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7.4.14 - Conduct Endangering Life

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Overview

  1. A person must not recklessly engage in conduct that places or may place another person in danger of death (Crimes Act 1958 s22).
  2. This is a general offence of endangerment, which replaced the various specific endangerment offences that existed prior to its enactment (R v Nuri [1990] VR 641).
  3. Conduct endangering life is an offence against the person. An accused who creates a risk of death to multiple individuals may be charged with multiple counts of conduct endangering life (R v Bekhazi (2001) 3 VR 321).
  4. The offence has the following 5 elements:
    1. The accused engaged in conduct;
    2. The accused’s conduct was voluntary;
    3. The accused’s conduct endangered another person’s life;
    4. The accused acted recklessly; and
    5. The accused acted without lawful authority or excuse (R v Nuri [1990] VR 641; Filmer v Barclay [1994] 2 VR 269; Mutemeri v Cheesman [1998] 4 VR 484; R v Wilson [2005] VSCA 78; R v Abdul-Rasool (2008) 18 VR 586; R v Marijancevic (2009) 22 VR 576).

    Conduct

  5. The accused must have engaged in the conduct alleged (R v Abdul-Rasool (2008) 18 VR 586).

    Voluntariness

  6. The accused’s conduct must have been voluntary (R v Abdul-Rasool (2008) 18 VR 586; R v Wilson [2005] VSCA 78; R v Marijancevic (2009) 22 VR 576).
  7. When explaining this element to the jury, the judge should not use the word "intentional". The terms "intentional" and "voluntary" are not interchangeable (R v Marijancevic (2009) 22 VR 576).[1]
  8. It is a misdirection to tell the jury that the trial "starts with the proposition that acts are voluntary". It is for the prosecution to prove, beyond reasonable doubt, that the accused’s acts are voluntary (R v Marijancevic (2009) 22 VR 576).

    Endangerment

  9. The accused’s conduct must have endangered another person’s life (Crimes Act 1958 s22).
  10. For this element to be met, the prosecution must prove that a reasonable person, taking the same actions as the accused, would have realised that his/her conduct:
  11. According to this test, it is not necessary to prove that a person was actually put in danger. It is only necessary to show that the accused’s conduct had the potential to place a person in danger of death (R v Abdul-Rasool (2008) 18 VR 586).
  12. The person it is alleged was put in danger (or potential danger) by the accused’s conduct must have been alive at the time the conduct was committed (R v Anderson Vic SC 5/12/1997).

    Degree of Danger

  13. The degree of danger must be an "appreciable risk" of death (R v B Vic SC 19/7/1995; R v Abdul-Rasool (2008) 18 VR 586; Mutemeri v Cheesman [1998] 4 VR 484).
  14. An "appreciable risk" means more than a remote or mere possibility of death (R v B 19/7/1995 Vic SC; R v Wilson [2005] VSCA 78; R v D Vic SC 1/5/1996).
  15. It is not appropriate to assess the level of dangerousness by reference to a mathematical probability (R v B Vic SC 19/7/1995; R v Boughey (1986) 161 CLR 10; R v D Vic SC 1/5/1996).
  16. It is inherent in the notion of risk that the risk may not materialise. However, the risk must be real and not simply hypothetical (R v Abdul-Rasool (2008) 18 VR 586; R v Nuri [1990] VR 641; R v Lam [2006] VSCA 162).

    Danger Must Not be Contingent on Other Conduct

  17. Conduct endangering life is not a crime of attempt. The conduct of the accused must complete the creation of the risk of death (R v Abdul-Rasool (2008) 18 VR 586).
  18. The risk of death must therefore not be contingent on some other conduct that has not occurred. The jury may only consider conduct the accused has actually engaged in. They may not consider any possible future acts the accused may have been going to commit (R v Abdul-Rasool (2008) 18 VR 586; R v Lam [2006] VSCA 162).

    The "Reasonable Person"

  19. The reasonable person must be attributed with any knowledge the accused possessed which may have affected his or her assessment of the risk (R v Abdul-Rasool (2008) 18 VR 586; R v Besim (No 2) (2004) 148 A Crim R 28).
  20. The reasonable person does not suffer from any defects of reasoning held by the accused. The accused’s emotional or mental state must not be attributed to the reasonable person (R v Wills [1983] 2 VR 201; R v Besim (No 2) (2004) 148 A Crim R 28).

    Recklessness

  21. The accused must have endangered another person’s life recklessly (Crimes Act 1958 s22).
  22. This requires the accused to have foreseen that an appreciable risk of death was a probable consequence of his or her conduct (Mutemeri v Cheesman [1998] 4 VR 484; R v Nuri [1990] VR 641; R v McCarthy Vic CA 4/11/1993). See Recklessness for further information about recklessness.
  23. The accused does not need to have foreseen that his or her conduct would probably cause death. This element requires the accused to have foreseen that his or her conduct would probably create an appreciable risk of death (R v Toms [2006] VSCA 101; R v Lam [2006] VSCA 162).
  24. It is not sufficient for the prosecution to prove that the accused foresaw the likely physical result of his or her conduct (e.g., s/he foresaw that if s/he dropped his/her cigarette a fire would probably start). The prosecution must prove that the accused foresaw the risk of death created by his/her conduct (e.g., s/he foresaw that there was an appreciable risk that someone would die in the fire created by his/her cigarette) (Filmer v Barclay [1994] 2 VR 269).
  25. The accused’s state of mind must be assessed at the time the conduct was committed. It is not sufficient for the prosecution to prove that the accused later realised that his or her conduct was dangerous (R v Wilson [2005] VSCA 78).
  26. It is important not to conflate the chance involved in relation to recklessness (i.e., that an appreciable risk of death was probable) with the chance involved in relation to dangerousness (i.e. that the risk of death was appreciable) (R v Abdul-Rasool (2008) 18 VR 586; Mutemeri v Cheesman [1998] 4 VR 484).

    Lawful Authority or Excuse

  27. The prosecution must disprove any defences that are raised on the evidence (Crimes Act 1958 s22).

 

Notes

[1] As far as possible, the use of the word "intention" should be limited to expressing the intention to achieve the consequences of a voluntary or willed act (i.e. to achieve some result or consequence, or to fulfil some purpose) (Timbu Kolian v R (1968) 119 CLR 47; R v Marijancevic (2009) 22 VR 576).

Last updated: 7 February 2014

In This Section

7.4.14.1 - Charge: Conduct Endangering Life

7.4.14.2 - Checklist: Conduct Endangering Life

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.8 - Common Law Assault

7.4.9 - Statutory Assault

7.4.10 - Threats to Kill

7.4.11 - Threats to Inflict Serious Injury

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.17 - False Imprisonment

7.4.18 - Child Stealing

7.4.19 - Kidnapping (Common Law)

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray