Malicious act with intent offences in 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.

If you are seeking to learn more about malicious act with intent charges in Queensland, the following topics are covered below:

• Malicious act with intent offences
• Elements of malicious act with intent
• Definitions relevant to this offence
• Maximum and minimum penalties
• Possible alternative charges
• Possible defences to this offence

Malicious act with intent offences

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

— either—

(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 a malicious act with intent offence in association with being a participant of a criminal organisation.

Elements of malicious act with intent

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt.

In the case of a malicious act with intent offence, the prosecution will always have to prove:

1. It was the defendant charged who committed the offence (identification);
2. The defendant did one of the following things (an act or omission):

1. in any way unlawfully wounds, does grievous bodily harm, or transmits a serious disease to, any person; or
2. 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
3. unlawfully causes any explosive substance to explode; or
4. sends or delivers any explosive substance or other dangerous or noxious thing to any person; or
5. causes any such substance or thing to be taken or received by any person; or
6. puts any corrosive fluid or any destructive or explosive substance in any place; or
7. 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.

3. The act or omission of the defendant was a significant or substantial cause of the injury (causation).
4. In doing the act or making the omission, the defendant had one of the following intents (intent):

1. An intent to maim, disfigure or disable, any person; or
2. An intent to do grievous bodily harm or transmit a serious disease to any person; or
3. An intent to resist or prevent the lawful arrest or detention of any person; or
4. An intent to resist or prevent a public officer from acting in accordance with lawful authority.

5. The act or omission of the defendant was unlawful (not justified, authorised or excused by law).

Definitions relevant to this offence

Explosive Substance

Section 1 of the Criminal Code contains a definition of the term ‘explosive substance’:

explosive substance includes a gaseous substance in such a state of compression as to be capable of explosion.

Grievous Bodily Harm

Section 1 of the Criminal Code contains a definition of the term ‘grievous bodily harm’:

“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.

Public Officer

Section 1 of the Criminal Code contains a definition of the term ‘public officer’:

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.

Serious Disease

Section 1 of the Criminal Code contains a definition of the term ‘serious disease’:

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.

Maximum and minimum penalties

The maximum penalty for malicious act with intent in Queensland is life imprisonment.

Many offences under Queensland law do not carry mandatory minimum sentences. Malicious act with intent does when a person commits the offence and the serious organised crime circumstance of aggravation applies: 7 years’ imprisonment is automatically added on top of the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, in addition to any other penalty ordered by the court.

Possible alternative charges

There are possible alternative violent offences to the offence of malicious act with intent. The prosecution may determine that a more or less serious charge is appropriate, based on the evidence. Such related offences include:

• Assault occasioning bodily harm
• Attempted murder
• Common assault
• Grievous bodily harm
• Serious assault
• Unlawful wounding

Possible defences to this offence

The law requires the prosecution to prove that the defendant acted unlawfully. If the prosecution fails to disprove the act or omission was authorised, justified or excused by law, the defendant is 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 is 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.

About Andrew Anderson

Anderson Legal provides comprehensive criminal law defence services for people facing investigation or charges relating to serious criminal offences in Queensland. In assisting clients, this firm:

• provides advice and representation
• defends against unfair allegations
• resolves, where appropriate, charges by negotiation
• applies to courts for orders, including to exclude evidence
• represents clients in complex trials and sentences
• litigates appeals for wrongful convictions and sentences

Anderson Legal provides clear guidance in all cases. It allows clients to make informed decisions about their options and their preferred path forward.

Criminal defence work requires more than just an understanding of criminal law and procedure. It requires the insight to know that without the ability to properly contest allegations, innocent people are condemned to unjust convictions and punishments. History provides countless examples of innocent people wrongly accused of committing serious offences and prisoners condemned to punishments that do not fit the crime.

Anderson Legal is a Brisbane-based law firm that has the expertise and proven experience to provide criminal defence services for individuals and businesses. If you need a trusted and respected criminal lawyer, there are many reasons why Anderson Legal should be your preferred choice.

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While Andrew Anderson has substantial experience litigating criminal cases across Queensland, he has a particular focus on cases arising in Brisbane, Beenleigh, the Gold Coast, Ipswich, Maroochydore, and Toowoomba. He welcomes enquiries from other centres in Queensland.

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