Recklessness

The legal concept of recklessness

Recklessness and criminal responsibility

1 Before an accused person can be found guilty of a criminal offence, the prosecution must prove each ‘element’ of that offence. An element is a component of the offence.

2 Elements can be ‘physical elements’ or ‘fault elements’. Physical (or conduct) elements relate to acts or omissions.^[4] The physical element of murder is an act or omission that causes the death of another person. Fault elements describe the ‘fault’ or wrong of an accused in relation to a physical element.^[5] Often this is a state of mind, such as an intention to kill, or being reckless about whether your actions will result in someone being killed.

3 Not all criminal offences have fault elements. Strict or absolute liability offences, such as speeding offences, create criminal liability without fault.

4 Fault elements where the prosecution must prove that the accused had a particular state of mind, such as an intention to do something, are known as ‘subjective’. Fault elements where the accused’s subjective state of mind is irrelevant are known as ‘objective’. Negligence offences have objective fault elements. They involve breach of a duty of care or falling short of a standard of care that a reasonable person would have exercised.

5 Sometimes fault elements have both objective and subjective components.

6 Fault elements create a range or continuum along which various states of mind are considered increasingly blameworthy. Usually, the level of criminal culpability (blame) is higher if the accused subjectively intended or meant to bring about a certain result. Criminal culpability tends to decrease as behaviour becomes less intentional or considered.

7 Tables 1 and 2 show how the same physical element (causing serious injury or causing injury), combined with different fault elements, creates a hierarchy of offences in the Crimes Act 1958 (Vic), with various levels of culpability and penalties.

Table 1: Causing serious injury: a range of increasingly blameworthy offences based on the accused’s state of mind

Table 2: Causing injury: two increasingly blameworthy offences based on the accused’s state of mind^[6]

The meaning of ‘recklessness’

8 In everyday usage, being ‘reckless’ can mean acting without caution and being ‘utterly careless’ about the consequences of your actions.^[7] The concept of ‘recklessness’ in the criminal law is slightly different. For the purposes of establishing criminal responsibility, recklessness usually involves awareness or foresight ‘of a risk of a prohibited consequence occurring and proceeding nevertheless to take that risk’.^[8] It is a subjective fault element, although it can have objective components (see paragraphs 34–36; 56–70).

9 How recklessness is defined may vary depending on the offence. Recklessness can also have varying levels of culpability. As we discuss below, for the common law offence of murder, reckless unlawful killing is treated as almost the same as intentional unlawful killing, and as similarly blameworthy.^[9]

The common law threshold for establishing recklessness

10 Recklessness is an element in many Victorian offences. It is not consistently defined in Victorian legislation and in most instances takes its meaning from the common law.

11 Before 1986, in Victoria and comparable jurisdictions,^[10] the threshold for establishing recklessness was higher in relation to murder (foresight of probable death) than for other offences against the person (foresight of possible harm).^[11]

12 The reason for the distinction was that the culpability for reckless murder was said by the courts to be comparable to the culpability for intentional murder.

13 At common law, a person who could foresee that their actions would probably kill another person but proceeded regardless, causing the death of that person, could be found guilty of murder. They could be convicted of the same offence as if they had intended to kill someone. Reckless murder was said to be morally equivalent to intentional murder.^[12]

14 If an accused did not intend or was not reckless about killing the person who died because of their actions, the appropriate charge would be manslaughter, a less serious offence, rather than murder.

15 Victoria has retained the common law offence of murder and continues to treat reckless murder as very close to, or even a version of, intentional murder.^[13]

16 This is not the case for other offences against the person. Separate offences exist with a fault element of recklessness rather than intention. Usually, they are characterised as less blameworthy than comparable offences where the fault element is intention.^[14] All Crimes Act offences against the person involving recklessness have lesser penalties attached than versions of the same offence with an intentional fault element (see Tables 1 and 2).^[15] This may be seen as justifying a lower threshold for establishing recklessness than that which is required for murder. A lower threshold would be foresight of possible rather than probable harm.

17 In 1989, however, the Victorian Court of Criminal Appeal found in R v Nuri that recklessness required foresight of probable rather than possible harm.^[16]

18 In 1995 the Court of Appeal affirmed in R v Campbell^[17] that an accused is reckless if they know that a particular harmful consequence will probably result from their action but they continue regardless.^[18]

19 This definition now applies to all ‘offences against the person’ in Part I, Division 1(4) of the Crimes Act that include recklessness as an element.^[19] The definition may apply more broadly to all Victorian offences involving recklessness.^[20]

20 However, in New South Wales the ‘foresight of probable harm’ test continues to apply only to murder. For other offences against the person involving recklessness, the accused need only have foreseen the possibility that harm would occur to establish recklessness.^[21]

The DPP Reference case

21 In 2021, in The Director of Public Prosecutions Reference No 1 of 2019 (DPP Reference case), the Director of Public Prosecutions asked the High Court to review the correctness of the decision in Campbell, stating in part that

the correct interpretation of ‘recklessness’ for offences other than murder (and, in particular, the offence of recklessly causing serious injury) is that an accused had foresight of the possibility of relevant consequences and proceeded nevertheless …^[22]

22 The facts in the DPP Reference case involved an accused who had been involved in a fight. Punches and kicks were traded between two men, ‘culminating in the accused kicking his adversary to the head—he claimed it was in self-defence—causing the other man to fall to the ground and suffer serious injury to the skull and brain.’^[23]

23 The accused was charged with causing serious injury intentionally (section 16 of the Crimes Act) and in the alternative causing serious injury recklessly (section 17 of the Crimes Act). In the County Court, the judge directed the jury in accordance with Campbell that recklessness requires foresight of the probability of serious injury. The accused was found not guilty on both charges.^[24]

24 The High Court appeared to accept that, except for murder, foresight of the possibility of harm is the correct test.^[25] Even so, it found that the foresight of probable harm test should stand in Victoria unless and until it is altered by Parliament.

25 The majority noted the probability test had been used in Victoria for decades and amendments to the Crimes Act had been made in this time. One amendment involved increasing the penalties for a range of offences, including recklessly causing serious injury. The majority approved the view that these changes could ‘only be understood on the basis that the legislature [Parliament] was aware of, and accepted’ the use of the foresight of probable harm test for offences such as causing serious injury recklessly.^[26] They concluded it was not the High Court’s role to substitute a different test.^[27]

4. See, eg, Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomas Reuters, 4th ed, 2017) 194–196.

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5. See, eg, Department of Justice (Vic), Review of Sexual Offences (Consultation Paper, September 2013) Glossary, ‘fault element’, 188.

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6. The courts have held that section 18 creates two separate offences: R v His Honour Judge Hassett [1994] Vic SC 765, (1994) 76 A Crim R 19. There is no offence of negligently causing injury in the Crimes Act, which deals with indictable offences: Crimes Act 1958 (Vic) s 2B. Section 7 of the Summary Offences Act 1966 (Vic) creates ‘offences tending to personal injury …’. that capture some negligent behaviour. The penalties include fines and imprisonment for up to six months.

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7. Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 6th ed., 2013) 1226.

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8. Law Reform Commission of Western Australia, A Review of the Law of Homicide: Final Report (No 97, September 2007) 65, citing Yeo S, Fault in Homicide: Murder and Involuntary Manslaughter in England, Australia and India (Sydney: Federation Press, 1997) 3.

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9. In the past, for some offences, recklessness could be established based on ‘culpable inadvertence’, or not thinking about the risk of a particular result or circumstance. Smith describes what was formerly a fault element for rape—‘failure to give any thought to whether the complainant is consenting’—as ‘inadvertence recklessness’. He says it makes more sense to describe this as reckless rather than negligent rape, ‘because the focus is on the presence or absence of a particular mental state, rather than on whether the accused met a standard of reasonableness imposed by the law’: Dale Smith, ‘Reckless Rape in Victoria’ (2008) 32 Melbourne University Law Review 1007, 1008.

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10. England and New South Wales. R v Cunningham (1957) QB 396; R v Crabbe [1985] (1985) 156 CLR 464, 469 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ).

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11. As we discuss below, the courts in R v Nuri (1989) and R v Campbell (1995) found that for the offences of conduct endangering life (s 22) and causing serious injury (s 17), respectively, the appropriate threshold for recklessness is foresight of probable rather than possible harm. While this has been described as a change in direction (Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [3]-[4], [42]), there was already ‘a prevailing practice for judges to direct juries, in relation to offences charged under s 17 and related sections of the Crimes Act, that in order to establish the requisite foreseeability, the prosecution would need to prove that the accused knew that the injury probably would occur’: Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181, [142] per Kaye JA; see also [80] per Priest JA. This ‘prevailing practice’ dates from the introduction in 1985 of three new offences into the Crimes Act: causing serious injury intentionally, causing serious injury recklessly, and causing injury either intentionally or recklessly. Thus the ‘change in direction’ away from a ‘possibility’ threshold for offences against the person dates from 1986, when the amendments establishing the new offences came into force: [63], [80], per Priest JA.

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12. ‘The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur.’ R v Crabbe [1985] (1985) 156 CLR 464, 469.

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13. Ibid. In New South Wales, the statutory offence of murder includes ‘reckless indifference to human life’ as well as intentional acts or omissions and killings that occur in relation to the commission of offences punishable by imprisonment for life or for 25 years. Other punishable homicides are ‘taken to be manslaughter’: Crimes Act 1900 (NSW) s 18(1), (2). See also: Criminal Code Act 1899 (Qld) s 302 (definition of murder, which includes unlawful killing with reckless indifference to human life), s 303 (definition of manslaughter, unlawful killings under such circumstances as not to constitute murder). The recklessness element was introduced into the Queensland Code as a mental element for murder in 2019. At the time, the Attorney-General said the amendment reflected the government’s view that ‘a person who acts callously knowing that death is probable is just as blameworthy as the person who intends to kill another person’: Queensland, Parliamentary Debates, Queensland Parliament,
    
    30 April 2019, 1240 [9] (Yvette D’Ath, Attorney-General).

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14. In the Victorian Court of Appeal, however, recklessly causing serious injury has been described as ‘morally equivalen[t]’ to, ‘or, at least, not far removed from’ intentionally causing serious injury (Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181, [120] (Priest JA). The offences of causing injury intentionally or recklessly; threat to kill (either intending or being reckless about whether the person threatened would fear the threat would be carried out); and threat to inflict serious injury (either intending or being reckless about whether the person threatened would fear the threat would be carried out) were also described as ‘closely related in terms of … levels of culpability’: [141] (Kaye JA).

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15. The Director of Public Prosecutions says that ‘recklessly causing serious injury was always intended to be a less serious offence than intentionally causing serious injury, by virtue of the lesser culpability built into its mental element.’ The Director of Public Prosecutions Reference No 1 of 2019—Appellant’s Submissions (Court File, 29 January 2021) 6 [19]. When the offence of ‘causing serious injury recklessly’ was introduced to the Crimes Act in 1985 (replacing an earlier malicious infliction of grievous bodily harm offence), the Attorney-General said ‘there is a sufficient difference in moral turpitude—sufficient to justify distinct defences—between one who does so intentionally in the sense of desiring to cause injury and one who does so recklessly—aware that an injury might result to another but goes ahead anyway.’ Victoria, Parliamentary Debates, Legislative Council, 25 September 1985, 201 (J.E. Kennan, Attorney-General).

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16. R v Nuri [1989] [1990] VR 641; The case involved the offence of conduct endangering life, which has a recklessness element: Crimes Act 1958 (Vic) s 22.

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17. R v Campbell (1997) VR 585. This case involved the offence of ‘causing serious injury recklessly’: Crimes Act 1958 (Vic) s 17.

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18. In Campbell, the court said that ‘Nuri used a test of “probability” in a kindred section to this case and it must be the case that all relevant sections in the group bear the same interpretation’. R v Campbell (1997) VR 585, 593.

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19. Ss 15A, 15B, 17, 18, 19, 20, 21, 22, 23, 25, 26, 31 & 31C.

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20. Judicial College of Victoria, Victorian Criminal Charge Book (Online Manual, 2022) 7.1.3 [2].

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21. R v Coleman (1990) NSWLR 467.

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22. Emphasis added. The point of law that was the subject of the DPP Reference case is set out in full in the Court of Appeal judgment in that case: Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181, [3] (Maxwell P, McLeish and Emerton JJA).

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23. Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181, [56] (Priest JA).

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24. Ibid.

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25. The minority said ‘There can be no doubt that the decision in Campbell [applying the probability rather than possibility threshold to the offence of recklessly causing serious injury] is wrong’: Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [7] (Kiefel CJ, Keane and Gleeson JJ). The majority appeared to accept that ‘The identified error in Campbell’ was in fact an error, but found it ‘should stand unless addressed by the legislature in Victoria’ because of the ‘re-enactment presumption’—that is, the Victorian Parliament had amended the Crimes Act since Campbell and those amendments ‘were based on the nature and extent of the criminality and culpability of a contravention of s 17 as stated in Campbell’: ibid [57]-[58] (Gageler, Gordon and Steward JJ). Justice Edelman, who, with the majority, held that the Campbell threshold should stand, nevertheless referred to what would be ‘the salutary effect of overruling Campbell in circumstances in which … the result in Campbell is wrong’: ibid [64].

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26. Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181, [21] (Maxwell P, McLeish and Emerton JJA); Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [44] (Gageler, Gordon, Steward JJ).

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27. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [57]-[59] (Gageler, Gordon, Steward JJ), [101] (Edelman J).

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