Question 2

Wayne Rose worked at a sand mine site near Newcastle. On the 26 September 2007 he was driving a front end loader when he came across some boys who had intruded onto the mine site. Notwithstanding that the bucket of the front end loader obscured Mr Rose's vision, he chased the boys into some vegetation. One of the boys was killed when he tripped and was run over by the front end loader.

At trial Mr Rose was convicted of negligent manslaughter. Some years later he appeals his conviction to the New South Wales Court of Criminal Appeal. The main ground of appeal is that the Trial Judge

failed to direct the jury that if it were to convict Mr Rose of negligent manslaughter, they must be satisfied beyond reasonable doubt that he acted with malice when he ran over the boy.

At the relevant time the Crimes Act 1900 (NSW) was expressed in the following terms:

Section 5: Definition

"Maliciously: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime."

Section 18: Murder and manslaughter defined

(1)

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

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

(2)

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

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

Section 24: Manslaughterpunishment

Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years

Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.

Other relevant material:

Section 376 of the Crimes Act 1900 (NSW) (as it appeared before it was repealed in 1951)

"In an indictment for murder, or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death alleged was caused, but it shall be sufficient in an indictment for murder to charge that the accused did feloniously and maliciously murder the deceased, and in an indictment for manslaughter to charge that the accused did feloniously slay the deceased."

The Attorney-General in his Second Reading Speech in 1951 stated that these are "drafting amendments in the strict sense [which] do not alter the law at all."

Sir James Fitzjames Stephen's A Digest of the Criminal Law, published in 1877 states that "murder is defined as unlawful homicide with malice aforethought..... Manslaughter is defined as unlawful homicide without malice aforethought."

Parker v The Queen (1963) 111 CLR 610 at 657.

Explain the relevant statutory rules/techniques the Court of Criminal Appeal will likely use in reaching a conclusion as to whether malice is an element of criminal negligent manslaughter. While existing precedent may be useful when explaining the relevant statutory rules/techniques it is entirely inadequate to state that malice is or is not an element of criminal negligent manslaughter based on a decision reached in an earlier decision. To adequately answer this question you are expected to conduct some legal research. Do not speculate as to the reasons or consequences of the long delay between the trial and the appeal.