What is the Prosecution Required to Prove in a Charge of Causing Grievous Bodily Harm or Wounding?

It is reported that on 31 January, a 25-year old Guilford man is accused of hitting a 65-year old man over the head with a hammer, fracturing his head.

The incident is reported to have occurred in Auburn after one of the men driving had allegedly cut the other off when attempting to merge his vehicle.

Paramedics attended Ettalong Street in Auburn where the 65-year old man was found lying on the ground. He was then taken to the Westmead hospital for further treatment for his serious head injuries.

The 65-year old man, also from Guildford, was later discharged from hospital.

Police arrested the 25-year old man who was parked in a vehicle near the incident. Police also discovered a hammer located in the vehicle, which was then taken for examination.

Police refused the man bail who is now facing a charge of ‘intent to cause grievous bodily harm or wounding’ which carries a penalty of up to 25-years jail under section 33(1) Crimes act 1900 (NSW).

If guilty and convicted of this offence, the man stands to also face a standard non-parole period of 7-years, whereby if his offence is considered to be categorised in the mid-range of objective seriousness for these offences, the Court can consider imposing a minimum 7-years non-parole period representing the period required to be spent behind bars before being eligible for release on parole.

The seriousness of the offence is generally assessed by the courts by looking at the seriousness and consequences of the injury and viciousness of the attack.

The standard non-parole period is used by courts only as a guide and is not compulsory to apply in sentencing an offender for a non-parole period offence.

There is a less serious version of this offence called ‘reckless grievous bodily harm or wounding’ under section 35(2) Crimes Act 1900 (NSW). It carries a penalty of up to 10-years imprisonment and has a standard non-parole period of 4-years.

The difference between the two offences is that, the more serious offence is committed intentionally whereas the less serious offence is committed with recklessness. This will be outline further below.

What the Prosecution is Required to Prove for a Charge of ‘Intent to Cause Grievous Bodily Harm or Wounding’?

You can only be guilty of this offence if the prosecution can prove each of the following elements beyond reasonable doubt in court:

1. Your conduct caused ‘grievous bodily harm’ or ‘wounding’ to the victim; and
2. You intended to cause that kind of injury.

What the Prosecution is Required to Prove for a Charge of ‘Reckless Grievous Bodily Harm or Wounding’?

You will be found guilty of this charge if the prosecution ends up proving each of the following elements beyond reasonable doubt in court:

1. You caused ‘grievous bodily harm’ or ‘wounding’ to the victim; and
2. You recklessly caused that kind of injury.

‘Recklessly’ here means, that you realised the possibility of causing an actual bodily harm (i.e. bruise or scratch) at the time but did the act that caused it anyway.

‘Grievous bodily harm’ is defined in section 4(1) Crimes Act 1900 (NSW) as a “permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease.” The word ‘grievous’ simply means really serious. i.e. broken bones.

‘wounding’ isn’t defined in the legislation. But previous cases have defined it to includes the breaking of the skin. i.e. split lip.

You will be found not guilty by a court if the prosecution fails to prove any of the above-mentioned elements of this charge.

You will also be found not guilty if any of the following defences to a charge of causing grievous bodily harm or wounding apply, including:

• Acting in self-defence: This is where you did what you did to protect yourself out of fear, and if it is considered a reasonable response to what you perceived to be at the time.
• Where there was something else that occurred as an intervening event causing the kind of injury that the victim sustained.
• Where you were suffering a mental illness, or you were so intoxicated from alcohol or drugs that caused you to be unable to form the necessary intention at the time to cause that kind of injury.
• Where you acted under duress or necessity.
• Where the injury caused is in fact not considered to be categorised as ‘grievous bodily harm’ or ‘wounding’.

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