What is ‘Reckless Indifference to Human Life’?

A Queensland mother who left her two babies sleeping in a car on a hot summer’s day has been committed to stand trial for murder.

It is alleged Kerri-Ann Conley left her two young daughters, Darcey, aged two, and Chloe-Ann, aged one, in her black Mazda station wagon when she arrived home in Logan, south of Brisbane, at 5am after visiting a friend’s house.

It is alleged she then entered her home and fell asleep.

The girls remained in the car for several hours as temperatures rose to over 30 degrees Celsius on a November day in 2019.

Ms Conley did not realise the children were there until around 1pm.

Witnesses gave statements to the police that the mother found her children at that time, removed them from the car and rushed them inside – trying to revive them by splashing them with cool water.

Ambulance officers could not revive the girls, who died as a result of exposure to extreme heat.

Expanded definition of murder

Ms Conley was charged with two counts of murder under a new definition in Queensland, which includes reckless indifference to human life.

The expanded definition of murder came into effect just weeks before the tragedy, and means the offence of murder may be established as a result of ‘reckless indifference to human life’ rather than only an intentional act.

Ms Conley is the first person to be charged under this new definition.

Reckless indifference

Under the new Queensland law, reckless indifference is defined as an act committed with foresight that death will probably arise from that act.

The prosecution must prove beyond a reasonable doubt that the defendant could see that his or her act would probably cause death, but continued regardless.

This is a higher test than mere indifference.

Reasoning behind the change

Broadening of the definition was a recommendation made by the Queensland Sentencing Advisory Council, after a review of the adequacy of penalties imposed for criminal offences resulting in the death of children.

The review came as a result of concerns that sentences for such crimes were not meeting community expectations.

During the review, the Council recognised that murder based on reckless indifference exists in a number of other Australian jurisdictions, including New South Wales.

Reckless indifference in NSW

In New South Wales, ‘reckless indifference’ is part of the definition of murder which is an offence under section 18 of the Crimes Act 1900 and carries a maximum penalty of life imprisonment.

Murder is a voluntary act or omission of the accused causes the death of the deceased and the act is committed with:

1. an intent to inflict grievous bodily harm, or
2. an intent to kill, or
3. reckless indifference to human life, or
4. in an attempt to commit, or during or immediately after the commission of, an offence punishable by at least 25 years imprisonment. This is known as ‘constructive murder’ and is also sometimes referred to as ‘felony murder’.

‘Reckless indifference to human life’ is the doing of an act with the foresight of the probability of death arising from that act:

The prosecution must prove beyond reasonable doubt that the accused did the deliberate act which caused the death.

The accused had an intention to kill the deceased, or an intention to inflict grievous bodily harm or that the act which caused death was done with reckless indifference to human life. In terms of criminal law, the conduct of a person who engages in an  act that they know  or foresees is likely to cause death is regarded to be just as blameworthy as a person who commits an act with a specific intention to cause death.

Leaving children in hot cars

Research suggests that more than 5,000 children are left in hot cars each year in Australia.

In New South Wales, leaving a child or a young person unattended in a motor vehicle is an offence under section 231 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

And section 43 of the Crimes Act 1900 (NSW) makes it an offence to “without reasonable excuse, intentionally abandon or expose a child under 7 years of age… if it causes a danger of death or of serious injury to the child. The maximum penalty is 5 years in prison.

Studies suggest that temperatures in a car can rise steeply above the outside temperature as a result of the ‘greenhouse effect’, especially if all windows are closed.

This has the potential to harm or even kill a child in a relatively short period of time.