Recklessness: Report

6.31 R v G concerned offences under the Criminal Damage Act 1971 (UK), including property damage that endangered life.^[56]

6.32 It is now generally accepted in England and Wales that the R v G definition applies to all offences with recklessness as an explicit element, unless a statutory offence sets out an alternative definition.^[57] According to Archbold, the definition extends further, and ‘may safely be taken to be a formulation of general application to the criminal law of England and Wales.’^[58]

6.33 However, the Law Commission of England and Wales noted in 2015:

There is still some doubt whether [the R v G definition of recklessness] applies in the offences under the 1861 [Offences Against the Person] Act, as these speak of ‘malice’ rather than ‘recklessness’.^[59]

6.34 The Crown Court Compendium suggests that the earlier Cunningham definition, which does not include a ‘reasonableness’ test, applies to the old ‘malice’ offences in the OAP Act, including ‘malicious wounding or infliction of grievous bodily harm’ (section 20).^[60]

6.35 Despite the position in The Crown Court Compendium, the England and Wales Court of Appeal applied the R v G definition in a 2006 case involving the offence of inflicting grievous bodily harm contrary to section 20 of the OAP Act.^[61]

6.36 This suggests the law in England and Wales is uncertain, with authorities and The Crown Court Compendium saying conflicting things. Another issue is that repeated calls to modernise the offences in the OAP Act have not been acted on. The language of these offences is ‘archaic’.^[62]

6.37 The Law Commission of England and Wales has said the law would be more clear and certain if a comprehensive criminal code was adopted. This would include general principles of criminal responsibility and the major criminal offences.^[63] As we discuss in Chapter 12, the Law Commission does not support legislating a definition of recklessness applicable only to offences against the person.^[64]

Limitations of the test in England and Wales

6.38 Given the uncertain state of the law relating to recklessness, and its continued use of the concept of ‘malice’, the position in England and Wales does not provide an appropriate model for reform in Victoria.

New South Wales

The criminal law framework

6.39 The fault elements for offences against the person are not legislatively defined in New South Wales. They come from the common law, initially as it developed in England and Wales.^[65]

6.40 In 2007, New South Wales updated many offences against the person, removing ‘malicious’ offences and introducing specific ‘reckless’ offences.^[66] Parliament chose not to legislate a definition of recklessness.^[67]

Murder and other offences against the person

6.41 Murder and other offences against the person are set out in Part 3 of the Crimes Act 1900 (NSW) (NSW Crimes Act). The fault elements for murder include an intention to kill or inflict grievous bodily harm, or ‘reckless indifference to human life’.^[68] If it is alleged that an accused showed ‘reckless indifference to human life’, the jury may be told that:

The conduct of a person who does an act that the person knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who commits an act with a specific intention to cause death.^[69]

6.42 Although the NSW Crimes Act also provides that the act or omission causing death must have been ‘malicious’,^[70] malice is inferred if one of the other fault elements is established.^[71]

6.43 The main injury offences (Table 14) include similar offences to those in England and Wales.

Table 14: Offences against the person in New South Wales

6.44 The injuries associated with these offences are defined in the same way as in England and Wales, except that the NSW Crimes Act also includes specific examples of grievous bodily harm. The other injuries take their meaning from the common law and are not legislatively defined:

• ‘grievous bodily harm’ means really serious bodily harm (at common law),^[76] including —

(a) the destruction (other than in the course of a medical procedure or a termination …) of the foetus of a pregnant woman …

(b) any permanent or serious disfiguring of the person

(c) any grievous bodily disease …^[77]

• ‘actual bodily harm’ means any hurt or injury that interferes with the health or comfort of the victim and is more than ‘merely transient or trifling’, although it need not be permanent. It may include very serious psychological injury, ‘going beyond merely transient emotions, feelings and states of mind’.^[78] 

• ‘wound’ means a ‘breaking of the skin’. The ‘consequences of a wounding can vary widely … and may be quite minor’; wounding ‘need not involve the use of a weapon’.^[79]

6.45 Unlike New South Wales, Victoria has only two categories of injury for offences against the person.^[80] Both are defined in the Victorian Crimes Act. They use different language to the New South Wales categories (see Chapter 4).

What is the threshold for recklessness in New South Wales?

6.46 Recklessness in New South Wales has different meanings in relation to murder and other offences against the person. A person shows ‘reckless indifference’ to human life for the purposes of murder if they foresaw or realised that their actions would probably cause death but they continued regardless. ‘Probably’ means ‘likely’.^[81]

6.47 For other offences against the person in New South Wales, an accused is reckless if they foresaw or realised that their actions would possibly cause harm but they continued regardless.

6.48 For a brief period, following the 2011 decision in Blackwell v R,^[82] an accused in New South Wales had to foresee the possibility of the specific harm identified in the offence charged but to have proceeded regardless. For example, they must have foreseen the possibility of inflicting ‘grievous bodily harm’, if that was the injury caused, rather than merely ‘wounding’. Since 2012, offences involving the infliction of ‘grievous bodily harm’ or ‘wounding’ only require foresight of the possibility of ‘actual bodily harm’—a lesser injury—for recklessness to be proven.^[83]

6.49 By comparison, for serious injury offences in Victoria, the accused person must have foreseen the risk of a serious injury, rather than merely an injury. This is consistent with the principle of justice that people should only be held criminally responsible for conduct that they intended or recognised the risk of.

Is the New South Wales test for recklessness subjective, objective, or mixed?

6.50 The possibility threshold in New South Wales has subjective and objective parts, requiring both that:

• a person foresaw (‘actually thought about’)^[84] the possibility of harm, and

• it was unreasonable for them to take the risk in the circumstances known to them.^[85]

6.51 What constitutes ‘unreasonable’ risk-taking has been described in different ways. For example, an assessment of whether it was reasonable for an accused to take the risk they did can involve considering:

• the ‘social utility’ of their actions,^[86] or

• a range of factors including the ‘magnitude of the risk … along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the [accused] may have’.^[87]

6.52 In most cases, the objective part of the New South Wales test is implicit, and juries are not directed to consider it. Where this is so, the High Court has said that it influences jurors’ decision-making simply ‘as a matter of common sense and experience’.^[88]

6.53 What this means in practice is unclear. However, in Aubrey, the High Court distinguished between acts ‘devoid of social utility’ (including sticking a hay fork into a horse and ripping a gas meter from the mains to steal money from it), and acts that have social utility, such as driving a car.^[89]

6.54 Where an act has no social utility, the High Court held that an accused who ignores a ‘mere possibility’ or ‘bare possibility’ acts recklessly. The accused who stabbed the horse and ignored the risk of killing it acted recklessly. So did the accused who damaged the gas meter, injuring the person sleeping in the house where the gas leaked.^[90]

6.55 On the other hand, ‘if the act in question has a slight degree of social utility … something more than a mere possibility of harm is required.’^[91] The High Court described this as ‘a real possibility’.^[92]

6.56 The High Court also acknowledged that there may be cases where a fair trial requires a judge to direct a jury to:

• explicitly consider the reasonableness of the accused’s actions

• take this into account in their assessment of whether the accused acted recklessly, with foresight of possible harm.^[93]

Limitations of the New South Wales test

6.57 The various ways of expressing how to assess reasonableness, and the rather tortured attempts to distinguish between the degree of ‘possible’ risk required to establish recklessness in different contexts,^[94] indicate the complexity of having a subjective test with an objective component. This is so even if the objective part of the test is not usually emphasised or drawn to the attention of juries.^[95] In our view, the approach in New South Wales is not an appropriate model for Victoria.

The Commonwealth of Australia

The criminal law framework

6.58 Work has been done in Australia towards codifying the criminal law,^[96] but the codification project has faltered. It was partially realised in the ‘general principles’ section of the Criminal Code Act 1995 (Cth).^[97] This has also influenced the law in the Northern Territory and the Australian Capital Territory.^[98]

6.59 The Criminal Code Act includes and defines four fault elements: ‘intention’, ‘knowledge’, ‘recklessness’ and ‘negligence’.^[99]

Murder and other offences against the person

6.60 Ordinarily, murder and other offences against the person are prosecuted under the jurisdiction of the state or territory where they occur. However, the Criminal Code Act does include Commonwealth versions of these offences which apply where the victim is employed by or associated with the United Nations (UN). We include an overview of them here for comparative purposes.^[100]

6.61 Murder involves intentionally or recklessly causing the death of UN or associated personnel. Manslaughter involves causing the death of UN or associated personnel while intending or being reckless about causing serious harm to that person. The concept of manslaughter in the Commonwealth Criminal Code captures behaviour that would constitute murder in Victoria.

6.62 Aside from murder and manslaughter, there are four core violence offences for harm caused to UN or associated personnel (see Table 15).

Table 15: Offences against the person—Commonwealth of Australia

6.63 Injuries are defined as follows:

• ‘harm’ ‘means physical harm or harm to a person’s mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.’^[101]

• ‘serious harm’ ‘means harm (including the cumulative effect of any harm):

(a) that endangers, or is likely to endanger, a person’s life; or

(b) that is or is likely to be significant and longstanding.’^[102]

6.64 The definitions in Victoria’s Crimes Act (see Chapter 4) echo these definitions in some respects. But Victoria’s injury definitions do not refer to ‘likely’ outcomes, and a serious injury in Victoria is one that is ‘substantial and protracted’ rather than ‘significant and longstanding’.^[103]

What is the threshold for recklessness in the Commonwealth of Australia?

6.65 Under the Criminal Code Act, recklessness involves awareness of a ‘substantial’ risk and unjustifiably taking that risk.^[104] We discuss the ‘unjustifiable’ branch of the test below.

6.66 The code drafting committee chose to characterise the risk as ‘substantial’ rather than ‘probable’ or ‘possible’. The committee said that references to risks that are ‘probable’ or ‘possible’:

invite speculation about mathematical chances and ignore the link between the degree of risk and the unjustifiability of running that risk in any given situation.^[105]

6.67 The committee also noted the common law application—at that time—of ‘probability’ and ‘possibility’ to different categories of offences:

It now seems clear at common law that foresight of probability is restricted to murder and foresight of possibility is the test for all other offences, including, complicity in murder.^[106]

6.68 The committee rejected the need for different tests. It concluded:

that the modification of the existing recklessness tests by substituting ‘substantial’ for ‘probability’ or ‘possibility’ and adding the concept of unjustifiability set the proper level for recklessness.^[107]

6.69 Subsequent commentary accepts that the word ‘substantial’ was chosen for its ‘irreducible indeterminacy of meaning’, which allows courts to apply it flexibly to ‘the vast range of offences covered by the Code’.^[108] Thus, what counts as ‘substantial’ varies according to the ‘context and gravity of the criminal activity’.^[109] But at a minimum, it appears to require that the risk was:

• ‘real or of substance as distinct from ephemeral or nominal’,^[110]

• ‘not remote or fanciful’.^[111]

Is the Commonwealth test for recklessness subjective, objective, or mixed?

6.70 The Commonwealth test for recklessness imposes a mixture of subjective and objective liability.

6.71 The definition of recklessness in the Commonwealth Code provides that a person was ‘aware’ of a risk. Explanatory text provided by the Attorney-General’s Department says that the Commonwealth Code is:

constructed on the assumption that the underlying principles of criminal justice require proof of conscious advertence to the physical elements of an offence.^[112]

6.72 This was confirmed in a case dealing with importation of prohibited goods, being reckless about whether the contents were prohibited.^[113] Justice Gray in the Supreme Court of South Australia found that to establish recklessness in accordance with the Code definition:

Conscious awareness of risk is required; it is not sufficient to show that the risk was obvious or well known.^[114]

6.73 But while the accused person must have been consciously aware of some level of risk, the Commonwealth definition also has an objective aspect. The Attorney-General’s Department explains:

To say that a risk was substantial, it is necessary to adopt the standpoint of a reasonable observer at the time of the allegedly reckless conduct … The risk is substantial if a reasonable observer would have taken it to be substantial at the time the risk was taken.

… Since it is the reasonable observer who sets a standard against which the [accused] will be measured, this notional figure may be in possession of more information than the [accused] and will usually be endowed with far better judgement about risks than the [accused].^[115]

6.74 The definition of recklessness in the Commonwealth Code provides not only that a person was aware of a ‘substantial’ risk, but that, ‘having regard to the circumstances known to [them], it [was] unjustifiable to take the risk’.

6.75 During the drafting of the Code, ‘unreasonable’ was proposed instead of ‘unjustifiable’. Parliament opted to use the word ‘unjustifiable’ ‘to avoid confusion between recklessness and criminal negligence.’^[116]

6.76 While the wording of the test made it clear that:

the unjustifiability of the risk is to be assessed on the facts as the accused believes them to be [it …] leaves the question of whether the risk taken is ‘unjustifiable’ for the jury (or the judge or magistrate in cases where there is no jury).^[117]

6.77 Applying the test:

requires that the jury make a moral or value judgment concerning the accused’s advertent [knowing] disregard of the risk.^[118]

6.78 Both branches of the Commonwealth definition of recklessness therefore appear to combine subjective and objective risk assessments, adding to its complexity.^[119]

Limitations of the Commonwealth test

6.79 The use of objective tests appears to dilute the original intention of the Code drafting committee. This was to create subjective fault elements in accordance with principles of justice and ‘the mainstream of legal development of the late 20th century’.^[120]

6.80 By comparison, the Victorian test remains true to these justice-oriented developments.

6.81 The limited success of the codification project demonstrates the complexity of systematising the criminal law within and across jurisdictions. It suggests there is now greater appreciation of the advantages of criminal laws that are responsive to the distinctive conditions within different states and territories.

6.82 In our view, the Commonwealth definition of recklessness is not appropriate as a model for piecemeal reform in Victoria.

South Australia

The criminal law framework

6.83 South Australia is a common law jurisdiction.^[121] But aside from murder and manslaughter, the elements of most serious offences are contained in its Criminal Law Consolidation Act 1935 (SA).

6.84 Where recklessness is an element of an offence in the Criminal Law Consolidation Act, the Act may include a definition that applies to that offence or to a group of offences. Definitions of recklessness in the Act vary.

Murder and other offences against the person

6.85 Murder and other offences against the person are contained in Part 3 of the Criminal Law Consolidation Act. The Act only provides the penalties for murder and manslaughter, leaving their definition to the common law.^[122] Murder can be intentional or reckless.

6.86 ‘Causing physical or mental harm’ offences are set out in Division 7A of Part 3 of the Criminal Law Consolidation Act (Table 16). This Division has its own ‘interpretation’ section, which includes injury definitions and a definition of ‘recklessness’ (see below).

Table 16: Offences against the person in South Australia

6.87 In a section that appears designed to operate in a similar manner to the ‘without lawful excuse or justification’ element in many of Victoria’s offences against the person, the South Australian legislation provides that if a person lawfully consents to the infliction of harm, then it will not be an offence under Division 7A.^[123] People may consent to harm that ‘fall[s] within limits that are generally accepted in the community’.^[124]

6.88 Division 7A also includes endangerment offences that can be committed intentionally or recklessly.^[125] But the section containing these offences uses the phrase ‘with reckless indifference’ rather than ‘reckless’ or ‘recklessly’. We discuss how this has been interpreted below.

6.89 Injuries for the causing harm offences are defined as:

• ‘harm’ ‘means physical or mental harm (whether temporary or permanent)’^[126]

• ‘mental harm’ ‘means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’^[127]

• ‘physical harm’ ‘includes—

(a) unconsciousness;

(b) pain;

(c) disfigurement;

(d) infection with a disease’^[128]

• ‘serious harm’ ‘means—

(a) harm that endangers a person’s life; or

(b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or

(c) harm that consists of, or results in, serious disfigurement.’^[129]

6.90 These definitions are very similar to the definitions for offences against the person in Victoria (see Chapter 4). But the Victorian definition of serious injury refers to ‘substantial’ rather than ‘serious’ impairment and does not tie the harm to impairment of a physical or mental function.

What is the threshold for recklessness in South Australia?

6.91 ‘Recklessness’ in South Australia has different meanings in relation to murder and other offences against the person.

6.92 To be guilty of reckless murder, a person must have been aware that death or ‘grievous bodily harm’ was a probable result of their actions.^[130]

6.93 The threshold for recklessness for ‘causing harm’ offences is different. It is where a person:

(a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and

(b) engages in the conduct despite the risk and without adequate justification.^[131]

6.94 The South Australian Criminal Trials Bench Book does not expand on the meaning of ‘substantial risk’ in its overview of the ‘causing harm’ offences, except to say that:

Recklessness requires more than negligence, carelessness or lack of thought. It requires proof of an active thought process.^[132]

6.95 The Court of Criminal Appeal in South Australia cautions against explaining the meaning of ‘ordinary’ words such as ‘substantial risk’ by reference to synonyms.^[133] But it has observed that a ‘substantial risk’ is not synonymous with a ‘likely’ risk,^[134] and may capture lesser risks:

Persons who are risk averse may give the expression ‘substantial risk’ a meaning which encompasses consequences which are not likely at all.^[135]

6.96 This is consistent with material in the South Australian Criminal Trials Bench Book acknowledging that ‘substantial risk’ may be interpreted by juries as ‘a degree of possibility that is little more than a chance or risk’.^[136]

6.97 In the Victorian context, the Office of Public Prosecutions (OPP) says that its proposed ‘possibility’ test is consistent with the recklessness definition for South Australia’s causing harm offences.^[137] It also says that if Victoria adopts a possibility test, it might not have to change its penalties because other jurisdictions with a possibility threshold have similar penalties:

In South Australia, where recklessly causing serious harm to another requires awareness of a substantial risk that the conduct could result in serious harm, the maximum penalty is 15 years for a ‘basic’ offence, or 19 years for an aggravated offence.^[138]

6.98 It is not clear that the recklessness test for ‘causing harm’ offences in South Australia can be equated with a ‘possibility’ test. As in the Commonwealth Criminal Code, the South Australian definition uses the language of ‘substantial risk’ combined with a requirement that the accused person engaged in the conduct ‘despite the risk and without adequate justification’. It creates a ‘link between the degree of risk and the unjustifiability of running that risk in any given situation.’^[139] Like the Commonwealth test, its meaning may be ‘indeterminate’ and depend on the context.^[140]

6.99 We also note that in a recent dissenting judgment, a member of the South Australian Court of Criminal Appeal said a ‘substantial risk’ is one that is ‘likely’.^[141] He referred to previous authority in South Australia supporting the view that conduct giving rise to a ‘substantial risk’ of harm is comparable to conduct giving rise to a ‘probability’ of harm.^[142] This authority was recently applied by a trial judge in the District Court of South Australia, who equated an act that is ‘likely’ to cause harm with:

the notion of a substantial i.e., a real and not remote chance, regardless of whether that chance was more or less than 50 per cent.^[143]

6.100 The second branch of the Division 7A definition of recklessness can itself be broken into two parts. The accused person:

• engaged in the conduct despite (‘regardless of’) the risk, and

• without adequate justification.^[144]

6.101 In the above, the first point is often paraphrased by courts in South Australia as the accused person ‘“does not care” about the relevant consequence or other matter’.^[145] The second point has been described as operating to prevent defensibly risky conduct from being criminalised:

there may be some conduct which is not reckless despite the actor’s appreciation of the likelihood that life will be endangered. Medical treatment is one such example. So too is conduct engaged in under dangerous circumstances, for example on the roads or in work places, but in the hope that a known risk will nonetheless be averted.^[146]

6.102 Even though the phrase ‘without adequate justification’ functions as a ‘reasonableness’ limitation, the scope of reckless causing harm offences is further limited. The Act provides that the ‘causing harm’ offences do not apply to conduct that is ‘generally accepted in the community as normal incidents of social interaction or community life’, unless the accused person intended to cause harm.^[147]

6.103 Endangerment/creating risk of harm offences in Division 7A use the expression ‘recklessly indifferent’ rather than ‘reckless’ or ‘recklessly’. For example, section 29 endangerment involves doing or omitting to do something knowing it is likely to endanger life and intending or being recklessly indifferent as to whether the life of another is endangered.^[148]

6.104 While ‘recklessly’ and ‘recklessly indifferent’ have been used interchangeably by the South Australian courts when interpreting common law offences,^[149] they have different meanings for the purposes of the endangerment/creating risk of harm offences.

6.105 In the case of R v Shah, the South Australian Court of Criminal Appeal said ‘it would be incongruous’ if one part of the offence required knowledge of likelihood and the other required knowledge of substantial risk:

Accordingly … reckless indifference requires that the [accused] know that it is likely that his or her conduct will endanger the life of another and does not care, ie engages in the conduct despite the risk and without adequate justification.^[150]

6.106 In the same case, the Court addressed the fact that the expression, ‘recklessly indifferent’ is used for a wide range of other offences,^[151] including some sexual offences. In Division 11 sexual offences, the expression is defined as awareness of a possibility that a person is not consenting or not giving any thought to that possibility.^[152] In Shah, the Court held that the Division 11 definition ‘is tailored to offences in which lack of consent … is an element and is inapposite to endangerment of life and most (if not all) … other offences’ where it is used.^[153] It concluded that:

the concept of ‘reckless’ and ‘reckless indifference’ can invite a different focus, or at least a focus on a different level of risk, depending on context.^[154]

Is the South Australian test for recklessness subjective, objective, or mixed?

6.107 For ‘causing harm’ offences in South Australia, the test for recklessness is subjective,^[155] at least with respect to the ‘substantial risk’ part of the definition.

6.108 The suggested jury directions for recklessly causing harm and recklessly causing serious harm in the South Australian Criminal Trials Bench Book say in respect of the ‘recklessness’ element of the offence:

this element concerns the accused’s state of mind. It is not enough that you, or a reasonable person, would have realised that the accused’s conduct would create a substantial risk of [harm or serious harm]… You can only find this element proved if the prosecution proves that [the accused] was aware of that risk, and engaged in the conduct without adequate justification.^[156]

6.109 The jury directions are silent about the meaning of ‘without adequate justification’. Indicating that the phrase could be confusing for juries, the directions suggest that trial judges consider omitting reference to it unless it is an issue in a case.^[157] We discuss in Chapters 7 and 11 how juries find it difficult to apply complex fault elements.

Limitations of the South Australian test

6.110 The number of definitions of recklessness in the Criminal Law Consolidation Act and the subtle distinctions between them make the law relating to recklessness in South Australia complex and difficult to navigate. This is not an area of law that is accessible or easy for lawyers to explain to people without legal training. The South Australian example supports the view we reach in Chapter 12 that the Victorian government should not legislate a definition of recklessness for offences against the person.

6.111 Victoria’s definition of recklessness is not perfectly consistent across all Victorian offences (see Chapter 5). However, by comparison with South Australia it is remarkably consistent, and over the decades since the Campbell decision (see Chapter 3) it has been applied relatively consistently. Compared to South Australia, the law in Victoria is clear and accessible.

New Zealand

The criminal law framework

6.112 New Zealand has codified its criminal offences but not general principles of criminal responsibility. This means that the fault elements for offences against the person come from the common law, initially as it developed in England and Wales.^[158]

Murder and other offences against the person

6.113 The Crimes Act 1961 (NZ) (NZ Crimes Act) establishes a hierarchy of injury offences, including murder.

6.114 Part 8 of the NZ Crimes Act deals with ‘crimes against the person’. It includes several offences that roughly correlate with the hierarchy set out for other jurisdictions

(Table 17).

Table 17: Offences against the person in New Zealand

6.115 The NZ Crimes Act says that ‘to injure’ means ‘to cause actual bodily harm’.^[162] The specific injuries associated with these offences are defined similarly as in England and Wales, although the slight differences in wording may be significant in practice:

• ‘actual bodily harm’ (‘injury’) means ‘discomfort that is more than minor or momentary. The harm need not be permanent or long-lasting. It may be internal or external.’^[163]

• ‘wound’ means ‘an injury involving breaking the skin, a cut or a laceration of some kind. This can be evidenced by a flow of blood and is usually external but may be internal.’^[164]

• ‘grievous bodily harm’ means ‘really serious harm interfering with health or human function.’^[165]

What is the threshold for recklessness in New Zealand?

6.116 A form of reckless murder combines an intention to cause an injury that the offender knows is likely to cause death with recklessness about death.^[166] The courts have decided that the fault element for this offence requires that the accused:

• knew their actions were likely to cause death, and

• consciously ran the risk of causing death.^[167]

6.117 ‘Likely’ in this context is explained to juries as meaning that ‘death could well happen or was a real risk’.^[168]

6.118 For reckless offences other than murder, the defendant must have recognised a ‘real possibility’ of harm and have acted unreasonably with regard to that possibility.^[169] But the words ‘real possibility’ need not be explained to a jury. Often juries are simply told to assess if the defendant recognised a risk of harm and unreasonably took that risk.^[170]

6.119 The courts have at various times described the level of risk necessary to establish recklessness as ‘likely or possible’, or something that ‘could well’ happen.^[171] The situation appears to be the same as in England and Wales, where no specific level of risk is required. Instead:

The mens rea of recklessness necessitates balancing the likelihood, nature and gravity of the harm, against the value of the conduct.^[172]

6.120 It is now accepted by the courts in New Zealand that this balancing act involves applying a test of reasonableness.

Is the New Zealand test for recklessness subjective, objective, or mixed?

6.121 In line with Cunningham in England and Wales, recklessness in New Zealand was for many years characterised as subjective.^[173] Following Caldwell, the New Zealand Court of Appeal in 1982 used an objective standard for recklessness in a property damage case.^[174] It stressed that this did not represent ‘a general adoption of Caldwell’ but did not provide guidance on when or how the objective standard might apply to other offences.^[175] This left the law in an ‘uncertain’ state.^[176]

6.122 Five years later, the New Zealand Court of Appeal decided that recklessness for the purposes of murder required ‘a conscious taking of the risk of causing death’.^[177] But it did not rule out using Caldwell in future and did not provide guidance ‘as to when it might be used’.^[178]

6.123 In 1989, a new Crimes Bill was introduced to Parliament, containing general principles of criminal responsibility.^[179] The Explanatory Note to the Bill explained that two definitions would be introduced, separately capturing ‘pre-Caldwell’ and ‘Caldwell’ recklessness. It explained the necessity of this:

it is bad drafting practice to have a pivotal term [such as recklessness] meaning different things in different provisions, with nobody knowing which meaning it has in any particular provision unless and until a case comes before the Court of Appeal for determination.

The solution adopted in the Bill is to use [two] different terms. ‘Reckless’ is used in the pre-Caldwell sense (running a recognised risk), and ‘heedless’ is used for Caldwell recklessness (not giving any thought to the possibility of risk).^[180]

6.124 This Bill was never passed. In subsequent years, the New Zealand courts were relatively consistent in applying what they described as a ‘subjective’ test for recklessness.^[181] However, they also added a ‘reasonableness’ component and this aspect of the test has been described in objective terms:

the question whether the [accused’s] actions were unreasonable came down to whether the [accused] had acted as a reasonable and prudent person—that is, as a law-abiding person doing their best to comply with the law.^[182]

6.125 The position that the courts have now arrived at appears to be one that applies an objective limit to the subjective test. The test used is whether:

the [accused] recognised there was a real possibility that the consequence or outcome could occur and … having regard to that possibility, the [accused’s] actions were unreasonable.^[183]

6.126 Juries are directed that:

‘Unreasonable’ actions are actions that a reasonable and prudent person would not have taken.^[184]

Limitations of the New Zealand test

6.127 The objective overlay to the New Zealand test is problematic. Reference to what a ‘prudent’ person would have done adds complexity to the need to determine what was ‘reasonable’ in the circumstances. As discussed earlier, basic principles of justice and fairness recognise that people should not be held responsible for serious crimes if they did not recognise that the risk they took was unreasonable. By comparison with New Zealand, the Victorian test is simpler.

Canada

The criminal law framework

6.128 Canada’s Criminal Code, RSC 1985 includes much of the country’s criminal law,^[185] but no general principles of criminal responsibility or definitions of fault elements.^[186] Fault elements for offences and some defences are part of the common law in Canada.^[187]

Murder and other offences against the person

6.129 Offences against the person are set out in Part VIII of the Criminal Code.

6.130 Most of Canada’s ‘core’ injury offences (Table 18) include recklessness as a fault element.^[188]

Table 18: Offences against the person in Canada

6.131 Criminal negligence in Canada is distinctive. It involves doing or failing to do something that a person has a legal duty to do while showing ‘wanton or reckless disregard for the lives or safety of other persons.’^[191] It has been described as ‘notorious in its ambiguity’.^[192]

6.132 The Criminal Code defines ‘bodily harm’ as:

any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature…^[193]

What is the threshold for recklessness in Canada?

6.133 The threshold for recklessness appears to vary according to the offence in Canada.^[194]

6.134 Reckless murder involves causing death ‘mean[ing] to cause bodily harm that [the accused] knows is likely to cause death’ and being ‘reckless whether death ensues or not’.^[195] The courts have decided that for reckless murder, the reference to being ‘reckless whether death ensues’ ‘can be considered an afterthought’ because if the accused is proven to have intentionally caused bodily harm knowing that death was likely, they must ‘of necessity’ have been reckless to continue.^[196]

6.135 For criminal harassment—an offence similar to the Victorian offence of stalking—the threshold for recklessness has been described as ‘foreseen probability’ or ‘an awareness of probability’.^[197]

6.136 However, in a sexual offence case, recklessness was described in a way that suggested a lower threshold, as:

the attitude of one who, aware that there is danger that [their] conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.^[198]

6.137 This definition of recklessness has been cited in subsequent cases dealing with offences against the person, where the courts have not identified any specific level of risk necessary to establish recklessness. To establish recklessness, the prosecution only needs to prove that the accused was aware of a risk and proceeded regardless.^[199]

6.138 A ‘substantial and unjustified risk’ test has also been widely used by Canadian courts but variously interpreted.^[200]

6.139 In R v Zora (‘Zora’),^[201] a recent case dealing with failure to comply with bail conditions, the Supreme Court of Canada decided that ‘recklessly’ failing to comply with bail conditions means that the accused person:

perceived a substantial and unjustified risk that their conduct would likely fail to comply with the conditions and persisted in this conduct.^[202]

6.140 The Court went on to say that a ‘substantial and unjustified’ risk ‘cannot be far-fetched, trivial, or de minimis.’^[203]

6.141 The Court also described the assessment of risk as a balancing exercise:

The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations …^[204]

6.142 In 2020, the authors of Canada’s Annual Review of Criminal Law commented that the court in Zora:

appeared to impose a higher standard … for recklessness than commonly defined in the jurisprudence.^[205]

6.143 The law relating to the threshold for recklessness in Canada therefore appears to be unsettled.^[206]

Is the Canadian test for recklessness subjective, objective, or mixed?

6.144 Canadian courts have repeatedly emphasised that the test for recklessness is subjective.^[207] However, some commentators have described the ‘substantial and unjustified’ test as one that is mixed, including objective and subjective components, and some have said that whether a risk is ‘unjustifiable’ is ‘determined on an objective standard’.^[208]

6.145 While the Supreme Court in Zora held that an assessment of whether the risk was ‘unjustified’ is required, it said that this assessment must be undertaken from the perspective of the accused person:

the focus must be on whether the accused was aware of the substantial risk they took and any of the factors that contribute to the risk being unjustified.^[209]

6.146 An exception to the predominantly subjective approach in Canada may be in criminal negligence offences. These offences require ‘a marked and substantial departure … from the conduct of a reasonably prudent’ person, where the accused either:

• ‘recognised and ran an obvious and serious risk’, or

• ‘gave no thought to that risk’.^[210]

Limitations of the Canadian test

6.147 The unsettled nature of the law in Canada and its complexity suggest it is not an appropriate model for reform.

The United States

The criminal law framework

6.148 Individual states in America have primary responsibility for legislating and enforcing the criminal law.^[211] Many states have reformed their law based on a Model Penal Code drafted in 1962 and revised in 1984.^[212]

6.149 The Model Penal Code includes four fault elements, from most to least culpable: ‘purposely’ (meaning ‘intentionally’ or ‘with intent’), ‘knowingly’, ‘recklessly’ and ‘negligently’.^[213]

6.150 We have not included a hierarchy of core injury offences here as the offences and penalties differ from state to state.

What is the threshold for recklessness in the United States?

6.151 In the Model Penal Code, a person acts recklessly if they:

• consciously disregard a substantial and unjustifiable risk

• the risk must be of such a nature and degree that, considering the nature and purpose of the person’s conduct and the circumstances known to them, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in their situation.^[214]

6.152 According to Matthew Ginther and his co-authors:

Exactly how the dual requirements of substantial and unjustified risk are meant to operate is ambiguous and has been debated by [Model Penal Code] commentators.^[215]

6.153 The courts have held that what counts as a ‘substantial and unjustifiable’ risk depends on the context and the harm that could result. Even if the chances of something happening are relatively slight, if it would be a very bad outcome such as death or serious injury, then the risk of it may be ‘substantial and unjustifiable’.^[216]

Is the United States test for recklessness subjective, objective, or mixed?

6.154 Recklessness in the Model Penal Code explicitly combines subjective and objective standards:

• the accused person ‘consciously disregard[ed]’ the risk

• this disregard was ‘a gross deviation from the standard of conduct that a law-abiding person would observe’ in the circumstances known to the accused.^[217]

6.155 The Model Penal Code definition of what it means to act recklessly is complex and research suggests it is difficult to apply.

6.156 Lay people in the United States provided with the Model Penal Code’s fault element definitions generally attribute blameworthiness consistently with the Code’s hierarchy. They treat acting ‘purposely’ as the most blameworthy state of mind and acting ‘negligently’ as the least blameworthy of the code’s fault elements.^[218] But the research indicates that lay people find it very difficult to differentiate between ‘knowing’ and ‘reckless’ conduct and they treat these states of mind as deserving the same punishment. This suggests they see them as equally blameworthy.^[219]

6.157 Furthermore, reckless conduct was the hardest conduct for lay people to identify correctly.^[220] Their ability to identify reckless conduct improved greatly if the test was described simply as doing an act that creates a ‘substantial risk’.^[221] But even then:

More than one out of every three times they read a reckless scenario, subjects fail[ed] to identify it as such …^[222]

Limitations of the United States test

6.158 Dr Greg Byrne told us that the more complex a test is, the harder it will be for jurors to understand. He noted that in the Model Penal Code:

Having the second limb of unjustified makes comprehension more difficult and raises the question—what does it mean?^[223]

6.159 The requirement that the conduct was a ‘gross deviation’ from standards a law-abiding person would observe further adds to the complexity of the test. This suggests it is not an appropriate model for reform in Victoria.

Conclusion

6.160 None of the models that we have reviewed offers a way of defining recklessness that is preferable to what exists in Victoria.

6.161 Despite some similarities and sometimes common starting points, the criminal law has developed in distinctive ways in different jurisdictions. Even where jurisdictions share a similar definition of recklessness, how it is used diverges. This reflects the interplay of differences between other fault elements, offences, injury definitions, and penalties.

6.162 Even if another jurisdiction had a definition of recklessness that appeared to be working better than the Victorian definition, transplanting it into our criminal law framework would be complicated. The criminal law in each jurisdiction is a complex and interconnected structure. As we discuss in the next chapter and Chapter 11, the flow-on effects of incorporating one new element in Victorian law would be difficult to predict, creating uncertainty.

1. ‘Unlawfully’ means ‘without legal justification or excuse’: Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) 2212 [19.3].

   ↑

2. Ibid 2212 [19.1]; Judicial College (UK), The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 19–1.

   ↑

3. Judicial College (UK), The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 19-1-19–4. See also discussion of ‘intent’ and ‘example 2’: at 8–4. If a person kills another and was reckless about whether their actions would cause the other person’s death, they may be guilty of manslaughter. However, in Scots law, the mens rea for murder is either ‘wicked intention’ or ‘wicked recklessness’: Scottish Law Commission, Discussion Paper on the Mental Element in Homicide (Discussion Paper No 172, May 2021) 13 [2.3].

   ↑

4. In 2015, the Law Commission of England and Wales noted that, ‘Despite a long history of criticism of many aspects of the Act and repeated efforts at reform, it remains in heavy use: the offences in the 1861 Act form the basis of over 26,000 prosecutions every year’: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 2 [1.4]. For a list of the ‘many attempts to reform’ the law relating to offences against the person, see ibid 42 [4.1].

   ↑

5. “‘Battery” is unlawful physical touching, however slight. Strictly speaking, “assault” means any intentional or reckless conduct which causes someone to apprehend immediate unlawful violence. However “assault” is often used in a looser way, to refer either to that conduct or to a battery’: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 10 [2.5]. The Law Commission chose to use the term ‘common assault’ to refer to assault and/or battery: at 10 [2.6].

   ↑

6. Judicial College (UK), The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8–10, citing R v Cunningham [1957] 2 QB 396.

   ↑

7. Ibid.

   ↑

8. ‘The Sentencing Act 2020 [UK Public General Acts 2020 c. 17], ss.321 and 322 and Sch. 21, provide the statutory scheme for the setting of minimum terms in all murder cases.’ Sentence requirements for offenders aged 18 when the offence was committed and under 21 on the date of conviction are discussed in the same place: Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) 2248–9 [19-109].

   ↑

9. ‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life’: Offences Against the Person Act 1861 (UK), 24 & 25 Vict, c.100, s 18 (E & W). ‘The very frequently charged section 18 offence can be committed by causing grievous bodily harm or wounding, whilst intending to cause grievous bodily harm or to resist or prevent apprehension or detention. This creates ten ways of committing the offence, some of which are considered to be distinct offences which must be charged separately on an indictment’: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 4 [1.12(1)] (emphasis in original).

   ↑

10. R v G [2003] UKHL 50, [11]; [2004] 1 AC 1034, 1045 [11]. The Criminal Law Revision Committee noted that ‘juries often return a verdict under section 20 as a compromise on an indictment for an offence under section 18’: Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980) 69 [152].

    ↑

11. Offences Against the Person Act 1861 (UK), 24 & 25 Vict, c.100, s 18 (E & W & NI).

    ↑

12. ‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude’: Offences Against the Person Act 1861 (UK), 24 & 25 Vict, c.100, s 20 (E & W).

    ↑

13. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 18 [2.36]; see also Law Commission of England and Wales, Reform of Offences Against the Person: A Scoping Consultation Paper (Consultation Paper No 217, 2014) 28 [2.99].

    ↑

14. Sentencing Council (UK), Inflicting Grievous Bodily Harm/Unlawful Wounding/Racially or Religiously Aggravated GBH/Unlawful Wounding (Web Page, 1 July 2021) <https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/inflicting-grievous-bodily-harm-unlawful-wounding-racially-or-religiously-aggravated-gbh-unlawful-wounding/>. Although the penalty for malicious wounding or infliction of grievous bodily harm is the same as for assault occasioning actual bodily harm, the former is treated as a more serious offence: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 2 [1.5(3)].

    ↑

15. ‘Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude’: Offences Against the Person Act 1861 (UK) 24 & 25 Vict, c.100, s 47 (E & W). It does not matter the extent of the injury caused—the prosecution only has to prove ‘some personal injury (however slight)’: Judicial College (UK), The Crown Court Compendium—Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8–8.

    ↑

16. Criminal Law Act 1967 (UK) ss 6-6(3B); Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 12 [2.15(2)].

    ↑

17. Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) Guideline 43, 1101 [S-43.3].

    ↑

18. Ibid.

    ↑

19. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 11-12 [2.13]. Archbold cites a presumption of law that mens rea (a guilty mind) is required before a person can be convicted of a criminal offence: Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) [17-3].

    ↑

20. Although a common law offence, section 39 of the Criminal Justice Act 1988 (UK) provides for the mode of trial and maximum penalty.

    ↑

21. Assaults on Emergency Workers (Offences) Act 2018 (UK), s 1; Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) Guideline 43, 1123 [S-43.25].

    ↑

22. For a draft charge to the jury on the offence of causing grievous bodily harm with intent, see Judicial College (UK), The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8.3-8.4.

    ↑

23. For ‘assault occasioning actual bodily harm’, the mental element relates to the assault: ‘There is no need for [the accused] to be shown to have intended or foreseen any harm. What is required is that [the accused] intended or was reckless as to an assault or battery’: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 15 [2.26]. See also Law Commission of England and Wales, Reform of Offences against the Person: A Scoping Consultation Paper (Consultation Paper No 217, 2014) 20 [2.61].

    ↑

24. Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) 2303 [19–258].

    ↑

25. Ibid 2300 [19–249].

    ↑

26. Ibid 2304 [19–263].

    ↑

27. Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980) 69 [152].

    ↑

28. ‘[W]e are of the opinion that the moral distinction between the two types of mental element [ie, intention and recklessness] involved in acts of violence amounting to serious injury justifies two separate offences. We appreciate, however, that it is not an easy distinction for the police, magistrates and juries to have to make, and, with regard to acts of violence amounting to injury but not serious injury, we feel that the law need not be altered to require the distinction in mental element to be made in every case: accordingly we are … in favour of [replacing section 20 with] causing injury recklessly or with intent to cause injury’: Ibid.

    ↑

29. Life imprisonment for malicious wounding or causing grievous bodily harm with intent (s 18) and five years for malicious wounding or infliction of grievous bodily harm (s 20): Offences Against the Person Act 1861 (UK), 24 & 25 Vict, c.100 (E & W & NI).

    ↑

30. Consultation 4 (Criminal Bar Association). The CBA was in fact referring to the difference in penalties proposed by the Criminal Law Revision Committee in a report recommending the modernisation of the OAP Act offences. The Committee proposed a maximum of life imprisonment for a new offence of ‘causing serious injury with intent to cause serious injury’ (to replace s 18) and a maximum of five years imprisonment for a new offence of ‘causing serious injury recklessly’ (to replace s 20), so it preserved the same difference in penalty ranges as currently exists: Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980) 71 [157]. The same penalty range was subsequently recommended by the Law Commission, in respect of comparable offences: Law Commission of England and Wales, A Criminal Code for England and Wales—Vol 1 Report and Draft Criminal Code Bill (Law Com Report No 177, 1989) 123. In 2015, the Law Commission continued to support the existing hierarchy and penalty range, although it recommended increasing the penalty for malicious wounding or infliction of grievous bodily harm (i.e., the recklessly causing serious injury offence) from five to seven years maximum imprisonment. It continued to support modernising the language of the offences: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 53 [4.36], 56 [4.45], 70 [4.106], 86–7 [4.172], 200 (table).

    ↑

31. R v G [2003] UKHL 50; [2004] 1 AC 1034.

    ↑

32. ‘Significant’ and ‘obvious’ are used in [32] (Lord Bingham). R v G was a case involving property damage endangering life. ‘Likely’ is used in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868, [58], [59]; [2005] QB 73, 91 [58], [59]. This was a case involving the common law offence of misconduct in public office. The mental elements for this include reckless disregard of a duty to act and/or the consequences of acting or failing to act in accordance with that duty. Foresight of an outcome that ‘may’ or ‘might’ occur is used in R v Cunningham (1957) 2 QB 396, 399–401. Cunningham involved the offence of property damage endangering life. Recognition of a ‘possible’ consequence is used in R v Mowatt [1968] 1 QB 421, 426–7, a case involving charges of wounding with intent to do grievous bodily harm or unlawful wounding.

    ↑

33. The Commission was referring to the law of recklessness as established since the 1957 case of Cunningham. Law Commission of England and Wales, Report on the Mental Element in Crime (Law Com No 89, 21 June 1978) 10 [20]. See also 11 [21] (noting in respect of driving and criminal damage cases that ’the required degree of … risk is a matter of some uncertainty’) and 12 [24] (referring in general to the absence of ’authoritative guidance on the degree of risk required’).

    ↑

34. Law Commission of England and Wales, Report on the Mental Element in Crime (Law Com No 89, 21 June 1978) 28 [51], 30 [55].

    ↑

35. ‘In directing a jury, there is no need to qualify the word “risk”’: Judicial College (UK The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8–6. See also Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) [17.55].

    ↑

36. R v G [2003] UKHL 50.

    ↑

37. The appellant in Aubrey described the English test in these terms and argued that it ‘should lead this Court to replace the requirement of foresight of possibility with a test of foresight of probability.’ The High Court rejected the need to replace the test, but accepted the way in which it was characterised, as ignoring a ‘possible’ risk in circumstances where it was unreasonable to do so: Aubrey v The Queen [2017] HCA 18, [48]; (2017) 260 CLR 305, 329–30 [48] (Kiefel CJ, Keane, Nettle, Edelman JJ). See also the discussion that follows from 330 [49] to 331 [50].

    ↑

38. Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) [17.55].

    ↑

39. R v Cunningham (1957) 2 QB 396. See also the discussion of the history in Lord Diplock’s judgment: Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, 351–4, although note that Lord Diplock objects to the ‘subjective’ vs ‘objective’ characterisation of the various definitions.

    ↑

40. In the view of the House of Lords, ‘The label of “objective” or “subjective” solves nothing’: Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, 342 (per Lord Diplock, Lord Keith of Kinkel and Lord Roskill). Regardless of this, and based on the model direction formulated by Lord Diplock, the case became synonymous with a test for recklessness that could be purely objective. As Lord Steyn pointed out in R v G, ‘Lord Diplock’s formulation leaves no room, in the great majority of cases, for any inquiry into the defendant’s state of mind’. Thus, Lord Steyn referred to ‘the objective mould into which the Caldwell analysis forced recklessness’: R v G [2003] UKHL 50, [47],[54].

    ↑

41. R v G [2003] UKHL 50.

    ↑

42. R v Cunningham (1957) 2 QB 396, 399. This test was attributed by the Cunningham court to the first edition of C. S. Kenny’s Outlines of Criminal Law (1902), which it said was ‘repeated at p.186 of the 16th edition edited by Mr J. W. Cecil Turner and published in 1952’:

    ↑

43. Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, 354 (Lord Diplock). The decision in Caldwell related to criminal property damage of a kind that could endanger life. It was subsequently applied to reckless driving cases. There was dispute about whether it applied more generally to offences against the person: Law Commission of England and Wales, Legislating the Criminal Code: Offences against the Person and General Principles (Law Com Report No 218, November 1993) 12-13 [9.4]-[9.6].

    ↑

44. Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 44.

    ↑

45. Ibid. More recently, Jeremy Horder commented that in R v G, Lord Bingham’s judgment referred to ‘the substance of the criticisms of’ Caldwell as ‘the lack of legal foundation for the decision [and] the unfairness of its effects in some cases’: Jeremy Horder, Ashworth’s Principles of Criminal Law (Oxford University Press, 10th ed, 2022) 222.

    ↑

46. R v G [2003] UKHL 50 [41] (Lord Bingham).

    ↑

47. Law Commission of England and Wales, A Criminal Code for England and Wales—Vol 1 Report and Draft Criminal Code Bill (Law Com Report No 177, 1989) 51–2 (cl 18(c)).

    ↑

48. R v G [2003] UKHL 50 [32] (Lord Bingham).

    ↑

49. Ibid [33] (Lord Bingham).

    ↑

50. In 2014, the Law Commission referred to it as an objective requirement. Posing the question whether the R v G requirement that the risk ‘was unjustified in the circumstances’ applies to section 20 OAP offences, it said, ‘is the test one of “awareness without objective justification”, or “awareness” alone?’ Law Commission of England and Wales, Reform of Offences against the Person: A Scoping Consultation Paper (Consultation Paper No 217, 2014) 27 [2.96] (emphasis added).

    ↑

51. Judicial College (UK The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8-6 [3]–[4]; R v G [2003] UKHL 50 [32]–[33] (Lord Bingham), [54]–[55], [58] (Lord Steyn).

    ↑

52. Law Commission of England and Wales, Reform of Offences against the Person: A Scoping Consultation Paper (Consultation Paper No 217, 2014) 12 [2.26].

    ↑

53. According to France, ‘Such an analysis necessarily allows the accused to bring into [consideration] all of his or her capabilities and incapacities. If the accused is slow, young, infirm, absent-minded, inexperienced or anything else, this will feed into the relevant situation and produce the state of mind that can be assessed as culpable or not’: Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 49. Although writing about recklessness in New Zealand, this aspect of France’s characterisation of ‘the subjective approach’ appears to be consistent with the approach taken by the courts in England and Wales since R v G.

    ↑

54. R v Stephenson [1979] QB 695.

    ↑

55. Ibid 703; cited in R v G [2003] UKHL 50 [15] (Lord Bingham).

    ↑

56. Lord Bingham cautioned that he was ‘not addressing the meaning of “reckless” in any other statutory or common law context’:
    
    R v G [2003] UKHL 50 [28] (Lord Bingham); and see [69] (Lord Rodger).

    ↑

57. Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868; [2005] QB 73, [12]: ‘The issue as to the proper approach to the concept of recklessness in the criminal law appears to us to have been resolved by the decision of the House of Lords in G. Although the case was concerned with the definition of recklessness in Section 1 of the Criminal Damage Act 1971 … general principles were laid down’; Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) [17.54]-[17.55]. The Crown Court Compendium says it ‘likely’ applies to ‘all statutory offences of recklessness unless Parliament has explicitly provided otherwise’: Judicial College (UK The Crown Court Compendium–Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8–6 [3]. The Law Commission of England and Wales says ‘We assume that the [R v G definition] now applies in relation to assault and battery’: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 12 [2.14].

    ↑

58. Mark Lucraft (ed), Archbold Criminal Pleading, Evidence and Practice (Sweet and Maxwell, 2023 ed, 2022) [17-54].

    ↑

59. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 81 [4.150]. See also Law Commission of England and Wales, Reform of Offences against the Person: A Scoping Consultation Paper (Consultation Paper No 217, 2014) 27 [2.96].

    ↑

60. Judicial College (UK), The Crown Court Compendium—Part I: Jury and Trial Management and Summing Up (Report, June 2022) 8–10 [1], [3]. Ormerod and Laird say that The Crown Court Compendium uses the R v G definition for malice offences, but this is incorrect. They cite the sections of the Compendium dealing with recklessness (part 8-2, at pages 8-6–8–9), not those dealing specifically with malice offences (part 8-3, at pages 8-10–8-11): David Ormerod and Karl Laird, Smith, Hogan and Ormerod’s Criminal Law (Oxford University Press, 16th ed, 2021) 107 [3.2.2.4], 113.

    ↑

61. R v Brady [2006] EWCA Crim 2413, [15]. For this reason, the Law Commission has said that it thinks the additional R v G ‘reasonableness’ requirement now applies to section 20 as well: Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 18 [2.35].

    ↑

62. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 5 [1.15], 6 [1.17]–[1.18].

    ↑

63. Law Commission of England and Wales, A Criminal Code for England and Wales – Vol 1 Report and Draft Criminal Code Bill (Law Com Report No 177, 1989); Law Commission of England and Wales, A Criminal Code for England and Wales – Vol 2 Commentary on Draft Criminal Code Bill (Law Com Report No 177, April 1989).

    ↑

64. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 81 [4.148].

    ↑

65. In relation to recklessness, see R v Cunningham (1957) 2 QB 396; R v Coleman [1990] 19 NSWLR 467, 476–7 (Hunt J).

    ↑

66. Crimes Amendment Act 2007 (NSW). Previously, ‘malice’ was an element of various offences against the person and was defined to include acts done ‘with indifference to human life or suffering … or done recklessly or wantonly’ Crimes Act 1900 (NSW) s 5,
    
    as in operation before the Crimes Amendment Act 2007 (NSW) took effect: New South Wales, Parliamentary Debates, Legislative Assembly, 25 September 2007, 2257 (Mr Collier, Parliamentary Secretary).

    ↑

67. The Parliamentary Secretary explained that ‘[t]he term “recklessly” … is well-known to the criminal law’.

    ↑

68. Crimes Act 1900 (NSW) s 18(1). Murder may also be committed if a person is killed ‘during or immediately after the commission, by the accused … of a crime punishable by imprisonment for life or for 25 years’:

    ↑

69. Judicial Commission of New South Wales, ‘ [5–6310] Suggested direction — mental element of murder’, Criminal Trial Courts Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/criminal/murder.html#p5>. The Bench Book also notes, in a general introductory section on murder: ‘In some cases there may be little difference between doing an act with an intention to kill (or to inflict grievous bodily harm) and doing an act in the recognition that it would probably cause death’: at ‘[5–6300] Introduction’, citing Campbell v R [2014] NSWCCA 175 [311].

    ↑

70. Crimes Act 1900 (NSW) s 18(2)(a).

    ↑

71. Judicial Commission of New South Wales, ‘[5–6300] Introduction’, Criminal Trial Courts Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/criminal/murder.html#p5–6300>.

    ↑

72. Crimes Act 1900 (NSW) s 19A. This penalty is mandatory if the victim was an on-duty police officer or killed because of their role as a police officer: ibid s 19B.

    ↑

73. Crimes Act 1900 (NSW) s 33(1).

    ↑

74. Ibid s 33(3).

    ↑

75. Ibid s 35(5).

    ↑

76. ‘At common law, the words “grievous bodily harm” are given their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” simply means “really serious”’: Judicial Commission of New South Wales, ‘[50-070] Recklessly causing grievous bodily harm or wounding: s 35’, Sentencing Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/assault_wounding_offences.html#p50-070>.

    ↑

77. Crimes Act 1900 (NSW) s 4. Section 4 is a general definition section, applying to the entire Crimes Act 1900 (NSW).

    ↑

78. Judicial Commission of New South Wales, ‘ [50-060] Assault occasioning actual bodily harm: s 59’, Sentencing Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/assault_wounding_offences.html#p50-060>.

    ↑

79. Ibid [50-070]. There is no Crimes Act definition for wounding.

    ↑

80. ‘Injury’ and ‘serious injury’: Crimes Act 1958 (Vic) s 15. In Victoria, ‘really serious injury’ is the degree of harm that applies to intentional and reckless murder, however the meaning of this term is not legislated and it ‘is a matter for the jury to determine.’: Judicial College of Victoria, ‘7.2.1 Intentional or Reckless Murder’, Victorian Criminal Charge Book (Online Manual. 27 March 2019) [54] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4478.htm> (citations omitted).

    ↑

81. Judicial Commission of New South Wales, ‘[5–6310] Suggested direction — mental element of murder’, Criminal Trial Courts Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/criminal/murder.html#p5–6310>; R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, 469; R v Coleman [1990] 19 NSWLR 467, 475–6 (Hunt J, Finlay and Allen JJ agreeing).

    ↑

82. Blackwell v The Queen [2011] NSWCCA 93; (2011) 81 NSWLR 119.

    ↑

83. Chen v R [2013] NSWCCA 116, [66]; Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW); Judicial Commission of New South Wales, ‘[4-080] Introduction’, Criminal Trial Courts Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/criminal/recklessness.html#p4-080>.

    ↑

84. Judicial Commission of New South Wales, ‘[4-097] Suggested direction — particular offences following the Crimes Amendment (Reckless Infliction of Harm) Act 2012’, Criminal Trial Courts Bench Book (Online Manual, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/criminal/recklessness.html#p4-097>.

    ↑

85. As set out by Justice Edelman, with reference to what he said was ‘the developed meaning given by all members of this Court in Aubrey’ (which dealt with old NSW offences comparable to the current offences of intentionally or recklessly causing grievous bodily harm): Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [64]; (2021) 274 CLR 177, 203 [64] (Edelman J).

    ↑

86. Aubrey v The Queen [2017] HCA 18, [49] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

87. Justice Edelman has objected to using the concept of ‘social utility’ because it implies ‘a Benthamite metric of overall welfare’. In Justice Edelman’s view, assessing the reasonableness of an act does not require additional explanation in terms of social utility: ‘social utility is a label which conceals the real enquiry—the implicit reasonableness assessment’. Such assessment might involve consideration of the range of factors listed (magnitude of risk, etc): Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [72] (Edelman J), citing Wyong Shire Council v Shirt (1980) 146 CLR 40, 47–8.

    ↑

88. Aubrey v The Queen [2017] HCA 18, [50] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

89. Ibid [49] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

90. Ibid [49], [51] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

91. Ibid [49] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

92. With reference to the level of risk that the applicant in the case himself conceded as having recognised (this case concerned an HIV positive applicant who knew he carried the virus and was accused of recklessly inflicting injury when he had unprotected sex with another person who subsequently caught the virus): ibid [51] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

93. Ibid [50] (Kiefel CJ, Keane, Nettle, Edelman JJ).

    ↑

94. Dr Steven Tudor notes that in everyday usage, ‘Possibility is a binary concept: something is either possible or not; there are no degrees of possibility’: Submission 8 (Dr Steven Tudor).

    ↑

95. See the discussion in Submission 8 (Dr Steven Tudor).

    ↑

96. Model Criminal Code Officers Committee, Model Criminal Code Chapters 1 and 2 General Principles of Criminal Responsibility (Report, December 1992).

    ↑

97. Criminal Code Act 1995 (Cth) ch 2 (‘General principles of criminal responsibility’).

    ↑

98. Both have adopted substantially the same definition of recklessness as in the Commonwealth Criminal Code: Criminal Code 2002 (ACT) s 20; Criminal Code Act 1983 (NT) s 43AK.

    ↑

99. ‘A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.’ The Act specifies that the identification of these four elements ‘does not prevent a law that creates a particular offence from specifying other fault elements’: Criminal Code Act 1995 (Cth) Schedule, s 5.1 The fault elements are defined in ss 5.2-5.5.

    ↑

100. Sometimes Commonwealth offences (usually drug, child exploitation, or telecommunication offences where recklessness may be a fault element) are joint with state offences, so they can appear on the same indictment as the state offences. Whether a joint prosecution is prosecuted by the Commonwealth Director of Public Prosecutions or the state Director of Public Prosecutions is based on an assessment of the relative seriousness of the charges and on a ‘balance of convenience’ test: Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the prosecution process, (Policy, 19 July 2021) 9-10 [3.11].

     ↑

101. Criminal Code Act 1995 (Cth) Schedule, ‘Dictionary’.

     ↑

102. Ibid.

     ↑

103. Crimes Act 1958 (Vic) s 15. Another difference is that the Commonwealth definition of serious harm does not include reference to the destruction of a pregnant woman’s foetus.

     ↑

104. Criminal Code Act 1995 (Cth) Schedule, s 5.4.

     ↑

105. Model Criminal Code Officers Committee, Model Criminal Code Chapters 1 and 2 General Principles of Criminal Responsibility (Report, December 1992) 27.

     ↑

106. Ibid.

     ↑

107. Ibid.

     ↑

108. Attorney-General’s Department (Cth), ‘5.4 Recklessness’, Commonwealth Criminal Code: Guide for Practitioners (Online Guide) 5.4-A <https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-practitioners-draft/part-22-elements-offence/division-5-fault-elements/54-recklessness>; Hann v Director of Public Prosecutions (Cth) [2004] SASC 86, [23]; (2004) 88 SASR 99, 106 [23] (Gray J).

     ↑

109. Hann v Director of Public Prosecutions (Cth) [2004] SASC 86, [23] (Gray J). See generally [23]-[25], [33].

     ↑

110. Ibid [25] n 9 (Gray J), citing Butterworth’s Australian Legal Dictionary (1997) 1128; Butterworth’s Words and Phrases Legally Defined (1989) Vol 4, 474.

     ↑

111. Ibid [33] (Gray J).

     ↑

112. Commonwealth Attorney-General’s Department, ‘5.4 Recklessness’, Commonwealth Criminal Code: Guide for Practitioners (Online Guide) 5.4-Overview <https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-practitioners-draft/part-22-elements-offence/division-5-fault-elements/54-recklessness>.

     ↑

113. Contrary to s 233BAB(5) of the Customs Act 1901 (Cth).

     ↑

114. Hann v Director of Public Prosecutions (Cth) [2004] SASC 86, [26] (Gray J). Justice Gray also noted: ‘s 5.4 of the Criminal Code provides a definition of recklessness. This definition is premised on the proposition that criminal liability should not be imposed unless the accused had knowledge of the substantial risk that his or her conduct was criminal, or knowledge of the substantial risk that his or her conduct would result in a prohibited harm’: at [22].

     ↑

115. Attorney-General’s Department (Cth), ‘5.4 Recklessness’, Commonwealth Criminal Code: Guide for Practitioners (Online Guide) 5.4-A <https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-practitioners-draft/part-22-elements-offence/division-5-fault-elements/54-recklessness> (emphasis in original).

     ↑

116. Explanatory Memorandum, Criminal Code Bill 1994 (Cth) 15.

     ↑

117. Model Criminal Code Officers Committee, Model Criminal Code Chapters 1 and 2 General Principles of Criminal Responsibility (Report, December 1992) 27.

     ↑

118. R v Narongchai Saengsai-Or [2004] NSWCCA 108, [70]; [2004] 61 NSWLR 135, 147 [70] (Bell J, Wood CJ and Simpson J agreeing).

     ↑

119. Even though ‘value judgments’ are not ordinarily described as ‘objective’, because the judgment is one that the jury must reach based on its own assessment of what moral behaviour requires, it can be characterised for our purposes as objective.

     ↑

120. Model Criminal Code Officers Committee, Model Criminal Code Chapters 1 and 2 General Principles of Criminal Responsibility (Report, December 1992) 23.

     ↑

121. Penny Crofts et al, Waller and Williams Criminal Law: Text and Cases (LexisNexis Butterworths, 14th ed, 2020) 30.

     ↑

122. Criminal Law Consolidation Act 1935 (SA) ss 11, 13. Although s 12A provides that a person is also guilty of murder if they caused the death of another through an intentional act of violence that was committed while engaged in a major offence.

     ↑

123. Ibid s 22(1), ‘Conduct falling outside the ambit of this Division’.

     ↑

124. Ibid s 22(3).

     ↑

125. Ibid s 29(1), (2), (3).

     ↑

126. Criminal Law Consolidation Act 1935 (SA) s 21. But note that it is not an offence under Division 7A to cause only mental harm ‘unless—(a) the defendant’s conduct gave rise to a situation in which the victim’s life or physical safety was endangered and the mental harm arose out of that situation; or (b) the defendant’s primary purpose was to cause such harm’: at s 22(5).

     ↑

127. Criminal Law Consolidation Act 1935 (SA) s 21.

     ↑

128. Ibid.

     ↑

129. Ibid.

     ↑

130. Courts Administration Authority of South Australia, South Australian Criminal Trials Bench Book (3rd ed, 2021) 248–9 [11], [16], [17]. ‘Probability’ has been defined as ‘more likely than not’: R v Shah [2018] SASCFC 90, [34]; [2018] 85 MVR 291, 303 [34] (Kourakis CJ, Blue and Doyle JJ). However, the South Australian Criminal Trials Bench Book section on murder says: ‘In most cases, it is not desirable to attempt to translate “probable” into mathematical percentages, or into a more precise form such as “more likely than not”: at 249 [18]. ‘Knowledge that [death or grievous bodily harm] is possible is not sufficient’: ibid 249 [17] (emphasis in original).

     ↑

131. Criminal Law Consolidation Act 1935 (SA) s 21. Division 7A also includes a ‘shooting at police officers’ offence that can be committed intentionally or recklessly. The offence contains its own definition of recklessness, which mirrors the general section 21 definition, except that it refers specifically to the harm of a police officer being hit with shot or a bullet (etc): at s 29A(6).

     ↑

132. Courts Administration Authority of South Australia, South Australian Criminal Trials Bench Book (3rd ed, 2021) 275 [12], citing R v Dransfield [2016] SASCFC 68, [21].

     ↑

133. Ducaj v The Queen [2019] SASCFC 152, [32]; (2019) 135 SASR 127, 135–6 [32] (Kourakis CJ, Kelly and Peek JJ agreeing): ‘to attempt to elucidate statutory text by the use of synonyms risks putting a judicial gloss on the statutory language. Recognising that the meaning of ordinary words is a question of fact, the substitution of other words for the statutory text may result in the application of a different meaning by the tribunal of fact to that intended by the legislature. It is the statutory language to which a tribunal of fact must give meaning and then apply to the facts.’

     ↑

134. The Court rejected the prosecution’s contention that ‘creating a substantial risk of an event occurring is, for all practical purposes, the same as engaging in conduct which is likely to cause that event’: Ducaj v The Queen [2019] SASCFC 152, [30].

     ↑

135. Ibid [32] (Kourakis CJ, Keely and Peek JJ agreeing).

     ↑

136. In the context of a discussion of the meaning of the word ‘likely’ in the first branch of endangerment offences (which is a separate element to the ‘reckless indifference’ element of these offences): Courts Administration Authority of South Australia, South Australian Criminal Trials Bench Book (3rd ed, 2021) 286 [29].

     ↑

137. Submission 10 (Office of Public Prosecutions).

     ↑

138. Ibid (emphasis in original).

     ↑

139. Model Criminal Code Officers Committee, Model Criminal Code Chapters 1 and 2 General Principles of Criminal Responsibility (Report, December 1992) 27.

     ↑

140. See discussion in paragraph [6.69].

     ↑

141. Ducaj v The Queen [2019] SASCFC 152, [75] (Stanley J). Justice Stanley cites the High Court’s decision in Boughey v The Queen (1986) 161 CLR 10. He says the High Court held that in ‘a comparable provision’, ‘the word “likely” was used in its ordinary meaning, namely, to convey the notion of a substantial ie a real and not remote chance regardless of whether that chance was more or less than 50%.’

     ↑

142. Ibid [76] (Stanley J), citing Nelson v Police [2011] SASC 55. In Nelson, Chief Justice Doyle said that the meaning of ‘recklessly indifferent’ in endangerment offences (which we discuss below) requires ‘proof of … conduct giving rise to a probability of harm, or substantial risk of harm, and awareness of that probability or substantial risk of harm, and a decision to engage in the relevant conduct nevertheless.’ He said that the definition of ‘recklessly’ in section 21 is the same: both the ‘causing harm’ and ‘endangerment’ offences require conduct that is ‘likely’ to cause harm (or endanger a person). Assessing ‘likelihood’ involves ‘consideration [of] whether the act creates a real or substantial risk of harm’: Nelson v Police [2011] SASC 55, [6], [13].

     ↑

143. R v McFarlane [2022] SADC 155, [6] (Stretton J). For the purposes of the section 20A offence of choking, suffocation or strangulation in a domestic setting, Judge Fuller in the South Australian District Court defined recklessness as involving foresight of a ‘probable’ risk and rejected the prosecution’s submission that a possibility threshold applies. While there is no statutory definition of recklessness for the purposes of the section 20A offence, Judge Fuller commented that a ‘possibility’ test is lower than the ‘substantial’ risk test set out in section 21. She found that the common law Crabbe test (followed in Victoria in Campbell) is appropriate given the choking offence is ‘an indicator of escalation to domestic homicide’: R v Fraser [2020] SADC 127 [31] and see generally [26]-[31]. We discuss Victoria’s new choking offences in Chapter 9.

     ↑

144. R v Shah [2018] SASCFC 90, [36] (Kourakis CJ, Blue and Doyle JJ).

     ↑

145. Ibid [37] (Kourakis CJ, Blue and Doyle JJ), citing The Queen v O (Supreme Court of South Australia, Bleby J, 19 June 1997).

     ↑

146. Ibid [46] (Kourakis CJ, Blue and Doyle JJ).

     ↑

147. Criminal Law Consolidation Act 1935 (SA) s 22(4).

     ↑

148. ‘Where a person, without lawful excuse, does an act or makes an omission—(a) knowing that the act or omission is likely to endanger the life of [or cause serious harm to; or cause harm to] another; and (b) intending to endanger the life of [or cause serious harm to; or cause harm to] another or being recklessly indifferent as to whether the life of another is endangered [or such harm is caused], that person is guilty of an offence’: Criminal Law Consolidation Act 1935 (SA) s 29(1), (2), (3) (emphasis added).

     ↑

149. R v Shah [2018] SASCFC 90, [33] (Kourakis CJ, Blue and Doyle JJ).

     ↑

150. Ibid [45] (Kourakis CJ, Blue and Doyle JJ). The Court said the trial judge had erred by directing a jury that ‘reckless indifference’ for endangerment offences required ‘no more than that a life might be endangered’: at [7] (Kourakis CJ, Blue and Doyle JJ) (emphasis in original). The Criminal Trials Bench Book similarly explains that ‘reckless indifference’ for the purpose of the endangerment offences ‘means that the … accused knew the conduct was likely to endanger life’: Courts Administration Authority of South Australia, South Australian Criminal Trials Bench Book (3rd ed, 2021) 286–7 [35], 287 [37] (‘awareness of the possibility’ is insufficient).

     ↑

151. Sections 19 (unlawful threats), 32C (spiking food or beverage), 85(1) (arson), 85(1) (property damage), 85A (endangering property), 85B (causing a bushfire), 245 (interfering with jurors), 254 (escape from lawful custody), 255 (harbouring an escapee) and 257 (criminal defamation): R v Shah [2018] SASCFC 90, [42] (Kourakis CJ, Blue and Doyle JJ).

     ↑

152. ‘[A] person is recklessly indifferent to the fact that another person does not consent to an act … if he or she—(a) is aware of the possibility that the other person might not be consenting … but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting … but fails to take reasonable steps to ascertain whether the other person does in fact consent …; or (c) does not give any thought as to whether or not the other person is consenting …’: Criminal Law Consolidation Act 1935 (SA) s 47.

     ↑

153. R v Shah [2018] SASCFC 90, [42] (Kourakis CJ, Blue and Doyle JJ).

     ↑

154. Ibid [43] (Kourakis CJ, Blue and Doyle JJ).

     ↑

155. This was historically the case for all common law offences: ibid [34].

     ↑

156. Courts Administration Authority of South Australia, South Australian Criminal Trials Bench Book (3rd ed, 2021) 279, 284.

     ↑

157. Ibid 279 n 14, 284 n 18.

     ↑

158. Julia Tolmie et al, Criminal Law in Aotearoa New Zealand (LexisNexis NZ Limited, 2022) 23–4. New Zealand’s Crimes Act provides that no one shall be convicted of a common law offence or an offence under British legislation. However, people can still be punished by Parliament for contempt and under Court Martial or by officers of the New Zealand armed forces: Crimes Act 1961 (NZ) s 9.

     ↑

159. Crimes Act 1961 (NZ) s 172(1).

     ↑

160. Sentencing Act 2002 (NZ) s 102(1).

     ↑

161. Assault is defined in section 2 as ‘the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose’. Section 196 provides the penalty: Crimes Act 1961 (NZ) ss 2, 196.

     ↑

162. Ibid s 2.

     ↑

163. Courts of New Zealand, ‘Definitions Used in the Question Trails’, Jury directions and question trails (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/definitions-used-in-the-question-trails/>.

     ↑

164. Ibid.

     ↑

165. Ibid.

     ↑

166. ‘Culpable homicide is murder in each of the following cases: … (b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not’: Crimes Act 1961 (NZ) s 167(b).

     ↑

167. Courts of New Zealand, ‘Murder or Manslaughter—Standard Case (Sections 167(a)–(b) and 171 Crimes Act 1961)’, Jury directions and question trails – Homicide (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/homicide/murder-or-manslaughter-standard-case/>.

     ↑

168. Ibid; see also Julia Tolmie et al, Criminal Law in Aotearoa New Zealand (LexisNexis NZ Limited, 2022) 164–5.

     ↑

169. Courts of New Zealand, ‘Definitions Used in the Question Trails’, Jury directions and question trails (Web Page)
     
     <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/definitions-used-in-the-question-trails/>.

     ↑

170. See, eg, Courts of New Zealand, ‘Wounding, Etc. with Reckless Disregard for the Safety of Others (Section 188(2) Crimes Act 1961)’, Jury directions and question trails – Violence, threats, and weapon offences (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/violence-threats-and-weapon-offences/wounding-etc-with-reckless-disregard-for-the-safety-of-others-section-1882-crimes-act-1961/>; Courts of New Zealand, ‘Injuring with Reckless Disregard for the Safety of Others (Section 189(2) Crimes Act 1961)’, Jury directions and question trails – Violence, threats, and weapon offences (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/violence-threats-and-weapon-offences/injuring-with-reckless-disregard-for-the-safety-of-others-section-189-2-crimes-act-1961/>.

     ↑

171. R v Harney [1987] NZCA 86; [1987] 2 NZLR 576, 579; Hilder v Police [1989] NZHC 30; [1989] 4 CRNZ 232; see also Julia Tolmie et al, Criminal Law in Aotearoa New Zealand (LexisNexis NZ Limited, 2022) 164–5.

     ↑

172. Evans, Amelia, ‘Critique of the Criminalisation of Sexual HIV Transmission’ (2007) 38(3) Victoria University of Wellington Law Review 517, 530; see also Julia Tolmie et al, Criminal Law in Aotearoa New Zealand (LexisNexis NZ Limited, 2022) 164–5.

     ↑

173. Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 44–45.

     ↑

174. R v Howe [1982] 1 NZLR 618.

     ↑

175. Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 44 (emphasis omitted).

     ↑

176. Ibid; see also Julia Tolmie et al, Criminal Law in Aotearoa New Zealand (LexisNexis NZ Limited, 2022) 162–4.

     ↑

177. R v Harney [1987] NZCA 86; Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 45.

     ↑

178. Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43, 45; Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge University Press, 2016) 58.

     ↑

179. The Bill is discussed generally in Simon France, ‘The Mental Element’ (1990) 20(3) Victoria University of Wellington Law Review 43. The definition of recklessness was: ‘A person is reckless as to any consequence … where: (a) The person does or omits to do the act knowing or believing that there is a risk that the consequence will result; and (b) It is, in the circumstances known to the person, unreasonable to take the risk’: at 45.

     ↑

180. Crimes Bill 1989 (NZ) (Explanatory Note No 152–1) vi.

     ↑

181. Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge University Press, 2016) 58–9.

     ↑

182. Cameron v The Queen [2018] 1 NZLR 161, 202 [97]; Nick Chisnall, ‘Case Note: Cameron v R [2017] NZSC 89 – Controlled Drug Analogues, Indeterminacy and Mens Rea under the Misuse of Drugs Act 1975’ [2017] New Zealand Criminal Law Review 256, 264. See also Griffin v R, a strangulation case where the High Court quashed a conviction on a strangulation charge but appeared to accept the trial judge’s description of recklessness as requiring recognition of ‘the real possibility’ of impeding the victim’s normal breathing combined with a requirement that the accused’s actions were unreasonable in the ‘sense that a reasonable and prudent person would not have done’ what he did: Griffin v R [2022] NZHC 2325, [24], [34], [49].

     ↑

183. Courts of New Zealand, ‘Definitions Used in the Question Trails’, Jury directions and question trails (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/definitions-used-in-the-question-trails/>; see also Julia Tolmie et al, Criminal Law in Aotearoa New Zealand (LexisNexis NZ Limited, 2022) 164–5.

     ↑

184. Courts of New Zealand, ‘Definitions Used in the Question Trails’, Jury directions and question trails (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/jury-directions-and-question-trails/definitions-used-in-the-question-trails/>.

     ↑

185. Government of Canada, The Criminal Code of Canada (Web Page, 4 June 2021) <https://justice.gc.ca/eng/csj-sjc/ccc/index.html>.

     ↑

186. It does say that there is a presumption of innocence until a person is convicted or discharged of an offence: Criminal Code, RSC 1985, c C-46, s 6.

     ↑

187. As well as common law and the Criminal Code: ‘There are other federal laws that also contain criminal law but do not form part of the Criminal Code, such as the Firearms Act, the Controlled Drugs and Substances Act, and the Youth Criminal Justice Act’: Government of Canada, The Criminal Code of Canada (Web Page, 4 June 2021) <https://justice.gc.ca/eng/csj-sjc/ccc/index.html>.

     ↑

188. In relation to assault: John L Gibson and Henry Waldock, Canadian Criminal Code Offences (Thomson Reuters, Online Encyclopedia, 2023) § 4:31. An exception is first degree murder, where the offender ‘means’ to cause death and it was ‘planned and deliberate’: Criminal Code, RSC 1985, c C-46, ss 229(a)(i), 231; John L Gibson and Henry Waldock, Canadian Criminal Code Offences (Thomson Reuters, Online Encyclopedia, 2023) § 30.7.

     ↑

189. Criminal Code, RSC 1985, c C-46, ss 235, 745(a).

     ↑

190. Ibid ss 235, 745(c).

     ↑

191. Ibid s 219.

     ↑

192. Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge University Press, 2016) 35, quoting R v Tutton [1989] 1 SCR 1392, 1403.

     ↑

193. Criminal Code, RSC 1985, c C-46, s 2.

     ↑

194. See the discussion in R v Barca [2022] MBCA 80, [76] – [97] (Manitoba Court of Appeal) (Beard JA).

     ↑

195. Criminal Code, RSC 1985, c. C-46, s 229(a)(ii).

     ↑

196. R v Cooper 1993 CanLII 147 (SCC); [1993] 1 SCR 146, 154–5 (Cory J). R v Nygaard 1989 CanLII 6 (SCC); [1989] 2 SCR 1074, 1075–6, 1088; The Canadian offence of murder is further complicated by being divided into first and second degree murder. Murder is first degree murder when it is ‘planned and deliberate’, or in specific situations that are listed, for example, if the victim was a police officer. ‘All murder that is not first degree murder is second degree murder’: Criminal Code, RSC 1985, c C-46, s 231.

     ↑

197. R v Davis 1999 CanLII 14505 (MB KB), [35]; (1999), 143 Man.R.(2d) 105 (QB), [35] (Beard J) (Court of Queen’s Bench of Manitoba). Criminal harassment involves engaging in stalking behaviour while knowing or being reckless about whether the person targeted is harassed: Criminal Code, RSC 1985, c C-46, s 264.

     ↑

198. Sansregret v The Queen 1985 CanLII 79 (SCC), [16]; [1985] 1 SCR 570, 582 (McIntyre J) (emphasis added).

     ↑

199. In R v Hamilton (2005) SCC 47; [2005] 2 SCR 432, Justice Fish, for the majority, noted that the Court in Sansregret ‘did not set out the degree of risk required’: at [32]. In R v Barca [2022] MBCA 80, Madam Justice Beard, for the Court, described Sansregret as providing the ‘most often-cited definition of recklessness’: at [78].

     ↑

200. Justice Fish in the Canadian Supreme Court has described the test as having ‘venerable roots in Canada and in other common law jurisdictions’. The Court was considering the offence of counselling the commission of indictable offences not committed. In that context, Justice Fish, for the majority, said that ‘conscious disregard of [a] substantial and unjustified risk’ involved the accused having ‘knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed’ (emphasis added). In an aside, Justice Fish quoted a discussion of recklessness in a Canadian Criminal Law textbook: ‘courts have arbitrarily endorsed varying standards: “uncertainty, probability, likelihood [and] possibility” – and, in some instances, “probability” and “possibility” in the very same case.’ However, Justice Fish said he ‘had not been invited to consider afresh the governing principles of recklessness as a fault element under the criminal law of Canada. And I should not be taken to have done so.’ R v Hamilton (2005) SCC 47 [28], [29], [32] citing D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), 225–6, [33].

     ↑

201. R v Zora 2020 SCC 14, [2020] 2 SCR 3; Criminal Code, RSC 1985, c. C-46, s 145(3).

     ↑

202. R v Zora 2020 SCC 14, [109] (emphasis added).

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203. Ibid [118]. The following cases are listed in support of the claim that the Court has previously ‘adopted this standard of risk’: R v Hamilton 2005 SCC 47, [27]-[29]; Leary v The Queen 1977 CanLII 2 (SCC); [1978] 1 SCR 29, 35 (per Dickson J dissenting, but not on this point).

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204. R v Zora 2020 SCC 14, [118].

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205. Steve Coughlan, Adelina Iftene and Rob Currie, Annual Review of Criminal Law 2020 (Carswell Thomson Reuters, 2021) ch 1, 13.

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206. In R v Barca [2022] MBCA 80, Madam Justice Beard commented: ‘Whether the criteria of “substantial and unjustified” apply in all cases where recklessness is at issue has been raised in the jurisprudence but not determined. I, as well, would decline to determine that larger issue.’: at [97].

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207. Sansregret v The Queen 1985 CanLII 79 (SCC), [16] (McIntyre J); R v Tatton [2015] SCC 33, [49] (Moldaver J for the Court); in relation to murder: R v Cooper [1993] 1 SCR 146, 156 (Cooper J for the majority).

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208. Cited in R v Barca [2022] MBCA 80, [87], [92] (Manitoba Court of Appeal) (Beard JA).

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209. R v Zora 2020 SCC 14, [118]. Note that subsequently, in the Manitoba Court of Appeal, Madam Justice Beard said: ‘[W]hether the risk is substantial and unjustified is determined on an objective basis, although the accused must have knowledge of the facts that make it so.’; R v Barca [2022] MBCA 80, [96].

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210. R v JF 2008 SCC 60, [9]; [2008] 3 SCR 215, 222-223 [9] (emphasis omitted).

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211. United States Bureau of Justice Statistics, ‘The Structure of the Justice System’, The Justice System, (Web Page, 3 June 2021) <https://bjs.ojp.gov/justice-system#the-structure-of-the-justice-system>.

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212. The first draft of the Model Penal Code was completed by the American Law Institute in 1962. It has been ‘adopted or adapted’ by thirty-four states. A revised version of the Code and accompanying commentary, informed by legislative and judicial responses to the first draft, was published in 1984: American Law Institute, Model Penal Code and Commentaries : (Official Draft and Revised Comments) : With Text of Model Penal Code as Adopted at the 1962 Annual Meeting of the American Law Institute at Washington, D.C., May 24, 1962. (The Institute, 1985) 1–2. ‘Court opinions often cite the MPC as persuasive authority, even if the particular state in which the court resides has not adopted the [Code] provision in question’: D Scott Broyles, Criminal Law in the USA (Kluwer Law International, 2011) 35.

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213. American Law Institute, Model Penal Code and Commentaries : (Official Draft and Revised Comments) : With Text of Model Penal Code as Adopted at the 1962 Annual Meeting of the American Law Institute at Washington, D.C., May 24, 1962. (The Institute, 1985) s 1.13, 2.02(2). Section 1.13 provides that ‘intentionally’ or ‘with intent’ means ‘purposely’. One of the fault elements must be established as a prerequisite for a finding of criminal guilt: Ibid s 2.02(1).

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214. American Law Institute, Model Penal Code and Commentaries : (Official Draft and Revised Comments) : With Text of Model Penal Code as Adopted at the 1962 Annual Meeting of the American Law Institute at Washington, D.C., May 24, 1962. (The Institute, 1985) s 2.02(2)(c). In the Sentencing Commission’s guidelines, the following definition of recklessness is provided for ‘involuntary manslaughter’ but appears to have more general application in the guidelines: ‘a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation’: United States Sentencing Commission, Guidelines Manual (United States Sentencing Commission, November 2023) 54 [2A1.4], 367 [3C1.2(2)].

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215. Matthew R Ginther et al, ‘The Language of Mens Rea’ (2014) 67(5) Vanderbilt Law Review 1327, 1341.

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216. People v Hall 999 P.2d 207 (Colo, 2000), 217–19 (Bender J for the Court); Wayne R LaFave, Substantive Criminal Law (Thomson Reuters, 3rd ed, 2022) ’Recklessness vs intention and knowledge’ 5.4(f). See also Borden v United States 141 S.Ct. 1817 (2021), 1824 (Kagan J).

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217. Congressional Research Service, Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses, No R46836 (Congressional Research Service (Library of Congress), 7 July 2021).

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218. Matthew R Ginther et al, ‘Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt’ (2018) 71(1) Vanderbilt Law Review 241, 245, 254–5; Matthew R Ginther et al, ‘The Language of Mens Rea’ (2014) 67(5) Vanderbilt Law Review 1327, 1336–7.

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219. Congressional Research Service, Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses, No R46836 (Congressional Research Service (Library of Congress), 7 July 2021).

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220. Matthew R Ginther et al, ‘The Language of Mens Rea’ (2014) 67(5) Vanderbilt Law Review 1327, 1363.

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221. Ibid 1340–1359; Francis X Shen et al, ‘Sorting Guilty Minds’ (2011) 86 New York University Law Review 1306.

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222. Matthew R Ginther et al, ‘The Language of Mens Rea’ (2014) 67(5) Vanderbilt Law Review 1327, 1359.

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223. Consultation 9 (Dr Greg Byrne PSM).

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