Recklessness is an element of many offences in Victorian criminal law, however it is inconsistently defined in statutes across the State and usually derives its meaning from the common law.

Whilst in common usage, recklessness is synonymous with carelessness, at law an accused is said to be reckless “where he or she engages in conduct (either an act or omission) in the knowledge that a consequence is a probable or possible result of his or her conduct”.[1]

In undertaking the review, the VLRC will examine: the reasons for the current standard of recklessness expressed in reforms to Pt I, Div 1(8A)–(8F) of the Crimes Act 1958 (Vic); the meaning of recklessness for offences in other Australian and relevant common law jurisdictions, particularly other offences against the person; the operation of any legislated statutory minimum terms of imprisonment; and the potential impacts of any recommended changes on all parts of the criminal justice system.[2] 

Recklessness at common law

An accused is said to be reckless where he or she acts in the knowledge that a consequence is a probable or possible result of his or her conduct: Pemble v The Queen (1971) 124 CLR 107.

In R v Crabbe (1985) 156 CLR 464 it was held that foresight of the probability of death or grievous bodily harm (the probability test) was the applicable standard of recklessness to be applied in cases of common law murder.

Further, it has been noted by the Commonwealth Attorney-General that the common law:

oscillates between the requirement that the anticipated result must have been “likely” or “probable” and the lesser requirement that it be merely “possible”.[3]

Recklessness in the Crimes Act 1958 (Vic)

Foresight of the possibility of harm (the possibility test) was the correct standard of recklessness to apply to statutory offences other than murder in England and generally in Australia in 1985: Director of Public Prosecutions Reference No 1 of 2019 (2021) 95 ALJR 413; [2021] HCA 26 at [2].

In R v Nuri [1990] VR 641 the Victorian Court of Criminal Appeal applied the probability test to the offence of recklessly engaging in conduct endangering life (s 22 of the Crimes Act 1958 (Vic)). This was followed in R v Abdul-Rasool (2008) 18 VR 586; [2008] VSCA 13. The probability test was further applied in relation to s 23 (conduct endangering persons) in Filmer v Barclay [1994] 2 VR 269.

In 1995, the Victorian Court of Appeal in R v Campbell  [1997] 2 VR 585 decided that, in the absence of a statutory definition of “recklessly” in s 17 of the Crimes Act 1958 (Vic)[4] (recklessly causing serious injury), the standard of recklessness was one requiring foresight of the probability of harm. In doing so, the Court of Appeal reasoned that the principles in R v Crabbe applied to s 17. Further, the Court held that the probability test was the appropriate standard for the “group of sections” (ie offences against the person in Pt 1, Div 1(4) where recklessness is included as an element) including ss 17 and 22: at 593.

The High Court, in Director of Public Prosecutions No 1 of 2019 (2021) 95 ALJR 413; [2021] HCA 26, determined that the standard of recklessness required to establish the indictable offence of recklessly causing serious injury under s 17 was one of probability, not possibility. The Court invoked the “re-enactment presumption”: “where Parliament repeats words which have been judicially construed, it can be taken to have intended the words to bear the meaning already judicially attributed to them”: Director of Public Prosecutions No 1 of 2019 at [51]. Further, the Court held that given the passage of amendments in 1997 and 2013 to s 17 of the Crimes Act 1958 (Vic), it could only be understood that Parliament was aware of, and accepted the probability test as set out in R v Campbell.

Recklessness in other Australian jurisdictions

In New South Wales[5] and South Australia[6] the Courts have repeatedly applied the possibility test for offences other than murder. For example, in Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18, the offence concerned was s 35 (reckless grievous bodily harm or sounding) of the Crimes Act 1900 (NSW). The High Court held that the possibility test applied and noted that “the requirements in States other than New South Wales may vary according to the terms of each State's legislation”: at [47].

For Federal offences, recklessness[7] is defined in terms of a “substantial” risk rather than in terms of probability or possibility because they invite speculation about mathematical chances.[8] In Tasmania, s 157 (culpable homicide) of the Criminal Code refers to “likely” to cause death which has been held to be synonymous with “probable”: Boughey v The Queen (1986) 161 CLR 10.

Statutory minimum terms of imprisonment

The maximum penalty range for relevant offences involving recklessness in the Crimes Act 1958 (Vic) is between level 6 imprisonment (5 years maximum) (s 18) and level 4 imprisonment (15 years maximum) (s 17).

For serious (category 1 and category 2) offences such as s 15B (causing serious injury recklessly in circumstances of gross violence), a sentence of imprisonment is mandatory where the offender was over 18 at the time of the offence unless a statutory exception is engaged.[9]

There is only one relevant minimum imprisonment sentence (causing injury intentionally or recklessly to an on-duty emergency or custodial worker) however, there are numerous minimum non-parole periods applicable to recklessness offences.  If the standard of recklessness is lowered to the possibility standard in the Crimes Act 1958, the VLRC will need to consider both whether the maximum penalties and mandatory imprisonment requirements applying to those offences should also change.

Conclusion

The VLRC will examine and report on whether to include a definition of recklessness in the Crimes Act 1958 (Vic) and if so, whether the “probability” or “possibility” standard should apply. It should be noted that if the probability test is retained in Victoria it would set the “threshold of criminal responsibility higher than it is in England and Canada”[10] and higher than in Australian jurisdictions such as New South Wales.The report is due by 29 February 2024.