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7.4.2.7 - Charge: Intentionally or Recklessly Causing Serious Injury or Injury (From 1/7/13)

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[This charge should be given if:

If the offence was allegedly committed before 1 July 2013, use Charge: Intentionally or Recklessly Causing Serious Injury or Injury (Pre-1/7/13).

If recklessly causing serious injury is available as an alternative verdict, but intentionally and recklessly causing injury are not, use Charge: Intentionally or Recklessly Causing Serious Injury (From 1/7/13).

If neither recklessly causing serious injury nor recklessly causing injury are available as alternative verdicts, use Charge: Intentionally Causing Serious Injury (From 1/7/13).

This charge is designed for cases where the injury is one which endangers life or is substantial and protracted. If the injury involves the destruction of a foetus, the charge will need to be modified.]

Intentionally Causing Serious Injury

I must now direct you about the crime of intentionally causing serious injury. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the complainant suffered a serious injury.

Two - the accused caused the complainant’s serious injury.

Three - the accused intended to cause the complainant serious injury.

Four - the accused acted without lawful justification or excuse.

I will now explain each of these elements in more detail.

Serious Injury

The first element that the prosecution must prove is that the complainant suffered a serious injury.

The law defines the word injury to mean physical injury or harm to mental health, whether temporary or permanent. A serious injury is an injury which endangers life or is substantial and protracted. [1]

If multiple injuries were inflicted, add the following shaded section

In making your decision, you do not have to look at each of NOC’s injuries separately, and decide whether or not any one of them is a serious injury. A person may suffer a serious injury because of the cumulative effect of several injuries.

If the physical injuries caused ongoing psychological harm, add the following shaded section

An injury may be substantial and protracted because of the combined effect of the immediate physical injuries and prolonged psychological injuries.

In this case, the prosecution alleges that NOC’s injuries were serious, because [insert prosecution evidence and/or arguments]. The defence denies this, arguing [insert defence evidence and/or arguments]. It is only if you are satisfied that NOC’s injury endangered his/her life or was substantial and protracted that this first element will be met.

Causation

The second element that the prosecution must prove is that the accused caused the complainant’s serious injury.

[If causation is not in issue, add the following shaded section.]

In this case it is not disputed that NOA [insert relevant causal acts], and that doing so caused NOC’s injury. You should therefore have no difficulty finding this element proven.

[If the cause of the complainant’s injury is not disputed, but the accused denies committing the relevant acts, add the following shaded section.]

In this case it is not disputed that [insert relevant causal acts] caused NOC to be seriously injured. However, the defence contends that NOA did not commit those acts. For this element to be met, you must be satisfied, beyond reasonable doubt, that it was NOA who [insert relevant causal acts].

[If causation is in issue for another reason (such as the existence of multiple possible causes, or the intervention of a third party), a relevant charge from Causation: Charges should be adapted and inserted here.]

Intention

The third element relates to the accused’s state of mind. The prosecution must prove, beyond reasonable doubt, that at the time the accused did the acts that you find caused the complainant’s injury, s/he intended to seriously injure NOC.

This element will not be satisfied if NOA only intended to injure NOC, but happened to seriously injure him/her. For this element to be met, NOA must have intended to seriously injure NOC. That is, NOA must have intended to inflict an injury which would endanger NOC’s life or which would be substantial and protracted [if necessary, add: or involved the destruction of a foetus other than in the course of a medical procedure].

It is not, however, necessary that NOA intended to inflict the injury that NOC actually suffered. This third element will be satisfied even if NOA intended to inflict a different kind of serious injury.

In this case the prosecution submitted that NOA intentionally [describe relevant act and describe relevant evidence and/or arguments]. The defence responded [insert relevant evidence and/or arguments]. When you are considering this evidence, you will remember what I told you earlier about drawing inferences.

Without Lawful Justification or Excuse

The fourth element that the prosecution must prove is that the accused acted without lawful justification or excuse.

[If no defences are open on the evidence, add the following shaded section.]

In this case, there is no issue that [if/when] NOA [describe relevant acts], s/he acted without lawful justification or excuse. You should therefore have no difficulty finding this element proven.

[If any defences are open on the evidence, insert directions from the relevant topics here (see Part 8: Victorian Defences).]

Application of Law to Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of intentionally causing serious injury, the prosecution must prove to you beyond reasonable doubt:

One – That NOC was seriously injured; and

Two – That NOA caused that serious injury; and

Three – That NOA intended to seriously injure NOC; and

Four – That NOA acted without lawful justification or excuse.

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of intentionally causing serious injury.

Warning: The following directions should only be given if the judge leaves the lesser alternative offence. See Jury Directions Act 2015 s11 and Alternative Verdicts on when to leave lesser alternative offences.

 

Recklessly Causing Serious Injury

If you find NOA not guilty of intentionally causing serious injury, you must next consider the offence of recklessly causing serious injury.[2]

This is an alternative to the offence of intentionally causing serious injury. That means that you will only be asked to return a verdict on this offence if you are not satisfied that the prosecution has proved beyond reasonable doubt that that the accused committed the offence of intentionally causing serious injury.

The only difference between the offence of recklessly causing serious injury and the offence of intentionally causing serious injury relates to the accused’s state of mind – the third element of the offence. The other three elements of the offences are identical.

For the third element of recklessly causing serious injury to be met, the prosecution does not need to prove that the accused intended to seriously injure the complainant. Instead, they must prove, beyond reasonable doubt, that at the time the accused did the acts that you find caused the complainant’s injury, s/he was aware that those acts would probably result in the complainant being seriously injured, but decided to go ahead anyway.[3] That is, NOA knew that NOC was likely to be seriously injured by his/her actions.

It is not sufficient for NOA to have known that it was possible that NOC would be seriously injured. S/he must have known that that consequence was probable.

It is also not sufficient for NOA to have known that it was probable that NOC would be injured by his/her actions. For this element to be met, NOA must have known that it was probable that his/her acts would seriously injure NOC.

In determining this part of the test, you must be satisfied that NOA him/herself actually knew of the probability of NOC’s injury. It is not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances.

In this case, the following evidence is relevant to your assessment of NOA’s state of mind: [Identify relevant evidence and the inference to be drawn from that evidence].

Inferring states of mind

[If the jury might infer recklessness by using an objective test, add the following shaded section.]

In determining whether NOA knew that NOC would probably suffer serious injury due to his/her actions, you [can/have been asked to] draw an inference from the probability that [you/the reasonable person] would have foreseen such a consequence in the accused’s situation.

I must warn you that, although this is a legitimate step in reasoning towards a conclusion about NOA’s state of mind, you must not treat this factor as decisive of the issue. It is not enough that you, or any other person, would have had such an awareness in the circumstances. You must be satisfied that NOA him/herself actually knew that it was likely that NOC would be seriously injured if s/he acted in that way.

In this case the prosecution submitted that NOA was aware of the likelihood that NOC would be seriously injured. [Describe relevant act and describe relevant evidence and/or arguments]. The defence responded [insert relevant evidence and/or arguments].

Summary

As I mentioned, the other three elements of recklessly causing serious injury are identical to the elements of intentionally causing serious injury. So the four elements of recklessly causing serious injury that the prosecution have to prove beyond reasonable doubt are:

One – That NOC was seriously injured; and

Two – That NOA caused that serious injury; and

Three – That NOA was aware that his/her acts would probably cause serious injury to NOC; and

Four – That NOA acted without lawful justification or excuse.

If you find that any of these four elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of recklessly causing serious injury.

Intentionally Causing Injury

The next offence that you may need to consider is intentionally causing injury.[4] This is an alternative to the offences of intentionally causing serious injury and recklessly causing serious injury, which means that you will only be asked to return a verdict on this offence if you find NOA not guilty of both of those offences.

The offence of intentionally causing injury is very similar to the offence of intentionally causing serious injury, with one important difference: the accused only needs to have caused, and to have intended to cause, the complainant to suffer injury rather than serious injury.

So the four elements of intentionally causing injury that the prosecution have to prove beyond reasonable doubt are:

One – That NOC was injured; and

Two – That NOA caused that injury; and

Three – That NOA intended to injure NOC; and

Four – That NOA acted without lawful justification or excuse.

The way that you determine whether these elements have been proven is the same as for the offence of intentionally causing serious injury, apart from the difference in the level of injury required.

This means that, in relation to the first element, it is for you to determine whether NOC suffered physical injury or harm to his/her mental health. The law says that physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function. It also includes all the things that you would, as a matter of ordinary experience, call an injury. The law also says that harm to mental health includes psychological harm, but not emotional reactions such as distress, grief, fear or anger which do not result in psychological harm. You must therefore decide whether NOC has suffered an injury, as opposed to some superficial or trivial harm.

In relation to the second element, it means that you must be satisfied that it was the accused who caused the complainant’s injury.

[If causation is not in issue, add the following shaded section.]

As I told you in relation to the offence of intentionally causing serious injury, it is not disputed that NOA [insert relevant causal acts], and that this caused NOC’s injury. You should therefore have no difficulty finding this element proven.

[If the cause of the complainant’s injury is not disputed, but the accused denies committing the relevant acts, add the following shaded section.]

This requires you to be satisfied, beyond reasonable doubt, that it was NOA who [insert relevant causal acts].

[If causation is in issue for another reason (such as the existence of multiple possible causes, or the intervention of a third party), a brief summary of the relevant issues should be inserted here.]

In relation to the third element, you must be satisfied that NOA intended to injure NOC, and in relation to the fourth element you must be satisfied that s/he acted without lawful justification or excuse.

[If no defences are open on the evidence, add the following shaded section.]

Again, there is no issue that [if/when] NOA [describe relevant acts], s/he acted without lawful justification or excuse. You should therefore have no difficulty finding the fourth element proven.

[If any defences are open on the evidence, summarise the relevant issues.]

If you find that any of these four elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of intentionally causing injury.

Recklessly Causing Injury

There is one more alternative offence that you may need to consider – recklessly causing injury. This is an alternative to intentionally causing serious injury, recklessly causing serious injury and intentionally causing injury, which means that you will only be asked to return a verdict on this offence if you find the accused not guilty of those three offences.

This offence is identical to the offence of intentionally causing injury, except for the third element – the accused’s state of mind. The accused does not need to have intended to cause the injury. Instead, s/he must have been aware that his/her acts would probably injure the complainant.

The way that you determine whether this element has been proved is the same as for the offence of recklessly causing serious injury, apart from the difference in the level of injury required. As I explained in relation to that offence, this element will therefore not be satisfied if NOA was only aware that that it was possible that NOC would be injured. S/he must have known that that consequence was probable, but decided to go ahead anyway.[5]

It is also not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances – you must be satisfied that NOA him/herself actually knew of the probability of NOC’s injury.

So the four elements of recklessly causing injury that the prosecution have to prove beyond reasonable doubt are:

One – That NOC was injured; and

Two – That NOA caused that injury; and

Three – That NOA was aware that his/her acts would probably injure NOC; and

Four – That NOA acted without lawful justification or excuse.

If you find that any of these four elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of recklessly causing injury.

Notes

[1] The judge should consider including an example of a serious injury, such as brain damage, or a stabbing which causes significant blood loss.

[2] Crimes Act 1958 s17.

[3] The words “but decided to go ahead anyway” can be omitted if the judge thinks they are unnecessary or could confuse the jury. See Recklessness.

[4] Crimes Act 1958 s18.

[5] The words “but decided to go ahead anyway” can be omitted if the judge thinks they are unnecessary or could confuse the jury. See Recklessness.

Last updated: 2 July 2020

See Also

7.4.2 - Intentionally Causing Serious Injury

7.4.2.1 - Charge: Intentionally Causing Serious Injury (From 1/7/13)

7.4.2.2 - Checklist: Intentionally Causing Serious Injury (From 1/7/13)

7.4.2.3 - Charge: Intentionally Causing Serious Injury (Pre- 1/7/13)

7.4.2.4 - Checklist: Intentionally Causing Serious Injury (Pre- 1/7/13)

7.4.2.5 - Charge: Intentionally or Recklessly Causing Serious Injury (From 1/7/13)

7.4.2.6 - Charge: Intentionally or Recklessly Causing Serious Injury (Pre-1/7/13)

7.4.2.8 - Charge: Intentionally or Recklessly Causing Serious Injury or Injury (Pre-1/7/13)