Director of Public Prosecutions Reference No 1 of 2019

[2021] HCATrans 86

[2021] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M131 of 2020

In the matter of ‑

DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2019

Appellant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 MAY 2021, AT 9.46 AM

Copyright in the High Court of Australia

MR B.F. KISSANE, QC:   May it please the Court, I appear with my learned friend, MR J.C.J. McWILLIAMS, for the appellant.  (instructed by Office of Public Prosecutions (Vic))

MR D.A. DANN, QC:   If the Court pleases, I appear with my learned friend, MR C.T. CARR, SC, on behalf of the acquitted person.  (instructed by C. Marshall & Associates)

KIEFEL CJ:   Yes, Mr Kissane.

MR KISSANE:   Thank you, your Honour.  This appeal, this Director’s reference, arises out of this Court’s decision in Aubrey and it is for that reason that we are here today.  In Victoria, the meaning of the word “reckless” in injury offences has been interpreted, and it is conceded for some time, has been interpreted as foresight of the probability of the relevant outcome.

That interpretation came about because of this Court’s decision in R v Crabbe in 1985, which interestingly enough was the same year that, in Victoria, the use of the old term “malicious” was changed to the more modern version “reckless”.  Admittedly, “malicious” had a much wider meaning but there was a part of maliciousness that included recklessness and in 1985 Victoria modernised the use of language, is the way we say it occurred.  That led to the change from, for example, maliciously causing grievous bodily harm to recklessly causing serious injury.

It was at that time that this Court made its decision in Crabbe in relation to reckless murder and it was that decision which, in effect, took root in Victoria as the meaning of “recklessness”.  The Victorian decisions start with the case of Nuri in 1990 and the Court will see that what happens in Nuri is that it really just says that presumably conduct is reckless if there is a foresight of probable consequences. 

There was no one else.  It may be that there had been some development of that as the way it was meant to be interpreted but at that stage there was no one else.  It seems it was just assumed that foresight of probable consequences and a display of indifference would be the test.  The court in Campbell in 1997, which is the next decision that dealt with ‑ ‑ ‑

GORDON J:   I think it was 1995 actually but reported in 1997.

MR KISSANE:   Thank you, your Honour.  Yes, five years later in any event the court in Campbell decided that the definition of “reckless” would be “foresight of probable consequences” and cited the decision of Crabbe.  That was the only case cited for that.  The court in Campbell did consider the previous line of authority in Victoria, which was consistent with the outcome that this Court found in Aubrey, that is, foresight of the possibility.  But the court in Campbell rejected that approach.  They dealt with the old cases of Smyth, Kane and Lovett. 

The court dealt in passing really with the second reading speech but decided that the test in Victoria would be the test that was set out in Crabbe and so declined to follow the previous authority.  So, in that way, the law relating to recklessness in Victoria became fixed, if you like, as one of foresight of probability rather than foresight of possibility.

The analysis in the cases of Nuri and Campbell, and whilst there was some analysis in Campbell, those cases did not undergo the sort of analysis, for example, that is found in Aubrey or the sort of analysis that is found in Coleman which was a New South Wales case that dealt with this issue, nor did it do the sort of analysis that occurred much later in 2011 in New South Wales in the case of Blackwell where New South Wales finally dealt with the position of reckless foresight in relation to cases other than murder.

So what we submit is that this Court should follow Aubrey, that it should find that the Victorian cases of Nuri and Campbell took a wrong turn and that they have led to an error in the level of intent that is required in relation to recklessness in relation to offences other than murder.  Of course, it is accepted in relation to murder that reckless murder requires the foresight of probability, and, as Crabbe pointed out, the reason for that is near moral equivalent between intentionally causing – intention to kill or intention to cause grievous bodily harm and the near moral equivalent of that, and the reckless arm of murder, so that ‑ ‑ ‑ 

EDELMAN J:   You have a slight adjustment to the Aubrey test, do you not, which is that you treat the references to social utility and the like as part of a maybe slightly broader reasonableness inquiry?

MR KISSANE:   No, your Honour.  What we are seeking really is to adopt the same test as in Aubrey.  Aubrey dealt with the social utility aspect of it and found that social utility may have a role to play in certain fairly confined circumstances.  No, we do not contend that social utility has any role to play other than that set out in Aubrey.  If your Honour recalls in Aubrey where the Court dealt with social utility, the Court effectively said that, firstly, there is no need for particular directions - this is at paragraph 50 of Aubrey. 

EDELMAN J:   Well, it starts at paragraph 49.

MR KISSANE:   It does start at 49, yes.

EDELMAN J:   The second sentence of 49 is:

Of course, the reasonableness of an act and the degree of foresight of harm required to constitute recklessness in so acting are logically connected. 

But you say reasonableness is not relevant.

MR KISSANE:   We say that it is logically connected but that the reasonableness – the test that is propounded in Aubrey leaves scope for the reasonableness of the conduct to be considered, but what Aubrey says is that that would be a case – it is not the usual case, if I can put it that way.  If we are talking about a usual case where someone punches somebody then the social utility of the action would be nil, in effect, but there may, of course, be cases and the usual case that is talked about in relation to social utility is driving a motor vehicle, for example, where there is a social utility in doing that. 

EDELMAN J:   What about an example that the Law Commission gives of a professional juggler who juggles firesticks, has done so for 20 years without ever making an error, knows that – has foresight of the possibility, the very small possibility, that if he drops it someone could be seriously injured, but nevertheless proceeds and has an accident.  Is that reckless?

MR KISSANE:   No, that is the sort of case where social utility would play a part.

EDELMAN J:   So, what does “social utility” mean then, if it does not mean “reasonableness”?

MR KISSANE:   I do not say it does not mean “reasonableness”, your Honour, we accept that it means reasonableness.  I am not sure where – we accept that reasonableness has a part to play, but it is a part that only comes into play in those unusual sort of cases, which is the way the decision in Aubrey discussed it.  It then goes on to say that in the ordinary directions to the jury, there would be no need for a direction about reasonableness.

Of course, if one is dealing with an offence in that situation of a juggler going about his lawful activity, then part of the test of whether the act of the person recklessly caused serious injury was whether there was a lawful excuse.  So, it would come in there, in any event, if he was going about his lawful business and was juggling in the ordinary course of his work, then if somebody is injured as a result of that, then it might not be self‑defence but he presumably has a lawful excuse for doing what he was doing.

It comes into play in that way, in any event, but we accept that what we are really agitating for in this Director’s reference is that the test in Aubrey, which did allow for social utility reasonableness to play some part – we are arguing that that is the test that should apply in Victoria.

KEANE J:   I suppose it could also be said that, in a situation where someone is bringing years of skill and expertise and training to the performance of a task, it cannot sensibly be said – or a jury might find it very easy to conclude that there was not a courting of the risk, the risk is identified but it is not being courted because it is attended by the exercise of experience and skill.

MR KISSANE:   Yes, and so therefore it would be easy for the jury to conclude that in using the possibility test that ‑ ‑ ‑

KEANE J:   Juries, being people of commonsense, probably do not need to be told a lot about that.

MR KISSANE:   Indeed, that is what the case in Aubrey ultimately decided, that it would be rare – there may be situations where juries do need to be told about social utility but in the main, they will not need to be told about it because they bring their commonsense to the task.

So we accept that social utility or reasonableness does have a part to play, but we say that it is a particularly minimal part.  It was an area that the Court of Appeal, the court below, spent considerable time dealing with and, in our submission, elevated it out of the proportion that it ought to have in cases of reckless injury relating to a person.  The court below thought that social utility added a different element to the law of recklessness which had never been there.  Our submission simply is that if one looks at Aubrey and the decision that was made ‑ paragraphs 49 and 50 – then it plays a small part and ought not be a reason why the test in Victoria should revert to foresight of possibility rather than foresight of probability.  Just to finish up with the last question, at paragraph 50 in Aubrey what this Court says is that:

juries are ordinarily able as a matter of common sense and experience, and so without the need for particular directions, to take the social utility of an act into account when determining whether it was reckless.

So if somebody does come to a task with a degree of skill, then we say that the jury can take that into account without the need for particular directions.  In any event, if particular directions are required, our submission is that that is not a reason for rejecting what we say is an erroneous test in relation to recklessness for offences other than murder.

One of the difficulties with foresight of probability, in our submission, is that it is a test that is remarkably close to that with intent and the Court will see noted in the outline which is found at the joint book of authorities at 640 the case of R v G in the House of Lords, as the Court of Appeal then was, which, quoting from Archbold said that:

‘intent’ requires a desire for consequences or foresight of probable consequences –

And then continuing regardless, and I think they use there the use of the word “reckless” but, in any event, we would say what that means is that foresight of possible consequences is the appropriate test and that ‑ ‑ ‑

EDELMAN J:   What test does R v G apply for the meaning of “reckless”?

MR KISSANE:   In relation to recklessly, R v G was dealing with a situation where the law in England had developed something of an objective test, and they moved back from that to the test of recklessness that had been expounded in Cunningham in 1957, and that was foresight of the possibility, was the test in Cunningham, and that is the test that had been applied in Victoria until Nuri and Campbell came along.

So, in England, there was an objective test which included reasonableness in the court, in G, moved back to the meaning that had been expounded in Cunningham, so they reverted back to foresight of possibility of the requisite outcome and continuing on regardless of that.  In England, it was a situation where Caldwell, which had propounded an objective test, that test held sway for something in excess of 20 years before the House of Lords came along and said no, we need to consider the state of mind of the person involved.

EDELMAN J:   So the headnote in R v G is not correct?  The headnote poses the test as a person acts:

recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk –

MR KISSANE:   Yes, I think the headnote is right, your Honour, but as I perceive it, it was a reversion to the test as propounded in ‑ ‑ ‑ 

EDELMAN J:   Cunningham.

MR KISSANE:   ‑ ‑ ‑ Cunningham.  And, of course, awareness of risk does not talk about whether it is an awareness of probable risk or awareness of possible risk.  So what the Court was looking at in R v G was really a movement from an objective test back to a subjective test.  In any event, the reason I take the Court to that is that the point I was making is a near moral equivalence between “intention” and “foresight of probable consequences” as opposed to “foresight of possible consequences”. 

We submit that some support for applying Aubrey to the law in Victoria comes from the Victorian Parliament’s intention in modernising the language of “maliciousness”.  As the Court will have seen from the appellant’s written case where the passage is set out, the change from “maliciousness” to “recklessness” was said not intended to reduce the coverage of the offences and the Attorney‑General specifically referred to “recklessness” as an awareness that an injury might result, the language of possibility.  The passage is set out in our written case.

KIEFEL CJ:   Aubrey left open the possibility that legislation in each of the States might differ and might therefore produce a different result.  What do you say of the comparison of the Victorian legislation with that with which Aubrey was concerned, namely the New South Wales provisions?

MR KISSANE:   Aubrey was still concerned with the old word “malicious” or “maliciousness” but by that stage, of course, New South Wales had followed Victoria in effect and moved to the language of “recklessness” and had, as Victoria did much earlier, moved away from maliciousness.

The argument that New South Wales, in moving from maliciousness to recklessness, should adopt the Victorian position was dealt with in the case of Blackwell v The Queen in the New South Wales Court of Appeal where they refused to follow Campbell in no uncertain terms.

So the position in New South Wales, albeit that Aubrey was a case about maliciousness, was that by the time of Aubrey New South Wales had moved at least in some sections of its Crimes Act to the use of the word “reckless”.  That was considered in the case of Blackwell v The Queen.  The Court will see at the joint book of authorities page 494, at paragraph 78 of the decision in Blackwell where the New South Wales Court said:

this Court should not follow the Victorian decision of Campbell.  That decision is inconsistent with authority in the High Court, New South Wales and in England.

Then to some extent they rely on the Attorney‑General referring to Coleman when commenting on the legislative change.

Our submission is that albeit that there was a change in New South Wales at a later stage than Victoria, New South Wales has continued with the test of foresight of possibility, rejected the Victorian construction.  When one looks at the history of the provisions, New South Wales, like Victoria, eschewed any definition of “recklessness” in its legislation.  So, New South Wales’ roots have the same roots as Victoria in terms ‑ ‑ ‑

KIEFEL CJ:   You say that recklessness in both still follows the common law notions of “recklessness”.

MR KISSANE:   Yes, and we say that both States have continued with common law notions of “recklessness”.

KIEFEL CJ:   Aubrey was concerned with the old – the 1900 Crimes Act provisions in New South Wales.  When did section 35 come into effect, the amendment in New South Wales?

MR KISSANE:   From memory, it was in the early 2000s maybe, around 2007.

KIEFEL CJ:   That was before Aubrey.

MR KISSANE:   The decision in Blackwell was before Aubrey.  That was in 2011.  So, New South Wales has continued down the path of foresight of possibility and rejected the Victorian approach, whereas Victoria, “in the spirit of Crabbe”, was the expression used, went the other way.  But when – and that is why we made the point at the outset that when one looks at the way that it developed in Victoria there was almost an assumption of foresight of probability, whereas in New South Wales in the case of Coleman there was a discussion of its origins and then in Blackwell, the same detailed analysis was performed. 

So, we say, that the meaning of the word “recklessness” has its origins in the common law in Victoria in the same way as it does in New South Wales.  Victoria has - at no stage has there been any attempt to, in relation to offences against the person, define “recklessness”.

GLEESON J:   Mr Kissane, when you talk about common law, do you just mean not defined by the statute?

MR KISSANE:   Yes, so effectively its statutory interpretation is a function for the courts and the courts do that over – have done that for centuries and so when we talk about the common law we are talking about, really, the courts interpreting the statutory meaning.

GLEESON J:   Because it really is just a word that has an ordinary meaning and that is why it was ultimately used to replace the concept of “malice” or part of that concept.

MR KISSANE:   Yes, it is a word that has an ordinary meaning, but we say that it was a meaning that was well known at the point that the change occurred, but at the point the change occurred it was at the same time that this Court cited Crabbe which explains why Victoria went down the path of probability rather than possibility.

Justice Priest in his judgment in the Court of Appeal below said that the court had two alternatives.  One was to follow Crabbe and the other one was to look at the Macquarie Dictionary.  In fact, there was a third alternative and that was the alternative of possibility that had been well‑established in relation to the cases relating to maliciousness.  So it is a word that when we say “common law” what we mean is that it is a matter for the courts to define what it means.

KIEFEL CJ:   But you say it had a judicially – Aubrey says it had a judicially‑settled meaning in the context of malice at common law and that that approach had been – one can infer from Aubrey had been applied in relation to statutes containing references to “malice” which included recklessness.

MR KISSANE:   Yes, that is in effect our submission, your Honour, that it ought to have been followed through and when Justice Priest said there are two alternatives, one of following Crabbe and one of looking at the Macquarie Dictionary, there was a third alternative and that is the one that was rooted in the law relating to maliciousness.  Although we do not say this is the main argument, when one looks at Parliament’s intention in modernising the language in Victoria, there was no suggestion that it was to do anything other than modernise the language and follow the law relating to – or the law as it previously had applied.

KIEFEL CJ:   I think Justice Priest refers to the second reading speech at paragraph 64 in relation to the 1985 amendments.  I am not quite sure what his Honour was seeking to draw from that because it would seem that the Minister is referring to there being distinct defences of intentionally on the one hand and recklessly on the other, that there was a difference in moral turpitude involved and that “recklessly” was understood to mean that an accused was “aware that an injury might result”, none of which would tend to favour the notion that the Parliament, at the point of the 1985 amendments at least, had in mind a probability test.

MR KISSANE:   That is correct, your Honour.

KIEFEL CJ:   So I am just not quite sure what his Honour was seeking to draw from the reference to the second reading speech.  Am I missing something?

MR KISSANE:   What his Honour says is that it does not help much, I think is his position.  He says following the quote that not much – no, that relates to the explanatory memorandum.

KIEFEL CJ:   That is relating to the explanatory memorandum.  His Honour quotes it without really drawing anything from it.

MR KISSANE:   Yes.

KIEFEL CJ:   The main aspect of the Court of Appeal’s decision that you address is the application of the re‑enactment presumption.

MR KISSANE:   Yes, and that really is the next part of our outline.  The Court of Appeal does place great weight on that presumption.  The majority in effect said it did not need to decide whether the test was foresight or whether there was a need – whether the decision in Campbell was wrongly decided.  The majority or the joint judgment, perhaps I should say, simply went to a re‑enactment principle to say that Parliament had passed, in a number of circumstances, laws that it was said re‑enacted the definition of “recklessness” as decided by Campbell.

We submit a number of things about that.  Firstly, I do not know that this decides it but we do submit that, as I have said, the principle is doubtful.  It is a principle that is seen to arise in Salvation Army (Vic) Property Trust v Fern Gully Corporation in 1952.  In that case, the majority decision described it as “a most valuable presumption” but noting that:

It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous -

Justice Fullagar thought that it could only lend support to a view already supported by independent argument.

KIEFEL CJ:   That would be an independent argument that one could discern in some way parliamentary approval.

MR KISSANE:   Yes.

KIEFEL CJ:   I think that follows from what was said in Flaherty v Girgis.

MR KISSANE:   Yes.

KIEFEL CJ:   That is the real question, is it not?

MR KISSANE:   It is the real question.

KIEFEL CJ:   Can you discern that there has actually been attention directed to the meaning of a term and the Parliament has adopted a judicial definition.

MR KISSANE:   Yes, and our submission is that when one looks at the re‑enactments, if I can call them that, which are put forward, they do not relate to the definition of “recklessness”.

KIEFEL CJ:   Are you referring to the three areas identified by the joint judgment in the Court of Appeal?

MR KISSANE:   Yes.  If one looks at them, what they relate to in summary is really adjustments to penalties which, in our submission, do not indicate an intention of Parliament to re‑enact a particular definition of “recklessness”.

KIEFEL CJ:   Justice Kaye considered that the change in the maximum penalties, in relation to them, that the 50 per cent increase for recklessly causing serious injury could only be understood by reference to a high degree of culpability.  What do you say about that?

MR KISSANE:   We say it can be understood by a desire of Parliament simply to increase the penalties and the initial wholesale review in 1997 increased 60 penalties across various offences.  Whenever recklessness was dealt with in terms of adjustment to penalty, for example “intentionally cause injury” was dealt with at the same time.  Those amendments, we submit, would not lead this Court to conclude that Parliament had re‑enacted a particular definition of “recklessness”.

GORDON J: Can I ask you about the 2013 amendments in light of that submission? As I read it, it did a couple of things. It added a couple of offences for gross violence by adding, as it is described, an additional element for that offence to the existing elements for the offences which then existed, which included the ones with which we are concerned, section 17. Second, it relevantly defined “injury” and “serious injury” – you can put that to one side.

Is it right that those amendments were passed as a result of the Sentencing Advisory Council’s report and that, as I read the EM, it says it relied upon that report in order to enact those offences?  If one goes to that report, it picks up the element of recklessness by reference to Nuri. So, what is the answer to that? That is, you have Parliament having turned its mind to the element of recklessness, the very offence with which we are concerned with in this sense because it is adding to the existing offence section 17.

MR KISSANE:   The answer to that, your Honour, is as follows.  Firstly, yes, the Sentencing Advisory Council did produce a report, and it did refer to what was perhaps understood to be the prevailing view of the definition of “recklessness” in Victoria, but ultimately, what Parliament did was to introduce an aggravated form of the offence of recklessness.  So, the actual wording of the offence – there was no change to that. 

What it did was it introduced an aggravated form by setting out a list of factors that would lead to a higher penalty and our submission is that that does not provide an indication of an intention to re‑enact the main part of the provision, which is the actual element of the offence of recklessly cause serious injury was still the same.  It was not amended.  What was amended – what was added was an aggravated form which then provided for if those aggravated features were found to have been proven - - -

GORDON J:   Do you accept that that aggravated form was built upon what was then the existing and understood position of the law in relation to recklessness in Victoria?

MR KISSANE:   What we would submit is that it actually says nothing about that, it was simply an aggravated form of the offence that had ramifications for penalty and did not indicate that the Parliament had turned its mind to the definition of “recklessness”.  The Sentencing Advisory Council report, we would submit, is in a different category to, for example a law reform commission report that specifically dealt with the meaning of “recklessness” and discussed the various options that would be or are available.  It was simply a recitation of what it was understood the position in Victoria to be.

EDELMAN J:   What was the status of Campbell in 2013?  It was a decision of the Court of Appeal in Victoria, but might there have been any doubt upon it as a result of the decision of this Court in Lavender in 2005?

MR KISSANE:   I do not know the answer to that, your Honour.  I do know there might be doubt about it if somebody had looked at the decision in Blackwell, for example, which was in 2011.

EDELMAN J:   Well, just, I mean – Blackwell refers to Lavender as one of the inconsistencies but only in the sense that Lavender refers to the meaning of recklessness as was picked up in R v G which you refer to.

MR KISSANE:   Yes.  So, I mean no one had taken any action at that point in time but if there had been a Law Reform Commission report dealing with the meaning of “recklessness”, then those sort of issues may well have been exposed.

KIEFEL CJ:   I suppose it also raises the question, though, that the presumption, so‑called, about re‑enactment if one is to assume in modern times that Parliament is turning its mind to judicial expositions of meanings of words like “reckless” it might have regard to what courts have said in places other than just Victoria.  So, the question is how does a presumption operate when that is not in line with other expositions, unless Parliament actually says something what can be inferred about.

MR KISSANE:   Yes, and one of the things that we submit is that what the re‑enactment principle cannot do is to re‑enact an error that exists in the law so that even if Parliament was – there was thought to be some force in the re‑enactment argument, what it cannot do, in our submission, is perpetuate an erroneous interpretation.

KIEFEL CJ:   Well, unless perhaps Parliament’s intention was clear, absolutely clear, in which case the Court might be obliged to follow a clearly stated intention, that is the question, though, is it not?

MR KISSANE:   Yes, of course, but what we submit here is that Parliament’s intention was not clear because albeit that there was a report that set out the law as expounded in Campbell it was not directed at considering that, it was directed at other matters, and we say that just because there was a recitation of the position in Campbell in the Sentencing Advisory Council report which, I might say has functions under the Sentencing Act, it is not a Law Reform body and has functions to advise the Attorney‑General on sentencing if I recall correctly.

GORDON J:   The second reading speech did say that it had carefully considered the Council’s advice.  It is seen as advice rather than ‑ ‑ ‑

MR KISSANE:   Yes, and the advice, in our submission, was not focused on this whole issue of the meaning of “recklessness”, the advice was focused on the government’s request to look at changes that then led to the implementation of an aggravated form.

KIEFEL CJ:   Nevertheless, the joint judgment in the Court of Appeal seemed to think that in the second reading speech where the Attorney said the meaning of the recommendations have been adopted, and one of those was that:

the statutory minimum should be the same –

for “intentional and reckless” elements of the offences, that was important, that something must be discerned from that.  What do you understand their Honours to be saying?

MR KISSANE:   Well, their Honours are ‑ what we are submitting is that that proposition that their Honours accepted should not be accepted, albeit that there was an alignment of minimum penalties, it was still the case that maximum penalties for the offences were different ‑ ‑ ‑ 

KIEFEL CJ:   Were different, because of the different levels of culpability.

MR KISSANE:   Because of the different – and they were not changed, and it was – again, it is difficult to look into the mind of those doing it, but one can imagine that, when one is looking at aggravated forms and imposing a minimum penalty, there are different factors that come into play.  But again, what we submit is that it is the – what Parliament was doing was introducing an aggravated form, the maximum penalty remained the same.  Yes, they were adopting to the Sentencing Advisory Council’s report, but this Court should not read that as adopting everything that is said, including introductory statements about what was understood to be the position in Victoria.

As we say, if that position is erroneous, and we say it is erroneous because it traces its routes to Crabbe, then those amendments are not, in our submission, so directly on point that one can discern that yes, Parliament has now accepted the settled – what is referred to generally as the settled meaning in Victoria.  So, in the end, what we say is that the report of the Sentencing Advisory Council was given too much weight by the Court of Appeal as a sort of an indication that Parliament intended to re‑enact the definition of “recklessness”.  Our submission is that there was no such – that it cannot be discerned that Parliament had that intent.

Parliament was, in effect, dealing with a problem relating to inadequate penalties, and no more than that, and that it was not dealing with the issue that is before this Court, and that is whether the interpretation of “recklessness” is correct.  We say that it is an erroneous interpretation, it is erroneous because it relies on Crabbe, and the so‑called re‑enactments of these offences.  If I had to put a hierarchy in them, in answer to Justice Gordon’s question, I mean, obviously the change ‑ the introduction of the aggravated forms in 2013 would come closer to being a re‑enactment than the wholesale review of penalties in 1997.

But our submission is that it does not reach that level and one cannot get there simply because the authors of the Sentencing Advisory Council report refer to the existing law and make what we submit is a significant jump to say Parliament must have read that and therefore must have known that this was the law relating to the interpretation of “recklessness” in Victoria. 

In addition to all that, we submit that if this Court finds it is an erroneous interpretation, then it ought not stand simply because of the effluxion of time, that there is no principle of law that says that because something has been interpreted in a particular way for a length of time that therefore, to use an analogy, it is to produce grooves in the road and one cannot get out of the grooves. 

We say that just because there has been an effluxion of time, that does not mean that an erroneous interpretation ought to be continued.  We say that the court below emphasised that this was really a matter of Parliament.  Our submission is that this Court can correct the interpretation of “recklessness” and can return, albeit after 25 years or thereabouts, to a position that is rooted in the past when issues of degree of foresight were at the forefront. 

We accept that if this Court does amend or does re‑interpret the law in line with Aubrey, we accept there will be a flow‑on effect that the word “reckless” is a word that is commonly used in statutes, but we submit that Victoria should not be burdened with a definition that is so close to “intentional” as to make it really difficult to distinguish between the two offences.

GAGELER J:   Victoria would only be burdened so long as Parliament chose to allow it to be burdened.

MR KISSANE:   Certainly, your Honour, that is true, but we submit that this Court can and, indeed, should fix what has become an erroneous interpretation.

STEWARD J:   What do you say to the proposition that by the time of the 2013 amendment, the Victorian Parliament should be taken to have known both of Campbell and of Blackwell but chose to do nothing to correct the error that you put before us?

MR KISSANE:   That just indicates that by the 2013 amendments it was not Parliament’s focus to consider the definition of “reckless”.  Their focus was to introduce provisions that effectively related to aggravated forms of offending that provided different penalties.  So, our submission is that the fact that Parliament did nothing does not indicate that they were adopting the definition of “recklessness” in Campbell, it just indicates that they were not turning their mind to it.  Ultimately, that is what we submit about the re‑enactment provisions that are relied on, that when one looks at the nature of them, leaving aside matters in reports that Parliament may have used, when one looks at them they do not relate to the definition of “recklessness” in those provisions.

GAGELER J:   Is part of your argument to say that this Court has a greater latitude of choice than the Court of Appeal had?

MR KISSANE:   Yes, it is part ‑ ‑ ‑

GAGELER J:   The question for them was whether Campbell was clearly wrong.  The question for us is whether it is wrong.

MR KISSANE:   Yes, and I think we probably correctly conceded in the Court of Appeal in light of what was said in Aubrey that it could not be said that Aubrey was binding in Victoria in relation to the definition of “recklessness”, I think.  We conceded that.  We have conceded that all the way along.  That is why we end up here, if you like, your Honour, because the Court of Appeal below was to some extent hamstrung by its previous decisions and had to find that they were clearly wrong.

KIEFEL CJ:   Was Justice Priest they only member of the court who one might infer considered Campbell to be explicable – to be even correct?  The other members of the court, I think, are silent on the question of whether or not it was erroneous.

MR KISSANE:   Certainly, the joint judgment is completely silent.

KIEFEL CJ:   It proceeds upon the basis that regardless of whether it is there are – there is the problem of what has occurred since then.  Justice Kaye, I think, likewise.

MR KISSANE:   Justice Kaye dealt with a number of issues, but I do not really think – if anything, he was aligned with Justice Priest on that point, I would have thought, your Honour, rather than with the joint judgment.

KIEFEL CJ:   Yes.

MR KISSANE:   I think he was – at least the tenor of his judgment was that there was nothing wrong with the law in Victoria and one can infer from that that he thought Campbell was ‑ ‑ ‑

KIEFEL CJ:   It has not been – Campbell has not been criticised and it has been applied for a long time.

MR KISSANE:   Yes.  But certainly the joint judgment avoided the question and said, well, we do not need to deal with this because we have these re‑enactments.  One of the reasons that I have taken this Court to the Salvation Army Case is that interestingly when one looks at the re‑enactment principle, it does deal with the proposition that it does not allow for erroneous interpretations to survive, where the Court of Appeal in the joint judgment, in our submission, simply ignored that part and said there have been these re‑enactments so we can presume from that that Parliament has re‑enacted the provision.

KIEFEL CJ:   There have of course been cases where, despite an error where Parliament has clearly taken upon a particular meaning from that judicial decision, the courts have followed Parliament’s intention.  I think the Electrolux Case was one such case.

MR KISSANE:   Yes, and in those cases, it was able to be decided that it was the clear intention of Parliament to follow the particular interpretation that was being argued for.

EDELMAN J:   Is the principle quite as blunt as you put it?  Might it not depend upon how long an erroneous interpretation has persisted, and the extent to which it could be said to be erroneous, in other words, whether it might be said to be an egregious error or a matter upon which reasonable minds might differ.

MR KISSANE:   In terms of the period of time, it then becomes difficult, your Honour, to draw the line.  Does one say, well, this could be corrected after five years but not after 10 years, or not after 25 years?  It becomes a difficult proposition to say ‑ ‑ ‑ 

EDELMAN J:   I think Aubrey establishes that there is not necessarily a time limit.

MR KISSANE:   Yes, and, indeed, Aubrey refers to this Victorian line of authority that we are seeking to overturn as a recent line of authority.  It does establish there is no time limit, but if one is thinking about whether the effluxion of time is relevant, it does become a difficult proposition because where does one draw the line?  Does one say well, this has been around for 25 years?  Of course, it may indeed be relevant as to how egregious the error is, and our submission is that, when one thinks about it, this is a most significant error that has significant implications for the law relating to recklessness in Victoria.

There is a difference, a significant difference, between foresight of probability and foresight of possibility, and our submission is that it comes about because of Crabbe and because of erroneous interpretation of Crabbe which, at the end of the day, was finally explained in Aubrey, which is in 2017. 

GORDON J:   One of the other factors identified in Electrolux is what is described as the “specialised and politically sensitive field” within which the issue has arisen.  Taking up what Justice Gageler put to you, here you have both “specialised and political” in the sense that – the Sentencing Advisory Council report is just one indicium of that, does that impact upon the way in which you put the principle?  In other words, if this is an area which Parliament looks at often, it has never sought to amend any view, any aspect of it, does that matter?

MR KISSANE:   Certainly Parliament looks at it, and that is a proposition that is put against us.  Our submission is ‑ ‑ ‑ 

GORDON J:   In respect of these provisions which are used every day in the courts on multiple occasions.  They are probably one of the most used provisions.

MR KISSANE:   Our submission is that that does not mean that this Court cannot consider the definition of “recklessness” and consider whether it is appropriate.  It also raises the issue as to what impact it has.  The way that we are arguing the definition of “recklessness” should move means that there may well be people who have escaped liability in the past, where they should have been found liable, but it does not mean the reverse, that people have been found to be liable and if the Court made this change they would no longer be liable.

GORDON J:   Thank you.

MR KISSANE:   The last point in my outline is social utility, which I think I jumped to early on.

KIEFEL CJ:   I think Justice Edelman took that up with you at the outset.

MR KISSANE:   So, unless there are any questions, I do not think I need to deal anything further with that.

KIEFEL CJ:   Yes, thank you, Mr Kissane.  Mr Dann, it might be convenient for the Court to take its morning break and then we will hear from you.

MR DANN:   Certainly, your Honour.

KIEFEL CJ:   Thank you.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.07 AM:

KIEFEL CJ:   Yes, Mr Dann.

MR DANN:  If the Court pleases.  The starting and, indeed, essential submission to be made on behalf of the respondent is that far too much has happened on the back of the settled meaning of “recklessness” in Victoria for this Court to now alter that settled meaning in the way urged upon it by the Director.

There should be no dispute that that settled meaning has stood in Victoria for over 25 years and what we seek to do is to demonstrate that, in respect of that settled meaning, the alteration of it now would cause in fact and be productive of widespread injustice in Victoria and that such alteration would lead to inconsistency and uncertainty.

As part of what we submit and the way this challenge to the settled meaning has been mounted, we say there has not been a proper engagement with the legislative history in Victoria.  There has not been a proper recognition of all that has happened with respect to that settled meaning in Victoria over the last 25 years.

We seek to demonstrate that this Court, with respect to a wholesale application of an altered meaning in terms of foresight of possibility have just not been or are not in a position to entertain such a wholesale application of that altered meaning because of the way this challenge has been mounted.  We will attempt to explain that by way of submission.

EDELMAN J:   You may be right about these points about settled law and retrospectivity, operation and so on, but is not the starting point a question of whether the decision in Campbell was in error and whether it was an egregious error or an error of a nature that reasonable minds might differ about?

MR DANN:   No, with respect, your Honour, we say that in fact the starting point is to construe this and deal with this situation as it is now, having regard to all of the legislative history.  It is not turning back to 1985 and what was the better course in 1985 or 1990 or 1995.  The situation has to be addressed now in terms of all the legislative history, the developments, the impact.  It is around the wrong way now, in our respectful submission.

As part of all of this, of course, the Court will have to consider those aspects in terms of Campbell and was it open in Campbell to go down the path that the Court of Appeal did and the circumstances in which that took place.  I am not saying that is just irrelevant but we say fundamentally that this Court should be concentrating on the situation as it is now in terms of this statute and its surrounding legislative history ‑ ‑ ‑

KIEFEL CJ:   The correctness of the decision in Campbell is clearly a relevant matter.

MR DANN:   Yes, your Honour.

KIEFEL CJ:   Indeed, quite a relevant matter for this Court, because it would go no further if it was not erroneous.  Do you not wish to be heard in relation to the correctness of that decision?

MR DANN:   Yes, as part of the presentation I will certainly be dealing with that decision.

KIEFEL CJ:   What is your position in relation to the correctness of Campbell?

MR DANN:   Our position, your Honour, is that, as we have tried to set out in the written submissions, attention needs to be drawn to the origins of these particular offences, and this particular offence, if I can use that term “recklessly causing serious injury” which was as we know, as we have tried to set out in the written submissions, the 14th report of the Criminal Law Revision Committee, the recommendations of that committee leading and moving away from malice, moving into different offences, the origins being and involve the warning from that very committee that there is no unanimity around the meaning of “recklessness” in the law, that there is uncertainty around the meaning of “recklessness” in the law. 

The recommendation that when these new offences came – and were to be enacted, as they were proposed to be enacted in England, that there needed to be a definition or else there would be this period of uncertainty until that period of uncertainty was resolved by an authoritative decision of the courts.

So, with that background in mind, in Victoria there was no definition when these offences were enacted.  There was at the time in the Crimes Act another offence involving “recklessness” which had its own definition dealing with substantial risk and the unjustifiability of that risk, but that was in the context of culpable driving which had its own context.  But I just make the point that there was no clarity even at that time or unanimity in terms of what “recklessness” would mean or was going to mean.

KIEFEL CJ:   But what do you say what was said in the second reading speech which is set out at paragraph 64 of Justice Priest’s ‑ ‑ ‑

MR DANN:   What was said in Campbell was that the Director made the suggestion ‑ and it was no more than a suggestion at that time, quoting from Campbell, the judgment of Justices Hayne and Crockett at that time – it was no more than a suggestion that it might be of support for the foresight of possibility interpretation, no more than a suggestion.

Now, in answer to your Honour’s question, we say that it cannot be gleaned any fixed determination or intention from that second reading speech that a definition involving foresight of probability or interpretation or a meaning of – sorry, foresight of possibility accompanying these offences.

KIEFEL CJ:   What about the distinction that was drawn, and I quote:

between one who does so intentionally in the sense of desiring to cause [serious] injury and one who does so recklessly –

which is to say, aware that an injury might result.

MR DANN:   That was the suggestion, that that was relied on in Campbell as a mere suggestion that that one ‑ ‑ ‑

KIEFEL CJ:   This is Justice Priest quoting from the second reading speech to the amending Act.

MR DANN:   Yes, that is what I am referring to in Campbell.  They said that was the sentence that was picked up as a mere suggestion at that time when Campbell was being argued, that that may lend some support to this foresight of possibility interpretation.

But that one sentence is in the face of the background being that report, that warning as time certainty, the deliberate decision not to – it must have been a deliberate decision not to enact statutory definition, and as our learned friends have set out in their written submission today, seemingly a determination to leave to the courts that task of settling upon the fixed meaning for “recklessness” in Victoria.  That is their position in their written submissions today.

EDELMAN J:   What about the consequences of such an approach which Parliament must be taken to have in mind?  So, for example, situations that are given in some of the literature like an accused person who is driving on a country road at night where it is unlikely to be anyone around at 200 kilometres an hour with the headlights off, is that not reckless, as to causing serious injury, even though there is a probability that no one will be on the road?

MR DANN:   Well, there was a particular definition that dealt with culpable driving but picked up – that probably picks up your Honour’s example.

EDELMAN J:   But it would not fall within this offence on your approach?

MR DANN:   Sorry, your Honour?

EDELMAN J:   But it would not fall within this offence on the Campbell approach?

MR DANN:   Foresight of probability offence?  Well, that particular definition talked of substantial risk which may be something different again than probability.  That was the existing definition in that particular section of the Act.  But getting back to ‑ ‑ ‑

KEANE J:   Mr Dann, can I ask you to speak up a little bit?

MR DANN:   Sorry, your Honour.  Part of the context was in terms of enacting these offences, the recklessly causing injury offences.  There were other – well, we know, recklessly and intentionally causing injury were grouped together.  There are other offences at the same time grouped together in terms of knowledge or recklessness.  There was a close relationship between the maximum penalties for intentionally causing serious injury and recklessly causing serious injury.

I mean, as an example, that Criminal Law Revision report had the differential between an intention causing serious injury somewhere around life imprisonment as opposed to reckless at five years’ imprisonment as a maximum penalty.  What we started out with in Victoria was a much much closer relationship which is indicative of an understanding at least that these two states of mind, intention and recklessness, did have that close relationship. 

So, by the time we get to Campbell, there is no definition, statutory definition.  You have Crabbe but you have Nuri in Victoria where there is no – Nuri is setting out foresight of probability.  Seemingly in this State there was no controversy in respect of that decision.  There was no intervention by Parliament in terms of that decision.  Then, you get to Campbell.  So, we say, it was understandable that, in those circumstances, given the origins of the offence that we have moved away from malice, that there is no statutory definition, that you have those indicia in the Act of the relationship between the various offences.

KIEFEL CJ:   But preceding the 1985 amendments was that line of authorities - Smyth, Kane and Lovett, was there not?

MR DANN:   Yes.

KIEFEL CJ:   Would that not have given some idea of what the settled meaning was in Victoria?

MR DANN:   No, because the Court in Campbell, having regard to what I said in terms of the origins and moving away from “malice”, identified that those cases were cases dealing with malice and “recklessness” as emerging from the Criminal Law Revision Committee report was not ground in malice.  It was not, I think, “straitjacketed” was one term that was used, by that concept.

KIEFEL CJ:   But “maliciousness” was just an umbrella term for acts of malice or recklessness.  It has been considered in that way for a very long time.

MR DANN:   Yes, but emerging from “malice” and moving from “malice” was the use of “recklessness” in terms of these offences, with the warning that there is no certainty as to the use of that term, no unanimity as to the use of that term, that there will be uncertainty until there is some authoritative decision in respect of what it is to mean.  That is what happened.

Now, the question very much is not what happened in 1985 or 1990, in our respectful submission.  Yes, I have accepted, and we accept of course it is a consideration for this Court, but so much has happened since that time – since we have arrived at that settled meaning – that there are fundamental reasons why this Court would not alter that settled meaning.  If I could go back in that way  - just to answer one point that arose earlier.  Justice Kaye, in our respectful submission, should be taken to have, as I think my learned friend conceded ‑ ‑ ‑

KIEFEL CJ:   Have the same view as Justice Priest.  Yes, I understand that.

MR DANN:   In terms of the correctness of Campbell.

KIEFEL CJ:   Yes.

MR DANN:   What we seek to demonstrate is that this acquitted person whom we represent is in a very different position to Mr Aubrey, in the case of Aubrey.  Mr Aubrey could not point to a situation in his State where for 25 years the meaning of “recklessness” involved foresight of probability and that meaning had been settled.  Mr Aubrey could not point to a situation in his State where juries day in and day out, for 25 years, had been directed in terms of that settled meaning.  Mr Aubrey could not point to a situation in his State where many new offences had been created on the back of that settled meaning.  Mr Aubrey could not point to a situation in his State where the maximum penalties for not only this particular offence we are looking at, but all of the other new offences were set on the back of that settled meaning.

KIEFEL CJ:   Mr Dann, apart from the newly created offence involving the aggravation of gross violence, can you give us some examples of some of the other offences that have been created which involve recklessness?

MR DANN:   Yes, there are 27 set out ‑ ‑ ‑

GORDON J:   Sorry, Mr Dann, could you speak up.  I just did not hear the answer to that question.

MR DANN:   Sorry.  There are 27 of those offences set out at page 138 of the joint appeal book, page 43 of the Court of Appeal decision, and I was going to take the Court to some of these in the context of the imposition or the creation of a mandatory sentencing scheme in Victoria.  They are there set out, but ‑ ‑ ‑ 

STEWARD J:   Sorry, what was the paragraph again?

MR DANN:   After the bottom, there is a footnote at the bottom of paragraph 123.

STEWARD J:   Thank you.

GORDON J:   Is that footnotes 113 and 114 you are referring us to?

MR DANN:   Yes.

GORDON J:   Thank you. 

EDELMAN J:   Is your submission that the meaning of “reckless” in Campbell has effectively been entrenched in all of those offences?

MR DANN:   Exactly.

KIEFEL CJ:   Have these offences been created subsequent to Campbell?

MR DANN:   Yes.

KIEFEL CJ:   All of them?  The ones in footnotes 113 and 114.

MR DANN:   Yes, that is our understanding.  I will take the Court – I was asked to provide an example, but in 114, footnote 114, there is an offence of:

recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving, or damaging vehicles –

and it goes on.  That particular provision intertwines with all sorts of mandatory sentencing considerations that I will take the Court to that involve different layers of recklessness and is a good example of the real difficulty with the challenge that has been mounted, and the way it has been mounted.  If I could come back to that shortly.

GAGELER J:   Is it your understanding that acceptance of the appellant’s submissions here would be to the same definition of “recklessness” being applied in all of these offences?

MR DANN:   That is what they seek to do.

GAGELER J:   I thought there may be some suggestion that comes to murder, you get to Crabbe ‑ ‑ ‑ 

MR DANN:   I am sorry, exactly, apart from murder, there is the acceptance that Crabbe, on the question of murder and moral equivalence, there is no issue there.

GAGELER J:   Right.  So even on the case against you, the same word, “reckless”, appearing in a Victorian statute, can have different meanings, or different shades of meaning?

MR DANN:   Yes.

EDELMAN J:   Why could that not be the case in every single one of these possible offences?  In other words, if one looked to the second reading speech or the context of the enactment, “reckless” might have a different shade of meaning from the meaning that it has in this context?

MR DANN:   But that is our point, that you have not been asked to engage in that exercise.  It is just a wholesale, from the Director, one‑size‑fits‑all foresight of possibility being transposed across and into all of these offences, without that task even being attempted, to look at the origins of any of those offences, the extrinsic materials, the text itself, it just has not happened.

KIEFEL CJ:   Can you point to any of the extrinsic materials which show an express adoption of a definition of “recklessness”, per Campbell?

MR DANN:   Yes, we have set one out in our written submissions in respect of the occupational health and safety offence.  I can just go there.

EDELMAN J:  I just wonder whether you are setting up a straw man here. The Director’s submission cannot possibly be that, without this Court even looking at the context and all of the circumstances surrounding every single one of these offences, this Court should pronounce that there is a single test that must apply in every context. The Director’s submission, as I understand it, is that there is a base or general meaning of “recklessness” that, applied in the context of this section 17 offence, means that the decision in this context of Campbell was incorrect.

MR DANN:   But the actual reference speaks of the applicability for all offences involving recklessness.

GORDON J:  I thought that was the position, but I must say I thought that the special leave was limited to section 17 and that was the reason why the grant of appeal by the Director was limited to 17. If you go to ground 2 of the grounds of appeal, it is limited to section 17.

MR DANN: This did arise in the special leave application where there was discussion about whether the grant of leave should be limited just to section 17. I do not think there was really any final determination in respect of that issue because we agree that it just cannot possibly happen that there can be this wholesale application of the foresight of possibility without that exercise in terms of the origins of the offence, the text, the extrinsic materials being entered into on a case‑by‑case basis.

GAGELER J:   The ground is limited but the order sought is incredibly wide.

MR DANN: That is right. My learned friend used the terminology today - it will have a “flow-on effect” and your Honour is exactly right. The order sought puts that flow-on effect in its widest and starkest terms that yes, that is what we are dealing with here. That is what was sought to be achieved in the Court of Appeal and that is what is sought to be achieved here and it is, with respect, impossible. When we come to it, the alternative is that we just isolate ourselves to section 17. That creates an impossible situation as well for different reasons.

GORDON J:   Is that because of directions to juries for offences which are joined?

MR DANN:   Yes, also – I will deal with it now, if that is appropriate – what we were going to demonstrate on that point is that you have now section 15B, which is the aggravated form of recklessly causing serious injury, as your Honour identified, part of its origins being the Sentencing Advisory Council report where the recommendation for that very offence was made on the settled meaning of “recklessness” involving foresight of probability.

Not only was that offence enacted, it is enacted with a mandatory sentencing scheme attached to it.  If I keep using the word “mandatory”, I do not want to overstate the position because there are exceptions with respect to those mandatory minimum periods.  So you have the aggravated version of the offence based on Campbell recklessness, foresight of probability.  You have then this offence, recklessly causing serious injury, which is a statutory alternative.  Even as far back as Campbell, the Director can see that it would be improbable that the Parliament would intend two closely‑related sections involving the use of the word “recklessness” or “recklessly” to have different meanings.  It would be highly ‑ ‑ ‑ 

KIEFEL CJ:   Mr Dann, speaking for myself, the connection between notions of what “recklessness” means and the adoption of an aggravated form of offence, that I do not necessarily – I do not clearly see how the former informs the aggravated form of the offence.  What the Court of Appeal relied upon was the common minimum sentences, the commonality of the minimum sentences for the two forms of aggravated offence, which arose from the recommendations of the Sentencing Advisory Council.  What do we draw from the fact that they are the same minimum sentences?

MR DANN:   Well, in our respectful ‑ ‑ ‑ 

KIEFEL CJ:   It was not clear to me, from the Court of Appeal’s reasoning, what was said to come out of that that relates to recklessness.

We respectfully say that we are now ended up in a position that we really started this submission with, that too much has happened in too many ways for this Court, even if it was thought that there was some sort of error, or a wrong path, or a wrong turn, too much has happened over too much time and in too many way with too many impacts for this Court to intervene in the way it is sought.

We do accept that the nature of the error, if there is – we do not concede error, of course – if the nature of any error is a relevant consideration, we are not saying just put it to one side by any means, but even if this Court was to say, back in 1990 or 1985, that there was some wrong path, or it would have been preferable or better to have gone a different path, we are not at that point now, we are way past it.  So, we hope this Court understands that, by way of submission, we are not clinging to the spirit of Crabbe ‑ ‑ ‑

KIEFEL CJ:   I think you have covered that, Mr Dann.

MR DANN:   Our case is a completely different case, and that is the way – I was about to conclude, just one moment please – I think I have covered that.  So that is the way, respectfully, that the case on behalf of the respondent is put.

KIEFEL CJ:   Thank you.  Yes, Mr Kissane.

MR KISSANE:   Thank you, your Honour.  The material relating to the Sentencing Advisory Council about which there has been some discussion is found at page 764 of the joint book of authorities.  The Court will see that there is set out there material that indicates that there was a set of questions that were posed by the Attorney‑General, the government in effect to the Sentencing Advisory Council, and those questions were in turn answered.  None of those questions relate, we submit, to the question of the proper definition at common law of “recklessness”.  We submit that that flows through, that the so-called settled meaning that my learned friend makes much of has never been, we submit, adopted by Parliament.

There has been no, in express terms, adoption of the use of the probability form rather than the possibility form and we submit that the changes that Parliament has made to the Crimes Act in relation to this area relate effectively to penalty and do not bear upon the question as to the correct meaning of “recklessness”.  That applies to any so‑called injustice that my learned friend takes this Court to.

In our submission, unless it is accepted that there is a settled meaning that Parliament has acted on then there is no injustice.  So, the first step is to determine whether there is a settled meaning that Parliament has, in effect, re‑enacted.  If there is not, and we say there is not, then albeit that there has been many amendments to penalty over the years for a wide variety of offences, that does not mean that this Court cannot change the definition of “recklessness”.

In relation to the breadth of this reference, we accept that it obviously has to have a flow‑on effect.  Campbell applies, in effect, across the board in Victoria.  So, for example, one of the things that is referred to at footnote 113 is the offence of aggravated burglary and the recklessness there would be recklessness as to whether a person was present in the home.

So, if this Court does side in favour of the appellant in relation to the meaning of “recklessness” in section 17 then obviously it is going to have a flow‑on effect, which is not to say that there may be instances where it can be interpreted in a different way. The occupational health and safety may be one. It may not be one, bearing in mind that the Attorney‑General in the second reading speech was presumably referring to all of the elements that relate to reckless endangerment rather than just recklessness. It may be that that there were offences where if this Court decided that in Victoria the common law definition of “recklessness” should be foresight of possibility, there may be offences that because of the terms of the legislation are outside that scope.

GAGELER J:   What is the order you seek?  I am not even sure that we can do what you want us to do in your notice of appeal, in the exercise of judicial power.

MR KISSANE: Well, certainly the order can be confined to section 17, I think we accept that, and that was – we had that discussion at the leave application. Section 17 is the section from which this reference arises, but we do accept that it has a flow‑on effect and obviously this Court cannot – it can say what the common law definition of “recklessness” is in Victoria, cannot necessarily apply that to every offence, plainly.

KIEFEL CJ:   Would you like to turn your mind to an alternative form of order, in the event that you were successful, as Justice Gageler says, the orders sought in the notice of appeal are very wide and certainly extend beyond those that were discussed, the approach taken in the special leave.

MR KISSANE: Yes. Well, the alternative wording would be, your Honour, in – and we can provide this, if necessary, but it would be in relation to the offence of recklessness in section 17, would be the appropriate alternative wording.

KIEFEL CJ:   Which would then leave the question of what that term means in other statutes to be considered on their own legislative history.

MR KISSANE:   Of course, but in terms of the Crimes Act, we accept that that would have a flow‑on effect, because “recklessness” is used in the Crimes Act, as is set out in those paragraphs 113 and 114, in a number of places.

Would your Honour excuse me for a moment? So as I indicated, your Honour, it could be confined to section 17. The other way of doing it would be that would be to confine it to non‑fatal offences against the person.

GAGELER J:   I mean, I know it is a reference, but we are still exercising judicial power here – got to be somehow related to the offence of which the person was convicted.

MR KISSANE: Yes, which is section 17. And we are content to confine it to section 17 if that is – and when one goes to Aubrey, I mean, Aubrey was plainly confined to the section that gave rise to the case.

KIEFEL CJ:   Yes.

MR KISSANE:   So we are content to do that, and content to seek leave to amend the orders sought to reflect that position.  But we maintain that it will have a flow‑on effect; it is not – obviously as your Honour Justice Gageler says, you have to exercise judicial power in relation to the case that is before you.

EDELMAN J:   But the flow‑on effect (a) is not necessarily for this Court to consider; and (b) is not a necessary consequence, is it?  I mean, some of the amendments and second reading speeches even to the same Act might have contemplated a different meaning of recklessness, given the shades of meaning that exist.

MR KISSANE:  Indeed, and we accept in this circumstance that this reference does arise out of section 17 of the Crimes Act. If your Honour wishes a form of words to be provided in writing, we are happy to do that.

KIEFEL CJ:   I think that is probably preferable if you could do so within a few days.

MR KISSANE:   Yes, we can do that.  Unless there is anything further, I have nothing in reply, your Honour.

KIEFEL CJ:   Thank you, Mr Kissane.

MR DANN:   Excuse me, your Honour, there is just one matter that I have been instructed to raise and that was the order for costs that the grant of leave was ‑ ‑ ‑

KIEFEL CJ:   There was an undertaking, was there not?

MR DANN:   Yes.

KIEFEL CJ:   Do you need an order if there is an undertaking?

MR DANN:   Sorry, I think there was an order.

KIEFEL CJ:   It was conditioned on an undertaking, was it not?

MR DANN:   Undertaking, no problem ‑ ‑ ‑

KIEFEL CJ:   Thank you.  I think you could rely on an undertaking.  The Court reserves its decision in this matter and adjourns to 9.30 am on Tuesday, 18 May, in Canberra, for pronouncement of orders and otherwise to 10.00 am.

AT 12.44 PM THE MATTER WAS ADJOURNED