This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Inflicting Actual Bodily Harm


The offence of Inflicting Actual Bodily Harm is contained in Section 23(1) of the Crimes Act 1900 which states: “A person who intentionally or recklessly inflicts actual bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.” If the offence is aggravated, the maximum penalty is imprisonment for 7 years. Section 48A of the Act provides that the offence is aggravated if it was committed against a pregnant woman; and caused the loss of, or serious harm to, the pregnancy; or the death of, or serious harm to, a child born alive. However, the offence is not aggravated if the defendant proves they did not know, and could not reasonably have known, that the woman was pregnant.

What Actions Might Constitute Inflicting Actual Bodily Harm?

A visible injury, such as a bruise or a cut, needs to be shown to prove actual bodily harm. In addition, the Act states actual bodily harm includes, in respect to a pregnant woman, harm to the pregnancy, unless that is inflicted in a medical procedure.

There is also case law that defines the term “actual bodily harm” as any injury that would interfere with a person’s health or comfort. The case of R v Donovan [1934] 2 KB 498 at 509 states that the injury does not need to be permanent, but “must be more than merely transient or trifling”.

There are two ways that this offence can be committed, either intentionally or recklessly. To commit this offence “recklessly” means that the Court has found that you turned your mind to the fact that an injury could be caused by your action, but you still went ahead with the action. For example, you were aware that if you hit a person with a piece of wood an injury was likely, and that injury did occur, and it amounted to actual bodily harm. Recklessness can be evidenced by what you say or what and how you do something.

What the Police Must Prove

To convict you of inflicting actual bodily harm, the police must prove each element of the offence beyond a reasonable doubt:

  • that the accused either intentionally or recklessly;
  • caused an injury or injuries to a person or persons;
  • the injury amounted to actual bodily harm.

Possible Defences to A Charge Of Inflicting Actual Bodily Harm

A person may defend a charge of inflicting actual bodily harm by arguing that:

Which Court Will Hear Your Matter?

Because Inflicting Actual Bodily Harm carries a maximum penalty of a prison sentence of not longer than five years, the Prosecution has the ability to unilaterally elect to keep it in the Magistrates Court, where the maximum penalty that can be imposed is two years.

If the Prosecution does not make such an election, the Defence can still consent to the matter being dealt with in the Magistrates Court, rather than having to be committed to the Supreme Court where the matter would be before a judge and jury, if contested.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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