Marshall Jovanovska Ralph MJR Criminal Lawyers has secured a significant win in the High Court of Australia. A strategic appeal was issued earlier this year when the Director of Public Prosecutions, Kerri Judd QC, appealed to the High Court of Australia seeking to lower the standard of proof for the mental element of all crimes involving recklessness. MJR Criminal Lawyers was resisting the appeal. The appeal could have changed the rules on recklessness and impacted on tens of thousands of cases per year.

The mental element for recklessness in Victoria is “foresight as to the probability of harm” however the Director of Public Prosecutions wanted it changed to “foresight as to the possibility of harm”. This would have lowered the standard for the mental element of all crimes involving recklessness making it easier to secure a conviction. This was the “flow-on effect” behind the strategic litigation. This change would have disrupted a whole ecosystem of laws that were enacted specifically with the higher standard of proof to apply.  The case has been running for a number of years and has been previously reported in The Age. And also here when it was at the Court of Appeal.

In the High Court, Felix Ralph, instructing Dermot Dann QC and Christopher Carr SC, argued that this would be contrary to the rule of law and the intention of parliament. We argued that this was a revanchist approach to the criminal law that would alter a fundamental building block for a wide set of crimes. Some of these crimes involve mandatory minimum sentences. The legal team said it was a matter for the parliament and the people of Victoria to make such a change.  The High Court ultimately agreed.

In a majority of 4 – 3, the High Court ruled in favour of our argument and dismissed the appeal with the Crown to pay costs. The majority justices held at [59] that,  

“This Court is reluctant to depart from long‑standing decisions of State courts upon the construction of State statutes, particularly where those decisions have been acted on in such a way as to affect rights. That is especially so here, where unfairness would follow if the meaning of recklessness was changed retrospectively by this Court with the result that potentially criminal conduct which occurred before this Court’s decision – if that conduct has not yet been charged, or if it has been charged but not tried – would attract the lower standard of recklessness contended for by the DPP and where the DPP conceded that the decision of this Court on s 17 of the Crimes Act would have a “flow‑on effect” for other offence provisions in Victoria.” 

DPP Reference No 1 of 2019 [2021] HCA 26

Reflecting on the win is Felix Ralph states:

“Criminal appeals don’t get much more significant than this. Tens of thousands of cases every year would have had a lower standard of proof for the mental element applied to them. This would have unfairly changed the rules for even the most minor of cases all the way up to the most serious.

This case involved analysis of every mention of the word “reckless” in parliaments and the courts for more than a quarter of a century. The pressure was on for this major case. We executed the case strategy and secured a significant win for many thousands of people. I want to congratulate appeal counsel for this historic win secured by their full-throated defence of the rule of law.”