Director of Public Prosecutions Reference No 1 of 2019

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0176

DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2019

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JUDGES:	MAXWELL P, PRIEST, KAYE, McLEISH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2020
DATE OF JUDGMENT:	2 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 181

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CRIMINAL LAW – Offences – Mental element – Recklessness – Recklessly causing serious injury – Requirement of foresight of probability of serious injury – Whether test should be changed – Whether foresight of possibility of serious injury should be sufficient – Longstanding appellate authority – Whether Court of Appeal should re-open earlier decision – Whether decision ‘plainly wrong’ – Offence provision re-enacted subsequently – Presumption that legislature accepted existing interpretation – New test would require legislation – No change warranted – R v Campbell [1997] 2 VR 585, Aubrey v The Queen (2017) 260 CLR 305 considered – Crimes Act 1958 ss 15B, 17.

WORDS AND PHRASES – ‘recklessly’, ‘recklessness’.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Boyce QC with Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions
For the Acquitted Person	Mr D A Dann QC with Mr C T Carr	C Marshall & Associates

MAXWELL P
Mcleish JA
Emerton JA:

Summary

Section 17 of the Crimes Act 1958 (the ‘Act’) creates the offence of ‘causing serious injury recklessly’. The section provides as follows:

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.
Penalty: Level 4 imprisonment (15 years maximum).

Section 17 came into force in March 1986. In 1995, in R v Campbell,[1] this Court decided that, in order for a person to be convicted of recklessly causing serious injury, it needed to be proved that the person foresaw the probability of serious injury and proceeded nonetheless. That decision has stood unchallenged until the filing, in September 2019, of the present reference.
[1][1997] 2 VR 585 (‘Campbell’).

Under s 308 of the Criminal Procedure Act 2009, the Director of Public Prosecutions has referred to this Court for its consideration and opinion the correctness of the decision in Campbell. The ‘point of law’ the subject of the Director’s reference takes the form of an affirmative proposition, in the following terms:

Consistent with the decision of the High Court in Aubrey,[2] the correct interpretation of ‘recklessness’ for offences other than murder (and, in particular, the offence of recklessly causing serious injury) is that an accused had foresight of the possibility of relevant consequences and proceeded nevertheless, having regard to the social utility of the action. Further, that the approach in Campbell requiring proof of foresight of the probability, or likelihood, of (serious) injury is inconsistent with Aubrey and should no longer be followed.[3]

[2]Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 (‘Aubrey’).

[3]The emphasised words were added by leave in the course of argument.

We have had the advantage of reading in draft the reasons for judgment of Priest JA. We gratefully adopt his Honour’s comprehensive description of the legislative history of s 17, the relevant authorities and the principal arguments advanced in this Court.

For reasons which follow, we have concluded that any reconsideration of the correctness of the decision in Campbell is a matter for the Victorian Parliament, not for this Court. That conclusion rests on the following propositions, any of which would have been sufficient in itself, namely that:

(a) since Campbell was decided, the Victorian Parliament has re-enacted s 17 twice using the same language — first, when increasing the maximum penalty for the offence and, secondly, when creating a new ‘gross violence’ version of the offence. This means that:

(i) on each occasion the Parliament is presumed to have accepted the correctness of the Campbell interpretation; and

(ii) the Court should not, in any event, depart from its decision in Campbell; and

(b) the formulation of ‘recklessness’ which the Director wishes the Court to adopt in place of the Campbell interpretation includes an ‘unreasonableness’ qualification which, by its nature, could only be effectuated by legislation.

Accordingly, we would state our opinion on the referred point of law as follows:

Unless and until it is altered by legislation, the meaning of ‘recklessly’ in

s 17 of the Crimes Act 1958 is that stated by the Court of Appeal in Campbell.

Reconsideration of previous decisions

From time to time, an intermediate court of appeal is called on to decide whether to depart from a previous decision of the court. It is well established that the occasions upon which a departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.[4]
[4]Nguyen v Nguyen (1990) 169 CLR 245, 269; [1990] HCA 9 (Dawson, Toohey and McHugh JJ).

In AVCO Financial Services Ltd v Abschinski,[5] the Full Court applied that principle in holding that, while it was free to depart from an earlier Full Court decision, it should do so only in exceptional circumstances and when convinced that the earlier decision was wrong. Since Avco, this Court has consistently taken the view that it will not depart from an earlier decision unless the decision is shown to be ‘clearly, or plainly, wrong’.[6]
[5][1994] 2 VR 659 (‘Avco’).
[6]RJE v Secretary, Department of Justice (2008) 21 VR 526, [48]; [2008] VSCA 265 (Maxwell P and Weinberg JA); Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617, [20]; [2011] VSCA 272 (Sifris AJA, Buchanan and Tate JJA agreeing at 619 [1] and [2]).

In Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd,[7] this Court referred with approval to the following statement by the New South Wales Court of Appeal in Gett v Tabet:[8]

The use of the semantic label, clearly or plainly wrong, … should be seen as a necessary, but not sufficient, condition for departure from earlier authority. In deciding whether to depart from such authority, an intermediate court of appeal should, as the High Court does, have regard to a range of other considerations which impinge on the question.[9]

[7](2012) 41 VR 81; [2012] VSCA 300 (Maxwell P, Weinberg JA and Ferguson AJA).

[8](2009) 254 ALR 506; [2009] NSWCA 76 (‘Gett’).

[9]Ibid [296] (Allsop P, Beazley and Basten JJA).

The Court of Appeal in Gett pointed to the considerations identified by the High Court in John v Federal Commissioner of Taxation,[10] which it said were
[10]John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438–9; [1989] HCA 5 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ) (‘John’).

relevant to the underlying principles of certainty, predictability and transparency upon which the theory of precedent is founded.[11]

In John, the High Court identified four matters which might justify departure from an earlier decision, namely that:
·the earlier decision ‘did not rest on a principle carefully worked out in a significant succession of cases’;
·there was a difference between the reasons of the justices constituting the majority in that decision;
·the earlier decision ‘had achieved no useful result but on the contrary had led to considerable inconvenience’; or
·the earlier decision ‘had not been independently acted on in a manner which militated against reconsideration’.[12]

[11]Gett (2009) 254 ALR 506, 567 [301]; [2009] NSWCA 76.

[12]John (1989) 166 CLR 417, 438–9; [1989] HCA 5 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ). See also Green v The Queen (2011) 244 CLR 462, 491 [85]; [2011] HCA 49 (Heydon J).

Ordinarily, the question whether departure is justified arises only when a later bench of the same court is asked to decide for itself whether a decision of an earlier bench was ‘clearly or plainly wrong’. As Priest JA notes, no such challenge to Campbell has ever been mounted in this Court. Senior counsel for the Director acknowledged that the present reference had arisen solely because of the High Court’s 2017 decision in Aubrey.

It is noteworthy, therefore, that an important strand of the Director’s critique of Campbell was wholly unconnected with the decision in Aubrey and could have been advanced at any time since Campbell was decided. More than once during oral argument, senior counsel for the Director submitted that the interpretation of ‘recklessly’ adopted in Campbell was directly contrary to the (manifest) intent of the legislature in enacting the new s 17 and was, for that reason, untenable.

According to the submission, the legislature in making the 1985 amendments which introduced s 17 intended that

there would be no change in liability or the imposition of liability or the levels of liability, in the movement from the old archaic terminology.

Reliance was placed on the following statements of the then Attorney-General in his Second Reading Speech:
In general, the Bill will replace the old sections with new ones. It is not intended in any way to reduce the coverage of these serious offences. On the contrary, in some cases coverage has been expanded in accordance with the needs of the times.
…
The approach taken in the Bill is where serious injury is inflicted there is a sufficient difference in moral turpitude — sufficient to justify distinct [offences] — between one who does so intentionally in the sense of desiring to cause injury and one who does so recklessly — aware that an injury might result to another that goes ahead anyway.

As we have said, this is an argument which could have been deployed by successive Directors of Public Prosecutions at any time after Campbell was decided, whether on appeal to the High Court or on a Director’s reference. Instead, as Priest JA notes, prosecutions for recklessly causing serious injury have continued since that time to be conducted on the basis that the interpretation adopted in Campbell was correct. In the circumstances, in our view, it is far too late for this construction argument to be advanced for the first time.

The principal question which arises is whether, in the light of what was said by the High Court in Aubrey, this Court should be persuaded that the decision in Campbell is ‘clearly or plainly wrong’. That question would not, of course, have arisen had what the High Court said in Aubrey been said in a judgment disposing of an appeal from this Court concerning the interpretation of the Victorian provision. Such a judgment would have operated of its own force. The question arises because, in order to decide an appeal arising under New South Wales legislation, the High Court was required to consider arguments based on its earlier decision in R v Crabbe[13] and, hence, to consider the correctness of the interpretation adopted by this Court in Campbell, based as it was explicitly on Crabbe.
[13](1985) 156 CLR 464; [1985] HCA 22 (‘Crabbe’).

In answer to questions from the Court, senior counsel for the Director stopped short of contending that the decision in Campbell was overruled by the High Court in Aubrey but submitted that ‘the writing is on the wall for Campbell’. In senior counsel’s submission, the reasoning in Aubrey with respect to the meaning of ‘recklessness’ was plainly applicable to the interpretation of s 17, there being nothing in that section which would render it inapplicable, and it was reasoning which this Court was obliged to apply. This Court should therefore hold that Campbell was wrongly decided.

For reasons which follow, we do not consider it necessary to reach a concluded view about whether Campbell was rightly or wrongly decided. Even if we were persuaded, in the light of Aubrey, that Campbell was ‘plainly wrong’, there are powerful reasons for this Court to decline the Director’s invitation to affirm the proposition of law which she advances.

The ‘re-enactment presumption’

The submissions for the acquitted person (‘AP’) relied on what is sometimes described as the ‘re-enactment presumption’. This is an interpretive presumption to the effect that, when legislation is re-enacted after being judicially interpreted, the legislature is taken to have approved that interpretation and to have intended that it should continue to be applied.[14] This presumption was given authoritative expression by a unanimous High Court in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees, where the Court said:

There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them]’, although the validity of that proposition has been questioned.[15]

[14]Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232, 243 [40]; [2012] VSCA 179 (Osborn JA, J Forrest and Beach AJJA).

[15]Re Alcan Australia; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (citations omitted) (’Alcan’).

As with any presumption of this kind, its strength in a particular instance will depend on the context. In Alcan, for example, the High Court considered that the presumption was ‘considerably strengthened … by the legislative history of the Act’.[16] In the present case, there are three distinct aspects of the legislative history of s 17 which give the presumption very great force, in our view.
[16]Ibid.

The first is that, in 1997, there was a change in the maximum penalties for the three categories of ‘causing injury’ offence. The maximum for intentionally causing serious injury was increased from 12.5 to 20 years; for recklessly causing serious injury, from 10 to 15 years; and for intentionally causing injury, from 7.5 to 10 years.[17] Those changes were made well after the decision in Campbell had been handed down.
[17]Sentencing and Other Acts (Amendment) Act 1997, s 60, sch 1 sub-ss 10–12.

As Kaye JA pointed out in argument, the decision to increase the maximum for recklessly causing serious injury by 50 per cent can only be understood on the basis that the legislature was aware of, and accepted, the Campbell interpretation. That is, the increased maximum was seen to be both necessary and appropriate given the high degree of culpability involved in the causing of serious injury in circumstances where the offender was aware of the probability that serious injury would result and proceeded nonetheless. This was, in effect, a re-enactment of s 17 — with a higher maximum — on the basis of the interpretation adopted in Campbell.

The second significant development was the enactment in 2013 of the Crimes Amendment (Gross Violence Offences) Act. That Act introduced new offences of intentionally and recklessly causing serious injury ‘in circumstances of gross violence’.[18] Section 15B(1) provides that:

A person must not, without lawful excuse, recklessly cause serious injury to another person in circumstances of gross violence.
Penalty: Level 4 imprisonment (15 years maximum).

[18]The offences are now contained in ss 15A and 15B of the Act.

The creation of these offences followed recommendations made by the Sentencing Advisory Council in its report ‘Statutory Minimum Sentences for Gross Violence Offences’.[19] In the Second Reading Speech, the then Attorney-General said that the Government had carefully considered the Council’s report and had adopted many of its recommendations.[20] Relevantly for present purposes, the introduction to the Council’s report set out the meaning of ‘recklessness’ laid down in Campbell:

The element of recklessness will be satisfied for recklessly causing serious injury if the prosecution proves beyond reasonable doubt that the accused foresaw that his or her actions would probably cause serious injury and that he or she was indifferent as to whether or not serious injury would actually result.[21]

[19]Sentencing Advisory Council, Statutory Minimum Sentences for Gross Violence Offences (Report, October 2011).

[20]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5550 (Robert Clark, Attorney-General).

[21]Sentencing Advisory Council, Statutory Minimum Sentences for Gross Violence Offences (Report, October 2011) [1.20].

In the same report, the Council considered whether the same minimum sentence should apply to both the intentional and the reckless versions of the gross violence offence. The Council recommended that the statutory minimum should be the same:

Two offences with different levels of culpability may have the same minimum sentence, provided that the minimum sentence is not disproportionate to the least serious example of offending for the offence with the lesser form of culpability.
In other words, if Parliament considers that the minimum sentence is proportionate to the level of culpability present in the reckless form of gross violence offending, then it is immaterial that the same minimum sentence applies to the intentional form.[22]

[22]Ibid [2.209]–[2.210] (emphasis added).

Parliament thus re-enacted the s 17 phrase ‘recklessly cause serious injury’ with the addition of the phrase ‘in circumstances of gross violence’. Given that it did so on the basis of recommendations expressly founded on the Campbell interpretation of ‘recklessness’, there could hardly be a stronger basis for applying the ‘re-enactment presumption’.

Thirdly, as Priest JA has described, numerous offence provisions have been created in the years since Campbell which employ the terms ‘reckless’ and ‘recklessly’. The presumption would also apply, in our view, to those enactments, both individually and collectively. Given the significance of ‘recklessness’ as a concept in criminal law and the frequency of its use in the creation of these criminal offences, it is certainly ‘no fiction’ to attribute knowledge of the settled meaning of ‘recklessness’ to the responsible Ministers and their Departments ‘and, through them, the Parliament’.[23]
[23]Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309, 347 [81]; [2004] HCA 40 (McHugh J).

Ordinarily, as in Alcan, the ‘re-enactment presumption’ is called in aid as one of several considerations said to bear on a question of interpretation before the court.[24] Here, the position is a little different. The AP certainly submits that this Court should apply the presumption if it embarks on the task of interpreting the ‘re-enacted’ s 17. But the submission goes further, contending that the repeated legislative endorsement of the Campbell interpretation is a reason for this Court to decline the Director’s invitation to revisit the Campbell decision.
[24]See, eg, Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489, 500–503 [11]–[16]; [2015] HCA 10 (French CJ, Hayne, Kiefel, Gageler and Keane JJ); WorkPac Pty Ltdv Skene (2018) 264 FCR 536, 561 [107], 565–6 [127]; [2018] FCAFC 131 (Tracey, Bromberg and Rangiah JJ).

According to the AP’s submission, these circumstances engage the fourth of the considerations identified in John as bearing on whether a previous decision should be re-opened. That is, this Court should not revisit the decision in Campbell because the decision has, over a long period and in a range of different ways

been independently acted on in a manner which militate[s] against reconsideration.[25]

[25]John (1989) 166 CLR 417, 438–9; [1989] HCA 5 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ).

We would uphold that submission. In our view, the successive legislative endorsements of Campbell provide a very strong reason for this Court to decline the Director’s invitation to question its correctness. Parliament having repeatedly approved the Campbell test, any decision to change the test is properly to be regarded as a matter for Parliament.

That conclusion is reinforced by a further consideration to which we now turn. Put shortly, for this Court to affirm the proposition advanced by the Director would be to go well beyond the judicial function of interpreting the meaning of the word ‘recklessly’ in s 17.

The ‘unreasonableness’ qualification

Early in his submissions, senior counsel for the Director posited the example of

a person who does an act with no social utility, such as in this particular case kicking another to the head, where they foresee the possibility of an unlawful result or circumstance.

On the current state of the law as laid down in Campbell, counsel submitted, such a person would escape criminal liability under s 17 if he/she was aware of the possibility, but not the probability, of serious injury. This could not be viewed as a satisfactory state of affairs, it was submitted, given that
by any proper estimation of the term or understanding of that term [recklessness], such a person, foreseeing the possibility of such a result and going ahead anyway, is behaving reckless[ly].

The history of judicial expositions of the meaning of recklessness reveals, however, that it is simply not possible to be categorical about its meaning. On the contrary, as the speech of Lord Bingham in R v G[26] demonstrates, there have over the years been dramatic divergences of view and differences of opinion at the highest judicial levels about the meaning to be attributed to the concept of recklessness in criminal law, both generally and in particular statutory contexts. And the question continues to be debated in the United Kingdom, both in academic work and in law reform inquiries.[27]
[26][2004] 1 AC 1034; [2003] UKHL 50 (‘G’).
[27]See Cath Crosby, ‘Recklessness — The Continuing Search for a Definition’ (2008) 72 Journal of Criminal Law 313; Stavros Demetriou, ‘Not Giving up the Fight: A review of the Law Commission’s Scoping Report on Non-fatal Offences Against the Person’ (2016) 80 Journal of Criminal Law 188; Law Commission, Reform of Offences Against the Person (Law Com No 361, November 2015).

This issue of definitional uncertainty was identified, quite explicitly, in the 1980 report of the Criminal Law Revision Committee (UK), on which the Victorian legislation introducing the offences of intentionally causing serious injury and recklessly causing serious injury was based. Recommending the replacement of the word ‘maliciously’ by the ‘clearer language’ of intention and recklessness, the Committee said:

But there is no unanimity as to the ordinary meaning of the words intention and recklessness in the criminal law. We have accordingly found it necessary for the purpose of our review to define what we mean by them in relation to offences against the person.[28]

[28]United Kingdom, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) 3 [6].

The Committee emphasised that, whereas intentional causing of harm could be prohibited absolutely, causing harm recklessly could not. There was a crucial qualification:

The lawfulness of taking a risk of causing harm must always depend on proof that it was unreasonable to take the risk.[29]

The Committee elaborated the point further:
A person who does not want the particular result to follow, and does not know that it will follow, from his act, may yet realise that the result is highly probable, or probable, or possible. Such a person may be held to have caused the result recklessly if the risk that he knew he was taking was unreasonable.[30]

[29]Ibid 4 [8].

[30]Ibid 5 [12].

The Committee’s proposed definition of recklessness was expressly based on the approach adopted by the Law Commission in its 1978 report on the Mental Element in Crime.[31] The Committee said:

The essential elements which in our opinion should be included in the statutory definition of recklessness are (i) that the defendant foresaw that his act might cause the particular result and (ii) that the risk of causing that result which he knew he was taking on was, on an objective assessment, an unreasonable risk to take in the circumstances known to him.[32]

[31]Law Commission, Report on the Mental Element in Crime (Law Com No 89, 1978).

[32]United Kingdom, Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) 5 [12].

As Priest JA has noted, the proposition of law put forward by the Director for this Court’s endorsement was amended during the hearing by the insertion of the words ‘having regard to the social utility of the act’. Asked by the Court to explain the relevance of considerations of social utility to criminal liability for the offence of recklessly causing serious injury, senior counsel for the Director said that he relied on what was said in paras 48 and 49 of Aubrey (set out below).

What was contemplated, counsel submitted, was that:

Concepts of social utility … would act as a brake … upon mere possibility [of serious injury] being established in each case.

In other words, counsel explained, if an accused person had been aware of the possibility of serious injury and had proceeded nonetheless, the question of criminal liability for recklessly causing serious injury would depend — at least in part — on whether the person’s conduct was judged to have had any social utility. He submitted that juries could be trusted to make a judgment of that kind in the circumstances of a particular case.

It is necessary, therefore, to set out in full the paragraphs from Aubrey on which the Director’s submission rested. The plurality stated:

Counsel for the appellant referred to some more recent decisions in England in which it has been held that, for an accused to be convicted of recklessly causing grievous bodily harm, it is necessary to show not only that the accused foresaw the possibility of harm and proceeded nonetheless, but also that it was unreasonable for the accused to take that risk in so proceeding. It was submitted that this development represents an advance in the law relating to reckless conduct which should lead this Court to replace the requirement of foresight of possibility with a test of foresight of probability.
That submission should be rejected. Of course, the reasonableness of an act and the degree of foresight of harm required to constitute recklessness in so acting are logically connected. So much is implicit in the notion of an accused's willingness to ‘run the risk’ or to proceed notwithstanding a risk. As Glanville Williams observed, therefore, if the act in question is devoid of social utility, a jury might properly and more readily consider that foresight of a mere possibility of harm is enough to amount to recklessness. But, if the act in question has a slight degree of social utility, a jury might properly consider that foresight of something more than a mere possibility of harm is required. Thus, for example, in Welch, where the accused thrust the handle of a hay fork into the body of a mare for no better reason than ‘the gratification of his own depraved tastes’, foresight of the mere possibility that the mare might be killed was sufficient to render the accused’s killing of her reckless and therefore malicious. Similarly, in R v Cunningham, where the accused ripped a gas meter from the mains in order to steal money from within, his foresight of the mere possibility that gas might escape from the mains into an adjacent room and injure the inhabitant was sufficient to render the consequent injury of the inhabitant reckless and therefore malicious. By contrast, as Glanville Williams posited, the act of driving a motor car will be foreseen by everyone who drives to be productive of a possibility that it could result in death or bodily injury. But, because driving is considered to be an activity of considerable social utility, a killing or injury which results from driving is not judged to be reckless by reason only of foresight of the mere possibility of injury. So also, anyone who plays a contact sport is likely to foresee the possibility that another player could be seriously injured in the course of the game. But, because of the social utility of the activity, the infliction of such injury is not judged to be reckless by reason only of the foresight of the mere possibility of it.[33]

[33]Aubrey (2017) 260 CLR 305, 329–30 [48]–[49]; [2017] HCA 18 (Kiefel CJ, Keane, Nettle and Edelman JJ) (emphasis added) (citations omitted).

Of particular significance for present purposes is the Court’s statement that:

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

It followed from this, senior counsel accepted, that whether a person was convicted of recklessly causing serious injury might depend on a judgment being made — by the jury — of the reasonableness of that person having proceeded to take the risk. And reasonableness would be assessed taking into account the social utility of the act.

Counsel emphasised that it was ‘the approach propounded in Aubrey’s case’ that the Director was wishing to advance. As Kaye JA pointed out in argument, however, no direction regarding reasonableness or social utility has ever been given to a Victorian jury dealing with a charge of recklessly causing serious injury. Juries are simply directed to apply the Campbell interpretation in deciding whether the element of recklessness has been proved.

To accept the amended proposition advanced by the Director would require this Court — in effect — to create a new model direction for juries, embodying a reasonableness test which reflected paras 48 and 49 of Aubrey. For the Court to do so would amount to judicial legislation, as what is contemplated amounts to a new definition of recklessness, one which incorporates an express unreasonableness qualification. So much is clear from the definition proposed by the Criminal Justice Revision Committee, and from that adopted by the House of Lords in G.[34]
[34]G [2004] 1 AC 1034, 1057 [41] (Lord Bingham).

As it was refined in the course of argument, the Director’s proposition is not simply that the word ‘probably’ in the Campbell formulation be replaced by the word ‘possibly’. Rather, her contention is that a person should be liable to conviction for recklessly causing serious injury if:

(c) the person foresaw that his/her act might cause serious injury; and

(d) the risk of causing serious injury was, on an objective assessment of the circumstances including the social utility of the act, an unreasonable risk for him/her to take.

Thus understood, the Director’s proposition closely resembles the definition which was recommended by the Criminal Law Revision Committee in 1980. As Priest JA points out, the Victorian legislature chose to adopt the Committee’s recommendation that there be new offences of intentionally causing serious injury and recklessly causing serious injury but did not adopt its recommended definition of recklessness. It would plainly be a large step for this Court to amend the law of recklessness by enunciating a definition which the Parliament itself chose not to enact.[35]
[35]Aubrey (2017) 260 CLR 305, 329–30 [55]; [2017] HCA 18 (Bell J).

When and how a ‘reasonableness’ element is appropriately included in the definition of a criminal offence is a question of policy, not of interpretation. Given that criminal responsibility ordinarily rests on what an accused person actually knew or intended or foresaw, rather than on what a reasonable person would have known or intended or foreseen, the introduction of an objective test is always a matter requiring careful consideration.[36]
[36]G [2004] 1 AC 1034, 1055 [33] (Lord Bingham).

That is particularly so in the present context. As senior counsel for the Director properly acknowledged, the change which is sought in the definition of recklessness — from awareness of the probability of serious injury to awareness of the possibility of serious injury — would expand the potential scope of criminal liability under s 17. It would, in all likelihood, be a very substantial expansion. That being so, great care would be required to define the matters which a jury should take into account in deciding whether, in the circumstances, it was unreasonable for the accused person to have taken the risk of causing serious injury.

That this is a matter for the legislature is immediately apparent when regard is had to the provisions governing the offence of culpable driving causing death. Subsection 318(2) of the Act defines four circumstances which can constitute culpable driving. Relevantly, s 318(2)(a) provides as follows:

(2)For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
(a)recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving.[37]

[37](Emphasis added).

As can be seen, the legislature has here defined the word ‘recklessly’ in terms which require proof not just that the accused person consciously disregarded ‘a substantial risk’ but that this conscious disregard was ‘unjustifiable’. In other words, proof of recklessness for this purpose would require the prosecution to establish that there was no reasonable justification for the accused’s conscious disregard of risk. There is obviously a close similarity between this ‘unjustifiability’ qualification and the Director’s proposed ‘unreasonableness’ qualification.

The point is further illustrated by the provisions which define the ‘gross violence’ offences referred to earlier. Section 15A of the Act gives a definition of ‘circumstances of gross violence’, the relevant part of which is in these terms:

(2)For the purposes of subsection (1), any one of the following constitutes circumstances of gross violence—
(a)the offender planned in advance to engage in conduct and at the time of planning—
(i)the offender intended that the conduct would cause a serious injury; or
(ii)the offender was reckless as to whether the conduct would cause a serious injury; or
(iii)a reasonable person would have foreseen that the conduct would be likely to result in a serious injury.[38]

[38](Emphasis added).

The ‘reasonable person’ alternative in s 15A(2)(a)(iii) is not, of course, of the same character as the unreasonableness qualification for which the Director contends. But the common feature is the introduction of an objective element into the assessment of criminal liability. If the Director’s proposal were to be adopted, the question would be not whether the accused was aware that it was unreasonable in the circumstances to take the risk of causing serious injury but whether — viewed objectively — it was unreasonable to have done so. Whether that test should be introduced is a matter for Parliament to decide.

A different approach again is illustrated by s 201A of the Act, which creates the offence of intentionally or recklessly causing a bushfire. Relevantly, s 201A(2) provides that the circumstances in which a person is not to be taken to be reckless as to the spread of a fire include the following:

(a)the person caused the fire in the course of carrying out a fire prevention, fire suppression or other land management activity; and
(b)at the time the activity was carried out—
(i)there was in force a provision made by or under an Act or by a Code of Practice approved under an Act, that regulated or otherwise applied to the carrying out of the activity and the person in carrying out that activity acted in accordance with the provision; and
(ii)the person believed that his or her conduct in carrying out the activity was justified having regard to all of the circumstances.[39]

[39](Emphasis added).

Here, the qualification on recklessness is made to depend not on an objective assessment of the unreasonableness of taking the risk but upon the subjective belief of the accused person that his/her conduct ‘was justified having regard to all of the circumstances’. In the present context, the legislature might decide that, if the test

for recklessness were changed to awareness of the possibility of serious injury, a defence should be available on the basis of the accused person’s honest belief that their conduct was justified. As we have said, decisions of that kind are for the legislature.

Priest JA:

Introduction

For almost a quarter of a century, this Court’s decision in Campbell[40] has stood for the proposition that, in order for a person to be guilty of recklessly causing serious injury under s 17 of the Crimes Act 1958 (‘the Act’), the prosecution must establish that he or she foresaw that serious injury probably — not possibly — would result from the act (or omission) which in fact caused serious injury.
[40]R v Campbell [1997] 2 VR 585 (‘Campbell’). Judgment was delivered on 22 August 1995.

During that time, the principle established by Campbell has been applied daily in the criminal jurisdiction of all courts in the hierarchy. As far as I can tell, in the years since it was decided there has been no academic or judicial criticism of its application and operation — the Director’s counsel could find none — let alone any suggestion that it needed to be reconsidered.

Notwithstanding the apparent general level of satisfaction with Campbell, the Director of Public Prosecutions has now referred a ‘point of law’ to this Court for its opinion, contending that the decision should no longer be followed. The Director asserts that this Court should declare the law to be that serious injury is caused recklessly if the accused ‘had foresight of the possibility of relevant consequences and proceeded nevertheless’.[41]
[41]The Director also contended that regard must be had to the ‘social utility’ of the relevant act. See [59] below.

The Director’s reference is brought pursuant to s 308 of the Criminal Procedure Act 2009 (‘CPA’), which, so far as relevant, provides:

308 DPP may refer point of law to Court of Appeal
(1) If a person is acquitted in respect of all or any charges—
(a) in a trial on indictment before the Supreme Court or the County Court; or
(b)on an appeal to the County Court from the Magistrates’ Court or, if the Magistrates’ Court was constituted by the Chief Magistrate who is a dual commission holder, to the Trial Division of the Supreme Court—

the DPP may refer to the Court of Appeal any point of law that has arisen in the proceeding.
(2) The Court of Appeal is to consider a point of law referred to it under subsection (1) and give its opinion on it.

The reference arose out of a trial conducted in the County Court in August 2019 (‘the trial’) in which the accused was acquitted of recklessly causing serious injury.[42] By way of very brief summary, the accused was charged following his participation in a fight with another adult male in the streets of Melbourne in February 2017. In the course of the fight, punches and kicks were traded between the two men, culminating in the accused kicking his adversary to the head — he claimed it was in self-defence — causing the other man to fall to the ground and suffer serious injury to the skull and brain.
[42]The accused was also found not guilty of intentionally causing serious injury under s 16 of the Act.

Prior to his charge, the trial judge asked counsel whether or not any directions to the jury were sought in conformity with Aubrey.[43] After seeking instructions, the prosecutor made the following submission:

Your Honour I’ve been asked by the Director and her senior advisors to make the following submissions to the court regarding Aubrey v The Queen and the submissions are as follows. We ask the court to charge in accordance with Aubrey v The Queen [(2017) 260 CLR 305]. The reason we say that is because the court made a distinction between recklessness in murder and recklessness in other offences. And held that the reasoning in The Queen v Crabbe [(1985) 156 CLR 464] … was limited to reckless murder where the intent for reckless murder had to effectively be the same as for murder. In so far as R v Campbell [1997] 2 VR 585 applies the reasoning in Crabbe to other offences, that decision is wrong. Given the High Court in Aubrey expressly confined its decision to the NSW legislation under consideration, we accept that Your Honour is probably bound by the Court of Appeal in Campbell.

[43]Aubrey v The Queen (2017) 260 CLR 305 (‘Aubrey’).

The judge declined the prosecution’s invitation to charge the jury in accordance with Aubrey. In so doing, the judge observed (among other things):

The learned prosecutor in his submissions to me did not go into any detail. He submitted that the decision in Campbell is wrong, but submitted that I was ‘probably bound’ by the decision in Campbell.
In Campbell all three judges of the Court of Appeal held that in respect of an offence under s 17 Crimes Act 1958, that is, an offence of recklessly causing serious injury, applying Crabbe and R v Nuri [1990] VR 641 juries should be instructed, in effect, that conduct will be reckless if there is foresight on the part of the accused of the probable consequences of his actions. This is consistent with the directions that are usually given to juries in the State of Victoria, and which are reflected in the Judicial College of Victoria’s Charge Book.
The learned prosecutor was not able to point to any feature in the present case that would distinguish it from the principle in Campbell but stated, in addition to Campbell being wrong, that the Director of Public Prosecutions wished to reserve its [sic] position on this point of law. [Defence counsel] submitted that the jury should be instructed that the offence of recklessly causing serious injury requires proof of foresight of the probability of serious injury, consistent with what the Court of Appeal said in Campbell.
In my opinion, I am bound to follow the Court of Appeal decision in Campbell. It is a decision which deals directly with the charge under consideration in this case, namely, a charge pursuant to s 17 Crimes Act 1958 (Vic) of recklessly causing serious injury. I intend to instruct the jury accordingly.

As amended during the hearing, the ‘point of law’ referred to the Court for its opinion is formulated as follows:

Consistent with the decision of the High Court in Aubrey the correct interpretation of ‘recklessness’ for offences other than murder (and, in particular, the offence of recklessly causing serious injury) is that an accused had foresight of the possibility of relevant consequences and proceeded nevertheless having regard to the social utility of the act.^[[44]] Further, that the approach in Campbell requiring proof of foresight of the probability, or likelihood, of (serious) injury is inconsistent with Aubrey and should no longer be followed.

[44]The amendment consisted of introducing the words underlined.

In my opinion, for the reasons that follow, nothing said in Aubrey compels the conclusion that Campbell should be overruled. The central contention embodied in the point of law referred to this Court must be rejected. Campbell should continue to be followed. Thus, in order for a person to be convicted of recklessly causing serious injury, it is necessary for the prosecution to establish that, when causing serious injury by his or her act (or omission), the accused foresaw the probability that his or her act (or omission) would cause serious injury.

Legislative history

By virtue of s 17 of the Act

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.

Section 17 was one of a suite of provisions introduced into the Act by the Crimes (Amendment) Act 1985 (No 10233) (‘the amending Act’),[45] with operation from 24 March 1986.
[45]Section 8(1) of the amending Act repealed ss 11 to 13, and s 8(2) substituted subdivisions (4) to (7) of Division 1 of Part I of the Act (ss 15 to 43).

The practical effect of the amending Act was to abolish a number of offences borrowed from the English Offences Against the Person Act 1861 — principally wounding with intent to do grievous bodily harm,[46] maliciously inflicting grievous bodily harm,[47] malicious wounding[48] and assault occasioning actual bodily harm[49] — the legislative aspiration being to replace them with new, simplified offences. Of particular importance, the new ss 15 to 18 created the offences of intentionally causing serious injury (s 16); recklessly causing serious injury (s 17); and intentionally or recklessly causing injury (s 18). Section 15 provided definitions of both injury and serious injury.[50]
[46]Formerly s 17.
[47]Formerly s 19A.
[48]Formerly s 19.
[49]Formerly s 37.
[50]In its original form, s 15 provided:
Definitions
15. In this sub-division—
“Injury” includes unconsciousness, hysteria, pain and any substantial impairment of bodily function.
“Serious injury” includes a combination of injuries.

In the Second Reading Speech to the Crimes (Amendment) Bill, the Minister for Police and Emergency Services described the aim of the amending Act:[51]
[51]Parliamentary Debates, Legislative Assembly, 22 October 1985, 1040 (emphasis added).

THE BASIC OFFENCES—SECTIONS 15 TO 18
It is proposed to replace the current collection of general offences phrased in various ways using such words as wounding, assaulting and causing harm with three offences, on a scale of seriousness. These offences are:
1. causing serious injury intentionally;
2. causing serious injury recklessly; and
3. causing injury either intentionally or recklessly.
This achieves both the simplification of the offences themselves and, by the provision of a graded structure, a simplification of the relationship between them. In general these three offences are designed to replace section 17, malicious wounding with intent to do grievous bodily harm; section 19A, malicious infliction of grievous bodily harm, and section 19, malicious wounding.
The approach taken in the Bill is where serious injury is inflicted there is a sufficient difference in moral turpitude — sufficient to justify distinct defences — between one who does so intentionally in the sense of desiring to cause serious injury and one who does so recklessly — aware that an injury might result to another but goes ahead anyway. Where less serious injuries are involved the difference did not justify different offences.

The Minister also made it clear that

Many of these proposals are based on the fourteenth report of the Criminal Law Revision Committee of England and Wales published in 1980.

Not much interpretive light was shed by the relevant Explanatory Memorandum, which contained the following:

Clause 8 repeals sections 11, 12 and 13 of the Crimes Act, and replaces sub-divisions 4 to 7 of the Crimes Act with a new sub-division 4.
The proposed section 15 defines the concepts of “injury”, and “serious injury”.
The proposed section 16 defines the offence of intentionally causing serious injury.
The proposed section 17 defines the offence of recklessly causing serious injury.
The proposed section 18 defines the offence of intentionally or recklessly causing injury.
These three offences are intended to comprise a ladder of seriousness and will be the core of offence [sic.] against the person.

In the report of the Criminal Law Revision Committee, referred to by the Minister,[52] it was recommended that offences of inflicting grievous bodily harm with intent, inflicting grievous bodily harm and assault occasioning actual bodily harm be replaced with offences of (a) causing serious injury with intent to cause serious injury; (b) causing serious injury recklessly; and (c) causing injury recklessly or with intent to cause injury.[53] When discussing intention and recklessness, the Committee observed:[54]

In our recommendations ‘intention’ and ‘recklessness’ relate to a particular result of a person’s conduct. By intention we mean the state of mind of a person (i) who wants the particular result to follow from his act or (ii) who, though he may not want the result to follow, knows that in the ordinary course of things it will do so. …
A person who does not want the particular result to follow, and does not know that it will follow, from his act, may yet realise that the result is highly probable, or probable, or possible. Such a person may be held to have caused the result recklessly if the risk that he knew he was taking was unreasonable. We agree that the concept described by the Law Commission is the right one to apply in the definition of offences against the person. They express the concept that they have in mind as follows:
In our view, for the purposes of criminal liability, a person should not be regarded as reckless as to a result of his conduct unless at the time of that conduct he foresaw that that result might occur and in the judgment of a reasonable man with that person’s appreciation of the degree of the risk involved it would have been unreasonable to pursue that conduct. The judgment is to be made by reference to objective criteria in so far as the question to be answered is not what the defendant thought reasonable but what a reasonable man would think reasonable; it may, however, involve a certain subjective element in so far as the judgment of the reasonable person has to be made on the basis of any actual appreciation by the defendant of the degree of the risk involved.
The essential elements which in our opinion should be included in the statutory definition of recklessness are (i) that the defendant foresaw that his act might cause the particular result and (ii) that the risk of causing that result which he knew he was taking was, on an objective assessment, an unreasonable risk to take in the circumstances known to him. As with intention, the court or jury will be entitled to take into account the probability of the result and might infer that he appreciated the risk of bringing it about by his acts. …

[52]Criminal Law Revision Committee, Fourteenth Report, Offences against the Person.

[53]Ibid 68–9.

[54]Ibid 4–6 (footnotes omitted; emphasis added).

Significantly, although the Criminal Law Revision Committee had recommended that there be a statutory definition of recklessness, and although the amending Act provided definitions of injury and serious injury, no attempt was made to define the term recklessly, employed in both the new ss 17 and 18.

Campbell and the cases that underpin it

There can be little doubt that when in Campbell the Court postulated that, for a person to be guilty of recklessly causing serious injury, the prosecution must establish that he or she foresaw the probability that serious injury would result from the act (or omission) causing serious injury, the Court’s thinking was influenced significantly by the earlier cases of Crabbe[55] and Nuri.[56] It is therefore necessary to turn first to those cases.
[55]Crabbe v The Queen (1985) 156 CLR 464 (‘Crabbe’).
[56]R v Nuri [1990] VR 641 (‘Nuri’).

Crabbe

Crabbe was a case where common law rules governed the mental element necessary to constitute the crime of murder.

In Crabbe, the appellant had driven a prime mover and trailer through the wall of a motel and into the bar, killing a number of people. At the appellant’s trial for murder, the trial judge directed the jury that they could convict him if satisfied beyond reasonable doubt that he ‘foresaw the possibility that there might be some people in the bar, but didn’t take any step that might have been available to him to find out whether there were any people there or not before he went ahead and drove the vehicle in’. On appeal, the High Court held that it was a material misdirection to instruct the jury that they could convict if satisfied beyond reasonable doubt that the accused foresaw the possibility that there might be people in the bar. The Court (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ) said:[57]

It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder ... It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.
[57]Crabbe, 469–70 (emphasis added).

Nuri

Nuri was the first occasion upon which an appellate court in this State was called upon to construe s 22 of the Act, which created the offence of reckless conduct endangering life, itself part of the suite of provisions introduced by the amending Act. Applying Crabbe, the Court of Criminal Appeal (Young CJ, Crockett and Nathan JJ) came to the view that, for the purposes of s 22, a person engages in conduct recklessly if he or she foresees the probable consequences of his or her actions. The Court said:[58]
[58]Nuri, 643.

That offence was created by the Crimes (Amendment) Act 1985. It has no predecessor. It is expressed in these terms:
22. A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.

Its enactment was designed to create a general endangerment offence to replace a large number of offences that previously were to be found in the Crimes Act. Sections repealed were ss 17, 21, 22, 29, 32, 197(2) and 197(5). The problem is that, in an endeavour to subsume all life-endangering behaviour in one offence, the very generality of that offence has given rise to difficulties of construction and interpretation.
For example, does the expression ‘may have placed’ mean that the impugned conduct had the potential to endanger life; or does it mean that that conduct was such that it possibly did place another in danger of death? Hansard’s record of the debate upon the second reading of the Bill suggests it was the former conduct against which the section was designed to strike. …
The expression ‘recklessly’ may not give rise to difficulty. It has for long been employed in statutory offences. Presumably conduct is relevantly reckless if there is foresight on the part of an accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur: see R v Crabbe (1985) 156 CLR 464; 59 ALR 417. …[59]

[59]Although not relevant for present purposes, the Court went on to suggest that, when considering the offence created by s 22, there was merit in drawing an analogy between it and manslaughter by unlawful and dangerous act. The Court made it plain that the offence created by s 22 has both subjective and objective elements and said (at 644):

… An analysis of the components of the offence of endangerment suggests that it is the intent to engage in the relevant conduct which must be established subjectively. The logical interpretation of the elements of the offence does, it seems to us, point to an analysis of the conduct to determine its endangerment to life qualities being tested objectively. The adoption of directions to this effect on the question of intent is not only sensible but we think should avoid difficulties which we could envisage arising if the judge were required to instruct the jury on the basis that an objective test as to intent or realisation had no part to play in proof of commission of the offence. This conclusion which commends itself to us is, we think, consistent with modern developments in this area of the criminal law: see, e.g. Nydam v R [1977] VR 430, at pp 439–40. As no such direction was given the conviction and sentence on the second count must be set aside.

In positing that recklessly as an element of the offence created by s 22 mirrored the common law concept of recklessness in reckless murder, beyond citing Crabbe the Court did not explicitly articulate any basis for that presumption. It may, however, readily be appreciated why this is so. Those responsible for drafting had made no attempt to define recklessly. They had, however, specifically disavowed use of the intent element maliciously which had permeated the repealed provisions, and, so it might be thought, thereby implicitly abandoned the learning surrounding that term.[60] That being so, as a practical reality the Court was faced only with two choices: first, give the term its ordinary meaning — which lacks specificity as to the state of mind required and therefore would have been functionally unworkable[61] — or, secondly, give it a meaning consistent with recklessness as understood following Crabbe. Where those two constructions were open, it is natural that the Court sub silentio would prefer a meaning consonant with the common law.[62]
[60]By way of example, for the purposes of malicious wounding under the repealed s 19 of the Act — the text of which is set out at fn 92 below — in R v Lovett [1975] VR 488, 494, Harris J defined maliciously for the purposes of that offence (emphasis added):
The requisite foresight can be established either by proof that the accused actually intended to cause some physical harm to some person, or by proof that, foreseeing that some physical harm to some person might result, he acted recklessly, indifferent to whether such harm was caused or not.
[61]For example, the Macquarie Concise Dictionary (6^thed.) defines the adjective ‘reckless’ as follows:
1. utterly careless of the consequences of action; without caution: a reckless driver. 2. characterised by or proceeding from such carelessness: reckless extravagance. —phr. 3. reckless of, careless of the consequences to: reckless of life and limb. … —recklessly, adv, —recklessness, n.
[62]See Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475, 487 (Stephen J); Balog v Independent Commission Against Corruption (1990) 169 CLR 625, 635–6 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

Campbell

Crabbe and Nuri were, as I have indicated, pivotal to this Court’s formulation of principle in Campbell.

In Campbell, the applicant faced trial on a presentment which contained three counts: attempted murder (count 1); intentionally causing serious injury (count 2); and recklessly causing serious injury (count 3). The applicant was alleged to have fired a gun, injuring one of three men who became involved in an argument between the applicant and his female companion. A jury acquitted the applicant of counts 1 and 2, but found him guilty of recklessly causing serious injury. At an early stage of his charge to the jury, the trial judge directed the jury that, to be guilty of recklessly causing serious injury, the applicant must have fired the gun knowing that serious injury would probably occur. Towards the end his charge, however, the judge said that, for guilt to be established the applicant must be shown to have fired the gun knowing that serious injury might occur and taking the risk of doing so.

Although he differed in the ultimate result, Phillips CJ accepted that the trial judge’s second direction was a misdirection. He said that he

would accept that misdirection occurred when the learned judge, dealing for a second time with the count of recklessly causing serious injury, in the context of a summary of issues, told the jury that to be guilty the applicant must have fired the gun ‘knowing that serious injury might occur and taking the risk of doing so’. A correct direction would have substituted the words ‘will probably’ for ‘might’: R v Crabbe (1985) 156 CLR 464; R v Nuri [1990] VR 641.[63]

[63]Campbell, 586.

In their joint reasons, Hayne JA and Crockett AJA were also of the opinion that the judge’s second direction was wrong. They summarised the respondent’s submissions as follows:[64]

The Crown concedes that the prevailing practice in relation to s 17 [recklessly causing serious injury] and related sections of the Crimes Act 1958 is to direct a jury as to foreseeability that the injury would probably occur. Further, it concedes that it is improbable that it was intended that the term ‘recklessly’ in s 17 of the Crimes Act 1958 (the section with which this count was concerned) would have a different meaning from that ascribable to the same term in other sections of the Crimes Act 1958.
The Crown however has suggested (and it was no more than that) that support for the correctness of the trial judge’s second direction might be found in the second reading speech in the Legislative Assembly, on 22 October 1985 in which the Minister referred to ‘an injury that might result’.^[[65]] ...

[64]Ibid 592.

[65]See [64] above.

Hayne JA and Crockett AJA said that ‘there is little doubt that the trial judge misdirected the jury’.[66] And having cited the passage from Crabbe set out above,[67] they observed:[68]

Whilst that citation is from a case specifically regarding murder, the same principles are relevant. Indeed the Court of Criminal Appeal in R v Nuri [1990] VR 641 said at 643:
Presumably conduct is relevantly reckless if there is foresight on the part of the accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur.
In that case the court was considering s 22 of the Crimes Act 1958 which involves conduct endangering life. Crabbe’s case was referred to by the Court of Criminal Appeal.
The offence of which the applicant was found guilty was laid under s 17 of the Crimes Act. That section is one of a group of sections which include s 22. It cannot be supposed that the legislature intended that there be, or that the courts would interpret the relevant sections so as to produce, a different requirement concerning the extent of ‘the intent’ with regard to each of those sections.
It should also be said that the Crown cited a number of cases that favour the test of ‘might’ or ‘possibility’ over the ‘probability’ test for intent: see R v Smyth [1963] VR 737; R v Kane [1974] VR 759; R v Lovett [1975] VR 488. These are relatively old cases and concerning the now repealed offences of unlawful and malicious wounding or unlawful and malicious infliction of grievous bodily harm. The spirit of the decision in Crabbe indicates that such cases should not be applied to the offence of recklessly causing injury. Nuri used a test of ‘probability’ in a kindred section to this case and it must be the case that all relevant sections in the group bear the same interpretation.

[66]Campbell, 592.

[67]See [71] above.

[68]Campbell, 593.

Several propositions may be drawn from the joint reasons in Campbell. First, as in Nuri, Hayne JA and Crockett AJA considered that, although Crabbe concerned reckless murder, for the purposes of other offences involving reckless conduct ‘the same principles are relevant’. Secondly, their Honours were of the view that the term recklessly should bear a consistent meaning throughout the Act. Thirdly, invoking ‘the spirit of the decision in Crabbe’, they were of the opinion that the older cases concerned with the repealed offences — which favoured the test of ‘might’ or ‘possibility’ over the ‘probability’ test — should not be applied to the new offence of recklessly causing injury (or its kin).

It also seems plain from Campbell that, in the decade or so preceding it — following the introduction of the amending Act — ‘the prevailing practice’ in relation to recklessly causing serious injury and related offences had been to direct juries ‘as to foreseeability that the injury would probably occur’. Viewed in that light, the test for recklessness explicitly endorsed in Campbell may be seen to have enjoyed a pedigree spanning more than three decades.

Notwithstanding that pedigree, however, the Director now contends — seizing, as I have said, on aspects of the High Court’s decision in Aubrey — that the principle recognised in Campbell should be consigned to the ash heap of history. It is therefore necessary to determine whether anything said in Aubrey affects the validity of the Campbell test.

Aubrey

The appellant in Aubrey had been diagnosed as HIV (‘human immunodeficiency virus’) positive. Despite that diagnosis, the appellant engaged in unprotected sexual intercourse with the complainant over several months, resulting in the complainant contracting HIV. The appellant was charged, first, with maliciously causing the complainant to contract a grievous bodily disease, with the intent of causing the complainant to contract that disease, contrary to s 36 of the Crimes Act 1900 (NSW) (count 1); and, secondly, with maliciously inflicting grievous bodily harm, in contravention of s 35(1)(b) of that Act (count 2). The prosecution case was that the appellant engaged in unprotected sexual intercourse with the complainant in circumstances where the appellant had been diagnosed as, and therefore knew that he was, HIV positive. There was no allegation that the appellant applied any direct and intentional violence to the complainant. At trial, a jury acquitted the appellant of the first count, but convicted him of the second.

Section 35 of the Crimes Act 1900 (NSW) provided that: ‘Whosoever maliciously by any means … inflicts grievous bodily harm upon any person’, is liable to imprisonment for seven years. Grievous bodily harm was defined in s 4(1) as including, unless the context or subject matter otherwise indicated or required, any permanent or serious disfiguring of the person; and for the purposes of s 35 (and other provisions) s 5 defined Maliciously as follows:[69]

5 Maliciously
Maliciously: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act ...

[69]Emphasis added.

One of the questions for determination by the High Court in Aubrey was as follows:[70]

(2) Is it sufficient to establish that an accused acted recklessly within the meaning of s 5 of the Crimes Act, and thus maliciously within the meaning of that section and s 35, for the Crown to establish that the accused foresaw the possibility (as opposed to the probability) that the act of sexual intercourse with the other person would result in the other person contracting the grievous bodily disease?

[70]Aubrey, 312 [6].

Answering that question, the High Court held that, in order to prove that the accused acted recklessly within the meaning of s 5, and thus maliciously within the meaning of that section and s 35, it is sufficient for the prosecution to establish that the accused foresaw the possibility (as opposed to the probability) that the act of sexual intercourse with the other person would result in the other person contracting the grievous bodily disease.

In several paragraphs in the joint judgment (Kiefel CJ, Keane, Nettle and Edelman JJ), under the heading The meaning of maliciously,[71] the meanings of malice and reckless are discussed. It was said that the definition of malice in the criminal law developed over a period so that

the definition was designed to embrace the notion of recklessness recognised in R v Welch,[72] of foreseeing the possibility of consequences and proceeding nonetheless. Until relatively recently, it has been consistently so construed.[73]

[71]Ibid 326–31 [41]–[51].

[72](1875) 1 QBD 23.

[73]See, eg, in Victoria, R v Smyth [1963] VR 737 at 738-739; R v Kane [1974] VR 759 at 760; R v Lovett [1975] VR 488 at 493.

It was then observed:[74]

More recently, it has been held in jurisdictions other than New South Wales, in relation to like provisions, that an offence of reckless infliction of grievous bodily harm necessitates proof of foresight of the probability, or likelihood, as opposed to the possibility, of grievous bodily harm.[75] For example, in R v Campbell,[76] the Victorian Court of Appeal overturned a line of previous authority[77] that it was sufficient to establish the mental element of an offence of reckless infliction of grievous bodily harm contrary to s 17 of the Crimes Act 1958 (Vic) to demonstrate foresight of the possibility of grievous bodily harm. Hayne JA and Crockett A-JA invoked what they described as ‘[t]he spirit of the decision in Crabbe’[78] as a basis to conclude that proof of an offence of reckless infliction of grievous bodily harm requires proof of foresight of a probability of injury. In R v Crabbe, this Court held[79] that for an accused to be convicted of common law murder, it was necessary for the Crown to prove at least that the accused foresaw the probability, as opposed to the possibility, of death or grievous bodily harm. In light of that, Hayne JA and Crockett A-JA reasoned[80] that it could not be supposed that the legislature intended that the courts would interpret relevant sections as producing a different requirement of recklessness for offences other than murder.
[74]Aubrey, 328 [45].
[75]See and compare R v Hoskin (1974) 9 SASR 531 at 537-538; Selig v Hayes (1989) 52 SASR 169 at 174-176; Laurie v Nixon (1991) 55 SASR 46 at 51-53; Gillan v Police (SA) (2004) 149 A Crim R 354 at 358 [19]; R v Barker (2014) 242 A Crim R 339 at 343 [21].
[76][1997] 2 VR 585.
[77]See, eg, R v Smyth [1963] VR 737 at 738-739; R v Kane [1974] VR 759 at 760; R v Lovett [1975] VR 488 at 493.
[78]R v Campbell [1997] 2 VR 585 at 593, referring to R v Crabbe (1985) 156 CLR 464.
[79](1985) 156 CLR 464 at 468-470.
[80]R v Campbell [1997] 2 VR 585 at 593.

The Director’s submissions in support of the reference

The Director’s ultimate submission was that ‘the practice of directing juries, in cases other than murder, that proof of a reckless state of mind requires proof that an accused foresaw the probability of a relevant consequence should cease’. Instead, juries ‘should be directed that what needs to be established is that an accused foresaw the possibility that the relevant consequence might occur and proceeded regardless’.

In written submissions, the Director contended that, prior to the introduction of the amending Act, charged non-fatal offences against the person typically included malicious wounding with intent to do grievous bodily harm, malicious infliction of grievous bodily harm and malicious wounding. The mental element of those offences, maliciously, was applied consistently with the decision of the Court of Appeal (UK) in Cunningham.[81] Malice thus required either an actual intention to do the particular kind of harm that in fact was done, or recklessness as to whether such harm should occur or not (that is, the accused foresaw that the particular kind of harm might be done and yet had gone on to take the risk of it).
[81]R v Cunningham [1957] 2 QB 396. See also R v G [2004] 1 AC 1034.

The Director submitted that it was Parliament’s intention that the provisions introduced by the amending Act, first, would distinguish between the intentional, and the reckless, infliction of serious injury based on a ‘difference in moral turpitude’; and, secondly, would preserve ‘the status quo regarding the interpretation of criminal recklessness’, so that ‘an accused could be reckless if he or she had foresight of the possible consequence of (serious) injury but proceeded nevertheless’.

Crabbe, the Director submitted, explained the necessity to interpret the concept of recklessness narrowly in the context of murder. But recklessly causing serious injury is, and was always intended to be, a less serious offence than intentionally causing serious injury. It is less serious ‘by dint of the lesser state of culpability built into its mental element’. Nuri, however, misapplied Crabbe. The result ‘was effectively to raise the degree of proof necessary to establish criminal recklessness to the level or moral equivalence of intentional conduct’. This misapplication of Crabbe was repeated in Campbell, and ‘thereafter took root’.

Aubrey, the Director submitted, made clear that Crabbe was concerned only with common law murder. Crabbe has no application to offences other than murder.

In oral submissions, senior counsel for the Director accepted that the interpretation that the Director was pressing on the Court as to the meaning of recklessly ‘would be to extend the scope of criminal liability’. And he said that he had been unable to find ‘any academic or judicial dissatisfaction expressed with [Campbell’s] operation’. But he insisted that the legislative activity in the years since it was decided is not ‘a clear endorsement of the correctness of Campbell’.

Although it is not entirely clear, counsel for the Director appears to have agreed with the suggestion that the Director was inviting the Court ‘to read Aubrey as holding that Campbell was wrongly decided’. His submission was ‘that Campbell was wrongly decided’, and he said: ‘To the extent that we can rely on Aubrey to make that submission good, we do so’. Counsel submitted that the reasoning in Aubrey is ‘plainly applicable’.

The Director’s counsel submitted that ‘the correct interpretation of recklessness for offences other than murder’ is that an accused has foresight of the possibility of relevant consequences and proceeds ‘in circumstances where it is either unreasonable or has no social utility’.[82]
[82]See Aubrey, 330 [49].

When addressing the ‘re-enactment presumption’, senior counsel for the Director submitted that ‘it is a highly contested principle’.[83] In this case, it did not bind the Court to an erroneous interpretation of recklessly.
[83]Counsel cited Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159, 174 (Dixon, Williams and Webb JJ); R v Reynhoudt (1962) 107 CLR 381, 388 (Dixon CJ); and Flaherty v Girgis (1987) 162 CLR 574, 594 (Mason CJ, Wilson and Dawson JJ).

Finally, the Director’s counsel submitted that the principle in Campbell was anything but ‘carefully worked out’. It was arrived at ‘erroneously by the invocation of the spirit of Crabbe’.

Acquitted person’s submissions in support of Campbell

Counsel for the acquitted person submitted that the meaning of the word recklessly for the purposes of injury offences has been settled in this State for more than three decades, and in that time has been well-understood and uniformly applied. It was submitted that the legislature, ‘fixed with knowledge of that meaning, has amended those offences, re-calibrated the applicable maximum penalties so that they appropriately meet the criminality involved, and enacted aggravated versions of the offences’. The Director’s invitation to ‘alter the settled law as to the meaning of recklessness … cannot be accepted’.

It was submitted that the Court should exercise caution in the face of an invitation to depart from a previous decision of its own,[84] and should do so only if persuaded that the previous decision is ‘plainly wrong’.[85] That requirement ‘goes well beyond merely considering an earlier judgment to have been erroneously decided’.[86] Before departing from an earlier decision, the Court should consider: first, whether the earlier decision rests upon a principle carefully worked out in a significant succession of cases; secondly, whether there is a difference between the reasons of the justices constituting the majority in one of the earlier decisions; thirdly, whether the earlier decision has achieved no useful result, but on the contrary has led to inconvenience; and, fourthly, whether the earlier decision has not been independently acted on in a manner which militates against reconsideration.[87] None of these four considerations, counsel submitted, apply in this case.
[84]Nguyen v Nguyen (1990) 169 CLR 245, 269 (Dawson, Toohey and McHugh JJ).
[85]RJE v Secretary to the Department of Justice & Ors (2008) 21 VR 526; Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617; R v Falzon (2018) 264 CLR 361.
[86]DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81, 107 [117] (Maxwell P, Weinberg JA and Ferguson AJA). See also Gett v Tabet (2009) 254 ALR 504, 565–6, [294] (Allsop P and Beazley and Basten JJA).
[87]John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438-9.

Counsel submitted that once the statutory history is fully comprehended, the preferable interpretation of recklessly is ‘that which has been uniformly adopted by this Court over the decades’. Eight considerations, it was submitted, ‘conduce to that conclusion’.

First, contrary to the Director’s submissions, the extrinsic materials do not suggest that, in enacting the injury offences, Parliament had a fixed and definite intention that recklessness was to be made out upon proof of foresight of the possibility of injury. The ‘passing remark’ in the Second Reading speech indicating to the contrary is of little moment.

Secondly, once the source of the new offences is acknowledged, it is apparent that the meaning of malice in the abrogated offences is of no relevance to divining the intention of Parliament as to the meaning of recklessness in the new offences.

Thirdly, consistently with that expectation, the Courts settled upon an interpretation which has now been consistently applied for several decades. The ‘passing decades have, until now, seen neither demur from, nor challenge to, the correctness of that interpretation’.

Fourthly, ‘the maximum penalties for the causing injury offences have been reviewed and altered in the course of careful and informed reviews of statutory maxima, after the meaning of recklessness was settled by decisions of this Court’.[88] The associated reviews, reports and amendments demonstrate the lively interest taken by Parliament in the operation of the causing injury offences over the years since the meaning of recklessness was settled. The maximum penalties, and their relativity, have been fixed in light of that meaning given to recklessness in Campbell. The ‘fact that the legislature recalibrated the statutory maxima after the meaning of recklessness was settled indicates that Parliament has fixed the penalties at a level appropriate to the settled interpretation’. Indeed, counsel submitted orally that it is not open to this Court ‘to revisit Campbell given what the Parliament has done’.
[88]Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 346–7 [81] (McHugh J).

Fifthly, the legislature has shown no reluctance to intervene ‘to correct perceived deficiencies in the operation of the causing injury offences’, but did not seek to alter the meaning given to recklessly.

Sixthly, far from altering the meaning of recklessly in the offence of recklessly causing serious injury, the legislature has adopted it by enacting aggravated forms of the offence.[89] Counsel argued that the ‘re-enactment presumption’ applies to that aggravated offence, so that Parliament is taken to have intended the words to bear the meaning already judicially attributed to them.[90] It is inconceivable that a different meaning of recklessly could be adopted in respect of the simple and aggravated versions of the offence.
[89]See Crimes Act 1958, s 15A.
[90]Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing & Engineering Employees (1994) 181 CLR 96, 106.

Seventhly, contrary to the Director’s submissions, the settled meaning of recklessly does not give rise to any ‘lacuna’ in the operation of the provisions. Hence, a person who is not guilty of recklessly causing serious injury because he or she foresees only the mere possibility of serious injury, may nevertheless be convicted — depending upon the precise mental state proven — of intentionally causing injury, recklessly causing injury or common assault.

Eighthly, the plurality’s conclusions in Aubrey were grounded in the history of the provisions then under consideration, and explicitly recognised that ‘[t]he requirements in States other than New South Wales may vary according to the terms of each State’s legislation’.[91] The origins of the current Victorian legislation do not lie in the outmoded concept of malice as found in the provisions repealed by the amending Act or as found in the New South Wales provisions considered in Aubrey.
[91]Aubrey, 329 [47].

It was too late in the day for the Court to overrule Campbell. If a different meaning was to be given to recklessly, the change needed to come from Parliament.

Aubrey does not require Campbell’s reconsideration

In my view, there are several dovetailing reasons for concluding that Aubrey does not dictate the reconsideration of Campbell.

First, Aubrey was concerned with legislation materially different to that considered in Campbell. Despite the statement in the joint judgment that Campbell concerned an offence of reckless infliction of grievous bodily harm, there is no offence of ‘reckless infliction of grievous bodily harm’ in the Crimes Act 1958 (Vic). And although, prior to the amending Act, the offence of maliciously inflicting grievous bodily harm was to be found in the Act,[92] that offence was abolished by the amending Act, and the offence of recklessly causing serious injury in s 17 was one of the offences substituted. To my mind, therefore, s 17 does not appear to be a ‘like provision’. It has a different heritage, and the offence it creates has different elements, both to the statutory offence it replaced and to the provisions considered in Aubrey.
[92]At the time of its repeal by the amending Act, s 19 provided:
19. Whosoever unlawfully and maliciously wounds or inflicts grievous bodily harm upon any other person, shall be guilty of an indictable offence ...

Secondly, the offence in the present s 17 is not concerned with the infliction of grievous bodily harm, but with causing serious injury. They are not necessarily the same thing. Use of the expression ‘grievous bodily harm’ survives in this State only in s 318(2)(a) of the Act (concerned with the reckless species of culpable driving). And though, by convention, when charging juries on the elements of murder, the expression ‘really serious bodily injury’ is used in preference to the adjectival expression ‘grievous bodily harm’,[93] given that ‘serious injury’ has a statutory definition and ‘grievous bodily harm’ does not,[94] it cannot be concluded that the two expressions necessarily are coextensive.
[93]See R v Schaeffer (2005) 13 VR 337; R v Barrett (2007) 16 VR 240.
[94]Section 15 of the Act now contains the following definitions:
injury means—
(a) physical injury; or
(b) harm to mental health—
whether temporary or permanent;
…
physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function;
…
serious injury means—
(a) an injury (including the cumulative effect of more than one injury) that—
(i) endangers life; or
(ii) is substantial and protracted; …

Thirdly, the previous line of authority said to have been ‘overturned’ by Campbell was concerned solely with offences copied from the English Offences Against the Person Act 1861, and not with any of the new offences that replaced them. Hence, Smyth[95] was a ruling at trial concerned with charges of malicious wounding with intent to do grievous bodily harm under the repealed s 17; Kane[96] was a sentence appeal, and involved a charge of maliciously inflicting grievous bodily harm; and Lovett[97] was a plea hearing in which a question arose as to the meaning of maliciously for the purposes of a charge of maliciously inflicting grievous bodily harm under the now repealed s 19A of the Act.[98] The elements of the offences considered in the ‘overturned’ cases bore little resemblance to the elements of the offences that replaced them.
[95]R v Smyth [1963] VR 737 (‘Smyth’) (Sholl J).
[96]R v Kane [1974] VR 759 (Gowans, Nelson and Anderson JJ).
[97]R v Lovett [1975] VR 488 (‘Lovett’) (Harris J). Although, perhaps, it is of little importance to the issues in this case, I note that there may not have been complete harmony between the ‘overturned’ authorities. Thus, in Lovett (at 493), Harris J expressed the view that Sholl J in Smyth had ‘placed too high a burden on the prosecution where the charge is unlawfully and maliciously wounding contrary to s 19 of the Crimes Act’; and said that ‘that the law is that, where a person is charged under s 19A of the Crimes Act 1958 with unlawfully and maliciously inflicting grievous bodily harm, the effect of the word “maliciously” is to require the prosecution to prove that the accused foresaw that some physical harm, but not necessarily really serious bodily harm, might result to some person’.
[98]Section 19A provided:
19A. Whosoever unlawfully and maliciously inflicts grievous bodily harm upon any other person shall be guilty of an indictable offence …

Fourthly, none of the new offences — including that of recklessly causing serious injury — were concerned with the concept of malice or with the meaning of maliciously. Certainly, the Act contains no equivalent of s 5 of the NSW Act, setting out those things embraced by the term maliciously.[99] Hence, the meaning of recklessly in s 17 of the Act, as construed in Campbell, cannot have been influenced by any provision similar to that considered in Aubrey.[100]
[99]See [83] above.
[100]Although the amending Act repealed many provisions in which the adverb maliciously was used to describe offending conduct (for example, maliciously destroying or damaging a building with intent to murder, s 12; maliciously setting fire to a ship or vessel with intent to murder, s 13; maliciously inflicting grievous bodily harm, s 19), a number of existing offences in the Act still may be committed maliciously. For example:
· maliciously conveying water into a mine, s 225;
·     maliciously removing piles or opening floodgates, s 228;
·     maliciously placing things to destroy an engine tender, s 232;
· maliciously doing anything tending to cause loss or destruction of a vessel, s 244;
·     maliciously removing buoys, s 245;
·     maliciously setting fire to an aircraft, s 246B; and
·     maliciously causing an explosive, s 317.

In any event, as was made clear in Aubrey, the requirements of recklessness for the purposes of the New South Wales’ provisions will not necessarily be determinative of the requirements of recklessness for the purposes of the provisions of another State. The following observations in the joint judgment are apposite:[101]

The requirements in States other than New South Wales may vary according to the terms of each State’s legislation. But, so far as ss 18 and 35 of the Crimes Act are concerned, the reasoning in Coleman^[[102]] was correct. As the Court emphasised in Crabbe, the reason for requiring foresight of probability in the case of common law murder was the near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death.[103] The same does not necessarily, if at all, apply to statutory offences other than murder.
[101]Aubrey, 329 [47].
[102]R v Coleman (1990) 19 NSWLR 467 (Hunt, Finlay and Allen JJ). Coleman involved a charge inflicting actual bodily harm with intent to have sexual intercourse. The Court of Criminal Appeal (NSW) held to be correct the trial judge’s direction that an act was done recklessly if the accused realised the possibility that injury might result but nevertheless proceeded to act.
[103]R v Crabbe (1985) 156 CLR 464 at 469.

Campbell should continue to be followed

Once more to risk repetition, the High Court in Aubrey made it clear that, for the purposes of the NSW provisions, foresight of the possibility of the relevant harm was sufficient to establish the particular offence (or offences), and that the reasoning in Crabbe did not necessarily apply to statutory offences other than murder.

At the time when Campbell was decided, the legislature had seen fit to abolish outdated statutory offences — reminiscent of the NSW provisions — which employed outmoded, difficult and convoluted language, and replace them with contemporary and more simply expressed alternatives. It was therefore necessary that the Court give some meaning to the terms reckless and recklessly, ubiquitous throughout the provisions creating the new group of offences.[104] Given that the archaic offences had been swept away — and with them, the concepts attached to terms such as maliciously — it was unlikely that the legislature intended that the meaning to be attributed to reckless and recklessly was to be strait-jacketed by the jurisprudence of the old authorities, based, as it was, on the language of the repealed provisions. It is far more likely that the legislative intent was that the meaning to be attributed to those terms was to be unencumbered by the learning that had grown up around the obsolete offences.[105]
[104]By way of example, in the provisions introduced by the amending Act, the terms reckless and recklessly were both employed in different provisions without further definition. Thus, the adjective reckless was used in s 19(1)(b), administering substances interfering with bodily functions; s 20(b), threats to kill; s 21(b), threats to inflict serious injury; s 25, setting traps to kill; s 26, setting traps to cause serious injury; and s 31(2)(b), assaults. The adverb recklessly was used in s 17, recklessly causing serious injury, and s 18, recklessly causing injury, and was also to be found in s 22, recklessly engaging in conduct endangering life, and s 23, recklessly engaging in conduct endangering persons.
[105]At the time that the amending Act was introduced, the adjective reckless was, in a very different context — and without definition — found in parts of the Act that did not deal with offences against the person. For example, s 81(4)(a) provided that deception means ‘any deception (whether deliberate or reckless) …’; and s 191(1) provided that a person committed and offence induces or attempts to induce a person to do certain things ‘by the reckless making of any statement or promise … which is misleading false or deceptive’.

Plainly, the absence of a statutory definition of recklessly reflects a deliberate choice by the legislature. That choice may be gleaned from the fact that, at the time that the amending Act came into operation, the term recklessly was used in one other part (only) of the principal Act, s 318. In contrast to the provisions introduced by the amending Act, the term recklessly was (and still is) defined in s 318(2). Hence, the offence of culpable driving was created by s 318(1); and s 318(2) set out four forms of culpability that constituted culpable driving for the purposes of sub-s (1). In particular, sub-s (2)(a) provided (as it still does) that a person drives a motor vehicle culpably if he drives the motor vehicle ‘recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving’.[106] Self-evidently, however, the definition in sub-s (2)(a) had no work to do beyond the offence of culpable driving.
[106]The expression grievous bodily harm is now found in no other offence section in the Act. See Schedule 8, cl 5.

Ultimately, I consider that there are at least six sound reasons for adhering to the Campbell test.

First, the test is — without intentionally being pejorative — consistent with the ‘spirit’ of the decision in Crabbe, in that it reflects the common law notion of recklessness in murder, the offence in s 17 arguably being the next most serious non-fatal offence against the person.[107] So far as possible, it is desirable to promote consistency between common law and statutory offences; so that, if more than one construction of a statute creating an offence is open, that consonant with the common law is to be preferred.[108] Moreover, I consider that, in many circumstances, the offence of recklessly causing serious injury will be committed in circumstances which are (or, at least, are not far removed from) the moral equivalence of the offence of intentionally causing serious injury.[109] That provides a solid basis for demanding that the offence in s 17 must require foresight of the probability that serious injury will result from the relevant act (or omission).
[107]Although it might be argued that attempted murder represents the next most serious offence — because an accused must be proven to have an intention to kill — not all offences of attempted murder involve serious injury.
[108]See Balog v Independent Commission Against Corruption (1990) 169 CLR 625, 635–6.
[109]See Aubrey, 329 [47].

Secondly, and closely allied to the first consideration, adopting the same test for recklessness in offences under s 17 as for reckless murder, avoids the possible inconvenience flowing from a jury being asked to consider two different forms of recklessness, in the event that reckless murder and recklessly causing serious injury are charged on the same indictment.[110]
[110]See, for example, R v Shields [1981] VR 717, which involved charges of culpable driving by gross negligence, under s 318(2)(b) of the Act, and negligently causing grievous bodily harm, under (now repealed) s 26.

Thirdly, the test in Campbell has stood the test of time. The law is well-settled. Thus, Campbell has been satisfactorily applied for many years, without attracting any criticism, judicial or academic. That alone provides compelling justification for leaving it undisturbed. With similar considerations in mind, Bell J observed in Aubrey[111] that

it is a large step to depart from a decision which has been understood to settle the construction of a provision, particularly where the effect of that departure is to extend the scope of criminal liability.[112]

[111]Aubrey, 332 [55].

[112]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 531 per Deane J; Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13 per Mason J; at 22-23 per Wilson and Dawson JJ; Hanau v Ehrlich [1912] AC 39 at 41 per Earl Loreburn LC.

Fourthly, the Act has been amended a number of times over the years by the addition of many offences employing the terms reckless[113] or recklessly.[114] Presumably, these amendments have been made with the legislature’s knowledge of the principle for which Campbell stands. Indeed, given that Parliament has on a number of occasions seen fit to repeat a word that has been judicially construed (and has a settled meaning), Parliament might be taken to have intended the word to bear the meaning already judicially attributed to it.[115] And as this Court observed in Ciantar,[116] when apparently satisfied that the effect given to s 318(2)(c) of the Act by the earlier case of Feketa[117] was wrong:

But however all that may be, we think it is now too late in the day for this court to depart from the construction of s 318 that was laid down in Feketa. It is almost 25 years since Feketa was decided and it has been followed and relied upon repeatedly over those years.[118] The Act has been amended a number of times without any amendment to s 318. And the Act has been the subject of at least one report by the Law Reform Commission which noted in its discussion paper of July 1991[119] that, in the way in which s 318(2)(c) and (d) had been interpreted, it was not necessary for the prosecution to prove a causal connection between the fact that the driver was under the influence and death. In those circumstances, in our view, if any change to the Feketa interpretation of s 318 is thought to be required it should come from the ultimate court of appeal or from Parliament.[120]

[113]Offences now found in the Act relating to reckless conduct include:

· murder of a custodial officer or an emergency worker, s 3(2)(a)(ii);

· discharging a firearm reckless to safety of a police officer or a protective services officer, s 31C;

· aggravated burglary, s 77(1)(b);

· dealing with property which subsequently becomes an instrument of crime, s 195A(2)(a) (money laundering);

· various offences relating to corrupting and cheating at gambling, including ss 195C(a), 195D(1)(a), 195E(1)(a) and 195F(1)(b);

· offences against public order, such as affray, s 195H(2), and violent disorder, s 195I(4);

· intentionally or recklessly causing a bushfire, ss 201A(1)(a) and (2);

· offences relating to impairment of computer data and electronic communication, including, ss 247C(c) and 247D(c);

· offences relating to the contamination of goods, including ss 250(1), 251(1)(b) and 252;

· driving offences connected with emergency workers, custodial officers, youth justice custodial workers and emergency service vehicles, including ss 317AC(1)(b), 317AD(1)(a), 317AE(1)(b) and 317AG(2); and

· offences relating to dangerous, menacing or restricted breeds of dog, including ss 319B(2)(a)(iii) and 319C(2)(b).

[114]Provisions of the Act which use the term recklessly include:

• recklessly causing a bushfire, s 201A(1)(a);

• recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving, or damaging vehicles, including ss 317AE(1)(c), 317AF(1) and 317AG(1); and

• recklessness as to whether controlling dangerous, menacing or restricted breed dog may place another person in danger of death, s 319C(1).

[115]DPP v Platt [2020] VSCA 83, [33] (Priest, Beach and Kaye JJA), citing Barras v Aberdeen Steam Trawling & Fishing Co Ltd [1933] AC 402; drawing attention to D’Emden v Pedder (1904) 1 CLR 91, 110; Pillar v Arthur (1912) 15 CLR 18, 22, 25, 29–30; Platz v Osborne (1943) 68 CLR 133, 141, 146–147; and noting further Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing & Engineering Employees (1994) 181 CLR 96, 106; Fortress Credit Corporation (Aust) II Pty Ltd v Fletcher (2015) 254 CLR 489, 502, where that principle has been questioned. See also Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 346–7 [81] (McHugh J); and compare Flaherty v Girgis (1987) 162 CLR 574, 594 (Mason ACJ, Wilson and Dawson JJ); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, 329 (Toohey, McHugh and Gummow JJ).

[116]R v Ciantar (2006) 16 VR 26, 37-8 [31] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) (‘Ciantar’).

[117]R v Feketa (1982) 10 A Crim R 287.

[118]See, for example, R v Ryan (1992) 16 MVR 485; R v Beach (1994) 20 MVR 174, 75 A Crim R 447.

[119]Law Reform Commission of Victoria, Discussion Paper No 21 — Death Caused by Dangerous Driving, July 1991.

[120]Hanau v Ehrlich [1912] AC 39, at 41; Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, at 29.

Fifthly, longstanding experience has demonstrated that the Campbell test is straightforward and relatively simple for juries to apply. The test is purely subjective — did the accused foresee the probability that serious injury would result from his act (or acts) or omission (or omissions)? — and has no complicating objective components. In the Court’s experience, it is a test easily grasped by juries.

Finally, to adopt the test for recklessness as now urged by the Director would be to significantly extend the scope of criminal liability for the offence under consideration. Quite plainly, to posit that an accused might fall to be convicted of the offence under s 17 if, without more, he or she foresaw the mere possibility (no matter how slight) of serious injury resulting from his or her act (or omission) is to greatly extend the reach of the offence as it has been understood to this point. The Director has recognised the injustice of such a test by postulating, as a control, the absence of ‘social utility’. In view of the settled interpretation of the section in this

State, such a change would be tantamount to judicial legislation. That is not a prospect that this Court should lightly entertain, particularly given the maximum penalty that the offence attracts.[121]

[121]The maximum penalty is 15 years’ imprisonment. See also s 15A of the Act, and ss 10, 10AA(1) and 10A of the Sentencing Act 1991.

Conclusion

For these reasons, I would reject the contentions in the point of law referred to this Court: first, that in light of Aubrey the correct interpretation of recklessness for the offence of recklessly causing serious injury is that an accused ‘had foresight of the possibility of relevant consequences and proceeded nevertheless having regard to the social utility of the act’; and, secondly, that ‘the approach in Campbell requiring proof of foresight of the probability, or likelihood, of (serious) injury is inconsistent with Aubrey and should no longer be followed’.

KAYE JA:

I agree that, in response to the point of law raised by the Director of Public Prosecutions, the correct interpretation of ‘recklessly’ in s 17 of the Crimes Act 1958 is that the accused had foresight of the probability of the relevant consequences and proceeded nevertheless.

The starting point, for considering the question raised by the Reference, is the concession by the Director that the decision of the High Court in Aubrey v The Queen[122] did not directly overrule the principles stated by this Court in R v Campbell.[123] That concession is correct. Although the High Court, in Aubrey, made some observations concerning the reasoning in Campbell,[124] the Court specifically

recognised that the requirements in states, other than New South Wales, might vary according to the terms of each state’s legislation. [125]

[122](2017) 260 CLR 305 (‘Aubrey’).

[123][1997] 2 VR 585 (‘Campbell’).

[124]Aubrey (2017) 260 CLR 305, 328 [45] (Kiefel CJ, Keane, Nettle and Edelman JJ).

[125]Ibid 329 [47].

In that regard, it is clear that the legislation, that was under consideration in Aubrey, was materially different, in terms of its history and its structure, than the provisions of the Victorian Crimes Act, which were under consideration in Campbell, and which are central to the determination of the question raised by the Director’s Reference.

Originally, the provisions in the Crimes Acts of both New South Wales and Victoria were based on the English Offences Against the Person Act 1861, which, as Priest JA has noted, provided for offences including maliciously inflicting grievous bodily harm and malicious wounding. Those provisions were substantially re-enacted in New South Wales in the Criminal Law Amendment Act (No 17) 1883. In particular, s 24 of that Act provided for the offence of maliciously inflicting grievous bodily harm. That provision was re-enacted as s 35 of the Crimes Act1900 (NSW), and was retained in substantially the same form in the Crimes (Amendment) Act (No 10) 1983 (NSW). In essence, s 35(1) made it an offence to maliciously wound or inflict grievous bodily harm upon any person. In 1990, s 36 was added to the New South Wales Act.[126] That provision made it an offence to maliciously cause or attempt to cause another person to contract a grievous bodily disease.
[126]Crimes (Injuries) Amendment Act (No 101) 1990 (NSW) sch 2.

Section 5 of the Crimes Act 1900 (NSW) defined the term ‘maliciously’. That definition (which is set out in the judgment of Priest JA) attaches the concept of malice to four kinds of wrongdoing, namely, first, an act done ‘of malice’, secondly, an act ‘done without malice but with indifference to human life or suffering’, thirdly, an act done ‘with intent to injure some person or persons … without lawful cause or excuse’, and, fourthly, an act ‘done recklessly or wantonly’. Understandably, that definition attracted criticism from judges who had been required to grapple with it.[127]
[127]R v Coleman (1990) 19 NSWLR 467, 472 (Hunt J, with whom Finlay and Allen JJ agreed).

In the United Kingdom and in New South Wales, the proposition that, in respect of particular statutory offences, the requisite degree of recklessness is constituted by an accused’s foresight of the possibility of a particular consequence, was specifically based on the retention, in the statutes of those jurisdictions, of malice as an element of those offences.

In R v Cunningham,[128] the appellant stole a gas meter, and in doing so he fractured a gas pipe. As a result gas escaped, and an occupant of an adjoining house was partially asphyxiated. The appellant was convicted of the offence of unlawfully and maliciously causing that person to take a noxious thing, so as to thereby endanger her life. On appeal, the question arose as to the requisite mens rea as an element of the offence. The Court of Criminal Appeal (UK) adopted the following definition of malice as an accurate statement of the law:

In any statutory definition of a crime, malice must be taken … as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).[129]

[128][1957] 2 QB 396.

[129]Ibid 399 (emphasis added) (citation omitted) (Byrne J). See also R v Mowatt [1968] 1 QB 421, 426 (Diplock LJ).

That definition, of the concept of malice, was adopted and applied in New South Wales, and in particular in respect of the inclusion of ‘recklessly’ in the definition of ‘maliciously’ in s 5 of the Crimes Act 1900.

In R v Coleman,[130] the appellant was charged with maliciously inflicting actual bodily harm with intent to have sexual intercourse, contrary to s 61C of the Crimes Act 1900. The trial judge directed the jury, as to the meaning of ‘recklessly’ in the definition in s 5, based on the decision in Cunningham. The New South Wales Court of Criminal Appeal held that the judge’s direction, in those terms, was correct. Hunt J (with whom Finlay and Allen JJ agreed) stated:

I do not accept the appellant’s argument that the decision of the High Court in R v Crabbe should be interpreted as requiring a change in what I have described as the generally accepted law in Australia as to the meaning of ‘maliciously’ in statutory crimes other than murder, following R v Cunningham (as explained in R v Mowatt).[131]

[130](1990) 19 NSWLR 467.

[131]Ibid 476. See also Blackwell v The Queen (2011) 81 NSWLR 119, 132 [68]-[70] (Beazley JA, with whom James J agreed).

Before the amendments to the Crimes Act in 1985, the definition of malice in Cunningham was similarly applied in Victoria, in respect of the offences of unlawful and malicious wounding[132] and unlawful and malicious infliction of grievous bodily harm.[133] In each case, the acceptance by the court that, to constitute recklessness, foresight of the possibility of a particular consequence was sufficient, was derived from the existence of malice as an essential element of the particular offence in question.
[132]R v Smyth [1963] VR 737, 738–9 (Sholl J) (‘Smyth’); R v Kane [1974] VR 759, 760 (Gowans, Nelson and Anderson JJ) (‘Kane’).
[133]R v Lovett [1975] VR 488, 493 (Harris J) (‘Lovett’).

By contrast, since 1985, the legislative history in Victoria has been quite different to that of New South Wales. In Victoria, the Crimes (Amendment) Act (No 10233) 1985 dispensed with the proof of malice as an element of various offences against the person. In particular, it repealed the offences of unlawful and malicious wounding and unlawful and malicious infliction of grievous bodily harm, and replaced them with offences a requisite element of which was conduct that was either intentional, reckless or negligent. As Hayne JA and Crockett AJA stated in Campbell, as a result of the repeal of the former provisions, the tests specified in cases such as Smyth, Kane and Lovett, did not apply to the new provisions.[134]
[134]Campbell [1997] 2 VR 585, 593.

In considering the correct test, as to whether injury has been caused ‘recklessly’ for the purposes of the offences contained in the Victorian Crimes Act, two points are relevant.

First, ss 16, 17 and 24 are each concerned with the infliction of serious injury. Section 16 provides for the offence of intentionally causing serious injury. The maximum sentence prescribed by the 1985 Act was fifteen years’ imprisonment. Section 17 provides for the offence of recklessly causing serious injury. The maximum sentence prescribed by the 1985 Act was ten years’ imprisonment. Section 24 provides for the offence of negligently causing serious injury. The maximum sentence prescribed by the 1985 Act was three years’ imprisonment. The relativity of the maximum sentences, specified for those offences, indicated that it was intended that the level of culpability, for recklessly causing serious injury, was significantly greater than the level of culpability for negligently causing serious injury.

In that respect, it must be borne in mind that, in order to constitute negligence under s 24, the conduct of the accused, in causing serious injury, must involve a great falling short of the standard of care which a reasonable person would have exercised in the circumstances and a high risk that serious injury would result from that conduct.[135] The fact that the legislature considered that the offence of recklessly causing serious injury warranted a maximum sentence that was more than three times greater than the maximum sentence for negligently causing serious injury, and that the offence now attracts a maximum sentence that is 50 per cent higher than the maximum for negligently causing serious injury, lends weight to the proposition that the legislature has intended that the level of culpability for the s 17 offence is significantly higher than for the s 24 offence.
[135]R v Shields [1981] VR 717, 723 (Young CJ, Anderson and Brooking JJ); Aston v The Queen [2019] VSCA 225, [70] (Priest, Beach and Kaye JJA).

Secondly, s 18, as introduced by the 1985 Act, makes it an offence to ‘intentionally or recklessly’ cause injury. (At that time, the maximum prescribed sentence for either alternative was seven years. In 1997, that was amended to ten years’ imprisonment for intentionally causing injury, and five years for recklessly causing injury.[136]) Section 20 makes it an offence to make a threat to kill another person, either intending that that person would fear that the threat would be carried out, or being reckless as to that matter. Section 21, similarly, makes it an offence to make a threat to inflict serious injury on another person, either intending that that other person would fear the threat would be carried out, or being reckless as to that matter. The joinder, in those three sets of provisions, of the mental states of intention and recklessness, is a further indication of a legislative intent that the concepts of intentionality and recklessness are closely related in terms of their levels of culpability.
[136]Sentencing and Other Acts (Amendment) Act (No 48) 1997 sch 1 item 12.

In those circumstances, it is unsurprising that, in the ten years that preceded the Court’s decision in Campbell, there was a prevailing practice for judges to direct juries, in relation to offences charged under s 17 and related sections of the Crimes Act, that in order to establish the requisite foreseeability, the prosecution would need to prove that the accused knew that the injury probably would occur.[137]
[137]Campbell [1997] 2 VR 585, 592.

It is in that context that the Court determined the meaning of recklessness in Campbell. In their joint judgment, Hayne JA and Crockett AJA acknowledged that the decision by the High Court in Crabbe v The Queen[138] was not directly applicable to the provisions under consideration, since Crabbe specifically concerned the elements of reckless murder. Nevertheless, their Honours considered that the ‘spirit’ of the decision in Crabbe ‘indicate[d]’ that the same definition of recklessness should be applied to the provisions in the Crimes Act then under consideration.[139] Further, as discussed, their Honours were influenced by the circumstance that the settled practice in Victoria was to direct juries as to foreseeability in terms of the awareness of the probability that the requisite injury would occur.
[138](1985) 156 CLR 464, 469–70 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ) (‘Crabbe’).
[139]Campbell [1997] 2 VR 585, 593.

Following, and in accordance with Campbell, that practice has been consistently maintained in Victoria. As Priest JA has pointed out, at no time, in the 25 years that have followed the decision in Campbell, has there been any criticism of, or dissatisfaction with, the test stated by the Court in that case. The directions given to juries, in terms of Campbell, have been simple, logical and straightforward.

As Maxwell P, McLeish and Emerton JJA, and Priest JA, have pointed out, since Campbell, a number of changes have been made to the maximum sentences prescribed for the offences contained in the provisions in question. In addition, since Campbell, a number of provisions have been introduced into the Crimes Act specifying recklessness as the requisite degree of criminal culpability. The presumption, described in Re Alcan Australia Ltd,[140] that where Parliament utilises terms which have been judicially construed, it is taken to have intended those words to bear the meaning judicially attributed to them,[141] does depend, to some extent, on the relevant legislative history.[142] The legislative history preceding the 1985 amendment, and the consistent re-enactment of those provisions since that date, together with the adoption of the concept of ‘recklessness’ in other offences introduced into the statute, provide a cogent basis for the application of the presumption to s 17 and related provisions of the Crimes Act. In the context of that history, it may be safely presumed that, by the subsequent changes to the maximum sentences prescribed in the provisions in question, and by the introduction of further offences involving recklessness, Parliament intended that that concept bear the meaning judicially attributed to it in Campbell and succeeding cases.
[140]Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[141]See also Baini v The Queen (2012) 246 CLR 469, 484–5 [43] (Gageler J); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489, 502–3 [15] (French CJ, Hayne, Kiefel, Gageler and Keane JJ); Brisbane City Council v Amos [2019] HCA 27, [35]–[37] (Kiefel CJ and Edelman J), [45] (Gageler J); Tajjour v New South Wales (2014) 254 CLR 508, 542 [22] (French CJ).
[142]Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159, 174 (Dixon, Williams and Webb JJ), 176 (McTiernan J).

Finally, abrogation of the test of the foreseeability of the probability of a consequence, and replacement of it by a test of the foreseeability of the possibility of that consequence, would, without more, constitute a very substantial reduction of the degree of culpability necessary to constitute criminal liability under s 17 and related provisions of the Crimes Act. The test of probability is, of itself, logical and readily understood. It requires that the accused person has foreseen that a particular consequence was more likely than not to ensue from his or her conduct. By contrast, foreseeability of a mere possibility would, without any qualification, impose criminal liability on ordinary everyday actions performed with the foresight of the possibility — no matter how slight or remote— of a particular consequence.

In enacting s 17, and like provisions, Parliament did not specify any control, such as that now postulated by the Director, namely, that of social utility. In light of the accepted interpretation of s 17 and related provisions over the last 35 years, the replacement in Victoria of the test of the foreseeability of the probability of a particular consequence, with a test of the foreseeability of a possibility of that consequence, qualified by such a control, would, I apprehend, amount to impermissible legislation by judicial decree.

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[2020] VSCA 181

2 July 2020