Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5 (16 January 2012)

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:	Common Law

Before:	Brereton J

Decision:	Appeal dismissed.

Catchwords:	CRIMINAL LAW - Navigation offences - reckless navigation of vessel on navigable waters under (NSW) Marine Safety Act 1998, s 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 1998, s 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 1900, s 35, s 52A, s 54, s 61I (NSW) Crimes (Appeal and Review) Act 2001, s 56, s 59, s 65, s 70, s 72 (WA) Criminal Code 1913-1945, s 291A (NSW) Environmental Offences & Penalties Act 1989, s 6 (NSW) Marine Safety Act 1998, s 3, s 4, s 5, s 9, s 13, s 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 1925, s 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) 32; 67 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) 153; 55 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:

(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,

(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.

(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.

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

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) 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.

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".

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.

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.

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 the actus 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 the possibility 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.

... 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...

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.

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 .

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

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

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.

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.

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.

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.

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...

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.

[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...

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

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.

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.

... 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.

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.

... 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 ...

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.

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.

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.

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.

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.

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.

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.

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.

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.

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".

Section 32 itself recognises different degrees of negligence. Reckless driving and dangerous driving import higher degrees of negligence than negligent driving simpliciter . 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 Act 1957. 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."

[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.

... 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...

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.

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

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.

(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.

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.

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.

... 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.

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.

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

... 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.

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.

... 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.

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.

Supreme Court of New South Wales

Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5 (16 January 2012)