Recommendation - Victorian Law Reform Commission

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Home » Publications » Recklessness: Report » Recommendation

Contents

Preface
Terms of reference
- The meaning of ‘recklessness’ in Victorian criminal law
Glossary
Executive summary
- Our approach
- The ‘probable’ test for recklessness in Victoria
- Alternative definitions of recklessness
- Are there problems with the current recklessness test?
- Risk of changing the test
- The recklessness test should not change or be legislated
Recommendation
1. Introduction
- A note on content
- A note on language
- Our terms of reference
- The Commission’s purpose
- Our approach
2. Recklessness and criminal responsibility
- Overview
- Criminal responsibility in Victoria
- The hierarchy of offences
3. The history of recklessness in Victoria
- Overview
- Pre-1985: malice offences and Cunningham
- Post-1985: offences against the person
- The Director of Public Prosecutions reference
- Victoria’s distinctive approach
4. Victorian offences against the person that include recklessness
- Overview
- Offences against the person that include recklessness
- Penalties
- Offence prevalence
- Sentencing outcomes
5. Other recklessness offences in Victoria
- Overview
- Recklessness across the Crimes Act
- Recklessness outside the Crimes Act
6. Recklessness in other jurisdictions
- Overview
- England and Wales
- New South Wales
- The Commonwealth of Australia
- South Australia
- New Zealand
- Canada
- The United States
- Conclusion
7. Proposed alternative definitions of recklessness
- Overview
- The Office of Public Prosecutions
- Victoria Police
- Dr Steven Tudor
- Other submissions
- The proposed definitions do not improve on the current test
- The proposed definitions will not achieve consistency with other jurisdictions
- Conclusion
8. Are there problems with Victoria’s recklessness test?
- Overview
- Police and prosecution perspectives
- Is the recklessness test based on a legal error?
- Is the recklessness threshold too high?
- Is the recklessness test causing victim dissatisfaction?
- Are there practical difficulties proving recklessness?
- Is recklessness a problem for family violence-related prosecutions?
- Other challenges to prosecution
- Conclusion
9. Analysis of examples
- Overview
- The Office of Public Prosecutions’ examples
- Victoria Police’s examples
- Conclusion
10. The benefits of Victoria’s recklessness test
- Overview
- Overwhelming support for the current test
- The current test is well established
- The current test is functional
- Conclusion
11. The consequences of changing the recklessness test
- Overview
- Little support for changing the test
- A ‘possibility’ test alone would be too broad
- Risks of adding an objective limb
- Risks of changing the recklessness test
- Conclusion: the recklessness test should not change
12. Should a definition of recklessness be legislated?
- Overview
- The state of the law
- The risks of a statutory definition
- Conclusion: a legislated definition is unnecessary
13. Principles for reviewing how recklessness is used for other offences
- Overview
- Role of the guiding principles
- Fairness
- Clarity and simplicity
- Stability and certainty
- Consistency
- Conclusion
Appendix A: Submissions
Appendix B: Consultations
Appendix C: Other categories of assaults outside of the Crimes Act 1958 (Vic)
Appendix D: Provisions of the Crimes Act 1958 (Vic) that include the concept of ‘recklessness’
Appendix E: Provisions in Victorian legislation other than the Crimes Act 1958 (Vic) that include the concept of recklessness
Appendix F: Charging and sentencing data
- Charge numbers for offences against the person
- Explanatory notes
Bibliography
- Case law
- Legislation

Recommendation

1.The current common law definition of recklessness should be retained for offences against the person.

Executive summary

1. Introduction

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The Hon. Anthony North KC

Chairman

The Chairperson of the VLRC is the Hon Tony North KC. Mr North is a former judge of the Federal Court and the Supreme Court of the Australian Capital Territory. Admitted to the Victorian Bar in 1976, he was appointed Queen’s Counsel in 1989. In 1995, Mr North was made judge of the Federal Court of Australia, where he served until his retirement in 2018. He also served, from 2004, as additional judge of the Supreme Court of the ACT. During his time as judge, Mr North presided over cases involving constitutional and commercial law, industrial and employment law, taxation, intellectual property and native title. He holds a Bachelor of Arts and Bachelor of Laws with Honours from the University of Melbourne and a Master of Laws from the University of London. In January 2024 Mr North was appointed a Commissioner of the Yoorrook Justice Commission and took leave from the VLRC to fulfil that role until March 2025.

Past Commissioner Example

Bio goes here

Dr Vivian Waller

Director and Principal Solicitor, Waller Legal

Dr Vivian Waller was admitted to legal practice in 1995. She is the Director and Managing Partner of law firm Waller Legal. She has 25 years experience representing survivors of institutional child sexual abuse including litigation in the Supreme Court of Victoria and the High Court of Australia. Dr Waller was instrumental in the Royal Commission into the Institutional Responses to Child Sexual Abuse where she represented 20 survivor witnesses in case studies inquiring into the Melbourne Response, Victorian State Wards, Yeshiva Bondi and Melbourne, Catholic Church Authorities in Ballarat and the Criminal Justice System. She has written submissions for the Royal Commission and appeared before the Senate Committee in relation to the establishment of the National Redress Scheme. Dr Waller represented, on a pro bono basis, the complainant in the criminal prosecution and appeals process in relation to allegations against Cardinal George Pell. She holds a Doctorate in Law from the University of Melbourne, and a Bachelor of Laws and Bachelor of Arts (Honours) from Monash University. Dr Waller was appointed to the Victorian Law Reform Commission in November 2020.

Dan Nicholson

Executive Director, Criminal Law, Victoria Legal Aid

Dan Nicholson is the Deputy Victorian Ombudsman. Before that he was the Executive Director, Criminal Law at Victoria Legal Aid, responsible for the delivery of legally aided criminal law services across the state. Dan worked with VLA since 2012 in a range of roles, including as the Executive Director, Civil Justice, Access and Equity. Dan previously managed the Human Rights Unit at the Victorian Department of Justice, was Associate to Justice Maxwell, President of the Court of Appeal and worked at Fitzroy Legal Service. He has worked on a range of human rights issues in Cambodia and Timor-Leste. Dan was appointed to the Victorian Law Reform Commission in September 2018, and as a Director of the Sentencing Advisory Council in 2021.

Professor Bernadette McSherry

Commissioner

Emeritus Professor Bernadette McSherry holds an honorary position in the Melbourne Law School, having served as the Foundation Director of the Melbourne Social Equity Institute at the University of Melbourne from 2013 to mid-2021. She is an internationally recognised legal academic in the fields of criminal law and mental health law and is a Fellow of the Academy of Social Sciences in Australia as well as a Fellow of the Australian Academy of Law. She served as a Legal Member of the Victorian Mental Health Tribunal for 18 years until mid-2018 and is currently a Commissioner serving on the Royal Commission into Victoria’s Mental Health System. She was appointed to the Victorian Law Reform Commission in June 2018.

Kathleen Foley SC

Commissioner

Kathleen Foley SC is a barrister with a broad practice spanning public law, commercial law and common law. She also has a significant public interest litigation practice, representing clients in environmental, police tort and human rights cases. In addition to her work as a barrister, Kathleen is a writer and gender equality advocate.

She was appointed to the Victorian Law Reform Commission in November 2020. Prior to commencing at the Victorian Bar, Kathleen worked as an attorney in New York and as a solicitor in the government sector in Western Australia.

The Hon Jennifer Coate AO

Commissioner

The Hon Jennifer Coate has held a number of judicial appointments including Magistrate, Deputy Chief Magistrate, the inaugural President of the Children’s Court of Victoria, Judge of the County Court of Victoria, the first female State Coroner of Victoria, and Judge of the Family Court of Australia. She served for five years on the Royal Commission into Institutional Responses to Child Sexual Abuse, and in 2020 conducted an Inquiry into Hotel Quarantine in Victoria. In January 2019, she was made an Officer of the Order of Australia. She was admitted as a Fellow of the Australian Academy of Law in May 2022, and was awarded Doctor of Laws (honoris causa) by Monash University in September 2023. Ms Coate is the Chair of the Victorian Victims of Crime Consultative Committee. She was appointed to the Victorian Law Reform Commission in June 2020 and reappointed for four years in July 2022. She served as Acting Chair of the VLRC from January 2024 to March 2025.

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