7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

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Overview

1. The offence of recklessly causing serious injury in circumstances of gross violence is created by Crimes Act 1958 s15B.
2. The offence has the following five elements:
   1. The complainant suffered a “serious injury”;
   2. The accused caused the complainant’s serious injury;
   3. The accused was reckless about causing serious injury;
   4. The injury was caused in circumstances of “gross violence”; and
   5. The accused acted without lawful justification or excuse.
3. This offence is an aggravated form of recklessly 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 Recklessly Causing Serious Injury.

   Commencement Date

4. This offence applies to offences committed on or after 1 July 2013, following the commencement of the Crimes Amendment (Gross Violence Offences) Act 2013.

   Gross Violence

5. The prosecution must prove that the accused caused serious injury to another in circumstances of gross violence.
6. Section 15B(2) of the Crimes Act 1958 exhaustively defines circumstances of gross violence as one or more of the following:
   1. The offender planned in advance to engage in conduct and at the time of the planning-
      1. The offender intended that the conduct would cause a serious injury; or
      2. The offender was reckless as to whether the conduct would cause a serious injury; or
      3. A reasonable person would have foreseen that the conduct would be likely to result in a serious injury;
   2. The offender in company with 2 or more other persons caused the serious injury;
   3. The offender entered into an agreement, arrangement or understanding with 2 or more other persons to cause a serious injury;
   4. 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;
   5. The offender continued to cause injury to the other person after the other person was incapacitated;
   6. The offender caused the serious injury to the other person while the other person was incapacitated.

   Foresight that conduct would likely cause a serious injury

7. 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 [2007] NSWSC 1071).
8. While there have not been any decisions on the meaning of likely for the purposes of section 15B(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) [2006] NSWCCA 373).

   Incapacitation

9. While this provision has not been interpreted, it is likely that the word “incapacitated” in sections 15B(2)(e) and (f) carries its ordinary meaning of a person being unable to defend himself or herself.
10. In many cases, this will arise when the complainant is rendered unconscious. Future cases may also identify other possible causes of incapacitation.

    Alternative offences

11. Recklessly causing serious injury is a statutory alternative to recklessly causing serious injury in circumstances of gross violence (Crimes Act 1958 s422).
12. Recklessly causing injury (Crimes Act 1958 s18) is an impliedly included offence to a charge of recklessly causing serious injury in circumstances of gross violence (see R v Kane (2001) 3 VR 542). See Jury Directions Act 2015 s11 and Alternative Verdicts on when a judge needs to leave alternative offences.

Last updated: 6 November 2019