Recklessness: Report

Executive summary

1 This report reviews the use of ‘recklessness’ in Victorian criminal law. It considers if the current ‘recklessness’ test should change, and whether to legislate a definition in the Crimes Act 1958 (Vic). The focus is on offences against the person, although ‘recklessness’ is used in many contexts.

2 Our conclusion is that the recklessness test should not change and does not need to be legislated.

Our approach

3 We assessed the overall case for reform, including:

• how the law operates

• whether there are problems in practice

• alternative definitions.

4 We were informed by case studies, court decisions, data, and the experience of stakeholders, including legal practitioners, Victoria Police, judges and magistrates,

and victims.

The ‘probable’ test for recklessness in Victoria

5 Recklessness as a legal concept is about recognising but ignoring risk. Its meaning for Victoria’s offences against the person has developed through the common law. A person is reckless if they foresee a harmful consequence will probably result from their actions but they continue regardless. This test has been used for nearly three decades. Offences and penalties have been calibrated to it.

6 In 2019, the Victorian Director of Public Prosecutions (DPP) asked the Victorian Court of Appeal, and then in 2020 the High Court of Australia, to determine the correct interpretation of recklessness. The DPP argued that Victoria’s definition is incorrect and that a possibility threshold should apply for offences other than murder. The Court of Appeal and the High Court decided that the current definition should stand unless altered by legislation.

Alternative definitions of recklessness

7 Different jurisdictions use different definitions of recklessness. Each operates as part of the jurisdiction’s own criminal law framework.

8 Several contributors proposed alternative definitions for recklessness in Victoria. The Office of Public Prosecutions (OPP) and Victoria Police recommended using a ‘possibility’ threshold, similar to the definition in New South Wales. Unlike the Victorian test, most of the proposed tests have an additional objective component, such as reasonableness.

Are there problems with the current recklessness test?

9 Victoria Police and the OPP told us that the current test is too close to intention, is difficult to prove, and is based on legal error.

10 However, Victoria has a hierarchy of offences against the person, providing alternative charges and significant penalties. There is no obvious gap in the hierarchy, or undesirable outcomes resulting from the current recklessness test.

11 Issues such as charging practices and the definition of ‘serious injury’ may be contributing to perceived problems with the test.

12 The current test is well established in Victoria. It is relatively clear and easy to understand and apply. Appeals relating to recklessness are rare.

13 We heard that the test works well. We found significant support for keeping the current test, including from the Children’s Court, the Law Institute of Victoria, the Criminal Bar Association, Liberty Victoria, Youthlaw, the Victorian Aboriginal Legal Service and Victoria Legal Aid.

Risk of changing the test

14 On its own, a ‘possibility’ test is too broad. An objective ‘reasonableness’ component would limit the test but would add complexity.

15 Objective assessments are criticised because they shift the focus away from the accused person’s state of mind, which is what criminal responsibility for serious crimes is usually based on.

16 A new definition of recklessness for offences against the person would lead to inconsistency with other offences with a recklessness element, increasing complexity and risk of error.

17 A new test would result in the loss of substantial, settled jurisprudence. There would be less consistency and certainty in sentencing until a new body of law was established.

18 A lower threshold could lead to more people being charged with serious offences. This would have a disproportionate impact on First Peoples and young people.

19 Penalties would need to be reviewed if the test for recklessness was lowered.

20 Although difficult to measure, there would be flow-on effects throughout the justice system, which might include more demand on courts and more people in custody.

The recklessness test should not change or be legislated

21 We did not find a compelling case for reform. The current common law definition of recklessness should be kept for offences against the person.

22 Some stakeholders said that a legislated definition of recklessness might provide some additional certainty. But the current test is already clear, accessible, and consistent, so legislation is not needed.

23 Keeping the current test for recklessness ensures fairness; clarity and simplicity; stability and certainty; and consistency in the law for offences against the person. These principles should guide policy makers when reviewing how the concept of recklessness is used for other categories of Crimes Act offences.