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7.4.15 - Conduct Endangering Persons

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Overview

  1. A person must not recklessly engage in conduct that places or may place another person in danger of serious injury (Crimes Act 1958 s23).
  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 persons is an offence against the person. An accused who creates a risk of serious injury to multiple individuals may be charged with multiple counts of conduct endangering persons (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;
    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).

    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).
  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 (Crimes Act 1958 s23).
  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 serious injury (R v Abdul-Rasool (2008) 18 VR 586).

    Degree of Danger

  12. The degree of danger must be an "appreciable risk" of serious injury (R v B Vic SC 19/7/1995; R v Abdul-Rasool (2008) 18 VR 586; Mutemeri v Cheesman [1998] 4 VR 484).
  13. An "appreciable risk" means more than a remote or mere possibility of serious injury (R v B 19/7/1995 Vic SC; R v Wilson [2005] VSCA 78; R v D Vic SC 1/5/1996).
  14. 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).
  15. 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).

    Content of the Risk

  16. The conduct must have placed a person at risk of “serious injury”. This is defined in Crimes Act 1958 s15 as:

    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; or

    (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;

  17. This definition was introduced by the Crimes Amendment (Gross Violence Offences) Act 2013 and commenced operation on 1 July 2013. Prior to that date, the definition of serious injury was:

    serious injury includes—

    (a) a combination of injuries; and

    (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;

  18. This Charge Book contains separate directions, depending on whether the offence was alleged to have been committed before or after 1 July 2013.
  19. More guidance on the meaning of serious injury is provided in Intentionally Causing Serious Injury.

    Danger Must Not be Contingent on Other Conduct

  20. Conduct endangering persons is not a crime of attempt. The conduct of the accused must complete the creation of the risk of serious injury (R v Abdul-Rasool (2008) 18 VR 586; [2008] VSCA 13).
  21. The risk of serious injury 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"

  22. 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).
  23. 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

  24. The accused must have acted recklessly (Crimes Act 1958 s23).
  25. This requires the accused to have foreseen that an appreciable risk of serious injury 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.
  26. The accused does not need to have foreseen that his or her conduct would probably cause serious injury. This element requires the accused to have foreseen that his or her conduct would probably create an appreciable risk of serious injury (R v Toms [2006] VSCA 101; R v Lam [2006] VSCA 162).
  27. 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 serious injury created by his/her conduct (e.g., s/he foresaw that there was an appreciable risk that someone would be seriously injured in the fire created by his/her cigarette) (Filmer v Barclay [1994] 2 VR 269).
  28. 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).
  29. It is important not to conflate the chance involved in relation to recklessness (i.e., that an appreciable risk of serious injury was probable) with the chance involved in relation to dangerousness (i.e. that the risk of serious injury was appreciable) (R v Abdul-Rasool (2008) 18 VR 586; Mutemeri v Cheesman [1998] 4 VR 484).

    Lawful Authority or Excuse

  30. The prosecution must disprove any defences that are raised on the evidence (Crimes Act 1958 s23).

    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: 30 November 2015

In This Section

7.4.15.1 - Charge: Conduct Endangering Persons (From 1/7/13)

7.4.15.2 - Checklist: Conduct Endangering Persons (From 1/7/13)

7.4.15.3 - Charge: Conduct Endangering Persons (Pre- 1/7/13)

7.4.15.4 – Checklist: Conduct Endangering Persons (Pre-1/7/13)

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)

7.4.14 - Conduct Endangering Life

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