Negligence and unlawfulness

[5-6400] Introduction

The common law presumption of mens rea, in one or other of its forms, is subject to an exception in relation to manslaughter by criminal negligence (charged separately in an indictment and as an alternative verdict available to a jury on a charge of murder).

The presumption applies to statutory offences subject to a legislative intent appearing to the contrary: He Kaw Teh v The Queen (1985) 157 CLR 523.

Statutory exceptions exist, for example, in the offence of negligent driving under s 117 of the Road Transport Act 2013 and in the indictable offences created by s 54 of the Crimes Act 1900.

On a charge of causing grievous bodily harm by a negligent act or omission under s 54 of the Crimes Act 1900, it has been held that there are degrees of negligence applicable to various kinds of statutory offences based on negligence, including also the common law offence of manslaughter by criminal negligence. Thus the degree of negligence required to establish an offence under s 42 of the Road Transport (Safety and Traffic Management) Act 1999 is less than that which it is necessary to establish an offence under s 54 of the Crimes Act 1900. The degree of negligence required to establish an offence under s 54 (based on negligence), however, requires proof of the same high standard of negligence appropriate to the crime of manslaughter based on negligence at common law: R v D (1984) 3 NSWLR 29.

In R v Pullman (1991) 25 NSWLR 89, adopting what was said in the speech of Lord Atkin in Andrews v DPP (1937) AC 576, it was held that to prove manslaughter by negligence at common law, the Crown must establish such a high degree of disregard for the life and safety of others as to be regarded as a crime against the community generally, and as conduct deserving punishment. It follows, of course, that this applies also to causing grievous bodily harm by a negligent act under s 54 of the Crimes Act 1900.

In delivering his speech in Andrew’s case, Lord Atkin dealt with the appropriate epithet which might be applied to the degree of negligence necessary to establish manslaughter at common law. His Lordship said, “… probably of all the epithets that can be applied, … ‘reckless’ most nearly covers the case”. In referring to the relevant portion of His Lordship’s speech, the court in Pullman did not refer to this part of the judgment. It is suggested that this was deliberate, since the introduction of the word “reckless” creates difficulties when regard is had to the subjective requirement which “reckless indifference” imports as part of the definition of murder in s 18 of the Crimes Act 1900.

Section 54 of the Crimes Act 1900 is not limited in its operation to negligent acts or omissions. It also includes unlawful acts or omissions. In R v Pullman (1991) 25 NSWLR 89, notwithstanding the omission from s 54 of any requirement that the relevant unlawful act must also be dangerous, it was held by way of analogy to manslaughter by unlawful and dangerous act (applying the court’s decision in R v D (1984) 3 NSWLR 29) that an “unlawful act” for the purpose of s 54 must also be a “dangerous act”. One should query, however, whether the unlawful act should also be a dangerous one.

It was also held in Pullman that an act which constitutes a mere breach of some statutory or regulatory prohibition does not, per se, constitute an unlawful act sufficient to found a charge of manslaughter by unlawful and dangerous act. To be “unlawful”, the act must be criminal as opposed to being merely tortious: applying Pemble v The Queen (1971) 124 CLR 107 at 122. This also applies to a charge under s 54 based on an unlawful act.

The authorities establish that on a charge under either head of s 54, the jury should be instructed in similar terms as they would be to a charge of manslaughter by unlawful and dangerous act or criminal negligence as the case may be. Judges should, however, note that this is the cautious view and the judgment in Pullman should be given consideration.

Where the charge is one of causing grievous bodily harm by an unlawful act, the jury should be directed that the act of the accused must have been deliberate (in the sense of voluntary) and not accidental, and that a reasonable person in the accused’s position (performing that act) would have realised they were exposing another or others to an appreciable risk of really serious injury: Wilson v The Queen (1970) 174 CLR 313.

In the case of a negligent act or omission, the jury will need to be directed that the accused was under a duty of care recognised by the law, such that by his or her deliberate act or omission, constituting a breach of that duty of care, he or she fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk of grievous bodily harm to another or others, that the act or omission of the accused merited criminal punishment: see [5-6230]–[5-6250] which provides a summary of the situations in which the duty of care may arise.

Where there is an issue of causation, the jury will need to be directed that the accused’s act or omission contributed significantly to the grievous bodily harm suffered by the victim, but that it need not be the sole or immediate cause of that harm: Royall v The Queen (1991) 172 CLR 378 at 398. The principle that the accused must take the victim as he or she finds them applies so that the existence of a constitutional defect in the victim unknown to the accused, making the victim more susceptible to grievous bodily harm, does not raise an issue of accident: R v Moffat (2000) 112 A Crim R 201.

Where in issue, the jury should be directed that causation is to be determined by the application of common sense to the facts as the jury finds them — “appreciating that the purpose of the enquiry is to decide whether to attribute legal responsibility in a criminal matter”. In R v Toma [1999] NSWCCA 350, this was described as “a standard direction on causation”.

In the context of a charge of murder, a difference of view has been expressed as to whether the accused’s act (causative of the death) must have been reasonably foreseeable as to that consequence. In R v Toma [1999] NSWCCA 350, which was also a murder case, the proposition that the jury should have been instructed in these terms was rejected. It was left open, however, as to whether there may be some cases in which such a direction may be required on the issue of causation.

It is suggested that in an offence such as that created by s 54 of the Crimes Act 1900, which requires no element of mens rea as to the consequences of the accused’s act or omission (whether unlawful or negligent), foresight or foreseeability is not required where an issue of causation arises. However it has been held in relation to the statutory equivalent in England of s 59 of the Crimes Act 1900 (assault occasioning actual bodily harm), which is analogous to s 54, in a case like Royall v The Queen (1991) 172 CLR 378 in which the conduct of the accused caused the victim to take the final step, that is, jumping from a moving car, which led to the actual bodily harm, that reasonable foresight of the victim’s act as a consequence of what the accused had done was a matter for consideration by the jury: R v Roberts (1971) 56 Cr App R 95, cited by the High Court in Royall v The Queen. It may be, therefore, that where a novus actus is in issue, foreseeability is required.

[5-6410] Suggested direction — accused charged with causing grievous bodily harm by negligent act

[The accused] is charged that by [his/her] negligent act [he/she] caused grievous bodily harm to [the victim]. In order to establish this offence, the Crown must first prove beyond reasonable doubt the act of [the accused], that is … [identify the act alleged].

[Where there is an issue of accident or the voluntariness of the alleged act, add

The Crown must not only establish that [the accused] did the act, but it must also prove beyond reasonable doubt that it was the deliberate act of [the accused].

[The accused] is not to be held liable for any act which was accidental (or not [his/hers] in the sense that it was not [his/her] conscious act) … [canvass the evidence for the Crown and the accused and the opposing submissions on this issue].]

The Crown must next prove beyond reasonable doubt that by [his/her] act [the accused] caused grievous bodily harm to [the victim]. Grievous bodily harm means really serious bodily injury.

[If the matter is in issue, add

On this, the Crown relies upon the following evidence … [summarise the evidence for the Crown]. [The accused], on the other hand, relies on the following … [summarise evidence for the accused and put any opposing submissions as to the issue].]

[Where causation is in issue, add

The Crown must next satisfy you, beyond reasonable doubt, that it was that deliberate (voluntary) act of [the accused] which caused the alleged grievous bodily harm to [the victim]. In determining whether it has established this, you will apply your common sense to the facts as you find them, appreciating that the purpose of the inquiry is to decide whether to attribute legal responsibility in a criminal matter. Provided you are satisfied that the act of [the accused] contributed significantly to the grievous bodily harm allegedly suffered by [the victim], it need not be the sole or direct cause of that grievous bodily harm.]

[Where it is asserted that the victim had a constitutional defect unknown to the accused, add

[The accused] relies on evidence that [the victim] at the time of the alleged act of [the accused] suffered from a constitutional defect or condition of which [the accused] was then unaware … [identify the evidence relied upon by the accused and any evidence on this issue relied upon by the Crown].

Even if, however, you are satisfied that [the accused] did not know of the physical condition of [the victim], it would nevertheless be open to you to find that the Crown has established that the act of [the accused] did cause the grievous bodily harm allegedly done to [the victim] because the law is that if a person does an act such as is alleged here, then [he/she] must take the victim as [he/she] finds [him/her], that is to say, with any physical conditions or weaknesses which that victim may have.]

The Crown must also satisfy you beyond reasonable doubt that the act of [the accused] was a negligent act. In order to establish this part of its case, the Crown must prove two things beyond reasonable doubt.

Firstly, it must prove that at the time of doing the act [the accused] was under a duty recognised by law, not a simply a moral or duty, but a legal duty, to refrain from doing the act which the Crown alleges [he/she] did. Secondly, the Crown must show that in so acting [the accused] was in breach of that duty which, as a matter of law, [he/she] owed to [the victim].

Here the Crown alleges that [the accused] was under a duty to [the victim] not to act as [he/she] did because … [state the nature of the duty relied upon by the Crown, that is, under a statute; by virtue of a relationship between the accused and the victim; where the accused had assumed a contractual duty of care towards the victim; or where the accused had voluntarily assumed care of a victim unable to help him or herself].

In asserting that there was such a duty in the circumstances of this case, the Crown relies upon the following evidence … [outline the evidence relied upon by the Crown and, where the matter is in issue, any evidence relied upon by the accused, and the opposing submissions]. I direct you that if you accept the evidence of the Crown beyond reasonable doubt, then the Crown will have established that there was such a duty as it alleges here.

The Crown must also establish beyond reasonable doubt that the act of [the accused] in breach of [his/her] duty of care was such that it fell short of the standard of care which a reasonable person would have exercised in the circumstances, and involved such a high risk of grievous bodily harm to another as to merit criminal punishment. A person acts in breach of a duty of care which [he/she] has towards another person if [he/she] does something which a reasonable person in [his/her] position would not do in the circumstances.

The reasonable person with whose conduct you must compare the act of [the accused] in this case must be assumed to possess the same personal attributes as [the accused], being of the same age and the same level of experience, and having the same knowledge as [the accused] would have had of the circumstances in which [he/she] found [himself/herself]. That reasonable person should also be regarded as a person of ordinary fortitude and strength of mind, that is to say, not unduly timid nor indeed unduly robust in that regard.

You would be justified in finding that [the accused] merited criminal punishment only if you are satisfied beyond reasonable doubt that, in acting as [he/she] is alleged to have done, the conduct of [the accused] fell so far short of the standard of care which such a reasonable person would have exercised in the circumstances, that it involved a high risk that grievous bodily harm would follow if the act alleged were done.

The Crown does not have to establish that [the accused] had any intention to injure anyone.

Provided you are satisfied that [his/her] act was deliberate and in breach of a duty to [the victim], and you are also satisfied that a reasonable person in [his/her] position would have foreseen that risk of injury, it matters not whether [the accused] [himself/herself] realized that [he/she] was exposing [the victim] to a risk of really serious bodily injury. The question is whether a reasonable person in the position of [the accused] would have realized that the risk existed.

[5-6420] Accused charged with causing grievous bodily harm by omission to act

There is no essential difference between the direction to be given here and the direction given above except, of course, that there is no requirement of an act. The jury should be directed in terms of a duty of care towards the victim, which includes the doing of the act alleged by the Crown not to have been done by the accused, and establishing that it was his or her legal duty to do so.

[5-6430] Suggested direction — accused caused grievous bodily harm to the victim by their unlawful act

[The accused] is charged that by [his/her] act, which was unlawful, [he/she] caused grievous bodily harm to [the victim].

… [The jury should be directed as under [5-6410] in respect of the requirement of a non accidental, deliberate and conscious act of the accused where the question of accident or voluntariness arises as an issue. The jury should also be directed in terms of causation as under [5-6410] and as to the meaning of “grievous bodily harm”].

The Crown must establish, beyond reasonable doubt, that the act of [the accused] was unlawful. It is not every unlawful act, however, which is sufficient for this purpose. What the Crown must show is that the act relied upon for the purposes of this case was not simply contrary to law but was also a dangerous act [see: R v Pullman (1991) 25 NSWLR 89].

As to the question of whether the act relied upon by the Crown was unlawful, the Crown relies upon … [canvass the evidence relied upon by the Crown as proving unlawfulness and any evidence relied upon by the accused, and the opposing submissions].

I direct you, as a matter of law, that if you accept the evidence of the Crown, then that act (in those circumstances) was an unlawful act.

On the other hand, if you are left in reasonable doubt on that matter, after having taken into consideration the evidence relied upon by both the Crown and [the accused], and the opposing submissions of counsel, the Crown will not have established its case and [the accused] is entitled to be acquitted.

As I have said, however, it is not sufficient that the Crown shows that the act alleged was unlawful in the sense of being against the law. The Crown must also satisfy you beyond reasonable doubt that the act was dangerous.

An act is dangerous in law if it is such that a reasonable person in the position of [the accused] would have realised that by doing such an act, [the victim] was being exposed to an appreciable, that is to say, significant risk of really serious injury.

The Crown does not have to establish that the act of [the accused] was done with any intention to injure. Nor does it have to establish that [the accused] [himself/herself] realised that [he/she] was exposing [the victim] to the risk of such injury.

The question is whether a reasonable person in the position of [the accused], being a person of the same age and experience as [the accused], and having the same degree of knowledge as [the accused] would have had of the circumstances, and also being a person of ordinary fortitude and strength of mind, would have realised that by doing that act [he/she] was exposing [the victim] to a risk of really serious bodily injury.

[5-6440] Accused caused grievous bodily harm to the victim by an unlawful omission

It is difficult to envisage such a case which would not also fall under [5-6420] and no suggested directions are given under this head.