BY JOSEPH MCDONALD

On 1 September 2021, the High Court handed down its judgment on a novel question of statutory interpretation in Director of Public Prosecutions Reference No 1 [2021] HCA 26 (DPP Reference No 1). The question for the Full Court was the interpretation of s 17 of the Crimes Act 1958 (Vic). Section 17 is the offence for ‘recklessly causing serious injury’ and at the highest level, the issue was that ‘recklessness’ is not defined in the Crimes Act. In 1995, the Victorian Court of Appeal interpreted reckless to mean ‘probability of causing harm’. However, this interpretation of ‘recklessness’ was directly questioned and considered to be plainly wrong by the High Court in R v Aubrey (2017) 260 CLR 305 (Aubrey).

In 2019, issues arose following the acquittal of an accused in the County Court of Victoria where the jury was directed as to the meaning of recklessness in accordance with the Victorian case law, and the Judge declined to direct the jury regarding the High Court’s comments in Aubrey. On this point, the Victorian Director of Public Prosecutions referred the issue of interpretation to the Victorian Court of Appeal, which upheld the Victorian authority, and then to the High Court, which was split 4:3 on the interpretation of the section.

From a public law perspective, the interpretative principles considered in DPP Reference No 1 of 2019 are worth examining closely because they outline the significance of statutory interpretation presumptions of re-enacting similar legislation over time and inferring the same meaning. Public lawyers must also grapple with the High Court’s decision that potentially ‘plainly wrong’ decisions of statutory interpretation may still have effect if they have nonetheless been ‘re-enacted’ within the statute overtime.

The issue in DPP Reference No 1 of 2019

Section 17 of the Victorian Crimes Act 1958 establishes the offence of ‘recklessly causing serious injury’, and states that:

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.

The operative word ‘recklessly attracted significant attention in R v Campbell [1997] 2 VR 585 (Campbell). In that case, the Victorian Court of Appeal held that the requisite standard for recklessness was the foresight of the probability of harm. This signalled a departure from previous authority which had imposed a lower threshold, requiring only foresight of the possibility of harm.  The Victorian definition meant that even if there was a possibility of harm, if the probability of harm was low then an accused may not be guilty of the offence. Where ‘recklessness’ was, and continues to, remain undefined in the Crimes Act 1958 (Vic), the Victorian Court of Appeal’s 1995 interpretation in relation to s 17 has been crucial to its application in Victoria ever since.

In the High Court decision of Aubrey at [47], a majority of the High Court held (on appeal from the NSW Court of Criminal Appeal) that the correct interpretation of recklessness is the ‘possibility’ standard, citing the decisions of R v Crabbe (1985) 156 CLR 464 and R v Coleman (1990) 19 NSWLR 467 as authoritative. The High Court decision in R v Crabbe found that the common law imposes a higher standard of recklessness for murder due to its severity and establishes a uniform standard for recklessness for murder across Australia (Aubrey at [43]-[47]). Therefore, a majority of the High Court held in Aubrey that the ‘possibility’ definition of recklessness for lesser offences, such as causing serious injury, is the correct definition due to its lower threshold (Aubrey at [46]).

The minority judgment of Kiefel CJ, Keane and Gleeson JJ in DPP Reference No 1 endorsed Aubrey and denounced the Victorian Campbell decision as plainly wrong. However, they did not set out reasons why and simply relied on Aubrey(at [5]).

The plurality of Gageler, Gordon, and Steward JJ (and Edelman J writing separately) considered that the Victorian Parliament was aware of and sought to retain the judicially construed definition of recklessness from Campbell in successive amendments to the Crimes Act 1958 (Vic). Therefore, they held that it would be wrong to change the interpretation of recklessness when considering (and inferring) the intention of the Victorian legislature. Notably, none of the three Justices of the plurality were on the bench when the Aubrey decision was made.

The re-enactment presumption

The re-enactment presumption operates where judicially considered phrases are adopted in legislation (including through amendments); in these situations, the Court will infer that the legislature’s intent is to retain the judicially construed meaning. The exact threshold for when the presumption will operate remains unclear and was squarely at issue in DPP Reference No 1.

The presumption is one of statutory interpretation and as such, the minority noted that it is insufficient that ‘mere repetition’ exists – considerations such as the plain meaning of the statute and the specialisation of the law (among others) are relevant (at [13]-[17]). Presented before the High Court were two factors that suggested that the Victorian Parliament intended for the interpretation of recklessness adopted in Campbell to be ‘re-enacted’ across the Crimes Act 1958 (Vic).

The first was the 1997 amendment to penalties in the Sentencing and Other Acts (Amendment) Act 1997 (Vic). This amending Act increased the prescribed maximum penalty for an offence under s 17 by 50% to 15 years imprisonment. The joint judgment of Gageler, Gordon and Steward JJ emphasised that this increase was the result of a ‘wide‑ranging process of consultation’, which ‘identif[ied] ways to ensure that the courts pass sentences which reflect community expectations’ (at [23], [44]).

The plurality (and Edelman J separately) considered that the legislature, by virtue of the considerable review process undertaken during the drafting of the amending Act, must have been aware of the Campbell decision recently handed down and that ‘[w]here Parliament repeats words which have been judicially construed, it can be taken to have intended the words to bear the meaning already judicially attributed to them’ (at [51]).

Further, the plurality considered the ‘temporal proximity’ between Campbell being handed down and the year-long ‘expert reviews and extensive consultation with key stakeholders in the criminal justice system’ as significant (at [54]-[55]). These points, coupled with the fact that the amendment significantly and directly affected the penalty for the relevant offence, led the plurality to conclude:

it is difficult to imagine that … cases concerning the meaning of recklessness – were not known to those involved in the field as interpretive decisions of considerable significance (at [56]).

By contrast, the minority gave the amending Act little weight. They emphasised that nothing in the Second Reading Speech could be taken as clearly adopting the Campbell interpretation of the word ‘recklessly’ (at [23]), nor could it be implied from the increased penalty for the offence. To the minority, something explicit was needed to trigger the presumption, such as direct reference to the Campbell interpretation within Second Reading speeches. Anything less in their eyes was ‘mere repetition’ (at [31]).

The second factor suggesting re-enactment of the interpretation of recklessness in Campbell was a series of amendments in 2013 to Victorian Sentencing and Criminal legislation (in particular, reforms to the Crimes Act 1958 (Vic)). The plurality and Edelman J considered that a ‘carefully considered’ Sentencing Advisory Committee Reportendorsed cases that upheld Campbell (at [49]-[50] and [94]-[95]). By contrast, the minority held that this Report was unclear, and again not explicit in its endorsement of Campbell (at [26]).

The discrepancy in the approach of the plurality and minority leaves open the question of what the exact threshold is for the re-enactment presumption to operate. Justices Gageler, Gordon and Steward JJ held that if Parliament re-uses the same judicially considered phrase and/or word and there are extrinsic materials available that highlight that the phrase was or could have been considered, then the re-enactment presumption operates. The plurality was willing to give Parliament the benefit of the doubt in this way, inferring that they understood and recognised that ‘recklessness’ in Victoria has its own legal meaning, and that that meaning is different to the legal meaning adopted in other states. In contrast, for Kiefel CJ, Keane and Gleeson JJ, there is a high threshold before the Court will infer that Parliament has intended to retain the word and phrase: Parliament must be clear or provide evidence of its intention to re-enact that interpretation.

Re-enacted and plainly wrong?

This division in the Court may be remedied, in part, by the approach of Edelman J. Justice Edelman recognised the minority’s concern about the clashing standards of recklessness in Campbell and Aubrey. However, Edelman J emphasised that even common law definitions of ‘recklessness’ had evolved over time, and the divergent approach in Victoria was not plainly wrong without proper examination. The minority simply accepted Campbell was wrong,following Aubrey (at [5]). On this point, Edelman J held that Campbell was not plainly wrong because it was open for the courts to interpret ‘recklessness’ (for the purposes of Victorian law) in the manner they did in 1995 (at [65]-[66]).

Notably, Edelman J did not refer to the re-enactment presumption explicitly. Rather, he emphasised at paragraphs [65], [80] and [101] that the Victorian Parliament had left ‘recklessness’ undefined and therefore open to the courts to interpret. Accordingly, His Honour held that it was not the Court’s place to disturb the Campbell interpretation of recklessness because Campbell was not plainly wrong when it was decided (at [81]). This was compounded by the 1997 and 2013 amendments, which Edelman J also considered to be significant and supported the common law development of recklessness in Campbell (at [92], [95]). On this basis, Edelman J’s reasoning bears distinct similarities to the plurality’s application of the re-enactment presumption. However, Edelman J’s judgment differs quite significantly because His Honour never explicitly referenced the re-enactment presumptions in the way the plurality and minority have.

Justice Edelman concluded that even if

the decision of a majority of this Court in this case (including myself) has some unattractive consequences [because] it creates incoherence in the application of the same statutory concept across different Australian States … any development of the meaning of recklessness to address these consequences is a matter for Parliament (at [101]).

The lingering question, however, is what do courts consider to be the exact threshold for the re-enactment presumption to apply?

One approach that may remedy the divided High Court and provide clarity is:

  1. Firstly, is the judicial interpretation plainly wrong? (Edelman J’s judgement);
    1. If so, the minority’s threshold for explicitly clear evidence to trigger the re-enactment presumption applies;
  2. If a judicial interpretation is not plainly wrong, then the threshold expressed in the plurality judgment (and judgment of Edelman J) applies and there is more scope to infer parliamentary intention for re-enacting judicial interpretations.

This approach attempts to stitch together the three judgments in DPP Reference No 1. However, it still presents distinct limitations when considering that the High Court was divided on the question of whether Campbell was wrongly decided.

Conclusion

The High Court’s division leaves the threshold for inferring parliamentary intent when re-enacting judicially considered words and phrases in an unsatisfactory place. The plurality and minority were split on the same question.

Justice Edelman’s approach provides clarity, as he directly engaged with the question of whether Campbell was plainly wrong and allows us to develop a framework as to which threshold applies. As noted, this approach is not without its caveats and even Edelman J voiced hesitation in his conclusion for its implications on uniform criminal law across Australia.

The inconsistency across Australian criminal statutes of ‘recklessly causing serious injury’ may be a specific question, but it is representative of a more wide-reaching question of statutory interpretation. DPP Reference No 1 has resolved the issue in regard to s 17 of the Victorian Crimes Act 1958. However, the divided High Court has left open the question of the exact threshold for the re-enactment presumption to operate; thus muddying the waters and creating dissonance for the foreseeable future.

Joseph McDonald graduated from Monash University with Law (Hons) and Arts in 2021.

Suggested citation: Joseph McDonald, ‘Re-enacting “plainly wrong” interpretations – a divided High Court in Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26′ on AUSPUBLAW (24 November 2021) <https://auspublaw.org/2021/11/re-enacting-plainly-wrong-interpretations-a-divided-high-court-in-director-of-public-prosecutions-reference-no-1-of-2019-2021-hca-26/>