In the matter of an appeal against conviction by Lamperd, Glennis Royden and in the matter of a case stated by the Courts-Martial Appeal Tribunal and in the matter of a transmission by the Attorney-General of a case stated to the Federal Court of Australia [1983] FCA 16

In the matter of an appeal against conviction by Lamperd, Glennis Royden and in the matter of a case stated by the Courts-Martial Appeal Tribunal and in the matter of a transmission by the Attorney-General of a case stated to the Federal Court of Australia [1983] FCA 16

Negligence under s.19(a) of the Naval Discipline Act 1957 (Imp.) is not the same as manslaughter negligence and does not require a great falling short of the standard of care combined with a high risk of stranding, nor an additional intermediate element of culpability or blameworthiness. In the disciplinary context of Part 1 of the Act, the required standard is the ordinary want of due care assessed by reference to what a reasonably capable and careful person of the accused's seniority and experience in the Service would have done in all the circumstances.

Jurisdiction
Australia
Judgment Date
18 February 1983
Procedural Posture
Case Stated/reference of Questions of Law From the Courts Martial Appeal Tribunal Under the Courts Martial Appeals Act 1955 / Federal Court Answered Questions of Law After the Courts Martial Appeal Tribunal Upheld the Appellant's Appeal, Quashed the Court Martial Convictions and Set Aside the Order Dismissing Him From the Ship
Outcome
The referred questions were answered: Question 1(a) No; Question 1(b) No; Question 1(c) the negligence standard is the reasonably capable and careful person standard stated by the Court; Question 2 No.
Legal Topics
['naval Discipline' 'negligent Stranding' 'degree of Negligence' 'court Martial Appeal' 'case Stated']
['defence and Military Law' 'criminal Law'] ['naval Discipline' 'negligent Stranding' 'degree of Negligence' 'court Martial Appeal' 'case Stated']

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Procedural Posture

Case Stated/reference of Questions of Law From the Courts Martial Appeal Tribunal Under the Courts Martial Appeals Act 1955 / Federal Court Answered Questions of Law After the Courts Martial Appeal Tribunal Upheld the Appellant's Appeal, Quashed the Court Martial Convictions and Set Aside the Order Dismissing Him From the Ship

Legal Issues

  1. 1 ['Whether the degree of negligence required for a charge under s.19(a) of the Naval Discipline Act 1957 (Imp.) is the same as that required for manslaughter.' 'Whether negligence under s.19(a) requires an additional element of culpability or blameworthiness.' 'Whether the Judge Advocate should have directed that negligence required a great falling short of the standard of care combined with a high risk that stranding would follow.']

Ratio Decidendi

Negligence under s.19(a) of the Naval Discipline Act 1957 (Imp.) is not the same as manslaughter negligence and does not require a great falling short of the standard of care combined with a high risk of stranding, nor an additional intermediate element of culpability or blameworthiness. In the disciplinary context of Part 1 of the Act, the required standard is the ordinary want of due care assessed by reference to what a reasonably capable and careful person of the accused's seniority and experience in the Service would have done in all the circumstances.

Court Disposition

The referred questions were answered: Question 1(a) No; Question 1(b) No; Question 1(c) the negligence standard is the reasonably capable and careful person standard stated by the Court; Question 2 No.

Orders

  • ['The two questions of law referred to the Court pursuant to a certificate of the Attorney-General of the Commonwealth under s.52(2) of the Courts-Martial Appeals Act 1955 were answered.' 'Question 1(a) was answered: No.' 'Question 1(b) was answered: No.' "Question 1(c) was answered: That degree of negligence which...