Grievous Bodily Harm: Proof, Defences & Criminal Trials in Queensland
Grievous Bodily Harm: Proof, Defences & Criminal Trials in Queensland
Andrew Anderson

6 July 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm he worked as a Principal Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, he is independently recommended as a leading criminal lawyer in Australia.

Grievous Bodily Harm: Proof, Defences & Criminal Trials

Grievous bodily harm charges are considered serious criminal offences in Queensland and may be classified as ‘serious violent offences’. That classification can mean a person must serve at least 80% of their jail term before being eligible for release from prison.

Today I am going to outline how this offence is proved, what defences generally apply as well as some of the common issues that arise when defending a charge of this kind. So the focus is really on how this charge is proved or defended at a trial. If you are interested in more information about pleading guilty and sentencing for grievous bodily harm, I have covered that separately.

Before I go on, I should say that any information covered should not be interpreted as legal advice, or a substitute for legal advice. If you (or a friend or family member) are facing a grievous bodily harm charge and want legal advice, or simply a second opinion, our firm offers a free initial case assessment to see if we can assist.

Grievous Bodily Harm – Charge

Section 320 of the Criminal Code (Qld) makes it an offence to unlawfully do grievous bodily harm to another person. The law states:

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.

It is worth noting that a charge of unlawfully doing grievous bodily harm does not require any proof of intent. If the prosecution want to try to prove an intent, there is a more serious charge formally described as ‘malicious act with intent’ in Queensland, although many people refer to it as ‘grievous bodily harm with intent’.

So the key words to consider there are ‘unlawfully’, ‘does’ and ‘grievous bodily harm’. Each of those elements must be proved against the person accused of the crime. I’ll address them in reverse order.

The meaning of ‘grievous bodily harm’

In Queensland, ‘grievous bodily harm’ is defined to mean:

  • the loss of a distinct part or an organ of the body; or

  • serious disfigurement; or

  • any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.

The phrase ‘whether or not treatment is or could have been available’ is important. In a 2015 decision by the Court of Appeal ([2015] QCA 136), it was confirmed that that qualification applies to each category of alleged harm (such as ‘serious disfigurement’). This means that if a surgery can correct any injury that would have otherwise caused serious disfigurement, it may still amount to grievous bodily harm within the definition.

The difference between a charge of grievous bodily harm and assault occasioning bodily harm generally comes down to the medical evidence.

Quite often, when people are facing a charge they think of a ‘defence’ like self-defence as being the only means by which a case can be defended. That may be so in a particular case, but because of the way the proof operates for a charge of grievous bodily harm, sometimes it is possible to show the charge is wrong by proper scrutiny of the medical evidence. So before moving on to the issue of whether anything occurred was caused unlawfully, it can pay to focus attention on the actual definition of what constitutes ‘grievous bodily harm’.

If a charge is downgraded from grievous bodily harm to assault occasioning bodily harm, it changes a range of things. The maximum penalty goes down, new defences may arise at law and it becomes possible to resolve the case in the Magistrates Court rather than the District Court. A charge of grievous bodily harm cannot go to trial or resolve as a sentence in the Magistrates Court. Due to the seriousness of the offence, it must proceed to the District Court.

The meaning of ‘does’

The word ‘does’ places a focus on causation. Quite obviously, if a person does not cause the injury, why should they be liable to criminal punishment? So the law recognises the prosecution must prove, beyond a reasonable doubt, the person charged causes it. So assuming the prosecution can prove the person charged has been correctly identified as being involved, proof of causation is essential.

Causation is a question of fact that is generally resolved by a jury. Sometimes it becomes clear that the prosecution simply cannot prove the issue and so it may discontinue a case, or a judge may stop it.

It is important to note that it is not necessary for the prosecution to prove that the defendant was the sole cause of the injury. For questions of causation, the High Court of Australia has stated in a case called Royall v The Queen [1991] HCA 27 that the prosecution must prove the defendant’s conduct was a significant or substantial cause.

I’ll return to this issue shortly when speaking about the defence of accident.

The meaning of ‘unlawfully’

For a charge under section 320 of the Criminal Code, it is necessary for the prosecution to prove, beyond reasonable doubt, that the grievous bodily harm was caused ‘unlawfully’.

Unlawfully means not authorised, justified or excused by law. This is where defences come in for consideration, which I’ll address in more detail after outlining some information about the ‘circumstances of aggravation’ that can apply to the charge.

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Circumstances of Aggravation

In Queensland, there may be circumstances that, if proved, generally renders a defendant liable to increased punishment. So, for some charges that may increase the maximum penalty, minimum penalty, or both. It may also require a court to treat certain facts as ‘aggravating’ and thereby – as a matter of law – deserving of increased punishment.

A circumstance of aggravation generally forms part of the charged offence. There are three circumstances of aggravation that may apply to an offence of grievous bodily harm.

  1. One is if a person is a participant in a criminal organisation and is convicted of causing grievous bodily harm, it may give rise to a circumstance of aggravation that exposes that person to a greater level of punishment. Generally, a minimum of seven (7) years’ imprisonment in actual custody on top of the sentence imposed for simply unlawfully causing grievous bodily harm.

  2. Another circumstance of aggravation is if it was committed in a public place while the person was adversely affected by an intoxicating substance. If the prosecution can prove that fact then community service must be ordered as part of the punishment, whether or not the court imposes another punishment.

  3. If the charge is found to be a ‘domestic violence offence’, then that will also constitute a circumstance of aggravation. The court must treat that fact as an aggravating factor unless it is not reasonable because of the exceptional circumstances of the case.

So when facing a grievous bodily harm charge, there can be additional parts to the charge that also require careful scrutiny given the consequences that can follow.

What defences apply to ‘grievous bodily harm’?

There are a number of defences that apply to a charge of grievous bodily harm, such as self-defence, defence of another person, and accident. The Criminal Code in Queensland also provides for a number of other defences for a charge of grievous bodily harm, which arise less commonly.

An important difference between ‘grievous bodily harm’ and a number of other violent offences is the fact ‘assault’ is not an element of the offence. In Queensland, the Criminal Code gives the word ‘assault’ a particular meaning. As a consequence of assault not being an element, ‘provocation’ is not a defence to the charge even if it is relevant to the penalty for grievous bodily harm charges.

Generally speaking, for a charge of grievous bodily harm, if there is evidence to raise a defence that ought to be considered by a jury, then it is for the prosecution to disprove it beyond a reasonable doubt. That is, the defendant does not need to prove anything.

It is really important to note that it is essential for any lawyer to consider every defence that may apply. There are many different defences that can apply in a single case. When it comes to the identification and litigation of defences, the difference an experienced criminal lawyer can make to the outcome of a case can be decisive. That is, having a genuine understanding of how different defences may apply and interact can heavily influence not just the advice a person receives, but also how their defence is best conducted.

Given the frequency with which self-defence and accident arise for consideration in cases of this kind, it is worth briefly addressing some important issues as those defences relate to charges of grievous bodily harm.

Accident

In Queensland, an event that is said to occur by ‘accident’ can amount to a defence to a charge, including for grievous bodily harm. These days ‘accident’ is a short-hand way of describing the following part of the law from the Criminal Code:

23 Intention – motive

  1. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
    1. an event that—
      1. the person does not intend or foresee as a possible consequence; and
      2. an ordinary person would not reasonably foresee as a possible consequence.

It should be noted section 23(1A) of the Criminal Code does state that under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

So if an ‘event’ occurs that the person does not intend or foresee as a possible consequence and an ordinary person would not reasonably foresee as a possible consequence, then a person may have a defence to a charge of grievous bodily harm.

The law also makes clear there is an exception to the operation of the defence that relates to particular defects, weaknesses or abnormalities that result in grievous bodily harm.

So for ‘grievous bodily harm’, what is the ‘event’? There are actually conflicting opinions from the Court of Appeal on the issue.

On the one hand, in a 2010 decision of the Court of Appeal relating to a case involving a broken jaw ([2010] QCA 117), it was said:

the “event” was the injury suffered by the complainant constituting the factual element of the offence of doing grievous bodily harm, namely, a broken jaw. The issue for the jury was whether an ordinary person in the appellant’s position would reasonably have foreseen the complainant’s broken jaw was a possible outcome of the appellant striking the complainant.

There are other decisions of the Court of Appeal that suggest it are actually somewhat broader than that, and that the event is more broadly referable to an injury amounting to grievous bodily harm. For example, also in 2010 it was stated in unanimous decision of the Court of Appeal ([2010] QCA 6):

It is not necessary that the precise nature of the grievous bodily harm, or the precise mechanism whereby it might be inflicted, be foreseeable. A blow of the kind struck here might not always lead to a fall with serious injuries, but it is readily apparent that injuries of the kind which occurred here might well occur.

There is also a decision of the Court of Appeal from 2005 ([2005] QCA 138), in which it was unanimously held that it was sufficient to disprove this defence if an ordinary person, in the position of the defendant, would have foreseen serious injuries similar to those actually incurred as a possible outcome from the relevant act or acts.

It may be that in time the Court of Appeal will finally settle this issue, or at least address the conflicts in the authorities more directly. Until that time, it can simply be observed that it will generally be more favourable to a defendant if the specific injury must have been foreseen, rather than a broader category of similarly serious injuries.

Self-Defence

In everyday life, we do not think about how the law of self-defence works. We assume we can defend ourselves, or another person, within reason. Generally speaking, it is a fair assumption but that is not the same thing as to say it is the law.

Self-defence is divided into categories where it is either provoked or unprovoked. That is, did the person seeking to claim their actions were in ‘self-defence’ provoke the confrontation or not. Simply put, if you provoke the situation, self-defence operates in a more confined way than if you are simply the subject of an unprovoked attack.

I’ll focus on self-defence against an unprovoked attack. In respect to this defence, the Criminal Code states:

271 Self-defence against unprovoked assault

  1. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
  2. If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

It is often said that there are two limbs to this defence. The first limb (section 271(1)), does not allow the use of force that is not intended, and is not such as is likely, to cause death or grievous bodily harm. The second limb (section 271(2)) provides for a defence where death or grievous bodily harm may eventuate.

As may be obvious, if a person is facing a charge of grievous bodily harm, there is often less scope for the first limb of the defence to apply, although it certainly is relevant in many cases particularly where the force used is more moderate.

It is one of those pieces of information lawyers ought to be mindful of when advising a person charged with grievous bodily harm about their specific case.

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Summary

Too often, I see people jumping to think about the defences that apply without first stopping to ask about whether there is even a proper proof of the essential elements of the charge. For a charge like grievous bodily harm, this can definitely be putting the cart before the horse.

For anybody facing the decision whether to plead not guilty and go to trial or plead guilty and face sentencing, getting legal advice is important. When looking at the charge of grievous bodily harm, the take home message is there are so many variables and questions that arise that getting specific legal advice from a lawyer who knows what they are doing is key.

If you or someone you care about is charged with grievous bodily harm and you seek legal advice, or even just a second opinion, feel free to contact me at this firm.

More Information

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving grievous bodily harm. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.

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