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...
Causing GBH by Unlawful or Negligent Act
In NSW, the charge of causing grievous bodily harm by an unlawful or negligent act carries a maximum penalty of two years imprisonment. A person is charged with this offence where they commit an act that causes a person to suffer a very serious injury without specifically intending to cause the injury.
The offence of Causing Grievous Bodily Harm by an Unlawful or Negligent Act
Section 54 of the Crimes Act states:
Whosover by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.
What is grievous bodily harm?
The Crimes Act defines GBH as ‘any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease’. The law requires the injury to be ‘really serious’, but not necessarily permanent, long lasting or life threatening. Whether an injury amounts to GBH is to be determined on a case by case basis.
There is often disagreement between the prosecution and the defence as to whether a particular injury amounts to GBH or whether it falls within the scope of the less serious charge of assault occasioning actual bodily harm.
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:
- Uncomplicated fractures of the arms or legs;
- Facial fractures which require minor surgery with relatively short recover times; and
- Cuts and lacerations.
What actions might constitute unlawful or negligent acts?
The offence may be proved if GBH 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.
Examples of unlawful acts include:
- Illegal dumping of toxic chemicals into a stream causing serious injury to swimmers;
- Jaywalking and causing a motorist to have a serious accident; and
- Keeping a dangerous animal without a licence and/or proper enclosure which escapes and attacks someone.
A negligent act is an act that falls short of the standard which would be expected of a reasonable person. The case of R v Nydam [1977] VR 430 held that the negligent act must involve a high risk of death or GBH. The act must be done consciously and voluntarily without an intention of causing GBH (otherwise it would be the offence of intentionally inflict GBH).
Examples of negligent acts include:
- Failure to seek medical treatment for a three year old girl suffering from a broken arm and large laceration to her forehead. The delay in treatment caused permanent scarring of the face and permanent disfigurement and shortening of her arm;
- A nurse failing to obtain appropriate treatment for her patient after knowing or suspecting that she had incorrectly administered a drug; and
- Throwing methylated spirits from a bottle onto an ignited barbeque, causing an explosion and severe burns.
What court will hear your matter?
This offence is an indictable offence which may be dealt with in the Local Court unless a party elects to have it dealt with on indictment in a higher court. If neither party makes this election the matter will be finalised in the local court.
What must the prosecution prove?
To be convicted of the offence, the prosecution must establish beyond a reasonable doubt that the accused:
- Did an act that caused a person to sustain an injury;
- The act was either negligent or unlawful; and
- The injury amounted to grievous bodily harm.
Possible Defences for a charge of Causing GBH by Unlawful or Negligent Act:
The most common ways to defend this charge include:
- Arguinh that the resulting injury is not so serious as to amount to GBH;
- To argue that the act which caused GBH was not unlawful or negligent; or
- To raise self-defence, necessity or duress as the reason for inflicting GBH.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.