Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests

Abstract

This paper contends for a greater role for objective tests on public safety grounds, and building on the measure of objectivity contained in reckless murder at common law and constructive murder in all Australian States, seeks to redress the balance in favour of objective tests. The argument is made for an objective test for recklessness as the underlying fault element, based on the natural and probable consequences test adopted in Director of Public Prosecutions v Smith [1961] AC 290, which is similar to objective ‘Caldwell’ recklessness where the defendant does not foresee the relevant risk but a reasonable person would have, following Caldwell [1982] AC 341. The paper also advances the case for the adoption of purely objective tests for provocation and self-defence, because the current tests in Australia for both defences are confusing as they combine subjective and objective elements.