Tuesday, January 24, 2006


What does "reckless" mean? Where a person can be guilty of a crime if he has acted with a state of mind called "recklessness", we need to know whether recklessness is to be given a subjective or an objective meaning.

As all criminal lawyers know, the meaning of recklessness was a matter of huge debate in the latter part of the 20th century. This occurred first in relation to the crime of rape. It was clear that having sexual intercourse intending to do so knowing that the woman did not consent was sufficient for guilt, because "intention" is the usual mental requirement for liability. But what about intending to have sexual intercourse, knowing that there was a risk that the woman was not consenting, but hoping that she was? This state of mind, the deliberate taking of a known risk, is recklessness with a subjective meaning, if the taking of the risk was unreasonable. It is "subjective" because the man knew of the risk.

An illustration of the objective meaning of recklessness is where a man has sexual intercourse, thinking that the woman is consenting, but in circumstances where any reasonable person would have been aware of the risk that she was not. This is "objective" because it refers to what the reasonable person would have known, not what the man himself knew.

Although it was not done with great clarity, it seems that the subjective meaning of recklessness was applied by the House of Lords in R v Morgan [1976] AC 182, where the offence in question was rape. It was felt, however, that policy required an objective interpretation of recklessness for some offences, such as arson: R v Caldwell [1982] AC 341 (HL). This view was changed, and Caldwell was overruled, in R v G [2004] 1 AC 1034 (HL). Lord Bingham put it this way, in para 32:

"conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable… . The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if … one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."

In New Zealand, the subjective meaning of recklessness is applied: R v Harney [1987] 2 NZLR 576 (CA), R v Tihi [1989] 2 NZLR 29 (CA).

This whole topic was aired recently in the High Court of Australia, considering New South Wales legislation in Banditt v R [2005] HCA 80 (15 December 2005). This was a case of rape, and the majority judges (Gummow, Hayne and Heydon JJ) held that the subjective meaning of recklessness applied: it was necessary, for the accused to be guilty, that he be proved to have been aware of the risk that the complainant was not consenting. Callinan J, although agreeing in the dismissal of the appeal, thought that the legal wrangling over the meaning of recklessness was so complex that the legislature must have intended simply that the ordinary meaning, as determined by the jury, should apply. This, with respect, is plainly wrong, for the ordinary meaning of recklessness can include (COD) "disregarding the consequences or danger, etc; lacking caution; rash." When one remembers that sexual intercourse is often indulged in rashly, it is plain that this approach would cast the net too far.

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