R v Lavender - [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

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
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.”
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.”
By s 24 of the Crimes Act, a person convicted of manslaughter is liable to imprisonment for twenty five years.
Upon the appellant’s conviction for manslaughter the alternative charge of dangerous driving occasioning death fell away. Some regard to it, however, is necessary in considering the appellant’s appeal.
By count 2 in the indictment the appellant was charged in the alternative -
“That he on 2 October 2001 in Redhead in the State of New South Wales, did drive a motor vehicle, namely a ‘Komatsu’ loader in a manner dangerous to a person or persons, whereby the vehicle was involved in an impact as a result of which the death of Michael Milne was occasioned.”
Dangerous driving occasioning death is a statutory offence under s 52A(1) of the Crimes Act, which relevantly provides -
“52A Dangerous driving: substantive matters
(1) Dangerous driving occasioning death.
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:
…
(c) in a manner dangerous to another person or persons.”
The grounds of appeal
The appellant’s grounds of appeal were -
“1.          The learned Trial Judge erred in failing to direct the jury that it was for the prosecution to exclude an honest and reasonable belief in the appellant that it was safe to proceed and in directing the jury that the appellant’s belief was ‘immaterial’.
2.            The learned trial judge erred in directing the jury that the belief of the appellant at the relevant time was ‘immaterial’ and that ‘it does not matter’ what the appellant believed to be the case. In particular the learned trial Judge erred in not directing the jury in terms that they should consider the subjective belief of the appellant in determining whether the Crown had proved beyond reasonable doubt that he acted unreasonably.
3.            The learned trial judge erred in his summing up by treating the offence of manslaughter as an absolute one.”
The Crown appealed on the ground that the sentence was manifestly inadequate.
The appellant initially put forward only one ground of appeal, the first ground set out above. At the hearing of the appeal it became apparent that the consideration given by counsel to the issues and the authorities in the appellant’s appeal had not been sufficient for their submissions properly to assist the Court; further, that the appellant might wish to add grounds of appeal. The hearing of the Crown appeal was completed, and the appellant’s appeal was adjourned part-heard with directions as to amendment to the grounds of appeal and further written submissions from the appellant and the Crown. The appellant’s grounds of appeal were amended and the further written submissions were received.
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 was given in the Crown case by Mr Allan Davis, a fellow employee of the appellant who also chased the boys on a loader on 2 October 2001, and by the three boys who had gone to the sand mine with Michael Milne. Police evidence excluded malfunction of the loader. Other police evidence described the loader, the terrain, the scrub through which the appellant had driven and the area where Michael Milne had been, with many photographs. Edited videos of an ERISP interview and a walk-around interview with the appellant were tendered. There was extensive cross-examination, but in the end little dispute as to the facts. The appellant did not give evidence.
The course of the trial
It is pertinent to the appellant’s appeal to understand when and how any question of the appellant’s belief arose in relation to the charge of manslaughter.
The Crown opened to the jury a case of manslaughter by criminal negligence, through highly negligent behaviour in disregard for the safety of others. The Crown Prosecutor’s opening included -
“What was that particular behaviour? The Crown relies upon the proposition that the accused, in driving his loader in order to scare the boys off the site, off the property, drove his loader into a bush area where he knew there were four boys in there somewhere, who he couldn’t see, by reason of the nature and structure of his vehicle, couldn’t hear, drove into an area of bush which he traversed for some 140 metres without seeing anybody. Those boys were in there and at one stage frighteningly close to the passage of his loader. He continued to drive his loader, the Crown alleges, in circumstances where the topography , the undulating nature of the surface, the vegetation and the nature and structure of his vehicle, meant that his capacity to see was necessarily restricted, and that he knew or ought to have known, that his capacity to see was necessarily restricted but continued to drive his vehicle in that manner in any event.
In order for him to proceed through the bush he had to lower his bucket to flatten vegetation before the loader to clear a course for his wheels with the necessary consequences that at one stage dead trees, in the order of 15 to 20 feet, were being flattened in the ongoing course of the loader. The Crown alleges that the accused failed to steer a course which was consistent with safety and that was particularly so once he entered the bush. That he failed to keep a proper lookout and that in the circumstances, once he entered in the bush that he was travelling at a speed which was unsafe in the sense that any speed in those circumstances was unsafe.”
The Crown Prosecutor also said -
“CROWN PROSECUTOR: Members of the jury, just to recap in relation to that first charge of manslaughter, the essence of it is that the Crown alleges that the accused drove the front-end loader in circumstances which created, objectively – that’s to say that a reasonable person in his position would have or ought to have realised that he was creating a high risk that serious injury or death would follow his actions. That’s the essence of it, together with such a serious disregard for the safety of the boys and Michael Milne in particular, that you are satisfied that this was negligence of such a high order as to amount to, to use an old phrase in the law, wicked negligence and of itself a crime against the community.
You understand, members of the jury, that it doesn’t matter whether the accused intended or not to inflict serious hurt or death and nobody suggests that he did. It’s an objective test whether, in all of those circumstances, a reasonable person in his position would have realised or ought to have realised the danger that was being created, that’s the essence of it.” (emphasis added)
Counsel for the appellant opened to the jury at the conclusion of the Crown’s opening. He did not take issue with the Crown Prosecutor’s references to an objective test and to the irrelevance of whether the appellant intended or not to inflict serious hurt or death. He appeared to accept those matters, including as extended to the charge of dangerous driving causing death, saying -
“First, members of the jury, it is disputed that objectively Mr Lavender was driving in a manner dangerous to the public or to a person or persons. Objectively has been explained to you by my learned friend, no doubt you’ll hear more about it. But what it doesn’t mean is with the wisdom of hindsight. That’s what it doesn’t mean. In other words looking back on what we all now know members of the jury is not the way to assess whether objectively the driving or the manner of driving was dangerous to a person or persons.”
In relation to the charge of manslaughter, the thrust of counsel’s opening was that the appellant’s actions did not “[come] anywhere near the kind of degree of negligence contemplated by a manslaughter charge”, and that Michael Milne’s death was not attributable to the appellant’s actions but to his own “unexpected and unpredictable act”. Counsel summarised the appellant’s position -
“It is disputed that Mr Lavender drove in a manner dangerous. It is disputed that the Crown would be in a position to establish the high degree of negligence required for a charge of manslaughter. It will be disputed that Mr Lavender’s acts caused the death of Michael Milne and it will be disputed that the death was in any way attributable to those acts.”
There was a hint of regard to the appellant’s belief, but no more, when towards the end of counsel’s opening he said -
“You will be, I anticipate invited by me to infer, that he had simply no idea that the boy would take the action which I have described as unpredictable, that action of hiding in that area, in the path of the car. And you might think relevant to that is evidence you’ll hear as to the noise of the vehicle and evidence again of the speed of the vehicle and evidence of Mr Roddom, Aaron Roddom, as to what he did.”
As I have said, the appellant did not give evidence. The interviews recorded in the videos did not deal with the appellant’s belief as to whether it was safe for him to proceed, save that in relation to turning off the track and having to push a lot of dead timber over -
“Q197Would, I know this probably a hard question to answer, with the advantage of hindsight, but wouldn’t you think that was dangerous?
AWell the boys were a long way in front of me by then.
Q198But wasn’t it the case that initially you’ve seen four boys, on the sand pile?
AI did see four on the sand pile, yeah.
Q199So at this stage you know where two are.
AYeah.
Q200Did you know where the other two were [sic]?
ANo, I didn’t.
… (deleted)
SENIOR CONSTABLE BOSWELL
Q203So what were you thinking at the time?
ATo tell them, to try and stop the boys and tell them to get out of the property, the property.”
In relation to the charge of manslaughter, the Crown Prosecutor’s address to the jury began -
“In order for the Crown to make out that offence it has to satisfy you, as I told you at the outset, of the ingredients, the elements that go to make up that offence and they consist of the Crown satisfying you firstly, that Michael Milne died; secondly, that Michael Milne died as a consequence of the actions of the accused; thirdly, that the accused owed a duty of care to Michael Milne, and indeed to any person who was in the vicinity of his loader when it was operating; next, that the accused acted in and with reckless disregard for the safety of the boys, and more particularly Michael Milne; next, that the actions of the accused created a high risk that serious injury or death would follow.
You understand that the Crown does not have to establish that the accused intended to create this level of danger, or even that he appreciated there was such a level of danger. Only that in an objective sense, in the sense that a reasonable person observing these events would say to themselves, ‘This conduct has reached this particular level’. I will have more to say about that objective test a little later. It matters not for the purpose of this test whether the accused intended or even appreciated the danger that was being created by his actions.
Finally, it is a matter for you as representatives of the community – that’s what you are, that’s what you’re here for – to determine that the actions of the accused were of such a high disregard for the safety of Michael Milne as to amount of itself to a crime; to amount of itself to conduct deserving of punishment.” (emphasis added)
The Crown Prosecutor later spoke of “this objective test of negligence of conduct amounting to driving in a manner dangerous”, and his address was predicated on an objective test as to both the charge of manslaughter and the charge of dangerous driving occasioning death.
Only towards the end of the address of counsel for the appellant was there reference to the appellant’s belief that it was safe to proceed. Counsel said, after referring to some evidence of the boys’ movements through the scrub (the transcript appears to have errors, but the substance is there) -
“ … Mr Lavender thought it was safe to proceed. He thought it was safe to continue on that track, having gone through it once and out the other side and coming back, he thought it was safe to proceed.
I’d ask you to infer that that is what he believed and that he believed it honestly and that he believed it reasonably. And that’s where my learned friend says his state of mind has nothing to do with it, where, perhaps, that’s putting it a bit strong. Submit that he honestly and reasonably held the belief that it was safe to proceed and that the fatal moment happened after that dramatic conversation between Mr Roddom and Mr Milne in which Mr Milne made that decision.
My respectful submission those findings of fact are put not guilty verdicts in relation to both of these charges. I submit that commonsense and an application of the directions that his Honour will give you about this crime of felonious slaying or manslaughter, or gross or criminal negligence, would lead you to the conclusion that Mr Lavender did not act with such a high degree of recklessness as to found, by community standards, a conviction for that crime.
I submit to you in relation to the second charge, members of the jury, that those facts, as I urge you to find them, are such that objectively he was not driving in a manner dangerous to the public. I don’t mean to be repetitive, and I am, but objectively does not mean objectively (with the benefit of hindsight) or knowing what we know now.”
A little later counsel said, referring to both charges -
“Fifth, that Mr Lavender honestly and reasonably believe that he was safe to proceed. These crimes are not absolute crimes, they’re not crimes of intention, but nor are they absolute crimes. That is to say, a crime where the Crown doesn’t have to prove any state of mind. No, if he honestly and reasonably believed in a set of facts which, if true, would render his actions innocent then he is to be found not guilty.”

It is unfortunate that the question of the appellant’s belief, more specifically his honest and reasonable belief that it was safe to proceed, arose in this way and, it must be said, in a rather confusing manner. There had been no indication that it was to be raised with the jury. The judge was placed in a difficult position if, as turned out to be the case, he ruled that the appellant’s honest and reasonable belief should not be part of his directions to the jury. And the judge and the Crown were hampered by lack of notice in the consideration they could give to what the appeal has shown to be a difficult area.
The summing-up
The transcript records, at the conclusion of the address of counsel for the appellant and before adjournment to the next day -
“IN THE ABSENCE OF THE JURY
HIS HONOUR: Mr Hamill, you’ve raised in your address the defence under section 52A?
HAMILL: Yes your Honour.
HIS HONOUR: And I take it you want me to put that to the jury?
HAMILL: Yes your Honour.
HIS HONOUR: And you’ve also raised the Proudman v Dayman issue?
HAMILL: Yes your Honour.
HIS HONOUR: What do you say about that Mr Crown?
CROWN PROSECUTOR: Well your Honour, that’s available to my friend -
HIS HONOUR: Yes.
CROWN PROSECUTOR: - it’s subsumed within the section and the Crown simply says that the actions weren’t reasonable. As it does in regard to any question of lawfulness. Of the actions of the boys I mean, in being on the site at all.”
The “defence under section 52A” appears to have been the defence in s 52A(8) of the Crimes Act, relevantly that the death occasioned by the impact was not in any way attributable to the speed at or manner in which the vehicle was driven. The “Proudman v Dayman issue” was a reference to the defence of honest and reasonable mistake considered in Proudman v Dayman (1941) 67 CLR 536. In relation to the offence of permitting an unlicensed driver to drive a motor vehicle on a road, in that case Dixon J said (at 540) -
“It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.”
The appellant submitted that the Crown accepted at this point that the jury should be directed that it was for the prosecution to exclude an honest and reasonable belief in the appellant that it was safe to proceed, and that the Crown later reneged. I do not agree. The Crown Prosecutor appears to have taken the “Proudman v Dayman issue” as material only to the charge of dangerous driving occasioning death, perhaps because the judge referred to it immediately after referring to “the defence under s 52A”, and his response was that it was “subsumed within the section”. He appears to have meant that the “issue” was available to the appellant in that proof of objectively dangerous driving necessarily negated a reasonable belief that it was safe to proceed. The Crown Prosecutor’s perception of the materiality of the issue, and his response, may have been incorrect, but the debate on the next day suggests that he would have responded in a similar way in relation to the charge of manslaughter. There was confusion, perhaps because of the unfortunate way in which the question of the appellant’s belief arose. It does not matter. Whatever the Crown’s immediate response, the appellant’s appeal is concerned with the correctness of the course ultimately taken.
The next morning the judge provided to counsel written statements of the elements of each of the offences with which the appellant was charged. He proposed that they be provided to the jury. The statement in relation to the charge of manslaughter was -
“COUNT 1 - Manslaughter
The Crown must prove to your satisfaction beyond reasonable doubt ALL of the following:
1.That on 2 October 2001 the accused had a duty of care to Michael Milne.
2.That the accused was negligent in that by his actions that day he was in breach of that duty of care.
3.That such actions were deliberate.
4.That such actions of the accused caused the death of Michael Milne.
5.That such actions:
(i)fell so far short of the standard of care which a reasonable person would have expected in the circumstances; and
(ii)involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.”
The Crown had no objection to the form of the statement. Counsel for the appellant said -
“HAMILL: You Honour, I would invite your Honour to add, in relation to the manslaughter, a sixth element, being that the accused did not hold an honest and reasonable belief that it was safe to proceed.”
Counsel did not ask for a similar addition in relation to dangerous driving occasioning death: perhaps he would have done so in due course, but the debate moved on. The judge said -
“HIS HONOUR: Well, that was the next thing I was going to talk to you about. I don’t see any room for a Proudman v Dayman type issue in either of these counts. If the Crown establishes the necessary element of negligence to the required degree, he couldn’t, in any circumstances, as a matter of law, I would have thought, the test being an objective one, have said that the accused may have had a reasonable belief that it was safe to proceed. Likewise with the count of driving in a manner dangerous.”
In the exchanges which followed counsel for the appellant referred to Jiminez v The Queen (1992) 173 CLR 572, a case of dangerous driving occasioning death in which it was held that the defence of honest and reasonable mistake was available. He submitted that “the same applies here”, and that the jury could infer from the records of interview that the appellant “believed in all the circumstances that it was safe to drive”. The transcript records -
“HIS HONOUR: There is no doubt in my mind that the jury would be entitled to draw a conclusion, on the evidence, that Mr Lavender thought it was safe to drive into the bush. But the question of reasonableness is an objective test, is it not?
HAMILL: It’s an objective test, as it is in dangerous driving, and as it was in Jiminez.
HIS HONOUR: Well, in the manslaughter count, before the Crown could succeed, the jury would have to find objectively that the accused was negligent and that that negligence was of such a high degree that it merited criminal punishment. Also as a matter of objectivity, how can it then be said that he could have held a reasonable belief that it was safe to proceed, if the jury are satisfied of that?
HAMILL: But the same applies, in my submission, as a matter of principle to that case of Jiminez.”
The judge called on the Crown. The Crown Prosecutor submitted that there was “nothing in the evidence that would support the holding on the part of the accused of such a positive belief [as to safety to proceed], as distinct from simply not adverting to the possibility”. The judge said that he was “against you on that”, and asked, “But what about the question of reasonableness?”
The judge expressed some discontent with the Crown’s response to this question, it seems because the response was to the effect that the evidence did not support the holding of a reasonable belief and his Honour thought that it did not engage with whether there was room for the defence of honest and reasonable mistake. The transcript records -
“HIS HONOUR: I think what I am trying to say, Mr Crown, is that the Proudman v Dayman type issue, in such cases as Jiminez, seems to arrive in the main where there is some latent defect, such as in a dangerous driving situation, where a person is driving with defective brakes, that they may not know it and may not have any cause to know it, so that the driving is objectively dangerous, but because of that, because they hold an honest and reasonable belief that the case is in sound mechanical order, they are entitled to be acquitted on the Proudman v Dayman issue.
And likewise in Jiminez, where the driving was said to have been dangerous because the accused went to sleep, it was, as I understand it, applicable in that case because he, whilst the driving was objectively dangerous, he had no warning that he was about to go to sleep and held an honest and reasonable belief in the circumstances, or may have, that it was safe to proceed.
But those cases seem to be to be different to a case such as here, where no such latent problem arises, but where it’s the manner of driving that is very much in issue, and at all relevant times the evidence is that the accused was acting voluntarily. So that if the jury were satisfied beyond reasonable doubt on count 1, that the accused was negligent and that that negligence was of such a high degree that it warranted criminal punishment as being an offence against the State, it couldn’t then be said that any belief that he had that it was safe to proceed was reasonable.
Likewise in the case of driving in a manner dangerous, if the jury was satisfied beyond reasonable doubt that the driving was dangerous in the way in which the Crown alleges, then it couldn’t be said, the test also being an objective one, that any belief that Mr Lavender had could have been a reasonable belief. That’s as I see it.
CROWN PROSECUTOR: With respect, your Honour, I agree.
HIS HONOUR: If the jury aren’t satisfied that the negligence was of such a high degree in count 1 as to constitute that element of manslaughter, then they don’t get to a Proudman v Dayman situation; the verdict is not guilty. Likewise, if they are not satisfied beyond reasonable doubt that the driving alleged in count 2 was dangerous in the sense in which the Crown alleges, gain they don’t get to the Proudman v Dayman issue. Whereas in the cases that I have researched, and in particular in Jiminez, it was only after, really, the jury concluded that the driving objectively was dangerous that the Proudman v Dayman issue then arose. It seems to me it can’t arise in these charges.
CROWN PROSECUTOR: Yes, your Honour, I agree.”
The judge returned to counsel for the appellant. Their exchanges included -
“HIS HONOUR: Do you say that a jury could come to the conclusion objectively in count 1 that the negligence – that there was negligence and that it was of such a high degree that it was deserving of criminal punishment, but that, nonetheless, the accused may have held a belief that it was safe to proceed and that belief objectively was reasonable?
HAMILL: Yes.
HIS HONOUR: That seems to me to make no sense at all.”
Counsel for the appellant referred to no authority other than Jiminez v The Queen. The Crown Prosecutor referred to no authority at all. The judge did not receive much assistance, although his Honour had clearly given much thought to the problem overnight and spoke of “the cases I have researched”. In the end the judge ruled -
“HIS HONOUR: My view is, Mr Hamill, that for the reasons that I have said already, that whilst in some cases a Proudman v Dayman type issue could arise, it can’t in these circumstances, and I wouldn’t direct the jury on it.”
The written statements of the elements of the offences were used in the summing-up. The judge appropriately directed the jury as to the need for a high degree of negligence for the crime of manslaughter. Having summarised the Crown and defence cases as to the extent of negligence, the judge said -
“Now members of the jury, they are matters for you to determine. A determination of this question of negligence and the degree of negligence is an objective test. You have to compare the conduct of the accused, as you find it to have been, with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused in the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have, and determine on that basis whether the Crown has made out its case. In other words, it is an objective test. The Crown does not have to prove that the accused appreciated that he was being negligent or that he was being negligent to such a high degree. It is your task to determine whether having decided on the conduct of the accused, whether his actions amounted to negligence based upon, as I say, what you think a reasonable person in the position of the accused would have done.” (emphasis added)
As he moved to the charge of dangerous driving occasioning death, the judge said -
“Can I just reiterate members of the jury, it is immaterial in this case, both in relation to count 1 and count 2, what the accused believed to be the case at the time. The test is an objective one, that is to say you must try to put yourself in the position of a reasonable person in the position of the accused, same age, knowing what he knows and a person of ordinary fortitude and strength of mind, and ask yourselves would that person have done what the accused did. Was it reasonable for him to have done that? If not, were his actions negligent, were they deliberate, and I do not mean deliberate in the sense of intending to hurt Michael Milne, no one has suggested that, but deliberate in the sense that he had control over his vehicle. Were the actions the cause of Michael Milne’s death and were the actions so far short of the standard of care which a reasonable person would have exercised, and did they involve such a high risk of death or really serious bodily injury that would follow that they merit criminal punishment?” (emphasis added)
In the directions as to dangerous driving occasioning death the judge again said that the test as to whether the appellant’s conduct was dangerous was an objective one, that “[i]t does not matter whether the accused thought his driving was safe or dangerous”, and that “the Crown does not have to establish that the accused knew or realised that his driving was dangerous”.
In conformity with the earlier ruling, no direction was given that it was for the Crown to prove that the appellant did not hold an honest and reasonable belief that it was safe to proceed.
At the conclusion of the summing-up the judge asked if there were any matters to be raised. The Crown Prosecutor had none. Counsel for the appellant said -
“ … The first thing just concerns the question that we discussed before, your Honour’s comments in relation to the accused’s belief in the course of your summing-up. Obviously my submission is that those are erroneous and effectively make the offences absolute offences when they’re not, and I know your Honour’s heard me on that. So that’s the first one. But that’s really a question of the applicability of the honest and reasonable mistake which your Honour heard me on before the summing-up.
HIS HONOUR: Yes.”
Categories of offences
The criminal law has distinguished between offences which require mens rea, offences which do not require mens rea but for which a defence of honest and reasonable mistake is available, and offences which neither require mens rea nor have a defence of honest and reasonable mistake. If the offence requires mens rea, the prosecution must prove that the accused had a state of mind necessary for the offence. Depending on the offence, the state of mind may be motive, intention, recklessness, or particular knowledge or belief. If mens rea is not required but a defence of honest and reasonable mistake is available, the accused must raise the existence of reasonable grounds for believing in, and belief in, a state of facts which if true would mean the offence had not been committed, and it is then for the prosecution to negate the belief or its reasonableness. If mens rea is not required and the defence of honest and reasonable mistake is not available, the offence is said to be absolute.
This taxonomy, not universally reflected in the cases or the language used in the cases, has become more significant with the growth of statutory offences, for which it must be decided whether a state of mind is an ingredient of the offence and, if not, whether the defence of honest and reasonable mistake is available. Proudman v Dayman provides an illustration. Each of Rich ACJ and Dixon and McTiernan JJ held that the prosecution did not have to prove knowledge that the driver was unlicensed (at 538, 541-2, and 542-3). Rich ACJ and Dixon J considered that the question of honest and reasonable mistake did not arise on the facts (at 538-9,541), but Dixon J went on to say that the defence of honest and reasonable mistake was distinct from the requirement of mens rea and would have been available (at 541). McTiernan J considered that the defence of honest and reasonable mistake was not available, but on the basis that it was the obverse of a requirement of mens rea (at 542-3).
Dixon J distinguished between the requirement of mens rea and the defence of honest and reasonable mistake, and described the availability of the latter, as follows -
“It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.
The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one.
Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation. But, although it has been said that in construing a modern statute a presumption as to mens rea does not exist (per Kennedy L.J, Hobbs v. Winchester Corporation, it is probably still true that, unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence.
There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also.
Doubtless over a wide description of legislation the presumption in favour of its application is but a weak one: See Maher v. Musson; Thomas v. The King, and three papers referred to in that report. But it still remains a presumption, and in relation to s. 30 there appears to be no sufficient reason for treating it as rebutted.
The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt. But, in the present case, the applicant assigned reasons for her alleged belief which neither the magistrate nor the Full Court found convincing or sufficient. Indeed, it may be doubted if she thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting licence.”

The tripartite categorisation is reflected in the statement in Jiminez v The Queen at 581-2 -
“A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake. In a well-known passage in Proudman v Dayman, Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute.”
I have observed that the taxonomy is not universally reflected in the cases or the language used in the cases. In He Kaw Teh v The Queen (1984) 157 CLR 523 Gibbs CJ observed at 533 -
“These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. However there are a number of questions which have not been clearly answered. The first is whether the absence of an honest and reasonable belief in the existence of facts which would have made the act innocent is a form of mens rea or whether, on the other hand, an honest and reasonable mistake affords the accused a defence only when he is charged with an offence of which mens rea is not an element. … ”
His Honour noted (at 534) that in some cases absence of mens rea had been equated with the honest and reasonable but mistaken belief of the accused. (McTiernan J in Proudman v Dayman took this approach.)
Gibbs CJ added -
“It may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring mens rea, or as something the absence of which constitutes mens rea. The matter is largely one of words. On either view the words of the statute and the nature of the offence must be considered in deciding what mental state is required, and whether an objective test of reasonableness is to be applied together with the subjective test of whether there was a mistaken belief.”
In He Kaw Teh v The Queen itself Brennan J referred to the absence of an honest and reasonable but mistaken belief as “a form of mens rea at common law and an element of the offence which the Crown must prove” (at 574), but apparently accepted that it was necessary for the accused to “raise a reasonable doubt as to [the belief’s] non-existence” (ibid). Dawson J distinguished between “mens rea as an ingredient of the offence to be proved by the prosecution” and, if not, an offence “of strict liability which, while not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation” (at 590). His Honour regarded the latter as “a mental element imported into the offence of strict liability short of requiring proof of mens rea by the prosecution” (ibid), which no doubt explains his observation that “[t]he defence of honest and reasonable mistake stems from the common law requirement of a guilty mind and it is not, as it is sometimes put, a defence based solely or even primarily upon the absence of negligence” (at 592).
In R v Wampfler (1987) 11 NSWLR 541 at 546 Street CJ, with whom Hunt and McInerney JJ agreed, rather blended the concepts -
“He Kaw Teh is authority for the proposition that for the purpose of
considering criminal intent, statutory offences fall into three categories:
(1)Those in which there is an original obligation on the prosecution to prove mens rea.
(2)Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.
(3)Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.”
There is a difference between a state of mind which the prosecution must prove in the first instance and a belief which the prosecution must negate once a basis has appeared for the accused honestly and reasonably holding it. Further, an honestly but unreasonably held belief may negative a necessary state of mind, but the defence of honest and reasonable mistake looks beyond mere belief to the belief being honestly held and upon reasonable grounds. The difference should be recognised, and remains notwithstanding that, as Dawson J said in He Kaw Teh v The Queen at 592-3 -
“No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.”
The questions in the appellant’s appeal
The principal question, found in the original ground 1, was concerned with the defence of honest and reasonable mistake. The assertion in ground 1 of error in directing the jury that the appellant’s belief was immaterial was another way of expressing error in declining to direct the jury on the “Proudman v Dayman issue”. The question involved the sub-questions whether the defence was available at all, and if it was, whether there was evidence which raised it so that it fell to the Crown to negate the holding of the belief or that the belief was held honestly and on reasonable grounds.
Ground 2 must have been concerned with something else. On one view it was concerned with mens rea, and the question was whether, quite apart from negation of an honest and reasonable mistake, it was necessary for the prosecution to prove a state of mind to which the appellant’s belief was relevant. On another view it was not concerned with mens rea, and the question was whether the belief of the appellant was relevant to determining whether the Crown had proved a high degree of negligence.
Ground 3 was consistent with the latter view of ground 2. If it was not necessary for the prosecution to prove a state of mind to which the appellant’s belief was relevant, a negative answer to the principal question would mean that the offence was an absolute one. Alternatively, ground 3 could have been intended to reinforce the former view of ground 2. In either event, it did not add anything.
It was tolerably clear that Ground 2 was intended to assert error in that the belief of the appellant was relevant to determining whether the Crown had proved a high degree of negligence. Whether it was intended to assert error in relation to mens rea was obscured by generalities and imprecision in the submissions. I have earlier referred to the circumstances whereby there was not clarification and development from oral argument. There was sufficient suggestion of the latter error, however, that the better course is to address both questions within ground 2.
The appellant’s submissions relied on s 18(2)(a) of the Crimes Act. In considering the questions in the appellant’s appeal I will initially pass over that provision, and will come to it separately later in these reasons.
The principal question in the appellant’s appeal: the defence of honest and reasonable mistake
The two categories of involuntary manslaughter at common law are (a) causing death by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and (b) causing death by criminal negligence (Wilson v The Queen (1992) 174 CLR 313 at 333).
The element of lack of care in manslaughter by criminal negligence has been variously stated. An accepted statement, on which the judge’s directions were founded, is that in Nydam v The Queen (1977) VR 430 at 445, namely -
“ … such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment”.
The obvious difficulty in applying the notion of meriting criminal punishment has often been noted, but was not in issue in the appeal. There must be lack of care and risk of death or injury to a degree meriting criminal punishment, hence the shorthand of criminal negligence. Lack of care is at the heart of this category of the offence, and it is judged objectively by the standard of the care a reasonable person in the position of the accused would have exercised.
Neither at the trial nor on appeal did the appellant dispute that the lack of care alleged against him was to be assessed objectively, according to the standard of care a reasonable person in the position of the appellant would have exercised and thus with the consciousness a reasonable person in that position would have had of the risk to the boys. At the trial the issue was not one of mens rea, but of the defence of honest and reasonable mistake.
(a) Was the defence available at all?
Dixon J in Proudman v Dayman referred to the defence of honest and reasonable mistake “[a]s a general rule” (at 541). A general rule is not a universal rule. Just as in the case of statutory offence the general rule may be excluded by “the words, context, subject matter or general nature of the enactment” (ibid), so also it may be excluded by the nature of the common law offence.
The Crown case of manslaughter was that the appellant had been negligent to a high degree, his lack of care being assessed objectively. As a matter of principle the defence of honest and reasonable mistake was not available. If the prosecution proved negligence to a high degree, objectively assessed, there could not be reasonable grounds for belief in a state of facts which, if true, would mean that the offence had not been committed; on the same objective assessment, any such belief formed by the appellant could not be a reasonable belief. That was the judge’s reasoning, and while it may not have been correct as to dangerous driving occasioning death I consider that it was correct as to manslaughter.
The appellant relied on R v Lamb (1967) 2 QB 981 and Jiminez v The Queen.
In R v Lamb the accused was charged with manslaughter by an unlawful and dangerous act and by criminal negligence. He pointed a revolver at his friend, in jest, and pulled the trigger. The revolver had two bullets in the chambers, neither being opposite the barrel, and he did not intend to fire a bullet. Pulling the trigger rotated the chambers and placed a bullet opposite the barrel, so that it fired. The accused’s defences included that he was not aware that pulling the trigger would bring a bullet into the firing position opposite the barrel and that the killing was an accident. There was evidence that the accused’s mistake was natural for someone unaware of the way in which the revolver’s mechanism worked.
The directions were such that this defence was not left to the jury. On appeal it was said by Sachs LJ (at 990) -
“When the gravamen of a charge is criminal negligence – often referred to as recklessness – of an accused, the jury have to consider among other matters 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.”
The appellant submitted that this supported the defence of honest and reasonable mistake. He said that underlying it was that the accused honestly and reasonably believed that a bullet would not be brought into the firing position opposite the barrel, a fact which if true would make his act innocent. I do not agree. When considering mens rea later in these reasons I refer to the ambiguity of recklessness and to the former recognition in England of reckless manslaughter. R v Lamb was an instance of importation of recklessness into manslaughter, whereby the accused’s state of mind became relevant. That was different from the defence of honest and reasonable mistake. The accused’s belief of itself would not have made his act innocent, because holding the belief was consistent with lack of care in, amongst other things, coming to and acting on the belief. This passage from R v Lamb was not concerned with the defence of honest and reasonable mistake.
The appellant in R v Taylor (1983) 9 A Crim R 358, a case of manslaughter by overdosing a sedative, relied on the same passage in R v Lamb. She submitted that a doctor’s advice that it was safe to use a dosage over 5 ml might have led to a mistaken belief in the safety of a large dose. Lush J, with whom Young CJ and O’Bryan J agreed, said (at 359-60) -
“The first sentence quoted from the judgment of Sachs LJ is, with respect, not good law either in England or in Victoria. In England, in Newbury [1977] AC 500 at 509, Lord Salmon treated Lamb’s case as not opposed to the general body of authority that in manslaughter all that is required is an intention to do the acts which led to death. In the same speech, at 506-507, his Lordship approved authority which makes it clear that in manslaughter the question whether what was done was dangerous is to be objectively determined without regard to the particular belief of the accused.
In Victoria the sentence under discussion is diametrically opposed to a statement of this Court on the same point in Nydam [1977] VR 430 at 444: ‘The requisite mens rea in the latter crime’ (that is manslaughter by negligence) ‘does not involve a consciousness on the part of the accused of the likelihood of his acts causing death or serious bodily harm to the victim … ‘.
This Court has in a recent case, Wills [1983] VR 201, again applied the objective test to the determination of the potential danger of the accused’s acts, and has commented on the question of the ’circumstances’ which are relevant to the formation of the objective assessment.
The final sentence quoted from the judgment of Sachs LJ may, if I may say so with respect, be accepted as a statement that in inquiring whether a reasonable man would have realised that the act was dangerous, the jury would have been entitled to consider, and in the circumstances should have been directed to consider, whether a reasonable man might have entertained the mistaken belief held by the accused.
All that the applicant was entitled to in the present case was a direction that, in deciding whether or not a reasonable man in all the circumstances would have regarded the administration of a large dose of Noctec as dangerous, they should regard as among the circumstances which were to be taken into account and in which the hypothetical reasonable man was to be placed the facts that the doctors had given the prescriptions and the advice as to dosage to which I have referred.”
R v Lamb was distinguished in R v Lipman (1970) 1 QB 152, a case of manslaughter by an unlawful and dangerous act in which it was said that, apart from the intent necessary for the unlawful act, “no specific intent has to be proved to convict of manslaughter” (at 156). This did not directly bear upon the passage presently under consideration, which was concerned with manslaughter by criminal negligence. If it is not necessary that an accused appreciate that his conduct was dangerous for manslaughter by an unlawful and dangerous act, however, it should not be necessary for manslaughter by criminal negligence. Culpability through unlawfulness is not present, but its equivalent is the high degree of negligence. In Director of Prosecutions v Newbury (1977) AC 500 Lord Salmon said at 509 that R v Lamb was not authority that manslaughter needs more than an intention to do the acts which constitute the crime.
In Jiminez v The Queen the applicant was charged with culpable driving under an earlier version of s 52A of the Crimes Act which required that at the time of the impact causing death he was driving the vehicle “at a speed or in a manner dangerous to the public”. The Crown case was that the applicant had been tired and drowsy and had fallen asleep.
In the judgment of Mason CJ and Brennan, Deane, Dawson, Toohey and Gaudron JJ it was said that for the driving to be dangerous there “must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle”, and it was emphasised “that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public “ (at 579). After citing from McBride v The Queen (1966) 115 CLR 44 at 49-50 per Barwick CJ, their Honours said (at 579-80) -
“It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as "driving in a manner dangerous" is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public.”
After referring to the decision in R v Gosney (1971) 55 Crim App R 502, their Honours said (at 583) -
“To our eyes what the appellant was attempting to do in Gosney was to establish an honest and reasonable mistake, a defence which, in this country, makes it unnecessary to introduce fault as an element of that offence. Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order. And the same issue is raised when, in a case like the present where the dangerous manner of the driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep.
It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. Apart from any inference that might be drawn from the fact that the applicant had fallen asleep, there was little in the evidence to support a finding that the applicant had felt drowsy or that he had reason to believe that he was tired. He had had four hours' sleep shortly before setting out on the trip and a further period of up to three hours while the deceased woman drove the car. He had not been driving for an excessive period before the accident. There was no evidence before the jury that he had consumed any alcohol or drugs. He was thinking of stopping at the next town, but that could be explained by his statement that he intended to have breakfast there. The fact that he slept for some hours after the accident could, in the light of the other evidence including evidence that he was emotionally upset and affected by grief, scarcely found an inference that he had had insufficient sleep beforehand. In these circumstances, the inference that the applicant believed that, in all the circumstances, it was safe to drive might have been drawn by the jury from the very fact of his driving. The absence of any warning of the onset of sleep, if the jury found that there had been none, laid a foundation for that being an honest and reasonable belief. Lack of warning as to the onset of sleep is only one of a number of circumstances that may bear on the question whether a driver honestly and reasonably believed that it was safe for him to drive. Ordinarily, the circumstances which bear on whether the driving was dangerous will also bear on this question.
If, in a case based on tiredness, there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must be instructed with respect to that issue. In particular, they must be told that if they conclude that the driving was a danger to the public, they must also consider whether the driver might honestly have believed on reasonable grounds that it was safe for him to drive. And, of course, they must be instructed in appropriate terms that the onus of negativing that defence rests with the prosecution.”

The appellant cited R v Warner (1979) 1 A Crim R 18, without explanation but presumably for the observation (at 21), with reference to R v Gosney (1971) 2 QB 674 at 680, that fault or culpability on the part of the driver was necessary for dangerous driving. In R v Buttsworth (1983) 1 NSWLR 658 O’Brien CJ of Cr D, with whom Street CJ and Nagle CJ at CL agreed, considered that dangerous driving involved “a degree of negligence for the safety of other road users” (at 686), and although accepting that it was not sufficient to describe it as a degree of negligent driving said that it was correctly described as “being that degree of negligence which amounts to a manner of driving which is dangerous to the public”. I do not think this has survived Jiminez v The Queen. Driving without due care and attention may amount to dangerous driving, but the negligence is not what makes the offence.
The appellant submitted, as had been submitted to the judge, that the acceptance in Jiminez v The Queen of the defence of honest and reasonable mistake flowed through to manslaughter by criminal negligence. He said that the reasoning was equally applicable. I do not agree. In Jiminez v The Queen the offence depended on proof of the driver’s condition, a condition which made his driving dangerous to the public. It did not depend on the driver failing to take due care in falling into that condition or in driving while in that condition, and their Honours did not regard fault as an element of the offence. Since the offence depended on the fact of the driver being affected by tiredness to an extent that his driving was objectively dangerous, there was room for the defence of honest and reasonable mistake as to that fact, described by their Honours as honest and reasonable belief that it was safe to drive. For the reasons I have given, it is otherwise for the offence of manslaughter by criminal negligence.
Jiminez v The Queen has relevantly been considered in two subsequent decisions. Neither assists the appellant’s submission.
In R v Franks (1999) 1 VR 518 the applicant was charged with culpable driving under s 318(2)(b) of the Crimes Act 1958 (Vic), which provided that a person drives a motor vehicle culpably if he drives it -
“(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case”.
The offence depended on proof of negligence, and it was said that the standard of care of which the provision spoke was “the equivalent of criminal negligence sufficient to support the crime of manslaughter” (at 520).
The applicant had been driving a semi-trailer which collided with the rear of a truck. The Crown case was that the applicant had driven for excessive periods over a number of days leading up to the accident and had had inadequate rest in that time, and that the gross departure from the standard of care of the reasonable driver lay in his continuing to drive the semi-trailer when he was or should have been aware of the risk of falling asleep or being unable to react to foreseeable contingencies. It was held that the jury had been misdirected in a number of respects, only one of which is presently relevant.
Winneke P said (at 527-8) -
“It was also erroneous in my view for his Honour to have told the jury that, in considering the “simple issue” of “fatigue”, they could take into account whether the accused “might honestly have believed on reasonable grounds that it was safe for him to drive”. Quite apart from the fact that the jury were not directed to the time at which the accused might have held such a belief, it was simply not relevant to the establishment of the offence created by s. 318 of the Crimes Act, at least where the offence is alleged to have been constituted by “grossly negligent driving”, for the jury to determine whether the accused had an honest belief that it was safe for him to drive or whether that belief was based on reasonable grounds. It seems that his Honour was induced to give such a direction as a consequence of the decision of the High Court in Jiminez v. R. at 582, where the court held that a “defence” of “honest and reasonable mistake” would be available in a charge of “causing death by dangerous driving”. Although such a “defence” can be raised to a charge which depends for its proof upon the Crown establishing that the relevant driving was objectively dangerous, it cannot in my view have any relevance to an offence which depends for its proof upon the establishment that the relevant driving of the accused departed so far from the standard of care expected of the reasonable and prudent driver that it amounted to “gross negligence”. Although Mr. Francis sought to argue before this court that such a “defence” could be raised to the charge in this case, and that the judge had misdirected the jury in respect of it, I cannot accept that contention. The misdirection is to be found in inviting the jury to consider the beliefs of the accused. In a case where it was being asserted by the Crown that the accused had driven for excessive periods over 18 days and had falsely and inaccurately recorded the extent of that driving, an invitation to the jury to consider generally the honesty and reasonableness of the accused’s beliefs was calculated to divert the jury’s attention from the focal issue in the case; an issue which was quite unrelated to his beliefs, whether they were honest or dishonest, reasonable or unreasonable, or otherwise.”
Tadgell JA said (at 532) -
“The judge’s instruction to the jury, in effect, that they were at large to decide that the applicant’s driving when fatigued could constitute gross negligence was a misdirection. So also was the instruction that the jury “must decide whether [the applicant] might honestly have believed on reasonable grounds that it was safe for him to drive”. This was not an issue in the case; and to continue by way of instruction to the jury that "[i]f you do come to [the] conclusion that he believed on reasonable grounds that it was safe for him to drive, then of course the prosecution must negate that by the evidence it has adduced” was, I am obliged to say, calculated to confuse the jury as to the onus of proof.”
Batt JA agreed that the trial miscarried in the respects identified by Winneke P, and said (at 533) that Jiminez v The Queen was distinguishable.
In R v Osip (2000) 116 A Crim R 578 the applicant shot a man whom he mistook for deer. He was found guilty of manslaughter by criminal negligence. He submitted that the judge erred in failing to direct the jury that it was for the Crown to exclude beyond reasonable doubt the possibility that when he fired he honestly and reasonably, although mistakenly, believed that he was firing at a deer. Batt JA, with whom Phillips CJ and Tadgell JA agreed, said (at [35]) -
“In my opinion, contrary to a submission for the applicant, the ‘defence’ of honest and reasonable mistake is subsumed in the direction as to gross negligence. In essence, the jury could not have been satisfied beyond reasonable doubt that, in his Honour’s words, the act or acts of the accused was or were performed by him ‘in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised … ‘ without concluding that any belief which the applicant had that the target at which he aimed was a deer was not a reasonable belief. Mr Ross submitted that the concept of reasonableness was not to be subsumed into the ‘reasonable man aspect’ of the elements of the offence. Reasonableness in the defence of mistake, he said, had never been synonymous with a reasonable man test and it was submitted that no part of the criminal law where reasonable belief or reasonable mistake is referred to equates such reasonableness with the reasonable man. I disagree. The last few lines of the last passage I have set out from the case relied on, Tutton, are directly against the submission as it also a passage in Bank of NSW v Piper, cited by Gibbs CJ in He Kaw Teh. There is, I think, still room for debate whether involuntary manslaughter is a crime without mens rea (as Canadian cases seem to suggest), or whether, relevantly, the gross negligence constitutes mens rea, in the form, for example, of inadvertence or incautiousness. That view is supported by Nydam, Tolson and various text writers. If, as I am at present inclined to think, that is the better view, it supports Mr McArdle’s submission that the ‘defence’ of honest and reasonable mistake was simply a denial of or joinder of issue on mens rea. Even if involuntary manslaughter has no mens rea, the point is substantially the same, in that the ‘defence’ denies or puts in issue the element of gross negligence. The ‘defence’ is, in short, not a superadded matter to be disproved.” (italics in original)
The applicant had relied, amongst other cases, on Proudman v Dayman and Jiminez v The Queen. Batt JA said (at [36]) that “neither … was a manslaughter case”. After reference to further cases, his Honour said (at [37]) -
“Here, however, gross negligence or gross fault is an element of the offence of manslaughter by criminal negligence, and for the reasons I have earlier given it seems to me inescapable that the "defence" of honest and reasonable mistake of fact entails the absence of negligence and that the presence of negligence denies the reasonableness of any relevant mistake. The two cannot co-exist.”
It will be noted that Batt JA adverted to mens rea, as a possibility “in the form … of inadvertence or incautiousness”. If negligence is proved, the accused was inadvertent or incautious. The accused does not have to be aware that he is inadvertent or incautious – the nature of negligence is such that the accused will generally not be so aware. His Honour appears to have referred to mens rea as a way of describing the element of negligence to a high degree, rather than a state of mind in the accused. Whether or not a state of mind in that form is required, there is no occasion for a separate defence of honest and reasonable mistake.
Arguably supporting the appellant’s submission is R v Pacino (1998) 105 A Crim R 309. The deceased was attacked and killed by the applicant’s dogs. The applicant was charged with unlawful killing contrary to s 266 of the Criminal Code (WA), by which he was under a duty to “use reasonable care and take reasonable precautions” in the control of his dogs to avoid endangering the life, health or safety of others. In Callaghan v The Queen (1952) 87 CLR 115 it was held that the same degree of negligence was required as for manslaughter by criminal negligence. The judge declined to leave to the jury the question of honest and reasonable mistake under s 24 of the Criminal Code, reading -
“24. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.”
Kennedy J, with whom Wallwork and Steytler JJ agreed, said (at 319-20) -
“It could hardly be described as a case of "grave moral guilt" on the part of the applicant if the Crown should not be able ultimately to exclude beyond reasonable doubt that he had an honest and reasonable but mistaken belief that the dogs were not dangerous. It accords with the general rule that an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent, affords an excuse for doing what would otherwise be an offence — see Proudman v Dayman (1941) 67 CLR 536, per Dixon J at 540.
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 own 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. I would accordingly allow this ground of appeal, with the consequence that the applicant's conviction must be quashed.” (emphasis added)
Kennedy J cited from R v Lamb, including the passage earlier set out, but did not expressly apply that passage. His Honour did not refer to Jiminez v The Queen. There is, with respect, some tension in his Honour’s reasoning. The key to his conclusion appears to have been the emphasised words “that a reasonable person might honestly have believed that [the dogs] did not present a risk to humans”. If the reasonable person could have done so, the Crown failed to prove the requisite negligence. Section 24 of the Criminal Code postulated the applicant’s own belief, but his Honour’s conclusion turned on the reasonable person’s belief and was really concerned with proof of the prosecution case rather than the application of s 24. I do not think the case provides support for the appellant.
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.
However, I do not think that a belief that it was safe to proceed was a state of facts for the purposes of the defence of honest and reasonable mistake.
In McLuckie v Williams (1995) 82 A Crim R 118 the appellant, an ambulance driver, drove through a red light without using his siren. His ambulance was struck by another vehicle. He was charged with dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA), the offence being driving “in a manner … that is, having regard to all the circumstances of the case, dangerous to the public or to any person”. He relied on s 24 of the Criminal Code, which has been set out above.
Murray J said (at 126) -
“As was said in Kaighin, the test as to whether driving is dangerous is objective. It could not therefore be relevant to the potential application of s 24 of the Code that the defendant honestly, or honestly and reasonably, believed that his manner of driving was safe. That would not be a belief in a relevant state of things, but a subjective evaluation of the quality of the driving. As the High Court put it in Coventry (1938) 59 CLR 633 at 637:
‘The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard … ‘.”
His Honour went on to hold that the statutory defence of honest and reasonable mistake was not otherwise made out because the appellant’s (more specific) belief that no other vehicle was approaching the intersection could not have been reasonably held.
In Jiminez v The Queen their Honours spoke of a belief that it was safe for the applicant to drive. That related to the applicant’s condition, not to the carefulness of his driving, and was shorthand for whether he was affected by tiredness to an extent that his driving was objectively dangerous. Negligence does not make the offence of dangerous driving. It is at the heart of manslaughter by criminal negligence. But for both the standard is objective, in the one driving which was dangerous although the driver may have believed he was driving carefully and in the other conduct greatly falling short of the standard of care which a reasonable person would have exercised. The appellant’s belief that it was safe to proceed did not mean that it was safe to proceed or that he was acting with objectively reasonable care.

This direction, with respect, appears to me to emphasise the error which I have identified above. There is simply no duty of care in the criminal law not to be careless or not to undertake an act that a reasonable person would think carried a risk of injury. Such a line of reasoning (involved in following the written directions step by step) seems likely to deflect a jury from the real question to be determined and proposed, as it were, an interim answer, which was capable of being highly prejudicial, to an irrelevant question. It implies much more than the line of reasoning that asked whether the appellant was careless and, if so, to what extent. Rather, it appears to require an adverse finding of legal culpability on the path to a consideration of the real question, which was (accepting the Nydam formulation to be correct) whether the accused’s conduct “involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that…[it] merited criminal punishment”. Again, no submissions were made as to this matter and I refrain from further discussion of it.
The written directions then move to the requirements that the accused’s actions –
“5 (i)fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and
(ii)involved such a high risk that death or really serious bodily harm would follow that the actions merit criminal punishment.”
With respect, it is not appropriate to separate these issues in this way. The first question can only be answered by assessment of the extent of the risk. Furthermore, although the standard of reasonableness is an element of the first question, the direction disregards its relevance to the second, whereas it is a vital consideration that a reasonable person in the position of the accused would have perceived the extent of the risk for the purpose of considering whether what the accused did merited criminal punishment. The terms of the second question are consistent with being read with the words “as it happened” implicitly inserted at the commencement. In other words, the form of language not only does not adequately set out the matters to which the standard of the reasonable person applies but also invites judgment by hindsight. It is to this problem, in particular, that I referred to in the Introduction to this judgment. On the assumption that Nydam was rightly decided, these directions (so far as they go) would not be objectionable if they read as follows –
“The Crown must prove that the accused’s actions –
“(i)fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and
(ii)which a reasonable person would have realized, involved such a high risk that death or really serious bodily harm would follow
that the actions merit criminal punishment.”
The oral directions as to these issues were as follows –
“Finally, the Crown has to prove that that action of driving into the bush in the circumstances that the Crown says obtained, fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that the actions merit criminal punishment.
Members of the jury can I say this here and now that the degree of negligence required to constitute the crime of manslaughter is very high indeed. It has been described in the past as having to be wicked. In other words, a person has to be wickedly negligent before they can be convicted of the crime of manslaughter.
The Crown in this case says that you would be satisfied beyond reasonable doubt that the actions of the accused did amount to such a high degree of negligence. The Crown says that you would be satisfied beyond reasonable doubt that the accused intentionally drove the loader into an area of bush where he knew there were four boys. In circumstances where he had lost sight of the boys, he continued to drive his loader in that area where the Crown says the evidence would satisfy you that the topography and the vegetation combined with the nature and structure of the loader, necessitated an inability on the part of the accused to see and hear adequately and to proceed with safety. The Crown says in those circumstances, you would be satisfied that his actions fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that they merit criminal punishment.”
The direction as to the need for the appellant’s negligence to be wicked was not included in the written directions, which were given to the jury as being, in substance, the only questions that needed to be answered. Nor was there a suggestion that the written directions as to the requirement that the accused’s conduct merited criminal punishment were to be understood in the sense that the negligence must be proved to be “wicked”. In my view, the jury would have understood that the accused’s negligence was relevantly culpable if the last two paragraphs pf the written directions were satisfied. This point is emphasised by the ultimate directions dealing with the requirement of criminality set out below. For the reasons that I have already given, the written formulation, as it seems to me, did not reflect the requirement that the appellant’s conduct must involve grave moral guilt. At all events, it will be seen that, as with the written directions, the jury were not directed, as they should have been (accepting Nydam as correct), that the question whether the risk of death or grievous bodily harm was so high as to merit criminal punishment was to be measured by the understanding or appreciation of the reasonable person. Indeed, as I think, the judge introduced another and quite misleading notion to this consideration. The learned trial judge returned to the issue later on –
“A determination of this question of negligence and the degree of negligence is an objective test. You have to compare the conduct of the accused, as you find it to have been, with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused in the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have, and determine on that basis whether the Crown has made out its case. In other words, it is an objective test. The Crown does not have to prove that the accused appreciated that he was being negligent or that he was being negligent to such a high degree. It is your task to determine whether having decided on the conduct of the accused, whether his actions amounted to negligence based upon, as I say, what you think a reasonable person in the position of the accused would have done.”
I interpolate the point that the notion of the “fortitude and strength of mind” (repeated twice more) of the reasonable person is entirely irrelevant. This language suggests the jury should consider not only the reasonable person’s understanding and actions but other immaterial putative qualities which add a nuance rather suggestive of admirable character than ordinary reasonableness. The use of the construction “reasonable man” rather than the simple notion of reasonableness encourages this kind of inappropriate confusion.
At the end of the directions on criminal negligence, his Honour said –
“Can I just reiterate members of the jury, it is immaterial in this case, both in relation to count 1 and count 2, what the accused believed to be the case at the time. The test is an objective one, that is to say you must try to put yourself in the position of a reasonable person in the position of the accused, same age, knowing what he knows and a person or ordinary fortitude and strength of mind, and ask yourselves would that person have done what the accused did. Was it reasonable for him to have done that? If not, were his actions negligent, were they deliberate, and I do not mean deliberate in the sense of intending to hurt Michael Milne, no one has suggested that, but deliberate in the sense that he had control over his vehicle. Were the actions the cause of Michael Milne’s death and were the actions so far short of the standard of care which a reasonable person would have exercised, and did they involve such a high risk of death or really serious bodily injury that would follow that they merit criminal punishment?
Now members of the jury, the conduct of a person to merit criminal punishment only occurs if you are satisfied that not only were the actions so far short of the standard of care which a reasonable person would have exercised in the circumstances involving a high risk that death or really serious bodily injury would follow from those actions, but also that right thinking members of the community would regard the degree of negligence involved in that conduct as so serious that it should be treated as criminal conduct. That is to say, you have to put yourself in a position of right thinking members of the community and ask yourselves having found factually what occurred on this day, if you find that there was negligence, would right thinking members of the community regard the degree of negligence as being so serious that it should be treated as a crime. If you are not so satisfied members of the jury, then your verdict on the manslaughter count will be not guilty.”
The introduction of the putative “right-thinking members of the community” suggested to the jury not only that it should set rather than reflect community standards but that this standard should be somewhat higher than that of the ordinary reasonable person: that it should be aspirational rather than actual and that the jury should defer to the higher degree of propriety. Not only was there no mention of the need to assess the culpability of the accused’s conduct by reference to what would or would not have been done by the reasonable person, the jury were directed, in effect, to consider whether a “right minded” person would think the accused’s conduct was criminal. To my mind, this was a serious misdirection, even accepting that the test of culpability is an objective one: it both failed to mention the relevant test (assuming Nydam to be right on this point) and introduced a misleading test, moreover a test that invited ex post facto reasoning. It was for the jury itself to consider whether the conduct of the accused, considered from his point of view, departed so greatly from that of the reasonable person (or, more appropriately, in my view, was so unreasonable) in light of the high risk of death or grievous bodily harm as to be correctly characterised as meriting criminal punishment, not for them to ask what the “right minded” person would think. (I reiterate that, in my opinion, the requirement that the accused’s conduct be wicked necessarily involved an assessment of the risk as he understood it to be and, accordingly, required the jury to consider whether, indeed, he thought he was acting safely and believed that he had a reasonable basis for so thinking.)
As I am in agreement with Hulme J that the jury were not directed in accordance with s5 of the Crimes Act 1900 and that this was an error that went to the root of the trial, it is unnecessary for me to deal further with the matters to which I have drawn attention so far as the directions are concerned.
HONEST AND REASONABLE MISTAKE
I wish, however, to make some observations about the defence of honest and reasonable mistake.
Even if, as Giles JA has concluded, the defence is not available as an independent consideration where appropriate directions have been given as to the measure of the extent of the dangerousness of the accused’s conduct by reference to what would have been realized by a reasonable person, if the directions do not clearly convey that the appropriate standard is that of the reasonable person both as to the relevant conduct and the culpability of the departure from that standard (again, assuming that the Nydam formulation is correct), then the basis for refusing to give the direction falls away. The essential reason, as I understand the judgment of Giles JA, for declining to accept the applicability of the Proudman v Dayman (1941) 67 CLR 536 defence in cases of manslaughter by criminal negligence is that it is logically unnecessary. However, in this case the failure of the directions to give a clear explanation to the jury of the elements of criminal liability (even accepting Nydam as rightly applied) obligated the judge, in my view, to accede to the defence application to give the direction sought. Moreover, a Proudman v Dayman direction would also have cut across, if it did not entirely cure, the introduction of the notion of “right-mindedness”.
In this case, the defence argued (in substance) that the risk of serious injury was so small or, more precisely, that the Crown had not established beyond reasonable doubt that a reasonable person would have appreciated that the risk of serious injury was so great that a reasonable person would not have done what the accused did and that, even if this element were satisfied, the Crown had not established that his conduct was so unreasonable as to warrant criminal punishment. If the learned trial judge had given the Proudman v Dayman direction, this would have had the advantage of bringing to the jury’s attention the crucial issue in the case, namely whether the Crown had proved beyond reasonable doubt that the accused’s conduct involved such a high risk of death or grievous bodily harm and was so unreasonable as to render his conduct criminally culpable. To my mind, even if a direction (such as this) is not necessary in strict logic – as being otherwise implicit in the formulation of the elements of the offence – it will be rare case that a judge would be justified in refusing to put the defence case as it wished it to be considered by the jury providing, of course, that no confusion would thereby arise. Here, even if the defence was but an alternative approach to the issues in the case, I cannot see why the defence request that it should be put to the jury should not have been acceded to as a matter of fairness. However, I would not go so far as to say that, in this case (accepting for present purposes that the reasoning of Giles JA as to the application of the defence in cases of negligent manslaughter is correct), this consideration alone gives rise to a mistrial.
Giles JA has concluded that, at all events, there was no evidence that raised the defence of honest and reasonable mistake. At face value, the mistake made by the appellant was his belief that it was safe to drive as he did. If the jury thought that it was not unreasonable for the appellant to have so believed, then the Crown must have failed. To my mind, that the appellant in fact thought it was safe to drive as he did was implicit in the very circumstance that he did so drive but, at all events, he asserted the belief in his interview with the police, which was placed before the jury. The mere fact that that the appellant’s driving was logically consistent with his not thinking about safety at all and not holding a belief as to safety as well as the belief that it was safe does not, if I may say so with all respect, mean that the defence was not raised. At all events, the possibility that the appellant did not think of safety at all was, in the circumstances, far less likely than that he in fact thought it was safe.
Of course, as McLuckie v Williams (1995) 82 A Crim R 118 makes clear, it is necessary to unpack the meaning of “safe” in the circumstances. In my view, the appellant was really saying that he believed that no child was in the path of his vehicle. The mere fact that, when further questioned by the police about his belief of safety, he conceded that he did not actually know where all the children were, does not mean that he did not have an honest belief as to a relevant fact or that the inference that there was no child in his path was unreasonable. At most it might mean that it was not based on a logical analysis of all the reasonably open possibilities. With respect, I would hold that there was a sufficient evidentiary basis for the Proudman v Dayman defence. If the risk that there was a child in his path was remote (which seems to me at all events to have been a reasonable possibility), whether even the Nydam test for criminal culpability had been satisfied would have been very much a live issue as would, of course, whether his conduct involved grave moral guilt. Of course, if the appellant believed (as he implicitly asserted) that no child was in the path of his vehicle and it was reasonable for him to do so, then he must have been acquitted.
I am also in respectful disagreement with the conclusion of Giles JA that the jury inevitably would have concluded that the mistaken belief that no child was in the path of the appellant’s vehicle was unreasonable. To my mind it was open to the jury to conclude that the Crown had not established beyond reasonable doubt that it was unreasonable to believe that no child was in the path of the vehicle. But this is to oversimplify somewhat the content of the appellant’s belief. It was equally, perhaps more, consistent with the appellant’s conclusion that it was safe to proceed that he believed that there was no appreciable risk of injury by virtue of its slow and noisy progress and the likelihood, if not the certainty, that the children were more or less together and some distance away. Even a child in his path could easily have avoided the vehicle. I am far from sure that it was necessarily established beyond reasonable doubt that such a belief was not reasonable or, at least, that a jury could not properly so conclude. Of course, if the vehicle actually struck someone, the risk of serious injury was very high indeed but the crucial issue was the risk that the vehicle might, indeed, strike someone. If a reasonable person might have believed that the risk of collision was not so high as to mean that he would not have driven in the path the appellant took, then he must have been acquitted. If the appellant could not be certain that the children he could not see were distant, he had no particular reason to think one or more was close, especially since they were in a group and he had seen two of them a distance away and where the vehicle was easily observable and easily avoided.
THE ADMISSIBILITY OF THE BELIEF THAT THE ACT WAS SAFE
If it be correct (either by virtue of the common law or under s5 of the Crimes Act 1900) that the Crown was required to prove recklessness in the sense of proceeding despite actual advertence by the appellant to an appreciable risk of death or grievous bodily harm, then the appellant’s appreciation of the danger and his belief that he was acting safely was relevant, whether or not it was reasonable. I also respectfully agree with Hulme J’s conclusion that (accepting Nydam to be rightly decided) the evidence was relevant to the determination of the issues as identified in par5 of the written directions and with his Honour’s reasoning. It follows, in light of the direction that the jury must disregard what the appellant believed, that the conviction cannot stand for this reason alone.
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.
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LAST UPDATED: 21/05/2004