Commonwealth Criminal Code: Guide for practitioners
A person is negligent with respect to a physical element of an offence if his or her conduct involves:
- (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
- (b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
The definition of criminal negligence is a statutory paraphrase of a passage from the judgement of the Victorian Court of Criminal Appeal in Nydam.98 It is a complex composite test, devised by a court which was concerned to mark, with as much clarity as possible, the difference between reckless murder and manslaughter by gross negligence. The same concern over the need to distinguish between recklessness and negligence is evident in the commentary on negligence in MCC Ch2: General Principles of Criminal Responsibility.99 In large part that concern accounts for the markedly different style of the definitions of recklessness and negligence. Prohibitions against negligent conduct are inarticulate, referring as they do to rules which are unknown until after the event.100 Though the concept of negligence plays a role in the formulation of offences of unlawful homicide and injuries to the person, it has few other applications. In general, Commonwealth criminal law tends to avoid prohibitions requiring proof of negligence. In more serious offences, the tendency has been to prefer prohibitions that are more specific in their requirements than a blanket prohibition of negligence. In lesser offences, it has become common to specify the forbidden activity and qualify the prohibition by permitting a defence of “reasonable excuse”.
5.5-A A person may be negligent with respect to conduct, circumstances or results
Unlike recklessness, which has no application to conduct, negligence extends to acts, omissions and states of affairs. Liability can be imposed, that is to say, for conduct that is negligent in its manner of performance. So, for example, the Code permits offences of careless but not reckless driving. Since recklessness requires awareness of risk, it is always necessary to specify the circumstance or result of which the offender must be aware.
5.5-B The Code recognises only one degree of criminal negligence
The definition is intended to distinguish between negligence in civil actions for damages and negligence which justifies the imposition of criminal punishment. Since most practical applications of the concept of negligence are limited to conduct which causes physical injury or death, with primary emphasis on the crime of manslaughter, it has been generally accepted that the level of negligence must be gross or shocking in its departure from standards of reasonable behaviour. There was, indeed, considerable resistance on the part of English and Australian courts to the idea that criminal liability might be imposed for negligence of any degree.101 Insistence that negligence be gross was meant to blunt the argument that justice requires advertent wrongdoing before criminal liability is imposed. The Code definition of negligence is, of course, circular. That too is a legacy of English caselaw.102 If it is read literally, the circularity of the definition might be interpreted to have the effect of removing the original requirement that negligence be gross or shocking. It is likely, however, that the common law background will continue to govern understanding of the meaning of negligence. There is a more significant consequence of the fact that criminal negligence is defined as that degree of departure from reasonable care which would justify criminal punishment. Chapter 2 leaves little or no conceptual space for the possibility that there might be two or more grades of criminal negligence.103 However, it is possible to provide for a halfway house, between the negligence standard of s5.5 and strict liability. Minor offences which impose liability without fault for one or more physical elements, frequently permit a defence of “reasonable excuse”. The standard of behaviour required is less demanding than strict liability but more demanding than mere avoidance of negligence.
5.5-C The defence of reasonable mistake of fact has no application when an offence requires proof of negligence
Since negligence requires a “great falling short” of standards of reasonable care, proof that a person was unreasonably mistaken in their appreciation of risks or appropriate precautions is not proof of negligence. The threshold of liability is set far higher than it is in offences of strict liability. The difference is clearly illustrated by comparing the fault required for manslaughter and the strict liability offences of dangerous driving causing death or serious injury.104 Conversely, it is not open to an accused charged with an offence requiring proof of negligence to require an additional instruction to the jury on a defence of reasonable mistake of fact. Common law and Chapter 2 coincide in holding that proof of negligence necessarily defeats any claim that harm resulted from reasonable error.105
 VR 430
See B Fisse, Howard’s Criminal Law (1990) 496-497.
Passages in the judgement of Smith J in Holzer  VR 481 represent the high point, among reported Australian cases, of this tendency. Not until the decision of the High Court in Wilson (1993) 61 A Crim R 63 was the pale spirit of subjectivity allowed to rest.
See, in particular, Bateman (1925) 19 Crim App R ; Andrews  AC 576.
MCC Ch2: General Principles of Criminal Responsibility suggested, somewhat faintly, that the degree of negligence required can vary according to the nature of the offence in question. In its original version in MCC s203.4 the concluding words of the definition permit liability for negligence if “the conduct merits criminal punishment for the offence in issue”. Though the concluding words in italics do not appear in s5.5 Negligence, it is still faintly arguable that liability for more serious offences requires proof of a more marked departure from the standard of the ordinary person than does liability for a minor offence. It is unlikely that a court would accept an argument of this nature. The question whether common law recognises degrees of negligence is discussed in Leader-Elliott, “Criminal Cases in the High Court: Jiminez” (1993) 17 Crim LJ 61; See in addition Taafe: (1998) 102 A Crim R 472.
Osip (2000) 116 A Crim R 578.