Malicious Act With Intent
By: Andrew Anderson
Published: 25 November 2020
Published: 25 November 2020
By: Andrew Anderson
Malicious Act With Intent – Queensland
Malicious act with intent is a serious criminal offence, generally punishable by actual imprisonment. In Queensland, it generally is charged in cases in which a serious injury has been caused by someone who intended to cause such a result. The maximum penalty for a charge of malicious act with intent is life imprisonment.
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 malicious act with intent.
If you face a malicious act with intent 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.
- Malicious Act With Intent – Queensland
- Queensland Law
- Possible Defences
- Penalties & Sentences
- Significant Cases
Section 317 Criminal Code (Qld)
Section 317 of the Criminal Code makes malicious act with intent an offence in Queensland. The law states:
317 Acts intended to cause grievous bodily harm and other malicious acts
(1) Any person who, with intent—
(a) to maim, disfigure or disable, any person; or
(b) to do some grievous bodily harm or transmit a serious disease to any person; or
(c) to resist or prevent the lawful arrest or detention of any person; or
(d) to resist or prevent a public officer from acting in accordance with lawful authority
(e) in any way unlawfully wounds, does grievous bodily harm, or transmits a serious disease to, any person; or
(f) unlawfully strikes, or attempts in any way to strike, any person with any kind of projectile or anything else capable of achieving the intention; or
(g) unlawfully causes any explosive substance to explode; or
(h) sends or delivers any explosive substance or other dangerous or noxious thing to any person; or
(i) causes any such substance or thing to be taken or received by any person; or
(j) puts any corrosive fluid or any destructive or explosive substance in any place; or
(k) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person;
is guilty of a crime, and is liable to imprisonment for life.
(2) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.
(3) 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
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 malicious act with intent in association with being a participant of a criminal organisation.
The meaning of the term ‘explosive substance’ is defined in section 1 of the Criminal Code:
explosive substance includes a gaseous substance in such a state of compression as to be capable of explosion.
Grievous Bodily Harm
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 meaning of the term ‘public officer’ is defined in section 1 of the Criminal Code:
public officer means a person other than a judicial officer, whether or not the person is remunerated—
(a) discharging a duty imposed under an Act or of a public nature; or
(b) holding office under or employed by the Crown;
and includes, whether or not the person is remunerated—
(c) a person employed to execute any process of a court; and
(d) a public service employee; and
(e) a person appointed or employed under any of the following Acts—
(i) the Police Service Administration Act 1990;
(ii) the Transport Infrastructure Act 1994;
(iii) the State Buildings Protective Security Act 1983; and
(f) a member, officer, or employee of an authority, board, corporation, commission, local government, council, committee or other similar body established for a public purpose under an Act.
The meaning of the term ‘serious disease’ is defined in section 1 of the Criminal Code:
serious disease means a disease that would, if left untreated, be of such a nature as to—
(a) cause or be likely to cause any loss of a distinct part or organ of the body; or
(b) cause or be likely to cause serious disfigurement; or
(c) endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available.
Malicious Act With Intent: 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. A common alternative charge to malicious act with intent is grievous bodily harm under s. 320 of the Criminal Code.
There are different ways elements may be expressed, depending on the issues in a given case. However, for a charge of malicious act with intent, the prosecution will always have to prove:
- It was the defendant charged who committed the offence (identification);
- The defendant did one of the following things (an act or omission):
- in any way unlawfully wounds, does grievous bodily harm, or transmits a serious disease to, any person; or
- unlawfully strikes, or attempts in any way to strike, any person with any kind of projectile or anything else capable of achieving the intention; or
- unlawfully causes any explosive substance to explode; or
- sends or delivers any explosive substance or other dangerous or noxious thing to any person; or
- causes any such substance or thing to be taken or received by any person; or
- puts any corrosive fluid or any destructive or explosive substance in any place; or
- unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person.
- The act or omission of the defendant was a significant or substantial cause of the injury (causation).
- In doing the act or making the omission, the defendant had one of the following intents (intent):
- An intent to maim, disfigure or disable, any person; or
- An intent to do grievous bodily harm or transmit a serious disease to any person; or
- An intent to resist or prevent the lawful arrest or detention of any person; or
- An intent to resist or prevent a public officer from acting in accordance with lawful authority.
- The act or omission of the defendant was unlawful (not justified, authorised or excused by law).
In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty of the same offence. For instance, a person may be found guilty if they aided or encouraged another person in an offence of malicious act with intent.
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.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as malicious act with intent, 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 malicious act with intent, 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 ‘malicious act with intent’
The law requires the prosecution to prove that the charge was committed ‘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.
Many defences do not apply if a person intends to cause a serious injury, such as grievous bodily harm. As such, it is common for there to be a focus on whether the prosecution can prove a person ‘intended’ a particular result.
With respect to resisting or preventing arrest or detention by a police officer, or resisting or preventing a public officer from carrying out an act, often the focus of a defence will centre on whether the officer exceeded their lawful authority.
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 malicious act with intent should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.
Excluded defences for ‘malicious act with intent’
In Queensland, the same defences do not apply to every offence. Section 317 of the Criminal Code, which is the law that makes malicious act with intent an offence, does not require proof that an ‘assault’ occurred where ‘wounding’ or ‘grievous bodily harm’ is alleged. For that reason, ‘provocation’ is not a defence to a charge containing one of those elements. The defences of compulsion or duress are also excluded by the operation of section 31(2) Criminal Code when grievous bodily harm forms part of the charge.
Penalties & Sentences
The maximum penalty for malicious act with intent in Queensland is life imprisonment.
While many offences under Queensland law do not carry mandatory minimum sentences, malicious act with intent does when a person is convicted of the following circumstance of aggravation:
- 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 malicious act with intent, 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.
The significant penalties for malicious act with intent often reflect the harm suffered by victims of crime, as well as the accompanying intent. As was said by the President of the Court of Appeal in R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld)  QCA 51:
Whether the doing of grievous bodily harm is accompanied by an intent to do such harm or an intent to maim, disfigure or disable or an intent to transmit a serious disease or, as in this case, an intent to prevent lawful arrest, the punishment is the same: life imprisonment. This offence can be contrasted with the offence created by section 320(1), doing grievous bodily harm without any malicious intent, which carries a maximum punishment of 14 years.
Leaving aside any mandatory minimum penalties that may apply, punishment for malicious act with intent charges generally involve sentences of imprisonment. In rare 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.
The charge of malicious act with intent 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 2016, the High Court of Australia decided the case of Zaburoni v The Queen  HCA 12, which was an appeal against a conviction for malicious act with intent. The appellant was HIV positive and had lied to the complainant about his HIV status. Following frequent, unprotected sex with the appellant, the complainant was diagnosed with HIV. The issue on appeal is whether there was sufficient evidence to satisfy the element of intent to cause a specific result. In this case, the prosecution had alleged the intent could be inferred from the frequency of the conduct and an awareness of the risk of transmission. In allowing the appeal, a majority of the High Court stated:
Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. In the last-mentioned respect, the Code is distinguished from its Commonwealth counterpart, which allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events.[Footnotes omitted]
The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of grievous bodily harm: