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Supreme Court of New South Wales=On 14 February 2010, the defendant Petty Officer Nikolai Rofe – a member of the Royal Australian Navy posted to the Australian Defence Force Academy (‘ADFA’) where he was the Senior Non-Commissioned Officer in charge of the Seamanship Centre and Boatshed – was responsible for the conduct of an adventure training activity for ADFA officer trainees (officer cadets and midshipmen, for convenience in this judgment collectively referred to as ‘officer cadets’) using a 6.3 metre rigid hull inflatable boat with an outboard motor and unguarded propeller (‘the vessel’), on Lake Burrinjuck near Yass. After completion of fast water insertion exercises, Petty Officer Rofe took a number of officer cadets out on the vessel for what was variously described as a “sea jolly”, “joy ride” or “bit of fun”, in the course of which Officer Cadet Oliver Minchin fell from the vessel and suffered horrific injuries after his lower back connected with the propeller, resulting in the loss of approximately four litres of blood. On 21 December 2010, the Local Court at Yass (Magistrate Beattie) dismissed charges brought against Petty Officer Rofe by the Maritime Authority of New South Wales (‘the Authority’), under (NSW) Marine Safety Act 1998, s 13(1)(b), for operating a commercial vessel recklessly occasioning grievous bodily harm, and s 13(1)(a), for operating a commercial vessel negligently occasioning grievous bodily harm. By summons filed on 17 January 2011, Sean O’Dwyer in his capacity as a Public Officer of the Authority appeals against the Magistrate’s order dismissing the proceedings. The Authority contends that the learned Magistrate erred in law in dismissing the charges, specifically on the following grounds: (1) in holding that for the purposes of Marine Safety Act s 13(1)(a) and s 13(1)(b), the existence of a possibility of serious harm was not sufficient to constitute recklessness and/or negligence; (2) in holding that contravention of s 13(1)(a) required a high and significantly culpable degree of negligence, being a higher degree of negligence than the standard applicable under civil law; (3) in treating the facts that the officer cadets who participated in the relevant boat rides did so for fun and willingly as exculpatory for the purposes of s 13(1)(a) and s 13(1)(b); (4) a fourth ground was not pressed; and (5) in failing to hold that the facts as found constituted a contravention of s 13(1)(b) or alternatively s 13(1)(a) of the Act. Some days before the hearing of the appeal, counsel for both parties were informed of my role with the Australian Defence Force – which involves no responsibility for or association with any part or member of the Defence Force involved in this case – and afforded an opportunity to take instructions in that respect. Neither party objected to my hearing the matter.

Maritime Authority of NSW v Nikolai Rofe [2012]

NSW Legislative Assembly

NSW Legislative Assembly (Photo credit: betta design)

NSWSC 5 (16 January 2012)

Last Updated: 17 January 2012

Supreme Court

Case Title:
Maritime Authority of NSW v Nikolai Rofe
Medium Neutral Citation:
[2012] NSWSC 5
Hearing Date(s):
Wednesday, 27 July 2011
Decision Date:
16 January 2012
Jurisdiction:
Before:
Brereton J
Decision:
Appeal dismissed.
Catchwords:
CRIMINAL LAWNavigation offences – reckless navigation of vessel on navigable waters under (NSW)Marine Safety Act 1998s 13(1)(b) – actus reus of offence – whether Magistrate erred in holding actus reus of offence required real or obvious and serious risk of harm eventuating – plaintiff contends that incurring slight possibility of grave harm sufficient to satisfy actus reus – Magistrate focuses on likelihood of harm eventuating – offence concerned with conduct – navigation of vessels activity of social utility that carries intrinsic risk – Parliament did not intend to prohibit assumption of slight risk even if consequences particularly grave – actus reus requires operation of a vessel to incur a risk that is obvious, the likelihood of which is serious and the potential consequences of which involve personal injury or substantial property damage – likelihood of risk materialising must be at least real, obvious and serious – Magistrate applied correct test.
CRIMINAL LAW – Navigation offences – negligent navigation of vessel on navigable waters under (NSW)Marine Safety Act 1998s 13(1)(a) – whether mere incurring of risk with potentially grave consequences satisfies negligence – mere presence or foreseeability of risk insufficient for negligence – negligence requires unreasonable incurring of risk – assessment of reasonableness conditioned by likelihood of materialisation of risk – mere existence of risk insufficient to constitute negligence.
CRIMINAL LAW – Navigation offences – negligent navigation of vessel – whether Magistrate erred in applying standard of care requiring a high and significantly culpable degree of negligence higher than civil standard – criminal negligence and civil negligence distinct concepts – criminal negligence does not require harm to eventuate from negligent conduct – criminal negligence does not require breach of duty to a particular individual – criminal negligence must be proved beyond reasonable doubt – gradations of criminal negligence exist – differing standards of negligence required for manslaughter, dangerous driving and mere negligent driving – criminal negligence in present statutory context requires departure from standard of care for other road users expected of the ordinary prudent driver in all the circumstances – Magistrate applied incorrect test by requiring “criminally culpable degree of carelessness”, and a “higher degree of negligence … than under the civil law”, and “acting without due care to a criminal grade”.
CRIMINAL LAW – Navigation offences – reckless and negligent navigation of vessel – whether Magistrate erred in considering voluntary participation of cadets in recreational activity as an exculpatory factor – Magistrate did not consider this as exculpatory factor – criminal and civil negligence distinct concepts – would be erroneous to treat tortious defences such as voluntary assumption of risk as applicable to criminal offences – voluntary participation in activity carrying obvious risk may be relevant circumstance under s 13(3) in considering whether operation reckless or negligent.
CRIMINAL LAW – Navigation offences – reckless and negligent navigation of vessel – whether Magistrate erred in failing to hold that on facts found defendant had acted recklessly or negligently – error of law where decision-maker reaches conclusion on ultimate issue on facts found that is not legally open – real issue whether risk of being thrown overboard in context of vessel turning and having uncovered rear propeller negligent or reckless – Magistrate finds evidence does not establish likelihood of propeller strike – Magistrate finds evidence does not establish beyond reasonable doubt whether incident was materialisation of a real obvious and serious risk as opposed to a freak occurrence – conclusion as to recklessness one reasonably open to Magistrate – application of correct negligence test – whether conduct of defendant departed from standard of care commensurate with civil standard – Magistrate concluded unable on evidence to ascertain likelihood of risk materialising – impossible to decide conduct negligent even if correct test applied – conclusions of Magistrate reasonably open on primary facts found – no error of law.
CRIMINAL LAW – Disposition of prosecution appeal – consequence of Magistrate erring in application of negligence test – generally appeals will not succeed unless error of law affects ultimate order made – erroneous application of negligence test would not have affected ultimate result – test for negligence applied by Magistrate followed from prosecution concurring with defendant’s submissions as to applicable standard of care – parties bound by conduct of case at trial – not in interests of justice to uphold appeal.
Legislation Cited:
(NSW) Civil Liability Act, s 5K, s 5L
(NSW) Crimes Act 1900s 35s 52As 54s 61I
(NSW) Crimes (Appeal and Review) Act 2001s 56,s 59s 65s 70s 72
(WA) Criminal Code 1913-1945, s 291A
(NSW) Environmental Offences & Penalties Act 1989, s 6
(NSW) Marine Safety Act 1998s 3s 4s 5s 9s 13s 136
(NSW) Motor Traffic Act 1909, s 4
(UK) Motor Car Act (3 Edw VII c 36)
(UK) Road Traffic Act 1930
(UK) Road Traffic Act 1972, s 1
(TAS) Traffic Act 1925s 32
Cases Cited:
Andrews v Director of Public Prosecutions [1937] UKHL 1[1937] AC 576
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Balenzuela v De Gail [1959] HCA 1(1959) 101 CLR 226
Blackwell v R [2011] NSWCCA 93
Callaghan v The Queen [1952] HCA 55(1952) 87 CLR 115
Clout v Hutchinson (1950) 51 SR (NSW) 3267 WN (NSW) 203
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1
Dennis v Watt (1942) 43 SR (NSW) 32
Director of Public Prosecutions (NSW) v Yeo (2008) 188 A Crim R 82[2008] NSWSC 953
Director of Public Prosecutions v Attallah [2001] NSWCA 171
Director of Public Prosecutions v Wunderwald [2004] NSWSC 182
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 15355 WN (NSW) 63
Fehlberg v Gallahar [1957] TasLR 286
Hayes v Federal Commission of Taxation [1956] HCA 21(1956) 96 CLR 47
Hope v Bathurst City Council [1980] HCA 16;(1980) 144 CLR 1
Jones v Minister for Immigration and Ethnic Affairs(1995) 63 FCR 32
Laoulach v Ibrahim [2011] NSWCA 402
Metwally v University of Wollongong (1985) 60 ALR 68
Multicon Engineering Pty Ltd v Federal Airports Corp(1997) 47 NSWLR 631
NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6
R v Banditt (2004) 151 A Crim R 215[2004] NSWCCA 208
R v Bateman (1927) 19 Cr App R 8
R v Buttsworth [1983] 1 NSWLR 658
R v Lawrence [1982] AC 510[1981] 1 All ER 974
R v Tolmie (1995) 37 NSWLR 660
Rowe v Australian United Steam Navigation Co Ltd[1909] HCA 25(1909) 9 CLR 1
RTA v Graincorp Operations Ltd [2010] NSWCA 317
Stead v State Government Insurance Commission[1986] HCA 54(1986) 161 CLR 141
Water Board v Moustakas [1988] HCA 12(1988) 180 CLR 491
Waugh v Campbell [1920] SC (J) 1
Wintulich v Lenthall [1932] SASR 60
Texts Cited:
Category:
Principal judgment
Parties:
Sean O’Dwyer in his capacity as a Public Office of the Maritime Authority of NSW (plaintiff)
Nikolai Rofe (defendant)
Representation
– Counsel:
Counsel:
J K Kirk (plaintiff)
Mr S J Odgers SC with Mr Gill (defendant)
– Solicitors:
Solicitors:
Maritime Authority of NSW (plaintiff)
Kamy Saeedi Lawyers (defendant)
File number(s):
2011/15220
Publication Restriction:

JUDGMENT

  1. On 14 February 2010, the defendant Petty Officer Nikolai Rofe – a member of the Royal Australian Navy posted to the Australian Defence Force Academy (‘ADFA’) where he was the Senior Non-Commissioned Officer in charge of the Seamanship Centre and Boatshed – was responsible for the conduct of an adventure training activity for ADFA officer trainees (officer cadets and midshipmen, for convenience in this judgment collectively referred to as ‘officer cadets’) using a 6.3 metre rigid hull inflatable boat with an outboard motor and unguarded propeller (‘the vessel’), on Lake Burrinjuck near Yass. After completion of fast water insertion exercises, Petty Officer Rofe took a number of officer cadets out on the vessel for what was variously described as a “sea jolly”, “joy ride” or “bit of fun”, in the course of which Officer Cadet Oliver Minchin fell from the vessel and suffered horrific injuries after his lower back connected with the propeller, resulting in the loss of approximately four litres of blood. On 21 December 2010, the Local Court at Yass (Magistrate Beattie) dismissed charges brought against Petty Officer Rofe by the Maritime Authority of New South Wales (‘the Authority’), under (NSW) Marine Safety Act 1998s 13(1)(b), for operating a commercial vessel recklessly occasioning grievous bodily harm, and s 13(1)(a), for operating a commercial vessel negligently occasioning grievous bodily harm. By summons filed on 17 January 2011, Sean O’Dwyer in his capacity as a Public Officer of the Authority appeals against the Magistrate’s order dismissing the proceedings.
  1. The Authority contends that the learned Magistrate erred in law in dismissing the charges, specifically on the following grounds:

(1) in holding that for the purposes of Marine Safety Act s 13(1)(a) and s 13(1)(b), the existence of a possibility of serious harm was not sufficient to constitute recklessness and/or negligence;

(2) in holding that contravention of s 13(1)(a) required a high and significantly culpable degree of negligence, being a higher degree of negligence than the standard applicable under civil law;

(3) in treating the facts that the officer cadets who participated in the relevant boat rides did so for fun and willingly as exculpatory for the purposes of s 13(1)(a) and s 13(1)(b);

(4) a fourth ground was not pressed; and

(5) in failing to hold that the facts as found constituted a contravention of s 13(1)(b) or alternatively s 13(1)(a) of the Act.

  1. Some days before the hearing of the appeal, counsel for both parties were informed of my role with the Australian Defence Force – which involves no responsibility for or association with any part or member of the Defence Force involved in this case – and afforded an opportunity to take instructions in that respect. Neither party objected to my hearing the matter.

The Marine Safety Act

  1. The objects of the Marine Safety Act are set out in s 3, as follows:

(a) to ensure the safe operation of vessels in ports and other waterways,

(b) to promote the responsible operation of vessels in those waters so as to protect the safety and amenity of other users of those waters and the amenity of occupiers of adjoining land,

(c) to provide for the investigation of marine accidents and for appropriate action following any such investigation,

(d) to consolidate marine safety legislation.

  1. Section 13, which is headed “Reckless, dangerous or negligent navigation and other acts” provides as follows:

(1) A person must not operate a vessel in any navigable waters:

(a) negligently, or

(b) recklessly, or

(c) at a speed or in a manner dangerous to the public.

Maximum penalty:

(a) if the operation of the vessel occasions death or grievous bodily harm – 1,000 penalty units (where the vessel is a seagoing ship), 100 penalty units (where the vessel is any other commercial vessel) or 50 penalty units (where the vessel is a recreational vessel), or imprisonment for 2 years, or both, or

(b) if the operation of the vessel does not occasion death or grievous bodily harm – 1,000 penalty units (where the vessel is a seagoing ship), 100 penalty units (where the vessel is any other commercial vessel) or 50 penalty units (where the vessel is a recreational vessel).

(2) A person who is on a vessel in navigable waters, or is being towed by such a vessel, must not do anything that is dangerous to the public.

Maximum penalty: 50 penalty units.

(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following:

(a) the nature and condition of the waters in which the offence is alleged to have been committed,

(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, in those waters.

(4) The higher maximum penalty under paragraph (a) of the maximum penalty in subsection (1) does not apply unless it is alleged in the charge for the offence that the conduct concerned occasioned death or grievous bodily harm.

(5) In this section:

dangerous to the public includes anything that causes or is likely to cause injury to any person or damage to any property.

grievous bodily harm includes any permanent or serious disfigurement.

seagoing ship means a commercial vessel of more than 45.72 metres in length that is used or intended to be used to carry cargo or passengers for hire or reward and that normally operates on voyages between ports.

  1. ‘Operate’ is defined in s 4(1) to include determining or exercising control over the course or direction of a vessel or the means of propulsion of a vessel, and piloting a vessel. ‘Vessel’ is defined by s 5 to include a watercraft of any description used or capable of being used as a means of transportation on water. It is not in issue that the vessel was a ‘commercial vessel’ for the purposes of the Act. “Navigable waters” are defined in s 4 to mean all waters (whether or not in the state of New South Wales) that are from time to time capable of navigation and are open to or used by the public for navigation, whether on payment of a fee or otherwise. It was and is not in dispute that the defendant was operating a vessel in navigable waters at the time of the alleged offence.
  1. By operation of s 136, the Act binds the Crown in right of New South Wales and, so far as the legislative power of the New South Wales Parliament allows, the Crown in all its other capacities. Prima facie , the Act applies to the Crown in right of the Commonwealth, manifested in the instant case by the Australian Defence Force, and ADFA. Section 9 deals explicitly with the Act’s application to vessels belonging to the Australian Defence Forces:

(1) Except as provided by this section, this Act does not apply to or in respect of a vessel belonging to the Defence Force of Australia or to the naval, military or air forces of any other country.

(2) Parts 2 and 3, Division 4 of Part 8 and Schedule 1 apply to and in respect of a vessel belonging to the Defence Force of Australia (other than a commissioned vessel) and to its master, crew and passengers.

(3) In this section, a reference to a commissioned vessel includes a reference to any vessel carried on board or launched from a commissioned vessel.

  1. Section 13 is contained in Part 2 of the Act, and the vessel was not a commissioned vessel; accordingly, the Act applied to the vessel operated by the defendant.

Facts

  1. The learned Magistrate outlined the incident giving rise to the charge, relevantly, as follows (at [5]-[9]):

On 14 th February, 2010 a group of defence force cadets were attending adventure training exercises at Lake Burrinjuck. Without intending any disrespect I refer to all participants as cadets, but note that the group included officer cadets such as Mr Minchin, who had joined the defence forces some three weeks earlier on 20 th January 2010, and a year one midshipmen.

During the morning this particular group received instruction in Fast Water Insertions, a technique for entering water from a vessel driven at speed. They then participated in progressively faster exercises in that technique on a 6.3 metre Arib NAIAD rigid hull inflatable boat operated by the defendant. This vessel had an outboard motor with a propeller at the rear. There was no guard or cover over the propeller and the defendant warned the cadets to avoid the rear of the vessel because the propeller would turn them into “burley”.

On completion of the Fast Water Insertions, and as a separate and voluntary activity, the defendant took groups of six cadets for what was variously described as a “sea jolly”, a “joy ride”, and a “bit of fun”. This involved the defendant operating the vessel at speed and making quick sharp turns during which some cadets fell overboard and were subsequently recovered into the vessel.

On the last of these rides, Mr King fell overboard at a turn, was recovered into the vessel, and swapped seats with Mr Minchin. The defendant then conducted another turn, and Mr Minchin and Ms Mason fell overboard and Mr Minchin’s back came into contact with the uncovered propeller at the rear of the vessel. He felt pain and, together with Ms Mason, called for help. He was assisted back into the vessel, and the defendant radioed for help and headed for shore.

Mr Minchin was subsequently airlifted to the Canberra Hospital, where he underwent surgery for multiple fractures and lacerations. The discharge summary refers to his having a “massive transfusion – approx 4L blood loss”.

  1. Her Honour proceeded to deal with the evidence of the witnesses (at [10]-[11]):

Eight cadets, including Mr Minchin, gave substantially consistent evidence about these events. There were some differences as to speed, but the consensus was between the medium and the fast Fast Water Insertions exercises, during which the defendant stated that he attained speeds of twenty knots and more than twenty-five knots. There were also differences as to the number of cadets who fell overboard during the rides, and when that happened. However, looking at the totality of the evidence it is apparent that at least one cadet fell overboard in each of the six groups and that in two of the rides two cadets fell overboard, with Mr King falling in on two occasions in separate groups. This brings a total of at least eight cadets falling overboard during the various rides.

The final key area of difference was their perception of the force that was involved as the boat turned. Mr Minchin stated, “I felt like I couldn’t hang on” and “It felt unexpected, quicker than I thought it would.” Other cadets spoke of being surprised and it being more powerful than they expected. Mr Babare spoke of the force as “pretty steep”, but he had “no trouble” holding on for any of the turns. Mr George spoke of a “constant outward pull… no jerking… you could easily hold on if you wanted to” and Ms Telford referred to the force as increasing as the propeller gripped and that was when people would fall out, “because they were not holding on properly or hard enough”, although these latter two were both year one midshipmen, with prior experience in similar vessels, in contrast to other cadets. Nonetheless, all these agree that there was a force and people who were unable to maintain a hold fell overboard.

The Magistrate’s decision

  1. Her Honour summarised the prosecution argument as that the defendant operated the vehicle in a manner to cause a real risk of harm by taking the cadets for “joyrides at high speeds with sharp turns and the object was to create significant momentum with the plainly foreseeable consequence that the cadets would fall overboard”; that the defendant had conceded, in cross-examination, that any person overboard was a “serious event”; that by creating that situation the defendant was exposing participants to danger, particularly from the unguarded propeller; and that by creating and persisting in these risks he operated the vessel recklessly, or alternatively carelessly. Her Honour then concluded as follows (at [27]-[31]):

However, there is no evidence as to the significance of propeller strike in this context, only that, unfortunately, it can occur. There is no explanation as to why or why only Mr Minchin came into contact with the propeller; there is nothing from which it can be concluded that falling overboard would place a cadet in proximity with the propeller. There were certainly submissions as to momentum, but no evidence as to this or as to where cadets hit the water in relation to the rear of the vessel. There is insufficient information from which to answer the question, beyond reasonable doubt, was this a horrific and remarkable incident or was it a real risk, something to be expected.

The prosecution case asks me to assume that there was a real risk simply from cadets falling out of the vessel, but the evidence is not consistent with that: at least seven fell out without incident. It also asked me to accept that there was a real risk of propeller strike, but again there is no evidence of that, only that there was this one instance. The evidence does not distinguish between whether the activity was inherently risky and therefore reckless or criminally negligent, or simply a freak occurrence, an accident.

Clearly Mr Minchin suffered significant injuries as a result of falling from the vessel and being struck by the propeller. Clearly cadets were going to fall overboard as the boat turned sharply; that was the fun or “adrenalin rush” of the activity: whether you could hold on.

However, I am not satisfied that the risk of injury from the propeller was a real one in the facts and circumstances of this case. There is evidence to support the possibility of that danger, but not that the defendant’s operation of the vessel was such as to create “an obvious and serious risk” and that he nonetheless took that risk. and that he was therefore reckless.

Similarly, while negligence here does not require recognition of risk it does require a criminally culpable degree of carelessness, something that departs from the standard of care expected of the ordinary prudent operator. The defendant told the cadets where to sit, how and where to hang on, and to lean in the opposite direction; they had earlier been warned about the propeller; he gave them warning in advance of each turn and the direction it would take. While the defendant’s manner of operating the vessel caused them to fall overboard, it did not depart from that expected standard of care and was not criminally negligent.

Question of law alone

  1. The appeal is brought pursuant to (NSW) Crimes (Appeal and Review) Act 2001s 56, which relevantly provides:

Appeals as of right

(1) The prosecutor may appeal to the Supreme Court against:

(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings…

… but only on a ground that involves a question of law alone.

  1. Accordingly, the right of appeal is limited to a question of law alone (and does not extend to a mixed question of fact and law), and it is not open to this court to review the Magistrate’s findings of fact, which must be accepted as conclusive. This is of particular relevance to Ground 5.

Ground 1 – Is the mere possibility of serious harm sufficient?

  1. The Authority’s first ground of appeal is that the Magistrate erred in holding that the existence of a possibility of serious harm was insufficient to found recklessness or, in the alternative, negligence, for the purposes of s 13(1)(b) and s 13(1)(a) respectively. This is a question of construction of a statutory provision, and is necessarily a question of law [ Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287].
  1. The essence of her Honour’s relevant reasoning was as follows:

(6) The fundamental issue in the case was whether the defendant operated the vessel recklessly or negligently for the purposes of s 13(1)(a) and s 13(1)(b) of the Act, by driving it at speed with sharp turns that caused the cadets to fall overboard, in the context of the vessel having an uncovered rear propeller (at [12]).

(7) Recklessness (for the purposes of s 13(1)(b)) involves operating a vessel in a manner which in fact created a real risk of harmful consequences, so that it must be established that the defendant was operating the vessel in such a manner as to create an obvious and serious risk of causing physical injury, and did so without having given any thought to the possibility of there being any such risk or, having recognised that some risk was involved, nonetheless took that risk (at [16]) [citing R v Lawrence [1982] AC 510[1981] 1 All ER 974 982 (Lord Diplock), which considered the offence of causing death by driving a motor vehicle recklessly under (UK) Road Traffic Act 1972, s 1, which provided that “A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence”].

(8) Criminal negligence (for the purposes of s 13(1)(a)) is a different concept from and ought not be conflated with common law negligence (in the civil context); it involves placing other users at risk regardless of whether they are there; it is a criminally culpable degree of carelessness; there is no need for a defendant to recognise the risk, nor for any damage to be suffered; it involves a higher degree of negligence than in civil negligence cases, namely, acting without due care to a criminal grade (at [18]) [citing R v Buttsworth [1983] 1 NSWLR 658].

(9) There was insufficient evidence to answer, beyond reasonable doubt, whether this instance of propeller strike was a horrific and remarkable incident or “a real risk, something to be expected” (at [27]). The evidence did not enable the Court to distinguish between whether the activity was inherently risky and therefore reckless or criminally negligent, or simply a freak occurrence, an accident (at [28]).

(10) Although there was evidence of the possibility of propeller strike, it was not established that it was a “real” one in the facts and circumstances or “an obvious and serious risk” (at [30]).

(11) While negligence did not require recognition of risk, it required a criminally culpable degree of carelessness, a departure from the standard of care expected of the ordinary prudent operator. The defendant told the officer cadets where to sit, how and where to hang on, and to lean in the opposite direction; they had earlier been warned about the propeller; he gave them warning in advance of each turn and the direction it would take. While the defendant’s manner of operating the vessel caused them to fall overboard, it did not depart from that expected standard of care and was not criminally negligent [at [31]].

  1. Accordingly, her Honour treated recklessness as requiring that there be more than a mere possibility of harmful consequences, but a “real” or “obvious and serious” risk, one that was “something to be expected” ; and negligence as requiring “a criminally culpable degree of carelessness, a departure from the standard of care expected of the ordinary prudent operator”.
  1. As Mr Kirk, who appeared for the Authority, submitted, the concept of ‘risk’ involves at least two elements – the first pertaining to the likelihood of an adverse event occurring (in terms of probability or possibility), and the second to the gravity of its consequences should it occur (in terms of whether they are serious or trivial). The Authority submitted that her Honour erred in requiring, for recklessness, more than a mere possibility of harmful consequences, and that all that was required was that the relevant consequences, at least if they were serious, be possible.
  1. The starting point must be the terms of the Marine Safety Acts 13. As Mr Odgers SC for the defendant submitted, in the context of criminal recklessness, three types of offences can be distinguished: those concerned with circumstances, those with consequences, and those with conduct. An example of an offence concerned with recklessness as to ‘circumstances’ is sexual assault under (NSW) Crimes Act 1900s 61I – in which the relevant circumstance is that the complainant does not consent to sexual intercourse. An example of an offence concerned with recklessness as to ‘consequences’ is recklessly causing grievous bodily harm under Crimes Acts 35(2). The offences of negligent driving of motor vehicles – and negligent navigation of vessels under s 13(1) of the Act – are concerned with reckless conduct. In the first two classes, recklessness goes to mens rea, but in the last (and relevant) class, it is also an element of the actus reus.
  1. Driving a car, operating a vessel or flying an aircraft are activities that carry intrinsic risk but have social utility, and in this respect are manifestly different from activities such as sexual assault and inflicting grievous bodily harm. Although the maximum penalty is informed by the consequences, the offences created by s 13(1) are not themselves concerned with recklessness as to those consequences – namely, grievous bodily harm and death – but with reckless operation; s 13(1) does not require that any harm ensue, imposing (albeit lesser) penalties for reckless and negligent navigation without more. While s 13(3) provides that in considering whether an offence has been committed, the court is to have regard to ‘all the circumstances of the case’, it then specifies two such circumstances (the condition of the waters and amount of traffic on the water) which, though non-exclusive, concern factors going to the likelihood of harm occurring, as distinct from the gravity of any potential harm. While the objects of the Act – which include to ensure the safe operation of vessels and promote the responsible operation of vessels to protect the safety of other users of the water – might be a little further advanced by a construction that proscribed assumption of any risk however remote, in the context of s 13, which uses well known legal concepts of recklessness and negligence, and bearing in mind that it is a criminal statute, providing criminal penalties, and that – like the driving of motor vehicles – the operation of vessels is a socially useful activity that has inherent risks, it is unlikely in the extreme that Parliament intended to proscribe the assumption of any risk, or even any risk that might have grave consequences.
  1. The test expressed by her Honour explicitly reflected that enunciated by Lord Diplock in t he motor vehicle case R v Lawrence, to which she had been referred by the prosecutor, and which is the leading authority on the offence of “driving recklessly”. In that case, the House of Lords held that the actus reus of the offence of driving recklessly was driving in a manner that created an obvious and serious risk of causing physical injury to any other road user or substantial damage to property; while the mens rea was driving in such a manner without giving any thought to the risk or, having recognised that it existed, nevertheless running it. It was a question of fact whether the risk created by the accused’s driving was both obvious and serious. Lord Diplock (with whom the other members of the House of Lords expressed agreement) said (at All ER, 981-982)(emphasis added):

In ordinary usage ‘recklessly’ as descriptive of a physical act such as driving a motor vehicle which can be performed in a variety of different ways, some of them entailing danger and some of them not, refers not only to the state of mind of the doer of the act when he decides to do it but also qualifies the manner in which the act itself is performed. One does not speak of a person acting ‘recklessly’, even though he has given no thought at all to the consequences of his act, unless the act is one that presents a real risk of harmful consequences which anyone acting with reasonable prudence would recognise and give heed to. So theactus reus of the offence under ss 1 and 2 is not simply driving a motor vehicle on a road, but driving it in a manner which in fact creates a real risk of harmful consequences resulting from it. Since driving in such a manner as to do no worse than create a risk of causing inconvenience or annoyance to other road users constitutes the lesser offence under s 3, the manner of driving that constitutes the actus reus of the offence under ss 1 and 2 must be worse than that; it must be such a create a real risk of physical injury to someone else who happens to be using the road or damage to property more substantial than the kind of minor damage that may be caused by an error of judgment in the course of parking one’s car.

I turn now to the mens rea . … Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible . It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.

In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to thepossibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it.

It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.

If satisfied that an obvious and serious risk was created by the manner of the defendant’s driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.

  1. As the Magistrate, who expressly referred to much of the above extract in her judgment, observed, R v Lawrence was referred to with approval by Kirby P (as he then was) in the Court of Criminal Appeal in R v Tolmie (1995) 37 NSWLR 660, in the context of considering whether an accused was reckless as to whether the complainant consented to sexual intercourse for the purposes of (NSW) Crimes Act 1900s 61I; however, this related only to the question of mens rea. Both parties accepted that his Lordship’s analysis was applicable to the analogous navigation offences under the Marine Safety Act, and the argument turned on the meaning of what his Lordship said rather than on its applicability, albeit that in the present case this ground of appeal pertains to the actus reus – or ‘objective component’ – of the offences.
  1. For the Authority, Mr Kirk submitted that his Lordship’s reference to a “serious” risk was a reference not to the likelihood of the risk but to the serious harmful consequences if it materialised. However, his Lordship repeatedly described the relevant consequences as being (any) physical injury to another person, or substantial damage to property, and did so immediately after the reference to “obvious and serious risk”. If his Lordship had intended the word “serious” to characterise the consequences, he would have said ‘obvious risk of serious consequences’; the noun ‘risk’ would not have followed the adjective ‘serious’. Accordingly, in my view, his Lordship’s reference to ‘serious risk’ was a reference to the chance or probability of the harmful consequences – the quality of which he otherwise described in terms of personal injury or substantial property damage – resulting, not to their gravity.
  1. Mr Kirk invoked his Lordship’s references to the possibility that the act was capable of causing the kind of serious harmful consequences that the offence was intended to deter; the risk being not so slight that an ordinary prudent individual could treat them as negligible; and the defendant not having given thought to the possibility of any such risk, to submit that a risk which, if it materialised, would have serious consequences, so long as it was not so negligible that an ordinary prudent person could justifiably ignore it, would satisfy the actus reus of the offence. However, those references were in the context of his Lordship’s discussion of mens rea ; and (at least in the last case) explicitly refer back to “any such risk” – being an “obvious and serious risk”. When discussing the actus reus , his Lordship repeatedly referred to a “real” and “obvious and serious” risk, clearly holding that the risk must be both obvious and serious. Contrary to Mr Kirk’s submission, that the possibility not be so negligible that an ordinary person could justifiably ignore it is not an element of the actus reus , but was referred to by his Lordship exclusively in the context of the mens rea .
  1. Mr Kirk submitted that the notion of recklessness in this context should involve no higher standard than is required when it is otherwise engaged as a subjective element of an offence, in which context “the Crown must establish foresight of the possibility of the relevant consequence” [ Blackwell v R[2011] NSWCCA 93, [66]-[82] (Beazley JA, James J agreeing)]. However, as both parties accepted, and as Lord Diplock’s speech makes clear, in these particular types of offences the word “recklessly” is part of the actus reus as well as being relevant to the mens rea . Consistently with that view, insofar as it addresses the mens rea , Lord Diplock’s test does not differ from that described by Beazley JA in Blackwell . And even in the context ofmens rea , there is authority that advertence to a real – as distinct from a “bare” – possibility is required. Thus in R v Banditt (2004) 151 A Crim R 215;[2004] NSWCCA 208, a sexual assault case, James J said (at [92]):

… the possibility that the complainant is not consenting, of which the accused is aware, must be more than merely a bare possibility… if an accused person is aware of a real possibility that the complainant does not consent to sexual intercourse, he acts recklessly if, having that knowledge, he decides to proceed to have sexual intercourse, even if he considers it probable (although ex hypothesi not certain) that the complainant does consent… In the kind of extreme case postulated by counsel for the appellant, in which an accused believes that it is overwhelmingly probable that the complainant is consenting but is aware that there is a slight possibility, say a 1% chance, that she is not consenting, then the possibility should be disregarded as being merely a bare possibility and not a real possibility…

  1. Moreover, as Lord Diplock explained, the act of driving recklessly involves a manner of driving that incurs not merely the possibility of a risk of the relevant consequences, but of an obvious and serious risk of them. While, as Mr Kirk points out, and I do not think is disputed, there is some overlap in ‘recklessness’ offences of this kind between the mens rea and actus reus – in the sense, as Lord Diplock explains, that proof of the actus reus invariably goes towards establishing the necessary mens rea – t his does mean that advertence (or inadvertence) to the possibility of ‘serious consequences’ required to establish mens rea translates to the actus reus: t he mens rea and actus reus remain distinct, albeit overlapping, components of the offence. Whilstmens rea is satisfied (as in other types of recklessness cases) if there is a real (as distinct from bare) possibility of the relevant harmful consequences occurring, the actus reus requires something more – namely, an ‘obvious and serious risk’ of those consequences.
  1. A similar view has been taken in the context of (NSW) Civil Liability Act, s 5K, which defines a ‘dangerous recreational activity’ as an activity with asignificant risk of physical harm ; it has been held that gravity of the potential harm alone does not make a risk significant. In Laoulach v Ibrahim[2011] NSWCA 402, concerning injuries suffered as a result of a diving accident in Botany Bay, Tobias JA said (at [123]):

In their written submissions the respondents contended that the risk was significant in terms of its catastrophic consequences. In my opinion that is insufficient. For the risk to be found to be significant there must be a finding not only that it was more than trivial or very slight but also, generally speaking, that there was a real chance of the risk materialising. There is difficulty in accepting that that standard was satisfied in the present case given his Honour’s finding, not challenged by the respondents, that the probability of the risk of harm materialising was low.

  1. In this setting, serious risk means a serious – as opposed to fanciful, very slight or merely theoretical – possibility. Nonetheless, a serious possibility falls well short of something that will probably happen; in R v Buttsworth, O’Brien CJ of CrD (at 684) described the trial judge’s explanation that an “appreciable risk of injury” was required as “putting the legal test at least favourably for the accused”.
  1. Accordingly, it seems to me that the actus reus of reckless navigation requires that the defendant so operate the vessel as to incur risk (1) that is obvious, (2) the likelihood of which is serious, in the sense that it is a serious and not fanciful, very slight or merely theoretical possibility, and (3) the potential consequences of which involve personal injury or substantial property damage.
  1. Mr Kirk submitted that her Honour wrongly focussed on the ‘likelihood’ element – illustrated by references in the judgment to a ‘possibility of danger’ and ‘potential risk’ (as distinct from an obvious risk) – to the exclusion of the gravity of the potential consequences; that this was fundamental to the ultimate finding that a possibility of the consequences of the event occurring could not constitute a “real, obvious and serious risk”; and that while a remote risk of minimal consequences might not found recklessness, a slight risk of grave consequences would do so. But in my judgment, the requirements that the risk be obvious and serious are independent of the gravity of its consequences: however grave the potential consequences, there will only be recklessness if their materialisation is at least an obvious and serious, as distinct from mere, possibility.
  1. That is not to say that the gravity of the potential consequences has no relevance to the question of recklessness. The gravity of the potential consequences is a relevant circumstance to be considered under s 13(3). An ordinary prudent operator could justifiably assume a risk of greater likelihood with minor potential consequences, than one of less likelihood with graver consequences. Thus in R v Buttsworth – an appeal against a conviction for offences of culpable driving occasioning death and grievous bodily harm under (NSW) Crimes Act 1900s 52A – O’Brien CJ of Cr D (with whom Street CJ and Nagle CJ at CL agreed), said (at 665-666) (emphasis added):

A layman, therefore, may describe the driving of a motor vehicle or the driver by various degrees of disapprobation for the manner of the handling of a vehicle upon the road. Rarely will he seriously describe the driving as intended to do harm, but he speaks rather of the apparent lack of regard for the harm the driver ought to realize he may cause to people who may be on the road or in its vicinity. His particular criticism of the driving or the driver may, of course, be aroused by or focussed upon the plight of some particular individual who was specifically put in danger by the deficiency of the driving or the driver, but the layman readily uses these expressions of disapprobation of the use of a vehicle upon a road as descriptive of the general lack of concern the driving displays for the safety of others who might be the worse

for it. He speaks of the risks to others involved in such use of the vehicle, the potential involved of harm to others. Ordinary lay usage describes such a manner of driving, or the driver by epithets such as unsafe, careless, negligent, dangerous, reckless, hazardous, or perilous, perhaps followed by a noun to accentuate the description. The use of these various expressions will

often be governed by the degree of the risk of harm and the gravity of the harm that is considered to be involved .

  1. But there is an irreducible minimum, namely that however grave the potential consequences, the likelihood of the risk materialising must be at least real, obvious and serious. Thus an aircraft pilot assumes the risk of bird strike, with the grave potential consequences of engine failure and crashing, but would not be said to be flying recklessly, unless the circumstances were such that the risk was at least an obvious and serious possibility; for example if he or she proceeded to take off through a flock of seagulls. A vessel operator assumes the risk of striking a submerged object, with the grave potential consequences of the vessel sinking and its passengers drowning, but would not be said to be navigating recklessly, unless in the circumstances the risk was an obvious and serious possibility; for example, if he or she proceeded to sail through a channel in which there were known to be such objects. Once this is appreciated, her Honour’s focus on the question of likelihood is unsurprising: undoubtedly, the consequences of the relevant risk in this case – propeller strike – involved personal injury, so that the fundamental question was whether it was an obvious and serious possibility. The circumstance that the risk existed and had those potential consequences was insufficient to render the operation of the vessel reckless – unless the risk was obvious and its likelihood a serious possibility. In my view, therefore, her Honour was right to insist that more than a mere possibility, but a “real” and “obvious and serious” risk, of propeller strike was required to establish the actus reus of recklessness for the purposes of s 13(1)(b).
  1. Although this ground of appeal was mainly concerned with recklessness, it also referred to negligence. Her Honour rightly identified (at [18] and [31]) that, to establish negligent operation, it was unnecessary that the defendant recognise the risk. The Authority’s case was that the mere incurring of a risk – at least one that has potentially grave consequences – renders conduct relevantly negligent. While the content of the offence of negligent navigation is analysed under the second ground below, this contention can be disposed of here.
  1. The mere presence, or foreseeability, of a risk – however grave its potential consequences – does not make a case of negligence. Negligence involves the unreasonable incurring of risk, and in this context reasonableness is usually, if not always, influenced by the likelihood of materialisation of the risk. Men and women of ordinary prudence run risks – even risks that have potentially grave consequences – every day, upon assessing their likelihood as remote, and/or their incurring as being outweighed by other benefits. Negligence no more than recklessness can be established by the mere incurring of a risk with potentially grave consequences.
  1. Although not directly on point, this is illustrated by the judgment of the Court of Appeal in RTA v Graincorp Operations Ltd [2010] NSWCA 317, where t he relevant section relevantly provided:

A person who is a consignee of goods consigned for road transport is guilty of an offence if:

(a) the person engages in conduct, and

(b) that conduct results or is likely to result in inducing or rewarding a breach of a relevant mass … requirement, and

(c) the person is negligent as to the matter mentioned in para (b).

  1. Mr Odgers, who appeared in that case for the RTA, had submitted that it was not an element of the offence that the conduct be characterised as negligent, and that all that was required was that the foreseeability of the conduct would have been sufficient to alert a reasonable consignee that its conduct would be likely to induce a breach, the test being an objective one. Mr Stevenson, for Graincorp, submitted that foreseeability was only the starting point, and it remained necessary to prove negligence of the defendant to the criminal standard and not just rely on whether or not the outcome of the conduct was foreseeable: there was a duty imposed by statute, and it was essential to establish a breach of that duty.
  1. Handley AJA said (at [ 72]):

The subsection does not penalise the consignee’s failure to achieve the foresight of a reasonable person, it penalises conduct that is negligent. In doing so it imposes a statutory duty on a consignee to take reasonable care to avoid conduct which it should foresee will have or be likely to have the consequences referred to.

  1. Giles JA said (at [ 16]):

For the reasons given by Handley AJA, it was not sufficient that it be foreseeable that receipt of loads after a first receipt of an overloaded vehicle was likely to result in inducing a breach of a relevant mass requirement. Negligence in receiving the loads had to be established. The Magistrate was not satisfied that it had been established.

  1. The first ground of appeal therefore fails.

Ground 2 – the content of criminally negligent navigation

  1. The Authority’s second ground of appeal is that the Magistrate erred in holding that contravention of s 13(1)(a) required a high and significantly culpable degree of negligence, being a higher degree of negligence than the standard applicable under civil law.
  1. The essence of her Honour’s relevant reasoning was as follows:

(1) Criminal negligence (for the purposes of s 13(1)(a)) is a different concept from and ought not be conflated with common law negligence (in the civil context); it involves placing other users at risk regardless of whether they are there; it is a criminally culpable degree of carelessness and there is no need for a defendant to recognise the risk, nor for any damage to be suffered; it involves a higher degree of negligence than in civil negligence cases, namely, acting without due care to a criminal grade (at [18]) [citing R v Buttsworth [1983] 1 NSWLR 658].

(2) There was insufficient evidence to answer, beyond reasonable doubt, whether this instance of propeller strike was a horrific and remarkable incident or “a real risk, something to be expected” (at [27]). The evidence did not enable the Court to distinguish between whether the activity was inherently risky and therefore reckless or criminally negligent, or simply a freak occurrence, an accident (at [28]).

(3) While negligence did not require recognition of risk, it required a criminally culpable degree of carelessness, a departure from the standard of care expected of the ordinary prudent operator. The defendant told the officer cadets where to sit, how and where to hang on, and to lean in the opposite direction; they had earlier been warned about the propeller; he gave them warning in advance of each turn and the direction it would take. While the defendant’s manner of operating the vessel caused them to fall overboard, it did not depart from that expected standard of care and was not criminally negligent (at [31]).

  1. The Authority contends that her Honour, by emphasising a requirement for a “criminally culpable degree of carelessness”, by stating that Buttsworthemphasised that a higher degree of negligence was required than in civil cases, and in referring to acting without due care to a criminal grade, wrongly required a considerable degree of departure from the standard of care to be expected of an ordinarily prudent operator, and thereby required the prosecution to establish a greater degree of departure from the requisite standard of care than the law required. In a sense, t he issue posed for determination is whether the degree of negligence encapsulated by s 13(1)(a) is of the same or different level to that prescribed under the civil law; however, the cases emphasise that the two are different concepts and it is preferable simply to articulate the test for “criminal” negligence in this context rather than to compare it to the civil test.
  1. As Mr Kirk acknowledged, there is no doubt that criminal negligence and civil negligence are distinct concepts. Their conceptual distinctness, and the recognition of differing degrees of criminal negligence was elucidated by Lord Hewart in R v Bateman (1927) 19 Cr App R 8 (at 11-12), a medical manslaughter case:

In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. …

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as “culpable”, “criminal”, “gross”, “wicked”, “clear”, “complete”. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

  1. In Andrews v Director of Public Prosecutions [1937] UKHL 1[1937] AC 576, a motor manslaughter case, Lord Atkin, having cited the above passages, said (at 583):

The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough : for the purposes of the criminal law there are degrees of negligence : and a very high degree of negligence is required to be proved before the felony is established . Probably of all the epithets that can be applied “reckless” most nearly covers the case.

If the principle of Bateman’s case (19 Cr. App. R. 8) is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence : and juries should be directed accordingly.

  1. In Callaghan v The Queen [1952] HCA 55(1952) 87 CLR 115, in considering the degree of negligence required for the purposes of the separate offences of manslaughter and failure to use reasonable care and not take reasonable precautions occasioning death under (WA) Criminal Code 1913-1945, s 291A, the High Court said (at 121):

But the question then arises what is the standard of negligence required… The words “use reasonable care and take reasonable precautions” smack very much of the civil standard of negligence ; yet, particularly of late, defaults involving no moral blame at all are treated as exposing the party to civil liability for negligence in respect of any damage which results…

The question obviously is one of difficulty but in the end it appears to depend upon a choice between two courses. One is to treat the omission to perform the duty to use reasonable care and take reasonable precautions as a description of negligent conduct to be applied according to a single and unvarying standard. The other is to recognize that it may have different applications when it is a description of fault so blameworthy as to be punishable as a crime…

  1. Significantly, the Court stated (at 124):

The conclusion we have formed is that the expression “omission to perform the duty to use reasonable care and take reasonable precautions” which in effect is that of s. 266 and s. 291A must be regarded from the point of view of the context where it occurs. It is in a criminal code dealing with major crimes involving grave moral guilt … we think it would be wrong to suppose that it was intended by the Code to make the degree of negligence punishable as manslaughter so low as the standard of fault sufficient to give rise to civil liability. The standard set both by s. 266 and s. 291A should, in our opinion, be regarded as that set by the common law in cases where negligence amounts to manslaughter.

  1. All these were manslaughter cases, not cases in which the offence was driving (or operating) a vehicle (or vessel) negligently.
  1. In RTA v Graincorp Operations Ltd , Handley AJA (with whom Giles and McColl JJA agreed) said that negligent conduct penalised by the criminal law must involve such a marked departure from the relevant standard of care as to merit criminal punishment. Handley AJA observed, relevantly:

[68] … Negligence is a term of art in the criminal and civil law and its prima facie technical meaning is conduct, by act or omission, which falls short of a duty of care imposed by law on the person concerned. It describes conduct measured against an objective standard and not a state of mind.

[69] Negligence criminalised by statute would ordinarily be conduct in breach of a duty of care recognized by the general law, or created by statute.

[75] Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care, that a reasonable man would have exercised, that it merits criminal punishment…

  1. However, that case concerned a prosecution of a consignee for criminal negligence in engaging in conduct the result of which was the overloading of trucks. The relevant section imposed criminal liability on consignees of goods consigned by road transport in overloaded vehicles. A consignee committed the offence if:

(a) the person engages in conduct, and

(b) that results or is likely to result in inducing or rewarding a breach of the relevant mass … requirement, and

(c) the person is negligent as to the matter mentioned in paragraph (b).

  1. In support of the view that “such a marked departure … that it merits criminal punishment” was required, his Honour referred to the judgment of the Court of Criminal Appeal in NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6, which involved a prosecution for an offence under s 6(1) of the (NSW) Environmental Offences & Penalties Act 1989 which made it an offence for a person wilfully or negligently to cause any substance to escape in a manner that was likely to harm the environment. Hunt CJ at CL said (at 7):

The appellant’s principal submission … was that Mr Watts … was not negligent because of the actions which he took and the conclusions which he drew complied with the duty of care which the law placed on him …

In considering whether any defendant has acted negligently, the issue is decided upon an objective basis. What must be considered is whether the risk of such harm was foreseeable to the reasonable person in the position of the defendant, not whether the defendant subjectively foresaw the risk himself … the criminal law has … adopted an objective test …

… the evidence discloses that, objectively, a reasonable person in the position of the defendant would have foreseen the likelihood of harm to the environment, and that negligence was established in accordance with the criminal standard discussed in Andrews v DPP [1937] UKHL 1[1937] AC 576, 583.

  1. Enderby J said (at 11):

Negligence is not a subjective test but an objective test. It is the standard of the objective or hypothetical reasonable man. Negligence is the failure to reach the objective standard of the reasonable person. It does not involve an enquiry into the subjective thinking of the person who is said to have been negligent … It is a matter of judgment for the Judge.

Foreseeability is an essential part of the concept of negligence and it too is an objective question.

  1. Allen J said (at 12):

… it is to be borne in mind that the appellant, the body convicted, was not Mr Watts but the co-operative. The question is whether that body fell so short of the standard of care of the objectively reasonable person in the position in which it found itself that it was negligent to the criminal degree.

  1. In Graincorp, Handley AJA concluded (at [79]):

In my judgment therefore Clisdell LCM did not fall into legal error in directing himself that the RTA had to prove, to the criminal standard, that GC was guilty of criminal negligence nor did Hall J when he dismissed this part of the RTA’s appeal.

  1. Neither RTA v Graincorp, nor NSW Sugar Milling v EPA , were cases of, or analogous to, the offence of negligent driving. In both, negligence was a state of mind to be proved by the prosecution, as to certain consequences – inducing or rewarding overloading, or causing an environmentally harmful substance to escape. Hunt CJ at CL’s reference to Andrews v DPP reveals that, in both these cases, involving as they did negligence as a state of mind, the “criminal” concept of negligence applied in manslaughter – where it is also a state of mind – was thought applicable. As will be further explained below, these cases do not govern the offence of driving negligently and its analogues, where “negligent driving” describes the conduct penalised, and constitutes theactus reus .
  1. In Clout v Hutchison (1950) 51 SR (NSW) 32, the defendant – who had been acquitted by a jury of negligent driving causing grievous bodily harmunder (NSW) Crimes Act 1900s 54 – was then charged with an offence against (NSW) Motor Traffic Act 1909, s 4, which provided that anyone who drove a motor vehicle on a public street “negligently, furiously, or recklessly” was guilty of an offence. Mr E G Whitlam, who appeared for the defendant, raised a plea of issue estoppel, arguing that as the jury had not accepted that the evidence established the offence of negligence occasioning grievous bodily harm, the prosecutor was estopped from bringing a charge of negligent driving. Mr Whitlam argued that it was unsatisfactory to take mere carelessness, such as would suffice to establish liability in tort, as the test under s 4 of the Motor Traffic Act, under which a person might be guilty of negligence although no other person is affected by it.
  1. Sir Kenneth Whistler Street CJ rejected the plea of ‘issue estoppel’, saying (at 35) (emphasis added):

… I think, however, that the Legislature has evinced a clear intention to distinguish between driving which was merely regarded as negligent and driving which came within the other categories of offences dealt with in s. 4. By s. 10 provision is made for the penalties which may be imposed for offences under the Motor Traffic Act and the court before whom any person is convicted of such an offence is given power to suspend the offender’s licence. By sub-s. (3A) a suspension follows automatically for any conviction under s. 4, except a conviction for negligent driving, and this makes clear the legislative intent that negligent driving was regarded as something less serious than reckless or furious driving, and suggests that the high degree of negligence which must be proved in order to justify a conviction under s. 54 of the Crimes Act, need not be proved in order to justify a conviction under s. 4 

  1. After referring to Wintulich v Lenthall [1932] SASR 60 and Waugh v Campbell [1920] SC (J) 1 as authorities to the effect that this offence could be constituted by negligence “falling short of gross negligence of the type to which I have already referred and which it was necessary to prove in order to justify a conviction on a criminal charge “, his Honour continued (at 35-36):

I am of the opinion, therefore, that the negligence which it is necessary to prove in order to constitute the offence of negligent driving within the meaning of s. 4…is a different and lesser degree of negligence than that which it is necessary to prove in order to establish an offence under s. 54 of the Crimes Act . It results from this that a jury would be entitled to acquit on an indictment charging an offence under the section of the Crimes Act , but the evidence might yet be amply sufficient to establish an offence under s. 4 of the Motor Traffic Act, and in those circumstances, an acquittal on the more serious charge cannot be used to raise an “issue estoppel” when summary proceedings are instituted against the same accused out of the same set of facts and circumstances.

  1. The Chief Justice thus postulated degrees of negligence in criminal law. The different statutory context of the Motor Traffic Act as distinct from theCrimes Act resulted in the offence under the former involving a lesser degree of negligence than the similarly worded offence under the latter. The offence under the former of driving negligently was concerned with “driving which was merely negligent”, and did not involve negligence of the degree “which it was necessary to prove in order to justify a conviction on a criminal charge”.
  1. In R v Buttsworth , O’Brien CJ of Cr D (with whom Street CJ and Nagle CJ at CL agreed), undertook a comprehensive examination of the evolution of driving offences, beginning with (NSW) Motor Traffic Act 1909, which was sourced from (UK) Motor Car Act (3 Edw VII c 36). His Honour observed (at 664) that the criminal law had intervened to insist that drivers observe a duty to drive in a manner that avoided unnecessary risk of causing harm to other road users, by imposing criminal sanctions for breaches of such duty. His Honour continued (at 664-665):

As the quality of the driving was to attract a penal sanction it became necessary to recognize that the sanction should bear some proportion to the conduct regarded as warranting a penal sanction. Since what was to be punished was a neglect of duty it followed that the primary distinction must be found in the culpability of the neglect. There must be degrees of negligence with the offences and penalties adjusted accordingly. They need not necessarily require that harm should be caused by the negligence or be associated with the offence but since the criminal law often looks to the harm caused as a measure of the offence done the imposition of a penal sanction may relate both to the degree of negligence and to the harm associated with it.

  1. His Honour then referred to conceptual differences between the criminal offence of negligent driving and the common law tort (at 666):

The common law was never adapted to these concepts. Negligence was long recognized in the civil law as an action on the case where there was a duty of care by one for the safety of another, a breach of that duty and injury resulting from that breach giving a right of damages for the injury. It had no other meaning and there was only one standard of care breach of which was negligence, namely, that of the ordinary reasonable man in the circumstances. In the history of penal sanctions for the driving of a motor vehicle upon a public road without proper regard for the safety of others this concept of the civil law has been a frequent problem for lawyers whose familiarity with negligence has been with the action on the case.

Lawyers are so familiar with this use of the term negligence as a description of a tort, so commonly the cause of action in claims for damages, that it tends to overshadow the lay use of the term which is a less technical expression especially when applied to the driving of a motor vehicle upon a public road.

When a layman speaks of having seen a vehicle being driven negligently on the road, or of having seen some negligent driving or describes a driver he has seen upon the road as being negligent he does not have in mind an action on the case but rather of the manner in which a vehicle was managed upon the road, whether or not an accident or injury has resulted therefrom and whether or not any particular person has been put in peril. He may, of course, describe the driving by other epithets but in all such cases he takes into account the general circumstances of the occasion, the kind of vehicle in question, the apparent condition of the vehicle and the task which the vehicle is performing such as the carrying of an overhanging or inadequately secured load.

  1. Thus his Honour drew a distinction between an action on the case of which damage to a person to whom a duty of care is owed is an essential element, and criminal negligence which relates to the manner of driving. His Honour referred to the 1909 Act, which made it an offence to drive “negligently, furiously, or recklessly, or at a speed or in a manner which is dangerous to the public”, and observed that the driving legislation made merely driving negligently, without occasioning damage, an offence (at 667):

This provision was taken from s 1 of the UK Motor Car Act , 1903 (3 Edw VII c 36), and originally drew no distinction between driving “negligently” or “recklessly” or in “a manner dangerous to the public” so far as the gravity of the offence was concerned. In each case the court was required to have regard to matters to which regard would be had at civil law in considering whether a cause of action in negligence had been made out by a person claiming compensation for injury so sustained. All these offences were devised for the protection of other users of the roads and each offence was committed only when the safety of others who were using or might reasonably be expected to be using the road was put at risk. Nevertheless a legislative intention to establish the concept that it was a criminal offence to drive simply in a manner which was negligent for the safety of the public as the other users of the road according to the standard of the civil law and yet

involving no injury was frequently denied. As Street CJ pointed out in Clout v Hutchinson (1950) 51 SR (NSW) 32, at 35; 67 WN 203, at 204, the authorities usually referred to as affirming that intention were the decision of the High Court of Justiciary in Scotland in Waugh v Campbell 1920 SC (J) 1, upon the Motor Car Act , 1903 (UK) and that of Murray CJ in the Supreme Court of South Australia in Wintulich v Lenthall [1932] SASR 60 which followed the Scottish case and was in turn followed by Napier J, as he then was, in Neale v Walsh [1932] SASR 429.

  1. His Honour then turned to the judgment of Murray CJ in Wintulich v Lenthall [1932] SASR 60, an appeal from a conviction for having driven a motor car negligently. As O’Brien CJ explained, Murray CJ rejected the appellant’s submissions that a person cannot be so convicted unless it be shown firstly that he drove in a manner that was dangerous to the public and secondly, that the negligence must be wilful or intentional. His Honour observed that what was declared to be unlawful was driving “negligently”, not with “gross” or “culpable” negligence, and concluded that “to drive ‘negligently’ without more is, therefore, made an offence”, elaborating (at 63):

There can be no doubt that this involves a substantial alteration of the common law, for negligence by itself has hitherto had no legal consequences. In the civil law it must have caused damage to the person or property of another before it will give ground for an action … Now the statute attaches penal consequences to the negligent driving of a motor vehicle, although no person may have been injured, nor any property damaged.

  1. Murray CJ then explained that the statute was not a serious inroad into the rights of citizens, in a passage that throws light on the content of the offence:

To shew this it is only necessary to point out what negligence at common law consists in. Negligence is the breach of a legal duty to take care, and the duty imposed by the law on persons who drive vehicles on a public road is that they shall manage them with the same degree of care as an ordinary prudent man would deem necessary in the circumstances presented to him, in order to avoid injuring or causing damage to the person or property of others who may be using the road. The standard, it will be noted, is not that of the exceptionally careful man, nor is it that which the actual driver may consider to be sufficient, but the standard of the average man who has regard for the safety and the rights of others. The duty is reciprocal, and, therefore, the burden lies equally on each for the benefit of all.

  1. This suggests a close analogy between the concept of negligence at common law, and the offence of negligent driving. His Honour added (at 63-4):

The answer to the contention, then, is, that the statute does not

expressly provide that the negligence shall be gross or culpable, or that it shall be dangerous to the public; but, as there is implied in the negligent driving of a vehicle upon a highway a departure from a standard of care which is imposed for the safety of other persons and their property on the highway, it may from that point of view be true to say that the conduct prohibited is conduct which is dangerous to the public. But danger to the public is not a special circumstance to be proved. It is enough to shew that there was negligence.

  1. I see nothing in Wintulich v Lenthall that indicates that the standard of care contemplated by the offence of negligent driving is relevantly different from that contemplated by the common law tort, or that any greater a departure from it is required to establish negligence.
  1. O’Brien CJ then explained (at 669) the emergence of statutory provisions differentiating between degrees of negligence, commencing with the (UK) Road Traffic Act 1930, in which s 11(1) penalised driving recklessly, or at a speed or in a manner which is dangerous to the public; while s 12(1) penalised the lower degree of driving without due care and attention or without reasonable consideration for other persons using the road. As his Honour explained (at 670):

Thus a distinction was drawn by the statute of 1930 between driving negligently and driving in a manner dangerous to the public which was regarded as a distinction in the degree by which the manner of driving departed from the standard of care which would be shown by an ordinary prudent man in the circumstances in order to avoid injury to others who may be using the road. It was the public, that is to say, the people who are using or may reasonably be expected to be using the public road, that the statute sought to protect and it did so by penalizing the offending driver according to the degree of his neglect for their safety.

  1. His Honour then turned (at 670) to motor manslaughter In the course of this discussion (at 670-671) his Honour set out the extracts from the speeches of Lord Hewart in R v Bateman and of Lord Atkin in Andrews v DPP referred to above. Then (at 672) his Honour turned to what Lord Atkin had said on the topic of negligent driving outside the context of manslaughter. Like O’Brien CJ, I consider the passage, and O’Brien CJ’s discussion of it, so important as to justify its reproduction:

Lord Atkin then turned to the Road Traffic Acts and though this passage is substantial it is necessary that I should quote it (at 584, 585):

“Those Acts have provisions which regulate the degree of care to be taken in driving motor vehicles . They have no direct reference to causing death by negligence. Their prohibitions, while directed no doubt to cases of negligent driving, which if death be caused would justify convictions for manslaughter, extend to degrees of negligence of less gravity. Sect. 12 of the Road Traffic Act, 1930, imposes a penalty for driving without care and attention. This would apparently cover all degrees of negligence. Sect. 11 imposes a penalty for driving recklessly or at a speed or in a manner which is dangerous to the public. There can be no doubt that this section covers driving with such a high degree of negligence as that if death were caused the offender would have committed manslaughter. But the converse is not true, and it is perfectly possible that a man may drive at a speed or in a manner dangerous to the public and cause death and yet not be guilty of manslaughter: and the Legislature appears to recognize this by the provision in s 34 of the Road Traffic Act, 1934, that on an indictment for manslaughter a man may be convicted of dangerous driving. But, apart altogether from any inference to be drawn from s 34, I entertain no doubt that the statutory offence of dangerous driving may be committed, though the negligence is not of such a degree as would amount to manslaughter if death ensued.

I cannot think of anything worse for users of the road than the conception that no one could be convicted of dangerous driving unless his negligence was so great that if he had caused death he must have been convicted of manslaughter. It therefore would appear that in directing the jury in a case of manslaughter the judge should in the first instance charge them substantially in accordance with the general law, that is, requiring the high degree of negligence indicated in Bateman’s case (19 Cr.App.R. 8) and then explain that such degree of negligence is not necessarily the same as that which is required for the offence of dangerous driving, and then indicate to them the conditions under which they might acquit of manslaughter and convict of dangerous driving.”

The emphasis, of course, is mine. It is, I think, plain from this passage in the speech of Lord Atkin that he draws a distinction between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter as essentially a distinction in the degree of negligence appropriate to the offence, a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.

The speech of Lord Atkin in Andrews v Director of Public Prosecutions remains the authority in New South Wales for the propositions his Lordship expounds and the distinctions he draws remain, I think, valid in this State. In particular I think his proposition remains valid that the distinction between driving in a manner dangerous to the public and driving recklessly so as to amount to manslaughter if death ensues is a distinction in the degree of negligence involved.

  1. The UK offence of driving “without due care and attention” – which Lord Atkin said ” would apparently cover all degrees of negligence” – corresponds to the New South Wales offence of driving negligently.
  1. Later, O’Brien CJ acknowledged the conceptual distinction between negligence in the criminal and civil contexts (at 677):

Negligence in the criminal sense is thus a different concept from negligence in civil law. Burbury CJ in Fehlberg v Gallahar [1957] TasLR 286, preferred the word “carelessness”.

  1. Fehlberg v Gallahar [1957] TasLR 286 concerned an offence under the (TAS) Traffic Act 1925s 32(2), of “driving a motor vehicle on a public street negligently”. After quoting Lord Atkin’s reference to the differing degrees of negligence in the statutory offences and in manslaughter, Burbury CJ said (at 288-9):

Section 32 itself recognises different degrees of negligence. Reckless driving and dangerous driving import higher degrees of negligence than negligent drivingsimpliciter . The recognition by the legislature of degrees of negligence in driving motor vehicles is made even clearer by s 32 as amended by the Traffic Act1957. The section as so amended prescribes a higher punishment for reckless and dangerous driving than for negligent driving. (See s 32(1) and (2).) Counsel for the respondent submitted that it was sufficient for the prosecution to prove negligence as low as the standard of fault sufficient to give rise to civil liability. But the negligence referred to in s 32 is not the same as common law negligence giving rise to an action for damages. At common law negligence is the breach of a duty to take care. ‘The ideas of negligence and duty are strictly correlative and there is no such thing as negligence in the abstract, negligence is simply

neglect of some care which we are bound by law to exercise towards somebody,’ (per Bowen L.J. in Thomas v. Quartermaine (1887) 18 Q.B.D. 685, at p. 694), and it is of course essential that the negligent conduct should cause harm. For the purpose of negligence in this sense there are no degrees of negligence (Charlesworth on Negligence, 3 rd edn. p. 5). The standard is that of a reasonable man and the degree of care to be exercised is determined according to the circumstances. But ‘negligently’ in s. 32 is used only in the sense of ‘carelessly’. It is a mistake to attempt to equate the negligence referred to in s. 32 to negligence at common law. They are different concepts. ‘Criminal and

civil liability are two separate things’ (per Lord Porter in Potts or Riddell v. Reid [1943] A.C. 1, at p. 31). The enquiry is whether having regard to the matters mentioned in s. 32, the tribunal of fact is satisfied beyond reasonable doubt that the defendant has driven carelessly, that is, without due care.”

  1. Notably, Burbury CJ – having said that “driving negligently” in s 32 simply meant “driving carelessly” – saw no reason to draw any distinction between the offence in the (UK) Road Traffic Act , 1930, of “driving without due care and attention” and the offence of “driving negligently” in the (TAS) Traffic Act 1925. His Honour also expressed agreement with the reasoning in Wintulich v Lenthall and Clout v Hutchinson . Thus, while emphasising that the criminal offence of negligent driving and the civil tort were different concepts, not to be equated, nonetheless his Honour identified the applicable standard of care for the former as that of a reasonable man; said that the degree of care to be exercised was to be determined according to the circumstances; held that ‘negligently’ meant ‘carelessly’; and thought the offence indistinguishable from the UK offence of driving without due care and attention, which Lord Atkin supposed to catch all degrees of negligence. All this indicates that while there are important differences – including that no breach of duty to another resulting in damage is required, and that the breach must be proved beyond reasonable doubt – the applicable standard of care and departure from it to constitute the offence accords closely with the standard and departure required to establish breach of duty at common law. It certainly does not suggest that some higher degree of negligence is required before the offence can be committed.
  1. Buttsworth, and the cases to which it refers, therefore establish that civil and criminal negligence are distinct concepts, and that in the context of motor vehicle and analogous offences there is a hierarchy of degrees of criminal negligence, ranging from that required for manslaughter, through dangerous (sometimes called culpable) driving, to recklessness and then to ‘mere’ negligence. But while recognising that the concepts are different in some respects, neither Buttsworth nor the other cases mentioned in it hold that the degree of departure from the standard of care of a reasonably careful driver required to establish the offence of driving negligently is any different from that required to establish civil negligence. To the contrary, it appears to support the view that, at least in certain statutory contexts, the offence of negligent driving may be constituted by driving without that care for the safety and rights of others that an average driver would exercise – commensurate to the civil standard. This also accords with the varying degrees of the traffic offences: negligence is lower on the scale than recklessness.
  1. More recently, in Director of Public Prosecutions (NSW) v Yeo (2008) 188 A Crim R 82[2008] NSWSC 953 Johnson J has said (emphasis added):

[27] Negligent driving is established when it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances . The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672.

[29] The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances , including the circumstances as set out in s 42(3): Simpson v Peat [1952] 2 QB 24.

[32] It is clear that negligent driving is to be regarded as something less serious than reckless or furious driving or driving at a speed or in a manner dangerous to the public (all offences contained in s 42(2) of the Act): Clout v Hutchinson at 35. In Ex parte Graham; Re Dowling [1969] 1 NSWR 231 at 241, Asprey JA observed:

Like the tort of negligence, ‘negligent driving’ is difficult to reduce to a set of rules. It covers a multitude of sins. It relates to the circumstances of the occasion. What would constitute the offence in one instance would pass without censure in another.

  1. The authorities make plain that it is erroneous to conflate criminal and civil negligence, and that they ought to be treated individually as separate concepts.Yeo elucidates that the criminal concept is simply one of a departure from the standard of care for other road users to be expected of the ordinary prudent driver (or operator). There is nothing in the authorities to suggest that driving (or operating) negligently involves anything more than that. This test closely accords with Lord Atkin’s statement that “driving without care and attention” apparently covers all degrees of negligence; with Street CJ’s acceptance that it was concerned with “driving which was merely negligent” and did not involve negligence of the degree “which it was necessary to prove in order to justify a conviction on a criminal charge”; with Murray CJ’s explanation of the offence as involving the breach of a duty imposed by the law on persons who drive vehicles on a public road to manage them with the same degree of care as an ordinary prudent man would deem necessary in the circumstances presented to him, in order to avoid injuring or causing damage to the person or property of others who may be using the road; and with Burbury CJ’s statement that the enquiry is whether having regard to the matters mentioned in the section, the tribunal of fact is satisfied beyond reasonable doubt that the defendant has driven carelessly, that is, without due care.
  1. Returning then to her Honour’s judgment, her Honour rightly identified the applicable standard when referring (at [31]) to “a departure from the standard of care expected of the ordinary prudent operator”. Her Honour was not wrong to state (at [18]) that criminal negligence was different from and ought not be conflated with common law negligence, and that the former involved placing other users at risk “regardless of whether they are there”, and that it was unnecessary that the defendant recognise the risk, or for any damage to be suffered. But her Honour referred twice (at [18], and again at [31]) to the offence requiring “a criminally culpable degree of carelessness”, and also (at [19]) to its requiring a “higher degree of negligence … than under the civil law”, and “acting without due care to a criminal grade “. Significantly, her Honour said that in Buttsworth the Court “emphasised that a higher degree of negligence was required in criminal cases than under civil law, that it involves acting without due care to a criminal grade”. Her Honour’s written judgment (though not the transcript of it) attributes this to p 671 of the report; in any event, that is the only page where Buttsworth contains any such statement. But that was Lord Atkin’s statement in Andrews on the topic of motor manslaughter, which it will now be apparent has no bearing on the offence of negligent driving or navigation. Her Honour also referred (at [19]) to Yeo , but only for the proposition that negligent driving was something less serious than reckless, furious or dangerous driving.
  1. Although I do not conceive that her Honour thought the manslaughter test applicable – indeed the submissions of counsel for the defendant before her expressly disavowed any suggestion that it did – I am nonetheless compelled to conclude that her Honour misdirected herself in this respect. The test which underpinned her Honour’s approach at least required “criminally culpable negligence”, which goes beyond the requirements of the offence, and insisted upon a higher degree of negligence than would be required to establish breach of duty in a civil case; her Honour’s reliance on the passage in Buttsworthfor this purpose was misconceived. Her Honour should have asked only whether there was a departure from the standard of care for others (including the officer cadets) to be expected of the ordinary prudent operator in all the circumstances.
  1. The second ground of appeal is therefore made out. The circumstances in which her Honour came to make this error, however, will require further consideration when I come to the disposal of the appeal.

Ground 3 – voluntary recreational participation

  1. The Authority’s third ground of appeal is that the Magistrate erred in treating the facts that the officer cadets who participated in the relevant boat rides did so for fun and willingly as exculpatory for the purposes of s 13(1)(a) and s 13(1)(b).
  1. The Magistrate referred (at [22]) to evidence of six officer cadets who had fallen overboard before Officer Cadets Minchin and Mason as all speaking of an activity that was “simply a bit of fun, an adrenalin rush to see if you could hold on and avoid falling overboard”; that one participant, Officer Cadet King, who had fallen out on an earlier ride, returned for another and fell overboard in the same boatload as Officer Cadet Minchin; and that Petty Officer Rofe and/or Chief Petty Officer McClellan had made comments to the effect that previous participants had enjoyed the experience. Her Honour’s conclusions included (at [29]) that officer cadets were clearly going to fall overboard as the boat turned sharply, the challenge of holding on providing the ‘fun’ or ‘adrenalin rush’ of the activity.
  1. The Authority contends that the Magistrate erred in treating the ‘joyride’ nature of the activity, and fact that the officer cadets were voluntary participants in it for essentially recreational purposes, as exculpatory. There are two elements to this: first, did her Honour treat those matters as exculpatory; and secondly, would it be erroneous to do so.
  1. As to the first, I do not accept that Her Honour treated the voluntary participation of the officer cadets in this activity for fun and excitement as exculpatory. The reference to the cadets conceiving the activity to be “a bit of fun” and “an adrenalin rush” to see if they “could hold on and avoid falling overboard” occurs at paragraph [22] of the judgment, where her Honour is dealing with the prosecution’s contention that falling from the vessel was an obvious danger. Read in context, her Honour referred to this evidence in the course of addressing a prosecution submission that there was an obvious danger of participants falling overboard, and did so to confirm the prosecutor’s case that there was an obvious risk of this – before (at [23]) rejecting the contention that that of itself involved an obvious and serious risk of personal injury, drawing the distinction between being thrown from a car onto asphalt and being thrown from a boat into water – the former being obviously more dangerous – and deploying as an illustration that because of the different surface, certain risky activities such as water-skiing and donut riding are permissible on water but not on roads. This was to answer the prosecution case that an obvious and serious risk of falling overboard was enough to make the conduct reckless, and to emphasise that the relevant risk (of personal injury) was not of simply falling overboard into the water, but of propeller strike.
  1. That this evidence was used by her Honour to distinguish between merely falling overboard, and falling overboard and connecting with the propeller, is emphasised by the conclusion (at [29]) that “Clearly cadets were going to fall overboard” during the activity, and that this was the “fun” or “adrenalin rush” of the activity. This had no bearing on her Honour’s conclusion that she was not satisfied beyond reasonable doubt that the risk of personal injury from propeller strike was not an “obvious and serious” possibility.
  1. It is therefore unnecessary to decide whether it would have been erroneous to treat that matter as exculpatory. But, criminal and civil negligence being conceptually distinct, it would be erroneous to engage tortious defences such as voluntary assumption of risk when assessing whether a criminal charge of recklessness or negligence has been proved beyond reasonable doubt. Charges under s 13(1), like charges under motor vehicle legislation, do not require that persons be injured, and do not give rights to injured persons. They concern the conduct of the defendant. As Mr Kirk forcefully argued, such offences attempt to regulate conduct by prohibiting the negligent driving of motor vehicles and operation of water-borne vessels, and the regulatory and deterrent objects of the Act would be undermined if a defendant could evade criminal censure merely because an occupant of a vehicle or vessel who suffered grievous bodily harm or death had agreed to partake in an activity in which the defendant was criminally negligent or reckless.
  1. Nonetheless, section 13(3) requires that in considering whether an offence has been committed under the section, the court is to have regard to “all the circumstances of the case”, and in my view informed voluntary participation in an activity that carries obvious risk to the participants may be a relevant circumstance in a case such as the present where the relevant risk is only to those participants. (NSW) Civil Liability Act, s 5L, provides that a person is not liable in negligence for harm suffered by another as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by that other, whether or not aware of the risk. Section 5L reflects a social policy that there is utility in enabling those who provide services for others who voluntarily engage in dangerous recreational activities to do so free of the threat of being held negligent if an obvious risk of the activity materialises and causes injury to a participant. While that section is concerned only with civil liability for negligence, it would be a curious result if a defendant remained criminally liable for conduct in respect of which he or she was exonerated from civil liability by it.
  1. As the prosecutor argued before the Magistrate, the voluntary participation of a passenger in an illegal joyride in a motor vehicle at high speed would not exculpate the driver, but that is essentially because there are typically other potential victims of negligent driving on public roads than a consensual passenger; moreover it is not a lawful recreational activity. The position would, I venture, be otherwise in the case of an authorised motor race. Much moreso than roads, waterways are commonly used for recreational activities. It seems to me that, in an appropriate case, the informed voluntary participation of passengers in maritime joyrides could be one of “the circumstances of the case” to be taken into account under s 13(3), so far as obvious risks to the passengers are concerned – not as an absolute defence, but as a relevant consideration in judging whether the operation of the vessel can be said to be reckless or negligent.
  1. In any event, as the Magistrate did not treat these matters as exculpatory, the third ground of appeal fails.

Ground 5 – are facts found necessarily conclusive of guilt?

  1. The Authority’s fifth ground of appeal is that the Magistrate erred in failing, on the facts as found, to hold that there had been a contravention of s 13(1)(b), or alternatively s 13(1)(a).
  1. The defendant does not accept that this ground involves “a question of law alone”, but submits that it is at least a mixed question of law and fact.
  1. There will be an error of law if the decision-maker, having found the primary facts, reaches a conclusion on the ultimate issue which on those facts is not legally open [see: Hope v Bathurst City Council [1980] HCA 16(1980) 144 CLR 1, 7 (Mason J); Hayes v Federal Commission of Taxation [1956] HCA 21(1956) 96 CLR 47, 51 (Fullagar J)]. As it was put by Glass JA (with whom Samuels JA agreed) in Azzopardi v Tasman UEB Industries Ltd(1985) 4 NSWLR 139 (at 156):

… an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside the statutory description and a contrary decision has been made…

  1. A further illustration of this category of error of law, germane to the present case, may be found in Dennis v Watt (1942) 43 SR (NSW) 32, a prosecutor’s appeal against Mr Watt’s acquittal on a charge of driving a motor car negligently in a public street, in which the magistrate had concluded that just because Mr Watt had been momentarily ‘overcome with sleep’, it did not follow that he was negligent. Jordan CJ said (at 32):

In this case the question which the magistrate had to decide was whether, upon the facts found by him to be established by the evidence, the accused had been guilty of driving a motor car negligently in a public street, contrary to the provisions of s. 4 of the Motor Traffic Act , 1909. What the Statute penalises… is the act of driving negligently, and the question of whether negligence has occurred in essentially one of degree. From certain findings of fact it would necessarily follow, as a matter of law, that an accused person had been negligent; from other, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend upon the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been so decided because some legal principle has been wrongly applied.

  1. The Authority submits that the facts found by her Honour necessarily fell within s 13(1)(b), or alternatively s 13(1)(a); alternatively put, that from those facts it necessarily followed that Petty Officer Rofe had operated the vessel recklessly or negligently.
  1. The Authority’s characterisation of the relevant facts found by her Honour for may be summarised as follows:

(1) The activity was an extra voluntary activity for officer cadets which followed completion of the planned adventure training activity, essentially for recreational purposes, described as a “sea jolly”, a “joyride”, and a “bit of fun” (at [7]);

(2) This involved the Defendant “operating the vessel at speed and making quick, sharp turns during which some officer cadets fell overboard and were subsequently recovered into the vessel” (at [7], [10]);

(3) At least one officer cadet fell overboard in each of the six groups, and in two of the rides two officer cadets fell overboard. A total of at least eight officer cadets, most likely more, fell overboard during the rides (at [10]);

(4) While there were differences in the perceptions of individual officer cadets of its extent, the high speed turns exerted considerable force on participants and those who were unable to maintain a hold fell overboard (at [11]);

(5) It was clear that officer cadets were going to fall overboard in the circumstances, indeed the challenge to hold on was at the heart of the excitement of the activity (at [29]);

(6) The defendant knew that officer cadets could fall overboard (at [22]);

(7) Some significant safety advice had been given prior to the rides, and more earlier in the day (at [25]);

(8) The defendant accepted that “any person overboard is a serious event” (at [26]);

(9) The defendant was familiar with operating the vessel, and knew that the propeller was uncovered (at [21]);

(10) Earlier in the day, during instruction for the fast water insertion exercise, the defendant instructed the officer cadets “to avoid the rear of the vessel or be turned into burley, and as to how they were to get into and out of the vessel” (at [21]);

(11) “Clearly and with the benefit of hindsight, an uncovered propeller was a potential risk to anyone in its immediate vicinity” (at [21]);

(12) There was “no evidence that the defendant, an experienced and highly regard boatswain in the Royal Australian Navy, was aware of any prior propeller strike issues”; the only evidence of danger appearing from what happened to Officer Cadet Minchin, as at least seven others had fallen overboard without incident (at [21]);

(13) The defendant, while not conceding that the vessel would present its rear to those in the water as it turned, accepted that it was possible that it would do so; that this possibility would depend on the angle of turn, and the distance and angle of the person from the vessel; and that this was a potential risk but not that it made the activity dangerous (at [24]);

(14) There was no evidence as to the significance of propeller strike in this context, only that it can, unfortunately, occur. There was no explanation as to why or why only Officer Cadet Minchin came into contact with the propeller. There was nothing from which it could be concluded that falling overboard would place a cadet in proximity with the propeller. While there were submissions as to momentum, there was no evidence as to that, or as to where cadets hit the water in relation to the rear of the vessel. There was insufficient information from which to answer the question beyond reasonable doubt that was this a horrific and remarkable incident or was it a real risk, something to be expected (at [27]).

  1. In considering this ground, so far as it concerns the negligence offence under s 13(1)(a), I bear in mind that I have concluded that the test according to which her Honour directed herself was too demanding, and apply what I have held to be the correct test, namely whether there was a departure from the standard of care for others (including the officer cadets) to be expected of the ordinary prudent operator in all the circumstances.
  1. It is true that the activity was an “optional extra”, not a requirement of the officer cadets’ adventure training exercise. Thus, to the extent that it increased the risk to which participants were exposed, it did so gratuitously. The incurring of risk gratuitously as distinct from for some necessary or useful purpose mayinform the characterisation of conduct as reckless or negligent. Against that, risk is often incurred voluntarily for recreational and experiential purposes.
  1. Being thrown overboard was an obvious and at least serious possibility. Indeed, it was close to inevitable that some participants would be thrown overboard. However, in the context of this type of activity on enclosed waters, and in the absence of any suggestion that the officer cadets included non-swimmers or did not have safety vests, the mere risk of going overboard was not associated with a consequence of personal injury; it was associated only with a consequence of getting wet. While the prosecutor before her Honour, and on appeal, emphasised the concession elicited from the defendant that “any person overboard is a serious event”, that concession simply does not equate to one that such an event had – in the relevant circumstances – potentially grave consequences. In my judgment, the facts found in this respect plainly did not dictate that there was necessarily recklessness or negligence.
  1. Thus her Honour was right to identify, as she did at the outset (at [12]), that the real issue was not the mere risk of being thrown overboard, but the risk of being thrown overboard in the context of the vessel turning and having an uncovered rear propeller – that is to say, the risk of propeller strike. As to this:

(1) It was obvious, and the defendant knew (and indeed warned the officer cadets) that if one came into contact with the propeller, serious personal injury not only could but would ensue. An uncovered propeller posed the risk of grave consequences to anyone in its immediate vicinity;

(2) However, what was missing was any evidence bearing on the likelihood of a participant who was ejected from the vessel when making a turn coming into the immediate vicinity of the propeller. The Magistrate referred to this in several respects. Her Honour referred to photographic evidence showing that the propeller “is located under the outboard motor at the rear within and underneath the larger winged keel and with the inflatable sides of the vessel extending either side of the outboard motor”, no doubt because that evidence tended to suggest that it would be difficult for someone in the water to come into contact with the propeller. Then her Honour observed that there was no evidence of any awareness by the defendant, an experienced Navy boatswain, of any prior such issues; no evidence as to the significance (meaning incidence) of propeller strike in this context; no explanation as to why and why only Officer Cadet Minchin came into contact with the propeller; and no evidence as to where participants hit the water in relation to the rear of the vessel. Her Honour did not find, and does not appear to have been invited to find, that use of a propeller guard was a standard or usual precaution.

  1. This deficiency in the evidence culminated in the critical conclusions (at [27]-[29]) that:

(1) there was nothing from which it could be concluded that falling overboard would place a cadet in proximity with the propeller;

(2) there was insufficient information to answer beyond reasonable doubt that this was the materialisation of a real risk, “something to be expected”, rather than a horrific and remarkable incident;

(3) the evidence did not enable it to be determined whether “the activity was inherently risky and therefore reckless or criminally negligent, or simply a freak occurrence, an accident”; and

(4) thus it was not established beyond reasonable doubt that there was in the circumstances a “real”, obvious and serious risk of propeller strike.

  1. The Authority submitted that the Magistrate wrongly required evidence to establish:

(1) the defendant’s awareness of prior propeller strike issues, when the danger was so clear and fully understood by him, and when in any event subjective understanding of the risk is not relevant. However, this conflates his undisputed awareness of the grave consequences of propeller strike should it occur, with his absence of any knowledge of it ever having occurred in the context of the type of activity he was carrying out or with the type of vessel he was using. Moreover, her Honour was not insisting that awareness of the risk be established as an element of the offence: so much is plain from her references to Lord Diplock’s speech in Lawrence on mens rea . Rather, she referred to the defendant’s lack of awareness – emphasising his considerable experience – because awareness of a person experienced in the field was relevant to an assessment of the likelihoodof the relevant risk;

(2) “the significance of propeller strike”, when it was plain that being struck by a propeller could be devastating. However, in the context in which it appears – including her Honour’s reference to Petty Officer Rofe’s earlier warning, in the context of the fast water insertion exercises, about avoiding the rear of the vessel to avoid being “turned into burley” – it is plain that by “significance” her Honour meant “incidence”; and/or

(3) “the precise momentum of cadets falling from the boat as the vessel turned as to establish the degree of likelihood of the cadets being placed directly in proximity with the propeller”, when this would impose a degree of scientific certainty and precision not required for this type of offence, which was concerned with risks of harm and did not require proof that harm was certain or likely to result.

  1. Indeed, all three of the matters mentioned in the preceding paragraph were referred to by her Honour as potentially informing a judgment as to thelikelihood of propeller strike. Her Honour’s conclusion was that there was insufficient evidence to enable such a judgment to be made beyond reasonable doubt. Contrary to the Authority’s submissions, far from accepting that these offences are concerned with the mere existence of risks and not with theirlikelihood, my conclusions under Ground 1 demonstrate that their likelihood is an essential integer in each offence. In the case of recklessness in particular, the prosecution bore the onus of proving beyond reasonable doubt that there was an “obvious and serious” possibility of propeller strike. In essence, her Honour found that on the evidence, the prosecution failed to do so, and accordingly, recklessness could not be established. Similarly, the Authority’s inability to establish on the evidence any basis for a conclusion as to whether propeller strike was “something that might be expected” as distinct from “a freak occurrence”, contributed to the conclusion that negligence was not established.
  1. That is not to say that evidence to inform such a judgment will always be required in every context, nor that the evidence necessary to inform such a judgment has to provide “scientific certainty and precision” as to the likelihood of a risk. Typically, negligence is proven by departure from a standard behaviour or precaution. In the field of motor vehicles, which will be widely familiar to most tribunals of fact, the court will frequently be sufficiently informed by its own experience: as Lord Diplock pointed out in R v Lawrence (at 982) “in deciding this, they [the jury]may apply the standard of the ordinary prudent motorist as represented by themselves”. Common experience may less frequently enable such a judgment in maritime cases. Evidence that use of a propeller guard was a standard precaution on this type of vessel or in this type of activity might well have enabled a conclusion that engaging in the activity absent such a precaution was at least negligent, but there was no suggestion that such a case had been advanced before the Magistrate. In the absence of that type of evidence, and of evidence enabling a judgment as to the likelihood of the relevant risk materialising, her Honour was not able to be satisfied, beyond reasonable doubt, that it was an obvious and serious risk, or that it was unreasonable to incur it.
  1. These were quintessentially factual conclusions, within the province of the tribunal of fact and not open to review in this Court. As Lord Diplock said inLawrence, it is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves. It is implicit in that statement that those are questions of fact. Likewise, in connection with negligence, Burbury CJ’s statement that the enquiry is whether having regard to the matters mentioned in the section, the tribunal of fact is satisfied beyond reasonable doubt that the defendant has driven carelessly – that is, without due care – implies that the question is one of fact.
  1. Her Honour’s relevant factual conclusions, not open to review in this Court, include, critically, that the evidence did not establish the likelihood or chance of propeller strike, nor that the incident was not a freak occurrence but the materialisation of a real, obvious and serious risk – not ” a horrific and remarkable incident” but “a real risk, something to be expected”. Those conclusions are essentially dispositive of this ground of appeal, because they underpin the conclusion that the charges were not proved, and they are findings of fact, not susceptible to review on an appeal limited to “a question of law alone”.
  1. In relation to recklessness, while her Honour accepted that there was a real risk of participants falling overboard, but in the absence of evidence informing a judgment either as to the likelihood of their coming into contact with, or into the immediate proximity of, the propeller, or that there was a departure from usual practices and precautions, and upon findings of fact that it was not possible to be satisfied to the requisite standard that the accident was other than a freak incident, or that there was a real, obvious and serious risk of propeller strike, he Honour’s conclusion that she could not be persuaded beyond reasonable doubt that the defendant was reckless was reasonable, if not inevitable. Similarly, in relation to negligence, and bearing in mind the correct test for criminal negligence as explained above, and that it is less demanding than that applied by her Honour, the same deficiencies in the evidence left the Magistrate unable to determine beyond reasonable doubt that it was unreasonable to incur the potential risk, so that it was reasonably open on the facts found to entertain a reasonable doubt that the defendant was not negligent. Moreover, it seems to me that the Magistrate’s conclusion that on the evidence she was unable to ascertain the “likelihood” of the risk materialising, such that it was not possible to “distinguish between whether the activity was inherently risky and therefore reckless or criminally negligent, or simply a freak occurrence, an accident” means that it would have equally been impossible to decide that the conduct was negligent applying the correct test, so that even on the proper test her Honour not only could but would have dismissed the negligence charge also.
  1. It follows from the foregoing that on the primary facts found, the Magistrate was not bound to find either offence proven. Ground 5 therefore fails.

Disposal

  1. Accordingly, only Ground 2 of the appeal is made out. A clear consequence is that the acquittal of the offence under s 13(1)(b) of reckless navigation must stand. The less clear consequence concerns the offence under s 13(1)(a) of negligent navigation. The defendant submitted that, even if Ground 2 be made out, I should decline to remit the matter for a new trial on negligence and instead dismiss the appeal, as a matter of discretion under Crimes (Appeal and Review) Acts 59(2), which provides that the Supreme Court may determine an appeal against an order referred to in s 56(1)(c) by setting aside the order and making any order it thinks just, or dismissing the appeal.
  1. In its terms, s 59(2) empowers the Court, on an appeal by a prosecutor against an order made by the Local Court dismissing a matter the subject of any summary proceedings, on a ground that involves a question of law alone, to set aside the order under appeal and make any order it thinks just, or dismiss the appeal. But w hether this provision confers a general discretion to dismiss an appeal has been doubted. In Director of Public Prosecutions v Wunderwald [2004] NSWSC 182 (at [33]-[37]), Sully J said:

I have twice referred to a perceived entitlement “in principle” on the part of the plaintiff to some relief. That has been because of a submission put by learned counsel for the first defendant to the effect that the power conferred by section 59(2) of the Appeal and Review Act is a discretionary power akin to the discretionary power reposing in the Court of Criminal Appeal pursuant to section 6(3) of the Criminal Appeal Act 1912 (NSW).

The submission is, that is to say, that even in a case in which this Court finds that there have been errors of law apt to vitiate the relevant order of the Local Court, there remains in this Court nevertheless an overriding discretion to refuse relief because of what is conventionally described as “double jeopardy”.

Insofar as I have been persuaded that the learned Magistrate did make an error of law apt to vitiate her Worship’s order, I accept at once that no fault in that connection can be laid at the feet of Mr Wunderwald. I accept as of course that it is only to be expected that he will be certainly disappointed, and probably indignant, to think that the order dismissing the information laid against him is defective in law, and that there opens up before him the prospect of a rehearing in the Local Court.

As to all of those considerations, I would say this: I am not persuaded that the words “may determine” which appear in section 59(2) of the Appeal and Review Act do confer an overriding discretion of the kind to which the submissions of learned counsel for the first defendant refer. It is, however, unnecessary to determine finally that point, because even if I were persuaded that the statutory expression carried with it such an overriding discretion, I would not think it right to exercise such a discretion adversely to the plaintiff in the present proceedings.

If it be correct to suppose that a Local Court magistrate has made an order vitiated by fundamental error of law; and more so, if one of those fundamental errors of law is a failure to accord procedural fairness to the prosecution; then I cannot suppose it to be correct, either in principle or in practice, to refuse to intervene in order to correct such a state of affairs. To do so would be, in my view, not to give effect to the statute, but to deprive it of the effect which, as it seems to me, the Legislature clearly intended that it should have.

  1. Nonetheless, just because a ground of appeal is sustained, in the sense that an error is established, does not mean that the appeal must succeed, in the sense that the order appealed from must be set aside or varied. Thus Crimes (Appeal and Review) Act s 65, provides:

(1) A conviction, order or sentence is not to be set aside on an appeal merely because of:

(a) an omission or mistake in the form of the conviction or order, or

(b) an error in law in the order or sentence,

if it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error.

(2) In such a case, the appeal court:

(a) may amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or

(b) may remit the matter to the Local Court to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.

  1. While the view has been taken that this section, like its predecessors, does not allow a judge to make findings of fact on the hearing of the appeal and then substitute a new set of reasons for the erroneous reasons of the magistrate, it being directed to omissions, mistakes or errors in law in the form of conviction, order or sentence [ Director of Public Prosecutions v Attallah [2001] NSWCA 171Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153, 173-5], the language of s 59 is similar to that of many statutes giving rights of appeal, and it is a general principle of appellate procedure that, as appeals lie from orders (not from reasons), an appeal will not succeed if an error has not affected the order. Appellate courts have a discretion to decline to order a new trial, notwithstanding the establishment of error, if there has been no miscarriage of justice – in other words, if the error could have made no difference to the result. Thus Balenzuela v De Gail [1959] HCA 1(1959) 101 CLR 226, states that where evidence has been wrongly rejected, a new trial will be granted , unless it appears that the evidence rejected could not have affected the jury’s verdict . In Stead v State Government Insurance Commission [1986] HCA 54(1986) 161 CLR 141 , Mason , Wilson, Brennan, Deane and Dawson JJ endorsed the proposition that an appellate court would not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial, as an order for a new trial in such a case would be a futility (at 145):

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

  1. Thus, if it appeared that an error by the Magistrate was irrelevant to or did not affect the ultimate decision, the order would not be set aside.
  1. There are other circumstances in which error, even if material to the outcome, may not result in an appeal disturbing the order below, particularly where the relevant issue has not been agitated at first instance. The public policy that favours the just and efficient conduct of proceedings and finality in litigation limits the circumstances in which parties may raise on appeal new matters, the general principle being that they ought to be bound by the way they conduct the proceedings. In Metwally v University of Wollongong (1985) 60 ALR 68, the High Court stated (at 71):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

  1. I n Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631, the Court of Appeal cited with approval the following statement of Isaacs J in Rowe v Australian United Steam Navigation Co Ltd [1909] HCA 25(1909) 9 CLR 1 (at 24):

… it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial.

  1. Consistently with this principle, parties are ordinarily precluded from raising new matters on appeal, although this is not an absolute rule. In Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1 , Gibbs CJ, Wilson J, Brennan J and Dawson J said (at 7):

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

  1. In RTA v Graincorp, after referring to Coulton v Holcombe, Handley AJA said (at [115]):

The principle applies with special force in criminal proceedings, particularly to the prosecution.

  1. It is a strong factor against permitting a point to be raised for the first time on appeal, though not an absolute bar, that it was deliberately not raised, or expressly conceded, at the trial, or is inconsistent with the manner in which the case was conducted at trial. And as the Court of Appeal pointed out inMulticon Engineering Pty Ltd v Federal Airports Corp , e ven where all the facts have been established beyond controversy or the point is one of construction or of law, a party does not have a right to insist that a new point be decided on appeal. It remains a question of whether the appellate court “may find it expedient and in the interests of justice to entertain the point” [citing Water Board v Moustakas [1988] HCA 12(1988) 180 CLR 491, 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, 47], and it is relevant to take into account the difficulties of establishing that the putative error had any effect on the outcome of the case (at 646).
  1. Before the Magistrate, counsel for the prosecutor submitted:

… negligence here is different from the common law duty of care, my friend is plainly correct. Thus as I indicated to Your Honour a moment ago it’s unnecessary to prove damage. Because of that it is not necessary to go into issues such as reasonable foreseeability of injury. The negligence invoked in this type of context is the more colloquial usage of carelessness as supported by the definition in the Concise Oxford Dictionary.

  1. Counsel for the defendant submitted:

One’s not dealing with the negligent concept in civil law but one is dealing with negligence as a criminal concept and that is negligence that is worthy of a criminal penalty or carelessness that’s worthy of a criminal penalty… what one is dealing with is a criminally culpable degree of carelessness… it means… that the risk must be of such degree that the taking the risk itself is worthy of criminal sanction.

  1. Counsel for the defendant then referred to Buttsworth at 671, but added:

… the principle is still the same that it’s a higher degree of negligence that’s required than is required by the civil law. I accept unreservedly that it is not the amount of negligence that will be required as in a prosecution for a case of involuntary manslaughter.

  1. Counsel for the prosecutor replied:

I don’t think there is a lot of difference between my learned friend and I on the law. So I don’t propose to say much about that. They’re essentially consistent I think what we said. I won’t say anything more.

  1. Only on appeal did the Authority contend that the proposition that a higher degree of negligence was required than under the civil law was erroneous. The Magistrates’ erroneous references to “criminally culpable negligence”, a “higher degree of negligence … than under the civil law”, and “negligence to the criminal degree” reflected common ground before her Honour as to the applicable law. This being a criminal appeal, there are – as Handley AJA observed in the passage cited above from Graincorp – strong reasons, including those that fall under the general rubric of “double jeopardy”, why the prosecutor, not having argued the point below, should not now be permitted to complain of that error.
  1. Moreover, in this case the difficultly of being satisfied that the error had any effect on the outcome of the case reinforces that view. In Ground 5, I have concluded that, even substituting the correct test for that applied by the Magistrate to the primary findings of fact, her Honour not only could but would have acquitted the defendant of negligence; in other words, ultimately her Honour’s application of too stringent a test for negligence made no difference to the result.
  1. In those circumstances, it would not be in the interests of justice to uphold the appeal on the basis of Ground 2 alone.

Conclusion

  1. My conclusions may be summarised as follows.
  1. As to Ground 1: the actus reus of the offence of reckless navigation requires that the defendant so operate the vessel as to incur risk (1) that is obvious, (2) the likelihood of which is serious, in the sense that it is a serious – and not fanciful, very slight or merely theoretical – possibility, and (3) the potential consequences of which involve personal injury or substantial property damage. However grave the potential consequences, the likelihood of the risk materialising must be at least real, obvious and serious. Her Honour was right to insist that more than a mere possibility, but a “real” and “obvious and serious” risk of propeller strike was required to establish the actus reus of recklessness for the purposes of s 13(1)(b). Nor does the mere presence, or foreseeability, of a risk – however grave its potential consequences – make a case of negligence; the likelihood of the risk materialising informs the reasonableness of incurring it. Negligence no more than recklessness can be established by the mere incurring of a risk with potentially grave consequences. Her Honour was right not to infer negligence from the mere foreseeability of the relevant risk. Ground 1 therefore fails.
  1. As to Ground 2: the authorities make plain that it is erroneous to conflate criminal and civil negligence, and that they ought to be treated individually as separate concepts, but not that the standard of care of a reasonably careful operator, or the degree of departure from it, required to establish the offence of operating negligently is any different from that required to establish civil negligence. The criminal concept is simply of a departure from the standard of care for other road users to be expected of the ordinary prudent operator. Her Honour misdirected herself in this respect, in insisting on “criminally culpable negligence” of a higher degree than would be required to establish breach of duty in a civil case. Her Honour should have asked only whether there was a departure from the standard of care for others (including the officer cadets) to be expected of the ordinary prudent operator in all the circumstances. Ground 2 is therefore made out.
  1. As to Ground 3: her Honour did not treat the voluntary participation of the officer cadets in this activity for fun and excitement as exculpatory, referring to those matters for the purpose of demonstrating the high likelihood that some would fall overboard (as distinct from being injured). Accordingly, Ground 3 fails, although, in an appropriate case, the informed voluntary participation of passengers in maritime joyrides could be one of “the circumstances of the case” to be taken into account under s 13(3), so far as obvious risks to the passengers are concerned – not as an absolute defence, but as a relevant consideration in judging whether the operation of the vessel could be said to be reckless or negligent in all the circumstances.
  1. As to Ground 5: contrary to the Authority’s submissions, these offences are not concerned with the mere existence of risks; their likelihood is an essential integer in each offence. Whether there was a “serious and obvious” risk of propeller strike, and whether incurring the risk in the circumstances was unreasonable such as to amount to want of due care, were questions of fact on which the Magistrate had to be satisfied beyond reasonable doubt. Her Honour’s relevant factual conclusions, not open to review in this Court, include, critically, that the evidence did not establish the likelihood or chance of propeller strike, nor that the incident was not a freak occurrence but the materialisation of a real, obvious and serious risk – not ” a horrific and remarkable incident” but “a real risk, something to be expected”. Those conclusions underpin the conclusion that the charges were not proved, and they are findings of fact, not susceptible to review on an appeal limited to “a question of law alone”. In relation to recklessness, while her Honour accepted that there was a real risk of participants falling overboard, in the absence of evidence informing a judgment either as to the likelihood of their coming into contact with, or into the immediate proximity of, the propeller, or that there was a departure from usual practices and precautions, and upon findings of fact that it was not possible to be satisfied to the requisite standard that the accident was other than a freak incident, or that there was a real, obvious and serious risk of propeller strike, he Honour’s conclusion that she could not be persuaded beyond reasonable doubt that the defendant was reckless was reasonable, if not inevitable. Similarly, in relation to negligence, and bearing in mind that the correct test for criminal negligence as explained above is less demanding than that applied by her Honour, the same deficiencies in the evidence left the Magistrate unable to be satisfied beyond reasonable doubt that it was unreasonable to incur the potential risk, so that it was reasonably open on the facts found to entertain a reasonable doubt that the defendant was not negligent. Moreover, it seems to me that the Magistrate’s conclusion that the evidence did not permit a finding as to “likelihood” of the risk materialising such as to enable the court to be satisfied beyond reasonable doubt that the activity was inherently risky and therefore reckless or criminally negligent, as distinct from “a freak occurrence, an accident”, means that it would have equally been impossible to decide that the conduct was negligent applying the correct test. Accordingly, even applying the correct test her Honour not only could but would have dismissed the negligence charge also. It follows that on the primary facts found, the Magistrate was not bound to find either offence proven, and Ground 5 therefore fails.
  1. The “negligence” test adopted by the Magistrate was in effect common ground before the Magistrate. This being a criminal appeal, there are strong reasons, including those that fall under the general rubric of “double jeopardy”, why the prosecutor not having argued the point below, should not now be permitted to complain of the error in Ground 2. That view is reinforced by the difficultly of being satisfied that the error had any effect on the outcome of the case. In those circumstances, it would not be in the interests of justice to uphold the appeal on the basis of Ground 2 alone.
  1. My order is that the appeal be dismissed.
  1. I will hear the parties, if they wish, as to costs.

Counsel addressed on costs

  1. The successful respondent/defendant applies for an order that the appellant/prosecutor pay the respondent’s costs of the appeal. The (NSW) Crimes (Appeal and Review) Act 2001s 70, imposes limits on the circumstances in which the costs of an appeal may be awarded against a public prosecutor, such as the present appellant. It relevantly provides that costs are not to be awarded in favour of an appellant whose conviction is set aside unless the Appeal Court is satisfied of one of a number of matters. The present case is not one of an appellant whose conviction is set aside, but one of a respondent/defendant whose acquittal at first instance was upheld on appeal. In those circumstances, s 70 is not applicable.
  1. Section 72 of that Act provides that an Appeal Court that orders an appellant or respondent to pay costs must state a time within which the costs must be paid. That poses difficulties in circumstances where, unless the costs are agreed, they will have to be assessed. Nonetheless, I can comply with that section by stating a time relative to the issue of a certificate of assessment.
  1. In making the order I am about to make, I do so on the basis that at this stage, and without having heard argument on the issue, it appears to be the appropriate order given the structure of that Act, the circumstances in which the Act does and does not impose limitations on when costs orders should be made, and the outcome of the proceedings – in particular, the respondent having succeeded in maintaining the acquittal that prevailed at first instance. However, the appellant has sought an opportunity to make further submissions on this issue, and so the order is made provisionally: it may well be that the appellant could advance arguments that some different order should be made.
  1. Accordingly, I order that the plaintiff pay the defendant’s costs of the proceedings, such costs to be paid within 28 days after a certificate of assessment issues. I reserve leave to the plaintiff to apply by 23 January 2012 for some different or other order as to costs.

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