Causing Serious Harm Charge?

This defence is governed by section 15 of the Criminal Law Consolidation Act 1935 (SA). To successfully raise this defence, the accused must have genuinely believed that their conduct was necessary and reasonable for a defensive purpose.

The conduct must have been reasonably proportionate to the threat that the accused genuinely believed to exist. The prosecution must disprove self-defence beyond reasonable doubt if it is raised by the defendant.

It’s important to note that the concept of ‘reasonableness’ in this context is not purely objective; it takes into account the circumstances as the accused genuinely believed them to be.

This means that the accused’s personal characteristics and the situation as they perceived it are relevant to determining whether their response was reasonable.

This defence applies where the accused person was compelled to commit the offence due to threats of harm or violence. The accused must have believed that they were in immediate danger and had no reasonable alternative but to commit the offence.

In the context of causing serious harm, the defence of duress would require the accused to demonstrate that they caused the harm under compulsion from another person, due to a threat of immediate harm to themselves or another person if they did not comply. The threat must be such that a person of ordinary firmness of character, in the position of the accused, would have yielded to it.

This defence applies where the accused person committed the offence to avoid imminent serious harm. The harm avoided must be greater than the harm caused by the offence, and there must have been no reasonable legal alternative to committing the offence.

In the case of Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital) [2016] SASC 186, the court discussed the defence of necessity in the context of an assault by security officers.

The court found that the defence of necessity could be invoked where the security officers’ actions were necessary to avert a serious and imminent danger. The court held that the response of the security officers was not disproportionate because of the dangers posed by the presence of a device brought into the hospital by the appellant, and thereafter, because of the aggressive and agitated manner in which the appellant was behaving.

However, it’s important to note that the defence of necessity is not easily established and is subject to strict requirements. The accused must demonstrate that they were facing a situation of imminent peril or danger, and that their actions were the only reasonable and proportionate response to that danger.

The defence will not succeed if the court finds that there were other legal alternatives available to the accused, or if the harm caused by the accused’s actions was disproportionate to the harm avoided.

In the context of the defence of necessity, the courts have interpreted “there must have been no reasonable legal alternative to committing the offence” to mean that the accused’s actions must have been the only reasonable and proportionate response to the imminent danger or peril that they believed they were facing. The specific facts and circumstances of each case will be crucial in determining whether this requirement is met.

This defence applies where the accused person was suffering from a mental impairment at the time of the offence that affected their ability to understand what they were doing, or to understand that what they were doing was wrong.

In some cases, the defence of consent may apply. However, this is unlikely to be a valid defence for causing serious harm, as a person cannot generally consent to serious harm.

This defence applies where the accused person did not intend to cause harm, and the harm was the result of an unforeseen and unintended event.

This is not a defence per se, but the prosecution must prove all elements of the offence beyond reasonable doubt. If they cannot do this, the accused person should be acquitted.

In South Australia, to find an accused guilty of causing serious harm under section 23(1) of the Criminal Law Consolidation Act 1935 (SA), the prosecution must prove the following elements beyond reasonable doubt:

1. Cause of Serious Harm – The accused caused serious harm to another person.
2. Voluntary Act – The accused’s act was voluntary, meaning it was a deliberate action and not an accident.
3. Intent: – The accused intended to cause serious harm. This means that the accused had the specific aim or purpose of causing serious harm to the victim.
4. Unlawful Act – The accused’s act was unlawful, meaning it was not justified by any legal defence. If a defence such as self-defence, duress, or necessity is raised, the prosecution must disprove it beyond reasonable doubt.

‘Intent to cause serious harm’ refers to a person’s conscious aim or purpose to cause serious harm to another person. This means that the person’s actions are not accidental or involuntary, but are carried out with the specific goal of causing serious harm. This is a higher level of mens rea (mental state) compared to recklessness, as it requires a specific intention to cause harm, rather than mere indifference to the risk of harm.

In the context of section 29(2) of the Criminal Law Consolidation Act 1935 (SA), the prosecution must prove that the accused either intended to cause serious harm or was recklessly indifferent as to whether such harm was cause. This means that the accused must have had a specific aim to cause serious harm, or they must have been aware of the substantial risk of their actions causing serious harm and proceeded regardless of that risk.

‘Recklessly indifferent’ refers to a state of mind where a person is aware of a substantial risk that their conduct could result in harm or serious harm, and they engage in the conduct despite the risk and without adequate justification. In other words, the person knows that their actions are likely to cause harm but decides to proceed regardless of that possibility. This does not necessarily mean that the person desires the harmful outcome, but rather that they are indifferent to the risk of that outcome occurring.

In the context of these offences, ‘serious harm’ is defined as harm that endangers, or is likely to endanger, a person’s life, or harm that causes, or is likely to cause, a person to suffer serious and protracted loss or impairment of the physical or mental function of any member or organ of the body.

The term ‘harm‘ is also defined in the same division of the Act to mean physical or mental harm, whether temporary or permanent.

‘Mental harm‘ is defined to mean psychological harm and does not include emotional reactions such as distress, grief, fear, or anger unless they result in psychological harm

Talon Legal regularly appears in all South Australian courts and surrounding jurisdictions, including:

• Adelaide Magistrates court
• Christies Beach Magistrates Court
• Elizabeth Magistrates Court
• Mount Barker Magistrates Court
• Port Adelaide Magistrates Court
• Murray Bridge Magistrates Court
• District Court of South Australia
• Supreme Court of South Australia