Recklessness: Terms of reference

Referral to the Victorian Law Reform Commission pursuant to section 5(1)(a) of the Victorian Law Reform Commission Act 2000

The meaning of ‘recklessness’ in Victorian criminal law

Recklessness is an element in many Victorian offences and relevant to the application of the criminal law in other ways. However, it is not consistently defined in Victorian legislation and in most instances takes its meaning from the common law.

Since the decision of the Victorian Court of Appeal in R v Campbell, [1] an accused is reckless if they know that a particular harmful consequence will probably result from their action but they proceed regardless.

This definition applies to murder, and to those ‘offences against the person’ in Part I, Division 1(4) of the Crimes Act 1958 (Vic) (‘Crimes Act’) that include recklessness as an element (‘the Victorian Offences’)[2].

In some Australian jurisdictions, for most offences against the person involving recklessness other than murder, the accused need only foresee the possibility that harm might occur for recklessness to be established.

The Victorian Law Reform Commission (VLRC) is asked to review and report on how the concept of ‘recklessness’ is understood in the Crimes Act. In particular, the VLRC should:

• consider whether the Crimes Act should be amended to include a definition of recklessness applicable to the Victorian offences and, if so, what definition should apply; and
• 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. [3]

If the VLRC recommends changing the meaning of recklessness for any of the Victorian offences, the VLRC should consider whether the maximum penalties applying to those offences should also change.

In conducting this review, the VLRC should have regard to:

• the meaning of recklessness for offences in other Australian and relevant common law jurisdictions, particularly other offences against the person;
• the approach and reasons for using “probably” to express the fault element of recklessness in reforms to Part I, Division 1(8A)-(8F) of the Crimes Act;
• the operation of any legislated statutory minimum terms of imprisonment;
• the potential impacts of any recommended changes on all parts of the criminal justice system (for example, impacts due to changes in prosecution, conviction or incarceration rates).

The Commission is asked to deliver its report to the Attorney-General by 29 February 2024.

[1] [1997] 2 VR 585.

[2] Sections 15A, 15B, 17, 18, 19, 20, 21, 22, 23, 25, 26, 31 & 31C (‘the Victorian offences’).

[3] Offences in the Crimes Act that have recently been subject to review by the VLRC, such as stalking and sexual offences, are excluded from the scope of this referral.

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