Recklessness: Report

8. Are there problems with Victoria’s recklessness test?

Overview

• Victoria Police and the Office of Public Prosecutions (OPP) told us that the recklessness threshold causes problems for the prosecution of offences against the person.

• Here we consider if the recklessness threshold:

– is based on a legal error

– is too high

– causes victim dissatisfaction

– is difficult to prove

– is a problem for family violence-related prosecutions.

• The evidence indicates that it is not uniquely hard to prove offences with a recklessness element.

• The evidence also suggests victim dissatisfaction is not directly related to the threshold for recklessness.

• There are many reasons why family violence-related prosecutions present challenges, but they are not tied to the definition of recklessness.

• Other factors may be contributing to the perception of practical problems with the recklessness test. They include the high threshold of the ‘serious injury’ definition, charging practices, and the complexity of the endangerment offences.

• Overall, the Commission’s view is that the recklessness test is not problematic.

Police and prosecution perspectives

8.1 Victoria Police and the OPP told us that the recklessness definition needs to change. They proposed alternative definitions (see Chapter 7). The OPP’s view is that Victoria took ‘a wrong turn’ by adopting the R v Crabbe (‘Crabbe’)^[1] (murder) threshold for offences against the person in the cases of R v Nuri (‘Nuri’)^[2] and R v Campbell (‘Campbell’).^[3] Victoria Police also noted that case law has ‘cast doubt over the correctness’ of Campbell.^[4]

8.2 Victoria Police and the OPP told us that the current definition has the following interrelated issues:

• It is too close to intent.^[5] In their view, it is ‘unjustifiably high’,^[6] resulting in decisions that are ‘incongruous to justice’,^[7] and undesirable outcomes^[8] that do not reflect the gravity of harm.^[9]

• It causes victim dissatisfaction.^[10]

• It has practical difficulties that make it hard to prove offences with a recklessness fault element.^[11]

Is the recklessness test based on a legal error?

8.3 We discuss the distinct development of the meaning of recklessness in Victoria in Chapter 3. Victoria’s common law definition of recklessness for offences against the person was set down in the 1995 Victorian case of Campbell, building on the 1985 High Court case of Crabbe.

8.4 The Director of Public Prosecutions (DPP)’s position in the DPP Reference was that the interpretation of ‘recklessly’ adopted in Campbell, applying the Crabbe threshold of probability to non-fatal offences against the person with a recklessness element, was ‘untenable’ and ‘wrongly decided’.^[12] The DPP argued that Campbell was inconsistent with Aubrey v The Queen,^[13] and ‘was directly contrary to the (manifest) intent of the legislature’.^[14] As the DPP pointed out, when the reformed offences against the person were introduced in 1985, acting ‘recklessly’ was described in the second reading speech as being ‘aware that an injury might result.^[15]

8.5 The Court of Appeal declined to determine whether Campbell was rightly or wrongly decided,^[16] but Justice Priest said that the probability test is:

consistent with the ‘spirit’ of the decision in Crabbe, in that it reflects the common law notion of recklessness in murder, the offence in s 17 [of the Crimes Act 1958 (Vic)] arguably being the next most serious non-fatal offence against the person. … in many circumstances, the offence of recklessly causing serious injury will be committed in circumstances which are (or, at least, are not far removed from) the moral equivalence of the offence of intentionally causing serious injury.

That provides a solid basis for demanding that the offence in s 17 must require foresight of the probability that serious injury will result from the relevant act (or omission).^[17]

8.6 In the High Court, the minority had ‘no doubt that the decision in Campbell is wrong’.^[18] Justices Gageler, Gordon and Steward, in the majority, stated that ‘The identified error in Campbell … is not insignificant. If the meaning of a statute is wrong, it should be corrected’, but added that the subsequent legislative amendments made on the basis of Campbell ‘cannot be put to one side’.^[19] The majority concluded that the Campbell definition should stand unless altered by Parliament.^[20] Justice Edelman stated:

By applying the reasoning in [the New South Wales case of] Aubrey it can be seen that the decision in Campbell was wrong. But prior to Aubrey the decision in Campbell could not have been thought to have been plainly wrong …^[21]

8.7 Justice Edelman concluded that the Campbell interpretation of recklessness should continue to apply even though it ‘involves some inconsistency and lack of principle’.^[22]

8.8 During our inquiry, the OPP told us that there is no principled basis for extending the ‘probability’ test beyond homicide offences. The OPP said that murder is a special category of offence. A higher threshold for reckless murder is warranted to distinguish it from manslaughter,^[23] because there is a ‘moral equivalency’ with intentional murder. But the OPP said that in the context of offences against the person, where different penalties apply, the ‘intentional and reckless forms of the offences cannot fairly be considered “comparable in heinousness”’.^[24]

8.9 On the question of legal principle, some stakeholders noted that Campbell stood unchallenged for a long time.^[25] The Criminal Bar Association (CBA) said:

there is some force in the contention that, three decades ago, the courts deviated from the doctrinal purity that had thence seen recklessness require proof only of foresight of the possibility of the prohibited result. But doctrinal purity is hardly a reason to disrupt the operation of laws that have delivered appropriate results for many years.^[26]

Law reform: the intersection of law and policy

8.10 We do not underestimate the concern expressed by members of the High Court that Victoria’s application of the probability threshold is wrong. However, this consideration raises the question of how law and policy intersect.

8.11 The role of the Commission is to assess the overall case for reform, a different function from that of the judicial branch. Law reform requires broader policy considerations, including how the law is operating and whether there are problems in practice, which we discuss in this chapter. It also involves consideration of the benefits of the current definition (see Chapter 10) and the potential impact of reform (see Chapter 11).

Is the recklessness threshold too high?

8.12 Both Victoria Police and the OPP argued that the thresholds for proving recklessness and intention are too close, so that offences with these elements are almost equivalent.^[27] The OPP said that this closeness ‘does away with a meaningful lesser alternative offence’.^[28] In the OPP’s view:

people aren’t being sentenced for what they are morally culpable of; the appropriate charge is falling away.^[29]

8.13 The OPP provided hypothetical scenarios and case studies to illustrate the problems it says exist.^[30] Victoria Police agreed the hypotheticals illustrate that the recklessness threshold in Victoria is too high.^[31] We analyse the hypotheticals and case examples in Chapter 9.

8.14 Most stakeholders disagreed that the threshold for recklessness is too high and does not appropriately capture serious offending. In relation to the OPP’s hypotheticals, we were told that:

• In reality, similar factual scenarios result in convictions for offences that have a recklessness element.

• In many cases, alternative offences are available if a recklessness offence cannot be proved, so there is no ‘gap’ where criminality is not adequately captured and punished.

• If the evidence does not support the charge, it is appropriate that a person is not convicted.

8.15 Victoria Legal Aid (VLA) and the CBA said that the OPP’s hypotheticals do not demonstrate a gap in the law.^[32] The CBA said the current test has:

operated satisfactorily for many years, without any genuine suggestion that [it] has resulted in persons escaping the reach of the criminal law … in circumstances which would be generally considered unjust or inappropriate.^[33]

8.16 VLA told us that it does not see cases that indicate that the recklessness standard is unreasonably high. It has not encountered outcomes related to the definition of recklessness that suggest a change is needed.^[34] It said:

it is difficult to draw a concluded view that [the OPP’s hypotheticals] result in an unfair or inappropriate outcome… This is because, like many factual circumstances, there may be a range of different offences that could be considered, charged, and ultimately proceeded with as the most appropriate charge for finalisation.^[35]

8.17 Our analysis suggests that the additional case studies provided by the OPP can be characterised in the same way (see Chapter 9). It is difficult to conclude the results were inappropriate. The outcomes depend on the inferences available from the surrounding circumstances. Alternative charges were available where the facts did not support an offence with a fault element of recklessness.

8.18 The Law Institute of Victoria (LIV) said there is no evidence to suggest that ‘clearly guilty’ offenders are escaping proper liability.^[36] The LIV said, ‘It is much better not to create a problem where there isn’t one.’^[37] In its view:

The OPP’s inability to point to concrete examples of cases where the current test is not working is demonstrative of the fact that the test is working. People are not walking free where they should obviously have been convicted.^[38]

8.19 Liberty Victoria rejected the idea that the recklessness definition is enabling guilty people to evade responsibility. It asked, ‘where is the actual real-world example of this regime failing because of recklessness as to “probability”?’ ^[39] It said that ‘changing the definition of recklessness is a solution in search of a problem—it has not been demonstrated why such a reform is necessary.’^[40]

8.20 A County Court judge said that it is ‘not hard to fit someone into recklessness even with the probability threshold’. The judge also told us, ‘juries do not have trouble convicting on recklessness. It simply doesn’t happen that people get off’. In the judge’s view, jury verdicts ‘almost inevitably sit squarely with the evidence’.^[41]

Alternative offences are available

8.21 We have a ‘raft of [criminal] charges in Victoria that pick up [a range of offending]’.^[42] There may be multiple charges available to capture the criminality of a single incident.

8.22 In Chapter 4, we listed other possible charges for the offences against the person involving recklessness, noting that their applicability would depend on the evidence in the individual case. The Crimes Act creates some specific statutory alternatives.^[43] If a trial indictment has alternative charges, the jury will consider the most serious charge first. If they do not find the most serious charge proved, they consider the next alternative charge. In a trial for any offence other than treason or murder, the jury may return a verdict for another offence within the jurisdiction of the court if the allegations ‘amount to or include’ that other offence.^[44]

8.23 We heard that people are routinely convicted of offences with an element of recklessness in Victoria.^[45] Many stakeholders also noted the range of alternative charges available if there is not enough evidence to support a particular charge of recklessness.^[46] The County Court said:

there may be sufficient ‘alternative’ charges for consideration by the fact finder that can be brought against an accused, in creating a hierarchy where the prosecution has not discharged its obligation to prove a head charge beyond reasonable doubt.^[47]

8.24 The Court pointed to the example of recklessly causing serious injury:

It may be, depending on the evidence about the accused’s state of mind, that alternative charges of intentionally causing injury, recklessly causing injury or common assault are more appropriate…^[48]

8.25 The LIV noted that in every hypothetical provided by the OPP, alternative charges were available.^[49] It said that a person will not escape liability merely because a specific recklessness charge cannot be proved, they will simply be charged with another offence.^[50] Where a person did not foresee that serious injury was a probable consequence, intentionally causing injury is available, as well as recklessly causing injury and common assault.^[51]

8.26 VLA acknowledged that in some circumstances it can be difficult to predict what kind of injury is likely to result from using force. But it emphasised that ‘scenarios which fall into a gap where there is no appropriate charge [are] just not [something] we see in practice.’^[52]

Scope to reflect moral culpability

8.27 The OPP and Victoria Police raised concerns that alternative charges do not adequately reflect the moral culpability of the offending. But other stakeholders noted that the alternatives are often serious offences with high penalties, providing adequate sentencing scope to capture criminality and penalise the conduct.

8.28 The degree of harm caused and the extent of an offender’s culpability are major components of the seriousness of a crime.^[53] Courts consider the nature of the injury and its impact on the victim in determining an appropriate sentence.^[54] A judge must be careful to sentence a person only for the offence for which they have been found guilty. But the court will consider, among other factors, the seriousness of the injury, including immediate and long-term consequences.^[55]

8.29 The County Court explained that the seriousness of an injury and the degree of recklessness are ‘significant’ sentencing considerations ‘in determining the gravity of the offence and the offender’s culpability.’^[56] The Court added that:

considerations about the seriousness of the injury take into account present and future harm, physical and psychological harms, the impact of the injuries on the victim, how the injuries were inflicted and whether the accused delayed, refused or obstructed the victim from receiving medical assistance for the injury or to identify its cause.^[57]

8.30 In some circumstances, there may be little difference between recklessness about a result and intention to cause it. This arises at the most serious end of the spectrum of recklessness offences. In these cases, the upper end of the available penalties for recklessness offences can capture the moral culpability involved. Hamid v The Queen involved a guilty plea to recklessly causing serious injury and resulted in a sentence of 10 years imprisonment. The court noted that, where the facts are similar to intentionally causing serious injury, ‘no meaningful differentiation in sentence between the two types of offence will be warranted’.^[58]

The recklessness threshold is not producing undesirable outcomes

8.31 The examples and analysis do not provide strong evidence that the recklessness test leads to undesirable outcomes. We heard from many stakeholders that factual scenarios similar to the examples provided result in convictions for recklessness offences. Where the facts do not support conviction, alternative offences are available. These are often serious offences with high penalties. They offer scope to adequately capture the moral culpability of the offending.

The impact of the recklessness threshold on prosecutorial discretion

8.32 The OPP told us that the problems with recklessness it identified are uniquely visible to prosecuting agencies because they arise in the context of ‘prosecutorial discretion’.^[59] It added that when intentionally and recklessly causing serious injury are both charged, the prosecution has ‘no incentive’ to reject a plea offer to the recklessness offence because the offences are so close.^[60] The OPP also described the recklessness test as ‘requiring’ prosecutors to resolve cases on a basis that does not always reflect moral culpability or the harm done to victims.^[61]

Decisions about whether charges proceed

8.33 The OPP told us that the recklessness test requires prosecutors to make difficult decisions about whether to proceed with charges. It said that charges of recklessly causing serious injury or injury, or the endangerment offences, are commonly withdrawn before committal or discontinued ahead of trial because of concerns about meeting the recklessness threshold.^[62]

8.34 The DPP Policy provides that a prosecution should only proceed if there is a reasonable prospect of conviction and it is in the public interest.^[63]

8.35 The OPP reviewed 300 finalised cases involving charges of recklessly causing serious injury between 2018 and 2022 (‘the OPP file review’).^[64] Of the 300 cases, 179 had one or more recklessly causing serious injury charges withdrawn, discontinued, or acquitted at trial. These were classified in the OPP file review as ‘unsuccessful’^[65] or ‘partially successful’.^[66] Table 19 sets out reasons the OPP identified as relevant in assessing why the charges did not proceed.^[67] We note that difficulty proving recklessness was a factor in 14 cases (7.8 per cent).

Table 19: The OPP file review: reasons why recklessly causing serious injury did not proceed

Resolution

8.36 Across Australian criminal jurisdictions, cases are finalised most frequently by the accused pleading guilty.^[70] An accused person can choose to plead guilty at any stage of criminal proceedings. By pleading guilty to a charge, the accused admits every element of the offence and the case resolves without the need for a trial.

8.37 Where an accused person is charged with more than one offence, there might be negotiation between the defence and prosecution to arrive at an agreed resolution. It may include the prosecution agreeing to withdraw or discontinue charges or accepting a plea of guilty to less serious charges.^[71]

8.38 Plea negotiations are very common.^[72] The most common offences negotiated are those where there are multiple alternative charges available. Examples are intentionally or recklessly causing serious injury and intentionally or recklessly causing injury, and gross violence offences.^[73]

8.39 In the summary jurisdiction, police prosecutors decide whether and how to resolve a matter. In the indictable jurisdiction, the decision to resolve a case is made by a Crown Prosecutor or the DPP. The DPP Policy provides that resolution may only occur if it is in the public interest.^[74]

8.40 Prosecutorial discretion is exercised in light of the facts and circumstances of each case.^[75] Resolution decisions might also take into account pragmatic reasons, like avoiding the delay of trial, or where the sentence for a lesser charge is likely to be in a similar range to the primary charge. There are many benefits to early resolution, but sometimes the facts may not align with a lesser charge.^[76] And while there are guidelines about resolution, ‘The discretion exercised by prosecutors, including that used for plea negotiations … remains largely opaque.’^[77]

8.41 In the OPP file review, 81 cases (27 per cent) resolved to a plea of guilty to all recklessly causing serious injury charges. The OPP is concerned that the prosecution has ‘no incentive … not to accept a plea of guilty to [recklessly causing serious injury]’.^[78] However, 30 files (10 per cent) resulted in a plea of guilty to a more serious charge and the withdrawal of the alternative recklessly causing serious injury charge.^[79]

8.42 The OPP also said that recklessly causing serious injury charges are commonly resolved to recklessly causing injury or negligently causing serious injury. This happens because of concerns about whether the prosecution can prove the accused was aware of the probability of serious injury.^[80] In the OPP file review, 115 cases (38 per cent) resulted in resolution to lesser alternatives.^[81] It is unclear how many of these involved a decision based on the perceived difficulty of proving recklessness. The OPP noted that difficulties proving serious injury affected a large proportion of cases where a recklessly causing serious injury charge did not proceed.^[82]

Recklessness is purposely close to intent and offers resolution opportunities

8.43 In Chapter 3 we discussed the history of Victoria’s offences against the person. The modernised offences introduced in Victoria in 1985 were based on a Criminal Law Revision Committee report for England and Wales. The report proposed that intentionally causing serious injury should have a maximum penalty of life imprisonment, and recklessly causing serious injury a maximum penalty of five years.^[83] The difference in these penalties indicated a significant difference between culpability for intentional and recklessness offences.

8.44 In contrast, the maximum penalties for equivalent Victorian offences were set as 15 years imprisonment for intentionally causing serious injury and 10 years for recklessly causing serious injury.^[84] The smaller gap between penalties suggests that the intentional and recklessness offences were considered to be relatively close in culpability.

8.45 The LIV suggested the recklessness threshold is:

set appropriately high considering the criminal penalties and degree of criminal culpability attached to recklessness offences.^[85]

8.46 When we asked the County Court about recklessness being close to intention, a judge told us that although foresight of probable risk is a ‘state of mind [that] is pretty close to intention’, this is not problematic. Recklessness remains distinct from intention because it does not have ‘the directness of intention’.^[86] A judge of the Supreme Court told us ‘there is a moral distinction between intentional and reckless acts.’^[87]

8.47 It is the prosecution’s role to exercise its discretion carefully when deciding:

• which charges are appropriate

• if they should proceed

• if, when, and how each case should be resolved.

8.48 As a judge of the County Court explained:

When talking about offences against the person, you have to be rigorous about framing the charges. You should not work backwards to reason from [the fact of an] injury to [the accused person’s] intent [to cause that injury] and allow the consequences to unfairly impact your reasoning.^[88]

8.49 Offences against the person with a fault element of recklessness provide the prosecution with alternative charging options to intentional offences. Such options can help achieve resolution in appropriate cases.^[89] A magistrate described recklessness as an alternative to intention as a ‘reasonable bargaining tool’.^[90] A County Court judge explained:

In pragmatic terms, having recklessness with a 5-year lower maximum penalty [than intention] is a significant dealmaker [in terms of resolution]. There is still a lot of scope … for having high-end recklessness close in sentencing to the low-end of intention, so in practical terms it’s achieving an appropriate sentence …^[91]

8.50 A judge of the Supreme Court suggested that if there is concern that cases are settling ‘too lightly’, then it is open to the prosecution to ‘run the case’.^[92]

Is the recklessness test causing victim dissatisfaction?

8.51 The OPP and Victoria Police told us that the way the recklessness test is working in practice is causing victim dissatisfaction. The OPP said it can be difficult for victims ‘to accept that a person who foresees the possibility of an outcome, and acts anyway, may not legally be held responsible for that outcome’, especially when ‘the ordinary understanding of recklessness … can indicate conduct which is negligent, careless, rash or incautious’.^[93]

8.52 The OPP also told us that:

it is not uncommon for a victim who sustains a serious injury, but sees the case resolve on the basis of a charge other than recklessly causing serious injury, to feel a significant sense of grievance …^[94]

8.53 Victoria Police told us victims feel disappointed if charges are downgraded on a plea, and it may be especially difficult for victims who have suffered serious injuries to accept a finding of guilt for recklessly causing injury rather than recklessly causing serious injury.^[95]

Victim dissatisfaction stems from broad issues

8.54 To better understand victim perspectives:

• We considered submissions from the Victims of Crime Commissioner and Caterina Politi.^[96]

• We consulted with members of the Victim Survivors’ Advisory Council.^[97]

• We asked the OPP to provide examples of victim dissatisfaction with the recklessness test or identify victims who could share their experiences with offences against the person involving recklessness.^[98] One victim was identified by the OPP and Victoria Police.^[99]

8.55 One victim contacted us directly. She told us that the person who offended against her was charged with numerous offences including stalking, intentionally causing serious injury, and recklessly causing serious injury. It was important to the victim that a causing serious injury charge be included in any resolution, to recognise the injury caused. But an injury charge was not included in the plea resolution. The victim felt her views were not properly considered, and the process and reasons for resolution were not explained well.^[100]

8.56 A police member who was the victim of a punch that broke his jaw (see Chapter 9) also expressed disappointment with the outcome of recklessly causing injury, and the resolution process, because he felt that he ‘didn’t have much say [in the resolution]’.

8.57 We did not hear from any other victims or agencies about victim dissatisfaction being linked to recklessness offences in particular.

8.58 The Victims of Crime Commissioner told us that victims have not raised recklessness as a specific issue with her.^[101] The Commissioner expressed concern in response to the OPP and Victoria Police submissions to our inquiry that some unlawful injury matters are not receiving an appropriate justice response.^[102] However, she noted that many issues that regularly arise for victims ‘relate to how well justice agencies have regard

to, and comply with, victim entitlements under the Victims’ Charter Act 2006 (Vic)’ (Victims’ Charter).^[103]

8.59 The Parliamentary Inquiry into Victoria’s Criminal Justice System found that many victims ‘feel unsupported and isolated during criminal proceedings.’^[104] A key issue faced by many victims is a lack of understanding about the criminal justice system, which can lead to unrealistic expectations about outcomes.^[105] When it comes to plea negotiations, Flynn and Freiberg note that victims can ‘feel disregarded, overlooked and ignored’,^[106] and may perceive that their experience is being ‘downgrad[ed]’.^[107]

8.60 A 2021 report by the Department of Justice and Community Safety found that victims in the lower courts often feel disengaged because of a lack of information about police charging practices and plea negotiations.^[108] They may find the process distressing or unjust when they do not understand the reasons for decisions.^[109]

8.61 A 2019 report by the Centre for Innovative Justice (CIJ), RMIT University, suggested that prosecution lawyers could better manage victims’ expectations by reinforcing that:

• a criminal prosecution is inherently uncertain, and cases are regularly reviewed

• multiple charges are routinely filed in respect of the same offence, and the highest charge filed may not be the most appropriate one

• resolutions are common.^[110]

8.62 The DPP Policy has a chapter dedicated to victims. It provides guidelines about early engagement and appropriate communication.^[111]

8.63 The CIJ suggested that the OPP should liaise with Victoria Police to ‘support police officers to communicate effectively with victims about prosecution processes and decisions.’^[112] Victoria Police acknowledged that ‘Victim management and engagement is central’, and ‘Expectation management starts with police and goes right through a case’.^[113]

8.64 Victims’ needs are diverse, but what is important for most victims is having their experiences recognised and being supported to understand why particular outcomes occur.^[114] Victim satisfaction levels ‘are highest when agencies have actively provided information and support.’^[115] As the Victims of Crime Commissioner said, ‘much of victims’ dissatisfaction with the justice system can be ameliorated by adherence to the Victims’ Charter principles and having regard to procedural fairness.’^[116]

Are there practical difficulties proving recklessness?

8.65 Victoria Police told us that intention can be easier to establish than recklessness. They said that it is easier to draw inferences from the surrounding circumstances of the conduct, which might include planning an offence. By comparison ‘[i]t’s not that easy to say the accused turned their mind to the probability of [harm] occurring … when it’s a split-second decision.’^[117]

8.66 The OPP emphasised there are practical difficulties proving foresight of probable harm because many offences against the person are ‘committed … in the heat of the moment, often while [people are] affected by alcohol or otherwise acting irrationally.’^[118] The OPP referred to a punch or a kick following an alcohol-fuelled argument as a paradigmatic example. It said that in these cases, without an admission from the accused, ‘it may be a bridge too far’ for a jury to infer the accused was aware their actions would probably cause harm.^[119]

Is proving recklessness reliant on admissions?

8.67 Victoria Police told us: ‘The police interview is a critical component of an investigation when establishing recklessness’, as proving state of mind often depends on an admission.^[120] Victoria Police said a suspect’s subjective state of mind is ‘exceedingly difficult’ to prove without an admission. This can be a problem given that suspects may make a ‘no comment’ interview or may not be fit to be interviewed.^[121]

8.68 The OPP said that even in rare cases where someone admits they foresaw a consequence, that may not be enough to prove recklessness:

the natural inclination of a person to minimise their own conduct means their subjective awareness will more often be expressed in terms of a possibility—‘might have’ or ‘could have’, rather than ‘was likely to’, or ‘probably would’. As the law stands, admissions of that nature may very well not prove recklessness.^[122]

8.69 The issues raised by Victoria Police and the OPP illustrate perceived difficulties in eliciting evidence as to a reckless state of mind. But what a suspect says in a record of interview is not the totality of a case. As Liberty Victoria said:

The actual process for discerning state of mind is about assessing the whole of the evidence, rather than just what the accused says…^[123]

Inferring an accused’s state of mind

8.70 In Chapter 2 we discussed how the law allows an accused person’s state of mind to be proved by drawing reasonable inferences. Several stakeholders told us that issues obtaining evidence of a person’s state of mind are not particular to recklessness.^[124] The CBA said that the probability test does not present a unique difficulty because:

juries approach the appraisal of criminal liability in a sensible and realistic fashion—as they are directed to do—assessing an accused person’s mental state by drawing inferences from their proven actions and the surrounding circumstances.^[125]

8.71 It is not uncommon for juries to find the accused had a particular state of mind at the time of the offending, even though the accused claimed they did not. The High Court has referred to ‘the law’s scepticism in accepting later assertions as to the existence or absence of a mental state which are at odds with practical experience of life’:^[126]

It is fundamental … that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.^[127]

8.72 In the English case R v G, Lord Bingham explained:

There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the [accused] rarely admits intending the injurious result … the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the [accused] did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept [an accused’s] assertion that [they] never thought of a certain risk when all the circumstances and probabilities and evidence of what [they] did and said at the time show that [they] did or must have done.^[128]

8.73 We asked stakeholders if it is difficult to establish recklessness in cases where an accused appeared to act instantaneously. A magistrate told us that each case turns on its specific facts, but generally there is no problem finding foresight because inferences can be drawn.^[129] VLA said that ‘a jury will be able to infer the accused’s mental state … from all the surrounding evidence, even in short moments.’^[130]

8.74 The Court of Appeal has said it is ‘entirely orthodox’ for the accused’s state of mind to be determined by inferences from all the surrounding circumstances, even in ‘one-punch’ cases that result in traumatic injury.^[131]

8.75 The LIV further explained a jury’s reasoning process:

A jury may be entitled to draw a strong inference that the accused had foresight of the probability of a serious injury, depending on the circumstances and given common knowledge about the likely consequences of certain actions. But if there are other circumstances that do not support such a strong inference, then it may be appropriate that the accused is found … guilty of a lesser charge …

there are cases where a person is entitled to be acquitted and there is nothing inherently wrong about that.^[132]

Recklessness is not uniquely hard to prove

8.76 There is no evidence of any unique difficulty proving recklessness. The recognised challenge for prosecutors, set in all criminal cases, is to meet the standard of proof. The criminal law sets high standards because the consequences of guilty findings for serious offences are significant.

8.77 The presumption of innocence and the right to silence are central to our criminal justice system. They ‘safeguard the accused’s right to a fair trial and the proper administration of justice.’^[133] The LIV emphasised:

It is a cornerstone of the criminal justice system that the prosecution bears the onus of proving the accused’s state of mind by reference to cogent and compelling evidence. If there are insurmountable difficulties in obtaining such evidence, the person should not be charged with that offence.^[134]

Is recklessness a problem for family violence-related prosecutions?

8.78 Victoria Police told us that many assault charges occurring in the context of family violence^[135] are not being authorised.^[136] It suggested that lowering the recklessness threshold could improve conviction rates for family violence-related offences against the person.^[137] It said that the recklessness threshold is critical as intent can be very difficult to prove:^[138]

No one is putting their hand up and saying, ‘I’m a family violence perpetrator’ in a record of interview … All we get in interviews is, ‘I was just trying to shut her up, she just pushed me [to do it]’; we get the most preposterous reasons for the bad behaviour.^[139]

8.79 Victoria Police told us that unless it has ‘compelling evidence’ of intention, such as a threatening text message, it will tend to charge a ‘recklessness’ offence rather than an intentional offence:^[140]

We have a situation with family violence cases where a victim survivor is 100% certain that the infliction of the injury was intentional, but we can’t go forward with charging that, so we have to take intentional off the table and we have to start from reckless.^[141]

8.80 Victoria Police said that the recklessness threshold is particularly problematic where a person seriously harms an infant by shaking, and in non-fatal strangulation cases.^[142] But these examples do not indicate a problem with the recklessness test (see Chapter 9). Rather, the same themes emerge:

• charges must be supported by clear and cogent evidence

• charging decisions must be made with a full appreciation of the hierarchy of offences available

• a charge cannot result in a finding of guilt unless there is sufficient evidence to prove all its elements—including fault elements—to the criminal standard.

Difficulties prosecuting family violence-related offences stem from a range of issues

8.81 There are many reasons why family violence prosecutions present particular challenges. The 2016 report of the Royal Commission into Family Violence found that:

Family violence is often hidden, so that few people other than the perpetrator and victim can directly attest to the violence. The ability or willingness of victims to give evidence may be hindered by trauma, shame, intimidation or a desire to maintain [a] relationship with the perpetrator … Family violence may also be constituted by a complex pattern of behaviour, not all of it criminalised or admissible as evidence.^[143]

8.82 These difficulties are not tied to the definition of recklessness as a single element of an offence. A Queensland family violence taskforce found that difficulties prosecuting family violence-related offences ‘relate more to problems with evidence gathering, witness cooperation, police practice and court process’ than inadequacies with existing offences.^[144]

8.83 The Royal Commission into Family Violence found that responses to family violence in Victoria have historically ‘been marked by a tendency to dismiss, trivialise and misunderstand family violence’, and sometimes this has ‘manifested in a reluctance to charge or prosecute family violence-related offences’.^[145] But judges told us that proving intention or recklessness in family violence-related cases does not present a specific problem.^[146] In fact, ‘juries are incredibly unsympathetic to family violence, they do not like it—it’s a difficult position to defend.’^[147]

8.84 A magistrate told us she had not experienced any particular difficulty with recklessness in family violence-related cases:

If I am asked to compare family violence cases and offences that don’t occur in the context of family violence, I see no particular difficulty finding a reckless family violence offence on the facts: I have to be convinced beyond reasonable doubt; that is a very high standard, but that doesn’t change [regardless of the context of the offence].^[148]

8.85 The report of the Royal Commission into Family Violence specifically considered the prosecution of family-violence related offences.^[149] The Royal Commission declined to recommend the creation of any new offences and did not identify any specific issues with recklessness. It noted that ‘many existing offences’ already apply to family violence, including offences against the person such as threats to kill and inflicting serious injury.^[150] The Royal Commission concluded:

If these offences are not being applied properly to family violence, this may reflect the approach, attitude or expertise of those applying or prosecuting these offences. Simply changing the laws by carving out a specific response for family violence is not likely to address those underlying deficiencies.^[151]

8.86 Inexperience may be contributing to the problems Victoria Police perceives with prosecuting family violence-related offences.^[152] Victoria Police told us that ‘85 per cent of cases are managed at the uniformed officer level.’^[153] Members of the Victim Survivors’ Advisory Council said that ‘regular police are not sufficiently trained, or do not have enough time, to deal with complex family violence cases.’^[154]

8.87 The Royal Commission found: ‘To continue the upward trend in charge rates, police training and supervision should highlight the importance of laying charges wherever the evidence allows it.’^[155] A County Court judge suggested that it may be helpful to:

arm [police] with an understanding of the existing slate of offences and [how] to charge those offences… It’s about identifying the conduct which will allow a jury to draw appropriate inferences about the accused’s state of mind and appreciation of harm.^[156]

Other challenges to prosecution

8.88 We heard about other challenges, separate to the definition of recklessness, that appear to be affecting the prosecution of offences against the person. These other challenges may be contributing to the perceived problem with the recklessness threshold:

• the definition of serious injury has been tightened

• charging practices are not always appropriate

• endangerment offences are complex.

The definition of serious injury

8.89 Although outside our terms of reference, the definition of serious injury was raised by several stakeholders during our inquiry. The Children’s Court said that ‘whether the test of foresight of probable harm is unjustifiably high for offences against the person in part relates to the definition/scope of “injury” and “serious injury”.’^[157] The Victorian Aboriginal Legal Service (VALS) told us that difficulties proving recklessly causing serious injury usually arise because of ‘the injury aspect of the charge, not the reckless aspect.’^[158]

8.90 In the Office of Public Prosecutions’ (OPP) file review, proof of serious injury emerged as the leading reason why a recklessly causing serious injury prosecution was not successful.^[159] Of 179 cases where a recklessly causing serious injury charge was not proceeded with or resulted in a not guilty finding, proving the seriousness of the injury was identified as a factor in 44.1 per cent of the cases.^[160] In contrast, difficulty proving the fault element of recklessness was a factor in only 7.8 per cent of the cases.^[161]

8.91 It was suggested that the push to change the recklessness test might be motivated ‘by the reflection that more cases are in the “cause injury” rather than the “cause serious injury” category’.^[162]

8.92 As we explained in Chapters 2 and 4, the offence of recklessly causing serious injury requires the prosecution to prove that the accused ignored the risk their actions would cause a serious injury, not just any injury. A County Court judge told us:

A lot of people are injured but the evidence is not capable of getting to the higher level of serious injury – that is partly a problem from the ‘sharpening up’ of the serious injury definition.^[163]

8.93 Before 1 July 2013, ‘serious injury’ was defined as including a combination of injuries. The ‘lack of detail’ in this definition ‘resulted in a very low threshold for offences involving serious injury.’^[164] For example, two relatively minor injuries, such as two black eyes and a grazed forehead, were enough to establish serious injury. Cases that should have been charged as causing injury and heard and determined in the Magistrates’ Court were instead being charged as causing serious injury.^[165] This was creating ‘delay for victims and accused and plac[ing] unnecessary pressure on the County Court.’^[166]

8.94 New definitions of ‘injury’ and ‘serious injury’ came into operation on 1 July 2013. The definition of ‘injury’ was updated to ‘physical injury or harm to mental health, whether temporary or permanent’, and the definition of ‘serious injury’ to:

‘an injury (including the cumulative effect of more than one injury) that:

i) endangers life; or

ii) is substantial and protracted; or

the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm.’^[167]

8.95 The aim of changing the definition of serious injury was to:

• ‘focus’ serious injury offences ‘on the more serious end of the spectrum of injuries’.^[168]

• ‘clarify the law and enable judges to give much clearer guidance to juries about what constitutes a serious injury’.^[169]

• ‘make it easier for prosecutors to determine the appropriate offence to charge.’^[170]

8.96 The OPP told us:

Once the ‘serious injury’ definition was amended, it resulted in a raising of the bar. There was a burgeoning problem with being able to prove foresight of probability of serious injury … then the decision in Aubrey came down and illuminated the problem. It calibrated probability too high. All these things coalesced … at once.^[171]

8.97 The amended definition reflects the gravity of the serious injury offences and the penalties that apply to those offences.^[172] The revision of the serious injury definition purposely confined its scope and raised the threshold for demonstrating serious injury as it applies to all non-fatal offences against the person.

8.98 The revised definition, ‘even in its current form which was intended to narrow the scope of what constituted a serious injury … covers a potentially wide range of injury’ and allows an evaluative judgment to be made.^[173] The Court of Appeal has said the offence of recklessly causing serious injury is broad, and its elements can arise in many circumstances.^[174]

8.99 The objective gravity of an injury offence is not solely tied to the assessment of the nature and extent of the injury.^[175] Other factors such as the victim’s vulnerability, whether a weapon was used, and the duration of the attack can make an offender’s conduct objectively serious.^[176] Any injury sustained by the victim and the impact of the offence on the victim are factors that a court must consider when sentencing an offender.^[177]

8.100 The definition of serious injury is a concern for Victoria Police and the OPP. But to tighten the definition was what Parliament intended and the change appears to be achieving its purpose. Since the definitional change in 2013 there has been a sharp decline in the number of people charged and sentenced for serious injury offences (see Appendix F).

Charging practices

8.101 The LIV told us its members see ‘reckless’ offences charged in cases where the evidence does not support those charges.^[178]

8.102 During our inquiry we repeatedly heard that Victoria Police has a practice of ‘overcharging’.^[179] We were told that if charges for recklessness-based offences are not being proven or are being withdrawn, this is an overcharging problem, not a problem with the recklessness threshold.^[180]

8.103 VLA told us that it regularly receives police briefs with cascading serious injury, injury, and common assault charges.^[181] Flynn and Freiberg found that overcharging is ‘partly the product of the number of possibly overlapping or related offences that can be charged, and partly reflects “defensive” charging practices intended to ensure that no relevant offence is inadvertently omitted.’^[182]

8.104 The LIV pointed us to the case of Ignatova v The Queen as an example of inappropriate charging (see Chapter 9).^[183]

8.105 It is important to appreciate the availability of alternative offences. But this does not mean that every conceivable charge should be included on a charge sheet or indictment. In our Committals report we concluded that overcharging is a problem in Victoria.^[184] We recommended Victoria Police officers should receive regular and up-to-date charging training, and that the DPP should be involved in reviewing charges for serious offences at an early stage.^[185] We continue to support those recommendations.

8.106 Victoria Police told us a rationale for charging the full hierarchy of offences is ‘about negotiating with the defence.’^[186] VLA told us that while there is significant overcharging, this provides a ladder of resolution where appropriate charges are eventually agreed through meaningful negotiation with the OPP.^[187]

8.107 Liberty Victoria told us cascading charges are often charged as ‘ambit claims’.^[188] The LIV said: ‘The experience of our members is unquestionably that Victoria Police have a habit of over-charging’. ^[189] The LIV also noted that ‘the DPP is not as prone to overcharging [on a trial indictment] but is not immune to it’.^[190]

8.108 In a study of plea negotiation practices, Flynn and Freiberg suggested that police inexperience may be contributing to overcharging,^[191] and noted that there were many practical reasons underpinning the charging process, including flexibility.^[192] However, they also found that:

while most participants recognised this charging practice as ‘standard’ and ‘acceptable’, there is the potential for it to place undue pressure on the accused to plead guilty in exchange for a reduction in the number and extent of charges on the indictment.^[193]

8.109 Divergence between the charges originally filed and those ultimately prosecuted is inevitable in some cases, particularly for offences against the person where there are a range of alternative offences. But there is a need to reduce disparity.^[194] As we noted in our Committals report, ‘overcharging undermines fair trial rights, is inefficient, and can have consequences that are traumatic for victims and witnesses.’^[195]

Endangerment offences are complex

8.110 Many of the examples provided by the OPP and Victoria Police raised concern about recklessness in the context of endangerment offences (see Chapter 9).^[196] While other stakeholders did not raise any specific concerns about the recklessness definition, during our reference we heard that the endangerment offences are ‘complicated’^[197] and ‘conceptually difficult’.^[198] The ‘notion of foresight that a probable consequence of impugned conduct was exposure of potential victims to an appreciable risk of death’ has been characterised as ‘complex’.^[199]

8.111 Several submissions misstated the legal test for endangerment offences. In our issues paper, we incorrectly implied that recklessness in endangerment offences may have an objective component, whereas the objective element relates to the accused’s appreciation that their actions placed someone in danger.^[200]

8.112 We explain the elements of endangerment offences in Chapter 4. These generic offences were introduced by the Crimes (Amendment) Act 1985 (Vic). They replaced multiple specific endangerment offences. Similar offences have been legislated in other Australian jurisdictions.

8.113 In Nuri, the Court of Appeal said that ‘in an endeavour to subsume all life-endangering behaviour in one offence, the very generality of that offence has given rise to difficulties of construction and interpretation.’^[201]

8.114 In R v Abdul-Rasool, Justice Redlich pointed out:

Though relatively new offences, the general endangerment offences in Australian jurisdictions have received either judicial, legislative or scholarly criticism of some sort. The reason for this criticism has generally arisen because of the complexities involved in the overarching structure of the offences.^[202]

8.115 Justice Redlich went on to note that some of the difficulties associated with the reckless endangerment offences stem from the objective element having two functions:

the objective element is not only a means of ascertaining whether the [accused] is at fault, but perhaps more importantly, whether or not the harm sanctioned by the offence can be attributed to the accused’s act.^[203]

8.116 There is also the difficulty of conflating the chance involved in recklessness with the chance involved in danger.^[204] Justice Mandie said:

Because danger of itself carries the notion of chance or risk, this aspect of chance or risk may tend to be equated or conflated with the notion of chance or risk involved in the “probability” of harm which … must be foreseen or realised by the reckless accused. This confusion may lead to the conclusion that acting recklessly under this section involves the realisation or foresight of the probability of the other person’s death whereas … the section is concerned with the realisation or foresight of the probability of the other person’s exposure to the risk of death … danger of death in this context means an ‘appreciable risk’ of death.^[205]

8.117 We discuss the issue of complexity more generally in Chapter 11.

Conclusion

8.118 The role of the Commission is to assess the overall case for reform and to consider whether the definition of recklessness in Victoria should change. The starting point for any reform is that there is an identifiable problem or a gap in the law.^[206] As VLA said in relation to this reference:

it is vital that any potential changes are grounded in … a strong and identifiable evidence base that demonstrates the need for change …^[207]

8.119 We have examined the underlying criticism that the recklessness definition is wrong in principle. But as former Chief Justice of the High Court Sir Anthony Mason has said:

a court is at liberty to depart from its earlier decision when it is convinced that the decision is plainly wrong. Even then, there is a question of legal policy whether the earlier decision should be overruled. The fact that a [legal] decision has operated satisfactorily may outweigh purity of legal doctrine.^[208]

8.120 We have considered the views of Victoria Police and the OPP about the practical operation of the recklessness test. We have analysed case studies, court decisions, offences data and reports. We have taken into account what we were told by experienced legal practitioners, judicial representatives and victims, and the OPP’s analysis of more than 300 finalised cases.

8.121 It is the Commission’s conclusion that the recklessness test is not a barrier to prosecution, nor does it produce undesirable outcomes.

1. R v Crabbe [1985] HCA 22; (1985) 156 CLR 464.

   ↑

2. R v Nuri [1990] VR 641.

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3. R v Campbell [1995] VSC 186; [1997] 2 VR 585; Consultation 7 (Office of Public Prosecutions).

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4. Submission 7 (Victoria Police).

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5. Submission 10 (Office of Public Prosecutions).

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6. Submission 7 (Victoria Police).

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7. Ibid.

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8. Ibid; Submission 10 (Office of Public Prosecutions).

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9. Consultation 7 (Office of Public Prosecutions).

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10. Submission 10 (Office of Public Prosecutions). Consultations 7 (Office of Public Prosecutions), 10 (Victoria Police).

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11. Submissions 7 (Victoria Police), 10 (Office of Public Prosecutions). Consultations 7 (Office of Public Prosecutions); 10 (Victoria Police).

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12. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [12], [16], [94]; (2020) 284 A Crim R 19, 24 [12], 24-25 [16] (Maxwell P, McLeish and Emerton JJA), 43 [94] (Priest JA).

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13. Ibid [3] (Maxwell P, McLeish and Emerton JJA).

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14. Ibid [12] (Maxwell P, McLeish and Emerton JJA).

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15. Ibid [13] (Maxwell P, McLeish and Emerton JJA) (emphasis added). The Court went on to say that this argument ‘could have been deployed by successive Directors of Public Prosecutions at any time after Campbell’, and prosecutions for recklessly causing serious injury have continued to be conducted on the basis that Campbell was correct. The Court said, ‘it is far too late for this construction argument to be advanced for the first time’: Ibid [14] (Maxwell P, McLeish and Emerton JJA).

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16. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [17] (Maxwell P, McLeish and Emerton JJA).

    ↑

17. Ibid [120] (Priest JA) (citations omitted).

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18. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [7]; (2021) 274 CLR 177, 184 [7] (Kiefel CJ, Keane and Gleeson JJ).

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

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20. Ibid [59] (Gageler, Gordon and Steward JJ, Edelman J agreeing at [99]).

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21. Ibid [83] (Edelman J): citing Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305.

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22. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [65] (Edelman J).

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23. In La Fontaine v The Queen, Justice Gibbs said that a high threshold was justified because a lower possibility test ‘would seem to obliterate almost totally the distinction between murder and manslaughter’: La Fontaine v The Queen [1976] HCA 52, [4]; (1976) 136 CLR 62, 76 (Gibbs J). Justice Gibbs also observed that the law on this matter was first stated in Stephen’s Digest of the Criminal Law in 1887, and at that time ‘there was little authority’ to support the view that foresight of probable death is a fault element for murder rather than manslaughter, but the ‘probable’ threshold for murder had since been accepted in the Victorian Supreme Court and confirmed in Pemble v The Queen: La Fontaine v The Queen [1976] HCA 52, [4] (Gibbs J) citing Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

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24. Submission 10 (Office of Public Prosecutions).

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

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26. Submission 6 (Criminal Bar Association) (emphasis omitted).

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27. Submissions 7 (Victoria Police), 10 (Office of Public Prosecutions).

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28. Consultation 7 (Office of Public Prosecutions).

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29. Ibid.

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30. Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023). Examples one, two, three and four were included in the OPP’s submission dated 3 March 2023: Submission 10 (Office of Public Prosecutions). Examples five and six were included in the OPP’s file review dated 14 July 2023: Supplementary Submission 20 (Office of Public Prosecutions).

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31. Submission 7 (Victoria Police).

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32. Consultations 4 (Criminal Bar Association), 6 (Victoria Legal Aid).

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33. Submission 6 (Criminal Bar Association).

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34. Submission 17 (Victoria Legal Aid).

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35. Ibid.

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36. Submission 14 (Law Institute of Victoria).

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37. Consultation 3 (Law Institute of Victoria).

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38. Ibid (emphasis in original).

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39. Consultation 2 (Liberty Victoria).

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40. Submission 9 (Liberty Victoria).

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41. Consultation 11 (County Court of Victoria).

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42. Consultation 6 (Victoria Legal Aid).

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43. Crimes Act 1958 (Vic) ss 6(2), 6B, 77C, 88A, 421, 422, 422A, 426–29, 435.

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44. Criminal Procedure Act 2009 (Vic) s 239. An offence will amount to or include another offence if words could be deleted from the description of the offence on the indictment in a way that leaves the particulars of the alternative offence. This is the common law ‘red pencil’ test: see Mareangareu v The Queen [2019] VSCA 101, [44]; (2019) 277 A Crim R 319, 331 [44]; R v Lillis (1972) QB 236. For example, a charge of robbery as an alternative to armed robbery would satisfy the test: Ian Freckelton and Mirko Bagaric, Thomson Reuters, Indictable Offences in Victoria (online at 22 November 2023) [27.10].

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45. See also Chapter 4.

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46. Submissions 11 (Children’s Court of Victoria), 15 (County Court of Victoria). Consultations 2 (Liberty Victoria), 6 (Victoria Legal Aid).

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47. Submission 15 (County Court of Victoria).

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48. Ibid.

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49. Submission 14 (Law Institute of Victoria).

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50. Ibid.

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51. Consultation 3 (Law Institute of Victoria).

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52. Consultation 6 (Victoria Legal Aid).

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53. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 240.

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54. Sentencing Act 1991 (Vic) s 5(2)(daa) and 5(2)(db); Consultations 3 (Law Institute of Victoria), 4 (Criminal Bar Association).

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55. See, eg, Nash v The Queen [2013] VSCA 172, [10]; (2013) 40 VR 134, 137 [10] (Maxwell P).

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56. Submission 15 (County Court of Victoria).

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57. Ibid.

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58. Hamid v The Queen [2019] VSCA 5, [44] The sentencing judge noted that despite evidence of premeditation, the accused was to be sentenced for recklessly causing serious injury, rather than intentionally causing serious injury, as a result of a plea resolution. The Court of Appeal said the sentencing judge was right to express surprise that the prosecution had agreed to accept a plea to a charge of recklessly causing serious injury rather than intentionally causing serious injury. See also Ashe v The Queen [2010] VSCA 119, [31]; DPP v Terrick [2009] VSCA 220, [86]-[91]; (2009) 197 A Crim R 474, 477-79 [86]-[91].

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59. Consultation 7 (Office of Public Prosecutions).

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60. Ibid.

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61. Submission 10 (Office of Public Prosecutions).

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62. Ibid.

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63. Director of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (Policy, 24 January 2022) 3 <https://www.opp.vic.gov.au/wp-content/uploads/2022/10/DPP-Policy.pdf>. In determining whether there is a reasonable prospect of conviction, regard must be had to the following factors: all the admissible evidence, the reliability and credibility of the evidence, the possibility of evidence being excluded, any possible defence, whether the prosecution witnesses are available, competent and compellable, any conflict between eye-witnesses, whether there is any reason to suspect that evidence may have been concocted, how the witnesses are likely to present in court, any possible contamination of evidence, and any other matter relevant to whether a jury or magistrate would find the person guilty.

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64. Supplementary Submission 20 (Office of Public Prosecutions). These files were opened between January 2018 and April 2023.

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65. Ibid: The OPP described as ‘unsuccessful’ prosecutions where all recklessly causing serious injury charges ‘were not proceeded with or resulted in a finding of not guilty.’ There were 175 of these cases.

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66. Ibid: The OPP described as ‘partially successful’ prosecutions where ‘there was a plea of guilty or a finding of guilt to one or more [recklessly causing serious injury] charges or a more serious alternative, but also another [recklessly causing serious injury] charge was not proceeded with.’. There were four of these cases.

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67. Ibid.

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68. Ibid.

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69. Ibid: ‘This included jury trials [which resulted in acquittal/s], and cases where it was simply not clear from the available documentation why the recklessly causing serious injury charge was not proceeded with.’.

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70. Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 1. In Victoria, between 2011 and 2022 the number of OPP prosecutions finalised by a guilty plea as a percentage of total case completions per financial year varied between 73.8 to 88.7 per cent. Recent years were impacted by coronavirus (COVID-19) restrictions and the reduced number of jury trials: Office of Public Prosecutions (Vic), Annual Report 2021/22 (Report, 2022) 30, 104. The County Court reports 45 per cent of the criminal cases it finalised in 2021–22 resolved and the accused pleaded guilty: County Court of Victoria, Annual Report 2021–22 (Report, 2022) 23. The Supreme Court reports that in 2021–22, of the 83 finalised indictment cases (61 standard committals and 22 fast-tracked committals), 47 were finalised as pleas (38 in standard committals, 9 in fast-tracked committals). This equates to 56 per cent: Supreme Court of Victoria, Annual Report 2021–22 (Report, 2022) 17.

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71. Resolution discussions may also include the prosecution agreeing to accept a ‘rolled up’ charge, which is a collection of charges bundled together into a single charge: see Stanczewski v The Queen [2021] VSCA 232, [45]. A rolled-up charge can only be used on a plea of guilty, not at a trial, and the offender is sentenced for all the offending but the maximum penalty for a single offence still applies. Resolution discussions may also include the prosecution agreeing to accept a ‘representative’ charge, which is a single charge that is representative of a number of occasions of offending of a similar kind. A representative charge can only be used on a plea of guilty, not at a trial, and while the offender is only sentenced for the single occasion the represented acts work to show the court that it was not an isolated incident: at [43]. Resolution discussions may also include the prosecution agreeing to exclude certain facts from the summary of the offending.

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72. Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 53, 91.

    ↑

73. Ibid 132–133.

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74. Director of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (Policy, 24 January 2022) 14 <https://www.opp.vic.gov.au/wp-content/uploads/2022/10/DPP-Policy.pdf>. In determining whether a proposed resolution is in the public interest, regard must be had to the following factors: whether there is a reasonable prospect of a conviction of each offence charged (if there is no reasonable prospect of conviction, that charge must not proceed); the strength of the evidence on each charge; any defences; the likelihood of an acquittal on any of the charges; whether the charge or charges to which the accused will plead guilty adequately reflect the accused’s criminality; allow an appropriate sentence to be imposed and allow all appropriate ancillary orders to be made; and the views of the victims and the informant about the proposed resolution.

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75. An example from Flynn and Freiberg’s study of plea negotiation practices demonstrates the OPP successfully pursuing an intentionally causing serious injury charge over a reckless charge. The defence offered a plea to recklessly causing serious injury on the basis that intoxication had impaired the accused’s intent and the incident had occurred quickly and spontaneously. The OPP rejected the offer, maintaining that it could prove the more serious charge. Ultimately the accused pleaded guilty to the intentional charge: Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 132.

    ↑

76. See, eg, Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313, where the prosecution accepted a charge of recklessly causing injury even though serious injury appeared to be open on the facts. In sentencing, Justice Croucher noted ‘The “injury” caused to [the victim was] about as grave as it gets without being classified as a “serious injury”: R v Liszczak & Phillips [2017] VSC 103, [68] (Croucher J). On appeal, Justice Weinberg said ‘Even making due allowance for the negotiations that often take place between the Crown and an accused, which will sometimes result in charges being reduced to a level significantly below what the objective facts seem to warrant, the decision in this case to allow these applicants to plead guilty merely to recklessly causing injury, rather than causing serious injury, is a complete mystery’: Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313, [2] (Weinberg JA).

    ↑

77. Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 9.

    ↑

78. Consultation 7 (Office of Public Prosecutions).

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79. The more serious charges included attempted murder, intentionally causing serious injury in circumstances of gross violence, intentionally causing serious injury, recklessly causing serious injury in circumstances of gross violence: Supplementary Submission 20 (Office of Public Prosecutions).

    ↑

80. Submission 10 (Office of Public Prosecutions).

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81. The lesser alternative charges were not specifically identified but the OPP said it approached this in a broad sense and looked at whether a plea of guilty was entered to a charge carrying a penalty of less than 15 years which captured the conduct initially charged as recklessly causing serious injury. Most often this was intentionally causing injury or recklessly causing injury, but other potential alternatives included negligently causing serious injury, the endangerment offences, assaults and affray: Supplementary Submission 20 (Office of Public Prosecutions).

    ↑

82. Ibid.

    ↑

83. Great Britain, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (Report, 1980) 71 [155].

    ↑

84. Crimes (Amendment) Act 1985 (Vic) ss 16-17.

    ↑

85. Submission 14 (Law Institute of Victoria).

    ↑

86. Consultation 11 (County Court of Victoria).

    ↑

87. Consultation 8 (Supreme Court of Victoria).

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88. Consultation 11 (County Court of Victoria).

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89. See, eg, the case file referred to in Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 43, where the OPP agreed to accept a charge of recklessly causing serious injury and a charge of criminal damage as a substitute for charges of intentionally causing serious injury and injury, where there were reliability issues with the victim’s evidence and insufficient medical evidence.

    ↑

90. Consultation 12 (Magistrates’ Court of Victoria).

    ↑

91. Consultation 11 (County Court of Victoria).

    ↑

92. Consultation 8 (Supreme Court of Victoria).

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93. Submission 10 (Office of Public Prosecutions) citing Banditt v The Queen [2005] HCA 80, [36]; (2005) 224 CLR 262, [36] (Gummow, Hayne and Heydon JJ).

    ↑

94. Submission 10 (Office of Public Prosecutions).

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95. Consultation 10 (Victoria Police).

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96. Submissions 19 (Victims of Crime Commissioner), 21 (Caterina Politi). Caterina Politi is a victim of crime, having lost her son to a violent one-punch attack. She co-founded ‘STOP. One Punch Can Kill’: <http://stoponepunchcankill.org/>. The Victims of Crime Consultative Committee was unable to participate in a consultation due to the technical nature of the reference and a period of change with its representatives.

    ↑

97. Consultation 13 (Victim Survivors’ Advisory Council).

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98. Supplementary Submission 20 (Office of Public Prosecutions). Consultation 7 (Office of Public Prosecutions).

    ↑

99. Consultation 14 (Police member who was a victim of an offence).

    ↑

100. Consultation 15 (Victim—name withheld).

     ↑

101. Submission 19 (Victims of Crime Commissioner).

     ↑

102. Ibid.

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103. Ibid. Under the Victims’ Charter, prosecuting agencies are required to give information to victims about the progress of criminal proceedings, the offences charged, and any decision to substantially modify or discontinue a charge or accept a plea of guilty to a lesser charge: Victims’ Charter Act 2006 (Vic) s 9(a)-(c)(iii).

     ↑

104. Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 389.

     ↑

105. Ibid 396-398. The Parliamentary Inquiry into Victoria’s Criminal Justice System recommended the Victorian Government develop a trauma-informed strategy ‘to support agencies involved in the criminal justice system to implement effective methods for communicating with victims of crime’: at 398 (Recommendation 47). The Centre for Innovative Justice (CIJ) also found that some victims have unrealistic expectations about the strength of the case based on assurances given by police: Centre for Innovative Justice, RMIT University, Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report to the Office of Public Prosecutions, Victoria, April 2019) 12–13.

     ↑

106. Arie Freiberg and Asher Flynn, Victims and Plea Negotiations: Overlooked and Unimpressed (Springer International Publishing AG, 2020) 115.

     ↑

107. Asher Flynn and Arie Freiberg, Plea Negotiations, Report to the Criminology Research Advisory Council (Australian Institute of Criminology, April 2018) 85 citing Asher Flynn, ‘Bargaining with Justice: Victims, Plea Bargaining and the Victims’ Charter Act 2006 (Vic)’ (2012) 37(3) Monash University Law Review 73.

     ↑

108. Department of Justice and Community Safety, Improving Victims’ Experience of Summary Proceedings (Final Report, November 2021) 4, 22, 59–60.

     ↑

109. Ibid 22.

     ↑

110. Centre for Innovative Justice, RMIT University, Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report to the Office of Public Prosecutions, Victoria, April 2019) 107 <https://cij.org.au/cms/wp-content/uploads/2018/08/communicating-with-victims-about-resolution-decisions–a-study-of-victims-experiences-and-communication-needs-1.pdf>.

     ↑

111. Director of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (Policy, 24 January 2022) Chapter 3 <https://www.opp.vic.gov.au/wp-content/uploads/2022/10/DPP-Policy.pdf>. It provides that the ‘prosecutor must treat victims with courtesy, respect, dignity and sensitivity. The solicitor must establish an early relationship with the victim [and] must address the individual priorities of a victim and not make assumptions about what is in the victim’s interests … The solicitor must proactively explain the prosecution and resolution process to the victim in accordance with the Victims’ Charter Act 2006.’

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112. Centre for Innovative Justice, RMIT University, Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report to the Office of Public Prosecutions, Victoria, April 2019) 104 (Recommendation 4) <https://cij.org.au/cms/wp-content/uploads/2018/08/communicating-with-victims-about-resolution-decisions–a-study-of-victims-experiences-and-communication-needs-1.pdf>. In the lower courts, prosecutors should give victims information about why certain charges are filed and withdrawn, and about the resolution process to assist in managing victims’ expectations about court outcomes. Department of Justice and Community Safety, Improving Victims’ Experience of Summary Proceedings (Final Report, November 2021) 5, 29 (Recommendation 4).

     ↑

113. Consultation 10 (Victoria Police).

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114. Centre for Innovative Justice, RMIT University, Improving Support for Victims of Crime: Key Practice Insights (Report, November 2020) 13–14.

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115. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 22, citing Department of Justice and Regulation, A Survey About How Our Justice System Meets the Needs of the Community: 2014 Results (Victorian Government, 2015) 5.

     ↑

116. Submission 19 (Victims of Crime Commissioner).

     ↑

117. Consultation 10 (Victoria Police).

     ↑

118. Submission 10 (Office of Public Prosecutions).

     ↑

119. Ibid.

     ↑

120. Submission 7 (Victoria Police). An admission in the context of a criminal proceeding is a previous representation made by an accused that is ‘adverse to the [accused’s] interest in the outcome of the proceeding’: Evidence Act 2008 (Vic) Dictionary pt 1 (definition of ‘admission’).

     ↑

121. Submission 7 (Victoria Police). Consultation 10 (Victoria Police).

     ↑

122. Submission 10 (Office of Public Prosecutions).

     ↑

123. Consultation 2 (Liberty Victoria).

     ↑

124. Submissions 6 (Criminal Bar Association), 16 (Youthlaw), 17 (Victoria Legal Aid). Consultation 6 (Victoria Legal Aid).

     ↑

125. Submission 6 (Criminal Bar Association).

     ↑

126. Banditt v The Queen [2005] HCA 80, [8] (Gummow, Hayne and Heydon JJ).

     ↑

127. Doney v The Queen [1990] HCA 51, [14]; (1990) 171 CLR 207, 214 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).

     ↑

128. R v G [2003] UKHL 50, [39]; [2004] 1 AC 1034, 1057 [39].

     ↑

129. Consultation 12 (Magistrates’ Court of Victoria).

     ↑

130. Consultation 6 (Victoria Legal Aid).

     ↑

131. DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150, [26] (Maxwell ACJ, Beach and Niall JA).

     ↑

132. Consultation 3 (Law Institute of Victoria).

     ↑

133. Submission 14 (Law Institute of Victoria). See also Consultation 2 (Liberty Victoria). The rights of an accused person are enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25.

     ↑

134. Submission 14 (Law Institute of Victoria), citing Ignatova v The Queen [2010] VSCA 263, [41].

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135. ‘Family violence’ is defined as behaviour towards a family member that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controlling or dominating, causing the family member to feel fear for their own or another persons’ safety or wellbeing. It also includes exposing a child to these behaviours: Family Violence Protection Act 2008 (Vic) s 5(1).

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136. Consultation 10 (Victoria Police). ‘Non-authorisation’ occurs when an offence is recorded by police, but charges are not filed. A supervisor within Victoria Police determines whether charges will be authorised. Victoria Police does not record the reasons why charges are not authorised. Between 2016 and 2022, the non-authorisation rate for family violence serious assaults ranged from 16 to 26 per cent: Crimes Statistics Agency, Data Tables Recorded Offences Visualisation Year Ending March 2023 (Table 04). The A21 Serious Assault category covers ‘the direct and confrontational infliction of force, injury or violence upon a person or a group of people’.

     ↑

137. Ibid.

     ↑

138. Submission 7 (Victoria Police).

     ↑

139. Consultation 10 (Victoria Police). We note that the Court of Appeal has said that self-justifying statements by perpetrators in family violence-related crimes should not reduce the seriousness of the offending: ‘nothing should be said in sentencing reasons to suggest that statements by … an offender to the effect of “I just snapped” or “I’d had enough” in any way mitigate the seriousness of the offending or reduce the offender’s moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence … a resort to violence can never be condoned.’: DPP v Evans [2019] VSCA 239, [85] (Maxwell P, T Forrest and Weinberg JJA).

     ↑

140. Consultation 10 (Victoria Police).

     ↑

141. Ibid.

     ↑

142. Submission 7 (Victoria Police).

     ↑

143. State of Victoria, Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol III, 223.

     ↑

144. Ibid vol III, 212, citing Special Taskforce on Domestic and Family Violence in Queensland, ‘Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland’ (State of Queensland, 2015) 14–15.

     ↑

145. Ibid vol III, 189.

     ↑

146. Consultation 11 (County Court of Victoria).

     ↑

147. Ibid.

     ↑

148. Consultation 12 (Magistrates’ Court of Victoria).

     ↑

149. State of Victoria, Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol III, chap 17.

     ↑

150. Ibid vol III, 228.

     ↑

151. Ibid.

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152. The Royal Commission into Family Violence noted ‘that, because of the prevalence of family violence, front-line police members will continue to shoulder much of the responsibility for the response. These members, often young and relatively inexperienced, need effective support and supervision to meet required service levels in compliance with the Code of Practice and to cope with the challenging and often confronting nature of family violence policing. This is doubly important in view of the influence of supervisors in setting culture and attitudes.’: ibid vol III, 40. A parliamentary committee recommended all front-line Victoria Police officers undertake regular, ongoing training in relation to responding to family violence incidents: Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria’s Criminal Justice System (Report, March 2022) 244 (Recommendation 26).

     ↑

153. Consultation 10 (Victoria Police).

     ↑

154. Consultation 13 (Victim Survivors’ Advisory Council).

     ↑

155. State of Victoria, Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol III, 100.

     ↑

156. Consultation 11 (County Court of Victoria).

     ↑

157. Submission 11 (Children’s Court of Victoria).

     ↑

158. Consultation 1 (Victorian Aboriginal Legal Service).

     ↑

159. Supplementary Submission 20 (Office of Public Prosecutions).

     ↑

160. Ibid.

     ↑

161. Ibid.

     ↑

162. Consultation 11 (County Court of Victoria).

     ↑

163. Ibid.

     ↑

164. Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5550 (Mr Clark, Attorney-General).

     ↑

165. Ibid 5551.

     ↑

166. Ibid.

     ↑

167. Crimes Act 1958 (Vic) s 15.

     ↑

168. Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5551 (Mr Clark, Attorney-General).

     ↑

169. Ibid.

     ↑

170. Ibid.

     ↑

171. Consultation 7 (Office of Public Prosecutions).

     ↑

172. Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5551 (Mr Clark, Attorney-General).

     ↑

173. McLean v The King [2023] VSCA 6, [33] (Niall and T Forrest JJA).

     ↑

174. Ashe v The Queen [2010] VSCA 119, [31–32] citing DPP v Terrick [2009] VSCA 220; (2009) 197 A Crim R 474 and; DPP v Zullo [2004] VSCA 153.

     ↑

175. McLean v The King [2023] VSCA 6, [36] (Niall and T Forrest JJA).

     ↑

176. Nash v The Queen [2013] VSCA 172, [10]; (2013) 40 VR 134, 137 [10] (Maxwell P).

     ↑

177. Sentencing Act 1991 (Vic) s 5(2)(daa) and 5(2)(db).

     ↑

178. Consultation 3 (Law Institute of Victoria). One example related to a scuffle in a workshop: ‘the complainant and the accused fell over, and the complainant’s ankle was wedged under a car, resulting in a snapped ankle. Although the injury was serious, it was not an obviously foreseeable outcome. The accused was charged with recklessly causing serious injury but the charges were ultimately and appropriately downgraded to recklessly causing injury or common law assault.’ Another example involved a woman who was over-prescribed medication with a side-effect including seizures: ‘She was driving her children home when she became unresponsive and veered across the road, crashing into an embankment. It was unclear if the cause of her unresponsiveness was that she had fallen asleep or had a seizure. Her four-year-old child was seriously injured and became quadriplegic. She was charged with recklessly causing serious injury … The DPP eventually discontinued the recklessly causing serious injury charge on the basis that they couldn’t exclude that the accused had had a seizure.’

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179. Participants in Flynn & Freiberg’s study of plea negotiations ‘overwhelmingly … acknowledged that Victoria Police tends to charge every possible offence that fits the offending conduct.’: Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 109.

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180. Submission 14 (Law Institute of Victoria).

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181. Consultation 6 (Victoria Legal Aid). See similar observations of a defence practitioner noted in Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 42.

     ↑

182. Asher Flynn and Arie Freiberg, Plea Negotiations: Pragmatic Justice in an Imperfect World (Palgrave Macmillan, 2018) 224.

     ↑

183. Submission 14 (Law Institute of Victoria), citing Ignatova v The Queen [2010] VSCA 263.

     ↑

184. See, eg, Victorian Law Reform Commission, Committals (Report No 41, March 2020) 80 [8.4], 85 [8.40].

     ↑

185. Ibid Recommendations 19, 20, 21 and 22.

     ↑

186. Consultation 10 (Victoria Police).

     ↑

187. Consultation 6 (Victoria Legal Aid).

     ↑

188. Consultation 2 (Liberty Victoria).

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189. Consultation 3 (Law Institute of Victoria).

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190. Ibid. See, eg, DPP v Appleton (a pseudonym) [2019] VCC 2238 where the judge observed ‘The prosecution case was made more complex by the laying of too many charges … The trial was conducted because the prosecution tried its hardest to get a conviction on every charge, notwithstanding the difficulties of proving [the accused’s] intention by inference, and of separating from the evidence, what evidence related to each charge when in fact there was only one assault’: at [3]–[4] (Lacava J).

     ↑

191. Asher Flynn and Arie Freiberg, Plea Negotiations, Report to the Criminology Research Advisory Council (Australian Institute of Criminology, April 2018) 83.

     ↑

192. Ibid 84.

     ↑

193. Ibid 85.

     ↑

194. Victorian Law Reform Commission, Committals (Report No 41, March 2020) 84.

     ↑

195. Ibid 84 [8.30]. The Centre for Innovative Justice reports that overcharging is common and plea negotiations are a common response. But this is not well understood by victims and the range of charges can create false hope about the outcome: Centre for Innovative Justice, RMIT University, Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report to the Office of Public Prosecutions, Victoria, April 2019) 27 <https://cij.org.au/cms/wp-content/uploads/2018/08/communicating-with-victims-about-resolution-decisions–a-study-of-victims-experiences-and-communication-needs-1.pdf>.

     ↑

196. See Chapter 9: OPP Hypothetical 3, OPP Example 1 (R v Wilson), OPP Example 2, OPP Example 3 (reckless exposure to risk by driving offences), Example 4 (reckless endangerment at a workplace), Victoria Police’s three case examples (R v Wilson,
     
     R v Abdul-Rasool, DPP v Saurini) said to illustrate ‘undesirable outcomes’.

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197. Consultations 3 (Law Institute of Victoria), 9 (Dr Greg Byrne PSM).

     ↑

198. Consultation 3 (Law Institute of Victoria).

     ↑

199. R v Lam [2006] VSCA 162, [16]; (2006) 46 MVR 207, 210 [16] (Ashley JA).

     ↑

200. We cited Justice Priest’s description of the test for recklessness as ‘purely subjective’, but in a footnote we said, ‘However, the Supreme Court of Victoria has said that the elements of reckless conduct endangering life … include an “objective mental element”’: Victorian Law Reform Commission, Recklessness (Issues Paper, January 2023) 15 [65], n 66.

     ↑

201. R v Nuri [1990] VR 641, 643 (Young CJ, Crockett and Nathan JJ).

     ↑

202. R v Abdul-Rasool [2008] VSCA 13, [18]; (2008) 18 VR 586, 590 [18] (Redlich JA) (citations omitted).

     ↑

203. R v Abdul-Rasool [2008] VSCA 13, [52].

     ↑

204. Mutemeri v Cheesman (1998) 4 VR 484, 491 (Mandie J).

     ↑

205. Ibid.

     ↑

206. ‘[L]aw reformers … need to see the entire picture and identify the real problem(s) before launching into a search for policy solutions’: Laura Barnett, ‘The Process of Law Reform: Conditions for Success’ (2011) 39 Federal Law Review 161, 181. The legislated functions of the Australian Law Reform Commission require it to be responsive by ‘ensuring that [the law] meets current needs’ and ‘removing defects’ in the law: Australian Law Reform Commission Act 1996 (Cth) s 21(1)(a)(i), (ii). The founding legislation of the VLRC does not include specific guiding principles for law reform.

     ↑

207. Submission 17 (Victoria Legal Aid).

     ↑

208. Sir Anthony Mason, ‘Law Reform and the Courts’ in Brian Opeskin and David Weisbrot (eds), The Promise of Law Reform (The Federation Press, 2005) 319 citing Geelong Harbour Trust Commissioners v Gibbs Bright & Co Ltd (1974) 129 CLR 576, 582-584.

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