The Director of Public Prosecutions, Kerri Judd QC, has applied to the High Court for special leave to appeal against a Court of Appeal decision on the meaning of ‘recklessness’ for offences other than murder, in particular the offence of recklessly causing serious injury.
Last year, the DPP referred a point of law to the Court of Appeal to determine the correct interpretation of ‘recklessness’. In line with section 308 of the Criminal Procedure Act, the DPP can have a point of law determined by the Court of Appeal even though the determination does not affect the outcome of the trial.
On 2 July 2020, the Court of Appeal in DPP Reference No 1 of 2019  VSCA 181 held that the correct interpretation of the offence of recklessly causing serious injury is that an accused person had foresight of the probability of serious injury and proceeded nevertheless.
The DPP will be submitting that, consistent with High Court authority established in Aubrey v The Queen  HCA 18, the correct interpretation of the offence of recklessly causing serious injury is that an accused person had foresight of the possibility of serious injury, rather than the probability of serious injury.
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