R v Lavender

HIGH COURT OF AUSTRALIAGLEESON CJ,McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJTHE QUEEN  APPELLANTANDWAYNE KELVIN LAVENDER   RESPONDENTThe Queen v Lavender [2005] HCA 374 August 2005S499/2004ORDER1.Appeal allowed. 2.Orders 1, 2 and 3 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 21 May 2004 on the appellant's appeal against conviction set aside.  In place of those orders, order that the appeal against conviction be dismissed.  3.Orders 1 and 2 take effect from 10.00 am on 1 September 2005.  On appeal from the Supreme Court of New South WalesRepresentation:G E Smith SC with J A Girdham for the appellant (instructed by Solicitor for Public Prosecutions (NSW))P Byrne SC with P J D Hamill SC for the respondent (instructed by Legal Aid Commission of New South Wales)Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSThe Queen v LavenderCriminal law – Manslaughter – Involuntary manslaughter by criminal negligence – Respondent killed a 13 year old boy by running over him with a front end loader – Crimes Act 1900 (NSW), s 18 – Whether malice an element of the offence – Relevance of former statutory requirement that indictment include a charge of maliciously killing for murder but not for manslaughter – Interaction of provisions of the Crimes Act with the common law of punishable homicide – Application of the defence of honest and reasonable mistake of fact to manslaughter by criminal negligence – Distinction...