This notion, that malice requires no more or less than that the defendant intend that the prescribed harm take place, or that he or she acts recklessly in respect of it in the sense that the defendant does an act causing it to happen without the desire that it should happen but knowing that there is a risk that it will happen, has been approved in Australia [ Vallance v R ( 1961) 108 CLR 56 at 59, 73; Blevins ( 1988) 48 SASR 65].
46 It was submitted that the second meaning in the dictionary, an "act of ill-will or hatred", is not likely to have been intended by the parties. It was submitted that it would not be a relevant or useful sense of the word for the purposes of the parties to an insurance policy and would serve no practical commercial purpose for an insurer to exclude liabilities incurred merely because they were accompanied by ill will or personal hatred. On the other hand it was submitted that utility can be seen in an insurer excluding cover where liability has arisen from acts perpetrated with wrongful intention, that is, deliberate, intended, wrong doing or action accompanied by indifference to foreseen risks, being recklessness.
47 The plaintiff also referred to the meaning of "malice" in the Macquarie Dictionary that defines the term as (1) desire to inflict injury or suffering on another and (2) Law. Evil intent on the part of one who commits a wrongful act injurious to others. It was submitted that this definition supports the abovementioned submissions.
48 Reference was also made to the term "malice" in the law of defamation. A defence of qualified privilege may be defeated by the plaintiff proving "express malice" which in context has come to mean "a purpose or motive that is foreign to the occasion [of the qualified privilege] and actuates the making of the statement": Roberts v Bass (2002) 212 CLR 1 at 30 [75]. It was submitted that the use of the term malice in the law of defamation and in the law of malicious prosecution referred to in Trobridge v Hardy have emerged from the evolution of the common law in those areas and that such usages are not of assistance in determining the meaning of the term "malicious" in clause 21(a) of the Policy.
49 Mogul Steamship Company v McGregor Gow, & Co, & Ors (1889) 23 QBD 598 was a case in which the plaintiff and the defendants were rival shipowners vying for market share in the tea trade between China and Europe. The defendants had formed an association that offered the merchants and shippers in China that shipped their tea exclusively with members of the association a 5% rebate on all freights paid by them. The plaintiff was excluded from the benefits of the association and sued the defendants for damages for an alleged conspiracy to prevent the plaintiff carrying out its trade between London and China. Lord Coleridge C.J. found for the defendants (21 QBD 544) and the appeal to the Court of Appeal was dismissed. Bowen LJ, with whom Fry LJ agreed, Lord Esher MR dissenting, said (at 612- 613):
We were invited by the plaintiffs' counsel to accept the position from which their argument started - that an action will lie if a man maliciously and wrongfully conducts himself so as to injure another in that other's trade. Obscurity resides in the language used to state this proposition. The terms "maliciously," "wrongfully," and "injure" are words all of which have accurate meanings, well known to the law, about which also have a popular and less precise signification, into which it is necessary to see that the argument does not imperceptibly slide. An intent to "injure" in strictness means more than an intent to harm. It connotes an intent to do wrongful harm. "Maliciously," in like manner, means and implies an intention to do an act which is wrongful, to the detriment of another. The term "wrongful" imports in its turn the infringement of some right. The ambiguous proposition to which we were invited by the plaintiffs' counsel still, therefore, leaves unsolved the question of what, as between the plaintiffs and defendants, are the rights of trade. For the purpose of clearness, I desire, as far as possible, to avoid terms in their popular use so slippery, and to translate them into less fallacious language wherever possible.
50 His Lordship said later (at 613):
Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong [see Brommage v Prosser 4 B. & C. 247; Capital and Counties Bank v Henty (1882) 7 App. Cas. 741 at 772].
51 I am of the view that the expression "malicious" in clause 21(a) of the Policy should be construed in the context in which it appears taking its colour from the words and expressions within the clause. This is a clause excluding the insurer's liability for the intentionally wrongful or wilful acts or omissions of the insured. The concepts of dishonesty and fraud and wilful violations and breaches seem to me to suggest that the insured's conduct that disqualifies him from indemnity must be intentional. I am of the view that a "malicious" act or omission referred to in clause 21(a) of the Policy relevant to the issues in this case is an act or omission done or made for the predominant purpose of inflicting harm or damage to another person.
Reckless
52 In Banditt v The Queen (2005) 80 ALJR 421; [2005] HCA 80, the High Court was considering an appeal in which the appellant had been convicted at a jury trial of an offence under s 112(1) of the Crimes Act 1900 (NSW) (the Act) for the serious indictable offence under s 61I of the Act of having sexual intercourse without the consent of the other person with knowledge that the other person did not consent. Section 61R of the Act deals with knowledge under s 61I of the Act and provides, inter alia, that knowledge includes being "reckless as to whether the other person consents". An appeal to the Court of Criminal Appeal was dismissed. The appellant complained that the trial judge misdirected the jury in relation to recklessness in two passages in the summing up by directing them that "recklessness" included: "If he was aware that there is a possibility that she is not consenting but he goes ahead anyway" and "or at least he recognised that there was a possibility that she may not consent but he went ahead and did it anyway": reproduced at 425 [14].
53 Gummow, Hayne and Heydon JJ said (at 422-424):
1. The term "reckless" has various uses as a criterion of legal liability. This appeal turns upon one such use of the term in the New South Wales criminal law, but it is convenient first to consider some aspects of the civil law.
2. When "reckless" is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown "that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false" [ Derry v Peek (1889) 14 App Cas 337 at 374 per Lord Herschell]. But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek [at 374]:
"[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states."
This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result.
3. To these expositions of the civil law by Lord Herschell and Lord Esher there may be added the following statement by Lord Edmund-Davies in his dissenting speech in R v Caldwell [[1982] AC 341 at 358]:
" So if a defendant says of a particular risk, 'It never crossed my mind,' a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant's admission that he 'closed his mind' to a particular risk could prove fatal, for, 'A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter'. [See Glanville Williams, Textbook of Criminal Law (1978), p. 79]."
(Original emphasis)
4. In La Fontaine v The Queen [(1976) 136 CLR 62] Gibbs J discountenanced, in those States where legislation did not adopt terms such as "reckless" or "reckless indifference", their use in summing up at a trial on a murder count. His Honour said (at 76-77):
" To tell a jury that they may convict of murder when they are satisfied that the accused acted with recklessness or reckless indifference is to invite confusion between murder and manslaughter resulting from criminal negligence. In many, if not most, cases where the Crown alleges that the accused acted knowing that his act would probably cause death or grievous bodily harm it will also be alleged by the Crown, in the alternative, that the accused was guilty of criminal negligence. The expression 'reckless' is also used to describe that very high degree of negligence which, if it causes death, amounts to manslaughter [see Andrews v Director of Public Prosecutions [1937] AC 576 at 583; Evgeniou v The Queen (1964) 37 ALJR 508 at 509]. It is not easy to explain to a jury the difference between the reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter."
5. Particular questions about recklessness in murder and disputes about distinctions between probable and possible consequences, which were considered in La Fontaine , do not presently arise. However, it may be noted that in R v Crabbe [(1985) 156 CLR 464 at 468-469 per Cibbs CJ, Wilson, Brennan, Deane and Dawson JJ] they were resolved consistently with the views of Gibbs J.
6. As Gibbs J noted in La Fontaine , criminal offences may be created by statute with a criterion of recklessness or reckless indifference. One such law is s 1(1) of the Criminal Damage Act 1971 (UK) which was considered by the House of Lords in R v G [[2004] 1 AC 1034]. Section 1(1) states:
"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."
In G , the House of Lords held that foresight of consequences was an essential ingredient of recklessness in s 1(1) and that a formulation which made no allowance for a defendant's youth or lack of mental capacity when assessing obviousness of the risk of damage to property was erroneous.
7. In his speech in G , Lord Bingham of Cornhill rejected the proposition that the above construction of the statute would lead to the acquittal of those whom public policy would require to be convicted. His Lordship said (at 1057):
"There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant's assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done."
54 Their Honours also said (at 429 [36]):
It may well be said that "reckless" is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, "reckless" may indicate conduct which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an "objective", the latter a "subjective", hue. These considerations make it inappropriate for charges to juries to do no more than invite the application of an ordinary understanding of "reckless" when applying s 61R(1).
55 Callinan J, in agreeing that the appeal should be dismissed, said (at 429; footnotes omitted):
108. The fact that competing submissions can plausibly be made, the plethora of articles, and the different judicial and legislative formulations advanced or enacted, demonstrate only one matter clearly, that attempts to define "recklessness" are bound to give rise to, and have given rise to unnecessary uncertainty. "Reckless" is an old and well understood English word. It has been said that there are no true synonyms in the English language. The search for a truly synonymous phrase or expression will equally, frequently be likely to be futile. It is true as Gummow, Hayne and Heydon JJ point out that in different branches of the law and different enactments recklessness may have different elements. It is equally true that on occasions in the law a word will need explanation, elaboration, or definition, but that need tends to arise most often by reason of an uncertain or ill-expressed context of which it forms part. Section 61R is not such a context. The clause "who is reckless as to whether the other person consents to the sexual intercourse" is a perfectly simple one. I do not accept that it is beyond the capacity of a jury to understand and give effect to it, without judicial exegesis, particularly in modern times when juries are composed indiscriminately of the sexes.