Causing Grievous Bodily Harm By Unlawful Or Negligent Act

The offence causing grievous bodily harm by unlawful or negligent act is set out in Section 54 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 2 years imprisonment. This offence captures both positive acts as well as omissions. 

What is Causing Grievous Bodily Harm by an Unlawful or Negligent Act?

Section 54 of the Crimes Act states that:

“Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.”

An omission to do an act is treated the same as performing an act.

Grievous bodily harm is taken to be harm that is considered “really serious” and it must go beyond minor or temporary injuries. In Haoui v R [2008] NSWCCA 209, the court found that grievous bodily harm requires that the injury be a really serious one but does not require the injury to be permanent or that the consequences of the injury are long lasting or life threatening. Under Section 4 of the Crimes Act, it includes:

(a)  the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

(b)  any permanent or serious disfiguring of the person, and

(c)  any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

Some examples of injuries that the court has found to constitute GBH include:

• Brain damage;
• Jaw and skull fractures;
• Infecting someone with HIV;
• Severe lacerations that require a large number of stitches, nerve reconstruction and/or surgery;
• Causing a mother to lose her foetus; and
• Facial fractures and laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment.

Some examples of injuries that the court has found NOT to constitute GBH include:

• Minor fractures;
• Facial fractures which require minor surgery with relatively short recover times; and
• Cuts and lacerations.

The offence may be proved if the grievous bodily harm resulted from an act that was either unlawful or negligent. An unlawful act is any act against the law. That is an act that is an offence under legislation or common law. Trivial offences against prohibitions or regulations aren’t included, and the act must be a 

‘dangerous’ act. The Court in R v Pullman (1991) 25 NSWLR 89 held it was “unlawful” has the same meaning as the common law offence of manslaughter by unlawful and dangerous act. The act upon which the offence is based is one which is unlawful otherwise than by reason of the fact that it infringes a statutory prohibition.  

The Court is R v Bateman [1925] A11 ER 45 establishes that criminal negligence is of a very high standard, going beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime.

In order for negligence to be established, there must be a high degree of disregard for the life and safety of others as to be regarded as a crime against the community generally. The case of R v Nydam [1977] VR 430 held that the negligent act must involve a high risk of death or grievous bodily harm. The act must be done consciously and voluntarily without any intention of causing grievous bodily harm (otherwise it would be the offence of intentionally inflicting grievous bodily harm).

The following acts constitute Causing Grievous Bodily Harm by an Unlawful or Negligent Act:

• A person throws a glass bottle off a balcony into a heavily foot traffic area below which then hits a pedestrian on the head, causing a fractured jaw.
• A person pushes another person in the chest which causes them to fall backwards and trip over the gutter. As a result of their fall, their ankle breaks. 
• A person throws a rock at a passing vehicle during a road-rage incident. The rock smashes through the windshield, striking the passenger in the face and causing permanent disfigurement
• A person leaves a child unattended in a vehicle during a heat wave for several hours. When they return, the child suffers acute kidney failure and organ damage. 

What must be proven?

For a person to be found guilty of causing actual bodily harm by an unlawful or negligent act the prosecution must prove each of the following matters beyond a reasonable doubt:

1. You caused grievous bodily harm to another person, and
2. You did so by an unlawful or negligent act or omission.

If the prosecution do not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court.

Possible Defences to Causing Grievous Bodily Harm by an Unlawful or Negligent Act

The following defences may be available for a causing actual bodily harm by an unlawful or negligent act charge:

• Self-Defence
• Duress
• Necessity

Common Questions about Causing Grievous Bodily Harm by an Unlawful or Negligent Act

Will I receive a criminal conviction?

A conviction and criminal record for this offence is highly likely. 

In NSW, a court can impose any of the following penalties for an causing grievous bodily harm by an unlawful or negligent act charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for causing grievous bodily harm might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol for a Causing Grievous Bodily Harm by an Unlawful or Negligent Act charge?

While a Gaol sentence is a possibility, the Local Court Sentencing Statistics record that a Community Corrections Order is the most common outcome followed by an Intensive Corrections Order. The circumstances of the offence, the degree of negligence or failure to act and the severity of the injury and prior criminal history especially for violence offences will have a significant impact on the sentence imposed.

What makes an injury ‘Grievous Bodily Harm’ versus just ‘Actual Bodily Harm’

Actual Bodily Harm injuries are less serious and capture injuries that are more than transient or trifling. Common examples include scratches, cuts that require basic statures or dark/large bruising.

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