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Module 2 · Non fatal offences against the person

The non-fatal offences against the person sit in Subdivision (4) of the Crimes Act 1958 (Vic): causing serious injury intentionally (s 15A) or recklessly (s 15B) in circumstances of gross violence, causing serious injury intentionally (s 16) or recklessly (s 17), causing injury intentionally or recklessly (s 18), and negligently causing serious injury (s 24), with s 15 defining injury and serious injury. Common assault stands beside them as a common law offence, triable on indictment with a maximum penalty of five years fixed by s 320. Each of ss 15A to 18 asks the same questions: did the complainant suffer the injury, did the accused cause it, did the accused have the fault element (the mens rea), and did the accused act without lawful justification or excuse. Section 24 runs on its own element structure, set out below. When murder or manslaughter is doubtful, the analysis comes down to these offences rather than leaving the accused unanalysed, and the conclusion names the offence that survives.

Cases at a glance

The statutory ladder

How the offences are graded. Two variables build the order: the result, injury or serious injury as defined in s 15, and the fault element, intention, then recklessness, then criminal negligence. Sections 15A and 15B add a further element, that the serious injury was caused in circumstances of gross violence. The maximum penalties grade the fault: 20 years for ss 15A and 16, 15 years for ss 15B and 17, 10 years for intentionally causing injury and five for recklessly causing injury under s 18, and 10 years for s 24. A finding within s 15A or s 15B usually attracts a non-parole period of not less than four years rather than a higher maximum. A failed element does not end the matter: causing serious injury is a statutory alternative to the gross violence offences (Crimes Act 1958 s 422), and causing injury under s 18 is an impliedly included offence on the serious injury charges (R v Kane (2001) 3 VR 542). Characterise the result first: the result fixes which offences are open, then test the fault element from the top down. Argue the realistic pair in full and dispatch the rest in a line each, and let the conclusion name the offence that survives: the accused is unlikely to be liable under s 16 but is liable under s 18.

Gross violence circumstances (ss 15A and 15B)

The added element. Section 15A is an aggravated form of s 16, differing only in the added element that the serious injury was caused in circumstances of gross violence. Section 15B stands to s 17 in the same way. The prosecution must prove the base offence and at least one of the listed circumstances.

Planned in advance. The limits of the phrase "planned in advance" have not been settled: the Court of Appeal has declined to explore them (Sarjeant, [53]). A genuinely spontaneous or near-spontaneous act is unlikely to be found planned in advance (Farha v The Queen [2018] VSCA 310, [51], followed in Sarjeant v The Queen; Garratt v The Queen [2020] VSCA 45, [52]). In Sarjeant, the broken bottle neck swung twice outside a Broadford hotel, severing the victim's superficial temporal artery, with the co-accused positioned at the door as a lure, the Court declined to explore the limits of the definition and held it well open to the jury to find planning in advance on a plan formed roughly three minutes before the attack, shown by CCTV of Sarjeant twice displaying the bottle neck and beckoning his co-accused into position ([53], [57], [59]-[60]). The argument that planning only a few minutes out cannot satisfy the element failed on those facts, so argue the evidence of preparation, not the shortness of the lead time (Sarjeant, [50]-[51], [57]).

The objective planning limb. The planning circumstance names three alternative states of mind at the time of planning: intention that the conduct would cause a serious injury, recklessness as to that result, or that a reasonable person would have foreseen that the conduct would be likely to result in a serious injury (s 15A(2)(a)). No decision has settled the meaning of "likely" here; the Charge Book requires proof that a reasonable person would have realised the conduct was more likely than not to cause a serious injury, and neither possibility nor a "real chance" is enough. An offender who neither intended nor foresaw serious injury at the time of planning can therefore still fall within s 15A(2)(a)(iii).

Incapacitation. No decision has interpreted "incapacitated" in ss 15A(2)(e)-(f). The word likely carries its ordinary meaning of a person unable to defend himself or herself, which in many cases will arise where the complainant has been rendered unconscious. Argue that ordinary meaning and flag that ss 15A(2)(e)-(f) remain unconstrued.

Injury and serious injury (s 15)

The substantial pain route

Substantial pain. Physical injury includes substantial pain, so pain alone can be the injury. The jury must still find an injury, as opposed to superficial or trivial harm. A victim who cannot bear weight on a stomped foot for the rest of the day has suffered substantial pain even though the X-ray is clean: imaging answers a question the definition does not ask; a cry of pain followed by nothing is not an injury. The miss is to argue the violence of the act instead of the specific harm: characterise what the victim suffered, not what the accused did, against s 15.

Harm to mental health

Harm to mental health. 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. Fright and sleepless nights alone therefore fail, while a diagnosed psychological condition that stops the victim working passes. The decisive fact is usually the diagnosis, so where none exists flag the evidential gap rather than concluding. The miss is to count fear itself as the injury when s 15 excludes it.

When seriousness is judged

The time of assessment. The phrase "an injury that endangers life" directs attention to the danger created by the injury at the time it is sustained, and an injury can be a serious injury even though the danger it creates is averted by medical intervention (Sarjeant, [36], [38], [43]). The need for medical intervention may rather tend to show that the injury is serious (Peters v The Queen [No 2] [2019] VSCA 292, [69], quoted in Sarjeant, [38]). The substantial and protracted limb runs on the opposite clock: that limb has an explicit temporal dimension, so it calls for a wait-and-see assessment that the endangers-life limb does not (Sarjeant, [35]). In Sarjeant itself, the severing of an artery was an injury that endangers life ([37]). A ruptured spleen that surgery repairs completely therefore still endangered life when it was sustained; the defence argument from recovery mistakes the time of assessment, and the argument that survives is that the injury never had the capacity to endanger life at any time (s 15).

Intention and how it is proved

Proving intention. In Westaway the accused had been left minding his partner's one-month-old baby, who was found with a fractured skull and brain damage, and he admitted hitting and throwing her; the trial judge directed that intending the act that in fact caused serious injury sufficed. The Court of Criminal Appeal held that s 16 speaks of intentionally causing serious injury, so the intention required is an intention to cause that result, and ordered a new trial. The accused need not have intended the precise injury actually caused: an intention to inflict a different kind of serious injury suffices (Royall v R (1991) 172 CLR 378). Denials do not control the finding, so run the inference from the nature of the act rather than demanding an admission: an accused who swung a glass edge-first into a face will struggle against the inference whatever the police interview says. The common error blurs the grades: intending some injury while happening to cause serious injury does not satisfy s 16, and the charge drops to s 18, where intention to cause any injury suffices, or to s 17 where awareness of probable serious injury is proved.

Common assault

Two limbs. Common assault is committed by the application of force to the complainant's body, or by causing the complainant to apprehend the immediate application of force, in each case intentionally or recklessly and without lawful justification or excuse.

• The question is what this complainant apprehended, not what a reasonable person would have apprehended: the apprehended force may come from a third party, and, though the point is not clear, the apprehension seems not to need to be reasonable (Macpherson v Beath (1975) 12 SASR 174; ACN 087 528 774 v Chetcuti (2008) 21 VR 559).

The force limb worked

The force limb. The force need not be violent and may be as slight as a mere touch, applied directly or through a weapon or instrument the accused controls (Collins v Wilcock [1984] 1 WLR 1172; Fagan). An assault needs an act rather than a mere omission, but the act can be continuing: in Fagan a car wheel stopped on a constable's foot, and although the justices were left in doubt whether the mounting was deliberate, the accused knowingly allowed the wheel to remain after being told to get off, so the continuing act became an assault once the fault element was formed. In Venna the accused, resisting arrest, lashed out wildly with his legs and fractured a bone in a police officer's hand, and force applied intentionally or recklessly sufficed. Physical contact that is generally acceptable in the ordinary course of everyday life, such as jostling on public transport, is not an assault, and the absence of hostility does not on its own provide an excuse (Collins v Wilcock; Boughey). A sustained hard grip held against a person pulling away exceeds any social licence even where the accused was only trying to help.

The apprehension limb worked

The apprehension limb. Evidence that the complainant apprehended immediate violence can be inferred from his or her actions, such as fleeing or hiding from the accused (R v Mostyn (2004) 145 A Crim R 304). The complainant must know of the accused's actions: in Pemble the accused carried a sawn-off rifle up behind his former partner, on his account meaning only to frighten her, and it discharged into the back of her head; she never knew of the threat, so there was no assault, though a manslaughter conviction stood on other grounds. The requirement belongs to this limb: the Victorian statutory offences are defined without any requirement of awareness on the victim's part. A swing behind the victim's head discovered days later on video therefore founds no assault: after-acquired knowledge cannot create an apprehension of immediate force. Nor is it sufficient that the complainant immediately feared force at some distant future point: the apprehension must be that force will be applied immediately after the threat, or at least soon (Knight; R v Gabriel (2004) 182 FLR 102). There is no rule preventing a threat made from a distance from being an assault, but every element must still be proved, including apprehension of the immediate application of force (Slaveski).

Lawful justification or excuse

Running the excuses. Whether consent is available as a lawful excuse depends on the extent of any harm caused or risked and the purpose for which the act was committed (Neal). Lawful correction has strict limits: the punishment must be moderate and reasonable, have a proper relation to the age, physique and mentality of the child, and be carried out in a reasonable manner (Terry). A householder may use reasonable force to eject a trespasser, but a licensee must first be given reasonable time to leave. Each excuse is an argument on facts rather than a box to tick: the ejection excuse, for instance, asks whether the person had become a trespasser, whether reasonable time was given, and whether the force was reasonable. The mirror mistake is never running the excuses at all.

Recklessness

The standard. Recklessness for the injury offences is awareness, when the accused committed the conduct, that it would probably cause injury of the grade charged (R v Campbell [1997] 2 VR 585).

• In Campbell a gun was discharged during a drunken argument in a carpark, seriously injuring one of three men who had become involved; a direction that knowledge that serious injury might occur sufficed was a misdirection, and a new trial was ordered.
• The Director asked the Court of Appeal to lower the threshold to foresight of possibility, and the Court refused (DPP Reference No 1 of 2019 [2020] VSCA 181). On appeal, the High Court confirmed that the accused must have been aware the conduct would probably cause the injury ([2021] HCA 26).
• Awareness of probable serious injury is required for ss 15B and 17. Awareness of probable injury is required for recklessly causing injury under s 18.
• Intentionally causing injury and recklessly causing injury are separate offences under s 18, so name the limb being run.
• That anyone could see someone might get hurt states what a reasonable person would foresee, and a bare possibility that never crossed the accused's mind is not awareness of probability (DPP Reference No 1 of 2019).

The downward mens rea cascade

Reusing fault findings. A fault finding made once answers every offence below it that asks the same question, so failed charges are dispatched in a line each rather than re-analysed. The exception is s 24, whose test is objective, so it needs its own analysis rather than a reused finding about what the accused foresaw.

Two disciplines. State each disposal expressly: a charge never mentioned earns nothing while a charge dispatched in a line earns its mark. Hold alternatives conditionally: where the intention conclusion is arguable, state it and add that if it fails s 17 is the alternative. The same findings run into this module from a failed homicide, which is why the offences against the person still need analysis when murder or manslaughter is doubtful (ss 16-18).

Negligently causing serious injury (s 24)

The objective standard. The duty question comes first, and only a legal duty of care will do: a moral obligation, such as the duty to help a stranger in distress, is not relevant. The common instance is the driver's duty to take reasonable care for the safety of other road users. The test is objective: the prosecution does not need to establish that the accused intended to cause serious injury, so a statement that it never occurred to the accused that anyone was at risk is no answer. The threshold is high: momentary inattention, a minor error of judgment or negligence that would found a civil claim is generally insufficient, and even a substantial departure from the standard of care may not be a great enough falling short. Keep the risk object precise: the direction requires a high risk that death or serious injury would result, and the words "death or" are not dropped. The strongest s 24 facts are structural, as where a site supervisor strips a scaffold guardrail against the written safety plan and leaves it off overnight on a live site. The trap runs in mirror image to the recklessness trap: there the error smuggles the reasonable person into a subjective test, here it demands subjective foresight under an objective one (s 24; Nydam).

How the examiners mark it

Marks follow methodical and precise work that uses the facts and reaches calibrated conclusions about how likely each element is to be proved. Four habits carry them. Triage before analysis. Open each offence with its elements and authority, say in one sentence which elements are live, and spend the words where proof is doubtful. Dismissal discipline. Doomed charges are dismissed in a line rather than omitted, and the cascade supplies the line. Likelihood language. Conclusions are graded rather than binary: the prosecution could prove the element beyond reasonable doubt, a jury might be reluctant, an argument is tenuous. Name the offence that survives rather than listing possibilities. What loses marks. Writing everything known about the offences rather than the live issues. Assuming injury instead of arguing the s 15 definition. Testing awareness by what a reasonable person would have realised. Asserting that a punch is unlawful instead of proving the assault's elements. Skipping the fallbacks when homicide is doubtful.

Critical pitfalls and counter-arguments

Take it to the practice bank

This module is drilled in the Criminal Law practice bank. Every problem there carries a realistic Pass answer, an H1 model answer, and an examiner's comment explaining the decisive fact and where the marks are lost.

Practice prompts

1. Characterise a harm on the s 15 definition without asserting it, and say which limb of the definition you are using.
2. Take a single punch and argue the realistic pair of rungs, then name the surviving rung in your conclusion.
3. Write the recklessness paragraph so that it is unmistakably subjective.
4. Draft both forms of common assault as fallbacks for a case where injury is doubtful.
5. Run the lawful excuse list against a bar fight and say which exits are even arguable.
6. Argue the gross violence circumstances both ways from a set of planning messages and conclude which of s 15A or s 16 survives.
7. After a failed murder fault element write the one line disposals of ss 15A to 17 and land the cascade on s 18.