Director of Public Prosecutions Reference No 1 of 2019

The Director of Public Prosecutions (Vic) referred a question of law to the Court of Appeal of the Supreme Court of Victoria concerning the interpretation of "recklessly" in section 17 of the *Crimes Act 1958* (Vic). The dispute arose after an accused person was acquitted of recklessly causing serious injury, with the trial judge directing the jury in accordance with the interpretation of recklessness established in *R v Campbell* [1997] 2 VR 585, which held that recklessness required foresight that serious injury would *probably* result from the act or omission. This interpretation had been cast into doubt by the High Court in *Aubrey v The Queen* (2017) 260 CLR 305.

The central legal issue before the Court of Appeal was whether the Victorian Parliament, by amending section 17 of the *Crimes Act* after *R v Campbell*, had intended to adopt the meaning of "recklessly" as defined in that case, or whether the meaning of recklessness remained open for judicial determination. The Director argued that subsequent amendments to the Act implied legislative approval of the *Campbell* interpretation, while the acquitted person contended that the amendments did not clearly demonstrate such an intention.

The Court of Appeal concluded that the Victorian Parliament had not adopted the meaning of "recklessly" as stated in *R v Campbell* through the amending statutes. The Court found that the amendments did not provide sufficient clarity to infer legislative approval of the *Campbell* interpretation, and that the mere repetition of the word "recklessly" was insufficient to invoke the principle of legislative re-enactment. The Court reasoned that the criminal justice system was not a specialised or politically sensitive field that would warrant an assumption of parliamentary awareness of the *Campbell* decision, and that legislative inaction was not a firm basis for applying the principle of construction. The Court held that correcting the interpretation in *Campbell* would not cause substantial injustice, as the criminal justice system had previously adapted to such corrections.

Consequently, the appeal was dismissed, and the Director of Public Prosecutions (Vic) was ordered to pay the acquitted person's reasonable costs.