Special Bulletin 23 (revised) — June 2011
Blackwell v R [2011] NSWCCA 93
Meaning of “recklessly” in Crimes Act 1900 (NSW)
The Bulletin applies to offences which have recklessness as an ingredient following the repeal of malice under s 5 Crimes Act by the Crimes Amendment Act 2007. The repeal of s 5 applies to offences under s 35 committed on or after 27 September 2007 and to the remainder of offences referred to in the amending Act committed on or after 15 February 2008.
In Blackwell, the 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 no longer define recklessness by reference to the definition in R v Coleman (1990) 19 NSWLR 467 of having a foresight of the possibility that some injury might result. Rather, trial judges should direct the jury that the Crown must prove beyond reasonable doubt that the accused foresaw the possibility of grievous bodily harm: Blackwell at [78].
The holding in Blackwell extends beyond offences under s 35(2). The problem that occurred in Blackwell only arises 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).
There is little, if any, difference between the word “causes” in s 35(2) and the word “inflicts” as referred to above. Therefore, for offences with the ingredient “recklessly cause/inflict a particular kind of harm” after the repeal of malice under s 5 Crimes Act 1900 (NSW), the definition of recklessness — that the accused had foresight of the possibility that some physical harm might result but proceeded anyway — no longer applies. 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. Below is a suggested direction for the ingredient “recklessly” that will be added to the “Recklessness” section of the Bench Book. Other consequential amendments will be made to Recklessness at [4-090] and the Notes in Malice at [3-590].
[4-090] Suggested direction — Offences with the ingredient recklessly cause/inflict a particular kind of harm after the repeal of malice under s 5 Crimes Act 1900 (NSW).
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.