7.4.5 - Recklessly Causing Serious Injury

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1. The offence of recklessly causing serious injury is created by Crimes Act 1958 s17.
2. The offence has the following four 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; and
   4. The accused acted without lawful justification or excuse.

   “Serious Injury”

3. 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 the commencement of the amending Act, 1 July 2013.
4. 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).
5. This topic separately describes the operation of this element for offences committed before and after 1 July 2013.

   Serious Injury after 1 July 2013

6. From 1 July 2013, Crimes Act 1958 section 15 contains the following relevant definitions:

   Injury means:

   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.

7. 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).
8. 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).
9. In contrast, for offences committed after 1 July 2013 the definition of serious injury is exclusive. Once a jury determines that the 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

10. 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 [2002] VSCA 186).
11. 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 [2002] VSCA 186; R v Cogley [1989] VR 799).
12. 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 [2002] VSCA 186; R v Cogley [1989] VR 799).
13. 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).
14. 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).
15. 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).
16. 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).
17. 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) [1998] AC 245 and R v Sullivan [1991] 1 SCR 489).
18. 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).
19. 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 [2002] VSCA 186).
20. 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

21. The complainant’s serious injury must have been caused by the accused. For detailed information about causation, see Causation.
22. 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 [1976] VR 452).

    Recklessness

23. To have been reckless about causing serious injury, the accused must have been aware, when s/he committed the relevant conduct, that it would probably cause serious injury (R v Crabbe (1985) 156 CLR 464; R v Sofa Vic CA 15/10/1990; Ignatova v R [2010] VSCA 263; Paton v R [2011] VSCA 72).
24. The accused must have been aware that serious injury was “probable” or “likely”. It is not sufficient for him/her to have been aware that serious injury was merely “possible” or “might” result (R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641; Ignatova v R [2010] VSCA 263; Paton v R [2011] VSCA 72).
25. The accused him/herself must have been aware that his/her conduct would probably cause serious injury. It is not sufficient that a reasonable person in the accused’s circumstances would have realised that their conduct would be likely to seriously injury the complainant (R v Sofa Vic CA 15/10/1990; c.f. R v Nuri [1990] VR 641).
26. When explaining this element, judges may tell the jury that the accused must have been aware that his or her conduct would probably cause serious injury, but decided to go ahead anyway. The words “but decided to go ahead anyway” do not make proof that the accused was indifferent to the consequences of his or her conduct an element of the offence. Instead, the purpose of the words is to distinguish recklessness from intention. Judges may modify or omit the words “but decided to go ahead anyway” if the words could mislead or confuse the jury (see Ignatova v R [2010] VSCA 263; R v Crabbe (1985) 156 CLR 464. Cf R v Sofa Vic CA 15/10/1990; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585; R v Wilson [2005] VSCA 78).
27. 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

28. The prosecution must disprove any defences which are open on the evidence.

    Alternative offences

29. From 1 July 2013, recklessly causing serious injury is a statutory alternative to the more serious offence of recklessly causing serious injury in circumstances of gross violence (Crimes Act 1958 s422).
30. Recklessly causing injury (Crimes Act 1958 s18) is an impliedly included offence to a charge of recklessly 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.

Last updated: 29 June 2015