Presenters: Nick Gadd and Gemma Walsh
Tony North KC, Chair of the Victorian Law Reform Commission
Kathryn Terry, team leader, recklessness inquiry, VLRC
Emma Larking, senior policy and research officer, VLRC.
Nick: Welcome to ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd.
Gemma: And I’m Gemma Walsh. And today we’re talking about recklessness.
Emma: So if you think about perhaps someone driving on a quiet country road in the middle of the night with their headlights off at high speed, you might suggest that it’s not probable that they’re going to injure a person, but if they do injure a person and they’re charged with recklessly causing serious injury, because of the probability threshold the prosecution might not successfully convict them.
Nick: What could connect actions as diverse as dangerous driving, kicking someone in the head, or even the case of a surgeon who performs a dangerous operation and their patient dies? In Victorian law, the answer could be the word ‘recklessness’. But establishing just what this word means is difficult.
Establishing proof of criminal recklessness can also be difficult because it involves trying to understand exactly what was going through someone’s head.
Gemma: Like at some point they might have said, “I’ll punch them in the nose”, and then they punch them in the nose and they get a brain injury …
Tony: That’s where our problem is.
Nick: To unpack this issue, we’re talking to Tony North, the Chair of the VLRC, Kathryn Terry, who’s team leader of the recklessness inquiry, and Emma Larking, who’s a senior policy and research officer with the VLRC.
Nick: Let’s begin by setting the scene. A case where the accused has shoved someone over, then kicked them in the head, and the victim ends up with brain damage. What could the perpetrator be charged with?
Emma: So they could be charged with a range of offences and those offences would depend on the state of mind of the person who’s being charged at the time of the alleged offending.
Gemma: So, is it what they’re thinking when they commit the offence?
Emma: They’ll be charged to try and capture the outcome of what they’ve done, as well as their state of mind at the time. If they intended to seriously injure the person, they could be charged with intentionally causing seriously injury, which is a very serious offence, however, if it’s not entirely clear what their state of mind was and it’s likely or if the prosecution thinks that they might not have intended to hurt the person but they were reckless about the outcome of the punch, so then they would be charged with recklessly causing serious injury. Or potentially with recklessly causing injury, or even in some cases negligently causing serious injury.
Nick: So which would be the most serious of those ones we’ve talked about?
Kathryn: Intentionally causing serious injury is considered the most culpable because you’ve deliberately done an act intending to hurt someone. And then the order decreases as you go down, recklessly causing serious injury would be next and negligently is the lower threshold sitting under that.
Nick: Ok, so let’s say the charge is recklessly causing serious injury, what does “reckless” actually mean in that context, because the meaning in law is not the same as the way we might use the word reckless in daily life is it?
Kathryn: That’s right. So, the common understanding of recklessness is that you’re being careless or you’ve done something without thinking through the consequences. The legal definition of recklessness tries to capture whether the person was aware of the risk. So the concept of recklessness is about the person’s state of mind at the time of the offence.
Nick: So, it’s really about looking into the person’s mind when they did this act?
Kathryn: And what they thought the risk would be of the action.
Gemma: So, who defines this definition of recklessness, where does it come from Emma?
Emma: So it comes from decisions made by the courts or what we describe as the common law. The Victorian Crimes Act which sets out offences against the person doesn’t actually include a definition of recklessness, so we have to go to what the courts have historically said about recklessness and that means things get complicated because the courts have said different things over time.
Gemma: And is it different across different jurisdictions?
Emma: Yes. So in NSW at the moment, the threshold for recklessness for murder is, the accused must have foreseen that death was likely to happen or probable in order to be guilty of murder but for other offences against the person, the accused need only have foreseen that it was possible that the harm would occur and they can be found guilty of recklessly causing that harm.
In Victoria, it’s a bit more straightforward at the moment. The position is that for murder as well as lesser offences the accused only needs to have foreseen that the risk was probable, so it’s a higher threshold. But our reference arises out of an issue raised by the Director of Public Prosecutions, which is that for lesser offences, that threshold is too high and it leaves a gap in the offences that the prosecution can actually successfully prosecute.
Nick: So in Victoria, to convict someone of recklessly doing something, you have to prove they could foresee what would probably happen.
Emma: Yeah, that’s right. So if you think about perhaps someone driving on a quiet country road in the middle of the night with their headlights off at high speed, you might suggest that it’s not probable that they’re going to injure a person, but if they do injure a person and they’re charged with recklessly causing SI, because of the probability threshold the prosecution might not successfully convict them.
Nick: Because the person could argue, “Yes, I had my headlights off, but it was a quiet country road, so it wasn’t probable that I would injure someone, it was just bad luck.”
Emma: Yeah, that’s right.
Nick: So, Tony, I’d like to bring you in now. A case similar to the one we described earlier has recently been subject to review by the High Court. In the course of a fight between two men the accused kicked the other man in the head, claiming it was self-defence, and he was acquitted of recklessly causing serious injury.
But the High Court was asked to review the interpretation of recklessness which arose in this case. Can you explain to us what the significance was of that decision?
Tony: The High Court was faced with the situation in Victoria where an earlier case had established that the proper test in this situation was recklessness in the sense of foresight of the probability of a serious injury. The Director of Public Prosecutions was dissatisfied with this state of the law and took the case in question first to the Court of Appeal in Victoria and then to the High Court arguing that the proper test for recklessness was foresight of the possibility of serious injury.
Nick: So possibility not probability?
Tony: Possibility not probability. And what the High Court said is that it thought that the possibility test was the correct one. But the High Court held that it was up to the parliament to change the law from the probability test to the possibility test because it had made changes to the offences or the Act containing the offences in the meantime indicating in effect that it had accepted that earlier case law which established the probability test.
Emma: And one of the changes that parliament made was to increase the penalties for many offences, including recklessly causing serious injury.
Nick: So if we increased the scope of the offence it would mean that potentially more people were getting these longer sentences.
Emma: That’s right.
Gemma: So Kathryn, can you sum up for us the issues raised by the current definition? Is it working? Why are we looking at this?
Kathryn: As we’ve been discussing, the DPP thinks that the definition in Victoria, the threshold for recklessness, is too high at the moment. In the view of the DPP it’s currently very difficult to meet that high threshold for recklessness.
Nick: So the DPP has the responsibility of prosecuting serious offences and she brought the High Court case. Why does the DPP say that the present test, which relies on probability, is too high?
Tony: So, she would say and she is of course only one stakeholder and we will be talking to others as well who may well have different views, but one of the motivating forces of the enquiry is her view that with the test as it’s presently positioned there are people who have engaged in very serious conduct, who because of the probability test cannot be prosecuted successfully and hence are escaping criminal liability.
Nick: A lot of the problem here seems to come down to the threshold, whether the threshold should be probably causing serious harm or only possibly causing it. Emma, would there be any issues with lowering that threshold to foresight of possible harm?
Emma: There could be a range of issues that that would bring up, Nick. One of them might be that the scope of the offence would suddenly broaden to an extent that’s just too inclusive. So, for example, if you think about driving, or about surgeons performing their everyday work, what they’re doing has social utility, it’s considered perfectly reasonable to hop into your car and drive off, assuming you obey the road rules but cause an accident for example because a pedestrian steps in front of you when you haven’t seen them in time. Most people would accept that your behaviour hasn’t been reckless – you weren’t speeding. Similarly, if someone dies on the operating table and the surgeon was appropriately qualified and doing everything that they should have been doing in those circumstances, if the person dies because of a heart attack or something on the operating table, that outcome isn’t behaviour that we think should be criminalised and yet it’s possible, everyone would accept that that outcome is ah, um, a risk that it’s possible to foresee. So the possibility test seems potentially overly inclusive.
Nick: So it’s something to do with whether the action itself is a reasonable thing to do.
Emma: That’s right.
Gemma: So Tony, the VLRC’s considering whether recklessness should be legislated or left to judges to determine under common law. What factors will the VLRC consider?
Tony: Well, the original decision when the offences of recklessly causing serious injury and recklessly causing injury were introduced was to leave the definition of recklessness to the common law, that means that the judges would determine what recklessness means. There’s another way that this could be addressed and that is by a definition of recklessness in an Act of parliament.
A legislative definition might be an advantage because it can explain exactly what the definition is meant to contain. Being in an Act of parliament everyone can see what the definition means and it is therefore more accessible and hopefully clearer and easier to understand.
What makes the policy argument quite interesting in this case is that it’s trying to give expression to a policy about what goes on in the mind of someone engaged in activity which attracts criminal culpability. What we’ve heard already is that one of the difficulties of obtaining convictions for these offences concerns the mental motivation of the accused. One can easily imagine this if one thinks of sitting down in an interview room and rarely do accused people explain their motivation by reference to possibility or probability or taking risks, you know, they’re not …, they usually say, “well, I kicked him because he made me mad”, or “we were in a fight”. And yet we, the Victorian Law Reform Commission, are being asked to try and pinpoint what level of mental motivation should attract criminal liability.
Gemma, But at some point they might have said “I want to hurt this person, but I’m not a killer.” You know, like, at some point they might have said, “I’ll punch them in the nose, I’m not going to stab them in the chest.” And then they punch them in the nose and they get a brain injury. Well…
Tony: That’s where our problem is.
Gemma: It’s going to be quite hard to capture this across so many offences, by the sounds of it? Like, is there, has anyone done a count, just out of interest, on how many offences recklessness has been used?
Emma: Well over 300 we think, in different pieces of legislation, but our enquiry is limited primarily to the offences against the person in the Crimes Act so there’s only, I think, a handful of those.
Kathryn: We have been asked to come up with guiding principles that we could use to think about how recklessness is used across other offences in our Crimes Act.
For example, a person who drives recklessly and kills another person could be guilty of the offence of culpable driving causing death. The Crimes Act specifies for this offence that driving recklessly involves ‘conscious and unjustifiable disregard of a substantial risk’.
Nick: So because we have ‘reckless’ used in different ways, but with different forms of words in the Crimes Act – it really sounds like this could be a problem.
Kathryn: It is very complex. And complexity can make it difficult for people to understand and know their obligations. Also another problem is that juries might find it more difficult to understand. On the other hand, there might be good reasons to have different definitions for recklessness for some offences.
Nick: Well good luck with unpacking all of that. That’s all we’ve got time for today, but you can find out more about this enquiry by going to the VLRC website, where you can also find the recklessness issues paper and your submissions are invited by the 3 March 2023, if you’d like to have your say. Join us again next time for more ‘Old Law, New Law’.