The Meaning of ‘Recklessness’ in Victorian Criminal Law

Liberty Victoria has had the opportunity to consider the detailed submission of the Criminal Bar Association of Victoria (CBA), and we respectfully endorse it and its recommendations. In particular, we agree that

(1) The common law test for recklessness of probability, applied without issue in Victoria for the last 26 years, should not be changed;

(2) The current test is readily understood by juries, has not been shown to cause any issues following its long-standing application, and is accompanied by simple jury directions;

(3) One of the main arguments in favour of reform – that of greater consistency between comparable jurisdictions – is flawed given key differences between the relevant offence provisions and elements of the offences, especially between Victoria and New South Wales; and

(4) In Victoria, a range of prospective penalties have been developed and implemented with reference to the current threshold (including maximum penalties, presumptive, mandatory and standard sentences), and any amendment would necessitate a significant overhaul of penalties applicable not only to offences where ‘recklessness’ is the fault element but also related offences.