Recklessness and indifference

The law recognises a significant difference between intention and recklessness. An intention involves an actual desire to achieve an outcome, while recklessness involves an awareness that conduct is likely to produce a certain result. The High Court's classic judgment in Crabbe v R (1985) 156 CLR 464 states that:

A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen's Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.

Despite the High Court's clear statement that indifference is not an element of the necessary mental state, Victorian courts have routinely referred to a requirement of indifference when describing the meaning of recklessness. Victoria's caselaw on recklessness for various statutory offences is generally traced to R v Nuri [1990] VR 641, where the court said:

Presumably conduct is relevantly reckless if there is foresight on the part of an accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur: see R v Crabbe (1985) 156 CLR 464; 59 ALR 417

As a result, juries have routinely been directed that the element requires that the accused acted "knowing that serious injury might occur and taking the risk of doing so": R v Campbell [1997] 2 VR 585.

Strangely, it has taken almost 20 years for the Court of Appeal to point out that the highlighted portion of the above statement from Nuri is contrary to the very authority it cites in support. Indifference is not part of the element of recklessness. In Ignatova v R [2010] VSCA 263, Neave JA succinctly pointed out that:

The Court in Campbell referred to R v Crabbe, a case involving a murder conviction, and R v Nuri, a case concerning, among other things, a count of conduct endangering life, as authority for the proposition that it was insufficient to satisfy the mental element of the relevant offence to show that the accused foresaw that there was a possibility that injury might result. In Nuri, the court cited Crabbe in support of the proposition that conduct is reckless if the accused foresees the probable consequences of the action and ‘displays indifference as to whether or not those consequences occur’. However, in Crabbe, the High Court said that reckless indifference was not an element of the mental state necessary for murder: ‘It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element’

Similarly, in the area of sexual offences, indifference has been alive and well for some time. In R v Daly [1968] VR 257, the court held that the mens rea of rape at common law was:

that the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting, or else realized she might not be, and determined to have intercourse with her whether she was consenting or not.

In Banditt v R (2005) 224 CLR 262, a majority of the High Court (Gummow, Hayne and Heydon J) rejected the argument that indifference was part the meaning of recklessness in rape (at least under the New South Wales legislation), stating:

The appellant’s submission that proceeding with an awareness of a risk of non-consent cannot suffice without the “discrete mental state” described as “Even if I know, I would continue. It does not matter to me”, should not be accepted.

Despite this, Victorian judgments still seem to treat indifference as an essential component. Back in July, the Court of Appeal in Worsnop v R [2010] VSCA 188 held that section 37AA of the Crimes Act 1958 did not have the effect thought by the explanatory memorandum. Section 37AA states:

• For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—
• (a) any evidence of that belief; and
• (b) whether the belief was reasonable in all the circumstances...

In contrast, the explanatory memorandum stated:

The directions make it clear that evidence or an assertion of a belief in consent is to be taken into account when determining whether the prosecution has proven beyond a reasonable doubt that the accused was aware that the complainant might not be consenting. Evidence of, or an asserted belief in, consent, even if accepted by the jury, is not necessarily determinative of whether the prosecution has met this burden.

That is to say, belief in consent and awareness of the possibility of an absence of consent are not mutually exclusive. In circumstances where the prosecution has satisfied the jury beyond a reasonable doubt that an accused person was aware that the complainant might not be consenting, if the jury are equally satisfied in relation to the other elements, then they should convict irrespective of whether they accept the evidence or assertion that the accused believed the complainant was consenting

The court held that, in light of earlier authorities, proof (or a reasonable doubt) that the accused believed the complainant was consenting will disprove the mental element of rape. This position is traced back to R v Flannery [1969] VR 31, where the court held:

The existence of such a belief necessarily negatives an awareness that the woman was not consenting, or a realization that she might not be and a determination to have intercourse with her whether she was consenting or not.

As a matter of logic, it is very difficult to understand how the court can assert that belief and awareness are equivalent. I can certainly believe that it will be a nice day tomorrow, while being aware that Melbourne weather is inherently unpredictable and so I might be wrong. In the area of sexual offences, where the underlying policy is for a 'communicative model' of consent, it does not seem unreasonable to punish conduct where a person sexually penetrates another, while the other person is not consenting and while the person is aware of the possibility that the other person is not consenting. An argument that bare awareness will punish the skeptical or especially cautious, while exonerating the thoughtless may be correct, but only where the prosecution prove that the complainant was not consenting. In that situation, the harm to the complainant exists regardless of the accused's awareness and so the law then uses the accused's state of mind to determine culpability.

The explanation for this peculiar situation lies, I suspect, in the phrase "and a determination to have intercourse with her whether she was consenting or not". While awareness and belief may be different, a determination to act regardless seems inconsistent with an belief that the person is consenting. This phrase, however, seems equivalent to the notions of indifference that has been rejected in the recklessness context by Crabbe and in the sexual offences context by Banditt. Those changes, occurring after Flannery, should have provided an opportunity to distinguish the earlier authorities drawing an equivalence between awareness and belief. While Ignatova reaffirmed that indifference is unnecessary, it remains to be seen is whether that will be extended to the sexual offences area.