DPP disputes acquital over the meaning of "Recklessness"
Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26 (1 September 2021)
The trial judge followed the rule in R v Campbell [1997] regarding recklessness. However, the Director of Public Prosecution opposes the same alleging that the charge to the jury in relation to the element of recklessness should be in accordance with Aubrey v The Queen (2017). The Court, in adjudicating this dispute, relied upon the intent of the Parliament as well as the Amending Act.
Facts:
Proceedings in the County Court of Victoria involved a charge brought under s 17 of the Crimes Act where the trial judge declined the invitation of the Director of Public Prosecutions ("the DPP") to charge the jury in relation to the mental element of recklessness in accordance with Aubrey, considering himself bound to follow Campbell.
The accused, charged with recklessly causing serious injury to a man who fell to the ground and suffered serious injury to the skull and brain. The accused was acquitted by the jury. The DPP for Victoria referred to the correctness of the decision in Campbell as a point of law for the opinion of the Victorian Court of Appeal.
The DPP submitted that the correct interpretation of recklessness for offences against the person other than murder (and, in particular, the offence of recklessly causing serious injury under s 17 of the Crimes Act) is that an accused had foresight of the possibility of the relevant consequences and proceeded nevertheless. In Aubrey v The Queen (2017) 260 CLR 305, the 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. It was observed that nothing said in Crabbe altered or required any change to such approach. The exception to this approach was found in R v Campbell which concerned s 17 of the Crimes Act 1958 (Vic) and provided for the offence of recklessly causing serious injury.
The Court of Appeal applied the standard of recklessness as requiring foresight of the probability of harm because while Crabbe concerned murder, the same principles are relevant to the offence under s 17.
Issues:
I. Whether or not Parliament left the meaning of recklessness in s 17 of Crimes Act to courts.
II. Whether or not recklessness in s 17 of Crimes Act has the meaning stated in Campbell.
Applicable law:
Crimes Act 1958 (Vic) s 17 - provides that person who, without lawful excuse, recklessly causes serious injury is guilty of indictable offence.
Sentencing and Other Acts (Amendment) Act 1997 (Vic) ("the Amending Act") - altered the maximum penalties for a large number of offences.
The Crimes Amendment (Gross Violence Offences) Act 2013 (Vic) - introduced offences of intentionally and recklessly causing serious injury "in circumstances of gross violence" into the Crimes Act.
R v Campbell [1997] 2 VR 585 - where Court of Appeal of Supreme Court of Victoria held that recklessness means person foresaw that serious injury probably will result from act or omission.
Aubrey v The Queen (2017) 260 CLR 305 at 329 [46] - where the 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.
R v Crabbe [1985] HCA 22; (1985) 156 CLR 464- where it was held that foresight that death or grievous bodily harm is a probable consequence is the test for common law murder.
R v Nuri [1990] VicRp 55; [1990] VR 641 at 643- applied a test of probability to the offence of recklessly engaging in conduct endangering life under s 22 of the Crimes Act.
R v Coleman (1990) 19 NSWLR 467 - rejected the reasoning later adopted in Campbell and instead applied the test of foresight of the possibility of harm.
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34- where the Court held that "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]'".
R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 at 388- Dixon CJ said that it was "quite artificial" to take the mere repetition in legislation of a provision which has been judicially considered as legislative approval of that decision.
Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 at 594 - Mason A-CJ, Wilson and Dawson JJ said that mere amendment of a statute not involving any re‑enactment of the words in question could seldom be taken as approval.
Analysis:
The legislature had successively endorsed the decision in Campbell in legislative amendments it had made since that decision. Parliament having "repeatedly approved" that decision, any change to the test there stated is a matter for Parliament. 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. The Parliament had eschewed the strong call to define the concept of recklessness, preferring simply to refer to the developing judicial concept of recklessness by which "in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time".
Whatever factors may be necessary to permit with some certainty a conclusion that the legislature has adopted or approved a previous judicial meaning assigned to a word or phrase, the process in which the presumption is applied is one of statutory construction of the subsequent provision. In the Amending Act, no part of the body of s 17, including the word "recklessly", was enacted as part of the amending provision. There is nothing to suggest that in making the increases to the maximum penalty for many offences the legislature turned its mind to Campbell. The amending provision itself makes no reference to the word "recklessly" or to the s 17 offence more generally.
There is nothing beyond the mere repetition of the word "recklessly" in the 2013 amendments to support the application of the principle.
Conclusion:
The Court held that it cannot be concluded that, subsequent to Campbell, the Victorian Parliament adopted the meaning of "recklessly" given in Campbell by reference to the two amending statutes relied upon in the joint judgment. The Parliament is best understood to have intended to leave the essential meaning and development of the concept of recklessness in s 17 to the judiciary. The interpretation to be given to recklessness in s 17 should be that of the Court of Appeal in 1995 in Campbell. The Court ordered to dismiss the appeal. The Director of Public Prosecutions (Vic) is ordered to pay the acquitted person's reasonable costs.
