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:

Appeals without precedent

Yesterday was a busy day for the Court of Appeal. Ashley and Weinberg JJA handed down 4 separate sentence appeal decisions, all of which contained the following peculiar catchword

Appeal decision without precedent value

The decisions were all highly fact-based, though Dow v R [2010] VSCA 274 and Sharkey v R [2010] VSCA 273 both adverted to the issue of how declarations of guilty plea discount can be used as a ground of appeal.

Not all laws are equal

As most lawyers are aware, manslaughter by an unlawful and dangerous act is a common law offence that occurs, in broad terms, when a person unintentionally causes the death of another by an unlawful act which a reasonable person in the position of the accused would have realised would expose another person to an appreciable risk of serious injury. Courts have, however, expressed various views on what is an 'unlawful act' for this purpose. In particular, before a dedicated offence of culpable driving existed, there was debate on whether the multiplicity of driving offences in various road safety acts and regulations could constitute an unlawful act.

The high point in Australia for excluding driving offences from the unlawful act doctrine appears to be R v Rau [1972] Tas SR 59, where Burbury CJ states:

The media and the law

The Australian's Chris Merrit has had a good week reporting on Chief Justice Marilyn Warren's Richard Searby oration. By my count, there have been at least three separate reports and the oration has prompted one editorial in the Australian. The Sydney Morning Herald and the Age have also gotten in on the act, publishing edited extracts of the speech and on Friday the Herald Sun joined the chorus.

Though while scorekeeping can be an interesting game in itself, the more interesting part concerns the particular responses of the media.

The wrong question

Giuseppe De Simone, property developer, ice-cream lover and human rights campaigner, has had another unsuccessful experience in the Court of Appeal.

Last Friday, in De Simone v Bevnol Constructions, the Court knocked back Mr De Simone's latest attempt to obtain a stay of civil proceedings concerning a dispute over the construction of a retirement village in Ocean Grove. The case concerns the principles from McMahon v Gould, and the power of an inferior court or tribunal to refer questions of law to the Supreme Court.