Under s 35(2) of the Crimes Act 1900 (NSW) as amended, the mental element of recklessness requires foresight of the possibility of grievous bodily harm (really serious injury), not merely foresight of the possibility of some physical harm. The Victorian test in R v Campbell requiring foresight of probability should not be followed in NSW. Where a wrong alternative count is left to the jury, the question is whether a jury properly instructed would necessarily have returned a verdict on the principal charge; if not, the error constitutes a significant denial of procedural fairness and the proviso cannot apply.
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