Recklessness and Mistake of Fact

Recap Questions and Recklessness

• The lecture aims to finish the discussion on recklessness, touch on mistake of fact, and possibly begin discussing intoxication.

• Recap questions to review previous material:

  • What was the difference between Caldwell recklessness and Stephenson recklessness?

  • What is the problem with objective liability highlighted by the Elliott case?

  • What is the position on subjectivity taken in the R and G case?

Difference Between Caldwell and Stephenson Recklessness

• Stephenson recklessness is subjective, while Caldwell recklessness is objective.

• However, Stephenson recklessness also has an objective element.

Objective Test in Caldwell

• Lord Diplock defined recklessness in Caldwell as whether the defendant appreciated a risk and deliberately carried on, or didn't even turn their mind to the risk but carried on regardless; thus, the focus in Caldwell was on behavior rather than the defendant's actual mental state.

Problems with Objective Recklessness Highlighted by Elliott

• The Elliott case involved a 14-year-old girl who set fire to a shed, it demonstrated that objective recklessness does not account for differing abilities to assess risk, especially among young adolescents.

• The objective test places a burden on individuals who may not be able to appreciate risk to the same extent as a reasonable person.

• In R and G, the defendants were 11 and 12-year-old boys, further emphasizing the issue of young people's limited appreciation of risk.

Position Taken in R and G Case

• The House of Lords in R and G reverted to a subjective standard of recklessness, overturning or diverging from the Caldwell decision.

• The decision acknowledged issues of justice that required a different approach, returning to subjective recklessness with an objective element still present.

The Howe Decision in New Zealand

• The Howe decision occurred during the tumultuous time of the Springbok tour protests in 1981, a period marked by public order issues.

• The case of Caldwell had just been decided, influencing the New Zealand legal context in the Court of Appeal.

• The court adopted the Caldwell test: objective recklessness, where a defendant is reckless if they realize an obvious risk and deliberately carry on, or if they do not turn their mind to the obvious risk and carry on.

• In the Howe case, protesters jumped on an unmarked police car, leading to charges under Section 90 of riotous destruction.

• Section 90 makes it a crime for people “riotously and tumultuously assembled together to the disturbance of the public peace unlawfully and with force, demolish or pull down or damage or begin to demolish or damage any structure, erection, bridge, vehicle used in any undertaking carried on by the Crown or any public body or local authority”

Elements of Section 90 Offence

• Conduct: Demolish, pull down, damage, or begin to demolish or damage.

• Additionally, being assembled together riotously and tumultuously is a necessary conduct element.

• Legally Relevant Circumstances:

  • The damage must be directed at a structure, erection, bridge, or vehicle used in an undertaking carried on by the Crown.

  • The assemblage must be riotous and tumultuous, disturbing public peace.

  • The actions must be unlawful and with force.

• Mens Rea:

  • The fact that the penalty is up to seven years imprisonment suggests that the court will read in a mens rea requirement. The penalty provisions are clues.

Mens Rea in the Howe Case

• The legal issue in the Howe case concerned whether the protesters had to know or be aware of the risk that the car was a police car or Crown vehicle.

• The trial judge stated there was no need for mens rea, interpreting the provision in the context of public welfare and keeping the peace. No knowledge of the circumstance or awareness of the circumstance was necessary.

• The Court of Appeal disagreed, stating the trial judge was wrong and that mens rea flows through to all elements of the offense, including the circumstances.

• The Court of Appeal articulated the test for recklessness: A rioter who deliberately damages a vehicle which is in fact used as a Crown vehicle should be found guilty if he either knew the facts or was reckless as to whether or not the vehicle might turn out to be used in one or other of those ways. In this context at least recklessness includes giving no thought at all to the matter. This is an objective test, similar to Lord Diplock's definition from the Caldwell case.

• The Howe decision showed that Caldwell recklessness could find a place in New Zealand law.

• However, the statutory provision in Howe has been replaced so the decision is obsolete with no precedential babies. However, there remains an open door for objective recklessness to return if the statutory context calls for it and the decision did, moreover, confirm the need for moral blame worthiness.

Harney Decision

• The Harney case involved a brawl in Napier where the defendant stabbed the victim in the stomach, resulting in death which led to a homicide case and revolved around section 167B, which is the reckless murder provision.

• Section 167b pertains to murder where the defendant means to cause any bodily injury known to the offender to be likely to cause death and is reckless whether death ensues or not.

• The test turned on what appreciation of the risk in this case did the defendant have to have.

• The trial judge erroneously directed the jury that if they were satisfied that the defendant intended the bodily injury known to be likely to cause death, recklessness follows.

• The defendant's statement was, "I was going for his leg, but he must have moved. I knew I could have seriously injured him. I wasn't going to kill him."

• The Court of Appeals said that although the direction by the trial judge was a bit off, he did correct it and so they didn’t think any great disadvantage was caused to the defendant in determining it.

• They declined to apply the Caldwell standard and determined they would use the subjective standard of recklessness in that case. They recognized the controversy around Lord Diplock's objective test.

• In the end, the Stevenson approach as the test for recklessness still reigns.

Tipple Case

• The Tipple case involved a shooting party where high-powered guns were used, posing a risk to the public.

• The charge was dealing with a firearm with reckless disregard for the safety of others, so this case was an opportunity to determine what the nature of the recklessness standard is.

• Counsel tried to argue that the objective aspect of the Stephenson test which is that the risks beyond reasonable in the circumstances should be gotten rid of or that the focus of that test should be on the subjective belief of the defendant.

• The other counsel argument was that the risk involved remembering this was target shooting, guns in public, not not not great, like, you know, kind of risky, but they tried to make arguments that what they'd done was try and mitigate the risk and their choice of where to hold the target shooting, the location, the kind of ways in which the event was run, that there was some mitigation, but that they were just simply mistaken about the extent of the risk.

• So Count Sal tried to argue that there needed to be when it came to the risk, not only should the risk be only, obvious to the the, person, the defendant, yep, so a subjective standard there, but also the risk needed to be of a slightly higher standard. It needed to be a dangerous risk, Not merely an obvious one.

• Counsel argued that the risk needed to be obvious to the defendant, and it should be a dangerous risk.

• The Court of Appeals rejected counsel's arguments.

• The risks need to be assessed objectively but that in the consideration of that fact, risk, value, among other things can be considered.

• The court declined to apply a wholly subjective test or require the risk to be dangerous.

• Recklessness involves awareness of a risk that the prohibited consequences or the prohibited circumstances will occur. It's not about the nature of the activity, it's about whether or not the risk those consequences or that result will occur.

Cameron case

• The Cameron case was a drug case involving designer drugs. These cases tend to center on the nature of the knowledge of the defendant as to what it is that they were selling, the nature of the substance that they were selling.

• In 2017, the Supreme Court confirmed the subjective recklessness approach, also requiring that the risk is unreasonable.

• The Cameron decision picks up on the social value point made in Tipple and identifies social utility as a relevant consideration in determining unreasonableness.

• In cases with social utility, the court asks whether a reasonable and prudent person would have taken the risk, considering the level of risk counterbalanced by the utility of the defendant's actions.

New Zealand Position on Recklessness

• The prevailing view is a subjective test, dating back to Stevenson.

• The risk must be an unreasonable one to run.

• Cordial recklessness has been present in New Zealand law through the Howe decision with very specific statutory context.

• And there is a perhaps increasing role for consideration of social utility that came from Tipple and several other decisions that seems to be an important factor.

Mistake About Degree of Risk

• A mistaken evaluation of risk is no defense.