Recklessness: Report

10. The benefits of Victoria’s recklessness test


• Victoria’s current recklessness test was supported by most stakeholders.

• The current test is functioning well. It has the benefits of being:

– well established, with a long history and embedded into the architecture of Victoria’s criminal law

– relatively clear, simple, and easy to apply

– largely consistent across Crimes Act 1958 (Vic) offences.

Overwhelming support for the current test

10.1 During our inquiry many stakeholders supported retaining the current recklessness test. Those supporting the existing definition of recklessness have considerable experience in the criminal law and apply it daily. They are:

• The Children’s Court of Victoria, a specialist court for children and young people.

• The Criminal Bar Association (CBA), the peak body for Victorian barristers practising criminal law. The CBA represents criminal barristers who prosecute and defend criminal prosecutions and those who have a mixed practice.[1]

• The Law Institute of Victoria (LIV), Victoria’s peak body for lawyers and those working in the legal sector.[2]

• Victoria Legal Aid (VLA), the largest criminal defence practice in Victoria. It represents people who are unable to afford private lawyers. VLA has extensive experience in the Magistrates’ Court and higher courts in Victoria.[3]

• The Victorian Aboriginal Legal Service (VALS). Criminal law (both summary and indictable crime) is one of VALS’ specialist areas and its legal practice spans Victoria.[4]

• Youthlaw, Victoria’s state-wide community legal centre for young people under 25 years of age. Youthlaw has extensive summary crime experience.[5]

• Liberty Victoria, a peak civil liberties organisation. Its members and office holders include legal practitioners who appear in criminal proceedings for both the prosecution and defence.[6]

• Barrister Dermot Dann KC and solicitor Felix Ralph,[7] who represented the acquitted person in the DPP Reference appeals.

10.2 The Judicial College of Victoria (JCV) and the Magistrates’, County and Supreme Courts were neutral on the policy question of how recklessness should be defined but told us the current recklessness test is functioning well. They provided insights about the potential impacts of change (see Chapter 11).[8]

The current test is well established

10.3 The Court of Appeal has recognised that ‘recklessness is a concept well known to the criminal law.’[9] The current common law definition of recklessness has a long history in Victoria. It is embedded in our criminal law.

A long history

10.4 We discuss the history of recklessness in Victoria in Chapter 3. The current test has been applied consistently for almost 30 years, since the 1995 decision of R v Campbell (‘Campbell’).[10]

10.5 In the DPP Reference in the Court of Appeal,[11] Justice Priest referred to ‘the apparent general level of satisfaction with Campbell’,[12] and noted that:

the principle established by Campbell has been applied daily in the criminal jurisdiction of all courts in the [Victorian] hierarchy. As far as I can tell, in the years since it was decided there has been no academic or judicial criticism of its application and operation—the Director’s counsel could find none—let alone any suggestion that it needed to be reconsidered.[13]

10.6 Justice Priest returned to these observations later in his judgment to emphasise:

the test in Campbell has stood the test of time. The law is well-settled. Thus, Campbell has been satisfactorily applied for many years, without attracting any criticism, judicial or academic. That alone provides compelling justification for leaving it undisturbed.[14]

10.7 Justice Kaye endorsed Justice Priest’s observations about the durability of the test. He noted it was ‘settled practice’ to direct juries in accordance with Campbell and added:

at no time, in the 25 years that have followed the decision in Campbell, has there been any criticism of, or dissatisfaction with, the test stated by the Court in that case.[15]

10.8 On the appeal of the DPP Reference to the High Court, Justices Gageler, Gordon and Steward highlighted that Campbell has been consistently followed in Victoria.[16] Justice Edelman also stated, ‘the judicial meaning of recklessness in Campbell has been adopted in the courts of Victoria for 26 years without any obvious inconvenience.’[17]

10.9 During our inquiry many stakeholders similarly emphasised that the common law test for recklessness has been settled for a long time without issue and was unchallenged until the DPP Reference.[18] The CBA told us, ‘Since the probability test has been in operation for several decades, there exists a substantial body of law which assists in the routine application of the test.’[19]

10.10 Longevity alone is not reason enough to avoid reform. But the current definition of recklessness has stood the test of time, which lends weight to keeping it. As some stakeholders noted, the current definition has the benefits of certainty and stability (see Chapter 13).

Embedded in Victoria’s criminal law

10.11 Recklessness as it is currently defined is integral to the way Victoria’s criminal law has developed and how it operates. Previous legislative changes to offences and penalties were made on the basis of the current definition of recklessness (see Chapter 3).

10.12 Recklessness is an element in many Crimes Act offences (see Appendix D) and maximum penalties and mandatory sentencing provisions are calibrated to the probability threshold (see Chapters 4 and 5). The recklessness test also interacts with other pieces of legislation such as the Sentencing Act 1991 (Vic).

10.13 The CBA described the current test as one of the ‘building blocks’ of Victorian criminal law,[20] and legal practitioners urged caution in disrupting a definition that is ‘deeply entrenched’ in the ‘architecture’ of criminal law in Victoria.[21]

The current test is functional

10.14 A strong theme in submissions and consultations was that the current definition of recklessness is working well. We heard that it is simple and easily applied by lawyers, judges, and juries across the criminal courts.

10.15 The LIV told us the test is ‘fit-for-purpose’,[22] and a County Court judge described it as ‘a good, broad definition’.[23] A judge of the Supreme Court told us the practical application of the test is ‘seamless’ and ‘working very well’.[24] In the DPP Reference in the Court of Appeal, Justice Kaye stated the probability test is ‘logical and readily understood.’[25]

Clear and well understood by stakeholders

10.16 Trial by jury is central to our criminal justice system. Jurors come from all walks of life and must determine the facts in a criminal case. Most do not have pre-existing knowledge of the law or experience in evaluating evidence. Legal concepts should be easy for judges to explain and for jurors to understand so the law can be properly applied.

10.17 Victoria Police said that the current definition of recklessness is difficult for juries to understand because it requires proof of a subjective fault element.[26] This point was not made by any other stakeholder during our inquiry.

10.18 Most serious criminal offences have subjective fault elements (see Chapter 2). The LIV told us that the current recklessness test is ‘straightforward, clear and easy for juries to apply’ because it is subjective—a jury only needs ‘to consider the accused’s state of mind at the time of the offence and the accused’s recognition of probable consequences.’[27]

10.19 The JCV explained that jury directions on recklessness for non-fatal offences largely replicate the jury directions for reckless murder. It had not received any feedback suggesting these directions are difficult to understand.[28]

10.20 In the DPP Reference in the Court of Appeal, Justice Priest said one of the reasons the current test should be retained is its simplicity:

longstanding experience has demonstrated that the Campbell test is straightforward and relatively simple for juries to apply. The test is purely subjective … and has no complicating objective components. In the Court’s experience, it is a test easily grasped by juries.[29]

10.21 Dr Byrne told us that evidence suggests jurors are generally reluctant to ask questions.[30] But Dr Byrne said that:

the limited available research on juror comprehension of different forms of recklessness supports the view that the simpler the definition of recklessness, the easier it is likely to be for jurors to understand. The simplest form of recklessness tested is closest to Victoria’s approach of defining recklessness in terms of what is probable.[31]

10.22 A magistrate, judges of the County Court and judges of the Supreme Court told us that the current form of recklessness is easy to understand.[32]

10.23 County Court judges said they do not have any difficulty explaining recklessness to juries.[33] One judge explained:

it is very simple to determine whether a particular issue causes trouble for a jury. For example, we are often asked ‘what does beyond reasonable doubt mean?’ It’s very easy when you’ve sat in a lot of trials to determine when a jury is struggling, you get a stream of questions from the jury.

… [the] probable [test for recklessness] … is not a concept a jury has trouble with.[34]

10.24 The CBA reiterated that the definition has the benefit of simplicity and is readily understood and applied by juries.[35] The CBA said it asked approximately 60 criminal barristers whether they had ever been involved in a case where there was a question from the jury about the meaning of recklessness. None recalled such a question being put to the trial judge.[36] By comparison, the CBA said juries regularly ask about the meaning of ‘beyond reasonable doubt’.[37] Dr Byrne told us ‘research from different jurisdictions [indicates] that jurors commonly struggle to understand the concept of “proof beyond reasonable doubt”’.[38]

10.25 It is also important for victims and the wider community to understand legal concepts so they can meaningfully engage with the legal system. The Victims of Crime Commissioner supported the view that the simpler the definition, the easier it is for people to understand.[39]

10.26 We discuss the complexities of alternative approaches to recklessness in Chapters 6 and 7. Our view is that Victoria’s current approach to recklessness is the simplest form of the test.

Relatively easy to apply

10.27 Youthlaw and VALS did not see a problem with the current definition of recklessness and did not support a change to the threshold. However, both specialist legal services suggest there may be inconsistency in how the test is applied, especially by prosecutors, in the high-volume, fast-paced environment of the Magistrates’ Court.[40]

10.28 Other practitioners told us that the current test for recklessness is applied consistently.[41] The Magistrates’ Court told us the test is well understood, clear, and there are no issues with its application.[42]

10.29 Liberty Victoria said it had not encountered misapplication of the recklessness test. It added that if there was inconsistent application by ‘outlier’ decision makers, this would be a problem with judicial education rather than with the test itself.[43]

10.30 Although we heard there may be some inconsistency in application in the Magistrates’ Court, this was not the experience of most stakeholders we spoke to. If any inconsistency is identified in the future, it can be remedied through education.

10.31 A judge of the County Court told us ‘a combination of a working definition and good judicial resources … has led to good consistency of approach’ in the County Court.[44]

Largely consistent across Crimes Act offences

10.32 The County Court told us that the definition of recklessness for Crimes Act offences is ‘for the most part’ ‘harmonious’.[45] Some other stakeholders, including the OPP, said that the definition is not completely consistent. But, as we discuss in Chapter 5, the definition is largely consistent across Crimes Act offences.

10.33 Having a definition of recklessness that is largely consistent, regardless of the outcome of the conduct, means that the definition can be understood relatively easily and applied fairly across Victoria.

Appeals are rare

10.34 VLA told us there would likely be more appeals about misdirection or miscarriages of justice if the recklessness test were unclear or difficult to understand.[46]

10.35 A judge of the Supreme Court said that recklessness is not an issue ‘clutter[ing] up’ the Court of Appeal.[47] Indeed, appeals alleging error in the trial judge’s charge on recklessness are ‘extremely rare’.[48] This is consistent with jury directions on the current test being ‘simple, logical and straightforward’.[49]


10.36 The current test for recklessness in Victoria is functioning well. Many stakeholders support keeping the current test because it is relatively simple to understand and apply, which minimises error. It has the benefit of being well-established and largely consistent across Crimes Act offences.

  1. Submission 6 (Criminal Bar Association).

  2. Submission 14 (Law Institute of Victoria).

  3. Submission 17 (Victoria Legal Aid).

  4. Victorian Aboriginal Legal Service, Criminal Law (Web Page, 14 June 2023) <>. Consultation 1 (Victorian Aboriginal Legal Service).

  5. Submission 16 (Youthlaw).

  6. Submission 9 (Liberty Victoria).

  7. Submission 12 (Dermot Dann KC and Felix Ralph).

  8. Submissions 13 (Supreme Court of Victoria), 15 (County Court of Victoria). Consultations 5 (Judicial College of Victoria), 8 (Supreme Court of Victoria), 11 (County Court of Victoria), 12 (Magistrates’ Court of Victoria).

  9. Orbit Drilling Pty Ltd v The Queen; Smith v The Queen [2012] VSCA 82, [21] (Maxwell P, Bongiorno JA and Kyrou AJA).

  10. R v Campbell [1995] VSC 186; [1997] 2 VR 585.

  11. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181; (2020) 284 A Crim R 19.

  12. Ibid.

  13. Ibid [53] (Priest JA).

  14. Ibid [122] (Priest JA).

  15. Ibid [143]-[144] (Kaye JA).

  16. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [42]; (2021) 274 CLR 177, 194 [42] (Gageler, Gordon, Steward JJ) citing, eg, R v Ruano [1999] VSCA 54 at [8]; R v Le Broc (2000) 2 VR 43 at 60 [56]; R v Kucma (2005) 11 VR 472 at 474 [4], 482 [29]; R v Wilson [2005] VSCA 78 at [17]; R v Pota [2007] VSCA 198 at [26]; R v Abdul-Rasool (2008) 18 VR 586 at 603-604 [67]–[69]; Ignatova v The Queen [2010] VSCA 263 at [36]–[37]; Paton v The Queen [2011] VSCA 72 at [46]–[49], [68]; James v The Queen (2013) 39 VR 149 at 179 [148]; Ejupi v The Queen [2014] VSCA 2 at [34]; Phillips v The Queen [2017] VSCA 313 at [43].

  17. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [66] (Edelman J).

  18. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 13 (Supreme Court of Victoria), 14 (Law Institute of Victoria), 17 (Victoria Legal Aid).

  19. Submission 6 (Criminal Bar Association).

  20. Consultation 4 (Criminal Bar Association).

  21. Submission 12 (Dermot Dann KC and Felix Ralph).

  22. Submission 14 (Law Institute of Victoria).

  23. Consultation 11 (County Court of Victoria).

  24. Consultation 8 (Supreme Court of Victoria).

  25. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [146] (Kaye JA).

  26. Submission 7 (Victoria Police).

  27. Consultation 3 (Law Institute of Victoria).

  28. Consultation 5 (Judicial College of Victoria).

  29. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181 [124] (Priest JA).

  30. Consultation 9 (Dr Greg Byrne PSM). See also Greg Byrne, ‘A Pathway to Fair(er) Trials: Why We Need a Juries Advisory Council’ (2021) 31(2) Journal of Judicial Administration 49, 51 n 18, 19, citing Penny Darbyshire, Andy Maughan and Angus Stewart, What Can the English Legal System Learn from Jury Research Published up to 2001? (Kingston Law School, 2001) 48; Phoebe C Ellsworth and Alan Reifman, ‘Juror Comprehension and Public Policy: Perceived Problems and Proposed Solutions’ (2000) 6 Psychology, Public Policy and Law 788, 804; Jacqueline Horan, Juries in the 21st Century (Federation Press, 2012) 84–85; Mark Findlay, ‘Juror Comprehension and Complexity’ (2001) 41 British Journal of Criminology 56, 71.

  31. Submission 18 (Dr Greg Byrne PSM). Dr Byrne added that ‘while Victoria’s existing test of reasonableness may be easier to understand, we do not have research concerning how best to guide jurors in understanding this term’ and proposed that a Juries Advisory Council be established to ‘provide expert interdisciplinary analysis of juror comprehension issues’.

  32. Consultations 8 (Supreme Court of Victoria), 11 (County Court of Victoria), 12 (Magistrates’ Court of Victoria). Victoria Police also said that without ‘qualitative data provided by juries in response to questions about their understanding … we cannot determine how well the probability test is understood.’: Consultation 10 (Victoria Police).

  33. Consultation 11 (County Court of Victoria).

  34. Ibid.

  35. Submission 6 (Criminal Bar Association).

  36. Consultation 4 (Criminal Bar Association).

  37. Ibid. See also Consultations 5 (Judicial College of Victoria), 11 (County Court of Victoria).

  38. Submission 18 (Dr Greg Byrne PSM), citing Criminal Law Review, Department of Justice, Jury Directions: A New Approach (Report, 2013) 89-91; Katrin Mueller-Johnson, Mandeep K Dhami and Samantha Lundrigan, ‘Effects of Judicial Instructions and Juror Characteristics on Interpretations of Beyond Reasonable Doubt’ (2018) 24 Psychology, Crime and Law 117, 118. See also Lily Trimboli, ‘Juror Understanding of Judicial Instructions in Criminal Trials’, Crime and Justice Bulletin: Contemporary Issues in Criminal Justice, Number 119 (NSW Bureau of Crime Statistics and Research, 2008).

  39. Submission 19 (Victims of Crime Commissioner).

  40. Submission 16 (Youthlaw). Consultation 1 (Victorian Aboriginal Legal Service).

  41. Consultations 3 (Law Institute of Victoria), 6 (Victoria Legal Aid).

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

  43. Consultation 2 (Liberty Victoria). If any problems with inconsistent application were identified, they could be addressed in ways other than changing or legislating the definition, such as improving judicial education resources: Consultation 12 (Magistrates’ Court of Victoria).

  44. Consultation 11 (County Court of Victoria).

  45. Submission 15 (County Court of Victoria).

  46. Consultation 6 (Victoria Legal Aid).

  47. Consultation 8 (Supreme Court of Victoria).

  48. Submission 13 (Supreme Court of Victoria). Consultation 8 (Supreme Court of Victoria). Shortly after Campbell, in R v Totivan (Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway JA and Smith AJA, 15 August 1996) the prosecution conceded that the trial judge’s direction to the jury that recklessly in s 18 of the Crimes Act meant ‘being aware that it may happen’ (emphasis in original) was a misdirection, because injury must be foreseen as a probable consequence. In R v Kalajdic; R v Italiano [2005] VSCA 160, [31]; (2005) 157 A Crim R 300, 307 [31] the jury were told, in the context of charges of obtaining property by deception, that it was sufficient to constitute recklessness as to the truth of the statement if the accused appreciated the possibility that the statement might be false. The misdirection did not cause any injustice because recklessness was not an issue on the evidence before the jury. In Paton v The Queen [2011] VSCA 72, [46]-[49] the Court of Appeal held the trial judge’s misdescription of the foresight necessary for the offence of recklessly causing injury by using the word ‘might’ was a ‘fundamental irregularity’ and, as per Campbell, a material error.

  49. Submission 13 (Supreme Court of Victoria); Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [144] (Kaye JA).