Grievous Bodily Harm

Published: 24 November 2020
Published: 24 November 2020
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Grievous Bodily Harm – Queensland

Grievous bodily harm is a serious criminal offence, often punishable by actual imprisonment. In Queensland, grievous bodily harm is an offence under section 320 of the Criminal Code 1899 (Qld). Suffering life threatening or permanent injuries are examples of grievous bodily harm.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of grievous bodily harm.

If you face a grievous bodily harm charge, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 320 Criminal Code (Qld)

Section 320 of the Criminal Code makes grievous bodily harm an offence in Queensland. The law states:

(1) Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.

(3A) The Penalties and Sentences Act 1992, sections 108B and 161Q state a circumstance of aggravation for an offence against this section.

(4) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.

The reference to s. 108B relates to mandatory community service being ordered when the offence is committed in a public place while the person is adversely affected by drugs or alcohol. It is in addition to any other penalty imposed.

Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit an offence of grievous bodily harm in association with being a participant of a criminal organisation.

Grievous Bodily Harm: Definition

The meaning of the term ‘grievous bodily harm’ is defined in section 1 of the Criminal Code:

“grievous bodily harm” means—

(a) the loss of a distinct part or an organ of the body; or

(b) serious disfigurement; or

(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.

The definition captures a wide variety of physical injuries. The nature and extent of injuries suffered is relevant to the penalties imposed. For this reason, it is often the case that specialist medical opinions are necessary in order to understand the basis for why an injury may fit within the definition of ‘grievous bodily harm’.

Grievous Bodily Harm: Elements

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

There are different ways elements may be expressed, depending on the issues in a given case. However, elements the prosecution must always prove for a charge of grievous bodily harm are as follows:

  1. It was the defendant charged who committed the offence;
  2. An act or omission of the defendant was a significant or substantial cause of the injury;
  3. The injury constitutes ‘grievous bodily harm’ as defined in the Criminal Code; and,
  4. The act or omission of the defendant was unlawful.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty for the commission of an offence. For instance, a person may be found guilty if they aided or encouraged another person to do the act that causes the grievous bodily harm.

In some cases, the prosecution will also be required to prove any circumstances of aggravation relied upon, such as the offence having been committed by a defendant who was in a public place at the time while adversely affected by an intoxicating substance.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as grievous bodily harm, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For a charge of grievous bodily harm, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘grievous bodily harm’

The law requires the prosecution to prove that the grievous bodily harm was caused ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty. In Queensland, possible defences include:

  • Accident
  • Defence of another
  • Extraordinary emergency
  • Insanity
  • Mistake of fact
  • Self defence
  • Unwilled act

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of grievous bodily harm should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Excluded defences for ‘grievous bodily harm’

In Queensland, the same defences do not apply to every offence. Section 320 of the Criminal Code, which is the law that makes grievous bodily harm an offence, does not require proof that an ‘assault’ occurred. For that reason, ‘provocation’ is not a defence to a charge of unlawfully causing grievous bodily harm to another person. The defences of compulsion or duress are also excluded by the operation of section 31(2) Criminal Code.

Penalties & Sentences

Maximum Penalty

The maximum penalty for grievous bodily harm in Queensland is 14 years’ imprisonment. However, if a person is convicted of the serious organised crime circumstance of aggravation, the penalty may exceed 14 years.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, grievous bodily harm does when a person is convicted of one of two circumstances of aggravation:

  1. When a person is convicted of committing the offence in a public place while adversely affected by an intoxicating substance, besides whatever other penalty may be imposed by the court, a community service order of up to 240 hours must also be ordered.
  2. When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.

Sentencing in Queensland

For a charge of grievous bodily harm, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a violent offence, the law states that the court must have primary regard to the following considerations:

  • the risk of physical harm to any members of the community if a custodial sentence were not imposed;
  • the need to protect any members of the community from that risk;
  • the personal circumstances of any victim of the offence;
  • the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
  • the nature or extent of the violence used, or intended to be used, in the commission of the offence;
  • any disregard by the offender for the interests of public safety;
  • the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
  • the antecedents, age and character of the offender;
  • any remorse or lack of remorse of the offender;
  • any medical, psychiatric, prison or other relevant report in relation to the offender;
  • anything else about the safety of members of the community that the sentencing court considers relevant.

If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

The multitude of possible penalty outcomes for a charge of grievous bodily harm has long been recognised. In R v Bryan; ex parte A-G (Qld) [2003] QCA 18, it was stated by Justice Williams at paragraph [32]:

It is difficult, if not impossible, when dealing with the offence of grievous bodily harm to speak meaningfully of a “range” when considering penalty. A great variety of acts may result in the commission of that offence. A single blow with the hand, the negligent use of a dangerous object, excessive force in resisting an attack, and blows struck in a highly emotional situation may all result in the offence being committed. Also the nature of the injuries sustained and the permanent consequences thereof may vary greatly. All of those factors will have some impact in determining the appropriate sentence.

Grievous bodily harm convictions commonly involve sentences of imprisonment. In some cases, immediate parole or a full suspension of the imprisonment may be possible. In other cases, a person may see the offence deemed a ‘serious violent offence’ by the court, which mandates an offender serve 80% of the imprisonment before they are eligible for release. Imprisonment is by no means the only sentencing option available to a court. For instance, in Queensland Court of Appeal decision in 2013 (R v Charles [2013] QCA 362), a community service order was determined to be the appropriate sentence.

Significant Cases

The charge of grievous bodily harm has involved a number of significant legal decisions over time, including in the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with grievous bodily harm.

High Court of Australia

In Kaporonovski v The Queen [1973] HCA 35, in a majority decision by the High Court, it was decided that the defence of provocation did not apply to a charge of grievous bodily harm. The reason for the decision is that sections 268 and 269 of the Criminal Code, which relates to the defence of provocation in Queensland, applies only to offences of which ‘assault’ is an element.

Queensland Court of Appeal

In R v Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136, the Court of Appeal was asked to rule on the following legal question:

“Is a disfigurement which is remedied by medical treatment capable of amounting to a serious disfigurement within the meaning of ‘grievous bodily harm’ in s 1 of the Criminal Code?”

The Court answered “yes” to the question, noting that the Court had earlier given guidance on the issue in R v Lobston [1983] 2 Qd R 720.

In the case of R v Campbell [2016] QCA 42, the President of the Court of Appeal considered the role ‘provocation’ may play in evaluating the appropriate sentence, where provocation is relied on by a defendant as a point of mitigation. Her Honour said:

When provocation is said to be a mitigating factor in sentencing for the offences of unlawful wounding or unlawful grievous bodily harm, it has its ordinary meaning, namely “something that incites, instigates, angers or irritates.” The weight to be given to factual provocation in its non-legal sense in sentencing for offences of unlawful wounding or grievous bodily harm will depend on the circumstances found by the sentencing judge in each case, considered in the context of established sentencing principles. (Citations omitted)

The case of R v Campbell [2016] QCA 42 is significant because the Court clarified the extent to which provocation may still be relevant in an individual case, even though it cannot be considered in determining guilt given the High Court decision of Kaporonovski v The Queen [1973] HCA 35.

The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of grievous bodily harm:

Grievous Bodily Harm - Criminal Law Expertise