Aggravated carjacking is an offence under Crimes Act 1958 s79A.
The offence has the following three elements:
The accused commits carjacking; and
at the time the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; or
in the course of the carjacking the person causes injury to another person (Crimes Act 1958 s79A(1)).
As noted in Carjacking, the basic offence of carjacking consists of robbery where the property stolen is a car. See Robbery for information on the first element.
The second element consists of two alternatives: Possession of a proscribed weapon; or Causing injury to a person.
For information on possession of a proscribed weapon, see Armed Robbery.
In relation to the alternative second element of causing injury to a person, the Crimes Act 1958 specifies that injury has the same meaning as in section 15 (Crimes Act 1958 s79A(3)).
Section 15 contains the following relevant definitions:
a) Physical injury; or
b) Harm to mental health;
whether temporary or permanent
Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm;
Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function.
The element requires proof that the accused caused the injury ‘in the course of the carjacking’. This likely requires proof that the accused caused the injury as part of, or for the purpose of, the carjacking. It will likely be a matter of fact and degree for the jury to determine whether the prosecution has proved the necessary relationship between the causing injury and the carjacking.
The Act is silent on any fault element associated with this alternative second element. Judges will therefore need to engage in a process of statutory construction, taking into account principles relevant to the interpretation of ambiguous penal statutes (see Coco v R (1994) 179 CLR 427; Bropho v State of Western Australia (1990) 171 CLR 1; Beckwith v R (1976) 135 CLR 569).
As a matter of prudence, the model charge in this Charge Book assumes for this element that the accused must intend to cause injury.