Aggravated Wounding/Injury

Question 1

Aggravated wounding / aggravated injury:

Act/Section/Penalty

Answer 1

CA61; 191(1)(a) or (b) or (c)
14 years imprisonment

CA61; 191(2)
7 years imprisonment

Question 2

Aggravated wounding / aggravated injury:

Elements

Answer 2

(1)
(a) With intent to commit or facilitate the commission of any imprisonable offence;

OR

(b) With intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence;

OR

(c) With intent to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence -

wounds OR maims OR disfigures OR causes GBH to any person OR stupefies OR renders unconscious any person OR by any violent means renders any person incapable of resistance.

(2) With any such intent as aforesaid, injures any person.

Question 3

Intent

Answer 3

There are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Both ss1 and 2 require proof of one of the specified intents:

• intent to commit or facilitate the commission of any imprisonable offence
• intent to avoid the detection of himself or of any other person in the commission of any imprisonable offence
• intent to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence

The distinction between ss1 and 2 is the outcome - wounding v injury.

Question 4

R v Taisalika

Answer 4

The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent.

Question 5

Commit or facilitate the commission of any imprisonable offence

Answer 5

Commit: to do, perform or perpetrate.

Facilitate: to make possible or to make easy or easier.

Under 191(1)(a) the offender intentionally or recklessly causes the specified harm in order to make it easier to commit the intended imprisonable offence.

Provided he has the necessary intent at the time he causes the harm, it is immaterial whether he actually commits the intended offence or not.

Question 6

Avoid detection

Answer 6

The offender causes the specified harm to prevent himself or another person from being “caught in the act”.

Question 7

Avoid arrest or facilitate flight

Answer 7

The specified harm is caused to enable the offender or offenders to more easily make their escape, or to prevent their capture.

It must be proved that an imprisonable offence was actually committed or attempted before a person can be convicted of aggravated wounding while escaping after it.

Question 8

R v Tihi

Answer 8

In addition to the specific intents outlined in paragraphs (a), (b) or (c), it must be shown that the offender either meant to cause the specified harm, or foresaw that the actions undertaken by him were likely to expose others to risk of suffering it.

Question 9

R v Tihi - the two-fold test

Answer 9

The prosecution must satisfy a ‘two-fold’ test for intent:

1. The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paragraphs (a), (b), or (c), and
2. He or she intended to cause the specified harm, or was reckless as to that risk.

Question 10

R v Wati

Answer 10

There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate.

Question 11

Cameron v R

Answer 11

Recklessness is established if:

(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Question 12

An Imprisonable Offence

Answer 12

S5 CPA 11
Normal meaning - any offence punishable by a term of imprisonment.

Question 13

R v Waters

Answer 13

A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.

Question 14

Maims

Answer 14

Will involve mutilating, crippling or disabling part of the body so the victim is deprived of the use of a limb or one of the senses. There need to be some degree of permanence.

Question 15

Disfigures

Answer 15

To deform or deface, mar or alter the figure or appearance of a person

Question 16

R v Rapana and Murray

Answer 16

The word disfigure covers not only permanent damage but also temporary damage.

Question 17

Grievous Bodily Harm

Answer 17

GBH can be defined as harm that is really serious.

Question 18

DPP v Smith

Answer 18

Bodily harm needs no explanation and Grievous means no more and no less than really serious.

Question 19

Stupefies

R v Sturm

Answer 19

To cause an effect on the mind or nervous system of a person, which really seriously interferes with that person’s mental or physical ability to act in a way which might hinder an intended crime.

Stupefies also includes circumstances where the administration of drugs leads to dis-inhibition and stimulated uncharacteristic behaviour.

Question 20

Render unconscious

Answer 20

To “render” means to “cause to be” or “cause to become”.

To render a person ‘unconscious’, the offender’s actions must cause the victim to lose consciousness.

It can include knocking a person unconscious with a blow to the head, strangling them or administering a noxious substance.

Question 21

Violent means

Answer 21

Includes the application of force that physically incapacitates a person, such as tying the victim’s hands and feet or inflicting debilitating injuries.

R v Claridge: the term “violent means” is not limited to physical violence and may include threats of violence, depending on the circumstances.

Question 22

Any Person

Answer 22

Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 23

R v Crosson - Rendered incapable of resistance

Answer 23

A mere threat may not in itself be sufficient to constitute “violent means”, but when the circumstances dictate, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.

Question 24

Aggravated injuring

Answer 24

The offender has one of the intents listed under 191(1)(a-c), however the outcome to the victim is injury.

Question 25

R v Tipple

Answer 25

Recklessness requires that the defendant know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires a deliberate decision to run the risk.

Question 26

What definitions and/or case laws should be included in your discussion of the liability of

• S191 - aggravated wounding or injury

Answer 26

Definition of intent: R v Collister; 2 specific types of intent; R v Tihi

Definition of commit/facilitate: commit - to do, perform, or perpetrate; facilitate - to make possible or to make easy or easier

Definition of imprisonable offence: any offence punishable by a term of imprisonment

Definition of avoid detection: the offender causes the specified harm in order to prevent himself or another person from being “caught in the act”.

Facilitate the flight: R v Wati; the specified harm is caused to enable the offender or offenders to more easily make their escape or to prevent their capture.

Definition of wounds: R v Taisalika; R v Waters;

Definition of maims: mutilating, crippling or disabling part of the body so as to deprive the victim of the use of a limb or of one of the senses.

Definition of disfigurement: to deform or deface, mar or alter the figure or appearance of a person; R v Rapana and Murray

Causes GBH - a person causes GBH if their actions make them criminally responsible for it.

Definition of GBH: harm that is really serious; DPP v Smith;

Definition of stupefies: R v Sturm;

Definition of render unconscious: to cause to be or to cause to become. The defendant’s actions must cause the victim to lose consciousness.

Definition of violent means: the application of physical force that physically incapacitates a person; R v Claridge - not limited to physical violence and may include threats of violence depending on the circumstances;

Definition of render any person incapable of resistance: R v Crosson

Aggravated injury: one of the specified intents outlined PLUS: cause actual bodily harm; R v Donovan; R v Chan-Fook;