National Heavy Vehicle Regulator v Birrell - [2023] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
NATIONAL HEAVY VEHICLE REGULATOR v BIRRELL
[2023] SASC 49
Judgment of the Honourable Justice Blue
4 April 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
The appellant appeals against the dismissal by a Magistrate of a charge against the respondent of engaging without reasonable excuse in conduct that exposed Glenn Blacker to a risk of death or serious injury being reckless as to that risk in contravention of section 26F of the Heavy Vehicle National Law.
The respondent effectively conceded the other elements of the offence except recklessness. The Magistrate found that the recklessness element was not proved beyond reasonable doubt.
The appellant appeals against the dismissal on two alternative grounds:
1the Magistrate erred in finding that recklessness for the purpose of section 26F(1)(c) of the Law required proof that the respondent foresaw the probability of the risk to which section 26F(1)(b) refers;
2in the alternative, the Magistrate erred in finding that the appellant had failed to prove beyond reasonable doubt that the respondent was reckless as to whether his conduct exposed Mr Blacker to a risk of death or serious injury.
Held (allowing the appeal):
1Recklessness for the purpose of section 26F(1)(c) of the Law requires proof that the respondent foresaw the possibility, not the probability, of the risk to which section 26F(1)(b) refers (at [76]).
2It is unnecessary and inappropriate to address ground 2 (at [78]).
3Appeal allowed. Matter remitted to the Magistrates Court for retrial (at [79]).

Heavy Vehicle National Law (South Australia) Act 2013 (SA) s 5, s 26C, s 26F, s 26G, s 26H , referred to.
Aubrey v The Queen [2017] HCA 18, (2017) 260 CLR 305; DPP Reference No 1 of 2019 [2021] HCA 26, (2021) 95 ALJ R 741; Mutemeri v Cheeseman [1998] 4 VR 484; Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82, (2012) 35 VR 399; R v Abdul-Rasool [2008] VSCA 13, (2008) 18 VR 586; R v Campbell [1997] 2 VR 585; R v Coleman (1990) 19 NSWLR 467; R v Crabbe (1985) 156 CLR 464; R v Lam [2006] VSCA 162, (2006) 46 MVR 207; R v Nuri [1990] VR 641; R v Toms [2006] VSCA 101 , considered.

NATIONAL HEAVY VEHICLE REGULATOR v BIRRELL
[2023] SASC 49
Magistrates Appeal: Criminal

BLUE J: The National Heavy Vehicle Regulator (the Regulator) appeals against the dismissal by a Magistrate of a charge against the respondent, Gregg Birrell, of engaging without reasonable excuse in conduct that exposed Glenn Blacker to a risk of death or serious injury being reckless as to that risk in contravention of section 26F of the Heavy Vehicle National Law (the Law).
Mr Birrell effectively conceded the other elements of the offence except recklessness. The Magistrate found that the recklessness element was not proved beyond reasonable doubt.
The Regulator appeals against the dismissal on two alternative grounds:
1the Magistrate erred in finding that recklessness for the purpose of section 26F(1)(c) of the Law required proof that Mr Birrell foresaw the probability of the risk to which section 26F(1)(b) refers;
2in the alternative, the Magistrate erred in finding that the Regulator had failed to prove beyond reasonable doubt that Mr Birrell was reckless as to whether his conduct exposed Mr Blacker to a risk of death or serious injury.
Background
On 6 February 2019 Mr Blacker was driving his Mitsubishi truck (the Mitsubishi truck) from Port Broughton to Port Pirie when it began to emit smoke. He pulled over into a parking bay on the side of the road at Clements Gap. Mr Blacker had owned and operated trucks from a young age.
Mr Blacker telephoned Mr Birrell and requested him to transport the Mitsubishi truck (presumably to Port Pirie).
Mr Birrell carried on business as Birrell Heavy Tilt using a tilt tray tow truck (the tow truck), which is a heavy vehicle as defined by the Law.
When Mr Birrell arrived at the location where the Mitsubishi truck was parked, he lowered the tilt tray of the tow truck into the inclined position. He attached a winch to the bull bar of the Mitsubishi truck using a chain and two hooks. He stood near the driver’s side door of the tow truck and operated the winch to pull the Mitsubishi truck up onto the inclined tilt tray. While he was operating the winch, Mr Blacker was standing next to Mr Birrell.
When he finished winching the Mitsubishi truck up onto the inclined tilt tray, Mr Birrell did not return the inclined tilt tray to the horizontal position. Instead, he left the Mitsubishi truck suspended by the winch, cable and hooks and walked around the front of the tow truck to obtain chains from the toolbox. He then walked down the left hand side of the tow truck to fit those chains to the wheels of the Mitsubishi truck to secure it on the tray.
While Mr Birrell was doing this, Mr Blacker walked down the right hand side of the tow truck and behind the Mitsubishi truck. While he was behind the Mitsubishi truck, the bull bar gave way. The Mitsubishi truck rolled down the incline onto the ground, crushing Mr Blacker and causing his death.
On 7 February 2019 Mr Birrell was interviewed by Brevet Sergeant Rebecca Guest at the Port Pirie Police Station. Mr Birrell said that he had previously been engaged by Mr Blacker to tow a truck using his tow truck. He said that this was “probably two or three times”.
Mr Birrell said that, when he went around to the other side of the tow truck to secure the chains, he did not know what Mr Blacker was doing. The interview then proceeded as follows:
He said:I don’t know why he was even walking around the back it’s, previous times, I didn’t mention it to him this time but previous time I’d, I’d, when I’d recovered his vehicle I’ve said you never walk behind the back of a tilt tray because that’s the kill zone, that’s what everybody calls it.
Guest said:So you’ve previously had that discussion with him?
He said: Yes.
Guest said:On a couple of times?
He said: Yeah.
Guest said:Yep.
He said: Well last time I rescued it from out his farm drove it out onto the road and you know he was standing close to the back of it and I said you know could you move either side, don’t, never stand behind, if something breaks, cable breaks, the winch lets go or yeah.
Guest said:And how long ago was that last recovery?
He said: A couple of years yeah.
Mr Birrell was not otherwise asked about his state of mind in relation to Mr Blacker’s location or appreciation of risk at the relevant time.
On 23 September 2020 the Regulator filed in the Magistrates Court an information against Mr Birrell containing five counts. In due course, count 4 was withdrawn and Mr Birrell pleaded guilty to count 5. Counts 4 and 5 can be ignored.
The charges
Count 1 of the information alleged the breach of section 26F of the Law that is the subject of this appeal and is referred to at [1] above (the section 26F charge). The particulars were as follows:
a.At all material times, Birrell was an operator for the heavy vehicle [registration number of the tow truck] (“the heavy vehicle”), as he controlled the use of the heavy vehicle.
b.At all material times, Birrell was engaged in transport activities relating to the heavy vehicle, namely loading vehicle [registration number of the Mitsubishi truck] (“the towed vehicle”) onto the heavy vehicle; and
c.The following measures were reasonably practicable for Birrell to take:
i. Ensuring that Blacker was within his line of sight at all times while the towed vehicle was on the raised tilt tray and suspended by the winch; and/or
ii. Instructing Blacker that he was to remain in front of, or otherwise distant from, the heavy vehicle while the towed truck was on the raised tilt tray and suspended by the winch.
d.Birrell engaged in conduct related to the duty, namely lifting the towed vehicle without taking those reasonably practicable measures; and
e.That conduct exposed Blacker to a risk of death or serious injury or illness without a reasonable excuse; and
f.Birrell was reckless to the risk in that he foresaw the risk of being a risk death or serious injury arising from the conduct related to the duty and engaged in the said conduct.
Count 1 contained an alternative charge of contravention of section 26G of the Law on the basis of particulars (a) to (e) of the section 26F charge and on the basis that particular (c) was a contravention of the duty under section 26C to ensure so far as reasonably practicable the safety of transport activities relating to the heavy vehicle (the alternative section 26G charge).[1]
[1] Technically, all of the elements of the section 26G offence were not encompassed in the section 26F offence because the section 26G offence included the additional element that the defendant contravened the section 26C duty. It may be that the alternative section 26G offence should have been charged as a separate offence (eg count 2) rather than as part of count 1. However, no point was taken as to the form of the information and this point can be ignored.
Count 2 comprised a charge of contravention of section 26G of the Law on the same basis as the alternative section 26G charge contained within count 1 except that the reasonably practicable measure was instead specified to be attaching the winch cable to the front axle and/or hangar springs of the Mitsubishi truck rather than the bull bar. Count 2 contained an alternative charge of contravention of section 26H of the Law.
Count 3 comprised a charge of contravention of section 26G of the Law on the same basis as the alternative section 26G charge contained within count 1 except that the reasonably practicable measure was instead specified to be levelling the tilt tray of the tow truck before attempting to secure the wheels of the Mitsubishi truck. Count 3 contained an alternative charge of contravention of section 26H of the Law.
On 3 November 2022 Mr Birrell pleaded guilty to the alternative section 26G charge within count 1. He pleaded a plea in bar (the Magistrates Court equivalent of autrefois convict) to counts 2 and 3 on the basis that there could only be a single offence in contravention of section 26G arising out of breach of duty in respect of the same incident. The Magistrate upheld the plea in bar and acquitted Mr Birrell of the charges the subject of counts 2 and 3. The Regulator does not pursue an appeal against that acquittal. Counts 2 and 3 can therefore be ignored for the purposes of this appeal.
The trial
The prosecution called an investigating officer, Detective Brevet Sergeant Robert Booker, to give evidence. The prosecution also called Brenton Levi, a tow truck operator, who gave expert evidence concerning the operation of tow trucks.
The prosecution tendered by consent witness statements or affidavits by various witnesses. This included a witness statement by Brevet Sergeant Guest, to which was exhibited a transcript of the interview of Mr Birrell conducted on 7 February 2019. The prosecution also tendered a statement of agreed facts and various other documents.
The defence did not give or call any evidence.
The Magistrate’s reasons
The Magistrate observed that all of the elements of the section 26G offence were conceded, except for the element of recklessness. In relation to that element, the Magistrate said:
To prove this final element of Count 1 the prosecution is required to establish beyond reasonable doubt that the defendant turned his mind to and realised that by his conduct, namely by lifting the towed vehicle without taking the reasonably practicable measures identified in the particulars, he exposed Mr Blacker to a risk of death or serious injury or illness but continued to engage in the conduct without regard to that risk.
Expressed in another way, recklessness is made out where the prosecution can establish beyond reasonable doubt that the defendant acted with the realisation or foresight of the probability of the other persons exposure to the risk of death [or serious injury, or illness] and in this context the risk of death [or serious injury or illness] means an ‘appreciable risk’ (Orbit Drilling Pty Ltd v The Queen and Muteneri v Cheeseman) it is therefore not necessary to prove the defendant had foresight of the death [or serious injury of the other person] as opposed to the risk of such consequences.
The Magistrate summarised the statements made by Mr Birrell in his record of interview, including in relation to his understanding. The Magistrate found that the requisite recklessness was not proved beyond reasonable doubt. The Magistrate said:
It is necessary to consider whether given that understanding the defendant was reckless in that he:
·foresaw the probability of exposing Mr Blacker to the risk of death or serious injury and
·continued to engage in lifting the towed vehicle on to the tray of the truck
·without directing him to remain where he was standing and keeping him in sight,
·disregarding that risk.
…
The prosecution is required to establish that at the relevant time the defendant foresaw the exposure to risk of death or serious injury to Mr Blacker associated with his conduct arising from a failure of the equipment. What is required is for the prosecution to establish an awareness of a probable risk, not the probability of actual harm.
…
If it is reasonably possible that the defendant did not appreciate the probability of the risk to Mr Blacker the prosecution has not established recklessness.
The statements made by the defendant in his record of interview are consistent with an inference that the defendant did not appreciate that Mr Blacker was exposed to risk because of the previous warning coupled with Mr Blacker’s extensive experience over his lifetime of involvement with trucks.
…
… I find that there is a reasonable possibility that the defendant did not in fact foresee the probability that Mr Blacker was exposed to a risk requiring the defendant to take the reasonably practicable measures identified. There is a reasonable possibility the defendant was not reckless in proceeding to engage in the relevant conduct but was nevertheless negligent, even grossly negligent, in his conduct.
The legislative scheme
The Law applies as a law of South Australia under sections 4 and 6 of the Heavy Vehicle National Law (South Australia) Act 2013 (SA). Several other jurisdictions in Australia have also enacted or applied it as laws of those jurisdictions.
Chapter 1A Safety duties was inserted into the National Law in 2018.[2] Part 1 is entitled Principles. It includes section 26A enacting the principle of shared responsibility and section 26B enacting principles applying to duties.
[2] By regulation 8 of the Heavy Vehicle National Law (South Australia) (Amendment of Law No 4) Regulations 2017 (SA).
Part 2 is entitled Nature of duty. Section 26C creates a primary duty in the following terms:
26C—Primary duty
(1)Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
(2)Without limiting subsection (1), each party must, so far as is reasonably practicable—
(a)     eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and
(b)     ensure the party’s conduct does not directly or indirectly cause or encourage—
(i)the driver of the heavy vehicle to contravene this Law; or
(ii)the driver of the heavy vehicle to exceed a speed limit applying to the driver; or
(iii)another person, including another party in the chain of responsibility, to contravene this Law.
(3)For subsection (2)(b), the party’s conduct includes, for example—
(a)     the party asking, directing or requiring another person to do, or not do, something; and
(b)     the party entering into a contract—
(i)with another person for the other person to do, or not do, something; or
(ii)that purports to annul, exclude, restrict or otherwise change the effect of this Law.
The term “party in the chain of responsibility” in subsection 26C(1) is defined by section 5 in the following terms:
party in the chain of responsibility, for a heavy vehicle, means each of the following persons:
(a)if the vehicle’s driver is an employed driver—an employer of the driver;
(b)if the vehicle’s driver is a self‑employed driver—a prime contractor for the driver;
(c)an operator of the vehicle;
(d)a scheduler for the vehicle;
(e)a consignor of any goods in the vehicle;
(f)a consignee of any goods in the vehicle;
(g)a packer of any goods in the vehicle;
(h)a loading manager for any goods in the vehicle;
(i)a loader of any goods in the vehicle;
(j)an unloader of any goods in the vehicle;
The term “reasonably practicable” in subsection 26C(1) is defined by section 5 in the following terms:
reasonably practicable, in relation to a duty, means that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters, including—
(a)     the likelihood of a safety risk, or damage to road infrastructure, happening; and
(b)     the harm that could result from the risk or damage; and
(c)     what the person knows, or ought reasonably to know, about the risk or damage; and
(d)     what the person knows, or ought reasonably to know, about the ways of—
(i)    removing or minimising the risk; or
(ii)     preventing or minimising the damage; and
(e)     the availability and suitability of those ways; and
(f)the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage;
The term “public risk” in section 26C(2)(a) is defined by section 5 to include “safety risk”, which in turn is defined to include “a risk to public safety”. “Public safety” in turn is defined to mean the safety of persons or property. Those terms are defined as follows:
public risk means—
(a)a safety risk; or
(b)a risk of damage to road infrastructure;
safety risk means a risk—
(a)to public safety; or
(b)of harm to the environment;
public safety means the safety of persons or property, including the safety of—
(a) the drivers of, and passengers and other persons in, vehicles and combinations; and
(b) persons or property in or in the vicinity of, or likely to be in or in the vicinity of, road infrastructure and public places; and
(c)vehicles and combinations and any loads in them;
Part 3 of Chapter 1A is entitled Failing to comply with duty. It creates three largely cascading offences:
26F—Category 1 offence
(1)A person commits an offence if—
(a) the person has a duty under section 26C; and
(b)     the person, without a reasonable excuse, engages in conduct related to the duty that exposes an individual to a risk of death or serious injury or illness; and
(c)     the person is reckless as to the risk.
Maximum penalty:
(a)     if an individual commits the offence—$300 000 or 5 years imprisonment or both; or
(b)     if a corporation commits the offence—$3 000 000.
(2)The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.
26G—Category 2 offence
A person commits an offence if—
(a) the person has a duty under section 26C; and
(b)     the person contravenes the duty; and
(c)     the person’s contravention exposes an individual, or class of individuals, to a risk of death or serious injury or illness.
Maximum penalty:
(a)     if an individual commits the offence—$150 000; or
(b)     if a corporation commits the offence—$1 500 000.
26H—Category 3 offence
A person commits an offence if—
(a) the person has a duty under section 26C; and
(b)     the person contravenes the duty.
Maximum penalty:
(a)     if an individual commits the offence—$50 000; or
(b)     if a corporation commits the offence—$500 000.
Ground 1: the meaning of “reckless”

The Regulator contends that the Magistrate erroneously construed the meaning of “reckless” in section 26F(1)(c). The Magistrate held that it means that the defendant foresaw the probability, meaning more likely than not, of the relevant risk (and decided to proceed nevertheless). The Magistrate should have held that it means that the defendant foresaw the possibility of the relevant risk (and decided to proceed nevertheless). The Regulator cites the decisions of the High Court in Aubrey v The Queen[3] and DPP Reference No 1 of 2019.[4]
[3] [2017] HCA 18, (2017) 260 CLR 305.
[4] [2021] HCA 26, (2021) 95 ALJ R 741.
Mr Birrell agrees that the Magistrate held that foresight of the probability of the relevant risk was required. He contends that, in so doing, the Magistrate correctly construed the provision. He cites the decision of the Victorian Court of Appeal in Orbit Drilling Pty Ltd v The Queen[5].
[5] [2012] VSCA 82, (2012) 35 VR 399.
Ultimately, the meaning of the word “reckless” in section 26F(1)(c) turns on the construction of the provision, having regard to its text, context and evident purpose. However, I first address the authorities cited by the parties.
General authorities
There is apparently no authority on the meaning of the word “reckless” in section 26F of the Law. There are authorities on the element of recklessness in different offences.
As at 1985, when R v Crabbe[6] was decided:
the view taken in England and generally in Australia was that the degree of recklessness required to establish malice for the purpose of statutory offences other than murder was foresight of possibility of harm.[7]
[6] (1985) 156 CLR 464.
[7] Aubrey v The Queen (2017) 260 CLR 305 at [46] per Kiefel CJ, Keane, Nettle and Edelman JJ. (Footnotes omitted)
In R v Crabbe[8] the High Court held that, for the purpose of murder at common law, the degree of recklessness required to establish malice was foresight of the probability (or likelihood) of harm. Foresight of the mere possibility of harm did not suffice. The Court said:
There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm (as Stephen’s Digest of Criminal Law holds) or whether knowledge of a possibility is enough.
…The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. … If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm...
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 if death in fact results. 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.[9]
[8] (1985) 156 CLR 464.
[9] At 468, 469 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ.
The Court rejected a contention that the subject of the foresight should be divided between circumstances (exposure to risk) and harm (risk of death or grievous bodily harm). The Court said:
It was submitted on behalf of the Crown that a distinction can be drawn between foresight of the consequences of an act - i.e. what harm it would do if persons were in a position to be affected by it when it occurred - and a foresight of circumstances - i.e. of the fact that persons were in a position to be affected. There is no justification in logic or principle for drawing a distinction of this kind. The test simply is whether the accused person knew that his actions would probably cause death or grievous bodily harm.[10]
[10] At 470 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ.
In R v Coleman[11] the New South Wales Court of Criminal Appeal held, on an appeal in respect of a conviction for maliciously inflicting harm with intent to have sexual intercourse in contravention of section 61C of the Crimes Act 1900 (NSW), that the decision of the High Court in Crabbe did not affect the pre-existing law that, for offences other than murder, the degree of recklessness required to establish malice was foresight of possibility of harm. Hunt J (with whom Finlay and Allen JJ agreed) said:
At the time of that decision, it was also generally accepted law in Australia that, in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done … might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted…
…
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 of what I have described as the generally accepted law in Australia as to the meaning of “maliciously” in statutory crimes other than murder… The degree of reckless indifference required for the crime of murder, amounting to an act done “of malice” (or malice aforethought) is altogether of a different order to that required for lesser crimes. The contemplation by the accused of the probable consequence of death is required for murder because it has to be comparable with an intention to kill or to do grievous bodily harm. Such a test of probable consequences is by no means required in relation to lesser crimes as a matter of law, of logic or of common sense.[12]
[11] (1990) 19 NSWLR 467.
[12] At 475, 476. (emphasis in original)
In R v Nuri[13] the Victorian Court of Criminal Appeal, on an appeal in respect of a conviction for recklessly engaging in conduct placing a person in danger of death in contravention of section 22 of the Crimes Act 1958 (Vic), took a different view, applying the approach articulated as applying to murder in Crabbe to the offence of reckless endangerment. Young CJ, Crockett and Nathan JJ said:
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 not those consequences occur: see R v Crabbe.[14]
[13] [1990] VR 641.
[14] At 593. (Citation omitted)
In R v Campbell[15] the Victorian Court of Appeal, on an appeal in respect of a conviction for recklessly causing serious injury in contravention of section 17 of the Crimes Act 1958 (Vic), adopted the same approach to section 17 as the Court in Nuri adopted in respect of section 22. Hayne JA and Crockett AJA (with whom Phillips CJ relevantly agreed, although dissenting on the question of application of the proviso) said:
We have no doubt that the appropriate test to apply is that it is possession of foresight that injury probably will result that must be proved. [They then cited the passage from the High Court’s reasons for judgement in Crabbe that comprises the last paragraph from those reasons reproduced at [37] above].
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 said:
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 not those consequences occur.
…
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. 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.[16]
[15] [1997] 2 VR 585.
[16] At 592-593. (Emphasis in original. Citation omitted.)
In Mutemeri v Cheeseman,[17] in respect of the offence of recklessly engaging in conduct placing a person in danger of death considered in Nuri, Mandie J proceeded on the basis that “recklessly” required foresight of probability (albeit of exposure to danger rather than death) but no issue was raised in that case of probability versus possibility. In relation to the subject of the required foresight, Mandie J said:
Perhaps any confusion which exists has stemmed to a considerable extent from the juxtaposition of the accepted meaning of recklessness with the phrase “in danger of death”. Recklessness involves acting with indifference towards or in disregard of what is realised or foreseen to be the probable consequences of the relevant conduct. Danger has a meaning in this context of “liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril” … Thus, to be placed “in danger of death” is to be put in a position of liability or exposure to death or the condition of being exposed to the chance, risk or peril of death. Because danger of itself carries the notion of chance or risk, this aspect of chance or risk may tend to be equated or conflated with the notion of chance or risk involved in the “probability” of harm which, it is said, must be foreseen or realised by the reckless accused. This confusion may lead to the conclusion that acting recklessly under this section involves the realisation or foresight of the probability of the other person’s death whereas, as I have said, I consider that the section is concerned with the realisation or foresight of the probability of the other person’s exposure to the risk of death. I should add that I would respectfully agree that danger of death in this context means an “appreciable risk” of death.[18]
[17] [1998] 4 VR 484.
[18] At 490-491. (Citations omitted)
In R v Toms,[19] R v Lam[20] and R v Abdul-Rasool,[21] in respect of the same offence of recklessly engaging in conduct placing a person in danger of death, the Victorian Court of Appeal also proceeded on the basis that “recklessly” required foresight of probability and that the probability required was of exposure to danger of death rather than of death. The first two were sentence appeals and the last decision was an appeal against conviction on other grounds.
[19] [2006] VSCA 101 at [7] per Buchanan JA (with whom Vincent JA agreed and, although dissenting as to the result, Neave JA relevantly agreed).
[20] [2006] VSCA 162, (2006) 46 MVR 207 at [13] per Ashleigh JA (with whom Redlich JA and Bell AJA agreed).
[21] [2008] VSCA 13, (2008) 18 VR 586 at [60]-[61] per Redlich JA (with whom King AJA agreed).
In Orbit Drilling Pty Ltd v The Queen[22] Orbit pleaded guilty to recklessly engaging in conduct placing a person at a workplace in danger of serious injury in contravention of section 32 of the Occupational Health & Safety Act 2004 (Vic). Orbit appealed unsuccessfully against the sentence imposed. The Victorian Court of Appeal proceeded on the basis that “recklessly” required foresight of probability of exposure to danger of death rather than of death but no issue was raised in that case of probability versus possibility.
[22] (2012) 35 VR 399.
In Aubrey v The Queen[23] the defendant was convicted of maliciously inflicting grievous bodily harm in contravention of section 35(1)(b) of the Crimes Act 1900 (NSW), where “maliciously” was defined to include “recklessly”. The High Court unanimously held that this required only knowledge of the possibility, not the probability, of grievous bodily harm resulting. Kiefel CJ, Keane, Nettle and Edelman JJ (with whom Bell J agreed on this point although dissenting in the result on a different issue) approved the decision of the New South Wales Court of Criminal Appeal in Coleman, saying:
At the time of Crabbe, the view taken in England and generally in Australia was that the degree of recklessness required to establish malice for the purpose of statutory offences other than murder was foresight of possibility of harm. Consequently, as Hunt J concluded, nothing said in Crabbe in relation to the degree of recklessness required any change to that.
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 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. The same does not necessarily, if at all, apply to statutory offences other than murder.[24]
[23] (2017) 260 CLR 305.
[24] At [46]-[47]. (Footnotes omitted)
In DPP Reference No 1 of 2019[25] the defendant was convicted of recklessly causing serious injury in contravention of section 17 of the Crimes Act 1958 (Vic). The High Court held, at least by a majority, that as a matter of principle the decision in Campbell requiring knowledge of the probability of serious injury was inconsistent with the decision of the High Court in Aubrey. However, a majority held that, as the Victorian legislature had twice amended section 17 since the decision in Campbell on the premise that that decision was correct and as the decision had stood since 1997, it should not be overruled.
[25] (2021) 95 ALJ R 741.
Kiefel CJ, Keane and Gleeson JJ (dissenting in the result but not on the question of principle as between possibility versus probability) said:
In Aubrey v The Queen, this Court confirmed that the degree of recklessness required for the statutory offence of maliciously inflicting grievous bodily harm in New South Wales was foresight of the possibility of harm, not the probability of harm. Foresight that death or grievous bodily harm is a probable consequence is the test for common law murder, as this Court held in R v Crabbe. The reason for the higher test in the case of common law murder, the Court explained in Crabbe, is the near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death or grievous bodily harm. That rationale does not apply to offences other than murder.
That foresight of the possibility of harm was the correct standard of recklessness to apply to statutory offences other than murder was the view taken in England and generally in Australia, in 1985. In Aubrey it was observed that nothing said in Crabbe altered or required any change to that approach. Statutory provisions which involved recklessness in offences of that kind had consistently been construed to require foresight of the possibility of harm.[26]
[26] At [1]-[2]. (Footnotes omitted)
Gageler, Gordon and Steward JJ did not address the question whether Campbell was correctly decided in 1997 or whether it was inconsistent with Aubrey. Rather, they relied upon the fact that, as the Victorian legislature had twice amended section 17 since the decision in Campbell on the premise that that decision was correct and as the decision had stood since 1997, it should not be overruled.
Edelman J held that the decision in Campbell was inconsistent with Aubrey. However, for similar reasons to those given by Gageler, Gordon and Steward JJ (albeit with nuanced differences), he held that the decision in Campbell should not be overruled. In relation to the first point, Edelman J said:
[I]f the meaning of recklessness in s 17 were able to be developed in an unconstrained manner then, since s 17 concerns an offence of causing serious injury, the developed meaning given by all members of this Court in Aubrey would require recklessness in s 17 to mean: (i) that the accused person foresaw the possibility of harm but proceeded nonetheless to take that risk; and (ii) that, although expressed in various ways in Aubrey, the risk was unreasonable in the circumstances known to the accused. To follow the decision in Aubrey would have the salutary effect of overruling Campbell in circumstances in which: (i) the result in Campbell is wrong; (ii) the result is arguably inconsistent with an approach that might have been expected at the time the provision was enacted; (iii) the result is likely to be inconsistent with the approach taken in other States; and (iv) the result is inconsistent with the approach that should be taken to other Victorian offences apart from murder and, possibly, endangerment of life offences.
…
In effect, the decision in Campbell applied the exceptional meaning of recklessness – requiring foresight of the probability of serious injury – rather than that which, as this Court in Aubrey later explained, was the more widely understood meaning in Victoria and elsewhere in relation to an offence of that nature. By applying the reasoning in Aubrey it can be seen that the decision in Campbell was wrong.[27]
[27] At [64], [83]. (Footnotes omitted)
From the three decisions of the High Court referred to above, the following principles can be articulated:
1The general starting point is that an element of recklessness in a common law or statutory offence will be construed as requiring knowledge of possibility as opposed to knowledge of probability of the relevant event or subject matter.
2There is an exception to the first principle in the case of common law (and probably statutory) murder due to “the near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death”.
3The first principle is only a general starting point and, in the case of statutory offences, is subject to general principles of construction by reference to the text, context and evident purpose in relation to the specific offence.
4The first principle is also subject to more specific principles of statutory construction and in particular to what has been called the re-enactment presumption in respect of an earlier judicial decision, as a result of which the offence of recklessly causing serious injury in contravention of section 17 of the Crimes Act 1958 (Vic) requires knowledge of probability even though under general principles it would not otherwise do so.
Construction of section 26F
There are five elements of the offence created by section 26F:
1The defendant is a “party in the chain of responsibility” for a “heavy vehicle” and thereby has a duty under section 26C to ensure, so far as is reasonably practicable, the safety of their transport activities relating to the vehicle.[28]
2The defendant engages in conduct related to the duty.[29]
3That conduct exposes an individual to a risk of death or serious injury or illness.[30]
4The defendant does not have a reasonable excuse to engage in the conduct.[31]
5The defendant is reckless as to the risk of death or serious injury or illness.[32]
[28] s 26F(1)(a).
[29] s 26F(1)(b).
[30] s 26F(1)(b).
[31] s 26F(1)(b).
[32] s 26F(1)(c).
The fact that the subject of the recklessness in the fifth element is “risk of death or serious injury or illness” necessarily follows from the content and structure of subsection 26F(1). Paragraph (c) requires that “the person is reckless as to the risk”. The “risk” to which it refers must be the risk identified in paragraph (b), namely “risk of death or serious injury or illness”. It is not the risk of “exposure” to the risk of death or serious injury or illness because the reference in paragraph (b) to exposure comes before the reference to risk. The risk of death etc is a unitary concept.

In this respect, section 26F is structured quite differently to the provisions the subject of the Victorian decisions referred to above which distinguished between a probability (or possibility) of exposure to the risk of death (etc) as opposed to a probability (or possibility) of death (etc) eventuating. Whatever be the merits of the duality of the approach taken in those Victorian decisions (which was not picked up by the High Court in Aubrey or DPP Reference No 1 of 2019 and which had been rejected in respect of the offence of murder by the High Court in Crabbe), it can have no application to section 26F.
Starting with the text of section 26F(1)(c), the word “reckless” does not in itself usually require knowledge of the probability, as opposed to the possibility, of the adverse event occurring. In ordinary usage, the Oxford English Dictionary relevantly[33] defines “recklessly” to mean:
Without regard to consequences, rashly
[33] It also refers to mere carelessness, but it is clear that this is not encompassed by the use of word recklessly in section 26F(1)(c).
Similarly, when it forms an element of an offence, as identified above the starting point is that (other than in murder) it does not usually require knowledge of the probability, as opposed to the possibility, of the adverse event occurring.
Turning to the text of section 26F(1)(b), it refers to the “risk” of death etc and it is as to this risk that the defendant must be reckless. The concept of “risk” usually refers to a possibility, as opposed to a probability, of the adverse event occurring. In ordinary usage, the Oxford English Dictionary relevantly defines the noun “risk” to mean:
Hazard, danger ; exposure to mischance or peril
and the verb “risk” to mean:
To hazard, endanger; to expose to the chance of injury or loss
Within Chapter 1A of the Law, the concept of “risk” is also embodied in the duty created by section 26C. Section 26C, and the definitions of “public risk” and “safety risk called up by section 26C, treat safety and risk as opposites.
It is clear from the creation of the duty by section 26C that “safety” is not achieved merely by there being a less than 50 per cent chance of an adverse event occurring. On the contrary, the duty is to “ensure” the safety of the transport operations, subject to it being reasonably practicable to do so.
It is equally clear that the reference in section 26C to the avoidance and minimisation of risks is not confined to avoiding or minimising risks of events that have a greater than 50 per cent chance of occurring. The concept of risk in section 26F is the same as the concept of risk in section 26C.
The reference in section 26C to eliminating, or alternatively minimising, risk is inconsistent with risks being confined to risks of events that have a greater than 50 per cent chance of occurring.
The reference in section 26C to reasonable practicability and the definition in section 5 of “reasonably practicable” emphasise that the risks contemplated are not confined to risks of events that have a greater than 50 per cent chance of occurring. The definition requires a holistic assessment of what is reasonably practicable having regard, amongst other things, to the likelihood of the risk happening and the harm if the risk happens.
Subsection 26F(1)(b) creates an element of the offence that the defendant’s conduct “exposes an individual to a risk of death or serious injury or illness”. Given that this is a purely objective element, there is no reason to confine the risk the subject of this element to a risk of events that have a greater than 50 per cent chance of occurring. In turn, given the cross-reference by subsection 26F(1)(c) to the risk referred to in subsection 26F(1)(b), the risk for that purpose is not confined to a risk of events that have a greater than 50 per cent chance of occurring.
Turning to the other elements of the offence created by section 26F, the duty under section 26C is limited to a duty to ensure safety “so far as is reasonably practicable”. The definition of that phrase requires that there be a weighing up all relevant matters. These would include the social and other utility of the transport operation in question and expressly include the availability, suitability and cost of ways to avoid or minimise risk or damage. Further, it is an element of the offence that the defendant does not have a reasonable excuse for engaging in the conduct in question. These elements will ordinarily ensure that the reasonableness of the act, to which Kiefel CJ, Keane, Nettle and Edelman JJ referred in Aubrey v The Queen[34] as to be taken into account in assessing recklessness, has already been taken into account in relation to other elements of the offence.
[34] (2017) 260 CLR 305 at [49].
Turning to the context of section 26F within Part 3, the basic offence is that created by section 26H of which the elements are only that the defendant has and contravenes a duty under section 26C. This is an offence of strict or absolute liability.[35] There is no subjective or objective mental element such as negligence. An aggravated form of the basic offence is created by section 26G, which contains the additional objective element that the contravention exposes one or more individuals to a risk of death or serious injury or illness. Again, this is an offence of strict or absolute liability: there is no subjective or objective mental element such as negligence.
[35] It does not matter for present purposes whether it is subject to the defence of honest and reasonable belief.
Chapter 1 does not create an offence with a mental element of intention. Presumably this is because the legislature considered that intentional conduct in this respect is already adequately addressed by general law offences. The maximum penalty for a contravention of section 26F is imprisonment for five years. Thus, the considerations that led the High Court in Crabbe to hold that foresight of probability was required for murder because it was equated to intentional conduct do not apply.
Turning to the evident purpose of section 26F, and of Chapter 1A as a whole, it is clear that the evident purpose of section 26C is to impose a very high duty on operators in the heavy vehicle transport industry to ensure safety and avoid or minimise risks. The evident purpose of section 26F is to deter operators from engaging in reasonably avoidable conduct knowing that there is a risk of harm but proceeding nonetheless. The evident purpose suggests that recklessness only requires knowledge of the possibility, as opposed to probability, of such harm.
On the proper construction of section 26F, a person is reckless as to the risk of death or serious injury or illness if they are aware of the possibility of death or serious injury or illness occurring as a result of their conduct and nevertheless proceed to engage in that conduct. The possibility need not have a probability greater than 50 per cent, although it must be a real, as opposed to a fanciful or theoretical, possibility.
Even if I had not adopted the starting point referred to at [49] above, I would still have construed section 26F to the same effect. Further, even if on its proper construction the recklessness were as to exposure to risk of death etc as opposed to being as to risk of death etc, I would still have construed section 26F to the same effect.
In his submissions on appeal, Mr Birrell contends that it is not appropriate to apply the meaning of recklessness as set out in Aubrey to duty based safety schemes involving prosecutions already premised upon risk of harm. He contrasts general criminal offences involving malicious or intentional acts that cause harm or death with duty based offences arising from work based safety schemes requiring only proof of a risk arising from an unsafe state of affairs as opposed to an outcome of harm or death. He contends that the practical effect of recklessness only involving foresight of possibility rather than probability would be that many persons who commit the basic section 26H offence would also have committed the section 26F recklessness offence.
I reject these contentions. For the reasons given above, the fact that section 26F forms part of a safety-based scheme points in favour of recklessness requiring foresight of possibility rather than probability. The mere fact that potential harm, as opposed to actual harm, is an objective element of the section 26F offence is not a reason to construe recklessness as requiring foresight of probability.
It is difficult to speculate what proportion of persons who contravene section 26H would be proved beyond reasonable doubt to have known of the risk involving the possibility of death or serious injury or illness. However, proving that a person had that knowledge would not inherently be a light matter. For the reasons given above, the text, context and evident purpose of section 26F demonstrate that the legislative intention was to create an offence when the defendant knows of the risk involving a possibility of death or serious injury or illness and nevertheless proceeds to engage in the impugned conduct.
Mr Birrell contends that the construction advanced by the Regulator may result in businesses or personnel not undertaking pre-task hazard identification procedures so as to avoid the possibility of being prosecuted for recklessness in the event of a work-related accident. This seems unlikely but in any event there is no reason to consider that the legislature would have taken this view. Further, the postulated conduct by businesses or personnel would be counter productive.
Mr Birrell refers to observations by the High Court about social utility and reasonableness being taken into account in the assessment of recklessness. In Aubrey v The Queen[36] Kiefel CJ, Keane, Nettle and Edelman JJ said:
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… 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.
…But none of that provides a basis to replace the requirement of foresight of possibility with a test of probability.[37]
[36] (2017) 260 CLR 305.
[37] At [48]-[50]. (Footnotes omitted)
In DPP Reference No 1 of 2019[38] Edelman J went further and held at the first paragraph extracted at [48] above that it is an element of recklessness that “the risk was unreasonable in the circumstances known to the accused”. However, this approach was not adopted by any other High Court Judge.
[38] (2021) 95 ALJ R 741.
Mr Birrell contends that taking into account social utility demonstrates the problem caused by simply applying the test of foreseeability in risk-based safety legislation because it could be fairly said that all workplace safety legislation involves pro-social activities, which distinguishes it from the more general criminal offences.
However, the very fact that social utility is taken into account in assessing the level of possibility required to constitute recklessness accommodates risk-based safety legislation as much as it accommodates traditional criminal legislation in respect of anti-social acts.
Ground 1 is established.
Disposition of the appeal
It is common ground on appeal that, if ground 1 is upheld, the orders made by the Magistrate should be set aside and the matter remitted to the Magistrates Court for retrial.
It is therefore unnecessary, and inappropriate, to consider ground 2.
Conclusion
I allow the appeal. I set aside the orders made by the Magistrate acquitting Mr Birrell of count 1 and convicting him of the alternative section 26G charge. I remit the matter to the Magistrates Court for retrial.
I will hear submissions on any other orders sought.