Issues with how recklessness is defined today

Is the threshold for establishing recklessness for offences against the person in Victoria too high?

38 Foresight of probable harm is a higher test or threshold for establishing recklessness than foresight of possible harm.[44] If the test is reformed to require foresight of possible harm, this will expand the scope of the relevant offences.

39 Changing the test may criminalise some behaviour that is not currently criminalised and raise the degree of culpability for other behaviour by moving it up the hierarchy of offences from ‘negligent’ to ‘reckless’. It could make it easier for the prosecution to prove recklessness in cases where a particular outcome was an unlikely but possible result of the accused’s actions.[45]

40 In the DPP Reference case, the Director of Public Prosecutions suggested that the application of the probability test to offences against the person:

creates instances where offenders who clearly have caused the result, and by common estimation would be deemed to have been ‘reckless’ as to its causation, escape proper liability for causing that result … There is no lesser form of causing serious injury recklessly where an offender is sentenced for causing the result, a serious injury, if proof of the mental element fails.[46]

41 The Director pointed out that, by comparison, the lesser offence of manslaughter is available if the mental element for murder is not proven.[47] While it is true that lesser forms of causing serious injury recklessly are not available, the offence of negligently causing serious injury might be charged as an alternative. And depending on the available evidence about the accused’s mental state, other alternative charges might include intentionally causing injury, recklessly causing injury, or common assault.[48]

42 It is our role to assess if there are sound reasons for expanding the scope of offences involving recklessness.

43 Previously, the Victorian Government has acted to reduce the scope of serious injury offences by narrowing the definition of serious injury. At the time, the Attorney-General said:

[the] very low threshold for offences involving serious injury, which arose from an overly expansive definition of serious injury, has meant that cases which should be charged as causing injury and heard and determined in the Magistrates’ Court are instead charged as causing serious injury and heard in the County Court. This creates delay for victims and accused and places unnecessary pressure on the County Court.

Providing a new definition of serious injury will clarify the law and enable judges to give much clearer guidance to juries about what constitutes a serious injury. The higher threshold for serious injury will also make it easier for prosecutors to determine the appropriate offence to charge.[49]

44 Although the Government previously sought to confine the scope of serious injury offences, the considerations that prompted that reform may no longer carry as much weight or may need to be balanced by other concerns that have arisen since. We are interested to know if there are currently any policy or other reasons to justify changing the definition of recklessness as it applies to offences against the person, including if there is a need to expand the scope of these offences. For example, does the current threshold for establishing recklessness result in some unlawful injury matters going uncharged, or being charged as a less serious offence than is appropriate?

45 It may be that the main problem the prosecution faces when seeking to prove recklessness is not that the threshold is too high, but that it is difficult to prove the mental element. Usually, the prosecution relies on statements provided by the accused in a police interview about what they were thinking at the time of the alleged offending. Skilled interviewing is required to elicit relevant information about an accused’s state of mind. The accused also has a right to silence.

46 Victoria Police told us:

• The ‘PEACE’ interview model encourages a suspect to tell their account without interruption. The interviewer then presents the suspect with any inconsistencies. There is nothing in the process that is specifically directed towards the mental element of the offence, although the suspect’s state of mind is often established through the interview process. In the absence of an admission or voluntary account, it can be difficult to obtain an admission or comment demonstrating that a suspect’s state of mind met the threshold for intent or recklessness. This is further complicated by the current high ‘probability’ threshold for recklessness.

• In the context of family and gendered violence, the difficulty of proving intent means that recklessness often becomes a ‘fall back’ position, ‘lessening the possible punitive outcomes for often serious offending’.

• Some alleged offenders are not fit to be interviewed, making it even more difficult to obtain evidence regarding their state of mind.[50]

Examples provided by the OPP

47 The Office of Public Prosecutions provided the following hypothetical examples to illustrate where recklessness is not likely to be met under the current probability test but may be made out under a possibility test:[51]

Scenario 1: A punch causing a traumatic brain injury

A and B are at a bar. Both have consumed alcohol. A becomes aggressive towards B, and punches B in the face, causing B to fall and strike his head on the floor. B suffers a traumatic brain injury as a consequence of striking his head.

Given the severity of the resulting injury, a charge of recklessly causing serious injury would, on its face, be appropriate. However, it would be open to A to argue that, while they were aware of the probability that, by throwing a punch, they would cause an injury to B, they were not aware of the probability that this would cause a serious injury. In this circumstance, while a less serious charge of causing injury intentionally or recklessly may be open, it would be exceedingly difficult for the prosecution to prove a charge of recklessly causing serious injury.

Scenario 2: Kicking

The dangers of a one-punch assault, in which a person is knocked to the ground and strikes their head, may be well understood in the community. But kicking—another all too common form of violent assault—can carry with it consequences which an attacker might foresee as possible but not necessarily probable. 

An assailant who kicks a prone victim to the torso might readily foresee grazing or soft tissue contusions, falling short of serious injury, as probable consequences. But the same force could result in a rib breaking and puncturing an organ or lung, or the prone victim rolling into a gutter and striking their head. 

Scenario 3: A police siege

A has barricaded himself in a property. There is a visible police presence (Officers B and C) at the front of the property. Two other officers (D and E) move into position covertly, at the rear of the property. A produces a firearm and fires several shots towards the rear of the property. The bullets come very close to striking D and E.

The prosecution would need to prove that A foresaw that placing another in danger of serious injury or death was a probable consequence of him firing behind the house. In circumstances where A had not seen officers in that area, it would be difficult to prove that A recklessly engaged in conduct endangering life or conduct endangering serious injury, notwithstanding the fact that D and E were endangered. A similar difficulty would arise in relation to the alternative offence of discharging a firearm reckless to the safety of a police officer (Crimes Act s 31C).

If the test were ‘possible consequence’ rather than ‘probable consequence’, the prosecution may well be able to establish the threshold of recklessness.

Is the distinction between intentional and reckless offending obscured by requiring foresight of probable harm?

48 The distinction between intentional and reckless offending may be obscured when the definition of recklessness requires foresight of probable harm.[52]

49 In the DPP Reference case, the Director of Public Prosecutions said:

By requiring proof of the knowledge of the probability of the relevant consequences, an accused’s mental state is morally equivalent to having an intention to cause the relevant consequence. This conflation creates a lacuna in the proper determination of liability.[53]

50 The Director’s reasoning here implies that the probability threshold for recklessness makes it almost as difficult to prove as intention. This suggests that there is a gap in the criminal law and behaviour that injures or endangers people is not appropriately criminalised when the alleged offender did not foresee it would probably happen.[54]

Would the distinction between reckless and negligent offending be obscured by lowering the threshold?

51 On the other hand, lowering the threshold for recklessness to foresight of possible harm might obscure the distinction between reckless and negligent offending. It could make it easier to prove reckless offending than negligent offending, even though reckless behaviour is more culpable than negligence in the hierarchy of offences.

Are there any practical differences between the various definitions?

52 An assessment of what is a:

• risk of a probable outcome

• risk of a possible outcome

• substantial and unjustifiable risk

will invariably be influenced by the context, circumstances, and social views on the reasonableness or acceptability of the conduct.

53 For example, driving is a high-risk activity, but driving is useful and socially accepted, so it is not considered reckless as long as drivers obey the road rules. A driver who is obeying the road rules and who injures another person (perhaps someone who steps out from the kerb without looking) will not be characterised as reckless, regardless of how recklessness is defined.[55]

54 The meanings of ‘possibility’, ‘probability’ and ‘substantial and unjustifiable risk’ vary according to the circumstances and whether the risk-taking can be characterised as reasonable in those circumstances. This means that ‘it may make little practical difference’ what definition of recklessness is used.[56]

55 But the ordinary, everyday meanings of ‘possibility’ and ‘probability’ are different. According to ordinary usage, ‘probability’ sets a higher threshold. Taken at face value, we can assume that adopting the lower threshold of possibility would:

• criminalise some behaviour that has not previously been criminalised

• make it easier to prove recklessness in cases where a particular outcome was an unlikely but possible result of the accused’s actions.[57]

How clearly expressed is the objective fault element?

56 Recklessness relates to a risk that a person subjectively perceives. It can be distinguished from ‘negligence’, which relates to an objective risk that an ordinary person should be aware of.[58]

57 However, reckless offences may also include an objective fault element. This is overtly signalled in the ‘substantial and unjustifiable risk’ test by reference to the risk being unjustifiable. When that test was drafted, it was chosen in part because the concepts of ‘probability’ and ‘possibility’:

ignore the link between the degree of risk and the unjustifiability of running that risk in any given situation.[59]

58 The ‘unjustifiable’ branch of the test has not been considered much by the courts. This may reflect the use of prosecutorial discretion to prevent justified risk-taking behaviour being charged. It may also be because accused persons have relied on defences of duress or sudden or extraordinary emergency, rather than arguing that their behaviour was justified.[60]

59 In addition, the failure to focus on the ‘unjustifiable’ branch of the test may reflect that ‘substantial risk’ has itself been interpreted as including an objective element. As discussed earlier, although the accused must have been consciously aware of the risk (the subjective fault element), the standard of the reasonable observer is used when deciding if the risk was substantial.[61]

60 Similarly, in New South Wales the possibility threshold has been interpreted as having both subjective and objective components, requiring both that a person foresaw the possibility of harm and that it was unreasonable for them to take the risk in the circumstances known to them.[62] Assessing if it was reasonable to take a risk in the circumstances has been described as requiring consideration of:

• the ‘social utility’ of the act,[63] or

• a range of factors including the ‘magnitude of the risk … along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’.[64]

61 In the example discussed in paragraph 53, because driving is socially useful a driver who causes an injury to a pedestrian ‘is not judged to be reckless by reason only of foresight of the mere possibility of injury.’[65]

62 In New South Wales the objective element of recklessness is not usually explicitly identified. The High Court has said that in most cases it is unnecessary to do so:

Experience to date suggests that juries are ordinarily able as a matter of common sense and experience, and so without the need for particular directions, to take the social utility of an act into account when determining whether it was reckless.[66]

63 However, the High Court also recognised that there may be cases where it is necessary to direct the jury to the objective element to ensure the accused receives a fair trial.[67]

64 A direction to this effect could involve explaining to the jury that, to establish recklessness, the prosecution must prove beyond reasonable doubt that:

1) The accused person foresaw the possibility of harm but proceeded nonetheless to take that risk; and

2) The risk was unreasonable in the circumstances known to the accused,[68] which is an objective test.

65 In the DPP Reference case, in the Court of Appeal, Justice Priest said that the probability test ‘is purely subjective … and has no complicating objective components.’ For this reason ‘it is straightforward and relatively simple’ and ‘easily grasped by juries’.[69]

66 It should be noted that in Victoria, acting ‘without lawful excuse’ is an element of many offences against the person involving recklessness.[70] For these offences, juries are told that the prosecution must prove that the accused acted without lawful justification or excuse.[71]

67 In the DPP Reference case, the Director of Public Prosecutions asked the High Court to find that the correct test for recklessness for offences against the person in Victoria is that the accused had foresight of the possibility of the relevant consequence and proceeded nonetheless, having regard to the social utility of the action.[72] In other words, the Director sought the adoption in Victoria of a possibility test similar to that which has been used in New South Wales, but with an explicitly articulated objective element.

68 The majority of the High Court did not directly address this aspect of the Director’s case. In the same case, the Victorian Court of Appeal had said:

When and how a ‘reasonableness’ element is appropriately included in the

definition of a criminal offence is a question of policy, not of interpretation. Given

that criminal responsibility ordinarily rests on what an accused person actually knew or intended or foresaw, rather than on what a reasonable person would have known or intended or foreseen, the introduction of an objective test is always a matter

requiring careful consideration.[73]

69 The Court of Appeal said it was not its role to trespass into this policy area.

70 For this inquiry, we are seeking input on whether the Crimes Act should include a definition of recklessness for offences against the person, and if so, what definition. Part of our assessment of what definition is preferable will involve considering whether and how it incorporates an objective fault element.

71 As well as the need to establish a threshold for recklessness that captures an appropriate range of offending behaviour without being overly inclusive, an important consideration when evaluating any definition of recklessness is how clearly it can be communicated to a jury. At the conclusion of a criminal trial the judge explains to the jury the relevant law that they are required to apply. This includes the elements of the offences charged and their component parts. To arrive at a guilty finding for an offence, the jury must find each element proven beyond reasonable doubt.

Recklessness is defined in a variety of ways in Victorian legislation—
is this a problem?

72 Recklessness and related concepts are used in a variety of ways in the Crimes Act. Other Victorian legislation also uses different definitions of recklessness.

73 The Crimes Act does not define recklessness in relation to offences against the person in Part I, Division 1(4). The meaning of recklessness for these offences comes from the common law, as discussed earlier.

74 For some sexual offences in Part I, Division 1(8A)–(8F) of the Crimes Act the concept of recklessness remains relevant but the language of recklessness is no longer used. It has been replaced with the expression ‘probably’.

75 For example, ‘Threat to commit a sexual offence’ (section 43):

A person (A) commits an offence if—

• A makes to another person (B) a threat to rape or sexually assault B …; and

• A intends that B will believe, or believes that B will probably believe, that A will carry out the threat.[74] [Emphasis added].

76 Section 43 was modelled on the offences of threat to kill and threat to inflict a serious injury.[75] These offences still use the language of recklessness. For example, ‘Threats to kill’ (section 20):

A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person—

• intending that that other person would fear the threat would be carried out; or

• being reckless as to whether or not that other person would fear the threat would be carried out—

is guilty of an indictable offence. [Emphasis added].

77 When section 43 was introduced, the Department of Justice explained that:

[the] element of recklessness in [the offence] is made clearer by being explicated in terms of a belief in a probable result.[76]

78 The Crimes Act also contains property offences that use the concept of recklessness but not the term. For example, ‘Destroying or damaging property’ (section 197):

A person who intentionally and without lawful excuse destroys or damages any property belonging to another … shall be guilty of an indictable offence…

… a person who destroys or damages property shall be taken as doing so intentionally if, but only if—

• his purpose or one of his purposes is to destroy or damage property; or

• he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.[77] [Emphasis added].

79 A different definition of recklessness applies to the offence of culpable driving causing death.[78] As discussed earlier, this offence uses a definition that is very close to the Commonwealth definition. The offence provides that:

a person drives a motor vehicle culpably if he drives the motor vehicle—

• recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving[79] [Emphasis added].

80 As the examples above show, recklessness is used in at least four different ways in the Crimes Act:

• specific reference to ‘recklessness’ but no statutory definition, hence ‘foresight of probable harm’ is required in accordance with the common law

• foresight of a probable outcome, with no reference to ‘recklessness’

• foresight of a result that is ‘more likely than not’, with no reference to ‘recklessness’

• specific reference to ‘recklessness’, which is defined as ‘conscious and unjustifiable disregard of a substantial risk that may result’.

81 In a single case where an accused is charged with multiple offences, a jury may be required to apply different tests for recklessness to different offences.[80]

82 Several different concepts of recklessness are also used in other Victorian legislation.

83 For example, the Family Violence Protection Act 2008 (Vic) uses both the language of ‘probability’ and of ‘recklessness’. Section 123A provides that a person against whom a Family Violence Intervention Order has been made and who has had an explanation of the order given to them, must not contravene the order ‘intending to cause, or knowing that [their] conduct will probably cause – … physical or mental harm to the protected person … or … apprehension or fear …’. And section 144RA relates to the ‘intentional or reckless … use of confidential information’. There may be other sections of the Act where the concept of recklessness is relevant even though the language associated with recklessness is not used.[81]

84 We are interested to know if the use of different language and definitions of recklessness in the Crimes Act, as well as in other Victorian legislation, is a problem, and if so why.

85 Previously, the Model Criminal Code committee sought to codify general principles of criminal responsibility in order ‘to encourage consistency in the language of the criminal law and to promote certainty as to the meaning of that language’.[82] The committee failed to secure an Australia wide consensus to adopt these principles of criminal responsibility but there was widespread recognition of the benefits that consistency might bring.[83]

86 Complexity in the criminal law can make it difficult for people to understand the law and know their obligations. On the other hand, there may be good reasons to have different definitions of recklessness for some offences.

Would a different definition require new penalties?

87 If Victoria adopts a legislative definition of recklessness for offences against the person that differs from the current common law definition, it will be necessary to consider whether the penalties associated with these offences need to change.

88 The maximum penalties for offences against the person in Victoria are generally higher than for comparable offences in New South Wales.[84] The penalties for causing injury offences were significantly increased in 1997, two years after Campbell was decided.[85] The Court of Appeal said these changes can be understood on the basis that the legislature accepted the Campbell interpretation and that the increased penalties were seen as necessary given the high degree of culpability where the offender was aware of the ‘probability’ of serious injury.[86]

89 Victoria also has some statutory minimum terms of imprisonment, such as for causing serious injury recklessly in circumstances of gross violence.[87]

90 If Victoria adopts the same definition of recklessness as New South Wales, and this expands the scope of offences involving recklessness and makes them easier to prove, justice may require that relevant penalties are less severe.

91 On the other hand, it may still be harder in Victoria to convict for serious injury offences. These offences require foresight of a serious injury. The comparable offences in New South Wales only require foresight of bodily harm, as opposed to ‘grievous’ (serious) bodily harm.

92 The issue of penalties is relevant more generally. For example, the offence of culpable driving causing death contains recklessness as a fault element. It is a category 2 offence under the Sentencing Act 1991 (Vic), requiring a custodial sentence in most cases.[88] The Crimes Act also specifies that the standard sentence for this offence is eight years.[89]

93 It is also important to note that some Crimes Act offences, such as causing serious injury intentionally, do not refer to recklessness at all, but must be sentenced differently if the accused knew or was reckless about the victim having a certain occupation, such as an emergency worker on duty.[90] Any recommendations we

make in this inquiry regarding the definition of recklessness for offences against the person may have implications for how the concept of ‘recklessness’ is used in the Sentencing Act.

If a statutory definition is adopted, what role should the common law play?

94 If a short definition of recklessness is legislated, such as ‘A person is reckless if they foresee (predict) that harm will [possibly or probably] occur and they continue regardless’, the courts will need to reach a conclusion about how ‘possibly’ or ‘probably’ (whichever has been legislated) is defined. If a statutory definition does not exclude the common law, how the courts have previously interpreted the relevant terms will continue to apply.

95 Alternatively, the legislative definition could attempt to define ‘possibility’ or ‘probability’ (or whatever test has been legislated) and exclude the operation of the common law. For example, ‘a possible risk is a risk that is more than a trivial risk or bare logical possibility’ or ‘a probable risk is one that is likely to occur, but it does not need to be “more likely than not”’. It would remain the role of the courts to interpret the words of the provision once enacted.[91]

How would a legislated definition affect the justice system?

96 If the Crimes Act is amended to include the current common law definition of recklessness for offences against the person, this will provide certainty about Parliament’s support for the status quo. Aside from this, it is unlikely to have significant flow-on effects for the justice system.

97 If the Crimes Act is amended to include a definition that sets a lower threshold for recklessness, such as foresight of possible harm, this will have flow-on effects. The extent of these effects is uncertain but could include those set out in Table 6.

Table 6: Potential outcomes of lowering the threshold for recklessness

Stage of criminal process

Potential outcome

Police respond to an incident or report of an offence against the person

Police informant interviews alleged offender. It may be that more alleged offenders give evidence of having foreseen a possible outcome, by comparison to those admitting foresight of a probable outcome.

Charges filed

An increase in charges filed in relation to a wider range of behaviour.

Pleading behaviour

Accused people agree to plead guilty to offences involving recklessness more often than at present, given the higher likelihood of the offence being proven on the available evidence about their mental state.

Trial outcomes

More offences involving recklessness are proven than at present, including serious offences that require custodial penalties.

More people imprisoned for offences involving recklessness than at present.

98 The situation in New South Wales can provide little insight to the flow-on effects for the justice system of changing the definition of recklessness. Aside from the existing differences in the definition of recklessness, there are other differences in how offences against the person are expressed and defined in the two states.[92]

99 There may be other consequences of legislating a new definition of recklessness for offences against the person that we have not considered here.

100 We are interested to hear about any potential consequences for the justice system, including but not limited to likely changes in rates of prosecution, conviction, or incarceration.

Guiding principles

101 Our terms of reference ask us to:

develop a set of guiding principles that could be used to review the use or proposed use of recklessness as a fault element in other categories of Crimes Act offences.[93]

102 These guiding principles will not be inserted in the Crimes Act. Instead, they will assist policy makers and drafters, and Parliament, to analyse if and how the language and concept of recklessness should be used or reformed in relation to Crimes Act offences other than offences against the person.

103 Potential guiding principles might include:

• How recklessness is used should be clear and easy to understand, including so that judges can effectively explain its meaning to juries.

• How recklessness is used should be consistent with everyday usage.

• Inconsistency in the Crimes Act should be reduced.

• Inconsistency in Victorian legislation should be reduced.

• Offences that are distinctive should have definitions of recklessness that are appropriately tailored to those offences.

• The scope of the definition of recklessness should match the level of culpability associated with the offences and the penalties attached to them.

• There should be clarity about the subjective and objective elements of recklessness.

  1. DPP Reference No 1 of 2019 [2021] HCA 26, [1] (Kiefel CJ, Keane and Gleeson JJ (minority)). See also The Director of Public Prosecutions Reference No 1 of 2019—Appellant’s Submissions (Court File, 29 January 2021) 5 [16], describing ‘foresight of probability’ as ‘plainly provid[ing] less “coverage” than the test of possiblity’.

  2. This was the respondent’s argument in the DPP reference case: Acquitted person, The Director of Public Prosecutors Reference No 1 of 2019 – Respondent’s Submissions (Report) 2 [2], describing the DPP’s proposed ‘possibility’ test for the offence of causing serious injury recklessly as ‘significantly expanding liability for that offence’. The DPP and the High Court accepted that this would be the result of changing the test.

  3. The Director of Public Prosecutions Reference No 1 of 2019—Appellant’s Submissions (Court File, 29 January 2021) 15, footnote 43.

  4. Ibid.

  5. See the appellant’s submissions to the Court of Appeal in the DPP Reference case: Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181, [107] (Priest JA).

  6. Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 19 (Robert Clark, Attorney-General). See also Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, 17 [46] (Gageler, Gordon, Steward JJ).

  7. Emails from Victoria Police to the Victorian Law Reform Commission, 22 December 2022 and 6 January 2023.

  8. Emails from the Office of Public Prosecutions to the Victorian Law Reform Commission, 15 December 2022 and 19 December 2022.

  9. O’Hara notes one possible consequence of the standard for recklessness being ‘very close to the standard required for intent itself’: ‘Without sufficient separation between recklessness and intent, similar offending may result in convictions for different offences with different mental states which may produce radically divergent, and potentially unfair, outcomes at sentence.’ James O’Hara, ‘Recklessness in Criminal Law: Possibilities and Probabilities’ (2022) 46 Criminal Law Journal 67, 70.

  10. The Director of Public Prosecutions Reference No 1 of 2019Appellant’s Submissions (Court File, 29 January 2021) 14-15 [46].

  11. In other words, a ‘probability’ threshold ‘may set the bar too high for the prosecution in cases where on any estimation, the conduct should attract liability.’ James O’Hara, ‘Recklessness in Criminal Law: Possibilities and Probabilities’ (2022) 46 Criminal Law Journal 67, 70.

  12. See, for example, Aubrey v R (2017) CLR, 329 [49] (Kiefel CJ, Keane, Nettle and Edelman JJ).

  13. See Mirko Bagaric, ‘[9.1.2680] The Accused’s Knowledge of the Risk of Bringing about the Conduct Elements of the Offence Constitutes the Subjective Component of Recklessness’ in The Laws of Australia (Thomson Reuters, 2016). See also, Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [69] (Edelman J: ‘The difference between the meaning of recklessness for most offences (which focuses upon foresight of the possibility of the consequences) and the meaning in the context of murder … (which focuses upon foresight of the probability of the consequences) is not as stark as first appears.’)

  14. See footnote 42.

  15. Joseph Lelliott et al, ‘More Scope for Murder: Reckless Indifference in Queensland’s Criminal Code’ (2020) 44 Criminal Law Journal 19, 23.

  16. Criminal Law Officers Committee of the Standing Committee of Attorneys-General (Model Criminal Code Officers Committee), Model Criminal Code, ‘Chapters 1 & 2: General Principles of Criminal Responsibility’ (December 1992) 27.

  17. The Commonwealth Criminal Code: Guide for Practitioners (2nd ed, 2002) Pt 2.2, div 5.4-C, 77.

  18. See paragraph 34 of this paper.

  19. As set out by Justice Edelman, with reference to ‘the developed meaning given by all members of this Court in Aubrey [which dealt with a NSW offence involving recklessness]’: Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [64].

  20. Aubrey v R (2017) CLR, 329 [49] (Kiefel CJ, Keane, Nettle and Edelman JJ).

  21. Justice Edelman has objected to using the concept of ‘social utility’ because it implies ‘a Benthamite metric of overall welfare’. In Justice Edelman’s view, assessing the reasonableness of an act does not require additional explanation in terms of social utility: ‘social utility is a label which conceals the real enquiry – the implicit reasonableness assessment’. Such assessment might involve consideration of the range of factors listed (magnitude of risk, etc): Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [72] (Edelman J, citing Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48).

  22. Aubrey v R (2017) CLR, 329 [49] (Kiefel CJ, Keane, Nettle and Edelman JJ).

  23. Aubrey v R (2017) CLR, 329 [50] (Kiefel CJ, Keane, Nettle and Edelman JJ).

  24. Ibid.

  25. See Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [64] (Edelman J).

  26. Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181 [124] (Priest JA). However, the Supreme Court of Victoria has said that the elements of reckless conduct endangering life (s 22 of the Crimes Act) include an ‘objective mental element’. The Court said the elements of reckless conduct endangering life include: the accused engaged in the conduct; that conduct placed a person in danger (ie, conduct that carried with it an appreciable risk) of death (the actus reus); the accused engaged in that conduct voluntarily; a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; (the objective mental element); and the accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances (the subjective mental element): R v Abdul-Rasool (2008) 18 VR 586; 180 A Crim R 556, [19], emphasis added.

  27. Reckless offences against the person that include ‘without lawful excuse’ as an element are: Crimes Act 1958 (Vic) ss 15A, 15B, 17, 18, 19, 20, 21, 22, 23.

  28. See, eg, Judicial College of Victoria, Criminal Charge Book, Charge: intentionally or recklessly causing serious injury (from 1/7/13).

  29. The phrase, ‘having regard to the social utility of the action’ was added by leave in the course of argument: Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181 [3] & footnote 3, (Maxwell P, McLeish and Emerton JJA).

  30. Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181 [44] (Maxwell P, McLeish and Emerton JJA).

  31. Crimes Act 1958 (Vic) s 43(1), emphasis added.

  32. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (2015) 21 [9.2].

  33. Ibid.

  34. Crimes Act 1958 (Vic) s 197(1),(2),(4); and see 197(5), 198, 199.

  35. Ibid s 318.

  36. Ibid s 318(2)(a).

  37. An analogous point can be made about the advantage of having a consistent meaning of recklessness for fatal and non-fatal offences: James O’Hara, ‘Recklessness in Criminal Law: Possibilities and Probabilities’ (2022) 46 Criminal Law Journal , 72. See also Director of Public Prosecutions Reference No 1 of 2019 [2020] VSCA 181 [121] (‘adapting the same test for recklessness in offences under s 17 as for reckless murder avoids the possible inconvenience flowing from a jury being asked to consider two different forms of recklessness in the event that reckless murder and recklessly causing serious injury are charged on the indictment.’: Priest JA).

  38. For example, s 123 makes it an offence to contravene a Family Violence Intervention Order. The mental element of this offence was discussed in DPP v Cormick, but the court found it was not necessary in that case to determine if recklessness would be sufficient to establish the mental fault element: Director of Public Prosecutions v Cormick [2022] VSC 786 [50].

  39. Harry Gibbs, R.S. Watson and A.C.C. Menzies, Review of the Commonwealth Criminal Law: Interim Report—Principles of Criminal Responsibility and Other Matters (Report, July 1990) 31.

  40. Model Criminal Code Officers Committee, Model Criminal Code: Chapter 2, General Principles of Criminal Responsibility (Final Report, Australian Government Public Service for the Attorney-General’s Dept., December 1992) chapter 2, i-iii.

  41. For example, for the offence of causing serious injury recklessly, s 17 of the Crimes Act 1958 (Vic) sets the maximum penalty at 15 years imprisonment, whereas the comparable offence of ‘reckless grievous bodily harm’ under s 35(2) of the Crimes Act 1900 (NSW) has a maximum of 10 years imprisonment: ‘A person who— (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty—Imprisonment for 10 years.’

  42. The maximum for intentionally causing serious injury was increased from 12.5 to 20 years; for recklessly causing serious injury, from 10 to 15 years; and for intentionally causing injury, from 7.5 to 10 years.

  43. Re Director of Public Prosecutions (Vic) Reference No 1 of 2019 [2020] VSCA 181; (2020) 284 A Crim R 19 [20]-[21] (Maxwell P, McLeish and Emerton JJA), [140] (Kaye JA).

  44. Crimes Act 1958 (Vic) s 15B; Sentencing Act 1991 (Vic) s 10.

  45. Sentencing Act 1991 (Vic) s 5(2H).

  46. Crimes Act 1958 (Vic) s 318 (1A).

  47. Sentencing Act 1991 (Vic) s 3(1), definition of category 1 offence (ca)(ii).

  48. The Commonwealth Criminal Code Act excluded the operation of the common law: Criminal Code Act 1995 (Cth) ss 1.1, 2.1;

    See also: Criminal Code Act 1899 (Qld) ss 2, 5.

  49. As discussed earlier, in Victoria, the offence of causing serious injury recklessly (Crimes Act 1958 (Vic) s 17) requires the prosecution to prove that the accused was reckless about the risk of causing a serious injury. In New South Wales, the equivalent offence of ‘reckless grievous bodily harm’ (Crimes Act 1900 (NSW) s 35) only requires the prosecution to prove that the accused was reckless about the risk of causing ‘actual bodily harm’. If their actions caused ‘grievous’ bodily harm and they were reckless about causing actual bodily harm, this is sufficient to make them guilty of the grievous bodily harm offence. The definitions of ‘serious injury’ and ‘grievous bodily harm’ also differ between the two states. Serious injury is defined in relation to offences against the person in the Victorian Crimes Act as ‘(a) an injury (including the cumulative effect of more than one injury) that—(i) endangers life; or (ii) is substantial and protracted; or (b) 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’: Crimes Act 1958 (Vic) s 15. In the NSW Crimes Act, ‘grievous bodily harm’ is defined as including ‘(a) 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, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).’: Crimes Act 1900 (NSW) s 4.

  50. However, the terms of reference specifically exclude consideration of offences in the Crimes Act that have recently been subject to review by the Commission, such as stalking and sexual offences.