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This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Recklessness: R v Daniel (ACT)


The concept of recklessness has a long and contentious history in our criminal law. Depending on whether or not a court finds that recklessness existed in the mind of an accused person can mean the difference between acquittal and conviction. The recent ACT Supreme Court decision of R v Daniel dealt with whether the fault element of recklessness could be made out.

R v Daniel

In the matter of R v Daniel [2021] ACTSC 64, the accused was acquitted of a charge of recklessly inflicting grievous bodily harm, which carries a maximum penalty of 13 years imprisonment. However, the accused was found guilty of the alternative verdict: guilty of causing grievous bodily harm, which carries only five years. The decision was made by Justice Loukas-Karlsson, sitting alone.

The accused had offered to plead guilty to the lesser charge, thereby avoiding a trial that was costly in both time and money, not only to him but to the court and the community. However, the Office of the Director of Public Prosecutions refused to withdraw the more serious charge of recklessly inflicting grievous bodily harm.

What is recklessness?

In R v Daniel, it was accepted by both the prosecution and the defence that the relevant test was to be found in the case of Blackwell v The Queen [2011] NSWCCA 93. That meant that the jury, had there been one, would have had to have been given what has become known as “a Blackwell direction”. The law says that a judge sitting alone must give herself the same direction.

The Blackwell direction is that the decision-maker must be satisfied beyond a reasonable doubt that the accused realised that his actions “would or would very likely” cause the victim grievous bodily harm.

The facts of R v Daniel

Two men had an altercation after an argument between their parties in a city pub. While both exchanged words, only one acted physically.

CCTV of the incident showed the accused grasping the victim by the front of his shirt with his left hand, pushing him backwards. While still holding the victim, the accused struck the victim to the side of his face with a closed right fist, and then immediately struck him again with a left fist, and the victim fell to the floor.

The fact that the bodily harm was grievous was not in dispute. The victim spent a week in intensive care with injuries described by the Judge as life-threatening.

The prosecution case in R v Daniel

The DPP asked Her Honour to accept that there were five factors that established recklessness by inference:

(a) The punch was directed to the head (the defence conceded this);

(b) The accused was well in control of his faculties (also conceded);

(c) The accused’s actions were not preceded by any physical threat (conceded);

(d) There was an opportunity for reflection (disputed by the defence, but accepted by the Judge); and

(e) The punch was delivered with great force (conceded).

The defence case in R v Daniel

Before the trial even began, counsel for the accused had identified that the issue was whether or not the mental element as set out in Blackwell could be established.

The defence noted that the accused had given both an interview with police and oral evidence. Given his right to silence, he did not have to do either.

The accused’s evidence in court was that, just before the punches, he was thinking he just wanted to stop the verbal altercation between the parties. He had been surprised the victim ended up unconscious, having “just expected him to go away”.

Self-defence was not raised as the defence accepted that the accused’s actions did not arise in response to any threat that would have justified physical violence.

The defence put the time for any reflection at about two seconds and noted that merely accepting there was an opportunity for reflection does not mean the opportunity was taken.

Rebuttal of accused’s evidence

The prosecution submitted that there were three grounds upon which the court could reject the accused’s oral evidence.

Firstly, it was inherently unlikely that the accused would punch the complainant to the head with significant force simply to get him to go away.

Secondly, the accused did not at any stage tell police during his record of interview that he punched the complainant to get him to go away.

Thirdly, it was inherently unlikely that, more than 12 months after the incident, the accused would remember precisely what he was or was not thinking in the period of 2-3 seconds before punching the victim.

The decision

Justice Loukas-Karlsson quoted from the NSW Criminal Trial Courts Bench Book (adding the emphasis shown):

“The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury was inflicted recklessly by the accused. An injury is inflicted recklessly if the accused realised that grievous bodily harm may possibly be inflicted upon the victim by his actions, yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of his act and at least realised the possibility of grievous bodily harm occurring.”

Her Honour then applied that to the case she was deciding: “Weighing all the evidence, including the actions of the accused, the surrounding circumstances, and the evidence from the accused as to his state of mind, I am not satisfied beyond reasonable doubt that the accused realised the possibility of really serious bodily injury occurring, as opposed to some injury.

“Were the standard of proof the balance of probabilities, the prosecution may arguably have succeeded. The criminal standard of proof beyond reasonable doubt is a higher standard. The prosecution must prove the case against the accused beyond reasonable doubt and in this case has not done so.”

Accordingly, the court foudn the accused guilty of the lesser charge of causing grieving bodily harm.

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