act of removing the bullets from the gun on the completion of its use could be anything but using reasonable care and taking reasonable precautions.
There can be no argument that it is unreasonable to expect and require that on the completion of the use of a firearm that all unused bullets be removed form the firearm."
86 When these observations are considered in the context which I have identified above, it is apparent that they are no more than a poorly expressed way of describing the Magistrate's conclusion. That is, that checking the firearm to ensure it is empty is the standard of care required of the user of a rifle, in the circumstances which here applied. The effect of taking that degree of care, as the Magistrate observed, is to not only avoid but actually remove the danger to the life, safety and health of others of using the firearm in the relevant circumstances.
87 One matter raised on behalf of the appellant in support of this ground of appeal was the evidence of Constable Malonas that it would be a
(Page 32)
- reasonable precaution to ensure a gun did not go off to put the safety catch on. It is the case that the learned Magistrate did not refer to that evidence. The only reference to the evidence of Constable Malonas was to the fact that the appellant's rifle had failed the "trigger pressure" test which was said by the Magistrate to have obviously enhanced the prospect of an accidental firing. However, I am not persuaded that the failure to refer to Constable Malonas' evidence on the use of a safety catch constitutes a failure to consider evidence which would have an affect on the outcome of the case. Constable Malonas's evidence was that the best way to ensure that a gun cannot be fired is to unload it. He also stated that, in order to prevent a gun from being able to be fired, the safety would have to be placed in the "safe" position and there would have to be no cartridges inside the chamber. He also reinforced the view that it is a principle of firearm safety that one should never point a loaded gun at anybody. In cross-examination, Constable Malonas did agree that, in normal circumstances, it would be a reasonable precaution to take in ensuring that a gun did not go off, to activate the safety. He also agreed that someone would be diligent if they did that. However, Constable Malonas was not asked by either party to elaborate on what he meant by "normal circumstances". As I have indicated earlier in these reasons, it is possible to imagine a set of circumstances where it would be a reasonable and adequate precaution to use the safety catch as a method of preventing a rifle from firing. However, taking the evidence of Constable Malonas as a whole, I do not accept that those circumstances include the circumstance where the rifle is being pointed near, or in the general direction of, another person, particularly where the person holding the rifle is engaged in some other activity which might affect his or her balance or the hold he or she has on the rifle. Neither would it be acceptable in circumstances where there was any possibility that the safety catch might be dislodged.
88 The circumstances of this case are that, whilst holding a rifle the appellant had not ensured was empty and which was attached to a flexi-cord attached to the interior of a utility, the appellant got out the window of the utility, climbed onto the tray, pointed the rifle not at but near a person and pivoted whilst stretching with one hand the cord across the gun in the area of the safety catch whilst his right hand was on the grip and his finger on the trigger guard of the rifle. On no view could those circumstances be regarded as "normal".
89 As I have already indicated, the scenarios put to Constable Malonas underline the importance, in the circumstances which applied in this case, of doing something other than putting on a safety catch in order to ensure that the rifle did not present a danger. I consider that there was nothing in
(Page 33)
- the evidence of Constable Malonas to support the proposition that, in the circumstances confronting the appellant, using only the safety catch was adequate care in the use of a firearm.
90 Neither do I accept the appellant's proposition that the use of the safety catch was noncontentious. The fact that it was conceded by the respondent that it could not prove that the appellant did not actually put the safety catch on does not mean that it was accepted that the appellant did indeed ensure that the safety catch was on. In any event, it is clear from the evidence of the appellant, himself, that he did not check the situation of the safety catch, relying only on his usual practice. He did not even suggest that he had a recollection of putting the safety catch on. In those circumstances, it was open to the Magistrate to conclude that the appellant failed to ensure that the safety catch was on.
91 In his reasons for decision the Magistrate referred to the appellant's evidence that the safety catch was on "as this is a fundamental rule which he follows and that on this occasion he would have put the safety switch on". Later in his reasons, the learned Magistrate made reference to the appellant's evidence that "after the last shot he put the safety catch [on]" and that "he understood … the safety catch was on". The Magistrate also made the following observation:
"His evidence was that on this occasion he would have put the safety switch on. The prosecution conceded that they could produce no evidence that Mr Omodei Snr did not put the safety switch on at the moment that he completed shooting. The prosecution also seems to be conceding that, from the fact that the safety catch was not on at the moment the gun was fired it cannot be inferred that Mr Omodei Snr did not put it on when he finished shooting."
117 In R v Hodgetts and Jackson [1990] 1 Qd R 456 the appellants were butchers at a shopping centre. The deceased was a vagrant who rummaged in rubbish bins in the area. The appellants added a meat preservative, sodium metabisulphite, to a partially filled can of Coca-Cola which they left near a rubbish bin where the deceased might consume it. The appellants' thought that the bad taste of the preservative would cause the deceased to spit it out. They did not think it was particularly dangerous. The deceased, who at the time suffered from a number of serious illnesses, consumed the contents of the can and died three hours later.
118 Section 289 is the provision of the Criminal Code (Qld) which deals with the duty to take reasonable care and precautions when in control of a dangerous thing. The equivalent provision in the Criminal Code is s 266. Where in these reasons s 289 is referred to, it can be read as a reference to s 266.
119 The Court held that in a case where s 289 of the Criminal Code (Qld) applied, the jury might not convict unless satisfied that criminal negligence had been proved. Proof of criminal negligence was said to require proof of recklessness involving grave moral guilt. Relying on the decisions in Callaghan v The Queen (supra) and Evgeniou v The Queen (1964) 37 ALJR 508, the Court also held that no defence was open under
(Page 42)
- s 23. The question of foreseeability of serious harm was found to be relevant to whether or not criminal negligence was established but not to causation of death: (at 456).
120 In the course of the judgment of Thomas J, reference was made to Evgeniou v The Queen (supra) in which it was held by the High Court (per McTiernan and Menzies JJ (at 510), per Taylor J (at 511) and Owen J (at 513)) that in a case to which s 289 applies, that is to say in a case where what is alleged is death resulting from failure on the part of a person in charge of or in control of a thing that, carelessly used, may endanger life, to use reasonable care or take reasonable precautions as required by s 289, liability has to be determined by reference to s 289 and s 281 and without resort to s 23: (at 461). Thomas J also considered (at 460) that the approach adopted by the High Court in Evgeniou v The Queen (supra) was amply supported by the following passage in Callaghan v The Queen (supra) (at 119):
"(B)ecause section 23 is qualified by being made subject to the provisions relating to negligent acts and omissions, and s 289 is such a provision, it must be taken that the fact that an event causing death occurs independently of the exercise of the accused's will, or by accident, can afford no excuse within s 291 if it falls within s 259."
- In summarising the principles stated by the High Court in Callaghan v The Queen (supra) and Evgeniou v The Queen (supra), Thomas J included the following principles (at 461):
(i) The jury may not convict unless satisfied that criminal negligence has been proved.
(ii) Appropriate directions on the nature of proof of criminal negligence are now well established. They require, inter alia, recklessness involving grave moral guilt.
(iii) No defence is open under s 23. The gist of the available "defence" will be that the alleged breach of duty falls short of the high standard of negligence necessary to constitute "a crime against the State".
His Honour also noted that the only area in which questions of foreseeability arise is in the determination of the question of criminal negligence. He observed (at 463) that s 289 imposes no duty to guard against dangers that are not reasonably foreseeable. Thomas J concluded that it was not necessary for the precise result to be foreseen or
(Page 43)
- foreseeable, although in most cases the accused could not be found criminally negligent unless some serious harm, at least, was reasonably foreseeable: (at 463 - 464). Criminal negligence necessarily involves an evaluation of the foreseeability of serious harm.
121 Thomas J concluded his comments by making the following observation (at 464):
"This is really a classical example of a case based on criminal negligence. It was not just an alternative to a different case in the event that that case could not be proved … Unless it could prove criminal negligence the State had no case to go to the jury."
- This observation identifies the distinction between the type of case which the Magistrate was obliged to determine and the type of case under consideration in R v Lamb (supra).
122 Both Derrington J and Ambrose J accepted and applied the decisions in Callaghan v The Queen (supra) and Evgeniou v The Queen (supra). Derrington J concluded (at 471) that, in cases which relied upon negligence, the act was unlawful only when the negligence attained the criminal standard. This conclusion was stated to be reached by reading s 23 and s 289 together. Ambrose J considered (at 480) that there could be little doubt that the mixture of Coca Cola and sodium metabisulphate was a thing of such a nature that, in the absence of care or precaution in its use or management the life of a person would have been endangered should he drink it. He observed that whether this ought to have been known or foreseeable by the appellants, was a jury question to be answered on the evidence. Ambrose J concluded (at 480):
"In my view the gravamen of the charge against the appellant was criminal negligence. The jury ought to have been directed to consider, amongst other things, the knowledge and the state of mind of both appellants, in particular where they foresaw or ought to have foreseen that what they were doing would put Kennedy at risk of serious injury or death … "
123 In R v Guise (1998) 101 A Crim R 143 the appellant shot her mother with a pistol when, on her evidence, she had only intended to scare her mother. One of the critical issues in the trial was whether the accused had unlawfully killed her mother. Therefore, the obligation was on the Crown to prove beyond reasonable doubt that neither limb of s 23 of the Criminal Code applied.
(Page 44)
124 Ambrose J, with whom Lee J agreed, stated (at 147):
"In my view, in spite of the failure of counsel for the appellant to raise s 23, nevertheless, the evidence given by the appellant was such as to make it necessary for the learned trial judge to sum up to the jury on the whole of the evidence with reference to s 23 and s 289 [equivalent to s 266] of the Criminal Code (Qld).
At the outset, I must observe that the evidence given by the appellant impresses one as being highly improbable …
On the other hand in my view, the appellant made it clear in her evidence that the discharge of the pistol did not result from her willed act."
125 Ambrose J continued in this vein by noting that, despite the almost overwhelming evidence that the shooting was willed and voluntary, the appellant gave evidence that she did not voluntarily discharge the pistol and hence a traditional direction should have been given to the jury which would necessarily have involved a direction on s 289 "because … s 23 is subject to the express provisions of s 289 [s 266]". His Honour expressed the opinion that, had a traditional direction on s 23 been given to the jury in that case, "it goes without saying that there would also have been a direction on s 289".
126 Pincus J took a somewhat different approach (at 144) emphasising that, although it was clear enough that the issue raised at trial was whether the appellant shot her mother intentionally, it was not quite clear what hypothesis alternative to a deliberate shooting the jury was being invited to think about. In his judgment, Pincus J referred to various decisions, including Callaghan v The Queen (supra) (at 119) and Evgeniou v The Queen (supra) (at 511, 513), in which the conclusion reached was that s 23 had no relevance in criminal negligence cases. He also made the following observation (at 145):
"There was no occasion for the judge to refer to s 23, because the Crown's case on manslaughter rested on s 289 and in such a case s 23 is irrelevant."
127 In the course of argument in R v Guise (supra), the case of R v O'Halloran [1967] Qd R 1 was also raised. In R v O'Halloran (supra), the appellant killed a parent by shooting but gave evidence that the only
(Page 45)
- intention was to scare the victim. The charge was one of wilful murder. Pincus J held (at 145):
"In O'Halloran one finds neither reference to s 289 nor to the two High Court cases I have mentioned, but the case was decided on the basis that to prove manslaughter, it was necessary for the Crown to satisfy the jury that there was criminal negligence, that being consistent with the High Court decisions. It does not appear to me, however, that the decision is directly applicable here; the question in O'Halloran was essentially whether on the facts any question of negligence arose; it was the problem which divided the court."
"The starting point is that once there is a plea of not guilty, the Crown must prove every element of any crime covered by the indictment before the jury can convict. Furthermore, it is always in the power of a jury to acquit and that power cannot be denied: Gammage (1969) 122 CLR 444. Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit the defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused."
129 The conclusion reached by Pincus J was that the case was left on a wrong basis; as a choice between murder and manslaughter. It was explained to the jury what was entailed in reaching the former verdict, but not the latter.
130 With the exception of R v Hodgetts and Jackson (supra), the above cases fall into the category of trials held before a jury the members of which, if not satisfied that there had been a breach of the duty to take reasonable care and precautions, would be required to determine whether the event on which the charge was based occurred by accident. The following cases deal more specifically with the relationship between criminal negligence and the defence of accident under s 23 of the Criminal Code.
(Page 46)
131 In Agnew v The Queen (supra) the Court of Criminal Appeal of Western Australia addressed the issue of accident in the context of a murder by shooting. The ground of appeal suggested that the weapon was defective although, as Murray J observed (at 4), there was no evidence that this was so. In my view, the portions of the judgment relied upon by the defence do not support the proposition with respect to which they are cited. From the outset Murray J, with whom Anderson J agreed, makes it clear (at 4) that the operation of s 23 is expressly made subject to the provisions of the Criminal Code relating to negligent acts and omissions. Murray J addresses the proposition put on behalf of the appellant that the Judge should have explained to the jury the distinction between the two limbs of s 23 and, in effect, to have given them an explanation of the law as to the different ways by which the application of s 23 may negate criminal responsibility for an act which occurs independently of the exercise of the will of the accused or an event which occurs by accident.
132 According to Murray J (at 11), a trial Judge is only obliged to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the Court thinks fit to make. His Honour made it clear (at 11 - 12) that it is only helpful to a jury to be told so much of the law as is fairly raised by the evidence and, therefore, as is required for the fact finding process upon which they are engaged. Significantly, Murray J noted (at 13) that an accused will remain criminally responsible for the death although it occurs by accident if the death was caused by an act or omission in breach of a duty of care, in this case the duty to control the dangerous thing, in the terms provided by s 266 of the Criminal Code. With respect to the trial Judge's direction to the jury that the "defence" of accident would be negated (a reference to the second limb of s 23) if the death was established to be the result of negligence, Murray J expressed the view (at 24) that "the directions of the trial Judge cannot be faulted". That view was held despite the fact that the trial Judge did not expressly tell the jury what an accident was, within the meaning of s 23. I consider that this decision actually supports the approach taken by the Magistrate in determining that the critical issue was whether the appellant had breached the duty of care placed upon him as the person in control of a dangerous thing.
133 In R v EMJ (supra) the accused admitted administering a syringe of heroin to the deceased and was tried for manslaughter. To establish that the killing was unlawful in the circumstances of the case the prosecution had to establish beyond reasonable doubt that it was not an event which occurred by accident or alternatively to establish that the defendant's conduct amounted to criminal negligence (per French J (at 269) following
(Page 47)
- Griffiths v The Queen (1994) 69 ALJR 77 (at 79)). Her Honour observed that an event (in this case the death of the deceased) occurs by accident if it was a consequence not intended or foreseen and which would not reasonably have been foreseen by an ordinary person: see Kaporonovski v The Queen (1973) 133 CLR 209. Section 266 was referred to as the relevant provision of negligence that qualifies the defence of accident. On the issue of whether s 23 applied, her Honour held (at 270):
"However, in the circumstances of this case I am satisfied that if the Crown alleged gross criminal negligence on the basis of a failure to exercise the duty of care imposed by s 266, the question of accident would still arise for consideration if such a breach or gross criminal negligence was not established to the required degree."
135 In support of this ground of appeal, counsel for the appellant made the following submission:
"The implicit acceptance by the learned Magistrate that the firearm came to be discharged in the manner described by the Appellant (and therefore that his son came to be endangered as a consequence of circumstances not amounting to criminal negligence) is at odds with his Honour' conclusion that the appellant failed to discharge the duty imposed on him pursuant to s 266 (ie, that he was criminally negligent)."
- The major flaw in that submission is the assumption that acceptance by the Magistrate that the safety catch became disengaged other than by the appellant, that the act of firing the rifle was unwilled, and the shooting of the son was unintended, equates to a conclusion that the appellant was not criminally negligent. Such a submission completely ignores the role of the breach of the duty of care in determining criminal negligence and is contrary to the decision of the Court of Criminal Appeal in Agnew v The Queen (supra).
136 Based on the authorities, any finding that the appellant believed that the rifle was safe, that the harm caused was not deliberate and was not
(Page 48)
- intended and that the accused did not foresee that serious harm would occur, does not determine the issue of criminal negligence. It is always open to the tribunal of fact to conclude that the appellant's conduct was not adequate to meet the duty imposed on him. In those circumstances the only obligation of the Magistrate was to consider the question of foreseeability of serious harm or "accident" when deciding whether criminal negligence is established.
137 The defence submits that, in order for there to be criminal negligence, it is necessary that there be a degree of recklessness and serious moral guilt such as to go beyond a matter of compensation and to require punishment. I accept that this submission adequately reflects the level of negligence to which s 266 refers. It was submitted on behalf of the appellant that, in all the circumstances of this case, those features were absent. Further, the defence submits that the Magistrate failed to take into account the evidence of the appellant which is said to be inconsistent with a finding of criminal negligence.
138 The respondent accepts, as do I, that in reaching his decision, the Magistrate does not use the terminology found in the authorities to which I have referred. However, it does not follow that he has not addressed those issues which he is required to consider. The appellant's account of the circumstances leading to the discharge of the rifle is referred to in some detail in the reasons for decision. The Magistrate refers to the appellant's belief that there were no bullets in the gun and stated that he understood how that belief came about. However, he refers to "the simple undeniable fact" that there was at least one bullet left in the firearm at the time the appellant used it as a light. The Magistrate also refers to the appellant's understanding as to whether the safety catch was on as well as to the uncontroverted evidence that the safety catch was not in the "safe" position when the rifle discharged.
139 I have already referred to the fact that, in my view, the Magistrate was not obliged to consider the defence of accident but was required to consider the question of foreseeability of serious harm or "accident" when deciding whether criminal negligence has been established. Although the Magistrate makes no mention of such a requirement, it is apparent that he considered all the evidence relevant to the issue of criminal negligence but nevertheless reached the conclusion that criminal negligence had been established. I am not persuaded that the Magistrate erred in reaching that conclusion nor that he failed to take into account any relevant factor in doing so. In my view, even if the appellant did not foresee that serious harm might result from his handling of the firearm on that night, no
(Page 49)
- reasonable person could have failed to foresee that using a rifle in the manner in which the appellant used it in circumstances where he had not checked to see if it was loaded and, indeed, had no actual and firm recollection of whether there were any bullets left, was likely to cause serious harm.
140 The duty on the appellant was to make safe the firearm. Even on his own evidence, the appellant failed to make sure the gun was not loaded and it was that omission which was the basis of the allegation of criminal negligence. The decision for the Magistrate was to assess the degree of criminality of that conduct. That being the case, matters such as whether the safety catch was accidentally dislodged or the trigger was inadvertently pulled become of little relevance in determining whether the description of criminal negligence can be attributed to the appellant's failure to make safe the firearm.
141 I would dismiss this ground of appeal.
Ground 4
142 It was also submitted by counsel for the appellant that the Magistrate failed to consider the "defence" under s 24 of the Criminal Code that the appellant honestly and reasonably believed that the rifle was empty and therefore failed to consider whether the respondent had negated the s 24 "defence". It was further said that the Magistrate implicitly characterised the appellant's honest and reasonable belief that the rifle was empty as irrelevant to the issue for determination.
143 Counsel for the appellant submitted that it was clear from the submissions advanced on behalf of the appellant that it was his contention that an honest and reasonable mistake of fact on his part operated to relieve him of any criminal responsibility for his failure to unload the gun. The honest and reasonable mistake contended for by the appellant was his belief that he had used all the bullets. Support for that proposition is said to be found in the Magistrate's statement that he could readily accept that the appellant believed that he had used all the bullets. It is said that it is implicit from the Magistrate's acceptance of the appellant's understanding that he found this mistake on the part of the appellant to be both honest and reasonable. I do not accept that the Magistrate's statement that he accepted the appellant's mistake of fact also involved an acceptance that the mistake was reasonable. The Magistrate's observation is, in effect, a conclusion that the appellant was being truthful in his evidence on this point.
(Page 50)
144 Reliance was placed by the defence on the decision of the Court of Appeal of Western Australia in Pacino v The Queen (supra). In Pacino v The Queen (supra) the appellant was charged with manslaughter. The State alleged that, in breach of his duty under s 266 of the Criminal Code the applicant, having in his charge or under his control, four dogs of such a nature that, in the absence of care and protection, the life safety or health of a person might have been endangered, had failed to use reasonable care and take reasonable precautions to avoid that danger. As a result of that breach he was said to have caused the death of the deceased who died as a result of an attack made upon her by the applicant's four Rottweiler and Rottweiler-cross dogs. The appeal turned on whether the learned trial Judge was correct in declining to put to the jury a defence of honest and reasonable but mistaken belief on the part of the applicant that his four dogs were not such as might endanger life, safety or health of any person. The dogs were kept in an incomplete enclosure on a property rented by the appellant from the deceased who owned the property and regularly attended the property to tend a small vegetable garden. The breach of duty alleged against the appellant was his failure to confine the dogs.
145 Kennedy J (with whom Wallwork and Steytler JJ agreed) described the issue under consideration as being whether a defence of mistake under s 24 of the Criminal Code can be sustained where the basis of the offence is criminal negligence. The first observation made was that, contrary to the position with s 23, s 24 is not made "[s]ubject to the express provisions of this Code relating to negligent acts and omissions". In his analysis Kennedy J referred to the decision in R v Lamb (supra) which, as Kennedy J noted, was determined in accordance with the common law. The Court said (at 319):
"The general effect of the summing up was thus to withdraw from the jury the defence put forward on behalf of the defendant. When the gravamen of a charge is criminal negligence - often referred to as recklessness - of an accused, the jury have to consider among other things, the state of his mind and that includes the question of whether or not he thought that that which he was doing was safe. In the present case it would, of course, have been fully open to a jury, if properly directed, to find the defendant guilty because they considered his view as to there being no danger was formed in a criminally negligent way. But he was entitled to a direction that the jury should take into account the fact that he had undisputedly formed that view and that there was expert evidence as to this being an understandable view.
(Page 51)
- Strong though the evidence of criminal negligence was, the defendant was entitled as of right to have his defence considered, but he was not accorded this right and the jury was left without a direction on an essential matter. Those defects of themselves are such that the verdict cannot stand."
146 Kennedy J concluded (at 319 - 320):
"In my opinion, her Honour erred in holding that a defence under s 24 of the Code was not available to the applicant. In the present case, there was no evidence that the applicant's dogs had ever actually attacked a human notwithstanding the fact that they, or at least some of them, had been permitted to roam the neighbourhood. The applicant denied that they had ever bitten anyone. The victim had been a frequent visitor to her garden, with no suggestion of her having had any concerns regarding the dogs. The evidence of the applicant was to the effect that he did not believe they presented a risk to anyone. The evidence upon which the Crown fundamentally relied was that of an expert, who drew upon his background and training to say that the dogs presented a danger. But it remains possible that a reasonable person might honestly have believed that they did not present a risk to humans. In my opinion, therefore, this defence should have been left with the jury. I accept that the question of whether the dogs were such that, in the absence of care or precautions in their care or management, they might endanger the life, safety or health of a person is "a state of things" for the purpose of s 24. I do not accept that the operation of s 24 has been excluded by the implied provisions of s 266. This is not to say that a defence of mistake would necessarily have succeeded in this case. It was, however, a defence which the applicant was entitled to have the jury consider."
- The decision of the Court was to allow the ground of appeal, quash the conviction and order a retrial.
147 It is apparent from the decision in Pacino v The Queen (supra) that there was some factual basis to the belief that the dogs were not dangerous. The dogs had never previously attacked anybody. The distinction to be made in this case is that a firearm is inherently dangerous if capable of being fired and the evidence of the appellant was that he had not checked whether the rifle was empty and hence safe. However, it is established by Pacino v The Queen (supra) that the defence of accident
(Page 52)
- does apply in cases based on an allegation of criminal negligence. Indeed, counsel for the respondent conceded that s 24 applied and submitted that it was never suggested to the contrary. It is also the case that s 24 was expressly addressed by counsel in closing submissions. Counsel for the respondent acknowledged that s 24 applied but submitted that the mistaken belief was not reasonably held.
148 The respondent's submission was that the duty required of the appellant was to do more than assume that the firearm was unloaded. The appellant was required to actively ensure that the firearm was unloaded. According to the respondent, an honest and reasonable mistake does not alleviate or discharge the appellant from his burden. Reference is made to the following conclusion drawn by the Magistrate:
"I can readily accept that it was his understanding, his belief that he had used all the bullets and that there were none left in the magazine or barrel. But no matter how strong the belief was and no matter how he came to that conclusion the simple undeniable fact is that there was at least one bullet left in the gun when he finished shooting. And there can be no dispute that if he had taken the step to examine the magazine and the barrel and remove any remaining bullets, then the rifle would not and could not have discharged under any circumstances."
149 Counsel for the respondent submits that in this passage, the Magistrate correctly identified that the honest and reasonable mistake alleged by the appellant was not relevant to the determination of the question of whether the duty had been appropriately discharged. Having considered the authorities and the reasons for decision I do not accept that s 24 was not relevant to the determination of the appellant's criminal responsibility for the shooting. Section 24 cannot be avoided by placing a different focus on the nature of the duty. If the appellant's belief that the gun was empty was the "real state of things" the gun could not have fired and no injury could have occurred. However, as I have indicated, the s 24 to relieve the appellant of criminal responsibility that belief would have to be reasonably held.
150 As I have indicated, I accept that s 24 was a "defence" applicable to the case and had been raised by the appellant. The Magistrate addressed the first aspect of s 24 in expressing his opinion that the appellant's view that the firearm was empty and therefore safe was honestly held. The next step was to consider whether it was reasonably held. Counsel for the respondent concedes that this was not an exercise which the Magistrate
(Page 53)
- carried out. Although it may well be the case that in the passage quoted above the Magistrate's statement that it was incumbent on the appellant to check the rifle in order to avoid the risk of the firearm discharging was an expression of a conclusion that the belief was not reasonably held. However, he makes no express reference to the issue of whether the belief was reasonable, or to s 24 of the Criminal Code. On behalf of the respondent it is said that the Magistrate has impliedly dealt with s 24. In my view, this is not a case where it can or should be inferred that the Court has dealt with a specific defence. In my view, even though it may not be necessary to specifically refer to s 24, the minimum requirement is for the Magistrate to clearly state his findings as to whether the belief held by the appellant was honest and reasonable. In this case the Magistrate has met the first of those obligations but not the second.
151 However, in my view, no miscarriage of justice arises. I have already referred in these reasons to the evidence which, in my view, is consistent only with the conclusion that the appellant's belief that the rifle was empty was not based on an actual recollection that the number of shots fired was exactly equivalent to the number of bullets loaded into the rifle. At best, the belief was based on an approximation of the shots fired by him. In my view, the evidence does not support a conclusion that the belief was reasonably held. Indeed, the position is clearly to the contrary. For that reason, and as both counsel addressed the Magistrate on the issue of honest and reasonable mistake of fact, nothing would be achieved by sending the matter back for the Magistrate to more clearly and appropriately address the reasonableness of the appellant's belief.
152 Although I have reached the conclusion that the Magistrate failed to properly address the "defence" of s 24, as I have reached the conclusion that the evidence clearly establishes that the belief was not reasonably based, I would dismiss this ground of appeal.
Conclusion
153 The case was presented on the basis that the appellant made a number of assumptions, as it turned out, very dangerous assumptions. The first was that the gun was empty. The second one was that the safety was on. As to the first, on his evidence he had fired four or five shots. He was therefore aware of the possibility that there might still be a bullet in the rifle. The only way he could know whether the gun was empty was to check. What he did know was that the bolt was in the locked position and hence the rifle was capable of firing if a round was in the chamber and the safety was off.
(Page 54)
154 If the appellant was going to use the rifle as a light source in those circumstances, was going to get into the back of the utility and pull on the cord to extend its length, it was the appellant's duty to make the safe beforehand. That would involve ensuring that it was unloaded or removing the bolt and magazine or both. His duty was to do more than put the safety catch on. His duty was certainly to do more than assume the gun was empty and to assume the safety was on. The appellant was trying to provide light which required him to bring the light on the rifle closer to the sprinkler without pointing it at his son. On his own admission, the appellant was initially pointing the rifle at a 45 degree angle and he was attempting to provide greater light, which could only be achieved by pointing the rifle closer to the son, when the rifle suddenly discharged and caused the son's injury. The circumstance the appellant was in when he provided the light, and the circumstances in which he attempted to provide additional light, were such as to require him to ensure that the gun could not fire.
155 In my view, the decision reached by the Magistrate was not only open on the evidence but was the only decision open on the evidence. Having considered the evidence given at trial, the reasons for decision of the Magistrate, the submissions made on appeal and the relevant authorities, I am not persuaded that the Magistrate fell into error in concluding that the charge against the appellant had been proved. I would dismiss the appeal.
0
16
0