Recklessness: Report


Our review of the test for recklessness as it applies to offences against the person had some unusual features. Unlike some VLRC inquiries involving broad and complex social issues, this inquiry concerned a specific and technical question: whether the definition of recklessness as it relates to Victoria’s Crimes Act 1958 (Vic) should change. Our report is unusual because it does not recommend any change to the law. That is uncharacteristic for the Commission as we frequently propose substantive law reform and legislative change. But ultimately, our role is to recommend reform only where it can be justified, because it will result in positive change or address a significant problem. In this case, we are not persuaded that such a problem exists.

Also unusually for a VLRC project, the subject matter was recently considered by both the Victorian Court of Appeal and the High Court of Australia. Although narrowly deciding that the current law concerning recklessness should continue to apply in Victoria, members of the High Court criticised the correctness of Victoria’s current test. Such criticism was echoed by Victoria’s prosecutorial agencies. But the Commission must consider a range of factors in making its recommendations. In this inquiry, we had to balance the views of the High Court with policy considerations, taking into account submissions by other stakeholders that the current test operates well and has done so for more than 25 years. Moreover, the test is just one piece in a complex system, and piecemeal reform to a single element could have far-reaching consequences. We have concluded that to disturb a functioning system to achieve unclear results would not be a wise course of action.

Often incidents involving recklessness occur in a split second, and apparently without much thought. Yet the courts must apply a recklessness test which involves deciding what an accused person intended or foresaw in that split second. We were intrigued to understand how juries or decision makers assess what the accused was thinking and whether the accused turned their mind to the risk of injury. Based on our research and consultations with those who have practical experience, we have formed the opinion that juries understand the test and are performing their task well. Judges are directing juries appropriately, offenders are being convicted, and there are few appeals related to the recklessness test. Whatever challenges exist in the prosecution of offences against the person, we do not believe they are caused by the definition of recklessness.

Reckless behaviour can have catastrophic results for victims, especially where serious injury is caused. We are grateful to those victims who shared their experiences and perspectives, helping us better understand the impact of offending. We were assisted by views and expertise from across the legal sector, which provided insights into the operation of the law concerning recklessness in Victoria. I am grateful for the valuable input from the courts and judicial officers, the Office of Public Prosecutions (including analysis of over 300 case files), Victoria Police, and the expertise and views from all legal practitioners and other people contributing to this inquiry (see Appendices A and B). We appreciate the time and effort involved in each submission and consultation, and the willingness of stakeholders to canvass views from across an organisation or body.

I wish to thank the research team of Dr Emma Larking, Liz Margaronis, Marcus Hickleton and team leader Kathryn Terry for their diligent work. I also thank my fellow Commissioners, Liana Buchanan, the Hon. Jennifer Coate AO, Kathleen Foley SC, Bruce Gardner PSM, Professor Bernadette McSherry, Dan Nicholson, Gemma Varley PSM and Dr Vivian Waller for their constructive input and feedback. I am grateful for the extensive experience they brought to the review, and for their dedicated and collegiate approach.

I also acknowledge Merrin Mason PSM, the CEO of the Commission, for her wise counsel and administration of the project, the excellent communications and editorial assistance from Nick Gadd and Natalie Young, and support from our administrative team, including Jennifer Joyner, Monika George and other Commission staff.

The Hon. Anthony North KC


Victorian Law Reform Commission