R v Lavender

Case [2004] NSWCCA 120

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Lavender [2004]  NSWCCA 120

FILE NUMBER(S):
60229/03, 60532/03

HEARING DATE(S):               5 February 2004

JUDGMENT DATE: 21/05/2004

PARTIES:
Regina v Wayne Kelvin Lavender

JUDGMENT OF:       Giles JA Hulme J Adams J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 02/31/0067

LOWER COURT JUDICIAL OFFICER:     Coolahan DCJ

COUNSEL:
P Byrne SC & P Hamill - Lavender
Dr P Power SC - Crown

SOLICITORS:
S O'Connor - Lavender
S Kavanagh - Crown

CATCHWORDS:
Manslaughter - by criminal negligence - whether falling short of reasonable person's standard of care objectively assessed - what mens rea required - relevance of accused's belief in safety of acts - whether defence of honest and reasonable mistake - effect of Crimes Act s 18(2)(a) - consideration of other aspects of summing-up - consideration of adequacy of sentence. D

LEGISLATION CITED:

DECISION:
(1)  Appeal allowed;  (2)  Appellant's conviction and sentence quashed;  (3)  Direct a judgment and verdict of acquittal be entered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60229/03
CCA 60532/03
DC 02/31/0067

GILES JA
HULME J
ADAMS J

Friday 21 May 2004

R v LAVENDER

Judgment

  1. GILES JA:  Wayne Kelvin Lavender was charged with manslaughter, alternatively dangerous driving occasioning death, in relation to the death of Michael Milne.  He was found guilty of manslaughter, and was sentenced to imprisonment for four years with a non-parole period of eighteen months.  Mr Lavender appealed against his conviction and the Crown appealed against the sentence.  For convenience, I will refer to Mr Lavender as the appellant and to the Crown as such.

    The charges

  2. By count 1 of the indictment the appellant was charged -

    “That he on 2 October 2001 at Redhead in the State of New South Wales, did feloniously slay Michael Milne.”

  3. Manslaughter is a common law offence, but s 18 of the Crimes Act 1900 provides -

    “18         Murder and manslaughter defined

    (1)(a)                  Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

    (b)Every other punishable homicide shall be taken to be manslaughter.

    (2)(a)               No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

    (b)No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.”

  4. By s 24 of the Crimes Act, a person convicted of manslaughter is liable to imprisonment for twenty five years.

  5. Upon the appellant’s conviction for manslaughter the alternative charge of dangerous driving occasioning death fell away.  Some regard to it, however, is…

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R v Lavender [2004] NSWCCA 120
Case
[2004] NSWCCA 120
Decision Date

CaseChat Overview and Summary

The case of R v Lavender involved an appeal by the appellant against a conviction for manslaughter by criminal negligence. The incident occurred at a sand mine in Redhead, south of Newcastle, where the appellant, employed as a loader driver, unintentionally caused the death of a thirteen-year-old boy, Michael Milne. The appellant drove his loader into a scrub area, where the boy was hiding, resulting in fatal injuries. The central legal issues in this case were whether the appellant's belief in the safety of his actions could negate the mens rea required for manslaughter by criminal negligence and if the court should have directed the jury on the defence of an honest and reasonable mistake.

The court examined whether the appellant's belief in the safety of his actions could be a mitigating factor in his criminal negligence charge. The court concluded that the defence of honest and reasonable mistake was not available to the appellant. It was established that the appellant's belief, even if honestly held, did not equate to a reasonable belief in the safety of his actions. The court emphasised that the appellant's belief, while relevant to assessing culpability, did not absolve him of criminal liability if his actions were objectively negligent. Furthermore, the court found no error in the trial judge's decision not to direct the jury on the defence of honest and reasonable mistake, as the evidence did not support the appellant's belief being both honest and reasonable.

In light of the above, the appeal against the conviction was upheld. The court determined that the appellant's belief in the safety of his actions, though relevant to culpability, did not negate the mens rea required for manslaughter by criminal negligence. The court also rejected the Crown's appeal against the sentence, finding it appropriate given the term already served by the appellant.

Orders

Orders of the court

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Background

Background to the litigation

The framing of the appellant’s grounds of appeal left some obscurity in the questions for determination. At the trial the appellant’s counsel had asked for a direction that it was for the prosecution to exclude an honest and reasonable belief in the appellant that it was safe to proceed, but there had otherwise been no issue about materiality of the appellant’s subjective belief or whether the offence was an absolute one. The further written submissions were ample, but less than clear in relation to the basis for separate error in these latter respects. It was not practicable to reconvene the Court, and the Court was regrettably deprived of the clarification and development which comes from oral argument. Facts The appellant was employed at a sand mine at Redhead south of Newcastle. He drove a Komatsu front end loader moving unprocessed sand to the washing plant and processed sand from the plant. The loader was a large vehicle, some 25 tons in weight and much higher and longer than a car. The bucket at the front of the loader impeded the driver’s forward vision. The sand mine was in an area of sand dunes variably covered with vegetation. In places the vegetation was quite thick and comprised bushes and trees up to four metres high, and the vision of a person driving the loader through the vegetation was further impeded. The site of the sand mine was unfenced. On 2 October 2001 Michael Milne and three friends went to the sand mine to play. Michael Milne was thirteen years old. The other boys were aged 11, 14 and 15. The boys had gone to the mine site on previous occasions. Although the site was not fenced and there were no signs, at least one of the boys said that he knew that they should not have been there, and that on a previous occasion they had been told by an employee at the mine not to go to where sand was being taken. The boys were playing on the processed sand pile. The appellant saw them as he was coming out of the lunch room. He knew they were not allowed to be there, and on other occasions had stopped boys and told them to get off the mine site. He said in a police record of interview -“… and I hopped in the loader and was gunna go over and speak to them, tell them to move from the premises, you know. So I went after them, you know, and, to try and tell them to get away.… I was going over to tell them to get out, off the premises.” The appellant drove the loader towards the sand pile. The boys saw him and ran into an area of regenerated scrub part of the thick vegetation. The appellant followed them, driving the loader on a disused track through the scrub at something like four kilometres per hour. He lost sight of the boys as he went along the track. He continued to a place where he could turn around, turned, and went back into the scrub. He saw two of the boys running away from him through the scrub, and left the track and followed them. The other two boys, one of whom was Michael Milne, were hiding behind trees in the scrub. As the appellant drove the loader through the scrub it came into contact with Michael Milne, causing injuries from which he died.

Evidence

Evidence Before The Court

In my opinion, the defence of honest and reasonable mistake was not available to the appellant. Treating the request of counsel for the appellant as a request for a direction appropriate to the defence of honest and reasonable mistake, as was clearly enough understood, the judge did not err in declining to give the direction. (b) Was there evidence raising the defence of honest and reasonable mistake? In the light of what I have said, this does not arise. It is nonetheless appropriate to consider it, on the assumption that the defence of honest and reasonable mistake was available. I have referred to the judge’s observation that there was evidence from which the jury could conclude that the appellant “thought it was safe to drive into the bush”. Thinking that it was safe to drive into the bush was not the same as reasonably thinking that it was safe to drive into the bush. The Crown Prosecutor seems to have had that in mind when, following the judge’s indication that he considered that the evidence supported the holding of a positive believe as to safety to proceed, he responded to the effect that the evidence did not support the holding of a reasonable belief. The judge’s mind, however, was on whether there was room for the defence of honest and reasonable mistake, and his Honour did not develop his observation. For the defence of honest and reasonable mistake it was necessary to identify a state of facts which, if true, would mean that the offence had not been committed. There had to be a basis for the appellant honestly and reasonably holding a belief in that state of facts. In his appeal the appellant initially identified as the state of facts that it was safe to proceed. He referred to the observation in Jiminez v The Queen (at 583, part of the passage set out at [74] above) that an inference that the applicant believed it was safe to drive “might have been drawn by the jury from the very fact of his driving”. The appellant submitted that the mere fact that he drove the loader into the bush founded an inference that he believed it was safe to proceed. I do not agree that the fact that the appellant drove the loader into the bush of itself founded an inference that he believed it was safe to proceed. It was consistent with the appellant not thinking about safety at all and holding no belief as to safety to proceed. I do not think that Jiminez v The Queen supports inference from no more than driving to a belief as to safety in driving. The fact of driving was placed by their Honours in circumstances including reasonable prior sleep and no alcohol or drugs, and the “very fact of his driving” was in those circumstances. In the present case, however, I consider that there was evidence going beyond driving the loader from which the jury could have inferred that the appellant believed that it was safe to proceed. It is sufficient to refer to the part of the recorded interviews set out in [24] above in which the appellant, when asked whether going through the scrub was dangerous, said, “Well the boys were a long way in front of me by then”. The appellant then accepted that he did not know where two of the boys were, which went to the reasonableness of his belief. But his answer could found an inference that he held a belief that it was safe to proceed, even if his thinking was inadequate and part of his lack of care.

Decision

Reasons for decision

I wish, however, to briefly discuss the relevance of the excluded evidence in light of my view as to the true character of the offence. As I have already made clear, I find it difficult to accept that the modern criminal law holds that a person can be guilty of an unintentional crime involving grave moral guilt if he or she believes that what he or she is doing is safe, still less that the law requires the trier of fact to completely disregard what the accused believed. Consideration of the question whether the appellant acted with substantial moral turpitude, such as could fairly described as wicked, thus required consideration of the appellant’s belief that he was acting safely. It seems to me that his belief about this matter was directly relevant to the issue of the extent of his culpability. It is obvious that, in considering whether it was criminally culpable for the appellant to have driven as he did, all the surrounding circumstances were relevant: the speed of the vehicle, the opportunity for observation of its path; the extent to which the bucket and the scrub obscured actually vision; the amount of light; the extent of shade; the observed behaviour of the children; and his understanding of where the children were or were not. This was far from a case in which conviction was inevitable and the accused’s opinion in the circumstances was, or may reasonably have been thought to be, of significant probative worth. CONCLUSION Accordingly, I would uphold the appeal against conviction. None of the errors that I have identified, of course, concern the alternative offence of dangerous driving causing death under s52A of the Crimes Act 1900. However, having regard to the nature of the Crown case and the term so far served by the appellant, I would not order a new trial. If it were necessary to consider the Crown appeal against sentence, I would reject it for the reasons given by Giles JA.**********

Ratio Decidendi

Legal Principle Established

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