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Recklessness: Report

  • Posted on May 28, 2024

2. Recklessness and criminal responsibility

Overview

• This chapter explains how the concept of recklessness fits in Victoria’s criminal law.

• Fault elements largely determine the culpability attached to an offence. Fault elements can be subjective (to do with a person’s state of mind) or objective.

• Recklessness is a fault element for a range of Victorian offences against the person. In the scale of culpability, recklessness comes between intention (most serious) and negligence.

• Proving recklessness involves establishing a person’s state of mind at the time of the offending.

Criminal responsibility in Victoria

2.1 For a person to be lawfully convicted of a crime, every element of the offence must be proved beyond reasonable doubt.

2.2 Elements of criminal offences are divided into physical and fault elements.[1] Serious offences usually consist of one or more physical elements, each with an accompanying fault element.

2.3 A physical (or external) element usually relates to conduct, circumstances and/or a result.[2] Conduct can be an act or omission. The physical conduct of a person must be committed voluntarily, in that it must be a product of their will to act.[3]

2.4 A person’s intoxication may be relevant to whether their conduct was voluntary or whether they had the necessary state of mind to establish a fault element.[4]

Subjective and objective fault elements

2.5 A subjective fault element is based on a person’s state of mind at the time of their conduct. This can be contrasted with an objective fault element, which generally assesses the accused’s behaviour by reference to what a reasonable person would have known, foreseen, or done in the circumstances.

2.6 Where an offence has a fault element, there is a presumption in the criminal law that it is subjective.[5] This presumption can be overridden. For example, some offences have objective fault elements.[6]

Proving subjective fault elements

2.7 The onus is on the prosecution to prove a subjective fault element. This raises questions about what evidence is necessary to show a person had a particular state of mind.

2.8 We heard that not being able to see into the mind of the accused person can be a problem in all offences that require proof of a subjective state of mind, including intentional and reckless offences.[7] The ‘artificiality of imputing mental states is inherent to our criminal justice system, because no one knows what is happening in someone else’s head’.[8]

2.9 When an act is planned in advance, there is a clear distinction between having a state of mind and acting on it. But spontaneous acts that do not have a perceptible time gap between the thought and the action make it difficult to distinguish between the fault and physical elements of an offence. As English lawyer and academic Rupert Cross observed, ‘when dealing with incidents which occupy a split second, the question “did the accused contemplate certain results?” is apt to be a little unreal.’[9]

2.10 In our everyday lives we attribute mental states to other people based on assumptions about how rational people behave, in combination with our understanding of other people’s environment, perceptions, interests, and past experiences.[10] The ability to draw inferences about other people’s state of mind has been called ‘folk psychology’.[11] Legal scholar Peter Cane argues ‘inferred intention’ does not capture a frame of mind at all, but ‘rather it consists of a contextualised interpretation of what the accused did and said based on a judgment about the way people normally (ought to) behave.’[12]

2.11 When a fact-finder (a magistrate, a jury or a judge in a judge-alone trial) attributes a culpable state of mind to an accused person, they are ‘influenced by their expectations of how reasonable people like themselves perceive, think, and behave in a particular situation.’[13] In doing this a fact-finder will ‘inevitably engage in a mix of subjective and objective inquiry.’[14] This illustrates the tension between subjective and objective accounts of criminal culpability.[15]

2.12 In Victoria, if a trial judge believes a jury is in danger of applying an objective standard to infer a subjective fault element, the judge can explain how it is legitimate to use contextual material to infer the required state of mind, but that the jury must do so in a manner that applies a subjective standard.[16] As a question of fact, the issue is always what the accused person actually appreciated or understood in their own mind.[17]

The practical experience of criminal lawyers

2.13 When we consulted with lawyers, we explored whether it is realistic for criminal offences to require proof of subjective fault elements. For example, is it realistic to say that an 18-year-old in a drunken moment of rage ‘forms an intention to seriously injure’ the person they punch in a bar fight?

2.14 We were told that juries infer the accused’s state of mind by assessing the accused’s conduct and all the circumstances of a case.[18] The Criminal Bar Association told us:

you just need a split second to know what you’re trying to do by, for example, swinging your arm really hard knowing it is going to hurt the other person …

Juries are using their common sense, which is perfectly legitimate, to assess what is in someone’s mind based on their actions.[19]

2.15 As Dr Greg Byrne explained,[20] the circumstances of the offence ‘can tell you about what result the person was intending to produce.’[21]

2.16 We return to the topic of proving a subjective state of mind in Chapter 8.

Degrees of fault and culpability

2.17 ‘Intention’, ‘knowledge’, ‘recklessness’ and ‘negligence’ are terms used in offence provisions in Victoria to imply different degrees of fault and culpability.

2.18 Culpability ‘refers to the factors of intent, motive and circumstance that determine how much the offender should be held accountable for [their] act.’[22] Generally, culpability:

rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences … the greater the level of insight and understanding possessed by [them] concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved.[23]

2.19 Culpability will ‘in part, be determined by both the consequences of the offender’s conduct and whether they intended, foresaw, or were negligent as to those consequences’.[24]

The meaning of recklessness

2.20 ‘Conscious disregard of risk’ is the essence of recklessness as a legal concept.[25] The more an offender turns their mind to the consequences of their conduct, the more culpable they are.[26]

2.21 Consequences aside, recklessness as a fault element is considered more culpable than negligent behaviour, but less culpable than an act done intentionally. In some circumstances there may be little difference between high-end recklessness and intention.

2.22 In Victoria, recklessness is not defined in the Crimes Act. It takes its meaning from the common law. A person is reckless if they know that a particular harmful consequence will probably (is likely to) result from their action, but they continue regardless.[27] The test is subjective.[28]

2.23 The common law definition applies to all offences against the person in Part I, Division 1 of the Crimes Act involving recklessness.[29]

2.24 A person can be reckless as to:

• a result (for example, causing serious injury)[30]

• a circumstance (for example, the victim being an emergency services worker).[31]

Intention and negligence

2.25 The fault element of intention sits at the top of the hierarchy of Victorian offences against the person, indicating the highest level of culpability. Intention reflects a decision to bring about an act (general intent) or a result (specific intent).[32]

2.26 A person may also be held criminally responsible if they act ‘with the knowledge that a particular circumstance exists, or with the awareness that a particular consequence will result from … the conduct.’[33]

2.27 At the lowest end of the scale of culpability is criminal negligence. It is not a true ‘state of mind’ offence as it involves an objective test and is primarily concerned with a failure to take sufficient care where a legal duty exists. For a person’s conduct to be negligent, it must involve ‘a great falling short of the standard of care which a reasonable [person] would have exercised’.[34]

2.28 Table 1 shows the fault elements with a simple explanation and examples.

Table 1: A comparison of fault elements

Fault element

Simple explanation

Examples

Intention

Deciding to do a prohibited act (general intent) or deciding to bring about a harmful result (specific intent).

Intentionally causing serious injury

The offender doused the victim with petrol and then used a cigarette lighter to set fire to the fuel.[35]

Recklessness

Being aware that harm will probably (is likely to) result from the conduct but going ahead anyway.

Recklessly causing serious injury

The offender punched the victim to the head, causing him to fall backwards and strike his head on the footpath.[36]

Negligence

Failing to take enough care where a legal duty of care exists.

Negligently causing serious injury

The offender, after consuming excessive alcohol, drove erratically and at high speed. He collided with the victim’s vehicle, causing it to hit a tree. The victim suffered life threatening injuries.[37]

Result-oriented offences

2.29 Some criminal offences are result-oriented, meaning that the conduct must have led to a particular result. For offences against the person in sections 15A, 15B, 16–18 and 24 of the Crimes Act, the fault elements of intention, recklessness, or negligence attach to the resulting harm, which must meet the definition of ‘injury’ or ‘serious injury’.

2.30 For the offence of intentionally causing serious injury,[38] the physical act must have been committed with the specific intention to cause a serious injury.[39] In a situation where a person throws a punch that causes a serious injury, proving the person had an intention to complete the physical act of throwing the punch is not enough—they must have intended to bring about a serious injury.

2.31 For result-oriented offences, the prosecution must prove causation as an element of the offence. This means that a person’s conduct must have ‘contributed significantly’ to that result or have been a ‘substantial and operating cause’ of it.[40]

Proving the elements of an offence

2.32 In Figure 2 we have used the offence of recklessly causing serious injury[41] to illustrate the elements to be proved.

Figure 2: The elements of the offence ‘recklessly causing serious injury’

The hierarchy of offences

2.33 The varying degrees of criminal culpability, expressed as different fault elements, together with the level of harm caused by an act (death, serious injury, injury), create a hierarchy of offences against the person. This hierarchy is reflected in the scale of maximum penalties that attach to the offences.

2.34 Figure 3 shows the gradation of all the offences against the person in Part I, Division 1(4) of the Crimes Act in descending order of maximum penalty.

Figure 3: Hierarchy of offences against the person

2.35 The gross violence offences[42] have the same maximum penalties (20 years and 15 years imprisonment) as the plain intentionally and recklessly causing serious injury offences,[43] but the aggravating element of gross violence means the offences attract mandatory custodial sentences and minimum non-parole periods (see Chapter 4).

2.36 Negligently causing serious injury carries a higher maximum penalty (10 years)[44] than recklessly causing injury (five years).[45] This is because negligence is only a crime where a serious injury results and the conduct involves ‘such a great falling short of the standard of care which a reasonable [person] would have exercised’ that it ‘merits punishment under the criminal law.’[46] There is no offence of ‘negligently causing injury’ in Victoria.

  1. A variety of terms have been used to describe these elements, the most common (and often criticised) being the Latin actus reus and mens rea. These terms stem from the saying ‘actus non facit reum, nisi mens sit rea’, loosely translated as ‘an act does not make a person guilty of a crime unless that person’s mind be also guilty’: Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 178 [3.05], citing Haughton v Smith [1975] AC 476, 491–2 (Lord Hailsham).

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  2. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 194–96 [3.75]–[3.100].

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  3. Judicial College of Victoria, ‘7.1.1 Voluntariness’, Victorian Criminal Charge Book (Online Manual, 27 March 2019) [56] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4462.htm> citing R v Tait [1973] VR 151. The Criminal Charge Book also notes that, while it is presumed that an act done by a conscious person was done voluntarily, some conduct may raise voluntariness as an issue to be proved by the prosecution. For example, muscular movements like spasms, convulsions or reflex actions that occur without any control by the mind, acts done in a state of impaired consciousness, while a person is asleep or in a state of automatism, or accidental actions, for example when a person trips over and bumps into someone.

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  4. See Judicial College of Victoria, ‘8.7 Common Law Intoxication’, Victorian Criminal Charge Book (Online Manual, 29 June 2015) [5] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19075.htm>. For the issue of intoxication under s 322T of the Crimes Act 1958 (Vic) which applies to defences (self-defence, duress and sudden or extraordinary emergency) for offences committed on or after 1 November 2014, see generally Judicial College of Victoria, ‘8.5 Statutory Intoxication (From 1/11/14)’, Victorian Criminal Charge Book (Online Manual, 19 March 2018) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#58482.htm>.

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  5. Ian Freckelton and Mirko Bagaric, Thomson Reuters, Indictable Offences in Victoria (online at 22 November 2023) [18.40], citing Sherras v De Rutzen [1895] 1 QB 918, 921 (Wright J).

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  6. The presumption can be displaced expressly (by the words of the statute creating the offence) or by necessary implication: He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 566 (Brennan J); CTM v The Queen [2008] HCA 25, [148]; (2008) 236 CLR 440, 483–4 [148] (Hayne J) (citations omitted).

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  7. Submissions 14 (Law Institute of Victoria), 17 (Victoria Legal Aid). Consultations 1 (Victorian Aboriginal Legal Service), 2 (Liberty Victoria), 5 (Judicial College of Victoria), 6 (Victoria Legal Aid).

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  8. Consultation 2 (Liberty Victoria).

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  9. Rupert Cross, ‘The Mental Element in Crime’ (1967) 83(2) Law Quarterly Review 215, 226.

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  10. Rebecca Dresser, ‘Culpability and Other Minds’ (1993) 2(1) Southern California Interdisciplinary Law Journal 41, 78, citing Daniel Dennett, The Intentional Stance (MIT Press, 1987) 17.

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  11. Bertram F Malle and Sarah E Nelson, ‘Judging Mens Rea: The Tension between Folk Concepts and Legal Concepts of Intentionality’ (2003) 21(5) Behavioral Sciences and the Law 563, 563.

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  12. Peter Cane, ‘Fleeting Mental States’ (2000) 59(2) Cambridge Law Journal 273, 281.

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  13. Rebecca Dresser, ‘Culpability and Other Minds’ (1993) 2(1) Southern California Interdisciplinary Law Journal 41, 88.

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  14. Ibid 83.

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  15. Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 224 [3.230].

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  16. See, eg, Judicial College of Victoria, ‘7.4.2.5 Charge: Intentionally or Recklessly Causing Serious Injury (From 1/7/13)’, Victorian Criminal Charge Book (Online Manual, 2 July 2020) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#46298.htm>. This model charge also appears in sections of the Criminal Charge Book relating to other offences against the person.

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  17. Consultation 5 (Judicial College of Victoria).

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  18. Consultations 2 (Liberty Victoria), 6 (Victoria Legal Aid). VLA gave the example of a ‘glassing’, where a person hits another in the face with a broken bottle. Although it might have happened quickly with no premeditation, a jury might reasonably infer that there must have been some realisation of the obvious risk of causing serious injury in those circumstances. Even if a person told police in a record of interview that they were not thinking, a jury could disregard the accused’s version if there was contrary evidence.

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  19. Consultation 4 (Criminal Bar Association).

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  20. Dr Greg Byrne PSM is an experienced criminal law policy adviser in Victoria. He has led many significant criminal law reforms, including the introduction of the Jury Directions Act 2015 (Vic) and the Criminal Procedure Act 2009 (Vic), and the review and reform of Victoria’s sexual offence laws with the introduction of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) and the Crimes Amendment (Sexual Offences) Act 2016 (Vic).

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  21. Consultation 9 (Dr Greg Byrne PSM).

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  22. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 280, citing A von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang, 1986) 64–65.

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  23. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 281, citing DPP v Weidlich [2008] VSCA 203, [17] (Vincent and Weinberg JJA, Mandie AJA).

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  24. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 281. ‘Culpability also relates to such matters as the degree of planning or the method used to commit the offence, the offender’s motive, degree of participation in the offence, and … whether they [had a mental impairment]’.

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  25. R v Towle [2009] VSCA 280, [31]; (2009) 54 MVR 543, 554 [31] (Maxwell P), citing R v Burnside [1962] VR 96, 97; Nydam v R [1977] VR 430, 444; R v Nuri [1990] VR 641, 643–4; Director of Public Prosecutions (Vic) v Gany [2006] VSCA 148; (2006) 163 A Crim R 322, [35]; Brown v R [2005] UKPC 18; [2006] 1 AC 1, 19.

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  26. Ashe v The Queen [2010] VSCA 119, [31] (Redlich JA).

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  27. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 274 CLR 177; Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181; (2020) 284 A Crim R 19; R v Campbell (1997) VR 585.

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  28. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [124] (Priest JA).

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  29. Judicial College of Victoria, ‘7.1.3 Recklessness’, Victorian Criminal Charge Book (Online Manual, 28 October 2022) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4469.htm>. The Judicial College of Victoria’s Criminal Charge Book states that the definition ‘applies to all Victorian offences involving recklessness’, but as we discuss in Chapter 5, there are some exceptions to this.

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  30. Crimes Act 1958 (Vic) s 17.

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  31. Ibid ss 3(2)(ii), 31(1)(b).

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  32. He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 569–70 (Brennan J).

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  33. ‘An accused may claim a mistaken belief to show that they did not have the requisite knowledge’: Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 213 [3.195].

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  34. R v Shields [1981] VR 717, 723; Nydam v The Queen [1977] VR 430, 445.

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  35. DPP v Gorgulu [2023] VSCA 140.

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  36. DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150.

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  37. Cook v The Queen [2021] VSCA 293.

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  38. Crimes Act 1958 (Vic) s 16.

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  39. R v Westaway [1991] VicSC 143; (1991) 52 A Crim R 336, 337 (Brooking J). The accused does not need to have intended to cause the precise injury that resulted, see Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

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  40. Judicial College of Victoria, ‘7.1.2 Causation’, Victorian Criminal Charge Book (Online Manual, 19 March 2018) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4465.htm>, citing Royall v The Queen [1991] HCA 27; R v Rudebeck [1999] VSCA 155; R v Stein [2007] VSCA 300; (2007) 18 VR 376; R v Withers [2009] VSCA 306; R v Aidid [2010] VSCA 56; (2010) 25 VR 593.

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  41. Crimes Act 1958 (Vic) s 17.

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  42. Crimes Act 1958 (Vic) ss 15A, 15B.

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  43. Ibid ss 16, 17.

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  44. Ibid s 24.

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  45. Ibid s 18.

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  46. R v Shields [1981] VR 717, 723.

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1. Introduction
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