Recklessness Issues Paper (html)

Questions

1. Are there problems with the current common law definition of recklessness as it applies to offences against the person in Victoria? If so, please explain what these problems are and provide case studies or examples.

In answering this question, you might wish to consider:

– if the test of foresight of probable harm is unjustifiably high for offences against the person

– if there are behaviours that are not currently criminalised but should be under Part I, Division 1(4) of the Crimes Act 1958 (Vic).

2. Should the Crimes Act be amended to include a definition of recklessness applicable to offences against the person in Part I, Division 1(4)? If so, what definition should be adopted? For example, foresight of

– probable harm (with or without an objective element)

– possible harm (with or without an objective element)

– a substantial risk that the accused is not justified in taking

– some other definition.

3. What are the strongest arguments for or against adopting:

– a legislative definition of recklessness for offences against the person in Part I, Division 1(4) of the Crimes Act?

– the particular definition you support?

4. For the purposes of charging offences that have recklessness as an element, are you aware of any problems with obtaining relevant evidence about the alleged offender’s state of mind?

5. What are your views on the approach and reasons for using ‘probably’ to express the fault element for recklessness in Part I, Division 1(8A)-(8F) of the Crimes Act?

6. What are the advantages/disadvantages of ensuring that recklessness is consistently defined

– in the Crimes Act?

– in other Victorian statutes?

7. If you support legislating a definition of recklessness for offences against the person, should the common law continue to apply in relation to that definition or should its operation be excluded?

8. If a new statutory definition of recklessness for offences against the person is adopted that incorporates a lower threshold, will the associated penalties and minimum terms of imprisonment need to change, and if so, how?

9. If a new statutory definition of recklessness for offences against the person is adopted, what will be the consequences for the justice system (for example, impacts on prosecution, conviction or incarceration rates)?

10. What guiding principles could be used to review the use or proposed use of recklessness as a fault element in Crimes Act offences other than offences against the person?