Recklessness
Definitions of recklessness
28 Variations on three tests for recklessness have been adopted in Australia (see Appendix for an overview of how recklessness is defined in various jurisdictions):
• probability
• possibility
• ‘a substantial and unjustifiable’ risk.
29 These alternatives are discussed below. Factors that might weigh in favour of or against these tests for Crimes Act offences against the person are set out under each definition.
Probability
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A person is reckless if they foresee (predict) that harm will probably occur and they continue regardless. |
30 A ‘probable’ result is one that is ‘likely to happen’.[29]
31 This should not be thought of in terms of statistical probability, such as a ‘more than a 50 per cent chance’. Nor does it require an outcome that is ‘more likely than not’.[30]
Table 3: Advantages and disadvantages of the ‘probability’ definition
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Advantages |
Disadvantages |
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• The threshold for establishing recklessness is relatively high, confining the scope of the test: a person will not be criminally responsible if they foresaw a possible but improbable risk of injury. • The test has been applied by the courts in Victoria in relation to offences against the person for more than two decades. • The language of probability has been used to replace references to ‘recklessness’ for some sexual offences. Retaining the probability test for offences against the person would ensure consistency with these sexual offences. |
• The concept of a ‘probable’ or ‘likely’ risk is vague and may be difficult for juries/the general public to interpret. • The concept of a ‘probable’ risk may imply a statistical probability such as a more than 50% chance, although the courts have said this is not how it should be interpreted. |
Possibility
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A person is reckless if they foresee (predict) that harm will possibly occur and they continue regardless. |
32 An outcome that is possible is one that ‘might’ occur.[31] This is a lower threshold than an outcome that is ‘likely’.[32]
Table 4: Advantages and disadvantages of the ‘possibility’ definition
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Advantages |
Disadvantages |
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• This is a lower threshold for establishing recklessness than the threshold of probability, which applies to murder. Unlike reckless murder, reckless offences against the person are generally considered less blameworthy than intentional offences, so a lower threshold for establishing recklessness may be appropriate. • Having a lower threshold for recklessness may make the distinction between reckless and intentional offending clearer. |
• The scope of possibility may be overly inclusive, capturing risk-taking behaviour that is socially acceptable and should not be criminalised. • In NSW, the scope of ‘possibility’ is implicitly limited by an objective element. As well as foresight of the possibility of harm, it must have been unreasonable for the person to take the risk in the circumstances known to them.[33] While this addresses the problem that the possibility threshold can be overly inclusive, it also makes the definition of recklessness more complex. • The concept of a ‘possible’ risk is vague and may be difficult for juries/the general public to interpret. • By lowering the threshold for recklessness, the distinction between reckless behaviour and negligent behaviour may be obscured. • Requiring juries to apply different thresholds for reckless murder and recklessness in relation to other offences against the person could create confusion. |
Substantial and unjustifiable risk
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A person is reckless with respect to a circumstance if: • he or she is aware of a substantial risk that the circumstance exists or will exist; and • having regard to the circumstances known to him or her, it is unjustifiable to take the risk. A person is reckless with respect to a result if: • he or she is aware of a substantial risk that the result will occur; and • having regard to the circumstances known to him or her, it is unjustifiable to take the risk. The question whether taking a risk is unjustifiable is one of fact.[34] |
33 The ‘substantial and unjustifiable risk’ threshold is used to define recklessness in the Criminal Code Act 1995 (Cth).[35] A similar definition is used in Victoria in relation to culpable driving. However, the Victorian culpable driving definition uses the word ‘may’ rather than ‘will’: ‘a substantial risk that death or … grievous bodily harm may result’.[36]
34 The ‘substantial and unjustifiable risk’ test has both subjective and objective elements. While the accused must have been subjectively aware of a risk of some kind, assessing whether it was ‘substantial’ involves asking if a reasonable observer would have characterised it in this way. The ‘reasonable observer’:
may be in possession of more information than the [accused] and will usually be endowed with far better judgement about risks…[37]
35 This means an accused can be treated as having been aware of a ‘substantial’ risk even though they themselves viewed the risk as minor.
36 There is an absence of case law on how to determine if it was justifiable for an accused to take a risk in the circumstances known to them. The courts are likely to use an objective standard of what an ordinary, reasonable person would consider justifiable in those circumstances.[38]
37 There is a link between the degree of risk and the unjustifiability of running that risk in any given situation.[39]
Table 5: Advantages and disadvantages of the ‘substantial and unjustifiable risk’ test
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Advantages |
Disadvantages |
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The threshold for establishing recklessness will vary according to the context, appropriately taking into account the reasonableness of the risk-taking behaviour. The test was favoured by the Model Criminal Code committee, tasked with developing general principles of criminal responsibility for all Australian jurisdictions. The committee said the test did not imply a mathematical or statistical calculus and set an appropriate threshold for determining recklessness.[40] The test was adopted in the Commonwealth Criminal Code Act;[41] in the Northern Territory; and in the Australian Capital Territory in relation to some, but not all, offences against the person.[42] |
The test has not previously been used in relation to offences against the person in Victoria (but a similar test is used for the offence of culpable driving causing death.[43]) The concept of a ‘substantial risk’ is vague and may be difficult for juries/the general public to interpret. This definition may create complexity as it has two limbs, one of which has both subjective and objective components (substantial risk) and one that is objective (unjustifiable in the circumstances known to the accused). |
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Judicial College of Victoria, Victorian Criminal Charge Book (Online Manual, 2022) 7.1.3 ‘Recklessness’ [5] citing R v Crabbe (1985) 156 CLR 464. See also Joseph Lelliott et al, ‘More Scope for Murder: Reckless Indifference in Queensland’s Criminal Code’ (2020) 44 Criminal Law Journal 19, 24: ‘In R v Boughey, the High Court, referring to s 157(1)(c) of the Criminal Code (Tas), stated that probable was a synonym for “likely” and “a good chance”, with “likely” meaning a risk that is “substantial” or “real and not remote”’. Mason, Wilson, and Deane JJ further noted that it does not matter whether or not it is less or more than a 50% chance. In R v Faure, the Victorian Court of Appeal stated that probability should not be approached as an “odds on” chance or as a matter of mathematical percentages. [R v Faure [1999] 2 VR 537, 547, 551 (Brooking JA); [1999] VSCA 166.].
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The Commonwealth Criminal Code: Guide for Practitioners (2nd ed, 2002) Pt 2.2, div 5.4-A, 75.
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R v Coleman (1990) NSWLR 467, 475.
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The court in R v Crabbe said it is an outcome that is ‘not likely’: R v Crabbe [1985] (1985) 156 CLR 464, 470. However, a ‘likely’ outcome is also an outcome that is possible. If the higher threshold is met, the lower threshold will also have been met.
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Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [64] (Edelman J, citing ‘the developed meaning given by all members of this Court in [the case of] Aubrey’). See also the discussion in this paper at paragraph 60.
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Criminal Code Act 1995 (Cth) Sch 1, ch 2, pt 2.2, div 5, s 5.4.
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The Criminal Code Act partially codifies federal criminal law. See the Appendix for a discussion of the differences between common law and code jurisdictions in Australia.
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Crimes Act 1958 (Vic) s 318(2)(a).
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The Commonwealth Criminal Code: Guide for Practitioners (2nd ed, 2002) Pt 2.2, div 5.4-A, 73.
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Ibid Pt 2.2, div 5.4-C, 77. During the drafting of the Code, ‘unreasonable’ was proposed instead of ‘unjustifiable’. However, Parliament opted to use the word ‘unjustifiable’ ‘to avoid confusion between recklessness and criminal negligence.’ Parliament of the Commonwealth of Australia, Criminal Code Bill 1994: Explanatory Memoranda, 15.
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Criminal Law Officers Committee of the Standing Committee of Attorneys-General (Model Criminal Code Officers Committee), Model Criminal Code, ‘Chapters 1 & 2: General Principles of Criminal Responsibility’ (December 1992) 27.
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Criminal Law Officers Committee of the Standing Committee of Attorneys-General (Model Criminal Code Officers Committee), Model Criminal Code, ‘Chapters 1 & 2: General Principles of Criminal Responsibility’ (December 1992) 27. The definition also ‘substantially follows the US Model Penal Code in using “substantial” and “unjustifiable” as the two key words’: The Parliament of the Commonwealth of Australia, Criminal Code Bill 1994: Explanatory Memoranda (Report, 1994) 15. However, it excludes the requirement in the Model Penal Code that a person ‘consciously disregards’ the risk. The Model Penal Code defines ‘recklessly’ as follows: ‘A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.’: American Law Institute (US), 1962, Model Penal Code, 2.02(2)(c).
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Criminal Code Act 1995 (Cth).
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See the Appendix for more detail.
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Crimes Act 1958 (Vic) s 318(2)(a).