Criminal law - Recklessness - Where s 17 of Crimes Act 1958 (Vic) provides that person who, without lawful excuse, recklessly causes serious injury is guilty of indictable offence - Where Court of Appeal of Supreme Court of Victoria in R v Campbell - [2021] HCA 26 - HCA 2021 case summary

Criminal law - Recklessness - Where s 17 of Crimes Act 1958 (Vic) provides that person who, without lawful excuse, recklessly causes serious injury is guilty of indictable offence - Where Court of Appeal of Supreme Court of Victoria in R v Campbell - [2021] HCA 26 - HCA 2021 case summary — Zoe

[8]

KIEFEL CJ, KEANE AND GLEESON JJ. In Aubrey v The Queen[1], 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[2]. The reason for the higher test in the case of common law murder, the Court explained in Crabbe[3], 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[4]. In Aubrey[5] 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[6].
An exception identified in Aubrey[7] to that approach was the decision of the Victorian Court of Appeal in R v Campbell[8], in 1995. That decision concerned s 17 of the Crimes Act 1958 (Vic), which came into force in 1986[9] and provided for the offence of recklessly causing serious injury. "Recklessly" was not defined. The Court of Appeal applied the standard of recklessness as requiring foresight of the probability of harm. In so doing, it overturned a line of authority in that State[10] which had consistently dealt with the test for recklessness in the way which had been generally accepted before Crabbe.
The Court of Appeal in Campbell reasoned[11] that, whilst Crabbe concerned murder, the same principles are relevant to the offence under s 17. An earlier decision of the Court of Criminal Appeal, R v Nuri[12], had applied a test of probability to the offence of recklessly engaging in conduct endangering life under s 22 of the Crimes Act. The Court in Campbell held that all relevant sections in this group of sections in the Act, including s 17, must apply the same test[13].
Aubrey[14] was concerned with the offence of maliciously inflicting grievous bodily harm in s 35(1)(b) of the Crimes Act 1900 (NSW) where "maliciously" was defined in s 5 to include "recklessly". The New South Wales Court of Criminal Appeal in R v Coleman[15] had rejected the reasoning later adopted in Campbell and instead applied the test of foresight of the possibility of harm. This Court held that it was correct to do so[16].

[11]

In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees[22] this Court said 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]'". The Court stated the proposition in short form, no doubt because its application was so clear in that case. In a case to which it referred, Barras v Aberdeen Steam Trawling and Fishing Co[23], this principle of statutory construction was said to apply where a word of doubtful meaning has received a clear judicial interpretation and the subsequent statute incorporates the same word or phrase in a similar context.
It has been said that the presumption should not be relied upon to perpetuate an erroneous construction of a statutory provision[24]. It is notable that in Alcan the reason why the presumption was applied was not only that the Parliament had re-enacted the provision in almost identical terms with those which had been considered; the decision construing the similar provision had also been accepted in a number of later cases as correctly applying the relevant principle and there was no reason to think that it was in any way affected by error[25].
It is the duty of appellate courts, and this Court in particular, to correct error. It would seem to follow that the terms of the re‑enactment, the circumstances surrounding it, or the context in which it is made must be such that the adoption by the legislature of the meaning assigned by the courts to the statutory term in question is tolerably clear. There have been cases, such as Alcan[26] and Electrolux Home Products Pty Ltd v Australian Workers' Union[27], where the courts have been able to conclude that there has been a clear case of legislative adoption.
The question which may be seen to arise in the cases is whether more is required for the presumption than the repetition of the words in a similar context in a subsequent statute. The "presumption" has been described as a "valuable presumption"[28] and a "presumption of no great weight"[29]. Much may depend on other factors, such as legislative history[30].
Dixon CJ in R v Reynhoudt[31] 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. If that is so, mere legislative inaction must surely be problematic[32]. In such a circumstance the presumption would not seem to arise. In Flaherty v Girgis[33], 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. Even re‑enactment of the words in circumstances not involving any reconsideration of their meaning will not do so.
In Flaherty v Girgis[34], their Honours spoke of this principle of interpretation as involving the drawing of an inference as to parliamentary approval, which in some cases may be difficult:

[28]

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 Court of Appeal made wrong assumptions about the legislature's thinking concerning the 1997 amendments. In truth, no occasion for the application of the principle of construction arose. There is nothing beyond the mere repetition of the word "recklessly" in the 2013 amendments to support the application of the principle. That fact alone is insufficiently clear to warrant an inference of legislative approval and there are no other factors which support such an inference.
It is not possible to characterise the broad subject of criminal justice as one of a "specialised and politically sensitive field"[49], such as industrial relations and taxation[50], to permit an inference to be drawn that the drafters must be taken to be aware of a particular judicial interpretation of the word "recklessly". It is more likely they were concerned with other issues relating to the new offences, as the Terms of Reference suggest. Otherwise one is left to speculate.
If the Parliament is taken to be aware of judicial decisions on the topic, it must also be taken to be aware that Campbell overturned a line of authority in Victoria to the contrary, as the Court of Appeal itself said in that case[51]; that the view generally in Australia as to the standard of foresight at the time of Crabbe was consistent with the cases overturned; and that the Court of Criminal Appeal of New South Wales had applied that standard with respect to a similar offence in 1990[52], prior to Campbell, and that that position had been maintained[53].
The mere passage of time since Campbell was decided in 1995 does not provide support for the application of the principle of construction. The inaction of the legislature is not a firm basis for the application of the principle. It may equally be consistent with leaving any correction of an interpretation of a term to the courts, as is often the case. Correcting the decision in Campbell would not be productive of substantial injustice. The criminal justice system in Victoria is able to adapt to the correction. It did so when Campbell overturned a line of authority dating back some 30 or more years. Those who have stood trial since Campbell have not suffered. They have benefitted from the prosecution being required to prove the necessary mental element to a much higher standard. For those who have not yet been tried of an offence under s 17, and to whom the lesser standard will apply, it is difficult to accept that their conduct is likely to have been based on an understanding that in causing serious injury they would not have to face trial on the basis of their foresight of the possibility of such harm. In any event, whilst injustice or inconvenience is an important factor to be taken into account, there is no support to be found in principle or authority for the proposition that a court should persist with a manifestly incorrect interpretation on those grounds[54].

[31]

GAGELER, GORDON AND STEWARD JJ. Section 17 of the Crimes Act 1958 (Vic), which came into force in March 1986[55], provides that "[a] person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence".
In 1995, in R v Campbell[56], the Court of Appeal of the Supreme Court of Victoria, invoking what was described as "[t]he spirit" of the decision of this Court in R v Crabbe[57] and following an earlier decision of the Full Court of the Supreme Court of Victoria in R v Nuri[58], held that in order for a person to be convicted of recklessly causing serious injury under s 17 of the Crimes Act, the prosecution must establish that the person foresaw that serious injury probably would result from the act or omission which in fact caused the serious injury[59]. In reaching that decision, the Court of Appeal declined to follow a line of previous authority[60] which held that it was sufficient to establish the mental element of the offences of unlawful and malicious wounding or unlawful and malicious infliction of grievous bodily harm to demonstrate foresight of the possibility of harm.
In 2017, in Aubrey v The Queen[61], in addressing "recklessness" for the purposes of the offence of maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900 (NSW), this Court cast doubt on the correctness of Campbell and noted, in particular, that nothing said in Crabbe in relation to the degree of recklessness necessary to establish offences against the person other than murder required any shift from foresight of possibility to foresight of probability of harm. This Court nevertheless recognised that "[t]he requirements in States other than New South Wales may vary according to the terms of each State's legislation"[62].
This case concerns the present correctness of Campbell. It arises in this way. In February 2017, an accused was relevantly charged under s 17 of the Crimes Act with recklessly causing serious injury to a man who fell to the ground and suffered serious injury to the skull and brain. In August 2019, the accused was tried before a jury in the County Court of Victoria. 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 and, instead, directed the jury consistently with Campbell. The accused was acquitted by the jury.
The DPP referred the correctness of the decision in Campbell, as a point of law, to the Court of Appeal for its opinion[63]. The DPP submitted that, consistent with this Court's decision in Aubrey, 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. The acquitted person, who appeared by counsel[64], submitted that the decision in Campbell should remain the law in Victoria. The Court of Appeal (Maxwell P, Priest, Kaye, McLeish and Emerton JJA) unanimously answered the point of law that "[u]nless and until it is altered by legislation, the meaning of 'recklessly' in s 17 of the Crimes Act ... is that stated by the Court of Appeal in ... Campbell".
By special leave to appeal, the DPP sought to have this Court reconsider Campbell. As these reasons will explain, the point of law was answered correctly by the Court of Appeal.

[44]

The 1997 and 2013 amendments were significant, substantive and direct. The 1997 amendments increased by 50 per cent the maximum penalty which could be imposed for a contravention of s 17[110]. And, insofar as the 2013 amendments changed the meaning of "serious injury"[111], that altered the scope of liability created by s 17. Plainly, these amendments were not a "[m]ere amendment of a statute not involving any re-enactment of the words in question" or a "re-enactment of the words in circumstances not involving any reconsideration of their meaning"[112].
As has been observed, temporal proximity between a judicial interpretation and subsequent enactment may be significant. The 1997 amendments were made just two years after Campbell was decided. And while the 2013 amendments were made many years after the decision of the Court of Appeal in Campbell, many subsequent decisions of the Court of Appeal which applied Campbell were decided contemporaneously with those amendments[113].
The 1997 and 2013 amendments also followed expert reviews and extensive consultation with key stakeholders in the criminal justice system[114]. Contrary to a submission made by the DPP, the fact that those reviews were not carried out by law reform commissions does not detract from their significance or context[115]. Criminal law is and had by 1997 become in Victoria a "specialised and politically sensitive field" in the sense contemplated in Electrolux Home Products Pty Ltd v Australian Workers' Union[116]. Criminal law has a "designated Minister" (the Attorney-General) and a "designated ... Department of State" (the Department of Justice)[117]. It is "no fiction" to attribute to the Attorney‑General and the Department and, through them, Parliament, knowledge of decisions dealing with their portfolio, especially where, as here, the reviews were undertaken at the request of the Attorney‑General[118].
The application of the re-enactment presumption does not depend on expert reviews or specific legislative amendments directed towards the precise issue − the meaning of recklessness in s 17[119]. However, adopting and adapting what was said in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher, it is difficult to imagine that the decisions in Nuri and Campbell - cases concerning the meaning of recklessness - were not known to those involved in the field as interpretive decisions of considerable significance[120]. This is especially so given that the amending enactments significantly and directly altered the nature and extent of the criminality and culpability of a contravention of s 17 of the Crimes Act. In relation to the 2013 amendments, the SAC report did expressly identify the meaning of recklessness by reference to the decision in Nuri (which Campbell followed)[121].
The identified error in Campbell − the adoption of a construction of the element of recklessness for the offence of recklessly causing serious injury under s 17 of the Crimes Act that an accused must have foresight of the probability and not the possibility of relevant consequences − is not insignificant. If the meaning of a statute is wrong, it should be corrected. The difference here is that even if, when s 17 was enacted, the mental element of recklessness, consistent with Crabbe, should have been interpreted as the possibility and not probability of relevant consequences, the 1997 and 2013 amendments were based on the nature and extent of the criminality and culpability of a contravention of s 17 as stated in Campbell (which followed Nuri), not Crabbe. Those amendments, and the basis for those amendments, cannot be put to one side.
The DPP's reliance on a policy preference for consistency in the meaning of like provisions in different States as a reason for this Court to alter the meaning of s 17 of the Crimes Act is misplaced. The maximum penalty for committing the s 17 offence in Victoria is 15 years' imprisonment, while the maximum penalty for the equivalent New South Wales offence is currently ten years' imprisonment[122]. Each State has taken a different view on the criminality to be ascribed to the conduct.
Other considerations reinforce the conclusion that the foresight of probability test in Campbell should stand unless addressed by the legislature in Victoria. Campbell was decided in 1995, more than 25 years ago, and since that date it has been consistently followed in Victoria[123]. This Court is reluctant to depart from long‑standing decisions of State courts upon the construction of State statutes, particularly where those decisions have been acted on in such a way as to affect rights[124]. That is especially so here, where unfairness would follow if the meaning of recklessness was changed retrospectively by this Court[125] with the result that potentially criminal conduct which occurred before this Court's decision - if that conduct has not yet been charged, or if it has been charged but not tried - would attract the lower standard of recklessness contended for by the DPP and where the DPP conceded that the decision of this Court on s 17 of the Crimes Act would have a "flow‑on effect" for other offence provisions in Victoria.

[46]

This appeal is from a decision of the Court of Appeal of the Supreme Court of Victoria[126] on a reference brought by the Director of Public Prosecutions[127] following an acquittal of the accused person. The Court of Appeal considered the meaning of recklessness in s 17 of the Crimes Act 1958 (Vic). The offence in s 17 is committed where a person, "without lawful excuse, recklessly causes serious injury to another person". The Court of Appeal held that the courts of Victoria should not follow the approach unanimously taken by this Court in Aubrey v The Queen[128] to the meaning of "recklessness" in a differently worded New South Wales provision. Instead, it was held that the courts of Victoria should continue to follow the decision of the Court of Appeal of the Supreme Court of Victoria in 1995 in R v Campbell[129].
The appeal to this Court raises two important questions. The first is the meaning that Parliament intended for the word "recklessly" when s 17 of the Crimes Act was introduced by the Crimes (Amendment) Act 1985 (Vic)[130]. In light of the answer to the first question, the second question is whether this Court should give s 17 the meaning given to the concept of recklessness in Aubrey or the meaning given in Campbell.
The answer to the first question is that 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. 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"[131]. The intention of Parliament was therefore that the law as to the meaning of recklessness be developed and incrementally clarified in the manner of the common law[132].
As to the second question, if 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[133] 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.
I have, however, and not without considerable hesitation, reached the conclusion that recklessness in s 17 nevertheless should not bear the developed judicial meaning given to recklessness in Aubrey. Instead, the interpretation to be given to recklessness in s 17 should be that of the Court of Appeal in 1995 in Campbell[134]. This is not a case where this Court is applying an essential meaning intended by Parliament in an unexpected way to new or different circumstances or practices[135]. Nor is it a case where this Court is applying the essential meaning intended by Parliament in an unexpected way in light of a different understanding of facts and circumstances[136]. Rather, in circumstances where the essential meaning of "recklessly" in s 17 was left to judicial development, this conclusion involves a judicial application, albeit an application that involves some inconsistency and lack of principle, which is necessary to preserve the fabric of the law in light of subsequent judicial decisions and statutory changes.
There are three significant constraining factors, explained in detail in the reasons below, which lead to this unusual conclusion on the second question. First, although the approach in Aubrey is more principled, prior to the decision in Aubrey the decision in Campbell could not have been thought to be plainly wrong. The difference is not as stark as might first appear between (i) the judicial meaning given to recklessness in Aubrey, and (ii) the judicial meaning given to recklessness in Campbell. In effect, Campbell aligns the meaning of recklessness in cases of offences involving the causing of serious injury with the meaning of recklessness in offences involving murder or, possibly, endangerment of life. Secondly, the decision in Campbell has formed part of the background for amendments to the penalties and related provisions in the Crimes Act. Although this is not a case where a provision - in this case, s 17 - has been subsequently amended or re‑enacted with an intention to give the provision a particular meaning[137], the judicial development of the meaning of recklessness cannot ignore the subsequent amendment of provisions of the Crimes Act against the background of the judicially determined meaning in Campbell. Thirdly, the judicial meaning of recklessness in Campbell has been adopted in the courts of Victoria for 26 years without any obvious inconvenience. There could be real unfairness in the imposition of a new judicial interpretation which, in effect, would retroactively criminalise uncharged or untried conduct over that long period.

[48]

In Aubrey[138], one issue was the meaning of an "act ... done recklessly" within the definition of "maliciously" in s 5 of the Crimes Act 1900 (NSW). In the joint judgment of Kiefel CJ, Keane, Nettle and Edelman JJ[139], with whom Bell J agreed on this point[140], it was observed that, since at least 1883, the notion of recklessness had been judicially developed to embrace "foreseeing the possibility of consequences and proceeding nonetheless"[141]. The joint judgment explained that this aspect of the usual judicially applied meaning of "recklessness" had been a long‑standing position in Victoria[142].
But this was not the only meaning of recklessness. An exception to this judicially applied meaning, recognised by this Court in Aubrey, is where recklessness is an element of the offence of common law murder or the offence contained in s 18 of the Crimes Act 1900 (NSW) requiring "reckless indifference to human life"[143]. The joint judgment in Aubrey[144] approved the reasoning of Hunt J in R v Coleman[145] that 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".
The difference between the meaning of recklessness for most offences (which focuses upon foresight of the possibility of the consequences) and the meaning in the context of murder and, possibly, offences involving reckless indifference to human life (which focuses upon foresight of the probability of the consequences) is not as stark as first appears. A further requirement has always been necessary before recklessness can be found on the test based upon foresight of the possibility of the consequences, although in many cases no further direction to a jury as to this additional requirement will be needed. That further requirement is that the risk must be unreasonable in the circumstances known to the accused. As explained below, this further requirement is not wholly separate from assessments of the probability or possibility of the consequences. Hence, it was said in the joint judgment in Aubrey[146] that "the reasonableness of an act and the degree of foresight of harm required to constitute recklessness in so acting are logically connected".
In Aubrey, the joint judgment gave examples of situations which illustrate the need for recklessness to contain the further requirement - in addition to the requirement of foresight of the possibility of the relevant consequence - by reference to acts such as driving a motor car or playing a contact sport[147]. If recklessness required no more than mere foresight of the possibility of serious injury then any time a person drove a car or played a contact sport the person might be reckless. The joint judgment referred to the "social utility" of these acts and to the willingness of an accused to "run the risk", the notion of which was said to include the reasonableness of the act[148]. Ultimately, however, it was not necessary for this Court in Aubrey to consider how to articulate the further requirement because no jury direction to that effect was needed: "there was never any question of the jury proceeding on the basis of foresight only of a bare possibility of harm"[149]. Similarly, in this case it could not have been suggested that there was anything reasonable in the conduct by which serious injury was caused, which was alleged to be a kick by the acquitted person to the head of the victim.
In oral submissions in this Court, the appellant dealt with a different example, given by the English Law Commission[150]:

[51]

The difficulty with the concept of social utility, apparently suggested by Glanville Williams[153] and Professor Fitzgerald[154], lies in its association with a Benthamite metric of overall welfare. But the sense in which it was used as a further requirement of recklessness was more closely aligned with an enquiry about the reasonableness of the risk in situations which are either normal or abnormal with the attendant considerations that apply to each. For instance, Glanville Williams said that "driving cars has social utility" and is "regarded as generally reasonable and as justifying the taking of some risks"[155]. Because the activity is one which is normal, it is one in which society has accepted the reasonableness of the underlying risk[156]. The same reasonableness enquiry can extend to abnormal activities which Glanville Williams described as involving social utility, such as a field surgeon performing an urgent operation which requires them to run the risk of choosing an unsterilised scalpel[157]. Again, social utility is a label which conceals the real enquiry - the implicit reasonableness assessment - involving consideration of the "magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have"[158].
As to the language of whether the accused was willing to "run the risk" of causing the same kind of harm as that alleged[159], this language was first suggested in later editions of Dr Kenny's work on criminal law[160]. It was followed by Glanville Williams[161]. The difficulty with that expression is that every foreseen risk will be run when an accused person persists with the relevant conduct. And, as Glanville Williams recognised, almost every activity in society involves risks. In order to avoid running risks, he said, we "should have to abjure canned food, uncooked food, reheated food ... bath‑tubs, gas fires, electric fires, coal fires, oil burners, stairs, lifts, machines of every kind"[162]. In an earlier text he had said that "everyone who drives a car knows that a possible consequence is that he will kill a pedestrian, but a killing is not for that reason reckless"[163].
The language of "risk‑taking", as Glanville Williams observed, is really only legally relevant when it "becomes an act of negligence (whether inadvertent negligence or recklessness)" and this occurs "only when it is unreasonable in the circumstances"[164]. Writing at around the same time, Professor Hart had spoken of recklessness as "wittingly flying in the face of a substantial, unjustified risk, or the conscious creation of such a risk"[165]. This notion of an "unjustifiable" or "unreasonable" risk was followed by the American Law Institute in its Model Penal Code[166]. And, in England in R v G[167], Lord Bingham of Cornhill, with whom the other Lords of Appeal agreed, required that the risk taken was, in the circumstances known to the accused, unreasonable.
Once it is appreciated that recklessness always requires the taking of an unreasonable risk, then it can be seen that "[i]f foresight of possibility is to suffice then the justification should be founded on the distinct basis that the nature of the risk does not warrant the taking of even slight chances"[168]. Other than such cases, the difference between foresight of possibility and foresight of probability can be much reduced by the additional element of unreasonableness.

[52]

Although the background of judicial exposition of an expression can be a significant factor in ascertaining the meaning intended by Parliament, the importance of such judicial background should not be overstated[169]. The reasoning in Aubrey establishes that, at the time s 17 of the Crimes Act was enacted, recklessness in relation to serious injuries other than death was generally thought to require foresight of the possibility of the injury rather than the probability of the injury. Section 17 commenced operation in 1986 against the background that, in the context of a test for malice in relation to serious injuries, the foresight of the possibility of the consequences had prevailed as a requirement for recklessness in Victoria for more than 20 years[170].
Nevertheless, the precise meaning of recklessness was not clear. As Gummow, Hayne and Heydon JJ said in Banditt v The Queen[171], "[t]he term 'reckless' has various uses as a criterion of legal liability". A different meaning of recklessness had been espoused for at least a decade in the context of murder[172], and was described as "settled law"[173] the year before s 17 came into force. Further, the additional requirement - the unreasonableness of the accused taking the risk in the known circumstances - had not yet been clearly enunciated. And it had been said of "malice", in which the Victorian approach to recklessness had been developed, that "[f]ew words have caused more trouble both at common law and in the interpretation of statutes"[174].
In the Second Reading Speech for the Bill that introduced s 17, the Attorney-General for Victoria said that the old sections concerned with malice were to be replaced with new ones. Although the Attorney‑General said that the Bill was "not intended in any way to reduce the coverage of these serious offences"[175], he also observed that many of the proposals in it had been based on the fourteenth report of the Criminal Law Revision Committee of England and Wales[176]. That report had observed that there was no unanimity as to the ordinary meaning of the word "recklessness" in the criminal law and that it would be "most unsatisfactory" to leave the term undefined since the courts would soon "find themselves bound to rule upon conflicting submissions by counsel"[177]. In other words, in the absence of legislative definition, the development of recklessness would be left to the courts. The legislative definition proposed by the Criminal Law Revision Committee was: (i) that the accused foresaw that their act might cause the particular result; and (ii) that the risk of causing that result which they knew they were taking was, on an objective assessment, an unreasonable risk to take in the circumstances known to the accused[178].
Against this background, the intention of the Victorian Parliament in enacting s 17 must have been to leave the development of the meaning of recklessness in that section to the courts from 1986 when the section commenced. Generally for the reasons given in Aubrey in relation to the enactment by the New South Wales Parliament of s 5 of the Crimes Act 1900 (NSW), it might have been expected that the developed meaning of recklessness would require an accused person to have foresight of the possibility, not the probability, of injury of that kind. Indeed, in the Second Reading Speech in the Legislative Assembly it was observed that[179]:

[59]

As explained above, as a matter of principle the approach to recklessness in the context of serious injury when s 17 was enacted, as now, should require foresight only of the possibility of serious injury rather than foresight of the probability of serious injury. Nevertheless, there is difficulty in concluding that this is a clear, correct meaning of recklessness in circumstances in which: (i) the concept of recklessness was entangled historically with the concept of malice; (ii) recklessness bears a different meaning at least in the context of murder; (iii) there is uncertainty surrounding the manner of defining the additional requirement of unreasonableness before recklessness will be established; and (iv) the additional requirement of unreasonableness may have the effect in many cases of increasing the likelihood of the serious injury that must be foreseen.
Another development in the law prior to Campbell further highlights this difficulty. Prior to the decision in Campbell, the decision in Nuri extended the approach in Victoria to recklessness in relation to the element of "reckless indifference to human life" for the offence of murder to offences involving reckless endangerment of life generally. Nuri concerned the offence created by s 22 of the Crimes Act of recklessly engaging in conduct that places or may place another person in danger of death. That general endangerment offence replaced a large number of disparate offences concerning life‑endangering behaviour that were previously found in the Crimes Act[191]. The Court of Criminal Appeal said in Nuri that the "expression 'recklessly' may not give rise to difficulty. It has for long been employed in statutory offences."[192] There was no issue in dispute about the appropriate test for recklessness. It was assumed that the meaning of recklessness in the context of murder involving a reckless indifference to human life - which requires foresight by the accused of the probable consequences of their action - was the same in the context of reckless endangerment of human life.
The decision in Nuri was not considered by this Court in Aubrey. It is unnecessary in this case to consider whether the further contraction in Nuri was correct. It suffices to say that Nuri is a further illustration of the difficulty of drawing sharp lines around the different meanings of recklessness.

[62]

A heavy focus of the submissions on behalf of the acquitted person, and in the reasoning of the Court of Appeal, was the legislative changes made by the Victorian Parliament to the Crimes Act after the decision in Campbell. Two sets of amendments are relevant.
The first set of amendments, in 1997, two years after the decision in Campbell, was contained in the Sentencing and Other Acts (Amendment) Act 1997 (Vic). Those amendments made changes to the penalties in large swathes of criminal legislation, including at least 60 changes to the Crimes Act alone. The changes to the Crimes Act included increasing the maximum penalty for the s 17 offence from ten years' imprisonment to 15 years' imprisonment[195].
As senior counsel for the acquitted person submitted, the 1997 amendments followed an extensive review by a Crown Prosecutor. Prosecutions under s 17 were a large part of the work of the criminal division of the County Court of Victoria and the Crown Prosecutor interviewed over 100 judges, magistrates, and other stakeholders[196]. The resulting increase in penalties was not wholly independent of the decision in Campbell, since the requirement from that decision of foresight of a probability of injury necessarily meant that the offending was, at least to some degree, more serious than would have been the case if the foresight required had only been of a possibility of injury.
The legislative changes did not involve repeal and re‑enactment of s 17 of the Crimes Act with a new meaning to be attributed to s 17. But in circumstances where the intention of Parliament in originally enacting s 17 was to leave the development of recklessness to the courts, and since the statutory maximum sentence is context for interpretation of the meaning of s 17, the argument that s 17 should bear the meaning attributed to it in Campbell became stronger in 1997. Just as the "effect of [an] amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment"[197], so too an amending Act can constrain or alter the development of an open‑textured statutory concept.
The second set of amendments occurred in 2013 by the Crimes Amendment (Gross Violence Offences) Act 2013 (Vic). The relevant changes made to the Crimes Act were to replace the definition of "serious injury" for offences, including s 17, and to insert new offences of "gross violence", including an aggravated form of the s 17 offence which involved gross violence[198]. The reason for the replacement of the definition of "serious injury" was said to be that the relevant offences were engaged at "a very low threshold"[199]. In other words, even with the higher threshold in Campbell of foresight of probability of injury, the offences were still seen as engaged at a low threshold. But the extent to which the 2013 amendments should constrain the further development of recklessness from the decision in Campbell depends upon whether Campbell could be taken to have been considered by Parliament in enacting the 2013 amendments.
On the one hand, it might be said that the 2013 amendments should not substantially constrain the development of the meaning of recklessness in s 17 because, at the time of the 2013 amendments, the correctness of the decision in Campbell had been called into question. In Blackwell v The Queen[200], the Court of Criminal Appeal of the Supreme Court of New South Wales had declined to follow Campbell. Beazley JA (with whom James J agreed) relied in part upon the different legislative history of the New South Wales offence[201], which then concerned malice rather than recklessness. But her Honour added that the decision in Campbell was "inconsistent with authority in the High Court, New South Wales and in England"[202]. The decision of the High Court to which her Honour had referred was the decision in Banditt[203], where, in the context of considering the meaning of recklessness as to consent to sexual intercourse in s 61R(1) of the Crimes Act 1900 (NSW), Gummow, Hayne and Heydon JJ quoted from Sir John Smith with approval: "If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly."
On the other hand, none of the extrinsic materials concerning the 2013 amendments referred to any of these decisions, or expressed any doubts about the correctness of the decision in Campbell. The existing legal position was considered by the Attorney-General for Victoria, who said in his Second Reading Speech that the government had "carefully considered" a report of the Sentencing Advisory Council[204] and that it had "adopted many of" the Council's recommendations[205]. That report had said of s 17, with a footnote to Nuri[206], that the element of recklessness will be satisfied by proof 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"[207]. On balance, the 2013 amendments are a source for some constraint in the development of the meaning of recklessness. Together with the 1997 amendments, however, that constraint becomes significant.

[67]

It may be that the same result is also required for the alternative offence in s 15B, inserted in 2013[211], and possibly for offences such as recklessly engaging in conduct that places or may place another person in danger of death[212]. But the error in Campbell in relation to s 17 has not necessarily entrenched this meaning of recklessness for all other offences in the Crimes Act. Without more, it is unlikely that the Campbell decision will require identical elements of other offences to be treated differently the moment that a person steps across the border between New South Wales and Victoria. For instance, there are numerous offences involving recklessness where the laws of New South Wales and Victoria were enacted in nearly identical terms and thus plainly by reference to each other with the need for coherent operation: being reckless as to whether something is proceeds of crime[213]; being reckless as to whether conduct corrupts a betting outcome of an event[214]; being reckless as to the spread of fire to vegetation[215]; and being reckless as to any impairment of access to, or the reliability, security or operation of, any data held in a computer[216].
Even in the application of the Campbell decision to s 17 in this confined way, the decision of a majority of this Court in this case (including myself) has some unattractive consequences. First, it creates incoherence in the application of the same statutory concept across different Australian States. The s 17 offence of recklessly causing serious injury to another person will be subject to a more onerous test for recklessness than the offence in New South Wales requiring that a person is "reckless as to causing actual bodily harm"[217]. Secondly, in exceptional cases, the application of the Victorian approach could lead to surprising results[218]. But, for the three reasons explained above, any development of the meaning of recklessness to address these consequences is a matter for Parliament. The development of the law by the exercise of legislative power, in its usual prospective operation and as a product usually of careful policy consideration, is not constrained in the same way as judicial power.

Criminal law - Recklessness - Where s 17 of Crimes Act 1958 (Vic) provides that person who, without lawful excuse, recklessly causes serious injury is guilty of indictable offence - Where Court of Appeal of Supreme Court of Victoria in R v Campbell

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