The offence of recklessly causing injury is created by Crimes Act 1958 s18.
The offence has the following four elements:
The complainant suffered an “injury”;
The accused caused the complainant injury;
The accused was reckless about causing injury; and
The accused acted without lawful justification or excuse.
Although s18 also proscribes intentionally causing injury, it is a separate offence (R v His Honour Judge Hassett and Anor (1994) 76 A Crim R 19). See Intentionally Causing Injury for information concerning that offence.
The Crimes Amendment (Gross Violence Offences) Act 2013 substituted a new definition for “injury”, which had previously been defined inclusively. Due to the operation of the transitional provision, Crimes Act 1958 s618, the new definition only applies to offences committed on or after the commencement of the amending Act, 1 July 2013.
Where an offence is alleged to have been committed between two dates, one date before and one date after 1 July 2013, the law in force prior to the amendments applies (Crimes Act 1958 s618).
This topic separately describes the operation of this element for offences committed before and after 1 July 2013.
Injury after 1 July 2013
From 30 January 2014, Crimes Act 1958 section 15 contains the following relevant definitions:
Physical injury; or
Harm to mental health; whether temporary or permanent
Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm;
Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function.
Injury before 1 July 2013
For offences committed before 1 July 2013, “injury” is an ordinary English term. It is for the jury to determine, as a question of fact, whether the complainant suffered an injury (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186).
The jury may compare the injury in question with harm which common experience suggests would be superficial or trifling, and therefore fall short of being an “injury” (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186; R v Cogley  VR 799).
The jury is not restricted to considering physical injuries. “Injury” includes unconsciousness, hysteria, pain and any substantial impairment of bodily function (Crimes Act 1958 s15).
The definition of “injury” as in force before 1 July 2013 is not exhaustive. Jurors are free to use their own experiences when determining whether or not the complainant has suffered an injury (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186).
For offences committed on or after 1 July 2013, the Crimes Amendment (Gross Violence Offences) Act 2013 expanded the meaning of the word “injury”. Harm to mental health, disfigurement and infection with a disease were not expressly mentioned in the definition of “injury”. Decisions from other jurisdictions that harm to mental health and infection with a disease could constitute “grievous bodily harm” may provide guidance on whether those harms can constitute “injury” (see R v Ireland  AC 147; R v Dica  QB 1257; R v Aubrey (2012) 82 NSWLR 748;  NSWCCA 254).
The complainant’s injury must have been caused by the accused. For detailed information about causation, see Causation.
The injury does not need to have been caused by the accused personally assaulting the complainant. This element will be satisfied even if s/he caused the injury indirectly (R v Salisbury  VR 452).
To have been reckless about causing injury, the accused must have been aware, when s/he committed the relevant conduct, that it would probably cause injury (R v Crabbe (1985) 156 CLR 464; R v Sofa Vic CA 15/10/1990; Ignatova v R  VSCA 263; Paton v R  VSCA 72).
The accused must have been aware that injury was “probable” or “likely”. It is not sufficient for him/her to have been aware that injury was merely “possible” or “might” result (R v Crabbe (1985) 156 CLR 464; R v Campbell  2 VR 585; R v Nuri  VR 641; Ignatova v R  VSCA 263; Paton v R  VSCA 72).
The accused him/herself must have been aware that his/her conduct would probably cause injury. It is not sufficient that a reasonable person in the accused’s circumstances would have realised that their conduct would be likely to injure the complainant (R v Sofa Vic CA 15/10/1990; c.f. R v Nuri  VR 641).
The prosecution does not also need to prove that the accused was indifferent to the consequences of his or her conduct. This element is satisfied by proof that the accused foresaw the probability that injury would occur (Ignatova v R  VSCA 263; R v Crabbe (1985) 156 CLR 464. Cf R v Sofa Vic CA 15/10/1990; R v Nuri  VR 641; R v Campbell  2 VR 585; R v Wilson  VSCA 78).
It is not appropriate to invite the jury to apply their normal understanding of the meaning of “recklessness”. Conventional understanding of the term may include conduct that is negligent (Banditt v The Queen (2005) 224 CLR 262).
Without Lawful Excuse
The prosecution must disprove any defences which are open on the evidence.