Recklessness: Report

3.1 The meaning of recklessness in Victoria has evolved over several decades. Offences in Victoria for non-fatal injury did not use the term ‘recklessness’ before 1985. Victorian offences used concepts of ‘malice’ and ‘grievous bodily harm’ similarly to offences in New South Wales and England.^[2] ‘Malice’ was interpreted as requiring either intention or recklessness.^[3]

3.2 The degree of recklessness required to establish malice was set out in the 1957 English case of R v Cunningham (‘Cunningham’).^[4] The Cunningham test required that the accused foresaw that the particular kind of harm might be done and yet went on to take the risk of it.^[5]

3.3 In the 1990 New South Wales case of R v Coleman (‘Coleman’),^[6] Justice Hunt pointed out that the ‘foresight of possible consequences’ test in Cunningham was taken from a chapter in a criminal law textbook relating to property offences.^[7] In that same textbook, the test required for non-fatal offences against the person, particularly for unlawful and malicious wounding, was foresight of a ‘likely’ result.^[8] But Justice Hunt concluded that the law had ‘become sufficiently settled’ and that:

the discovery of this apparent confusion in the seminal work from which the law has flowed should not … lead to the law being changed.^[9] 

3.4 Early cases applying Cunningham in Victoria discussed the appropriate threshold for recklessness. In R v Whitehead^[10] Justice Hudson found, ostensibly in accordance with Cunningham, that the word ‘maliciously’ requires either intention or that the accused acted ‘foreseeing that they would probably produce this result, but … reckless as to the consequence of [their] acts.’^[11]

3.5 However, in R v Smyth,^[12] Justice Sholl concluded that ‘probably’ goes further than the language of Cunningham and the accused needs only to have foreseen that harm ‘might’ be done,^[13] and that:

the jury might reasonably conclude that … to drive … past the house with the gun in readiness to fire, involved a recklessness as to consequences foreseen as possible or probable. That, I think, would be sufficient to justify a conviction on the third count [unlawful and malicious wounding].^[14]

3.6 Similarly, cases such as R v Lovett^[15] and R v Kane^[16] referred to Cunningham and the need for foresight that harm ‘might’ result.^[17] But in Campbell these cases were said to concern repealed offences relating to malice, and were not applied to recklessly causing serious injury,^[18] an offence introduced as part of the new statutory offences against the person in 1985.^[19] Those new offences replaced offences that had incorporated the common law concept of ‘malice’.

Post-1985: offences against the person

3.7 The Crimes (Amendment) Act 1985 (Vic) (‘the amending Act’) came into operation on

24 March 1986. It amended Part I of the Crimes Act 1958 (Vic) and inserted new sections including the offences against the person that are the subject of this review.

3.8 The amending Act made ‘a fundamental reform’ to non-fatal offences against the person,^[20] replacing outdated offences that had become ‘anachronistic over the passage of 120 years’ with simpler modern offences.^[21] But it was not intended to ‘reduce the coverage’ of serious offences.^[22]

3.9 The new offences created a scale of seriousness using the fault elements of intention and recklessness. Maximum penalties varied according to seriousness.^[23]

The development of common law recklessness in Victoria

3.10 Many offences introduced in 1985 were based on a report by the Criminal Law Revision Committee of England and Wales (the Law Revision Committee).^[24] These offences included intentionally causing serious injury, recklessly causing serious injury, and intentionally or recklessly causing injury.^[25]

3.11 The Law Revision Committee proposed legislating a definition of recklessness.^[26] It said that it was necessary to define intention and recklessness in relation to offences against the person as there is ‘no unanimity as to the ordinary meaning of the words’.^[27]

3.12 The Victorian legislature adopted the offences in the report but chose not to legislate a definition of recklessness. As Justice Edelman noted in the High Court:

The intention of Parliament was … that the law as to the meaning of recklessness be developed and incrementally clarified in the manner of the common law.^[28]

3.13 Since 1985 the common law definition of recklessness for offences against the person in Victoria has developed through several key cases: R v Nuri (‘Nuri’)^[29] and then Campbell,^[30] building on the High Court case of R v Crabbe (‘Crabbe’).^[31]

Crabbe

3.14 The 1985 case of Crabbe concerned the fault element necessary to constitute murder. The appellant, after consuming a substantial amount of alcohol, drove a prime mover and trailer through the wall of a motel in the Northern Territory and into a bar, killing five people.

3.15 Before Crabbe there was ‘some difference of opinion’ about the threshold for murder where a person did not intend to kill or cause grievous bodily harm (‘reckless murder’).^[32] The question for the court was whether an accused’s knowledge that their acts would ‘probably’ cause death or grievous bodily harm was required, or was it enough if they knew these outcomes were ‘possible’?

3.16 At the time of Crabbe it was widely accepted in Australia that recklessness for statutory offences other than murder only required foresight of possible harm.^[33] The High Court in Crabbe decided that knowledge of possibility for murder is not enough.^[34] It is now settled law in Australia that a person is guilty of reckless murder if they commit an act knowing that it will probably cause death or grievous bodily harm, and death in fact results.^[35]

3.17 In the context of reckless murder, the High Court found that:

If an accused knows … that death or grievous bodily harm is a probable consequence, [they] act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm.^[36]

3.18 The rationale for the probability threshold for reckless murder was ‘moral equivalency’, that is, that a person who knows their conduct will probably cause death or grievous bodily harm can be regarded as being ‘just as blameworthy’ as someone who does an act intending to kill or do grievous bodily harm.^[37]

Nuri

3.19 The 1989 case of Nuri involved the offence of conduct endangering life.^[38] It was the first time an appellate court in Victoria was required to interpret this offence.^[39] Citing Crabbe, the Court of Appeal held that:

Presumably conduct is relevantly reckless if there is foresight on the part of an accused of the probable consequences of [their] actions and … indifference as to whether or not those consequences occur.^[40]

3.20 Following Nuri, the ‘probable’ threshold for recklessness was applied to the offence of conduct endangering persons.^[41]

3.21 In R v Sofa,^[42] the Court of Appeal approved the application of the Crabbe probability test for the recklessness element of the offence of making a threat to kill.^[43]

Campbell

3.22 The 1995 case of Campbell considered the threshold for recklessness in relation to the offence of recklessly causing serious injury.^[44] The Court of Appeal affirmed that a person is reckless if they foresee that a particular harmful consequence will probably result from their conduct.^[45]

3.23 Although the use of ‘probable’ in Crabbe related to murder, in Campbell Justices Hayne and Crockett held that ‘the same principles are relevant’.^[46] They distinguished ‘relatively old’ cases that used a ‘possibility’ threshold for repealed offences of unlawful and malicious wounding or infliction of grievous bodily harm because ‘the spirit of the decision in Crabbe indicates that such cases should not be applied to the offence of recklessly causing injury’.^[47]

3.24 Instead, Justices Hayne and Crockett reasoned:

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.^[48]

3.25 As the definition of ‘probable’ was applied in Nuri for the offence of conduct endangering life, other offences against the person (including recklessly causing serious injury) could be considered ‘kindred’ sections for which the same definition of recklessness is appropriate.

3.26 In Campbell, the prosecution conceded that:

• ‘The prevailing practice’ in relation to the offence of recklessly causing serious injury and related sections of the Crimes Act was ‘to direct a jury as to foreseeability that the injury would probably occur.’^[49]

• It was improbable that the term ‘recklessly’ in the section 17 offence was intended to have a different meaning from other sections of the Crimes Act.^[50]

3.27 Although the prosecution suggested that support for the ‘possible’ threshold could be found in the second reading speech where the Minister referred to an injury that ‘might’ result,^[51] Justices Hayne and Crockett concluded:

We have no doubt that the appropriate test to apply [for recklessness] … is possession of foresight that the injury probably will result … ^[52]

3.28 The effect of Campbell has been to apply the ‘probable’ definition of recklessness to all relevant offences against the person in Part I, Division 1(4) of the Crimes Act, the offences that are the subject of this reference (see Chapter 4).^[53]

The Director of Public Prosecutions reference

3.29 In 2019 the Victorian Director of Public Prosecutions (DPP) asked the Court of Appeal, and then in 2020 the High Court, to determine a point of law relating to the correct interpretation of recklessness for offences against the person other than murder (the DPP Reference).^[54]

3.30 In the Court of Appeal the DPP argued 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, having regard to the social utility of the action.^[55]

3.31 The DPP said that the Campbell approach requiring foresight of the probability of injury was inconsistent with Aubrey v The Queen (‘Aubrey’)^[56] (see below), and should no longer be followed.^[57]

Aubrey and recklessness in New South Wales

3.32 New South Wales has a different threshold for recklessness (for further discussion, see Chapter 6).

3.33 In the 1990 case of Coleman, the New South Wales Court of Criminal Appeal held that ‘possibility’, rather than ‘probability’, was sufficient to establish malice for offences other than murder in New South Wales.^[58]

3.34 In 2011, in Blackwell v The Queen,^[59] the New South Wales Court of Criminal Appeal considered whether probability or possibility was the appropriate threshold for recklessness. The defence submitted that the appropriate test for recklessness was foresight of the ‘probable’ consequences. However, the Court concluded that:

this court should not follow the Victorian decision of Campbell. That decision is inconsistent with authority in the High Court, New South Wales and in England. The [New South Wales] Attorney General expressly referred to the test for recklessness stated by Hunt J in Coleman when commenting upon the proposed legislative changes to [remove ‘maliciously’ from the Crimes Act 1900 (NSW) and replace it with ‘recklessly’ and ‘intentionally’].^[60]

3.35 In 2017, in Aubrey, the High Court held that foreseeing the ‘possibility’ of grievous bodily harm is sufficient to establish recklessness for offences other than murder in New South Wales.^[61] It distinguished murder from other offences:

the reason for requiring foresight of probability in the case of common law murder was the near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death. The same does not necessarily, if at all, apply to statutory offences other than murder.^[62]

3.36 The High Court did not specifically consider recklessness offences in Victoria but noted that ‘the requirements in States other than New South Wales may vary according to the terms of each State’s legislation.’^[63]

3.37 Following Aubrey, the Judicial College of Victoria (JCV) added a cautionary note to its Criminal Charge Book for material discussing recklessness. It advised judges to consider seeking submissions on the impact of Aubrey and if they should give different directions to the standard directions about recklessness that had applied since Campbell.^[64]

The DPP Reference case

3.38 The DPP Reference stemmed from a trial in the County Court of Victoria (see box over page).^[65]

An argument broke out in the streets of Melbourne between two men, A and B. B was said to have been intoxicated and aggressive. The argument escalated into a physical altercation with pushing, shoving, and punches. The fight culminated with A kicking B to the side of his head. The kick was described as very powerful and quick. B was rendered unconscious and fell backwards, hitting his head on the pavement. B sustained skull fractures and brain swelling. His injuries were life-threatening. A was 18 years old at the time of the incident and had consumed alcohol. He was charged with intentionally causing serious injury,[66] and the alternative of recklessly causing serious injury.[67] He pleaded not guilty and faced a jury trial. At trial, it was accepted that B had suffered a serious injury caused by A. The issues in dispute were A’s state of mind when he delivered the kick to B’s head, and whether he did so in self-defence.[68] The jury found the accused not guilty of both intentionally and recklessly causing serious injury, and the alternative verdicts of intentionally causing injury and recklessly causing injury.[69] The jury needed to be satisfied beyond reasonable doubt that (1) when A kicked B in the head he intended or foresaw the probability of causing (serious) injury to B; and (2) A was not acting in self-defence. Given the not guilty findings, the jury was not satisfied of at least one of these things.

3.39 During the trial, the judge brought counsels’ attention to the section of the JCV’s Criminal Charge Book that referred to Aubrey.^[70] After seeking instructions from the DPP, the prosecutor submitted that the judge should charge the jury in accordance with Aubrey. The trial judge declined to do so. He ruled that he was bound by the Court of Appeal’s judgment in Campbell and went on to instruct the jury that conduct is reckless if the accused foresees the probable consequences of their actions.^[71]

3.40 At the conclusion of the trial, the DPP referred the correctness of the decision in Campbell as a point of law to the Court of Appeal.

The Court of Appeal’s decision

3.41 In the Court of Appeal, the DPP argued that the correct interpretation of recklessness for offences other than murder is that an accused has foresight of the possibility of relevant consequences and proceeds nevertheless.^[72]

3.42 The DPP also sought to include an objective assessment of the risk in the recklessness test, that a person recklessly causes injury if they:

1) foresee the possibility of causing injury; and

2) the risk of causing injury was, on an objective assessment of the circumstances including the social utility of the act, an unreasonable risk for them to take.^[73]

3.43 The Court of Appeal concluded:

unless and until it is altered by legislation, the meaning of ‘recklessly’ in s 17 of the Crimes Act 1958 is that stated by the Court of Appeal in Campbell.^[74]

3.44 Justice Priest stated that Campbell should continue to be followed and there was nothing in Aubrey which compelled the conclusion that Campbell should be overruled.^[75] The DPP pursued the reference to the High Court.

The High Court’s decision

3.45 The High Court’s decision was split across three judgments.^[76] In their joint judgment, Chief Justice Kiefel and Justices Keane and Gleeson considered Campbell to be wrong.^[77] In their view, recklessness for offences other than murder requires that an accused had foresight of the possibility of relevant consequences and proceeded nevertheless.^[78]

3.46 Justices Gageler, Gordon and Steward in a joint judgment concluded that the foresight of probability test as per Campbell should stand in Victoria unless addressed by the legislature.^[79] Justice Edelman agreed that ‘Unless and until it is altered by legislation, the meaning of “recklessly” in s 17… is that stated by the Court of Appeal in R v Campbell’.^[80]

The re-enactment presumption

3.47 As part of their reasoning, Justices Gageler, Gordon and Steward relied on the re-enactment presumption, which holds that where parliament re-enacts words that have already been given a meaning, it is presumed that parliament intended those words to carry the same meaning.^[81] The Court of Appeal also relied on this presumption.

3.48 The High Court discussed two key legislative changes in Victoria:

• amendments in 1997 to the maximum penalties for a range of offences including offences against the person^[82]

• amendments in 2013 which introduced new offences where serious injury was caused in circumstances of ‘gross violence’, and new definitions of ‘injury’ and ‘serious injury’.^[83]

3.49 Justices Gageler, Gordon and Steward observed that:

even if, when s 17 was enacted, the mental element of recklessness, consistent with Crabbe, should have been interpreted as the possibility and not probability of relevant consequences, the 1997 and 2013 amendments were based on the nature and extent of the criminality and culpability of a contravention of s 17 as stated in Campbell (which followed Nuri), not Crabbe. Those amendments, and the basis for those amendments, cannot be put to one side.^[84]

3.50 In considering the application of the re-enactment presumption, Justices Gageler, Gordon and Steward also observed that:

temporal proximity between a judicial interpretation and subsequent enactment may be significant. The 1997 amendments were made just two years after Campbell was decided. And while the 2013 amendments were made many years after the decision of the Court of Appeal in Campbell, many subsequent decisions of the Court of Appeal which applied Campbell were decided contemporaneously with those amendments.^[85]

3.51 Addressing the significance of the 2013 amendments, Justices Gageler, Gordon and Steward found that:

[the amendments] could only be understood on the basis that the legislature was aware of, and accepted, the Nuri (and thus the Campbell) interpretation for the mental element of recklessness.^[86]

Victoria’s distinctive approach

3.52 There have been ‘dramatic divergences of view and differences of opinion at the highest judicial levels’ about the definition of recklessness in criminal law.^[87] The meaning ascribed to the concept of recklessness has varied over time and across jurisdictions, as outlined above and in Chapter 6.

3.53 The definition of recklessness in Victoria has developed in its own distinct way and has evolved over time. Victoria has adopted a threshold requiring foresight of ‘probable’ harm for modern offences against the person. The current test has been in operation for nearly three decades and a substantial and settled jurisprudence exists based on that test.

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1. R v Campbell [1995] VSC 186; (1997) 2 VR 585 (‘Campbell’).

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2. These offences were ‘copied from the consolidating English Offences Against the Person Act of 1861 but the roots of some of the offences lie in the eighteenth century or even earlier. The original offences [were] augmented in Victoria in a piecemeal fashion, usually in response to specific events of the day.’: Victoria, Parliamentary Debates, Legislative Assembly, 22 October 1985, 1039, (Mr Mathews, Minister for Police and Emergency Services).

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3. R v Cunningham (1957) 2 QB 396, 399–400 (Byrne, Slade and Barry JJ); In R v Lovett, Justice Harris referred to ‘the practice which prevailed in Victoria for many years before 1957. The practice was to direct juries that an unlawful and malicious wounding was committed by [someone] who in fact did an unlawful act which caused a wound, intending to do that act, and in the knowledge that it was unlawful. It was not the practice to add a further direction that the accused must have intended to cause the wound or to have had a foresight of the likelihood of a wound and acted recklessly notwithstanding.’: R v Lovett [1975] VR 488, 489 [42]–[50] (Harris J) citing R v Smyth [1963] VR 737, 739.

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4. R v Cunningham (1957) 2 QB 396. This case concerned the offence of unlawfully and maliciously causing a person to take a noxious thing: Offences Against the Person Act 1861 (UK), 24 & 25 Vict, c.100, s 23 (E & W & NI).

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5. R v Cunningham (1957) 2 QB 396, 399–400 (Byrne, Slade and Barry JJ) (emphasis added).

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6. R v Coleman [1990] 19 NSWLR 467. This case concerned the offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse: Crimes Act 1900 (NSW) s 61c.

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7. R v Coleman [1990] 19 NSWLR 467, 476–7 [F]-[A] (Hunt J), discussing Kenny’s Outlines of Criminal Law, 16th ed (1952).

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8. Ibid 477 [A]-[B] (Hunt J), quoting Kenny’s Outlines of Criminal Law, 16th ed (1952) 163.

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9. Ibid 478 [B] (Hunt J).

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10. R v Whitehead [1960] VR 12. This case concerned the offence of setting fire unlawfully and maliciously to a dwelling-house: Crimes Act 1958 (Vic) s 197.

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11. R v Whitehead [1960] VR 12, 13 (Hudson J) (emphasis added).

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12. R v Smyth [1963] VR 737. This was a ruling concerning an application for a directed acquittal on a charge of unlawful and malicious wounding.

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13. Ibid 739 [24]-[33] (Sholl J).

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14. Ibid.

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15. R v Lovett [1975] VR 488. This case concerned the offence of unlawfully and maliciously inflicting grievous bodily harm: Crimes Act 1958 (Vic) s 19A.

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16. R v Kane [1974] VR 759. This case concerned the offence of malicious wounding: Crimes Act 1958 (Vic) s 19.

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17. R v Lovett [1975] VR 488, 493–4 (Harris J); R v Kane [1974] VR 759, 760 (Gowans, Nelson and Anderson JJ).

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18. R v Campbell (1997) VR 585, 593 (Hayne JA and Crockett AJA). ‘These are relatively old cases and concerning the now repealed offences of unlawful and malicious wounding or unlawful and malicious infliction of grievous bodily harm. The spirit of the decision in Crabbe indicates that such cases should not be applied to the offence of recklessly causing serious injury. 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’.

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19. Crimes (Amendment) Act 1985 (Vic).

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20. Victoria, Parliamentary Debates, Legislative Assembly, 22 October 1985, 1039, (Mr Mathews, Minister for Police and Emergency Services).

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21. Ibid 1039–1040.

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22. Ibid 1040.

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23. Ibid.

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24. Ibid 1041; Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980).

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25. Crimes Act 1958 (Vic) ss 16–18.

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26. Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980) 3 [6], 5 [12]. The essential elements proposed by the Criminal Law Revision Committee for a statutory definition of recklessness were: (i) the accused foresaw that their act might cause the particular result, and (ii) the risk of causing that result which they knew they were taking was, on an objective assessment, an unreasonable risk to take in the circumstances known to the accused.

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27. Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980) 3 [6].

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28. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [63]; (2021) 274 CLR 177, 25–26 [63] (Edelman J) .

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29. R v Nuri [1990] VR 641.

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30. R v Campbell (1997) 2 VR 585.

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31. R v Crabbe [1985] HCA 22; (1985) 156 CLR 464. This was an appeal from the Federal Court of Australia after a trial in the Supreme Court of the Northern Territory.

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32. R v Crabbe [1985] HCA 22, [7] discussing; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107; La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62.

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33. R v Coleman [1990] 19 NSWLR 467, 475 (E) (Hunt J). Justice Hunt noted that the general acceptance in Australia appears to have flowed from the decision of the English Court of Criminal Appeal in R v Cunningham (1957) 2 QB 396 as explained by that Court in R v Mowatt (1968) QB 421, 426.

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34. R v Crabbe [1985] HCA 22, [7] citing R v Jakac [1961] VR 367; R v Sergi [1974] VR 1; Nydam v The Queen [1977] VR 430; R v Windsor [1982] VR 89; R v Hallett [1969] SASR 141 (emphasis added).

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35. R v Crabbe [1985] HCA 22, [9]. This is the position as long as no statutory provision affects it, and if the person acts without lawful justification or excuse. The Judicial College of Victoria’s Criminal Charge Book states: ‘In Victoria, the degree of harm that must be intended [or risked] is “really serious injury”’ and ‘the meaning of “really serious injury” is a matter for the jury to determine … The law gives only very general assistance to juries in this regard’: Judicial College of Victoria, ‘7.2.1 Intentional or Reckless Murder’, Victorian Criminal Charge Book (Online Manual. 27 March 2019) [51], [54] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4478.htm> (citations omitted).

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36. R v Crabbe [1985] HCA 22, [8]; The Court acknowledged there had been some ‘controversy’ about whether a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur, but said it was unnecessary to enter upon that discussion: ibid citing R v Hyam [1975] AC 55, 82.

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37. Ibid.

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38. Crimes Act 1958 (Vic) s 22.

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39. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [72]; (2020) 284 A Crim R 19, 37 [72] (Justice Priest).

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40. R v Nuri [1990] VR 641, 643 citing R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 (emphasis added).

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41. Crimes Act 1958 (Vic) s 23; Filmer v Barclay; Mansfield v Arnold [1994] VicRp 59; (1994) 2 VR 269, 275–6 (McDonald J) citing R v McCarthy (Supreme Court of Victoria Court of Criminal Appeal, Brooking, Teague and Coldrey JJ, 4 November 1993); and R v Nuri [1990] VR 641.

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42. R v Sofa [1990] Vic SC 483.

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43. Crimes Act 1958 (Vic) s 20; R v Sofa [1990] Vic SC 483, 11–12 (Crockett J, O’Bryan and McDonald JJ agreeing at 14); The Office of Public Prosecutions cited Sofa in its submission to support the proposition that ‘the Court of Criminal Appeal held that Nuri had no application to the offence of threat to kill’: Submission 10 (Office of Public Prosecutions). But the Court in Sofa, in saying that Nuri had no application, was referring to the fact that the offence of threat to kill did not require the additional objective element that an endangerment offence requires. The Court in Sofa still applied a probable test for the subjective element of recklessness.

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44. Crimes Act 1958 (Vic) s 17.

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45. R v Campbell (1997) VR 585, 592 (Hayne JA and Crockett AJA, Phillips CJ agreeing at 586).

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46. Ibid 593 (Hayne JA and Crockett AJA).

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47. Ibid (Hayne JA and Crockett AJA) citing R v Smyth [1963] VR 737; R v Kane [1974] VR 759; R v Lovett [1975] VR 488.

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48. R v Campbell (1997) 2 VR 585, 593 (Hayne JA and Crockett AJA).

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49. Ibid 592 (Hayne JA and Crockett AJA) (emphasis in original); See, for example, R v Westaway (Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Murphy and Beach JJ, 24 September 1991) which concerned an offence of recklessly causing serious injury. The Court said that the accused’s act was ‘reckless with a foresight of the probable consequences that [the victim] would be seriously injured’; In R v Totivan (Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway JA and Smith AJA, 15 August 1996) 16, which concerned recklessly causing injury, the prosecution conceded that ‘being aware that a person may be injured’ was a misdirection by the trial judge, because ‘injury must be foreseen as a probable and not merely a possible consequence’.

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50. R v Campbell (1997) 2 VR 585, 592 (Hayne JA and Crockett AJA).

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51. Ibid (Hayne JA and Crockett AJA); Victoria, Parliamentary Debates, Legislative Assembly, 22 October 1985, 1040, (Mr Mathews, Minister for Police and Emergency Services).

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52. R v Campbell (1997) 2 VR 585, 592 (Hayne JA and Crockett AJA, Phillips CJ agreeing at 586) (emphasis in original).

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53. 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 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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54. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181; Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26. The Director’s reference was brought pursuant to the Criminal Procedure Act 2009 (Vic) s 308.

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55. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181 [3] (Maxwell P, McLeish and Emerton JJA) (emphasis in original). The emphasised words were added by leave in the course of argument.

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56. Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305. This was an appeal to the High Court from the New South Wales Court of Criminal Appeal, after a trial in the District Court of New South Wales. The case concerned the offence of maliciously inflicting grievous bodily harm: Crimes Act 1900 (NSW) s 35(1)(b). The appellant caused the victim to contract human immunodeficiency virus (HIV).

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57. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [3] (Maxwell P, McLeish and Emerton JJA).

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58. R v Coleman [1990] 19 NSWLR 467, 476 [B] – [C] (Hunt J, Finlay and Allen JJ agreeing at 489 [C]) citing R v Cunningham (1957) 2 QB 396; R v Mowatt (1968) QB 421; In Coleman, Justice Hunt made observations as to the need to replace the concept of malicious acts in the Crimes Act 1900 (NSW) with acts done intentionally or recklessly, but ‘malice’ was not removed as a fault element for various offences in New South Wales until 2007: Crimes Amendment Act 2007 (NSW).

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59. Blackwell v The Queen [2011] NSWCCA 93; (2011) 81 NSWLR 119. This case concerned the offence of recklessly causing grievous bodily harm: Crimes Act 1900 (NSW) s 35.

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60. Blackwell v The Queen [2011] NSWCCA 93 [78] (Beazley JA) (James J agreeing at [120], Hall J agreeing at [170]). For a short time in New South Wales following Blackwell, the prosecution had to prove that an accused person foresaw the possibility of the specific harm identified in the offence. But since 2012, only foresight of the possibility of actual bodily harm is required, see Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW).

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61. Aubrey v The Queen [2017] HCA 18.

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62. Ibid [47] (Kiefel CJ, Keane, Nettle and Edelman JJ, Bell J agreeing at [53]) citing R v Crabbe (1985) 156 CLR 464, 469.

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63. Aubrey v The Queen [2017] HCA 18, [47] (Kiefel CJ, Keane, Nettle and Edelman JJ).

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64. Consultation 5 (Judicial College of Victoria). We note that a recent version of Indictable Offences in Victoria states that Aubrey ‘appears to overturn a significant strand of Victorian authority on recklessness’ and ‘for the present, the law in Victoria should be regarded as to some degree uncertain.’: Ian Freckelton and Mirko Bagaric, Thomson Reuters, Indictable Offences in Victoria (online at 22 November 2023) [18.100]. While the specific basis of any uncertainty is not identified, the application of the Campbell test for offences against the person in Victoria is settled (Chapters 10 and 12). The Judicial College of Victoria told us that the cautionary note about Aubrey was removed from the Criminal Charge Book after the DPP Reference as that case ‘settled the issue’.

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65. Transcript of charge to jury and entry of verdict, (case name withheld) (County Court of Victoria, August 2019).

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66. Crimes Act 1958 (Vic) s 16.

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67. Ibid s 17.

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68. An accused acts in self-defence if they believe that their conduct is necessary to defend themselves, and it is a reasonable response in the circumstances as the accused perceived them at the time: Crimes Act 1958 (Vic) s 322K. The prosecution bears the onus of disproving self-defence.

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69. Crimes Act 1958 (Vic) s 18. In a trial for any offence other than treason or murder, the jury may return an alternative verdict for another offence within the jurisdiction of the court if the allegations on the indictment amount to or include (whether expressly or impliedly) an allegation of that other offence: Criminal Procedure Act 2009 (Vic) s 239(2).

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70. Consultation 5 (Judicial College of Victoria).

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71. This history of the reference is set out in Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181 [57]-[58] (Priest JA).

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72. Ibid [3] (Maxwell P, McLeish and Emerton JJA) (emphasis added).

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73. This position was refined in the course of oral argument: Ibid [42] (Maxwell P, McLeish and Emerton JJA) (emphasis added).

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74. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181 [6] (Maxwell P, McLeish and Emerton JJA, Kaye JA agreeing at [127]).

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75. Ibid [60] (Priest JA).

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76. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26.

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77. Ibid [7] (Kiefel CJ, Keane and Gleeson JJ).

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78. Ibid [35] (Kiefel CJ, Keane and Gleeson JJ).

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79. Ibid [59] (Gageler, Gordon and Steward JJ).

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80. Ibid [99] (Edelman J) quoting Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [6] (Maxwell P, McLeish and Emerton JJA, Kaye JA agreeing at [127]).

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81. Ibid [51] (Gageler, Gordon and Steward JJ). The Court of Appeal also relied on this presumption.

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82. Sentencing and Other Acts (Amendment) Act 1997 (Vic).

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83. Crimes Amendment (Gross Violence Offences) Act 2013 (Vic).

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84. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [57] (Gageler, Gordon and Steward JJ).

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85. Ibid [54] (Gageler, Gordon and Steward JJ) (citations omitted).

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86. Ibid [50] (Gageler, Gordon and Steward JJ).

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87. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [32] (Maxwell P, McLeish and Emerton JJA) citing
    
    R v G [2003] UKHL 50; [2004] 1 AC 1034.

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