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7.1.3 - Recklessness

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  1. In Victoria, an accused is said to have been reckless if they acted in the knowledge that a particular harmful consequence would probably result from their conduct, but they decided to continue their actions regardless of that consequence (R v Crabbe (1985)156 CLR 464).
  2. This definition applies to all Victorian offences involving recklessness (R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585; R v Kalajdic [2005] VSCA 160). In other Australian jurisdictions, for most offences involving recklessness other than murder, the accused need only foresee the possibility that harm might occur (R v Coleman (1990) 19 NSWLR 467; Stokes and Difford v R (1990) 51 A Crim R 25).
  3. Recklessness requires foresight on the part of the accused (of the probable consequences of his or her actions) and indifference as to whether or not those consequences occur (R v Nuri [1990] VR 641).
  4. When explaining recklessness, judges may tell the jury that the accused must have been aware that his or her conduct would probably cause the relevant consequence, but decided to go ahead anyway. The words “but decided to go ahead anyway” do not make proof that the accused was indifferent to the consequences of his or her conduct an element of the offence. Instead, the purpose of the words is to distinguish recklessness from intention. Judges may modify or omit the words “but decided to go ahead anyway” if the words could mislead or confuse the jury (see Ignatova v R [2010] VSCA 263; R v Crabbe (1985) 156 CLR 464; R v Sofa Vic CA 15/10/1990; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585; R v Wilson [2005] VSCA 78).
  5. The word "probable" means likely to happen (R v Crabbe (1985)156 CLR 464).
  6. The word "might" should not be used in relation to recklessness. It is a misdirection to say that recklessness is established when the accused knew that particular consequences "might" occur. Recklessness means that the accused knew that those consequences would probably occur (R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585).
  7. It is not necessary to prove that the accused acted recklessly in relation to the actual victim, as long as the accused had acted recklessly in relation to the risk of their behaviour causing injury to some person (La Fontaine v R (1976) 136 CLR 62; R v Bacash [1981] VR 923).
  8. Use of the word "reckless" should be avoided in charging the jury in murder trials, as it is liable to confuse them. Instead, the jury should be directed that the accused must have foreseen that death or really serious injury was a probable consequence of their actions (La Fontaine v R (1976) 136 CLR 62).

Last updated: 27 August 2013

In This Section

7.1.3.1 - Charge: Recklessness

See Also

7.1 - General Directions

7.1.1 - Voluntariness

7.1.2 - Causation

7.1.4 - Accident

7.1.5 - Course of Conduct Charges