By: Andrew Anderson
Published: 25 November 2020
Published: 25 November 2020
By: Andrew Anderson
Unlawful Wounding – Queensland
Unlawful wounding is a serious criminal offence, often punishable by actual imprisonment. The word ‘wounding’ refers to a break of the true skin, typically by a sharp object. The maximum penalty is 7 years’ 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 unlawful wounding.
If you face an unlawful wounding 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
- Possible Defences
- Penalties & Sentences
- Significant Cases
Section 323 Criminal Code (Qld)
Section 323 of the Criminal Code makes unlawful wounding an offence in Queensland. The law states:
(1) A person who unlawfully wounds anyone else commits a misdemeanour. Maximum penalty—7 years imprisonment.
(2) The offender may be arrested without warrant.
(3) The Penalties and Sentences Act 1992, section 108B states a circumstance of aggravation for an offence against this section.
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.
The legal meaning of the word ‘wounding’ was clarified in Queensland in R v Jervis  1 Qd R 643 at page 645 by the Acting Chief Justice, who stated:
“The expression ‘wounding’ is not defined in the Code, but it is accepted in Queensland that it bears its ordinary or common law meaning, which requires that the ‘true’ skin must be penetrated or broken.”
A wound may be caused in any number of ways, such as by a knife or a bottle. The law does not require a particular weapon or implement to be used in order for a person to be charged with the offence.
Unlawful Wouding: 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 unlawful wounding are as follows:
- The defendant wounded the complainant; and,
- The wounding 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 wound.
In some cases, the prosecution will also be required to prove any circumstances of aggravation relied upon, which for this charge only applies if the offence was 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.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as unlawful wounding, 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 unlawful wounding, 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 ‘unlawful wounding’
The law requires the prosecution to prove that the wounding was caused ‘unlawfully’. That means if the prosecution cannot disprove the act or omission causing the wound was authorised, justified or excused by law, the person charged must be found not guilty. In Queensland, possible defences include:
- Defence of another
- Extraordinary emergency
- 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 wounding should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.
Excluded defences for ‘unlawful wounding’
In Queensland, the same defences do not apply to every offence. Section 323 of the Criminal Code, which is the law that makes wounding an offence, does not require proof that an ‘assault’ occurred. For that reason, ‘provocation’ is not a defence to a charge of unlawfully wounding another person.
Penalties & Sentences
The maximum penalty for unlawful wounding in Queensland is 7 years’ imprisonment.
While many offences under Queensland law do not carry mandatory minimum sentences, unlawful wounding does when a person is convicted of the circumstance of aggravation. The circumstance of aggravation applies if a person is commits the offence in a public place while adversely affected by an intoxicating substance. In such a case, besides whatever other penalty may be imposed by the court, a community service order of up to 240 hours must be ordered.
Sentencing in Queensland
For a charge of wounding, 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.
Given the many ways a wound may be inflicted, there are a wide variety of possible penalties that may be imposed for a charge of wounding. However, there is a recognition that wounds inflicted by knives are serious. In R v Kidner  QCA 430, Justice Chesterman stated that:
“…offences of wounding, inflicted by the use of a knife, are to be punished by condign sentences, even where the offender is young, is a first offender and is otherwise of good character. The use of a knife to inflict a wound makes the offence serious.”
Leaving aside any mandatory minimum penalties that may apply, punishment for wounding charges frequently 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.
The charge of unlawful wounding 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 unlawful wounding.
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 reasoning applies equally to a charge of unlawful wounding, as is recognised in the decision.
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. Given wounding does not have ‘assault’ as an element of the offence, a majority of the High Court determined the defence of provocation could not apply.
Queensland Court of Appeal
In R v Chong; ex parte A-G (Qld)  QCA 22, the Court of Appeal was asked by the Attorney-General to increase the penalty imposed on a woman who had been given immediate parole on a charge of unlawful wounding. The appeal was dismissed. Justice Atkinson, in delivering the reasons of the Court of Appeal, considered the impact of imprisonment on the family of Ms Chong. Among the reasons, it was stated:
In my view, where relevant, the best interests of children who are dependant on the offender fall within s 9(2)(r) of the Penalties and Sentences Act 1992 (Qld) which requires the sentencing court to take account not only of the enumerated matters found in s 9(2)(a) to (q), but also of “any other relevant circumstance”.
The decision from the Court of Appeal continues to provide guidance in cases where a sentence involves an offender whose imprisonment will have exceptionally harsh effects on their very young children.
The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of unlawful wounding: