Review of “recklessness” in Victorian criminal law

On 25 October 2022 the Victorian Attorney-General requested that the Victorian Law Reform Commission (VLRC) review the meaning of the term “recklessness” in the Victorian Crimes Act 1958.

Recklessness is an element of many offences in Victorian criminal law, however it is inconsistently defined in statutes across the State and usually derives its meaning from the common law.

While in common usage, recklessness is synonymous with carelessness, at law an accused is said to be reckless “where he or she engages in conduct (either an act or omission) in the knowledge that a consequence is a probable or possible result of his or her conduct”.

In undertaking the review, the VLRC will examine:

  • the reasons for the current standard of recklessness expressed in reforms to Pt I, Div 1(8A)–(8F) of the Crimes Act 1958 (Vic);
  • the meaning of recklessness for offences in other Australian and relevant common law jurisdictions, particularly other offences against the person;
  • the operation of any legislated statutory minimum terms of imprisonment; and
  • the potential impacts of any recommended changes on all parts of the criminal justice system.

Recklessness at common law

An accused is said to be reckless in common law where he or she acts in the knowledge that a consequence is a probable or possible result of his or her conduct: Pemble v The Queen.

In R v Crabbe the High Court held in 1985 that foresight of the probability of death or grievous bodily harm (the probability test) was the applicable standard of recklessness to be applied in cases of common law murder.

Further, it has been noted by the Commonwealth Attorney-General that the common law:

… oscillates between the requirement that the anticipated result must have been “likely” or “probable” and the lesser requirement that it be merely “possible”.

Recklessness in the Crimes Act 1958 (Vic)

Foresight of the possibility of harm (the possibility test) was the correct standard of recklessness to apply to statutory offences other than murder in England and generally in Australia in 1985. However in 1990, the Victorian Court of Criminal Appeal applied the probability test in R v Nuri to the offence of recklessly engaging in conduct endangering life (s 22 of the Crimes Act 1958 (Vic)).

In 1995, the Victorian Court of Appeal in R v Campbell [1997] 2 VR 585 decided that, in the absence of a statutory definition of “recklessly” in s 17 of the Crimes Act 1958 (Vic)  (recklessly causing serious injury), the standard of recklessness was one requiring foresight of the probability of harm.

The High Court, in Director of Public Prosecutions in 2021 determined that the standard of recklessness required to establish the indictable offence of recklessly causing serious injury under s 17 was one of probability, not possibility.

Recklessness in other Australian jurisdictions

In New South Wales and South Australia the Courts have repeatedly applied the possibility test for offences other than murder.

For Federal offences, recklessness is defined in terms of a “substantial” risk rather than in terms of probability or possibility because they invite speculation about mathematical chances. In Tasmania, s 157 (culpable homicide) of the Criminal Code refers to “likely” to cause death which has been held to be synonymous with “probable”: Boughey v The Queen.

The VLRC will examine whether to include a definition of recklessness in the Crimes Act 1958 (Vic) and if so, whether the “probability” or “possibility” standard should apply. It should be noted that if the probability test is retained in Victoria Thomson Reuters’ Laws of Australia notes that it would set the “threshold of criminal responsibility higher than it is in England and Canada” and higher than in Australian jurisdictions such as New South Wales.

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