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7.5.9.1 – Charge: Aggravated Carjacking

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[This charge can be used where one or more elements of the offence are in issue. If the only issue relied upon by the accused, or raised by the evidence, is that the accused was not the offender, this charge should be adapted. See Charge: Robbery (Short) for guidance on possible adaptions.

This direction is written as if the prosecution relies on both Crimes Act 1958 s79A(1)(a) and s79A(1)(b) as forms of aggravation. It must be modified if the prosecution elects to rely on only one form of aggravation.]

The Elements

I must now direct you about the crime of aggravated carjacking. To prove this crime, the prosecution must prove the 4 elements beyond reasonable doubt. The first three make up the crime of carjacking, and the four is what changes carjacking into aggravated carjacking.

One - the accused committed theft of a vehicle.

Two - immediately before or at the time of the theft, the accused either:

Three - the accused acted in that way in order to commit the theft.

Four – The accused either had a prohibited weapon with him/her or intentionally caused injury to a person during the alleged carjacking.[1]

I will now explain each of these elements in more detail.[2]

Theft

The first element that the prosecution must prove is that the accused committed theft of a vehicle. In order to do this, the prosecution must prove four things.[3]

First, they must prove that the accused appropriated property that belonged to another person. Although the word "appropriation" has a technical legal meaning, and includes many different types of acts, here it simply means to take something without the owner’s consent.

In this case, the prosecution alleged that NOA took [identify vehicle] that belonged to [identify owner]. [Summarise prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

Second, the prosecution must prove that the property was a "vehicle". There is no dispute that [identify vehicle] is a vehicle.[4]

Thirdly, the prosecution must prove that, when the accused appropriated the vehicle, s/he intended to permanently deprive the owner of it. That is, s/he intended that the owner would never get it back.

For this offence, the law states that the prosecution can prove an intention to permanently deprive by showing that the accused took or used the vehicle without the consent of the owner.

[Identify prosecution evidence and/or arguments.]

Fourthly, the prosecution must prove that, at the time of the appropriation, the accused was acting dishonestly. In this context, "dishonesty" does not have its ordinary meaning. It is given a special legal meaning, which says that the accused will have acted dishonestly if, when s/he took the vehicle, s/he did not believe that s/he had a legal right to take it.

In this case there is no evidence that the accused believed s/he had a legal right to take the vehicle. So if you are satisfied that NOA took the vehicle, you should have no difficulty finding this requirement proven.

It is for you to determine, based on all the evidence, whether NOA committed theft of a vehicle. This will only be the case if you are satisfied that all four of the requirements I have just outlined have been proven beyond reasonable doubt.

Force or fear of force

The second element that the prosecution must prove is that, immediately before or at the time of the theft, the accused either:

In this case the prosecution alleged that NOA [identify relevant ground[s] and people involved, eg, "used force against NOC"] when s/he [describe relevant conduct]. The defence denied this, arguing [describe defence evidence and/or arguments].

[If it is alleged that the accused put, or sought to put, a person in fear, add the following shaded section.]

You will note that it is not enough for the prosecution to prove that NOA put, or sought to put, NOC in fear that force was going be used on him/her/NO3P[5] at some distant or uncertain time. To prove this element on the basis of the threatened use of force, the prosecution must prove that NOA put, or sought to put, NOC in fear that force was going to be used on him/her/NO3P then and there.

You will also note that, while this element will be met if you are satisfied that NOC was actually fearful that such force was going to be used, this is not necessary. This element will be met if the prosecution can prove that NOA sought to put NOC in fear, even if that attempt was unsuccessful.

Conduct was committed "in order" to steal

The third element that the prosecution must prove is that the accused acted in the way s/he did in order to commit the theft of the vehicle. That is, NOA must have [used force on NOC / put NOC in fear of the use of force / sought to put NOC in fear of the use of force] for the purpose of stealing the vehicle, rather than for another reason.

[Insert any relevant evidence and/or arguments.]

Aggravating element

The fourth element is called the aggravating element. It makes this form of alleged carjacking more serious than other forms of alleged carjacking. The prosecution relies on two alternative aggravating elements. If you find either of these elements proved, then you may find this fourth element proved.[6]

The first aggravating element is that the accused, at the time of the alleged carjacking, had with him/her a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive.

For this aggravating element to be proved, there are three things that the prosecution must prove.

First, they must prove that, at the time of the alleged carjacking NOA had [identify item] either on him/her or readily available for use.

Secondly, the prosecution must prove that [identify item] falls within the category of [firearm / imitation firearm / offensive weapon / explosive / imitation explosive].

[Where there is a dispute about whether the article possessed was a firearm, add relevant parts of the following shaded section.]

The law defines a "firearm" to be any device which is designed or adapted to discharge bullets or other missiles, either by the expansion of gases produced in the device by the ignition of strongly combustible materials, or by compressed air or other gases. The definition of "firearm" also includes anything which looks like such a device.

However, certain things are excluded from the definition of a "firearm". These include [identify relevant exception, eg, "underwater spear guns"].

To be a "firearm", the device does not need to be assembled, complete or operational. If it fits the definition I have just given you, it will be a "firearm", whether or not it actually works.

[Where it is alleged that the accused had an imitation firearm with him/her, add the following shaded section.]

An "imitation firearm" is anything which has the appearance of being a firearm, whether or not it is capable of being fired.

[Where it is alleged that the accused had an offensive weapon with him/her, add the following shaded section]

The law defines two different kinds of items as "offensive weapons". First, an item is an offensive weapon if it is specifically made or adapted for the use of injuring or incapacitating a person. Secondly, an ordinarily inoffensive item that does not meet this criterion can also become an "offensive weapon" if the person carrying it intends or threatens to use it to injure or incapacitate a person.

[If it is alleged that the relevant article was made for the use of injuring or incapacitating a person, add the following darker shaded section.]

In this case the prosecution argued that the [identify item] is an "offensive weapon" because it is made for injuring or incapacitating people. That is, it is an item that is normally used for this purpose.

[If it is alleged that the relevant article was adapted for the use of injuring or incapacitating a person, add the following darker shaded section.]

In this case the prosecution argued that the [identify item] was an "offensive weapon" because it was adapted for the use of injuring or incapacitating people. That is, it was physically modified so that it could cause injury or incapacitate a person.

[If it is alleged that an ordinary article became an offensive weapon because of the accused’s use, threats or intention, add the following darker shaded section.]

In this case the prosecution argued that the [identify item] was an "offensive weapon" because NOA [used / threatened to use / intended to use] it for the purpose of injuring or incapacitating a person.

[Where it is alleged that the accused had an explosive with him/her, add the following shaded section]

An "explosive" is any item which is manufactured for the purpose of producing a practical effect by explosion, or which is intended to have that purpose. Any item that fits this definition will be an "explosive", whether or not it actually works.

[Where it is alleged that the accused had an imitation explosive with him/her, add the following shaded section.]

An "imitation explosive" is any item which might reasonably be taken to be, or to contain, an explosive.

Thirdly, the prosecution must prove that the accused had the [identify item] with him/her for the purpose of the alleged carjacking. This will be the case if NOA had the [identify item] with him/her for the purpose of stealing the vehicle and either using force on NOC or putting or seeking to put NOC in fear that s/he or another person will then and there be subject to force.

In determining this matter you should focus on NOA’s intention at the time s/he is alleged to have stolen the vehicle. It does not matter what his/her intention was at the time s/he first handled the [identify item].

In this case the prosecution argued that all three of these requirements have been met. [Describe prosecution evidence and/or arguments.]

The defence [describe defence case [if any] in respect of this element, e.g.,

It is for you to determine, based on all the evidence, whether all three of these matters have been proven beyond reasonable doubt. It is only if you are satisfied that NOA had [identify item] with him/her at the time of the carjacking, that [identify item] was a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive], and that NOA had that item with him/her for the purposes of the carjacking that this first aggravating element will be proved.

The second aggravating element is that in the course of the carjacking NOA intentionally caused injury to another person. There are three parts to this aggravating element.

First, NOA must have caused injury to NOC. The law says that injury means a physical injury or harm to mental health, whether temporary or permanent. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function. It also includes all the things that you would, as a matter of ordinary experience, call an injury. Harm to mental health includes psychological harm, but not emotional reactions such as distress, grief, fear or anger which do not result in psychological harm.

To prove this element, the prosecution must show that NOC suffered an injury, rather than some superficial or trivial harm.

Second, NOA must have intended to cause injury to NOC. That is, at the time of the acts which caused the injury, NOA must have intended to injure NOC.

It is not, however, necessary that NOA intended to inflict the injury that NOC actually suffered. This third element will be satisfied even if NOA intended to inflict a different kind of injury.

Third, NOA must have caused the injury in the course of the alleged carjacking. The prosecution must show that NOA causing NOC injury was not separate or unrelated to the alleged carjacking.

[Refer to relevant evidence and arguments]

Remember, the prosecution must prove one of these two aggravating elements beyond reasonable doubt. As this is an element of the offence, you can only find NOA guilty of this offence if you all agree which aggravating element has been proved.

Summary

To summarise, before you can find NOA guilty of aggravated carjacking, the prosecution must prove to you, beyond reasonable doubt:

One - that NOA committed theft of a vehicle, by dishonestly appropriating a vehicle that belonged to another person, intending to permanently deprive the owner of that vehicle; and

Two - that immediately before or at the time of the theft, NOA either:

Three – that NOA acted in this way in order to commit the theft.

Four – that NOA either had with him/her a prohibited weapon or in the course of the carjacking NOA intentionally caused injury to another person.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of aggravated carjacking.

Notes

[1] - Where the prosecution only relies on one form of aggravation, this statement of the element should only refer to that form of aggravation.

[2] - If an element is not in issue it should not be explained in full. Instead, the element should be explained briefly, and followed by an instruction such as: “It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meet the element], and you should have no difficulty finding this element proven.”

[3] - This part of the charge is designed for use in cases where the theft element does not raise any technical issues. If such issues do arise, the charge should be adapted or expanded accordingly. Guidance can be obtained from Charge: Theft (Extended).

[4] - If the nature of the property as a vehicle is in issue, or if the jury might be surprised that the relevant property is a vehicle (e.g. a house boat), this direction should be expanded.

[5] - Name of third party.

[6] - If the prosecution only relies on one form of aggravation, this paragraph and the directions on this element should be modified to only refer to the form of aggravation in issue.

Last updated: 9 March 2017

See Also

7.5.9 – Aggravated Carjacking

7.5.9.2 – Checklist: Aggravated Carjacking