Director of Public Prosecutions Reference No 1 of 2019

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Keane,Gleeson JJ,Gageler,Gordon,Steward JJ,Edelman J.
• Judgment Date: 01 September 2021
• Neutral Citation: [2021] HCA 26
• Docket Number: M131/2020
• Court: High Court

[2021] HCA 26

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward And Gleeson JJ

M131/2020

DIRECTOR OF PUBLIC PROSECUTIONS

REFERENCE NO 1 OF 2019

Representation

B F Kissane QC with J C J McWilliams for the appellant (instructed by Office of Public Prosecutions (Vic))

D A Dann QC with C T Carr SC for the acquitted person (instructed by C. Marshall & Associates)

Crimes Act 1958 (Vic), s 17.

Criminal law — Recklessness — Where s 17 of Crimes Act 1958 (Vic) provides that person who, without lawful excuse, recklessly causes serious injury is guilty of indictable offence — Where Court of Appeal of Supreme Court of Victoria in R v Campbell [1997] 2 VR 585 held that recklessness means person foresaw that serious injury probably will result from act or omission — Where Crimes Act amended following Campbell with significant, substantive and direct effect on s 17 — Where High Court cast doubt on correctness of Campbell in Aubrey v The Queen (2017) 260 CLR 305 — Where accused charged with recklessly causing serious injury under s 17 of Crimes Act — Where trial judge directed jury in relation to recklessness consistently with Campbell — Where accused acquitted — Where Director of Public Prosecutions (Vic) referred correctness of Campbell as point of law to Court of Appeal — Whether Parliament left meaning of recklessness in s 17 of Crimes Act to courts — Whether recklessness in s 17 of Crimes Act has meaning stated in Campbell.

Words and phrases – “culpability and criminality”, “elements of the existing offences”, “expert review of the law”, “extensive consultation with key stakeholders”, “foresight of possibility”, “foresight of probability”, “gross violence offences”, “injury”, “maximum penalty”, “offences against the person other than murder”, “recklessness”, “re-enactment presumption”, “serious injury”, “specialised and politically sensitive fields”, “temporal proximity”.

ORDER

• 1. Appeal dismissed.

• 2. The Director of Public Prosecutions (Vic) pay the acquitted person's reasonable costs.

1 Kiefel CJ, Keane AND Gleeson JJ. In Aubrey v The Queen1, this Court confirmed that the degree of recklessness required for the statutory offence of maliciously inflicting grievous bodily harm in New South Wales was foresight of the possibility of harm, not the probability of harm. Foresight that death or grievous bodily harm is a probable consequence is the test for common law murder, as this Court held in R v Crabbe2. The reason for the higher test in the case of common law murder, the Court explained in Crabbe3, is the near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death or grievous bodily harm. That rationale does not apply to offences other than murder.

2 That foresight of the possibility of harm was the correct standard of recklessness to apply to statutory offences other than murder was the view taken in England and generally in Australia, in 1985 4. In Aubrey5 it was observed that nothing said in Crabbe altered or required any change to that approach. Statutory provisions which involved recklessness in offences of that kind had consistently been construed to require foresight of the possibility of harm 6.

3 An exception identified in Aubrey7 to that approach was the decision of the Victorian Court of Appeal in R v Campbell8, in 1995. That decision concerned s 17 of the Crimes Act 1958 (Vic), which came into force in 1986 9 and provided for the offence of recklessly causing serious injury. “Recklessly” was not defined. The

Court of Appeal applied the standard of recklessness as requiring foresight of the probability of harm. In so doing, it overturned a line of authority in that State 10 which had consistently dealt with the test for recklessness in the way which had been generally accepted before Crabbe

4 The Court of Appeal in Campbell reasoned 11 that, whilst Crabbe concerned murder, the same principles are relevant to the offence under s 17. An earlier decision of the Court of Criminal Appeal, R v Nuri12, had applied a test of probability to the offence of recklessly engaging in conduct endangering life under s 22 of the Crimes Act. The Court in Campbell held that all relevant sections in this group of sections in the Act, including s 17, must apply the same test 13.

5 Aubrey14 was concerned with the offence of maliciously inflicting grievous bodily harm in s 35(1)(b) of the Crimes Act 1900 (NSW) where “maliciously” was defined in s 5 to include “recklessly”. The New South Wales Court of Criminal Appeal in R v Coleman15 had rejected the reasoning later adopted in Campbell and instead applied the test of foresight of the possibility of harm. This Court held that it was correct to do so 16.

The reference and the Court of Appeal

6 This matter comes to this Court because the Director of Public Prosecutions for Victoria referred the correctness of the decision in Campbell as a point of law for the opinion of the Victorian Court of Appeal 17. The background to the reference was proceedings in the County Court of Victoria involving a charge brought under

s 17 of the Crimes Act where the trial judge declined to direct the jury in accordance with Aubrey, considering himself bound to follow Campbell. The accused was acquitted

7 There can be no doubt that the decision in Campbell is wrong. The question of its correctness was not answered in the joint judgment in the Court of Appeal 18. It was not considered necessary to do so because, even if Campbell were “plainly wrong”, there were said to be “powerful reasons” for the Court not to apply the test stated in Aubrey. Those reasons essentially arose from the “re-enactment presumption” which applies to the interpretation of statutes 19.

8 In the joint judgment it was said 20 that the legislature had successively “endorse[d]” the decision in Campbell in legislative amendments it had made since that decision. Parliament having “repeatedly approved” that decision, any change to the test there stated is a matter for Parliament, their Honours held 21.

9 The Court of Appeal gave as the answer to the reference that:

“Unless and until it is altered by legislation, the meaning of ‘recklessly’ in s 17 of the Crimes Act 1958 is that stated by the Court of Appeal in [ Campbell].”

Re-enactment, presumption and inference

10 In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees22 this Court said that there is abundant authority “for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the

meaning already ‘judicially attributed to [them]’”. The Court stated the proposition in short form, no doubt because its application was so clear in that case. In a case to which it referred, Barras v Aberdeen Steam Trawling and Fishing Co23, this principle of statutory construction was said to apply where a word of doubtful meaning has received a clear judicial interpretation and the subsequent statute incorporates the same word or phrase in a similar context

11 It has been said that the presumption should not be relied upon to perpetuate an erroneous construction of a statutory provision 24. It is notable that in Alcan the reason why the presumption was applied was not only that the Parliament had re-enacted the provision in almost identical terms with those which had been considered; the decision construing the similar provision had also been accepted in a number of later cases as correctly applying the relevant principle and there was no reason to think that it was in any way affected by error 25.

12 It is the duty of appellate courts, and this Court in particular, to correct error. It would seem to follow that the terms of the re-enactment, the circumstances surrounding it, or the context in which it is made must be such that the adoption by the legislature of the meaning assigned by the courts to the statutory term in question is tolerably clear. There have been cases, such as Alcan26 and Electrolux Home Products Pty Ltd v Australian Workers' Union27, where the courts have been able to conclude that there has been a clear case of legislative adoption.

13 The question which may be seen to arise in the cases is whether more is required for the presumption than the repetition of the words in a similar context in a subsequent statute. The “presumption” has been described as a “valuable

presumption” 28 and a “presumption of no great weight” 29. Much may depend on other factors, such as legislative history 30

14 Dixon CJ in R v Reynhoudt31 said that it was “quite artificial” to take the mere repetition in legislation of a provision which has been judicially considered as legislative approval of that decision. If that is so, mere legislative inaction must surely be problematic 32. In such a circumstance the presumption would not seem to arise. In Flaherty v Girgis33, Mason A-CJ, Wilson and Dawson JJ said that mere amendment of a statute not involving any re-enactment of the words in question could seldom be taken as approval. Even re-enactment of the words in circumstances not involving any reconsideration of their meaning will not do so.

15 In Flaherty v Girgis34, their Honours spoke of this principle of interpretation as involving the drawing of an inference as to parliamentary approval, which in some cases may be difficult:

“Whilst it is true that, where an inference can be drawn from the terms in which subsequent legislation has been passed that Parliament itself has approved of a particular judicial interpretation of words in an earlier statute,

a court should adhere to that interpretation, the difficulty is in discerning the existence of parliamentary approval”.

16 In Alcan it was said 35 that consideration of the...