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

Click here to obtain 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 Serious Injury (From 1/7/13).]

I must now direct you about the crime of recklessly 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 was aware that his/her acts would probably cause serious injury to the complainant.

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.

It is a matter for you whether the injury that NOC suffered was a “serious injury”. This requires a value judgment, comparing NOC’s injury with the range of injuries that a person may suffer.

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.

For this element to be met, the Crown must prove that the accused caused not only an injury, but a “serious injury”. In this context, there are two levels of harm known to the law: “injury” and “serious injury”. There are no other classes such as “very serious injury” or “minor injury” or anything else.

You may consider NOC’s injuries as lying somewhere on a spectrum of injuries. At one end are trivial injuries like a paper cut or a grazed knee. At the other end of the spectrum are life-threatening injuries or permanent brain damage and the like.

It is a matter for you where on that spectrum NOC’s injuries lie. For this first element to be met, you must be satisfied that NOC’s injuries justify the description “a serious injury”.

In making your determination, you do not have to look at each of NOC’s injuries separately, and assess whether or not any one of them is sufficiently “serious”. A person may suffer a “serious injury” because of a combination of 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 is sufficient grave that it is a “serious injury” 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 proved.

[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 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 seriously injured, but decided to go ahead anyway.[1] 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 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 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].

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 proved.

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

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

Recklessly Causing Injury

I must also direct you about the crime of recklessly causing injury. This is an alternative to the offence of recklessly causing serious injury. That means that you only need to return a verdict on this offence if you find NOA not guilty of recklessly causing serious injury. If you decide that NOA is guilty of recklessly causing serious injury, then you do not need to deliver a verdict on this alternative.

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

The way that you determine whether these elements have been proved is the same as for the offence of recklessly 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 an injury. The law says that an injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function. 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 recklessly 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 proved.

[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 was aware that his/her acts were likely 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 proved.

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

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 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

7.4.5 - Recklessly Causing Serious Injury

7.4.5.1 - Charge: Recklessly Causing Serious Injury (From 1/7/13)

7.4.5.2 - Checklist: Recklessly Causing Serious Injury (From 1/7/13)

7.4.5.4 - Checklist: Recklessly Causing Serious Injury (Pre-1/7/13)