在南澳处理伤害案件依据的是 Criminal Law Consolidation Act 1935 ，根据情节的轻重适用，其中的第23条或者24条
23—Causing serious harm
(1) A person who causes serious harm to another, intending to cause serious harm, is
guilty of an offence.
(a) for a basic offence—imprisonment for 20 years;
(b) for an aggravated offence—imprisonment for 25 years.
(1) A person who causes harm to another, intending to cause harm, is guilty of an offence.
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 13 years.
(2) A person who causes harm to another, and is reckless in doing so, is guilty of an
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence (except one to which paragraph (c)
applies)—imprisonment for 7 years;
(c) for an offence aggravated by the circumstances referred to in
section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years
根据 R v Barendregt 的判例 （嫌疑人用刀捅伤了他的朋友，辩称自己没有伤害意图，有自卫情节）第54段，其中规定
In order to establish the basic charge against the accused, the prosecution is required to prove four separate ingredients of the offence created by s23(1).
- The first is that he caused ‘serious harm’, that is harm endangering life. defined in s21.
- The second, that the harm was caused consciously and deliberately, that is voluntarily rather than accidentally.
- The third is that the harm was inflicted unlawfully and
- the fourth that the accused intended to cause serious harm, as defined.
- There is a fifth element by dint of the allegation of aggravation, comprised by using an offensive weapon to inflict the harm, namely the knife.
- 受害者必须是受到了严重伤害。也就是说伤害危及生命。在s21 中有严重伤害的定义。The degree of serious harm required is squarely allied to the consequence of the harm actually caused, so that the likelihood of endangering life must arise from the injury itself. 也就是说无论你怎样对受害人造成了严重伤害都是一样的严重伤害。
- 伤害必须是非法伤害 检查官有义务排除嫌疑人正当防卫的可能性 That being so, the prosecution bears the onus of removing any reasonable possibility of the accused acting in self-defence pursuant to s15(5): Morgan v Coleman. 嫌疑人稍微防卫过当也情有可援In examining this question the court must give due weight to the predicament in which the accused found himself and that if struck in the manner described by Schultz and suffering the potential consequences outlined in the medical evidence, the situation would have initially furnished little opportunity for calm deliberation or detached reflection: Zecevic v The Director of Public Prosecutions.
In other words the nature and extent of the conduct involving the inflicting of five distinct knife wounds, was beyond doubt out of all proportion to the circumstances as the accused genuinely believed them to be: R v Dziduch, R v Gray, Morgan v Coleman.
The accused’s intention is a matter of inference to be drawn from the proven facts and objective circumstances: Parker v The Queen and from what he said and what he did: R v Olasiuk, including his out-of-court statements: Simpson v The Queen.
嫌疑人希望对受害者造成严重伤害 检查官根据Barendregt 判例 Paragraph 69 Furthermore this is rather akin to an impermissible line of reasoning that an accused is taken to have intended the nature and probable consequences of his actions, a line of reasoning condemned in Parker v The Queen, as applied in R v Schonewille.不能根据伤害的结果来反推犯罪嫌疑人当时的意图。
但是检察官可以根据 Barendregt 判例的第70段来考虑犯罪人的意图 。No doubt it is open to consider whether the consequences of the accused’s actions and the injuries caused throw any light on his intentions: R v Hubert.
- 如果嫌疑人使用攻击 性武器，比如说道具，罪加一等。
如果检查官不能根据s23 把嫌疑人定罪，根据Barendregt 的判例的第61段 Quote:”
Furthermore, it was plainly the intention of Parliament, embodied in s25, to enable a conviction upon a “specified lesser offence”, if fairly open on the evidence: Byrne v Godfree. ”