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Criminal Law

8 April 2013
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/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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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:
the complainant suffered an injury
the accused caused the injury
that the requisite mens rea is established:
if intentionally, that the accused intended to cause the injury, or
if recklessly, that the accused knew that his/her acts would probably cause injury
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 accuseds acts must have caused the injury.
An accuseds 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).
Criminal Law
Offence Snapshot RCI, ICI & RCSI
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/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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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 accuseds 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 accuseds 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 cant 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.
Criminal Law
Offence Snapshot RCI, ICI & RCSI
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/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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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
the accused caused the serious injury
the accused was reckless about causing serious injury
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
victims 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 complainants 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 complainants 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 complainants 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.
Criminal Law
Offence Snapshot RCI, ICI & RCSI
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/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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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.