The Meaning of "Recklessness"

In Blackwell v R [2011] NSWCCA 93, the Court had something to say of importance for offences which have recklessness as an element.

The NSW Court of Criminal Appeal defined the meaning of “recklessly causes grievous bodily harm” for the purposes of the offence of reckless grievous bodily harm under s 35(2) Crimes Act. Beazley JA said at [82] (James J at [120] and Hall J at [170] agreeing with this observation): 

“… there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean ‘some physical injury’”. [Emphasis in original.]

The court held that when directing a jury for an offence under s 35(2) Crimes Act, trial judges should direct the jury that the Crown must prove beyond reasonable doubt that the accused foresaw the possibility of grievous bodily harm.

The type of rule that Blackwell speaks of, applies where an offence provides for a specific form of harm, such as offences with the ingredients “recklessly inflicts actual bodily harm” (ss 61J, 61JA, 61K, 66C, 80A, 95, 109–113, 154C and 195) or “recklessly by any means … wounds” (ss 60(3)–(3A), 60A(3), 60E(3)) or “recklessly inflicts … any grievous bodily harm”: ss 42, 60E(3)(b). 

An injury is caused recklessly if the accused realised that the harm — actual bodily harm, wounding or grievous bodily harm — may possibly be inflicted upon the victim by his or her actions, yet he or she went ahead and acted as he or she did.

The Judicial Commission of NSW has provided this recommended direction for use in jury trials:

“The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury was [caused/inflicted] recklessly by the accused. An injury is [caused/inflicted] recklessly if the accused realised that [insert applicable ingredient: grievous bodily harm/wounding/actual bodily harm] may possibly be [caused/inflicted] upon the victim by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of [his/her] act and at least realised the possibility of [insert applicable ingredient: grievous bodily harm/wounding/actual bodily harm] occurring.”

Aaron Kernaghan