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Citation: Lavender [2005] HCA 37.

This information can be found in the Textbook: Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 463-5.


Background facts

  • The Defendant [Lavender] drove a sand-loader in a desert. The area was covered by thick vegetation – visibility was low.
  • Some boys, who should not have been there, were playing in the area.
  • To teach them a lesson, the Defendant chased after them in the sand-loader. He lost sight of the boys, but kept driving, and ended up driving over and killing one of them.
  • After being convicted of manslaughter, the Defendant successfully appealed on the ground that the trial judge had erred in his failure to direct the jury on the ‘need for the prosecution to prove malice’. The prosecution appealed.

Legal issues


  • Malice is not an element of manslaughter. s 18 (which deals specifies malice) only deals with murder, leaving manslaughter to be defined by the common law.
  • The court then examined some subsidiary issues relating to manslaughter by criminal negligence:
  • There is no element which considers the defendant's opinion, because the test is objective. It would be unfair if the defendant was acquitted where s/he did not actually foresee the danger (ie, but the reasonable person would).
    • Accordingly, there is no defence of honest and reasonable mistake of fact, since that would make the standard subjective.
    • Justifying the objective standard: someone who fails to foresee the consequences of their actions may still be culpable (Kirby J).
  • The reasonable person possesses the same personal attributes as the defendant - the same age, having the same experience and knowledge, & the circumstances in which found him/herself.
  • Nydam is reaffirmed.
  • The concept of 'wickedly negligent' is affirmed (ie, that there had to have been such a high degree of negligence that it actually merited criminal punishment).


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