Recklessness Issues Paper (html)
Appendix: Recklessness in Australia and other common law jurisdictions
This table sets out how recklessness is defined in federal law and Australia’s states and territories, as well as in Canada, England, Wales and Northern Ireland.
Victoria is a common law jurisdiction, whereas Western Australia, Queensland, Tasmania and the Northern Territory are ‘code’ jurisdictions. Common law is developed by judges through court decisions. In common law jurisdictions, criminal offences may be contained in legislation, such as the offences against the person in Victoria’s Crimes Act; or they may be part of the common law, such as murder in Victoria. Even if they are set out in legislation, the common law is used to interpret the language of criminal offences. In code jurisdictions, most serious criminal offences are contained in one piece of legislation: a criminal code. The criminal code sets out principles of interpretation and is designed to remove the need to refer to the common law, although it does not do so completely.[94] Some jurisdictions, such as the Commonwealth and the Australian Capital Territory, have partially but not completely codified their criminal law.
Caution is necessary when comparing the definitions of recklessness in common law and code jurisdictions. This is because the interpretive frameworks for the definitions are different. In common law jurisdictions, the framework is the common law plus any relevant provisions in that jurisdiction’s criminal legislation. In code jurisdictions, the framework is primarily the code itself, and how each criminal offence operates depends on other provisions in the code.
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Jurisdiction |
Definition of recklessness |
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Commonweath (Cth) Statutory definition applies to all Cth offences where recklessness is a fault element.[95] |
Statutory definition (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.[96] Common law What counts as a ‘substantial risk’ varies according to the context.[97] Ordinarily, risks that a person was ‘justified’ in taking are not prosecuted; where they are, a claim of justification will usually be subsumed under a defence of ‘duress’ or ‘sudden or extraordinary emergency’.[98] |
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Victoria (Vic) Common law definition applies to: • Murder[99] • Offences against the person[100] • According to some authorities, all Victorian offences.[101] |
Statutory definition No statutory definition of recklessness in relation to offences against the person.[102] Common law The accused must have foreseen the probability that harm would occur and have proceeded regardless. The word ‘probable’ means likely to happen.[103] Recklessness is not established when the accused knew only that a particular consequence ‘might occur’.[104] |
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New South Wales (NSW) Two common law definitions for offences against the person: a higher threshold for murder and lower threshold for other offences against the person. |
Statutory definition No statutory definition of recklessness in relation to offences against the person.[105] Common law For murder, the accused must have foreseen the probability that harm would occur and have proceeded regardless.[106] Probability requires something more than doing an act knowing ‘it is possible but not likely that death’ might result.[107] For other offences against the person, the accused must have foreseen the possibility of harm occurring and have proceeded regardless.[108] An outcome that is possible is something that ‘might’ occur.[109] |
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Australian Capital Territory (ACT) Statutory definition applies to select offences against the person.[110] Common law definition applies to most offences against the person.[111] |
Statutory definition Same as Cth definition.[112] Common law The accused must have foreseen the possibility that harm might or would occur and have proceeded regardless.[113] |
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Queensland (Qld)
Statutory definition applies to all offences that do not explicitly require intention as a fault element (eg, |
Statutory definition Aside from murder,[114] recklessness is not explicitly referred to as a fault element for criminal offences in Qld. However, for those offences (including unlawfully doing grievous bodily harm and assault) that do not require intention as a fault element in the wording of the offence, the Qld Criminal Code Act provides that an accused is not responsible for events that they did not intend or foresee as a possible consequence of their acts or omissions, and that an ordinary person would not have reasonably foreseen as a possible consequence.[115] Thus, in practice, an accused may be responsible for consequences in relation to which they were reckless, with recklessness defined as reasonable foresight of possible harm. |
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Northern Territory (NT) Definition applies to offences against the person as well as other Criminal Code offences.[116] |
Statutory definition Same as Cth definition.[117] Similarly to in Qld, a person is not criminally responsible for an event that the person did not foresee as a possible consequence; and that an ordinary person in similar circumstances would not have foreseen as a possible consequence.[118] This operates as an excuse or defence. |
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Western Australia (WA) |
Statutory definition Intention (hence by extension, recklessness) is not a fault element for most offences in WA.[119] Honest and reasonable mistake of fact is a defence to criminal offences unless specifically excluded.[120] |
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Tasmania (Tas) |
Statutory definition Similarly to Qld, there is no statutory definition of recklessness, but a person is only criminally responsible for voluntary and intentional acts and events that the person intends or foresees as a possible consequence; and that an ordinary person would reasonably foresee as a possible consequence.[121] |
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South Australia (SA) Definition applies to a subset of offences against the person, (i) Definition applies to a subset of offences against the person, causing physical or mental harm offences.[122] (ii) Definition applies to the offence of ‘acts endangering life or creating risk of serious harm’. |
Statutory definition (i) A person is reckless in causing harm or serious harm to another[123] if the person—(a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and (b) engages in the conduct despite the risk and without adequate justification.[124] (ii) The offence of ‘acts endangering life or creating risk of serious harm’ involves doing or omitting to do something knowing that it is ‘likely’ to endanger the life of or cause serious harm to another and either intending or being ‘recklessly indifferent’ as to whether the life of another is endangered or such harm is caused.[125] Common law In relation to (ii), an act or omission that is ‘likely’ to endanger the life of or cause serious injury to another is one that is probable; it requires more than ‘mere advertence to a possibility of the consequence’.[126] |
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Canada Common law definition applies to murder and lesser offences including dealing in stolen property and criminal harassment. |
Statutory definition To be guilty of reckless murder, the accused must cause a person’s death: • meaning to cause bodily harm that the accused knows is likely to cause death and • being reckless whether death ensues or not.[127] There is no statutory definition of recklessness in relation to offences against the person. Common law For reckless murder, the accused must have foreseen the likelihood of death and not merely a danger of death.[128] Once it is proved that the accused caused bodily harm knowing that death was likely, they will inevitably be reckless to continue.[129] For other offences, recklessness ‘presupposes knowledge of the likelihood of the prohibited consequence’[130] (dealing with stolen property) or relates to a ‘foreseen probability’[131] (harassment). |
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England, Wales and Northern Ireland Common law definition applies to offences relating to criminal damage[132] and non-fatal offences against the person.[133] |
Statutory definition There is no statutory definition of recklessness in relation to offences against the person.[134] Common law A person acts recklessly ‘with respect to – (i) a circumstance when [they are] aware of a risk that it exists or will exist; (ii) a result when [they are] aware of a risk that it will occur; and it is, in the circumstances known to [them], unreasonable to take the risk.’[135] |
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Courts may still use the common law to interpret the meaning of language where the meaning is unclear. For this reason, the difference between common law and code jurisdictions has been described as ‘one of emphasis rather than kind’: Colvin E, Linden S & McKechnie J, Criminal Law in Queensland and Western Australia: Cases and Materials (Sydney: LexisNexis Butterworths, 2005) 7 in Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, chapter 2, 14.
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‘A finding of recklessness with respect to death is sufficient fault for murder, the most serious of offences. But recklessness is also the general presumptive threshold requirement for the most trivial of offences in federal law.’: The Commonwealth Criminal Code: A Guide for Practitioners (Report, Commonwealth Attorney-General’s Department 2nd ed, (2002) 5.4 Recklessness [5.4-A] 73; Note that for offences that do not specify a fault element, the Act provides: ‘5.6 (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.’: Criminal Code Act 1995 (Cth) s 5.6.
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Criminal Code Act 1995 Sch 1, ch 2, pt 2.2, div 5, s 5.4. Emphasis added.
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‘The Code requirement of “substantial risk” appears to have been chosen for its irreducible indeterminacy of meaning. The same difficulty is apparent in the common law, which oscillates between the requirement that the anticipated result must have been “likely” or “probable” and the lesser requirement that it be merely “possible”. One nugget of comparative certainty can be extracted … References to “likelihood” and “probability” do not mean that the risk must be one which was more likely than not. Between these uncertain poles of likelihood and possibility, academic opinion and judicial precedent are equally diverse in their conclusions. Successive editions of Howard’s Criminal Law maintain the position that the requirement of substantial risk varies in stringency with the degree of social acceptance of the conduct which gave rise to the risk. If the conduct is without redeeming social value, anything in excess of a “bare logical possibility” is said to count as a “substantial” risk. Other academic treatises are more circumspect, though most appear to accept that recklessness extends to “possible” risks in offences other than murder.’: The Commonwealth Criminal Code: Guide for Practitioners (2nd ed, 2002) Pt 2.2, div 5.4-A, 73–75.
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‘There is very little case law on the possibility of justification. In Crabbe, which concerned recklessness as a fault element in murder, there was passing mention of the defence of necessity, which might justify a surgeon’s decision to undertake a risky operation which provided the only hope of prolonging the victim’s life. However, claims that a risk was justified will be rare. In practice, the exercise of discretion in the selection of cases for prosecution will usually ensure that any claim of justification for risk taking is without substance. In cases where the issue of justification might arise, it will tend to be subsumed under the defences of duress or sudden or extraordinary emergency …’: Ibid Pt 2.2, div 5.4-C, 77.
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R v Crabbe (1985) 156 CLR 464.
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Those offences listed in Part I, Div 1 (4) of the Crimes Act 1958 (Vic). In relation to use of the foresight of probable harm test in cases of ‘causing serious injury recklessly’ (s 17, Crimes Act 1958 (Vic)): R v Crabbe (1985) 156 CLR 464 (The court said its reasoning applied to an intention [or recklessness] to kill or cause grievous bodily harm. The equivalent offence to ‘grievous bodily harm’ in Victoria is serious injury); R v Campbell (1997) VR 585. In relation to ‘conduct endangering life’ (s 22, Crimes Act 1958 (Vic)): R v Nuri [1990] VR 641; R v Abdul-Rasool (2008) 18 VR 586; 180 A Crim R 556.
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Judicial College of Victoria, Victorian Criminal Charge Book (Online Manual, 2022) 7.1.3 [2].
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A version of the Commonwealth definition of recklessness is adopted specifically in relation to culpable driving in the Crimes Act 1958 (Vic) Part I, Div 9, s 318: ‘Culpable driving causing death – (2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person upon another person may result from his driving …’ .
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See footnote 26 on page 7.
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Judicial College of Victoria, Victorian Criminal Charge Book (Online Manual, 2022) 7.2.1 [44].
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These offences are found in the Crimes Act 1900 (NSW).
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R v Crabbe (1985) 156 CLR 464, 469.
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Ibid 469–70.
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R v Coleman (1990) NSWLR 467, 474–475; Blackwell v The Queen (2011) NSWLR 119, [78] (Beazley JA); Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305.
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Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (Report, 2022) ‘Recklessness’ [4-080]; R v Coleman (1990) NSWLR 467, 475. Note that our discussion is concerned with offences committed on or after 21 June 2012. See the NSW Criminal Trial Courts Bench Book for discussion of how the requirements for establishing recklessness differ in relation to offences committed before 21 June 2012, 15 February 2008, and 27 September 2007, respectively: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (Report, 2022) ‘Recklessness’ [4-080].
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The ACT Criminal Code specifies that its principles apply only to offences created from 2003 onwards, except if a pre-2003 offence has been omitted and remade or an Act or subordinate law expressly provides for its application to an offence: Criminal Code 2002 (ACT) s 8(1). Pursuant to the Crimes Act 1990 (ACT) s 7A, the Criminal Code applies to the following offences against the person in the Crimes Act 1990 (ACT) which contain recklessness as an element: s 26A (Assault of frontline community service provider); s 28B (Discharging firearm at building or conveyance); s 29A (Driving motor vehicle at police); s 29B (Damaging police vehicle); s 36A (Abuse of vulnerable person); s 36B (Failure to protect vulnerable person from criminal offence); s 36C (Neglect of vulnerable person).
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Crimes Act 1900 (ACT) s 20 (recklessly inflicting grievous bodily harm) and s 23 (inflicting actual bodily harm).
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Criminal Code 2002 (ACT) s 20. The language and section ordering of the ACT definition differs slightly from the Commonwealth definition, but the differences are immaterial:
(1) A person is reckless in relation to a result if—
(a) the person is aware of a substantial risk that the result will happen; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) A person is reckless in relation to a circumstance if—
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is a question of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
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R v Daniel [2021] ACTSC 64, [100]-[104] (Loukas-Karlsson J).
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Criminal Code Act 1899 (Qld) s 302(1):’ … a person who unlawfully kills another … is guilty of murder. Unlawful killing includes: (aa) ‘if death is caused by an act done, or omission made, with reckless indifference to human life’.
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Criminal Code Act 1899 (Qld) s 23(1). ‘Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— (a) an act or omission that occurs independently of the exercise of the person’s will; or (b) an event that—(i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence’. Historically, the test of objective foresight of probable or likely injury was used as the test for unlawfully doing grievous bodily harm: R v Knutsen (1963) Qd R 166. However, in that case, the Queensland Court of Criminal Appeal was applying a version of s 23 that has since been amended. At the time, s 23 provided that ‘a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident’.
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The definition applies to all offences in the Criminal Code Act 1983 (NT) and declared offences. The Criminal Code Act includes offences against the person: these are set out in part VI.
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Criminal Code Act 1983 (NT) s 43AK. The language and section ordering of the NT definition differs slightly from the Commonwealth definition, but the differences are immaterial:
(1) A person is reckless in relation to a result if:
(a) the person is aware of a substantial risk that the result will happen; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) A person is reckless in relation to a circumstance if:
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
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Criminal Code Act 1983 (NT) s 31: ‘Division 4 Excuse, 31 Unwilled act etc. and accident—(1) A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct. (2) A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct. (3) This section does not apply to an offence against section 155 [failure to rescue, provide help &c.].’
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Criminal Code Act Compilation Act 1913 (WA) s 23(1). ‘Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial’.
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Ibid s 24.
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Criminal Code Act 1924 (Tas) Sch 1, s 13, emphasis added. The legislation is expressed in the negative:
(1) No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event –
(a) that the person does not intend or foresee as a possible consequence; and
(b) that an ordinary person would not reasonably foresee as a possible consequence.’
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Criminal Law Consolidation Act 1935 (SA) Part 3, Division 7A. See also Division 7, ‘Assault’, s 20AA ‘Causing harm to or assaulting certain emergency workers’.
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Ibid s 24 and s 23, respectively.
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Ibid s 21, emphasis added. This section defines ‘harm’ as physical or mental harm (whether temporary or permanent).
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Ibid s 29.
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Ducaj v The Queen [2019] SASCFC 152; (2019) 135 SASR 127, [14].
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Criminal Code 1985 (Canada) (R.S.C. 1985, c C-46) s 229(a)(ii).
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R v Cooper [1993] 1 S.C.R. 146 [21] (Cory J); R v Czibulka (2004) 190 O.A.C. 1, 24 C.R. (6th) 152 [66]-[68] (Rosenberg JA).
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R v Cooper [1993] 1 S.C.R. 146 [18]-[21].
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R v Vinokurov (2001) 156 CCC (3d) 300, [21] (Berger JA, Wittmann JA concurring).
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R v Davis (2000) 71 C.R.R. (2d) 340 [35] (Beard J).
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R v G (2004) 1 AC 1034, [41], [2003] UKHL 50.
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R v Cunningham [1957] 2 QB 396; R v Spratt [1990] 1 WLR 1073. It is likely it applies for all statutory offences of recklessness unless Parliament has explicitly provided otherwise: Maddison et al, The Crown Court Compendium, Part I: Jury and Trial Management and Summing Up (Report, Judicial College UK, June 2022) 8–2 Recklessness [3].
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Offences against the person are set out for England, Wales and Northern Ireland in the Offences against the Person Act 1861 (UK). The territorial extent for some offences varies, with a separate version applying to Northern Ireland (see, for example, s 47, assault occasioning bodily harm).
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R v G (2004) 1 AC 1034, [41] (Lord Bingham); [2003] UKHL 50. See also Maddison et al, The Crown Court Compendium, Part I: Jury and Trial Management and Summing Up (Report, Judicial College UK, June 2022) 8–2 Recklessness.