Vla offence snapshot causing injury intentionally or recklessly PDF

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Criminal Law 8 April 2013

Causing injury intentionally or recklessly and causing serious injury recklessly Causing injury intentionally or recklessly Crimes Act 1958, Section 18 – (10 years and 5 years max. penalty respectively)

There are four elements the prosecution must prove. These are: 1. the complainant suffered an injury 2. the accused caused the injury 3. that the requisite mens rea is established: a.

if intentionally, that the accused intended to cause the injury, or

b.

if recklessly, that the accused knew that his/her acts would probably cause injury

4. the accused acted without lawful justification or excuse.

1. The complainant suffered injury (see below for a discussion of serious injury) How injury is defined Injury is not restricted to physical injuries. Injury can include unconsciousness, hysteria, pain and impairment of bodily functions (s. 15). The definition of injury in s15 of the Crimes Act 1958 is not exhaustive (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari [2002] VSCA 186). ‘Injury’ is given its ordinary English meaning and is a question of fact for the jury to determine (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari [2002] VSCA 186).

2. The accused caused the injury The accused’s acts must have caused the injury. An accused’s conduct must have ‘contributed significantly’ to the resulting injury, or been a ‘substantial and operating cause’ of it (Royall v R (1991) 172 CLR 378; R v Rudebeck [1999] VSCA 155; R v Stein [2007] VSCA 300; R v Withers [2009] VSCA 306; R v Aidid (2010) 25 VR 593). The accused does not need to be the sole cause of the injury. A person can be criminally liable for something that has multiple causes, even if he or she is not responsible for all of those causes (Royall v R (1991) 172 CLR 378; R v Stein [2007] VSCA 300; R v Withers [2009] VSCA 306; R v Aidid (2010) 25 VR 593). This element will be satisfied even if the accused caused the injury indirectly (R v Salisbury [1976] VR 452). The accused can ‘cause’ a result by act or omission (Royall v R (1991) 172 CLR 378).

Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book and Sentencing Advisory Council, SACStat Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute for thorough, in-depth legal research.

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Criminal Law Offence Snapshot – RCI, ICI & RCSI

NB: Be mindful of complicating factors in relation to proving causation such as: intervening acts, acts of the victim or failure of either the victim or a third party to reasonably intervene. For more information, see Causation in the Judicial College of Victoria, Victorian Criminal Charge Book.

3. Intention or recklessness How ‘recklessness’ is defined To be reckless about causing injury, the accused must have been aware when she or he committed the conduct that injury was ‘probable’ or ‘likely’. It is not sufficient for him or her to have been aware that 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). It is not sufficient that a reasonable person in the accused’s circumstances would have realised that their conduct would be likely to injure the complainant (R v Sofa Vic CA 15/10/1990; c.f. R v Nuri [1990] VR 641).

How ‘intention’ is defined It is not sufficient that the accused intended to do the act that injured the complainant. She or he must have intended to inflict injury (see R v Westaway (1991) 52 A Crim R 336). The nature of the accused’s acts may provide evidence of his/her intention (R v McKnoulty (1995) 77 A Crim R 333). The accused does not need to have intended the precise injury s/he ultimately caused. It is only necessary that the accused intended to cause an injury and actually causes an injury (Royall v R (1991) 172 CLR 378; R v Demirian [1989] VR 97).

4. That the accused acted without lawful excuse The prosecution must disprove any defences open on the evidence. A common defence to this offence is self defence.

Other legal issues It is common for offences which occurred in the domestic violence context for a victim to want to make a statement of no complaint and seek an exemption from giving evidence. In cases in which the victim wants to be excluded from giving evidence the police will try to prove the case by:  use of other evidence (family members who can’t seek an exemption under s.18 Evidence Act, confessional material etc.).  tendering the statement of the victim on the basis that she is an absent witness.

If the police can use other evidence it does not mean that they can prove all of the case. If a defendant is charged with cause injury, an independent person might have observed blows to the victim. However if the victim is not available to give evidence, the police may not be able to prove the injury occurred or if it occurred, if it resulted from this incident. Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book and Sentencing Advisory Council, SACStat Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute for thorough, in-depth legal research.

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Criminal Law Offence Snapshot – RCI, ICI & RCSI

If the police seek to tender a statement of the victim the key question of admissibility is reliability. If the police have taken it pursuant to an investigation and the statement is in the normal form then one would expect for it to be admissible. Reliability may also be in question if the victim was drunk, under the influence of drugs and/or has made other contradictory statements.

Causing Serious Injury Recklessly Crimes Act 1958, Section 17 – (15 years maximum penalty)

There are four elements the prosecution must prove. These are: 1. the complainant suffered a serious injury 5. the accused caused the serious injury 6. the accused was reckless about causing serious injury 7. the accused acted without lawful justification or excuse.

1. The complainant suffered serious injury How ‘serious injury’ is defined Section 15 of the Crimes Act does not provide an exhaustive definition of ‘serious injury’. It states that serious injury includes a combination of injuries i.e., there is no requirement for each of the victim’s injuries to be assessed as serious, a person may suffer a serious injury because of a combination of injuries. ‘Serious injury’ is an ordinary English term. It is for the jury/magistrate to determine, as a question of fact, whether the complainant’s injuries qualify as serious. (R v Welsh & Flynn Vic CCA 16/10/1987; R v Ferrari [2002] VSCA 186). In making this determination, the jury/magistrate is required to 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). 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. For example, an injury that is inflicted on an elderly 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). The jury/magistrate is not restricted to considering physical injuries. The definition of injury (and therefore serious injury) includes unconsciousness, hysteria, pain and any substantial impairment of bodily function (s15). The remaining elements are the same as recklessly cause injury. See above.

Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book and Sentencing Advisory Council, SACStat Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute for thorough, in-depth legal research.

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Criminal Law Offence Snapshot – RCI, ICI & RCSI

Sentencing Snapshot (Magistrates’ Court, 2009 – 2011) Source: Sentencing Advisory Council Sentence Type

Causing injury recklessly

Causing injury intentionally

Causing serious injury recklessly

Imprisonment

11.9%

19.7%

21.8%

Partially Suspended Sentence

3.5%

5.1%

7.0%

Wholly Suspended Sentence

14.1%

18.6%

20.5%

Youth Justice Centre Order

1.2%

3.1%

3.0%

Intensive Correction Order

6.2%

9.1%

16.6%

Community-based Order

23.0%

23.4%

18.1%

Fine

21.1%

11.8%

8.9%

ADU/Discharge/Dismissal

18.8%

9.2%

4.1%

For more information about this offence, go to the Judicial College of Victoria:  Victorian Criminal Charge Book – 7.4.1 Intentional Injury  Victorian Criminal Charge Book – 7.4.2 Reckless Injury.

Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book and Sentencing Advisory Council, SACStat Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute for thorough, in-depth legal research.

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