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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...

Dangerous Navigation Causing GBH


Dangerous navigation occasioning grievous bodily harm (GBH) is an extremely serious criminal offence, contained in section 52B of the Crimes Act 1900.

Dangerous

The word ‘dangerous’ encompasses a broad range of behaviour. There is precious little case law surrounding dangerous navigation, but the law on dangerous driving is a good guide. A few principles can be discerned:

  • The test is objective. In other words, it makes no difference whether the operator thought what they were doing was dangerous or not.
  • Whether or not that manner of operation was “dangerous” will depend upon all the circumstances in which it took place, including time of day, the water conditions and the weather.
  • Some conduct may be objectively dangerous no matter the circumstances
  • here needs to have been a serious breach of proper management and control of the vessel such that a real danger is created.

The legislation also sets out that a person who is operating the vessel under the influence of intoxicating liquor or of a drug is deemed to be doing so in a dangerous fashion.

Navigation

The use of the term “navigation” does not mean that the accused person much have been the navigator of the vessel (as opposed to the captain, or first mate. The courts have defined navigation as including “driving, steering or helming” a vessel – although where different persons are undertaking different tasks, careful attention will need to be paid to this issue.

Occasioning GBH

The legislation requires that have been an “impact” – in other words a collision – that occasions the grievous bodily harm to a person. The courts have directed that, in order to “cause” a result, a defendant’s actions must have made a “substantial or significant contribution” to the person’s injury. These terms are vague as there is no way to definitively set out what can constitute “occasioning”.

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 by the court on a case by case basis.

The prosecution and defence may disagree on whether a particular injury amounts to GBH or whether it falls within the scope of the less serious injury of actual bodily harm. This issue is then determined by the court.

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 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.

Defences

The relevant legislation includes a specific defence. It is a defence to the charge if the injury was “not in any way attributable” to the intoxication of the operator or to the speed or manner in which the vessel was controlled.

In other words, if the vessel was being operated dangerously, there is a collision and someone is injured as a result, a defendant can escape liability if the injury was in no way a consequence of the dangerous operation.

Penalties

The standard offence carries a penalty of 7 years imprisonment. If the offence is committed “n circumstances of aggravation the penalty rises to 11 years. Circumstances of aggravation include:

  • Having a blood alcohol concentration above 0.05
  • Exceeding the speed limit
  • Being involved in a police pursuit, or
  • Being very substantially impaired by alcohol or drugs

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

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