Culpable recklessness and innocent negligence: inferences from conduct

How does a court decide what a defendant foresaw about the consequences of his acts?

The difference between foreseeing and not foreseeing consequences can be important. It is the distinction between intention or recklessness on the one hand, and negligence or blameless inadvertence on the other hand.

Some offences are offences of negligence (careless driving, carelessly discharging a firearm, and so on), and criminalisation of negligence is done by express words or clear legislative intent.

Recklessness, in contrast, is usually sufficient for liability, but again this depends on the language creating an offence.

Negligence and recklessness have their own meanings, resulting from judicial interpretation of legislation, but these too are subject to any specific enacted meanings that may apply.

In Li v Chief of Army [2013] HCA 49 (27 November 2013) recklessness as to the occurrence of circumstances was required by legislation which applied certain provisions of the Criminal Code (Cth): [19]-[22]. These circumstances were the interruption of order that was caused by the defendant’s intentional acts, on a charge of creating a disturbance:

“[28] The service offence created by s 33(b) of the DFDA is therefore best construed as relevantly having two physical elements, to each of which the Criminal Code attaches a distinct fault element. The first physical element is conduct, for which the fault element is intention: it must be proved that the defence member or defence civilian charged did the act, and meant to do the act. The second physical element is the result of that conduct, for which the fault element is recklessness: it must be proved that the act resulted in a disturbance (being a non-trivial interruption of order), and that the defence member or defence civilian charged either believed that the act would result in a disturbance or was aware of a substantial risk that the act would result in a disturbance and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk.[emphasis added]

So, back to the first question: how would a fact-finder decide whether the defendant was aware of the substantial risk of a disturbance (and so was reckless), as opposed to finding that he failed to be aware of a risk that a reasonable person would have been aware of (and so was merely negligent)?

It is easy to answer this when the defendant has confessed to having been aware of the risk, but what if there is no such admission?

The temptation will be to decide that if a reasonable person would have been aware of the risk, then the defendant must have been aware of it too. But this is the same as holding the defendant liable on negligence grounds, which here are insufficient.

Plainly, the fact-finder– again, in the absence of a confession – will need to identify something in the defendant’s words and actions at the relevant time to support an inference that he was aware of the risk of a disturbance. In many cases this will not be difficult, but the facts of Li, at least as related in the High Court’s judgment, do suggest that drawing the necessary inference here might be more difficult. The Court ordered that the conviction be quashed.

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