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7.4.6.3 - Charge: Recklessly Causing Injury (Pre-1/7/13)

Click here for a Word version of this document for adaptation.

[This charge should be given if the offence was allegedly committed before 1 July 2013. If the offence was allegedly committed on or after 1 July 2013, use Charge: Recklessly Causing Injury (From 1/7/13).]

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

One - the complainant suffered an injury.

Two - the accused caused the complainant’s injury.

Three - the accused was aware that his/her acts would probably injure the complainant.

Four - the accused acted without lawful justification or excuse.

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

Injury

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

The law defines the word “injury” to include “unconsciousness, hysteria, pain and any substantial impairment of bodily function”. It also includes all the things that you would, as a matter of ordinary experience, call an injury.

In this case, the prosecution alleged that NOC suffered an injury because [insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments]. It is only if you are satisfied that NOC was injured that this first element will be met.

Causation

The second element that the prosecution must prove is that the accused caused the complainant’s 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 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 Charges: Causation should be adapted and inserted here.]

Recklessness

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 was aware that those acts would probably result in the complainant being injured, but decided to go ahead anyway.[1] That is, NOA knew that NOC was likely to be injured by his/her actions.

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

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 inferences to be drawn from that evidence]. When you are considering this evidence, you will remember what I told you earlier about drawing inferences.

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 be injured by 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 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 injured. [Describe relevant act and describe relevant evidence and/or arguments]. The defence responded [insert relevant evidence and/or arguments].

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 recklessly causing injury, the prosecution must prove to you beyond reasonable doubt:

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

Notes

[1] 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