Criminal Negligence and Breach of Duty of Care in New South Wales

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By Paul Gregoire and Ugur Nedim

Ted Stone was totally blind, partially deaf and in his late sixties, when his sister Fanny, who suffered from mental health issues and anorexia, came to stay with him.

Living in 1970s England, Stone was already sharing his home with his partner Gwendolyn Dobinson and his disabled son.

Whilst Fanny stayed at her brother’s house, her condition worsened. She became bedridden and unable to look after herself. Dobinson cared for Fanny to an extent. She provided food and bathed her with the aid of a neighbour. But these efforts were not sustained.

Despite being aware of Fanny’s ailing health, Stone and Dobinson failed to obtain help for her. Dobinson didn’t seek out a doctor, and nor did she report Fanny to a social worker who came to check on Stone’s son.

For his part, Ted simply asked the local publican what he thought should be done about his sister.

Fanny’s health grew so bad that she died and was found in deplorable conditions. Indeed, the authorities went on to prosecute the pair for manslaughter, and they were found guilty due to neglect of duty of care: Stone on family grounds, while Dobinson as she’d partially assumed the role of carer.

The 1977 Court of Appeal of England and Wales case R versus Stone and Dobinson is an authority on criminal negligence to this day.

And in setting its precedent, the appeals court held that defendants must be found grossly negligent in respect to duty of care, while Lord Justice Geoffrey Lane posited that the person must have been indifferent to the risk or have foreseen it but failed to take proper action.

Conduct warranting punishment

Section 5.5 of the Criminal Code (Cth) states that negligence, in “respect to a physical element of an offence”, is established if conduct involves “such a great falling short of the standard of care” that it’s unreasonable, and this must involve “such a high risk” that it “merits criminal punishment”.

This definition is a version of what was initially set out in the 1977 Victorian Criminal Court of Appeal case Nydam versus R, which found that two deaths caused by a careless act with no regard to risk, were manslaughters as the degree of negligence was so high it deserved punishment.

The Australian Attorney General’s Department website explains that negligence involves acts, omissions and states of affairs, but not reckless acts as they require an awareness of risk. And it’s genuinely accepted in criminal cases that the level of negligence must be gross or shocking.

Offences in NSW

In its Criminal Trial Courts Bench Book, the Judicial Commission of NSW (Judcom) sets out three main offences that involve criminal negligence in this state.

These are negligent driving, causing grievous bodily harm and the common law offence of manslaughter by criminal negligence.

Negligent driving falls under section 117(1) of the Road Transport Act 2013 (NSW). The section carries three tiers of this offence, with a sliding scale of penalties that apply.

Negligent driving occasioning death is the most serious offence. It’s followed by driving occasioning grievous bodily harm, and then there’s negligent driving not occasioning death or grievous bodily harm.

Section 54 of the Crimes Act 1900 (NSW) contains the offence of causing bodily harm. This crime falls into two categories: unlawful acts or omissions and negligent acts or omissions that cause grievous bodily harm. These crimes see a guilty person liable to up to two years prison time.

According to Judcom, the degree of negligence required to establish a negligent driving crime is less than the level required to establish grievous bodily harm. And the higher standard of proof required for the latter offence is the same degree needed to prove the crime of manslaughter.

The 1991 NSW Court of Criminal Appeal case Pullman versus R held that to prove manslaughter by criminal negligence the prosecution “must establish such a high degree of disregard for the life and safety of others as to be regarded as a crime against the community generally”.

The common law offence of manslaughter by criminal negligence is related to the statutory offence of manslaughter, which is contained in section 18 of the Crimes Act. The maximum penalty for manslaughter in NSW is 25 years imprisonment.

Manslaughter differs from the act of murder as the former offence lacks the intent to kill that the latter crime requires.

Duty of care

In the case of negligence causing grievous bodily harm or manslaughter by negligence, the deliberate act or omission must constitute a breach of duty of care, meaning that a person had a legal obligation to ensure reasonable care was taken not to harm the victim.

So, in terms of proving negligence it must be shown that the accused fell short in the standard of care that it is expected a reasonable person would have shown under the same circumstances. And what makes neglect criminal is that it is to such a degree that it warrants punishment.

Judcom makes clear that a mere breach of duty of care does not constitute a crime. The conduct involved in such an offence “must be so gravely in error and carry with it such a high risk of serious injury that it deserves to be punished as a serious criminal offence”.

Deaths in custody

Criminal negligence arising from neglect of duty of care is a front and centre issue in the country right now, as Thursday marks the 30th anniversary of the handing down of the Royal Commission into Aboriginal Deaths in Custody.

It’s also the day the current NSW parliamentary inquiry into the same issue will release its final report.

When being scrutinised, First Nations deaths in custody usually fall into two categories: fatalities that raise questions around excessive use force on the part of police or guards, and those that fall into neglect of duty of care, where an act or an omission leads to death.

Former NSW Magistrate David Heilpern has recently spoken out about the need for accountability around neglect of duty of care, when it comes to Aboriginal custodial deaths.

A case in point is the Royal Commission’s recommendation that all hanging points be removed from cells.

As Heilpern points out, 30 years on, Indigenous inmates continue to take their own lives using the hanging points that Corrective Services NSW has neglected to remove.

The former judicial officer claims there’s room to prosecute senior corrections management for manslaughter by neglect because of this.

“Failing to exclude hanging points from cells, and saying there’s no budget for it,” Mr Heilpern told Sydney Criminal Lawyers last week, “is exactly parallel to Stone and Dobinson’s case.”

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