7.4.8 - Dangerous Conduct 1

7.4.8 - Dangerous Conduct1 7.4.8.2.2 - Charge: Conduct Endangering Persons (post 1 July 2013)

This charge is for cases where the conduct took place on or after 1 July 2013. For offences before that date, use Charge: Conduct Endangering Persons (pre 1 July 2013).

Warning! Judges should seek submissions from parties on whether Aubrey v R [2017] HCA 18 at [45] - [47] has any relevance to the formulation of directions on recklessness.

I must now direct you about the crime of conduct endangering persons. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:

One - the accused committed the conduct alleged in the presentment.

Two - the accused committed that conduct voluntarily.

Three - that conduct endangered another person.

Four - the accused acted recklessly.

Five - the accused acted without lawful authority or excuse.

I will now explain each of these elements in detail.

Conduct

The first element that the prosecution must prove is that the accused committed the conduct alleged in the presentment. That is, s/he [describe relevant conduct].

[If this element is not in issue, add the following shaded section.]

In this case, it is not disputed that NOA [describe relevant conduct]. You should therefore have no difficulty finding this element proven.

[If this element is disputed, add the following shaded section.]

In this case, the prosecution alleged that NOA did [describe relevant conduct and summarise prosecution evidence and/or arguments]. The defence denied this, arguing that [describe relevant defence evidence and/or arguments].

1 This document was last updated on 19 May 2017.

1 Voluntariness

The second element the prosecution must prove is that the accused committed the relevant conduct voluntarily. That is, you must be satisfied that NOA [describe relevant conduct] deliberately, rather than accidentally.

This element is not in dispute in this case. You should therefore have no difficulty finding this element proven.

[If this element is disputed, add the following shaded section.]

In this case, the prosecution alleged that NOA voluntarily [describe relevant conduct and summarise prosecution evidence and/or arguments]. The defence denied this, arguing that [describe relevant defence evidence and/or arguments].

Endangerment

The third element the prosecution must prove is that the accused’s conduct endangered another person.

This requires you to be satisfied that a reasonable person who committed the same conduct as the accused, in the same circumstances, would have realised that s/he was placing another person at risk of serious injury, or may have been placing another person at risk of serious injury.

In making your determination, you must consider the likely severity of any injuries that could have been caused by the accused’s conduct. For this element to be satisfied, there must have been a risk that someone would be “seriously” injured by that conduct.

The law does not define what a “serious injury” is. It is for you to determine whether the accused’s conduct had the potential to “seriously” injure a person, rather than simply “injuring” them or not harming them at all.

The potential danger must have been what the law calls an “appreciable risk” of serious injury. That is, it must have been more than a remote risk or a “mere possibility”. The law is only concerned with real risks, and not hypothetical risks.

In this case, the prosecution argued that a reasonable person who was in the same circumstances as the accused – that is, who [describe relevant circumstances, including any knowledge the accused possessed which may have affected his or her assessment of the risk] – would have realised that, by [describe relevant conduct], s/he was, or may have been, placing another person at risk of serious injury. [Summarise relevant prosecution arguments and/or evidence]. The defence denied this, arguing [summarise relevant

2 defence evidence and/or arguments].

It is for you to determine, based on all the evidence and using your own knowledge and common sense, whether a reasonable person in the accused’s position would have realised the risk s/he was creating. It is only if you are satisfied, beyond reasonable doubt, that s/he would have realised that s/he was placing another person at risk of serious injury, or may have been placing another person at risk of serious injury, that this third element will be met.

Recklessness

The fourth element the prosecution must prove is that the acted recklessly.

The law says that NOA will have acted recklessly if, when s/he committed the relevant conduct, s/he foresaw that an appreciable risk of serious injury was a probable consequence of that conduct. That is, s/he knew that his/her actions would probably create a real risk of serious injury.

It is not enough for NOA to have known that it was possible that his/her actions would create an appreciable risk of serious injury. For this element to be satisfied, the prosecution must prove beyond reasonable doubt that NOA knew that an appreciable risk of serious injury would probably result from his/her actions.

Unlike the third element, which focuses on what the reasonable person would have realised in the circumstances, this element focuses on what was in NOA’s mind. It will only be met if you are satisfied that NOA him/herself realised, when s/he [describe relevant conduct], that his/her actions would probably create an appreciable risk of serious injury.

It is important to note that NOA does not need to have foreseen that his/her conduct would probably cause serious injury. For this element to be met, you only need to be satisfied that NOA foresaw that his/her actions would probably create an appreciable risk of serious injury.

You must assess NOA’s state of mind at the time s/he [describe relevant conduct]. It is not enough for him/her to have realised later that what s/he had done was dangerous. This element will only be met if s/he realised it was dangerous when s/he performed the act.

The prosecution alleged that this was the case here. [Describe relevant prosecution evidence and/or arguments]. The defence denied this, arguing [describe relevant defence evidence and/or arguments].

Lawful Excuse

The fifth element the prosecution must prove is that the accused acted

3 without lawful authority or reasonable excuse.

This is not in issue in this case. You should therefore have no difficulty finding this element proven.

[If this element is in issue, explain any relevant defences or justifications.]

Application of Law to Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of conduct endangering persons, the prosecution must prove to you beyond reasonable doubt:

One – That NOA [describe relevant conduct]; and

Two – That NOA voluntarily committed that conduct; and

Three – That a reasonable person would have realised that that conduct placed, or may have placed, another person at an appreciable risk of serious injury; and

Four – That NOA acted recklessly, because s/he foresaw that an appreciable risk of serious injury was a probable consequence of that conduct; and

Five – That NOA acted without lawful excuse or authority.

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