Repeal of Malice: Crimes Amendment Act 2012

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The Crimes Amendment Act 2007 (No 38) removed “maliciously” from all offences in the Crimes Act 1900, including personal violence offences. In some cases the term has been replaced with “intentionally or recklessly”, in some cases just “recklessly”, and in other cases there is no substitution for the requirement of malice. Some sections had additional changes such as increases in maximum penalties. The amendments came into force on 15 February 2008, except with respect to s 35, where amendments commenced on 27 September 2007. See generally Criminal Trials Court Bench Book at [4080] ff as to the position before and after the repeal of malice in the Crimes Act.

Subject to the 2012 amending Act referred to below, for offences committed after the repeal of malice with the ingredient recklessly cause/inflict a particular kind of harm, the definition of recklessness in R v Coleman (1990) 19 NSWLR 467 at 475 — that the accused had foresight of the possibility that some physical harm might result but proceeded anyway — no longer applies. An injury is caused recklessly if the accused realised that the harm — actual bodily harm, wounding or grievous bodily harm — may possibly be inflicted upon the victim by his or her actions yet he or she went ahead and acted as he or she did: Blackwell v R (2011) 208 A Crim R 392 at [82], [120], [170].

The Crimes Amendment (Reckless Infliction of Harm) Act 2012 overcomes the holding in Blackwell by permitting a jury to find an accused guilty of the offence of recklessly causing grievous bodily harm if the person causes grievous bodily harm to a person and is reckless as to causing actual bodily harm (s 35(2)). Similarly, a person is guilty of the offence of reckless wounding if the person wounds a person and is reckless as to causing actual bodily harm (s 35(4)). Materially similar amendments are also proposed for offences in the Crimes Act under ss 60, 60A and 60E and particular circumstances of aggravation under s 105A. The...
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