5.4 Recklessness

Inquiries about recklessness in criminal trials are usually retrospective.  To say that a risk was substantial, it is necessary to adopt the standpoint of a reasonable observer at the time of the allegedly reckless conduct, before the outcome was known. The risk is substantial if a reasonable observer would have taken it to be substantial at the time the risk was taken. It is no answer to an allegation of recklessness with respect to a risk of some harmful result that hindsight reveals, for some reason of which the offender was quite unaware, that the harm could never have eventuated.⁸⁴ Since it is the reasonable observer who sets a standard against which the defendant will be measured, this notional figure may be in possession of more information than the defendant and will usually be endowed with far better judgement about risks than the defendant. Of course there is no liability unless it can be proved that the defendant was aware of the risk. That requirement is discussed below. The first step, however, is to establish that there was a risk and that the risk was “substantial”. The standard is obviously vague. It also involves significant conceptual problems. A finding of recklessness with respect to death is sufficient fault for murder, the most serious of offences. But recklessness is also the general presumptive threshold requirement for the most trivial of offences in federal law. The Code requirement of “substantial risk” appears to have been chosen for its irreducible indeterminacy of meaning. The same difficulty is apparent in the common law, which oscillates between the requirement that the anticipated result must have been “likely” or “probable” and the lesser requirement that it be merely “possible”.⁸⁵

One nugget of comparative certainty can be extracted from these diverse sources. References to “likelihood” and “probability” do not mean that the risk must be one which was more likely than not.⁸⁶ Between these uncertain poles of likelihood and possibility, academic opinion and judicial precedent are equally diverse in their conclusions. Successive editions of Howard’s Criminal Law maintain the position that the requirement of substantial risk varies in stringency with the degree of social acceptance of the conduct which gave rise to the risk.  If the conduct is without redeeming social  value, anything in excess of a “bare logical possibility” is said to count as a “substantial” risk.⁸⁷ Other academic treatises are more circumspect, though most appear to accept that recklessness extends to “possible” risks in offences other than murder.⁸⁸ Professor Gillies surveys a range of offences in which recklessness is the fault element and concludes that the meaning varies with the context of application: “Some cases posit the probability test; others are satisfied with the possibility test”.⁸⁹ Discussion of the issue  in  reports issued by the Model Criminal Code Officers Committee reflects these uncertainties.⁹⁰

Like intention (s5.2) and knowledge (s5.3), the definition of recklessness appears to have been intended to require proof of conscious awareness of  risk of a particular result or circumstance. It is not enough to establish that the risk was obvious, well known or within the defendant’s past experience. That is, at best, evidence of recklessness.⁹¹ To be aware of a risk is to be conscious of it and, in the absence of consciousness of risk, the case is one of negligence at most. So, for example, it is highly unlikely that a motorist   who causes a catastrophic explosion by lighting a cigarette while filling a car with petrol at a service station could be described as reckless with respect to that risk. In the absence of any indication that the motorist was bent on suicide, the obvious explanation of the motorist’s conduct is an absence of awareness of the risk. Smokers may be said to gamble with their lives in the long run, but they rarely gamble on the chance that the next cigarette will  kill them instantly.

Conduct which involves a substantial risk will not amount to criminal fault  if the risk was justifiable in the circumstances.  There is very little case law  on the possibility of justification. In Crabbe,92 which concerned recklessness as a fault element in murder, there was passing mention of the defence of necessity, which might justify a surgeon’s decision to undertake a risky operation which provided the only hope of prolonging the victim’s life. However, claims that a risk was justified will be rare. In practice, the exercise of discretion in the selection of cases for prosecution will usually ensure that any claim of justification for risk taking is without substance. In cases where the issue of justification might arise, it will tend to be subsumed under the defences of duress or sudden or extraordinary emergency: 10.2 Duress; 10.3 Sudden or extraordinary emergency. These defences are excuses, which require a less demanding standard of human fortitude than justification. The requirements of both defences are satisfied if the conduct of the individual was a “reasonable response” in the circumstances – a standard that permits the defendant to be judged by reference to the frailties of ordinary, reasonable human beings.⁹³ The need to face the question whether a risk was justified simply does not arise if the conduct of the accused was a reasonable response to a threat made by another person or to a sudden or extraordinary emergency. The twin filtering devices of prosecutorial discretion and the pre-emptive  role of the excuses probably account for the complete absence of reported cases in which a charge of reckless wrongdoing was defeated by a plea of justification. Though the point is of theoretical rather than practical interest, it should be noted that the claim of justification is not available if the consequence or circumstance was intended or known to be certain to accompany or follow the defendant’s conduct in the ordinary course of events.⁹⁴

Like intention, recklessness is a state of mind which can extend to results which may or may not come to pass. Prior to the event, the individual is reckless with respect to the riskthat some harmful result may follow. Some offences of recklessness impose liability for causing harm and in these, liability requires proof of recklessness with respect to the harm. In other offences of recklessness, however, liability is imposed for creating a risk of harm, though the harm may never eventuate. In these offences the risk is itself the incriminating result of the offender’s conduct.⁹⁵

CORRUPTING BENEFITS: THE CASE OF RECKLESS BRIBERY

The bribery provisions of the Code distinguish between intentional bribery, the more serious offence, and reckless bribery:  141.1 Bribery of a Commonwealth public official; 142.1 Corrupting benefits given to, or received by, a Commonwealth public official. The lesser offence requires proof that the benefit “would tend to influence a public official…in the exercise of the official’s duties”. The prosecution must prove recklessness with respect to the fact that the benefit has that tendency.⁹⁶ Recklessness, that is to say, with respect to a risk which may never eventuate in harm. The fact that the provision of the benefit has that tendency is a circumstance which accompanies the offender’s conduct.

Most offences are a compound of conduct and circumstance. So, for example, it is the circumstance that goods are stolen that makes it criminal for someone to receive them with knowledge of their provenance. In the absence of legislative provision on the issue of fault, the prosecution must prove recklessness - awareness of a substantial risk - with respect to the incriminating circumstance: s5.6(2). However, if the offence requires proof of intention or knowledge, more is required than mere awareness of a substantial risk that the circumstances exists or will come to pass. Circumstances are intended only if the offender believes that they exist or believes that they will come into existence: s5.2(2). Circumstances are known if the offender is aware that they exist or will come into existence: s5.3.

RECKLESS FACILITATION OF CRIME BY ANOTHER; THE MONEY LAUNDERER

It is anticipated that new legislation for money laundering offences  will supersede existing provisions in the Proceeds of Crime Act 1987 (Cth).  It  is likely that the proposed offences will include an offence  of dealing with money or other property in a way which results in a substantial risk that the money or property will become an instrument of crime in the hands of another. Suppose, for example, a case in which the offender lodges money in an account to which a drug dealer has access and from which it can be expected that illicit drug purchases will be funded. Quite apart from any possible liability as an accomplice or conspirator, a legislature may seek to impose liability for conduct that facilitates the trafficker’s illicit activities. The risk that the account will be used in this way could be described as result of the offender’s act of lodging money in the account. It could also be described as a circumstance accompanying that act. Nothing turns on the distinction between circumstance and result here. Either way, liability can be imposed for conduct which is reckless with respect to circumstances which present an opportunity for criminal activity by another person.

In Code usage the term “result” is confined to the results of the offender’s conduct. Accordingly, the offender cannot be reckless with respect to the results of another person’s conduct, nor can the offender be reckless with respect to the circumstances of another person’s conduct. However, some offences impose liability on offenders whose conduct creates a risk of criminal activity by others. The best known examples are prohibitions against conduct which facilitate the commission of crime by another. These crimes are, in effect, crimes of inchoate complicity.⁹⁷ One can imagine, for example, a legislative provision which makes it an offence to sell a weapon to another in circumstances where provision of the weapon might enable the other to commit an offence.  In the definitional structure of   the Code the weapon seller cannot be said to be reckless with respect to the conduct of the customer. In these prohibitions the fault element of recklessness, manifest in the offender’s conduct, attaches to the risk that the other person will cause harm. Creation of that risk can be considered to be a result of the offender’s conduct.  Offences which take this form will be comparatively rare.   They find   a place, however, in prohibitions directed at controlling conduct in organised networks of potentially criminal activity. Money laundering offences provide  the most obvious examples.

83. Model Penal Code: Proposed Official Draft (ALI 1962) s2.02(2)(c)

84. When circumstantial elements of an offence are in issue, risks will often dissolve into certainties, from the perspective of the reasonable observer. The circumstantial element of consent in rape provides the most obvious example of this. Here, inquiry into the recklessness issue is limited to the offender’s subjective appreciation of the circumstances.

85. Boughey (1986) 161 CLR 10.

86. Victorian decisions on recklessness adhered for a time to the requirement that the risk be more likely than not: see Nuri (1989) 49 A Crim R 253. That requirement was abandoned when exposed to the testing case of Russian roulette: see Faure (1993) 67 A Crim R 172.

87. Fisse, Howard’s Criminal Law (1990) 489-491.

88. S Bronitt & B McSherry, Principles of Criminal Law (2001) 183; R Muragason & L McNamara, Outline of Criminal Law (1997) 126 provide a useful collection of New South Wales authorities for the proposition that recklessness requires proof of possible rather than likely risks when offences other than murder are in issue. Their assertion that South Australian case law requires likelihood rather than possibility has been overtaken by subsequent case law: see Tziavrangos v Hayes (1991) 53 A Crim R 220. In Victoria, see Campbell [1997] 2 VR 585.

89. P Gillies, Criminal Law (4th Ed 1997) 64.

90. MCC Ch5: Fatal Offences Against The Person (Discussion Paper 1998) 53-59: MCC Ch2: General Principles of Criminal Responsibility 29-31 Compare the offence of rape, in which any realisation of any risk at all that the victim has not consented must count as “substantial”: MCC Ch5: Sexual Offences Against the Person 67-91. The case of rape is atypical however. The offence involves recklessness as to a known circumstance - absence of consent - rather than a contingent future event. Moreover the provisions on sexual offences substantially modify the definition of reckless- ness: see Division 2 - Sexual Offences Committed Without Consent.

91. See, in particular, Ch 2, s9.1(2). 92 (1985) 156 CLR 464.

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93. See, for example, Zecevic (1987) 162 CLR 645.

94. See, in particular, the implications of Ch 2, s5.4(4), which permits proof of intention in lieu of recklessness.

95. The Model Criminal Code offers illustrative examples. Chapter 5 - Non Fatal Offences Against The Person proposes a series of offences committed by individuals who recklessly endanger another’s life or limb: The prohibited “result”, in these prohibitions, is the “danger of death” or “danger of serious harm” caused by the offender’s conduct. See MCC ss5.1.25 Recklessly endangering life; 5.1.26 Recklessly endangering serious harm. In the Commonwealth Code, 135.1(5) General dishon- esty and 474.1(3) General dishonesty with respect to a carriage service provider, characterise loss and risk of loss alike, as results of the offender’s dishonest conduct.

96. The requirement of recklessness, which is not stated in the provision, is supplied by 5.6 Offences that do not specify fault elements.

97. Ch 2 s11.1(7) Attempt, follows the common law and bars liability for an attempt to become an accomplice or an attempt to conspire.