Executive summary
1This 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.
2Our conclusion is that the recklessness test should not change and does not need to be legislated.
Our approach
3We assessed the overall case for reform, including:
•how the law operates
•whether there are problems in practice
•alternative definitions.
4We 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
5Recklessness 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.
6In 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
7Different jurisdictions use different definitions of recklessness. Each operates as part of the jurisdiction’s own criminal law framework.
8Several 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?
9Victoria 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.
10However, 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.
11Issues such as charging practices and the definition of ‘serious injury’ may be contributing to perceived problems with the test.
12The current test is well established in Victoria. It is relatively clear and easy to understand and apply. Appeals relating to recklessness are rare.
13We 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
14On its own, a ‘possibility’ test is too broad. An objective ‘reasonableness’ component would limit the test but would add complexity.
15Objective 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.
16A 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.
17A 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.
18A lower threshold could lead to more people being charged with serious offences. This would have a disproportionate impact on First Peoples and young people.
19Penalties would need to be reviewed if the test for recklessness was lowered.
20Although 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
21We did not find a compelling case for reform. The current common law definition of recklessness should be kept for offences against the person.
22Some 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.
23Keeping 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.