The offence of intentionally causing serious injury is created by Crimes Act 1958 s16.
The offence has the following four elements:
The complainant suffered a "serious injury";
The accused caused the complainant’s serious injury;
The accused intended to cause serious injury; and
The accused acted without lawful justification or excuse.
The Crimes Amendment (Gross Violence Offences) Act 2013 substituted a new exhaustive definition for “serious 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 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.
Serious Injury after 1 July 2013
From 1 July 2013, Crimes Act 1958 section 15 contains the following relevant definitions:
a) Physical injury; or
b) Harm to mental health;
whether temporary or permanent
Serious injury means:
a) An injury (including the cumulative effect of more than one injury) that-
i) Endangers life; or
ii) Is substantial and protracted;
b) The destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm.
Physical injury and harm to mental health are both defined inclusively. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and impairment of bodily function. Harm to mental health includes psychological harm, but does not include emotions such as distress, grief, fear or anger unless such emotions result in psychological harm (Crimes Act 1958 s15).
Under the law in force before 1 July 2013, serious injury was inclusively defined to include a combination of injuries and the destruction of a foetus. Whether an injury was serious involved a value judgment by the jury (R v Welsh & Flynn Vic CCA 16/10/1987).
In contrast, for offences committed after 1 July 2013 the definition of serious injury is exclusive. Once a jury determines that an injury endangers life, is substantial and protracted, or involves the destruction of a foetus, there is no separate value judgment on whether the injury is a “serious injury”.
Serious Injury before 1 July 2013
For offences committed before 1 July 2013, “serious injury” is an ordinary English term. It is for the jury to determine, as a question of fact, whether the complainant’s injuries are sufficient to qualify as “serious” (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186).
In making this determination, the jury must make a value judgment about the gravity of the complainant’s injuries (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186; R v Cogley  VR 799).
The jury may compare the injury in question with injuries which common experience suggests would be superficial or trifling, and therefore fall short of being “serious injuries” (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186; R v Cogley  VR 799).
The injury must be assessed in its context. The complainant’s age, gender and state of health may all be relevant when assessing whether the injury is serious. An injury that is inflicted on a frail person may be more serious than the same injury inflicted on a person in good health (R v Welsh & Flynn Vic CCA 16/10/1987).
The jury does not need to find that the defendant inflicted “really serious” injury, as was previously the case when the offence required the accused to have caused grievous bodily harm (R v Welsh & Flynn Vic CCA 16/10/1987).
The jury is not restricted to considering physical injuries. “Injury” (and by implication “serious injury”) includes unconsciousness, hysteria, pain and any substantial impairment of bodily function (Crimes Act 1958 s15).
Under this definition, injury can include infecting a person with a disease. This occurs at the time of infection. It does not matter that the disease or virus takes time to manifest, or that the victim may spontaneously clear the disease without developing symptoms or consequences. Causing injury does not require something immediate or require that future harm be inevitable or even likely (Peters v The Queen (No 2)  VSCA 292, -).
In the case of a disease, the likelihood of future consequences and the nature of those consequences is relevant to whether the injury is serious. This must be assessed at the time of infection, but may be informed by hindsight given subsequent events. The jury is required to decide whether the injury is serious, not whether the injury had serious consequences (Peters v The Queen (No 2)  VSCA 292, , ).
The prospect that medical treatment may reduce the impact of a disease cannot reverse the seriousness of the injury. The side effects of treatment may instead go to show that the injury is serious (Peters v The Queen (No 2)  VSCA 292, ).
The jury is also not restricted to considering the gravity of one particular injury. A serious injury includes a combination of injuries and includes the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm (Crimes Act 1958 s15).
At common law, there was no clear rule on whether a foetus was considered part of the mother, or whether it had a sui generis status until it was born. Instead, the matter depended on the specific legal context in which the question arose and the effect of any relevant legislation (R v King (2003) 59 NSWLR 472. See also Attorney-General’s Reference (No 3 of 1994)  AC 245 and R v Sullivan  1 SCR 489).
Following amendments introduced by the Abortion Law Reform Act 2008, destruction of a foetus can constitute a serious injury, even if the mother does not herself suffer any other harm and it is not necessary to show that the foetus was born alive (Crimes Act 1958 s15).
The definitions of “serious” and “injury” in Crimes Act 1958 s15 as in force before 1 July 2013 are not exhaustive. Jurors are free to use their own experiences when determining whether or not the complainant has suffered a serious injury (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari  VSCA 186).
It is ultimately a matter for the jury to determine whether an injury is sufficiently serious. It is unwise to attempt a more elaborate explanation (R v Rhodes (1984) 14 A Crim R 124).
Causing Serious Injury
The complainant’s serious 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).
Intention to cause serious injury
It is not sufficient that the accused intended to do the act that injured the complainant. S/he must have intended to cause serious injury (R v Westaway (1991) 52 A Crim R 336).
It is also not sufficient for the accused to have intended only to cause injury. S/he must have intended to cause serious injury (R v Westaway (1991) 52 A Crim R 336; R v Liewes Vic CA 10/04/1997; DPP v Fevaleaki  VSCA 212).
The accused does not need to have intended to have caused the precise injury that s/he ultimately caused. It is only necessary that the accused intended to cause an injury that is a serious injury, and actually causes a serious injury (Royall v R (1991) 172 CLR 378).
The nature of the accused’s acts may provide evidence of his/her intention (R v McKnoulty (1995) 77 A Crim R 333).
Intention and causation must always be treated as separate issues. This is especially important if the accused did not directly cause the complainant’s injuries. In such cases, the jury must separately assess whether the accused caused those injuries, and whether s/he intended to cause serious injury (R v McKnoulty (1995) 77 A Crim R 333; Royall v R (1991) 172 CLR 378).
The accused’s capacity to form the relevant intention may have been affected by drugs and alcohol (R v Mala Vic CA 27/11/1997; R v Kumar (2006) 165 A Crim R 48; R v Faure  2 VR 537). See Common Law Intoxication for further information on this point.
Without lawful excuse
The prosecution must disprove any defences which are open on the evidence (R v Roach  VR 665).
From 1 July 2013, intentionally causing serious injury is a statutory alternative to the more serious offence of 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 (see R v Kane (2001) 3 VR 542). For information on when to leave this as an alternative, see Jury Directions Act 2015 s11 and Alternative Verdicts.