Recklessness: Report

13. Principles for reviewing how recklessness is used for other offences

Overview

• The following principles should guide any review of how recklessness and related concepts are used for Crimes Act 1958 (Vic) offences outside offences against the person:

– fairness

– clarity and simplicity

– stability and certainty in the law

– consistency.

• We explain why and how these principles should provide guidance when reviewing other offences.

• Sometimes, there will be good reasons to give different weight to individual principles. For example, the benefits of consistency may be outweighed if achieving consistency leads to uncertainty.

Role of the guiding principles

13.1 As well as our primary focus on how recklessness is used for offences against the person, our terms of reference ask us to:

develop a set of guiding principles that could be used to review the use or proposed use of recklessness as a fault element in other categories of offences in the Crimes Act 1958 (Vic) (the Crimes Act).^[1]

13.2 There was broad support for most of these principles among contributors to our inquiry. ‘Consistency with everyday usage’ was not broadly supported, as people use the word in diverse ways in everyday life.

13.3 Some submissions touched on other principles:

• several contributors expressed support for ‘justice’ or fairness^[3]

• some contributors commented on the benefits of stability or certainty.^[4]

13.4 We recommend the following guiding principles:

• fairness

• clarity and simplicity

• stability and certainty

• consistency—but only within Victorian legislation, not between state and federal jurisdictions, and only where it can be achieved without creating instability in the law.

13.5 The principles are intended for use by Parliament, policy makers and drafters.^[5] It is not our intention that the courts should have regard to these principles when interpreting statutory provisions that contain recklessness as a fault element.^[6]

Fairness

13.6 We did not refer to ‘fairness’ as a potential guiding principle in our issues paper. But we recommend it as useful for orienting any review of how recklessness is used.

13.7 Fairness and justice are analogous but the idea of fairness is broader.^[7] Because people are born free and equal in dignity and rights,^[8] they are entitled to be treated fairly. Fairness captures the importance of acting without bias and with respect for human equality and dignity. At the same time, it recognises that different treatment may sometimes be justified by differences in individuals and their circumstances.^[9]

13.8 Using ‘fairness’ as a guiding principle encourages scrutiny of how change could affect individuals or groups who are marginalised or over-criminalised. The other guiding principles we support are valuable in part because they promote fairness, including by improving access to justice.

13.9 One of the principles we listed in our issues paper as a potential guiding principle captures an aspect of what fairness in the law requires:

The scope of the definition of recklessness should match the level of culpability associated with the offences and the penalties attached to them.^[10]

13.10 Sentences should be proportionate and just, taking into account the totality of the offending.^[11] Fairness allows for differences in sentences to take account of the circumstances of individual offenders.

13.11 Several stakeholders raised concerns that lowering the threshold for recklessness could lead to injustice and unnecessarily punitive sentences (see Chapter 11).^[12]

13.12 Another aspect of fairness is that the criminal law should not have a disproportionate impact on some individuals or members of the community. It should not entrench existing disadvantage or marginalisation. Many of the people we heard from during our inquiry were concerned that changing the current definition of recklessness would disproportionately affect First Peoples, young people, and people with mental illness or cognitive impairment, among others (see Chapter 11).^[13]

13.13 The principle of fairness also favours subjective over objective fault elements. One reason for our recommendation to retain the current definition of recklessness for offences against the person is that it has a purely subjective fault element, consistent with basic principles of justice.

13.14 The idea that ‘punishment is justified only if the defendant had a guilty mind’ is ‘central to the criminal law’.^[14] It helps ensure the law operates fairly and people are not criminalised for things they did not foresee. Except in relation to some sexual offences—where there is a need to overcome permissive community attitudes and low reporting and charging rates^[15]—there has been a generally recognised move towards ‘subjectivist’ understandings of the criminal law.^[16] This move has been justified on the grounds that it remedies the injustice of fault elements that impose criminal liability using an objective standard.^[17]

13.15 In the English case of R v G (see Chapter 6), two children were charged with criminal damage to property because of the effects of a fire they had started. They were 11 and 12 years old at the time of the fire and did not foresee that it would spread. The House of Lords overturned an earlier decision that recklessness could be established using an objective fault element. In the House of Lords, Lord Bingham spoke about the ‘obvious unfairness’ of objective fault elements:

It is neither moral nor just to convict [an accused] (least of all a child) on the strength of what someone else would have apprehended if the [accused themselves] had no such apprehension.^[18]

Clarity and simplicity

13.16 Complexity in the criminal law can make it difficult for people to understand the law and know their obligations.^[19] As much as possible, legislation should assist people affected by the law to understand how it applies to them.^[20] Clarity and simplicity can assist with this. Clarity is also essential so judicial officers can apply the law effectively and explain it in a straightforward way to juries.

13.17 The Commonwealth Office of Parliamentary Counsel emphasises the importance of making laws easy to understand:

[People who draft legislation] have a very important duty to do what we can to make laws easy to understand. If laws are hard to understand, they lead to administrative and legal costs, [and] contempt of the law …^[21]

13.18 A more recent guidance note on avoiding complex legislation states that ‘when developing policy, reducing complexity should be a core consideration.’^[22]

13.19 The Law Commission of England and Wales has commented that:

One basic function of law is to inform the public clearly about what conduct is permitted or forbidden, and if it is forbidden what the consequences are.^[23]

13.20 Victoria Legal Aid (VLA) told us that ‘laws should not be unnecessarily complex in achieving the overall aim.’^[24]

13.21 The Criminal Bar Association (CBA) suggested the current recklessness test ‘has the benefit of simplicity’, ‘a benefit not to be underestimated in the context of offences that judicial officers must explain to lay juries.’^[25] Among several guiding principles for reviewing how recklessness is used for other categories of offences in the Crimes Act, the CBA recommended including that ‘The definition ought to be simple and easy to understand.’^[26]

13.22 In our view, a purely subjective test for recklessness is preferable not only from the perspective of fairness but also because it is clear and simple.

13.23 In Chapter 7, we discuss how multi-factorial tests are more complex. The Supreme Court told us that:

Complexity can lead to error when directing juries, and make it difficult for juries to grasp the law to be applied. The effects of complexity in the law should be given close consideration when developing recommendations as to the meaning of recklessness.^[27]

13.24 Other submissions emphasised the importance of a clear definition that juries will understand.^[28] Dr Greg Byrne said research on juror comprehension, although limited, suggests that ‘the simpler the definition of recklessness, the easier it is likely to be for jurors to understand.’^[29] The Victims of Crime Commissioner cited Dr Byrne’s submission about the benefits of simplicity for jurors and said this ‘can also be extended to victims.’^[30]

13.25 The Victims of Crime Commissioner and Caterina Politi separately emphasised the importance of clarity in the law for victims of crime.^[31]

13.26 We agree that, as much as possible, how recklessness is used should be clear and easy to understand. Clarity promotes accessibility and supports certainty about the application of the law. But clarity does not necessarily require consistency with everyday usage.^[32]

13.27 We cannot simply assume that words such as ‘probably’ or ‘likely’ are easily and consistently understood. VLA said that consistency with everyday usage should not be a guiding principle for how recklessness is used in the Crimes Act because:

the term ‘recklessness’ is unlikely to have a consistent or broadly accepted similar [everyday] meaning.^[33]

13.28 Similarly, the Victims of Crime Commissioner commented that ‘there appears to be considerable divergence of views’ in the community about what recklessness means.^[34]

13.29 In their textbook on criminal law, Bronitt and McSherry suggest that how the word ‘recklessness’ is used in ordinary speech ‘is much broader than its legal use.’^[35]

Stability and certainty

13.30 The Law Commission of England and Wales has described the mental (fault) element in criminal offences as ‘a branch of the law where the maximum degree of certainty is desirable’.^[36] Certainty makes the law easier to access and removes doubts about its application. On its own, longevity is not necessarily a reason to avoid reform (see Chapter 10). But as guiding principles, stability and certainty weigh against changing how recklessness is used in the Crimes Act unless there is a clear need for it.^[37]

13.31 The Victims of Crime Commissioner emphasised the benefits of certainty in the law for victims and the community.^[38]

13.32 Liberty Victoria said that any proposal to change the current definition of recklessness in Victoria risked introducing uncertainty and instability to an area of law that has been working well.^[39]

13.33 The Law Institute of Victoria told us that:

the rule of law requires a degree of stability in the law to prevent unnecessary confusion arising about what the law is and what it requires.^[40]

Consistency

Consistency within the Crimes Act

13.34 In Chapter 5, we consider how recklessness is used for other Crimes Act offences. Our review revealed a high degree of consistency. With isolated exceptions, the definition of recklessness is the same as it is for offences against the person: foresight of ‘probable’ or ‘likely’ harm.

13.35 We discuss the benefits of consistency in Chapter 10. Consistency in the language of fault elements helps promote certainty about the meaning of that language.^[41] It reduces the risk of confusion and misunderstanding among people affected by the law and those who are required to interpret and apply it:

The possibility of a reader being confused or misled is increased if the same expression has a different meaning according to which Part, Division or section of an Act the expression is used in. For this reason, where possible, drafters generally avoid: (a) defining an expression to have different meanings in different parts of an Act; or (b) defining, in one part of an Act, an expression that is used in its ordinary meaning in another part of the Act.^[42]

13.36 The CBA said a guiding principle for reviewing how recklessness is used throughout the Crimes Act should be that all such terms ‘ought to have a single definition.’ It suggested ‘It is problematic to ask a jury to consider different definitions for the same word.’^[43]

13.37 The County Court identified several benefits of consistency, including improved access to justice:

A consistent understanding of recklessness may assist the community’s understanding of legislation and confidence in their ability to understand laws that apply to them. Similarly, the consistent use of terms will facilitate legal certainty among the judiciary and profession.^[44]

13.38 Some stakeholders said that consistency should not be pursued at all costs. The Supreme Court suggested that:

any principle about reducing inconsistency in legislation should recognise that there are circumstances where inconsistency may be preferable to the complexity caused by changing the meaning of a well-understood statutory term.^[45]

Consistency and a new threshold

13.39 The Office of Public Prosecutions (OPP) says that defining recklessness consistently in the Crimes Act and other Victorian legislation ‘would be preferable—if it was achievable.’^[46] But in its view, there is inconsistency in how recklessness is currently defined. We address this in Chapter 5.

13.40 The OPP suggests that its proposed definition of recklessness (see Chapter 7) should provide a ‘guiding principle’ for reviewing how recklessness is used for other offences.^[47] Victoria Police suggested that:

for consistency and clarity, [Victoria Police] recommends that the VLRC consider whether a common definition [based on a possibility test with an objective element] could be extended to apply to all offences in the Crimes Act where recklessness is a fault element.^[48]

13.41 However, Victoria Police acknowledged that this would ‘require considerable analysis and consultation to avoid any unintended consequences.’^[49]

13.42 For the same reasons that we do not support a different definition of recklessness for offences against the person, we do not support it for other offences.

Consistency across different jurisdictions

13.43 Some submissions identified consistency between jurisdictions as a benefit.^[50] The County Court told us that:

Inconsistency of definition between jurisdictions (State and Federal) makes it difficult in Victoria to consider case law from other intermediate appellate courts.^[51]

13.44 But as we discuss in Chapters 6 and 7, there are many differences in the criminal law between jurisdictions within Australia and among common law countries. Achieving interjurisdictional consistency is not realistic. It would require wholesale reform of Victoria’s criminal law.

Some offences may require a tailored approach

13.45 VLA said that consistency:

should not be the only or primary consideration given to the creation of fault elements, as offences should be appropriately tailored to the conduct that is being criminalised …^[52]

13.46 The County Court:

acknowledge[d] that there may be times when, for policy reasons and in the context of particular legislation, the definition of recklessness will take on an alternative meaning.^[53]

13.47 It said that where this is the case, there is ‘value in clearly stating’ in the legislation that a different definition applies.^[54]

Conclusion

13.48 The Commission supports keeping the current common law subjective test of recklessness for most Crimes Act offences. This will allow the greatest degree of fairness, clarity and simplicity, stability and certainty, and consistency within the legislation.

1. However, the terms of reference specifically exclude consideration of offences in the Crimes Act that have recently been subject to review by the Commission, such as stalking and sexual offences.

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2. Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023) 20, [103].

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3. Submissions 3 (Kavaleris, Shehnah, Aforozis, Vinci (students at the University of Melbourne)), 4 (Waller, Herszberg, Muldoon (students at the University of Melbourne)), 5 (McGavin, Jenkins-Smales, NcNaughton, Allen (students at the University of Melbourne)), 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria), 18 (Dr Greg Byrne PSM). Consultations 2 (Liberty Victoria), 3 (Law Institute of Victoria), 10 (Victoria Police).

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4. Submissions 1 (Clifton, Liu, Neulinger, Wong (students at the University of Melbourne)), 3 (Kavaleris, Shehnah, Aforozis, Vinci (students at the University of Melbourne)), 5 (McGavin, Jenkins-Smales, NcNaughton, Allen (students at the University of Melbourne)), 6 (Criminal Bar Association), 14 (Law Institute of Victoria), 15 (County Court of Victoria), 19 (Victims of Crime Commissioner), 21 (Caterina Politi). Consultation 2 (Liberty Victoria).

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5. We made this clear in our issues paper: Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023) 20 [102].

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6. This statement was suggested by the Supreme Court for inclusion with the guiding principles. The Court noted that ‘ambiguities [involving the fault element of recklessness] should be resolved in the provisions [themselves] rather than relying on extraneous materials or guiding principles to give clarity to the provisions’: Submission 13 (Supreme Court of Victoria). The County Court saw merit in the principles listed in the issues paper, noting they are not designed for inclusion in the Crimes Act: Submission 15 (County Court of Victoria).

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7. In the Macquarie Dictionary, ‘fair’ is defined in part as ‘free from bias, dishonesty, or injustice …; that is legitimately sought, pursued, done, given, etc, proper under the rules’: Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 6th ed., 2013). Garner’s Dictionary of Legal Usage points out that in legal usage, ‘fair play’ ‘is the quintessential expression for equitable and impartial treatment.’: Bryan A Garner, Garner’s Dictionary of Legal Usage (Oxford University Press, 3rd ed, 2011).

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8. Charter of Human Rights and Responsibilities Act 2006 (Vic) preamble.

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9. For example, the Equal Opportunity Act 2010 (Vic) recognises that the achievement of substantive equality ‘may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures’. Equal Opportunity Act 2010 (Vic) ss 3(d)(iii), 12.

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10. Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023) 20 [103].

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11. See Sentencing Act 1991 (Vic) s 5(1)(a); Sentencing Advisory Council (Vic), ‘Sentencing Principles, Purposes, Factors’, About Sentencing (Web Page, 3 November 2022) <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-principles-purposes-factors>.

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12. Submissions 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 14 (Law Institute of Victoria).

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13. Submissions 5 (McGavin, Jenkins-Smales, NcNaughton, Allen (students at the University of Melbourne)), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 16 (Youthlaw), 17 (Victoria Legal Aid). Consultations 1 (Victorian Aboriginal Legal Service), 2 (Liberty Victoria), 3 (Law Institute of Victoria), 6 (Victoria Legal Aid), 11 (County Court of Victoria), 12 (Magistrates’ Court of Victoria).

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14. Allan Beever, ‘The Future of Exemplary Damages in New Zealand’ (2010) 24(2) New Zealand Universities Law Review 197, 206. See also; Azadzoi v County Court of Victoria [2013] VSC 161, [17]-[24]; (2013) 40 VR 390, [17]-[24]; Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (Thomson Reuters, 6th ed, 2016) 120 [18.10]; Jeremy Horder, Ashworth’s Principles of Criminal Law (Oxford University Press, 10th ed, 2022) 192 [6.4].

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15. See Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021) 9–10, 26–29, 38, 41–42, 142.

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16. ‘[T]he general tendency in modern times of our criminal law … is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant.’: R v G [2003] UKHL 50, [55]; [2004] 1 AC 1034, 1062 [55] (Lord Steyn).

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17. As we discuss in Chapter 6, the objective test for recklessness introduced in the United Kingdom by the decision in Caldwell was described by one theorist as ‘a definition which to many eyes divorced the criminal law from basic principles of justice.’: Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 44.

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18. R v G [2003] UKHL 50, [33] (Lord Bingham of Cornhill).

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19. Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023) 18, [86].

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20. Attorney-General’s Department (Cth), Causes of Complex Legislation and Strategies to Address These (Fact Sheet, 2020) 1 [4] <https://www.ag.gov.au/sites/default/files/2020-03/causes-of-complex-legislation-and-strategies-to-address-these.pdf>.

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21. Office of Parliamentary Counsel (Cth), Plain English Manual (Report, 1993) 5 [5].

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22. Attorney-General’s Department (Cth), Causes of Complex Legislation and Strategies to Address These (Fact Sheet, 2020) 1 [2] <https://www.ag.gov.au/sites/default/files/2020-03/causes-of-complex-legislation-and-strategies-to-address-these.pdf>.

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23. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 40-41 [3.18].

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24. Submission 17 (Victoria Legal Aid) citing Attorney-General’s Department (Cth), Causes of Complex Legislation and Strategies to Address These (Fact Sheet, 2020) <https://www.ag.gov.au/sites/default/files/2020-03/causes-of-complex-legislation-and-strategies-to-address-these.pdf>.

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25. Submission 6 (Criminal Bar Association). The Supreme Court noted that ‘Consistent with jury directions on the [current] test being “simple, logical and straightforward”, it has been extremely rare for appeals to include a ground alleging error in the trial judge’s charge on recklessness.’: Submission 13 (Supreme Court of Victoria) (citing Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181 [Kaye JA]).

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26. Submission 6 (Criminal Bar Association).

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27. Submission 13 (Supreme Court of Victoria).

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28. Submissions 6 (Criminal Bar Association), 8 (Dr Steven Tudor).

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29. Submission 18 (Dr Greg Byrne PSM).

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30. Submission 19 (Victims of Crime Commissioner).

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31. Ibid; Submission 21 (Caterina Politi).

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32. Submissions 13 (Supreme Court of Victoria), 16 (Youthlaw), 17 (Victoria Legal Aid).

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33. Submission 17 (Victoria Legal Aid); The Supreme Court of Victoria also noted that ‘a principle to the effect that recklessness should be used consistently with everyday usage may understate the role and complexity of recklessness in the criminal law’: Submission 13 (Supreme Court of Victoria).

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34. Submission 19 (Victims of Crime Commissioner).

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35. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 218 [3.215].

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36. Law Commission of England and Wales, Report on the Mental Element in Crime (Law Com No 89, 21 June 1978) 25 [39].

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37. The Criminal Bar Association described the current definition of recklessness as having the benefit of ‘certainty and stability in the law’. The comment related to the use of the current test for offences against the person, but it equally applies to its use for other categories of offences. The Criminal Bar Association also suggested as a guiding principle that ‘Only necessary changes should be made, and with the least disruption to [the] legislative environment.’ Submission 6 (Criminal Bar Association).

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38. The Victims of Crime Commissioner advocated for ‘an approach that creates the most clarity and certainty for victims and the broader community, meets community expectations and does not retraumatise victims.’ The Commissioner noted that the ‘law and the justice system are inherently uncertain for victims and any opportunity for clarity and certainty is important.’: Submission 19 (Victims of Crime Commissioner).

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39. Consultation 2 (Liberty Victoria).

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40. Submission 14 (Law Institute of Victoria).

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41. See Harry Gibbs, RS Watson and ACCC Menzies, Review of Commonwealth Criminal Law—Principles of Criminal Responsibility and Other Matters (Interim Report, Attorney-General’s Department (Cth), July 1990) 31 citing Law Commission of England and Wales, A Criminal Code for England and Wales—Vol 1 Report and Draft Criminal Code Bill (Law Com Report No 177, 1989) [8.4].

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42. Office of Parliamentary Counsel (Cth), Reducing Complexity in Legislation (Report, June 2016) 8 [50] <https://www.opc.gov.au/sites/default/files/2023-01/reducingcomplexity.pdf>.

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43. Submission 6 (Criminal Bar Association).

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44. Submission 15 (County Court of Victoria).

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45. Submission 13 (Supreme Court of Victoria).

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46. Submission 10 (Office of Public Prosecutions).

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47. ‘In our view, the fundamental guiding principle for the use of recklessness as a fault element in other Crimes Act offences should be that recklessness means awareness of a possibility, unless there are cogent reasons to depart from that position for a particular offence.’: Ibid.

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48. Submission 7 (Victoria Police).

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49. Ibid.

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50. Submissions 10 (Office of Public Prosecutions), 15 (County Court of Victoria); the Victims of Crime Commissioner noted that the High Court’s acceptance of the correctness of the possibility test for offences other than murder in the DPP Reference case, coupled with consistency with other jurisdictions, ‘is persuasive’: Submission 19 (Victims of Crime Commissioner); and see Submission 7 (Victoria Police).

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51. Submission 15 (County Court of Victoria).

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52. Submission 17 (Victoria Legal Aid).

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53. Submission 15 (County Court of Victoria).

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54. Ibid.

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