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    when trying to establish liability of an offence under recklessness which of the two needs to be achieved?

    1/ for the prosecution to PROVE beyond reasonable doubtthat the defendant foresaw the risk as virtually certain to occur and with that went onto take the risk



    or

    2/ for the jury to DECIDE whether they believe that the defendant foresaw the risk and went onto take it. even though the defendant may deny it.
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    (Original post by over 9000!)
    when trying to establish liability of an offence under recklessness which of the two needs to be achieved?

    1/ for the prosecution to PROVE beyond reasonable doubtthat the defendant foresaw the risk as virtually certain to occur and with that went onto take the risk



    or

    2/ for the jury to DECIDE whether they believe that the defendant foresaw the risk and went onto take it. even though the defendant may deny it.
    The first test you referred to is the one for oblique intention under the Woollin/Nedrick rule. The test for recklessness is whether or not the defendant took the conscious running of an unjustifiable risk. The prosecution must prove:
    1.) The defendant foresaw the possibility of the consequence occurring and
    2.) That it was unjustifiable or unreasonable to take the risk.

    The second point is important in cases where it is "necessary" to commit one offence in order to prevent a greater harm.
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    what i meant to ask was, could a defendant be foound liable of acting reckelssly even if he states that they were not aware of the risk?

    even though the test is based upon the defendants mind is it up to the jury to decide whether they thought that he foresaw the risk or not? even in the face of a denial?
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    Up to the jury.
 
 
 
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