Recklessness: Report

5. Other recklessness offences in Victoria

Overview

• The focus of our report is on the definition of recklessness for offences against the person in Part I, Division 1(4) of the Crimes Act 1958 (Vic). Recklessness is also an element of many other Crimes Act, common law, and statutory offences.

• Some offences use the word ‘likely’, and some offences use the word ‘probably’, both consistent with the Campbell recklessness test.

• Culpable driving includes a definition of recklessness close to the definition used in the Criminal Code Act 1995 (Cth). Two identity crimes in the Crimes Act also draw on this language.

• Despite some differences in language, the meaning of recklessness is relatively consistent across the Crimes Act.

Recklessness across the Crimes Act

5.1 Many offences in the Crimes Act include recklessness as a fault element (see Appendix D).

5.2 The Judicial College of Victoria (JCV)’s Criminal Charge Book states that the following definition, based on R v Campbell (‘Campbell’), ‘applies to all Victorian offences involving recklessness’:

an accused is said to have been reckless if they acted in the knowledge that a particular harmful consequence would probably result from their conduct, but they decided to continue their actions regardless of that consequence.^[1]

5.3 Unless an offence explicitly contains a different definition, the Criminal Charge Book assumes that the Campbell common law definition applies. The Criminal Bar Association (CBA) told us:

When you see recklessness in other areas of the Crimes Act, the assumption is that the well-understood definition that has suffused the criminal law in Victoria is the definition intended by Parliament.^[2]

5.4 Barrister Dermot Dann KC and solicitor Felix Ralph, who represented the acquitted person in the DPP Reference case, describe ‘much of the architecture of the criminal law in this state’ as being ‘founded on the probability test of recklessness’. They say the concept is ‘central’ to Victoria’s criminal justice landscape as ‘an element of so many offences’. They also refer to the probability test as the ‘settled meaning’ of recklessness in this state.^[3]

5.5 Some stakeholders drew our attention to specific Crimes Act offences outside Part I, Division 1(4), where the Campbell definition has been applied.^[4] Others mentioned such offences in passing.^[5]

5.6 The Office of Public Prosecutions (OPP) recognises that the probability test is ‘clearly dominant’. But it said there are some offences where it is not always applied. It referred us to cases of aggravated burglary^[6] and threat to kill^[7] where it said the court suggested that a possibility test applies.^[8]

Aggravated burglary

5.7 The aggravated burglary cases cited by the OPP involve comments made during sentence appeals.^[9] They do not involve direct analysis of the threshold for recklessness. As the OPP acknowledges, other cases involving aggravated burglary apply the probability threshold.^[10] The JCV’s suggested jury directions for aggravated burglary refer to foresight of probability, not possibility.^[11] When discussing the implications of adopting a possibility test, Dermot Dann and Felix Ralph take for granted that the current test for aggravated burglary is probability.^[12]

5.8 The CBA suggested that when the form of aggravation of ‘knowing or being reckless as to the presence of a person in a building’ was introduced to the offence of aggravated burglary,^[13] it was clearly Parliament’s intention to set the recklessness threshold at the level of probability rather than a lower threshold.^[14] The CBA’s argument implies that if the threshold for recklessness was lower, Parliament would not have legislated recklessness as an alternative ground of proof to knowledge, which sets a high bar for criminal responsibility. On its face, a high bar is appropriate given knowledge or recklessness can be used to establish a circumstance that makes a serious offence even more serious, and has a maximum penalty of 25 years imprisonment.

Threats to kill

5.9 In relation to threats to kill, the OPP stated that the Court of Appeal ‘applied a possibility test in 2012’.^[15] In our view, the Court did not go so far. The Court made a reference to the accused being ‘recklessly indifferent to [the] possibility’ that the victim would believe the threat. But this comment had no bearing on the Court’s finding concerning the relevant ground of appeal, nor was it applied to the facts.

A result or circumstance that is ‘likely’

5.10 There are some Crimes Act offences in which the language of recklessness does not appear. Instead, the offence refers to a ‘likely’ circumstance, or conduct that a person knows ‘would be likely’ to cause harm. Examples are the stalking offence^[16] and the offence of using intimidation because of a person’s involvement in a criminal investigation or proceeding.^[17] The use of ‘likely’ in these offences captures the concept of recklessness using the same threshold as the Campbell definition.

A result or circumstance that is ‘probable’

5.11 Some Crimes Act offences attach culpability to intentionally doing an act while being aware of or knowing or believing that a result or circumstance is probable. This equates to recklessness about the result or circumstance and uses the same threshold as applies in other Victorian offences.

Statutory complicity

5.12 Complicity provisions were first legislated in the Crimes Act in 2014. They replaced common law complicity, which included ‘extended common purpose’.^[18] For many crimes, including murder, extended common purpose made it easier to convict a secondary offender than a primary offender. For example, a person who agreed to commit an armed robbery would be liable for murder if they foresaw the mere possibility that an accomplice would shoot someone, with murderous intent, during the robbery.^[19]

5.13 Simplified statutory complicity provisions now create liability for a person who:

• enters into an agreement to commit an offence and

• foresees the probability of another offence occurring in the course of carrying out the agreed offence.^[20]

5.14 When introducing the provisions, the government noted that:

Focussing on ‘probability’ rather than ‘possibility’ is consistent with general principles of criminal liability, and will result in simpler jury directions.^[21]

5.15 Dr Greg Byrne told us that:

the test of probability for complicity was designed to simplify the laws and be consistent with existing laws, indicating that parliament understood that recklessness involved a test of … foresight of the probability of a circumstance or result.^[22]

5.16 The OPP recognised that introducing a possibility threshold for offences against the person would lead to inconsistency with the ‘probability’ threshold for statutory complicity, and ‘could present some complexity’.^[23] But it said that ‘it is not unreasonable for the test for accessorial liability to be calibrated more narrowly.’^[24] The OPP did not advocate a change in the definition for statutory complicity.^[25]

Sexual offences – Part I Division 1 (8A)–(8F)

5.17 Some sexual offences in Part I, Division 1 (8A)–(8F) of the Crimes Act attach culpability to intentionally doing an act while being aware of, or knowing or believing, that a result or circumstance is probable. Our terms of reference ask us to consider the approach and reasons for using ‘probably’ to express the fault element of recklessness in these offences. There are 22 relevant offences.^[26]

5.18 Section 43, ‘threat to commit a sexual offence’, was introduced by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic). When that legislation came into effect, the government explained that section 43 was ‘essentially modelled on the offences of threat to kill and threat to inflict serious injury in sections 20 and 21 of the Crimes Act.’^[27] However, rather than referring to recklessness, section 43 refers to making a threat believing that the other person will ‘probably believe’ the threat will be carried out.^[28] The rationale for using the language of probable belief was to clarify the meaning of the recklessness fault element.^[29]

5.19 The remaining offences that use ‘probably’ to express a fault element were introduced by the Crimes Amendment (Sexual Offences) Act 2016 (Vic). The Act was described by the government as building on the 2014 Act and its project of ‘clarifying and modernising existing [sexual offence] laws’, and ‘closing gaps in the law.’^[30] Explanatory material again highlighted the use of ‘probably’ to express the fault element of recklessness.^[31]

5.20 In its submission, the County Court said that:

The use of the word ‘probably’ to express the fault element of recklessness for sexual offences brings a harmonious definition, for the most part, to offences under the Crimes Act …^[32]

5.21 The OPP commented that the use of ‘probably’ in these sexual offences:

was most likely to ensure consistency with the Nuri/Campbell understanding of recklessness in Victoria.^[33]

5.22 The use of ‘probably’ in these offences was clearly viewed by legislators as consistent with the well-established common law definition of recklessness. In our view, it is implausible that its use was solely a reflexive recourse to the established position, or a focus on achieving modernity and clarity with no concern for the substance of the offences.

5.23 The offences were introduced following ‘a comprehensive review [over several years] of Victoria’s sexual offence law’.^[34] As well as introducing the threat offence, the 2014 Act introduced an objective fault element for rape and sexual assault (‘no reasonable belief in consent’),^[35] and the 2016 Act added to the list of consent-negating circumstances.^[36]

5.24 These reforms ‘move[d] beyond the old subjective approach’ to consent,^[37] and made substantive changes to the scope of rape and sexual assault. They were very significant reforms. If the review process had identified a need to change the threshold for recklessness, this would almost certainly have been reflected in the amending legislation. In our recent inquiry into sexual offences, neither the threshold for recklessness nor the use of ‘probably’ to express this threshold were raised as concerns.^[38]

5.25 In its submission, the OPP acknowledged that the sexual offence provisions ‘have been the subject of considerable change in recent years.’ Given this, it said it did ‘not advocate for further reform to the probability fault element as it appears in Part I, Division 1(8A)–(8F) of the Crimes Act’.^[39]

Crimes Act offences using ‘substantial risk’

Culpable driving causing death

5.26 The offence of culpable driving causing death has its own distinctive statutory definition of recklessness,^[40] close to the Commonwealth definition that we discuss in Chapter 6.^[41] A person commits reckless culpable driving if they consciously and unjustifiably disregard a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from their driving.^[42]

5.27 In R v McGrath,^[43] Justice Callaway said that the state of mind for recklessness in culpable driving causing death is the same as for reckless murder.^[44] Applying this reasoning in R v Fieldman,^[45] Justice Kaye ruled that the statutory definition of recklessness for culpable driving causing death does not materially change the common law; it still requires the prosecution to prove that the defendant knew their driving would probably cause the death of, or really serious injury to, another person.^[46]

5.28 However, in Pasznyk v The Queen,^[47] Justice Priest said that the state of mind necessary for reckless culpable driving is plainly not the same as for reckless murder, because section 318(2)(a) of the Crimes Act:

requires disregard of a risk (albeit substantial) that death or really serious bodily injury may result.^[48]

5.29 In practice, these differences have limited significance as it is relatively rare for recklessness to be used in charges of culpable driving.^[49]

Identity crimes

5.30 Two identity crimes do not use the language of recklessness, but instead refer to awareness of a ‘substantial risk’.^[50] The offences involve use of identification information with the intention of committing an indictable offence where the person is:

aware that, or aware that there is a substantial risk that, the information is identification information …^[51]

5.31 The offences are based on recommendations made in a Model Criminal Law Officers’ Committee report.^[52] The report’s model offences did not include any ‘recklessness’ elements. The model offences refer simply to dealing in identification information with the intention of committing an indictable offence.^[53] As we discuss below, ‘a translation process’ has occurred as part of the integration of model national offences into Victorian law.^[54]

Translating national offences: proceeds of crime, betting, bushfire and data modification offences

5.32 In the DPP Reference case, Justice Edelman cast doubt on whether the probability definition applies to recklessness offences beyond offences against the person:

the error in Campbell in relation to section 17 has not necessarily entrenched this meaning of recklessness for all other offences in the Crimes Act.^[55]

5.33 Justice Edelman drew attention to four offences: dealing with proceeds of crime,^[56] concealing conduct that would corrupt a betting outcome,^[57] causing a bushfire,^[58] and the unauthorised modification of data to cause impairment.^[59] He noted that the offences:

were enacted in nearly identical terms [in Victoria and New South Wales] and thus plainly by reference to each other with the need for coherent operation.^[60]

5.34 The bushfire and data modification offences were based on the Australian Model Criminal Code.^[61] The betting offence was a product of the National Policy on Match Fixing in Sport.^[62] The proceeds of crime offence ‘clarified’ and replaced offences in the Confiscation Act 1997 (Vic) in the context of a Council of Australian Governments agreement regarding reform of money laundering laws.^[63]

5.35 The modification of data offence was introduced in Victoria in the same amending legislation as the bushfire offence.^[64] The context for their introduction was an agreement reached by the Standing Committee of Attorneys-General:

that the states might like to increase, ramp up or improve their legislation in respect of [these] offences. The states agreed to try to work together to bring their legislation on a number of different offences up to agreed standards.^[65]

5.36 There was recognition among different jurisdictions of the need to attach serious criminal liability to the relevant behaviour, and for ‘a coordinated and uniform national approach to these serious crimes’.^[66] However, Parliament did not expressly adopt the definitions or interpretations of other states. Victoria has retained its approach to the criminal law, including in relation to recklessness.

5.37 As Dr Greg Byrne told us, offences based on the Model Criminal Code ‘required adaptation to fit with Victoria’s laws in relation to recklessness’.^[67] According to Dr Byrne:

Because the States have not adopted [the Commonwealth and Model Criminal Code] definitions [of recklessness], there is always a translation process …^[68]

5.38 The JCV and the CBA both support the view that the probability threshold applies to these four offences.^[69] Dermot Dann and Felix Ralph argue that Victorian offences have been specifically ‘calibrated on the current law relating to recklessness’;^[70] that is, a probability threshold.

5.39 In relation to the bushfire offence, the Criminal Charge Book says:

the [Crimes] Act does not contain any affirmative definition of recklessness. It is likely that the conventional legal meaning of that word applies. The prosecution must prove that the accused foresaw the probability that the fire would spread to vegetation on property belonging to another.^[71]

5.40 When the amending legislation was being debated in Parliament, a Member for the Opposition noted:

At a briefing we were informed by the government representatives—and this matter was raised specifically—that the common-rule laws [sic] in relation to recklessness will apply. ^[72]

5.41 The courts have not explicitly addressed the meaning of recklessness in the proceeds of crime offence.^[73] In their submission, Dermot Dann and Felix Ralph said that if a lower test than probability is applied, it would create ‘a self-evidently dramatic expansion’ of the offence.^[74]

5.42 When the introduction of the offence was being debated in Parliament, it was noted that there is:

plenty of case law now which adequately defines ‘reckless’ within the terms of legislation such as this … it is a well-established legal term.^[75]

5.43 Both the second reading speech and the explanatory memorandum also use language drawn from the Commonwealth Code context:

To be reckless, a person must be aware that there is a substantial risk that the property is proceeds of crime, and decide to deal with the property anyway despite this risk.^[76]

5.44 However, this likely reflects the origins of the offence in the Model Criminal Code. In our view, it does not indicate an intention to import new fault elements from the Code. And as the OPP acknowledged in its submission:

While many commentators agree that a ‘substantial risk’ can include a ‘possible risk’, it has also been described as ‘a possibility, chance or likelihood’.^[77]

5.45 The explanatory materials do not provide additional guidance regarding the betting^[78] and modification of data offences.^[79] In our view, there is contextual support for concluding that the probability test applies to all four of the offences mentioned by Justice Edelman, consistently with the common law position in Victoria since Campbell.

Recklessness is mostly consistent across the Crimes Act

5.46 While the OPP says that consistency is ‘preferable’ ‘if it [is] achievable’, the OPP suggests ‘the reality is that recklessness is not consistently defined in the Crimes Act, or other Victorian statutes.’^[80] It claims that legislating its proposed definition of recklessness for offences against the person (see Chapter 7) would not produce greater inconsistency ‘than the inconsistency that already exists in Victorian law.’^[81]

5.47 Our review suggests that the concept of ‘recklessness’ is relatively consistent across the Crimes Act. In our view, the introduction of a new test for offences against the person would generate significant inconsistency. We discuss the benefits of consistency in Chapters 10 and 13.

Recklessness outside the Crimes Act

5.48 ‘Recklessness’ is also an element of statutory offences outside the Crimes Act (see Appendix E). For most of these offences, recklessness is not legislatively defined and its interpretation relies on the common law.^[82] Because our reference is confined to Crimes Act offences, we have not investigated Parliament’s intention each time ‘recklessness’ appears outside the Crimes Act.

5.49 Some offences outside the Crimes Act are expressly based on offences against the person. Section 32 of the Occupational Health and Safety Act 2004 (Vic) creates the offence of recklessly endangering persons at a workplace.^[83] It ‘applies the same standards, tests and penalty as section 23 of the Crimes Act’.^[84] We discuss the operation of this offence further in Chapter 9.

Nationally consistent laws

5.50 The OPP referred us to two Victorian Acts that implement nationally consistent laws. It said that a Commonwealth ‘substantial risk’ test for recklessness clearly applies in the first, but it is ‘not entirely clear whether the Commonwealth test or the Victorian Nuri/Campbell test would apply’ to the second.^[85] The Marine (Domestic Commercial Vessel National Law Application) Act 2013 (Vic) applies Commonwealth law relating to marine safety and domestic commercial vessels as a law of Victoria.^[86] However, we note that offences are deemed to be offences against the Commonwealth, not Victorian law.^[87] The Commonwealth criminal law framework applies, including the Criminal Code Act 1995 (Cth) definition of recklessness and other fault elements and defences.^[88] The Co-operatives National Law Application Act 2013 (Vic) applies a national law relating to co-operatives.^[89] Offences under the Act are Victorian offences. As we discuss above, a translation process occurs when adopting national laws in Victoria. However, because these offences were not the focus of our terms of reference, we have not investigated this question further or reached any strong conclusions about the definition of recklessness that applies. ^[90]

Recklessness in relation to improperly obtained evidence

5.51 In 2001 the Victorian Court of Appeal cited a passage about recklessness from a New South Wales case. The passage had been used by a Victorian County Court trial judge in ‘setting out the appropriate test for recklessness’ in relation to improperly obtained evidence under the Evidence Act 2008 (Vic):

[Recklessness] must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a ‘don’t care’ attitude, generally.^[91]

5.52 The Court of Appeal described this passage as ‘accord[ing] with the conventional understanding of recklessness within the criminal law’, clarifying that ‘Conduct would be reckless if the [police] officer had foresight that it might be illegal but proceeded with indifference as to whether that was so.’^[92]

5.53 Recklessness is not relevant as an element of a criminal offence in cases concerned with the admissibility of improperly obtained evidence. The significance of recklessness arises because the court is required to consider several factors in weighing up the desirability of admitting improperly obtained evidence. These factors include ‘whether the impropriety … was deliberate or reckless’.^[93] This is a question to be determined on the civil standard of proof: the balance of probabilities.^[94]

5.54 The Victorian Court of Appeal’s description of the New South Wales definition as consistent with ‘the conventional understanding of recklessness within the criminal law’ does not displace the well-established dominance of the Campbell definition of recklessness for offences against the person in this state, as consistently confirmed by the Court of Appeal itself.

1. 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> (emphasis in original) citing 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 [1995] VSC 186; (1997) 2 VR 585; R v Nuri [1990] VR 641; R v Kalajdic; R v Italiano [2005] VSCA 160; (2005) 157 A Crim R 300.

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2. Consultation 4 (Criminal Bar Association).

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3. Submission 12 (Dermot Dann KC and Felix Ralph).

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4. Ibid; Dr Greg Byrne mentioned several Crimes Act offences, including the offences involving controlling dangerous, menacing, or restricted breed dogs (ss 319B and 319C). Dr Byrne noted that the Explanatory Memorandum elaborated on the phrase, ‘where the person is reckless’, by adding ‘or aware of the probability’: Submission 18 (Dr Greg Byrne PSM citing Explanatory Memorandum, Crimes and Domestic Animals Acts Amendment (Offences and Penalties) Bill 2011 (Vic)). There are different views about the construction of sections 319B and 319C of the Crimes Act and whether the offences are a specialised form of the endangerment offences in sections 22 and 23, but these debates do not draw into question the application of the probability threshold for recklessness: Ian Freckelton and Mirko Bagaric, Thomson Reuters, Indictable Offences in Victoria (online at 22 November 2023) [211.200]; Patrick Leader-Elliot, ‘Causing Death by Dangerous Dog: Victoria’s New Offences for Failing to Control Prescribed Dogs’ (2013) 11 Macquarie Law Journal 125.

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5. Victoria Police referred to recklessly exposing an emergency worker to risk by driving (Crimes Act 1958 (Vic) s 317AE) and aggravated burglary (Crimes Act 1958 (Vic) s 77): Submission 7 (Victoria Police); The JCV referred to obtaining property by deception (Crimes Act 1958 (Vic) s 81): Consultation 5 (Judicial College of Victoria).

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6. Crimes Act 1958 (Vic) s 77.

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7. Ibid s 20.

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8. Submission 10 (Office of Public Prosecutions).

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9. Ibid citing Maslen v The Queen [2018] VSCA 90, [32] (Priest and McLeish JJA); Bonacci v The Queen; Vasile v The Queen [2012] VSCA 170, [9]; (2012) 224 A Crim R 194, 196 [9] (Neave, Mandie and Harper JJA); Le v The Queen [2010] VSCA 199, [4] (Harper JA). We note that in Le, Justice Harper assumed a ‘likelihood’ threshold, stating: ‘These were serious examples of the offence of aggravated burglary. In each case, entry was made into residential premises in the early hours of the morning when the only conclusion could be that the appellant was recklessly indifferent of the likelihood of someone being present’: at [32].

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10. The OPP cited the cases of Verde v The Queen [2009] VSCA 16; (2009) 193 A Crim R 211, 215 [21] (Nettle JA); R v Chimirri [2010] VSCA 57, [37] (Neave and Redlich JJA, Hollingworth AJA). See also R v Taylor [2004] VSCA 189 [42]; (2004) 149 A Crim R 399, 413 [42] (Charles and Nettle JJA).

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11. Judicial College of Victoria, ‘7.5.5.5 Charge: Aggravated Burglary Where Person Present’ Victorian Criminal Charge Book (Online Manual, 2022)<https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5145.htm>.

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12. Submission 12 (Dermot Dann KC and Felix Ralph).

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13. Introduced by Sentencing and Other Acts (Amendment) Act 1997 (Vic). The offence provision states: ‘Aggravated burglary—(1) A person is guilty of aggravated burglary if he or she commits a burglary and—(a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or (b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.’: Crimes Act 1958 (Vic) s 77(1). The fault element can be proven if the accused either ‘knew’ that another person was present in the building or was reckless about the presence of another person.

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14. Consultation 4 (Criminal Bar Association). In the CBA’s view, the offence of aggravated burglary treats ‘recklessness as equivalent to knowledge or intention’.

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15. Submission 10 (Office of Public Prosecutions) citing Macfie v The Queen [2012] VSCA 314, [22] (Harper JA).

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16. Crimes Act 1958 (Vic) s 21A(3)(a).

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17. Ibid s 257(2)(b)(i).

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18. Crimes Act 1958 (Vic) ss 323, 324. See also Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic) 13 [Clause 6] referring to ‘New section 323(1)(b) and (d)’ as ‘a form of recklessness’.

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19. Mark Weinberg, Judicial College of Victoria and Department of Justice, Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group (Report, August 2012) 85 <https://www.supremecourt.vic.gov.au/about-the-court/publications/simplification-of-jury-directions-project-report-weinberg-report>. See, eg, Clayton v R [2006] HCA 58; (2006) 231 ALR 500.

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20. Crimes Act 1958 (Vic) ss 323(1)(d), 324.

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21. Victoria, Parliamentary Debates, Legislative Council, 25 June 2014, 2130 (E J O’Donohue, Minister for Liquor and Gaming Regulation); Submission 18 (Dr Greg Byrne PSM). The introduction of the provisions was said to achieve alignment with ‘general principles of criminal responsibility.’ Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2014, 2836 (Mr Clark, Attorney General); Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, 13.

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22. Submission 18 (Dr Greg Byrne PSM).

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23. Submission 10 (Office of Public Prosecutions).

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24. Ibid.

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25. Ibid.

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26. Crimes Act 1958 (Vic) ss 43 (Threat to commit a sexual offence), 44 (Procuring sexual act by threat), 45 (Procuring sexual act by fraud), 47 (Abduction or detention for a sexual purpose), 48 (Sexual activity directed at another person), 49F (Sexual activity in the presence of a child under the age of 16), 49G (Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority), 49P (Abduction or detention of a child under the age of 16 for a sexual purpose), 49S (Facilitating a sexual offence against a child), 51B (Involving a child in the production of child abuse material), 51C (Producing child abuse material), 51D (Distributing child abuse material), 51H (Accessing child abuse material), 52D (Sexual activity in the presence of a person with a cognitive impairment or mental illness), 53B (Using force, threat etc. to cause another person to provide commercial sexual services), 53C (Causing another person to provide commercial sexual services in circumstances involving sexual servitude), 53D (Conducting a business in circumstances involving sexual servitude), 53E (Aggravated sexual servitude), 53G (Aggravated deceptive recruiting for commercial sexual services), 53R (Producing intimate image), 53S (Distributing intimate image) and 53T (Threat to distribute intimate image).

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27. Criminal Law Review, Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Discussion Paper, June 2015) 21 [9.2].

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28. The offence provision states: ‘Threat to commit a sexual offence—(1) A person (A) commits an offence if— (a) A makes to another person (B) a threat to rape or sexually assault B or a third person (C); and (b) A intends that B will believe, or believes that B will probably believe, that A will carry out the threat.’: Crimes Act 1958 (Vic) s 43(1).

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29. Criminal Law Review, Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Discussion Paper, June 2015) 21 [9.2].

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30. Criminal Law Review, Department of Justice and Regulation (Vic), Crimes Amendment Sexual Offences Act 2016: An Introduction (Discussion Paper, June 2017) 1.

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31. Ibid 58–9 (definition of fault element); see also 12 [5.2], 42 [8.3.4].

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32. Submission 15 (County Court of Victoria). The Court added that this ‘restricts consideration of case law from other jurisdictions’ but went on to discuss the benefits of having a consistent definition of recklessness in Victorian legislation.

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33. Submission 10 (Office of Public Prosecutions). The OPP added that this ‘understanding is the product of error’. We address this argument in Chapter 8.

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34. Criminal Law Review, Department of Justice and Regulation (Vic), Crimes Amendment Sexual Offences Act 2016: An Introduction (Discussion Paper, June 2017) iii.

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35. Ibid iii, 3 [2.2].

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36. Ibid 8 [4.5].

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37. Criminal Law Review, Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Discussion Paper, June 2015) 13 [7].

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38. Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021).

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39. Submission 10 (Office of Public Prosecutions).

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40. Crimes Act 1958 (Vic) s 318(2)(a).

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41. Criminal Code Act 1995 (Cth) s 5.4. However, the Commonwealth definition does not include reference to ‘consciously’ disregarding a risk. This comes from the Model Penal Code formulation in the United States (see Chapter 6).

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42. Crimes Act 1958 (Vic) s 318(2)(a).

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43. R v McGrath [1999] VSCA 197.

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44. Ibid [15] (Callaway JA).

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45. R v Fieldman (Ruling No 2) [2010] VSC 258; (2010) 55 MVR 573.

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46. Ibid [16]–[17], see also [24] (Kaye J).

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47. Pasznyk v The Queen [2014] VSCA 87; (2014) 43 VR 169.

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48. Ibid [49] (Priest JA) (emphasis in original).

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49. Ibid [44] (Priest JA); R v Fieldman (Ruling No 2) [2010] VSC 258, [26] (Kaye J); Moreover, although the offence has four forms of culpability—driving recklessly; negligently; under the influence of alcohol; or under the influence of a drug; it has a single maximum penalty. This indicates that ‘… the objective seriousness of each case … must be adjudged according to the factual circumstances peculiar to it’. It also means that the lines of culpability between the fault elements may be blurred: ‘although the mental element is clearly different, there may be factual elements which will render the criminality of a case of causing death by grossly negligent driving worse than that of some cases of causing death by reckless culpable driving.’: Pasznyk v The Queen [2014] VSCA 87, [8], [57] (Priest JA) citing R v Birnie [2002] VSCA 155; (2002) 5 VR 426.

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50. Crimes Act 1958 (Vic) ss 192B, 192C.

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51. Ibid ss 192B(1)(a), 192C(1)(a).

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52. Victoria, Parliamentary Debates, Legislative Council, 7 May 2009, 2197 (Mr Jennings, Minister for Environment and Climate Change). Model Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General, Identity Crime (Final Report, March 2008).

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53. Model Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General, Identity Crime (Final Report, March 2008) 25–26. Note that the equivalent offences in New South Wales adhere more closely to the model offences than Victoria’s offences, and do not mention ‘substantial risk’ or ‘recklessness’: Crimes Act 1900 (NSW) ss 192J, 192K.

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54. Consultation 9 (Dr Greg Byrne PSM). Dr Byrne, who was a contributor to the Model Criminal Law Officers’ Committee Identity Crime report, told us that there is necessarily a ‘translation process’ that occurs when states and territories legislate offences based on the Model Criminal Code.

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55. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [100]: ‘Without more, it is unlikely that the Campbell decision will require identical elements of other offences to be treated differently the moment that a person steps across the border between New South Wales and Victoria.’ (Edelman J).

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56. Crimes Act 1958 (Vic) s 194(3).

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57. Ibid s 195E(1)(a).

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58. Ibid s 201A.

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59. Ibid s 247C(c).

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60. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [100] (Edelman J).

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61. For ss 201A and 247C(c), see Explanatory Memorandum, Crimes (Property Damage and Computer Offences) Bill 2003 (Vic) 2003; Model Criminal Code Officers Committee, Model Criminal Code Chapter 4 Damage and Computer Offences and Amendments to Chapter 2: Jurisdiction (Report, January 2001).

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62. For s 195E(1)(a), see Explanatory Memorandum, Crimes Amendment (Integrity in Sports) Bill 2013 (Vic) 2013; Sports Ministers of Australia, National Policy on Match-Fixing in Sport (Report, 10 June 2011).

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63. Victoria, Parliamentary Debates, Legislative Council, 2 December 2003, 2036–2037 (Ms Mikakos, Member for Jika Jika Province).

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64. Crimes (Property Damage and Computer Offences) Bill 2003 (Vic).

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65. Victoria, Parliamentary Debates, Legislative Assembly, 29 April 2003, 1099 (Mr McIntosh, Member for Kew).

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66. Victoria, Parliamentary Debates, Legislative Assembly, 25 March 2003, 526 (Mr Hulls, Attorney-General).

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67. Submission 18 (Dr Greg Byrne PSM).

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68. Consultation 9 (Dr Greg Byrne PSM). As an example, Victoria was the first jurisdiction in Australia to enact specific provisions in the Crimes Act to deal with contamination of goods, developed from legislation in the United Kingdom that was based on federal legislation in the USA: Australia. Model Criminal Code Officers Committee, Model Criminal Code. Chapter 8, Public Order Offences: Contamination of Goods (Report, March 1998) 6 citing Public Order Act 1986 (UK) s 38, 18 USC Sec.1365. In 2005, the Crimes (Contamination of Goods) Act 2005 (Vic) amended the Crimes Act ‘to add recklessness as a fault element’ to the contamination of goods provisions (ss 249–252): Explanatory Memorandum, Crimes (Contamination of Goods) Bill 2005 (Vic) 1. The amendment did not include a definition of ‘recklessness’. The second reading speech states, ’For the guidance of members, I note that the model criminal code provides that a person is reckless with respect to a result when he or she is aware of a substantial risk that it will occur and it is, having regard to the circumstances known to him or her, unjustifiable to take the risk. Ultimately the definition of recklessness is a matter for the courts to determine’: Victoria, Parliamentary Debates, Legislative Assembly, 8 September 2005, 713 (Mr Hulls, Attorney-General). An earlier bill introduced by the National Party, the Crimes (Contamination of Goods Offences) Bill 2005 (Vic), was not adopted. That bill proposed to ‘extend the definition of “intention”’ for the contamination of goods offences by providing that intention to cause public alarm/anxiety or economic loss could be proved ‘if the person knows, or in all the particular circumstances the person ought to have understood, that engaging in the conduct would be likely to cause’ those outcomes. The government amended the proposed legislation ‘to include recklessness, as it is a more widely accepted and understood fault element that is commonly used in relation to criminal offences.’: Victoria, Parliamentary Debates, Legislative Council, 6 October 2005, 1289 (Ms Mikakos, Member for Jika Jika Province).

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69. The CBA told us, ‘When you see recklessness in other areas of the Crimes Act, the assumption is that the well-understood definition that has suffused the criminal law in Victoria is the definition intended by Parliament.’: Consultation 4 (Criminal Bar Association); 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>.

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70. Submission 12 (Dermot Dann KC and Felix Ralph).

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71. Judicial College of Victoria, ‘7.5.21 Intentionally or Recklessly Causing a Bushfire’, Victorian Criminal Charge Book (Online Manual, 19 October 2011) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5208.htm>. The Criminal Charge Book goes on to note that the Crimes Act contains a partial negative definition of recklessness that exempts a person who engages in fire prevention or fire suppression activity and who honestly believes that their conduct was justified in the circumstances: Crimes Act 1958 (Vic) s 201A(2), (3).

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72. Victoria, Parliamentary Debates, Legislative Assembly, 29 April 2003, 1100 (Mr McIntosh, Member for Kew) see also 1105 (Mr Lupton, Member for Prahran); Explanatory Memorandum, Crimes (Property Damage and Computer Offences) Bill 2003 (Vic) 2003 2 (Clause 4): ‘The court will still be free to consider other circumstances where a person may not be reckless as to the spread of fire. The common law standard for recklessness will continue to apply in these situations.’.

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73. Submission 12 (Dermot Dann KC and Felix Ralph).

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74. Ibid.

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75. Victoria, Parliamentary Debates, Legislative Council, 2 December 2003, 2036 (Hon. W. R. Baxter, Member for the North Eastern Province).

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76. Explanatory Memorandum, Crimes (Money Laundering) Bill 2003 (Vic) 2003 3 (emphasis added); See also Victoria, Parliamentary Debates, Legislative Council, 2 December 2003, 2038 (Ms Mikakos, Member for Jika Jika Province); For the Commonwealth test, see Criminal Code Act 1995 (Cth) s 5.4: A person is reckless with respect to a circumstance or a result if: ’he or she is aware of a substantial risk that the circumstance exists or will exist …’ (emphasis added).

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77. Submission 10 (Office of Public Prosecutions) (emphasis in original, citations omitted); For a similar view, see John L Anderson, ‘“Playing with Fire”: Contemporary Fault Issues in the Enigmatic Crime of Arson’ (2016) 39(3) University of New South Wales Law Journal 950, 967: ‘The use of the phrase ‘substantial risk’ can be equated with a material or real risk of the occurrence of the actual result, which in turn can be aligned with foresight of the likelihood or probability of certain consequences … Possibility is more akin to a chance or generalised risk of something happening rather than there being a real, weighty and substantial risk.’.

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78. See generally Explanatory Memorandum, Crimes Amendment (Integrity in Sports) Bill 2013 (Vic) 2013.

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79. See generally Explanatory Memorandum, Crimes (Property Damage and Computer Offences) Bill 2003 (Vic); Victoria, Parliamentary Debates, Legislative Assembly, 25 March 2003, 525 (Mr Hulls, Attorney-General).

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80. Submission 10 (Office of Public Prosecutions).

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81. Ibid.

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82. The Judicial College of Victoria says the Campbell definition applies to all Victorian offences. While there are exceptions to this, the Judicial College statement points to broad consistency. Judicial College of Victoria, ‘7.1.3 Recklessness’ [2], Victorian Criminal Charge Book (Online Manual, 2022) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4469.htm>.

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83. Occupational Health and Safety Act 2004 (Vic) s 32. For an individual, the section 32 offence has a maximum penalty of five years imprisonment or a fine of 1800 penalty units, or both. For a corporation, the maximum penalty is a fine of 20,000 penalty units. There is a corresponding workplace reckless endangerment provision in New South Wales which includes the additional aspect of reckless exposure to a danger of death and carries a higher maximum penalty of a $3 million fine: Work Health and Safety Act 2011 (NSW) s 31.

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84. Victoria, Parliamentary Debates, Legislative Assembly, 18 November 2004, 1764 (Mr Hulls, Minister for WorkCover). The endangerment offence created by section 31D of the Dangerous Goods Act 1958 (Vic) is also ‘modelled on section 22 of the Crimes Act 1958’: Explanatory Memorandum, Dangerous Goods Amendment (Penalty Reform) Bill 2019 (Vic) cl 8.

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85. Submission 10 (Office of Public Prosecutions).

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86. Marine (Domestic Commercial Vessel National Law Application) Act 2013 (Vic) s 1.

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87. Ibid ss 8, 9, and see s 3 for the meaning of ‘applied provisions’.

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88. Ibid s 9; See also Explanatory Memorandum, Marine (Domestic Commercial Vessel National Law Application) Bill 2013 (Vic).

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89. Co-Operatives National Law Application Act 2013 (Vic) ss 1, 4.

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90. Some other national laws also involve recklessness. The Heavy Vehicle National Law makes breach of a safety duty a ‘category one’ offence where the breach exposes an individual to a risk of serious injury or death and the duty holder is reckless about that risk: Heavy Vehicle National Law Act 2012 (Qld), Schedule, ‘The Heavy Vehicle National Law’, ss 26C, 26F (implemented in Victoria by the Heavy Vehicle National Law Application Act 2013 (Vic)). The law does not define recklessness. In a Victorian case that is currently before the courts, the prosecution has proceeded on the basis that the threshold for ‘recklessness’ is foresight of a probable risk (see the interlocutory judgement in DPP v Tuteru [2023] VSCA 188, [32], sub-paragraphs (216), (228); [40], sub-paragraph [166].) By comparison, in South Australia, recklessness for the purposes of the same section of the national law has been interpreted as knowledge of the possibility of serious injury or death: NHVR v Birrell [2023] SASC 49. In that case, Justice Blue referred to ‘general principles’ of common law that the threshold for recklessness for offences other than murder is ‘possibility’, although also considering the social utility of the behaviour in question. He cautioned that these principles are subject to variation based on what is required by statutory construction in specific contexts.

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91. DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355, [84]; (2011) 33 VR 440, 462 [84] (Warren CJ, Buchanan and Redlich JJA) citing R v Helmhout [2001] NSWCCA 372, [33]; (2001) 125 A Crim R 257, 262-263 [33]. The Court of Appeal found that aspects of the manner in which the trial judge dealt with the alternate finding that the police officers were reckless were ‘problematic’. The OPP referred us to this case: Submission 10 (Office of Public Prosecutions).

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92. DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355, [85] (Warren CJ, Buchanan and Redlich JJA). Given the necessity to draw a distinction between recklessness and carelessness, the Court of Appeal stated that the ‘alternative of a “don’t care” attitude … must be understood as meaning that the offender, recognising that the conduct might be illegal, did not care whether it was.’

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93. Evidence Act 2008 (Vic) s 138(1), (3)(e).

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94. Judicial College of Victoria, Evidence Act 2008 (Vic) Key Principles: Exclusion of Improperly or Illegally Obtained Evidence (Section 138) (Factsheet, 24 June 2021) 2.

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