The offence of intentionally causing serious injury in circumstances of gross violence is created by Crimes Act 1958 s15A.
The offence has the following five elements:
The complainant suffered a “serious injury”;
The accused caused the complainant’s serious injury;
The accused intended to cause serious injury;
The injury was caused in circumstances of “gross violence”; and
The accused acted without lawful justification or excuse.
This offence is an aggravated form of intentionally causing serious injury and differs only in the additional element that the injury was caused in circumstances of “gross violence”. This topic only addresses the meaning of gross violence. For information on the other elements, see Intentionally Causing Serious Injury.
This offence applies to offences committed on or after 1 July 2013, following the commencement of the Crimes Amendment (Gross Violence Offences) Act 2013.
The prosecution must prove that the accused caused serious injury to another in circumstances of gross violence.
Section 15A(2) of the Crimes Act 1958 exhaustively defines circumstances of gross violence as one or more of the following:
a) The offender planned in advance to engage in conduct and at the time of the planning-
i) The offender intended that the conduct would cause a serious injury; or
ii) The offender was reckless as to whether the conduct would cause a serious injury; or
iii) A reasonable person would have foreseen that the conduct would be likely to result in a serious injury;
b) The offender in company with 2 or more other persons caused the serious injury;
c) The offender entered into an agreement, arrangement or understanding with 2 or more other persons to cause a serious injury;
d) The offender planned in advance to have with him or her and to use an offensive weapon, firearm or imitation firearm and in fact used the offensive weapon, firearm or imitation firearm to cause the serious injury;
e) The offender continued to cause injury to the other person after the other person was incapacitated;
f) The offender caused the serious injury to the other person while the other person was incapacitated.
Planned in advance
The precise meaning of the phrase “planned in advance” has not been considered at an appellate level. In Farha v R, the trial judge had distinguished the sort of planning in advance required for this offence from the level of pre-concert required for complicity. The judge noted that while an agreement for the purpose of complicity could be formed moments before the offending, planning for the purpose of gross violence could not occur at the scene of offending. The Court of Appeal observed that this may have been favourable to the accused depending on what ‘in advance’ means (Farha v The Queen  VSCA 310, -).
Foresight that conduct would likely cause a serious injury
The meaning of the word “likely” varies with context and can range between requiring proof that a matter is a “real chance” through to requiring proof that the matter is more likely than not (see Attorney-General (NSW) v Winters  NSWSC 1071).
While there have not been any decisions on the meaning of likely for the purposes of section 15A(2), this Charge Book takes the prudential approach of requiring proof that a reasonable person would have realised that the conduct was more likely than not to cause a serious injury. It is not sufficient that serious injury was possible, or a “real chance” (compare Boughey v R (1986) 161 CLR 10 and Hannes v Director of Public Prosecutions (No 2)  NSWCCA 373).
While this provision has not been interpreted, it is likely that the word “incapacitated” in sections 15A(2)(e) and (f) carries its ordinary meaning of a person being unable to defend himself or herself.
In many cases, this will arise when the complainant is rendered unconscious. Future cases may also identify other possible causes of incapacitation.
Intentionally causing serious injury is a statutory alternative to intentionally causing serious injury in circumstances of gross violence (Crimes Act 1958 s422).
Intentionally causing injury (Crimes Act 1958 s18) is an impliedly included offence to a charge of intentionally causing serious injury in circumstances of gross violence (see R v Kane (2001) 3 VR 542). See Alternative Verdicts on when a judge needs to leave alternative offences.