Reckless Grievous Bodily Harm

Section 35 of Crimes Act 1900 states:

  1. Reckless grievous bodily harm-in company A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence.
  2. Reckless grievous bodily harm A person who recklessly causes grievous bodily harm to any person is guilty of an offence.
  3. Reckless wounding-in company A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence.
  4. Reckless wounding A person who recklessly wounds any person is guilty of an offence.
  5. Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

This charge was previously referred to as malicious infliction of grievous bodily harm. The Crimes Act has changed this charge from malicious to reckless, a lower threshold for the prosecution to prove, as they no longer have to prove that the actions were with malice, but simply that they were reckless.

Recklessly Cause Grievous Bodily Harm or Reckless Wounding Definition

Reckless is different to an intentional act.  There is a lower threshold for recklessness than intention or malice, but it does not fall as low as negligence or carelessness. This level would mean that the result (being the GHB or the wound) was a probable consequence of the action of the defendant.  In such circumstances the wound must be related to the action of the accused.

Grievous bodily harm is defined in the Crimes Act 1900 as any permanent or serious disfigurement of the person.  In addition, the courts have come to interpret grievous bodily harm as a bodily injury that is serious, but not necessarily permanent or dangerous.  Previous examples of grievous bodily harm include the destruction of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and the contraction of a grievous bodily disease such as HIV.

Wounding A wound has been inflicted where an injury has been sustained that breaks or cuts the interior of the skin, called the dermis, and the outer layer of the skin (epidermis). Because the definition includes both layers, an injury of internal bleeding, which does not break the outer layer would have to be classified as a different type of injury, as the inner layers would be broken, but not the outer layers of the skin. The courts have previously determined that a split lip will suffice, and that a fist can cause a wound, a weapon is not a requirement of the offence.

Guilty or not guilty?

For you to be convicted of recklessly causing grievous bodily harm, the prosecution needs to prove the following:

  1. That you inflicted grievous bodily harm upon a person.
  2. Your actions were reckless.

Each element must be proven beyond a reasonable doubt.

If you decide to plead not guilty, a brief of evidence will be served by the prosecution. This brief contains all the evidence the police will use to try and convict you of recklessly causing grievous bodily harm. This brief must be examined carefully. Once the brief has been considered, you can choose to adhere to the not guilty plea, or change your plea to guilty. After this, a hearing date will be set for your defended hearing.

At the defended hearing, witnesses will be in court to testify against you and explain their version of events. We will then have the ability to cross examine them. You can choose to testify and give your own version of events. When you testify, you are also cross examined by the prosecution. Your solicitor can advise you whether or not you should testify.

The law related to what is reckless is very complicated and each case will often have a different outcome depending on whether the circumstances of your actions and your state of mind. It is important to examine the circumstances of each case carefully.

Was the ‘victim’ injured accidentally?

It may be difficult for the prosecution to prove that your actions were reckless. An expert legal team like Benjamin & Leonardo Criminal Defence Lawyers will be able to carefully dissect your brief, determining whether your actions constitute recklessly causing grievous bodily harm.

If you accidentally bumped into a person holding a sharp instrument, and the instrument pierced both the inner and outer layer of the skin, this would be grievous bodily harm. The first element of the crime would be made out. But, the second element that the prosecution must prove is the mental status of recklessness.  Would this be a matter of recklessly inflicting grievous bodily harm amount to a criminal offence? No doubt it would not be.

The Judicial Commission of NSW suggests that the element of recklessness is made out when you can be satisfied beyond reasonable doubt that the injury or damage was caused recklessly by the accused. Such an injury would be deemed reckless if you realised that some physical harm may possibly be inflicted upon the victim by your actions yet you went ahead with these actions anyway.

It is not necessary that you realise the degree of harm that was in fact caused to the victim, provided that you realised that a similar type of harm could possibly occur. You cannot be found to have acted recklessly unless the prosecution proves that you actually thought about the consequences of your act and at least realised the possibility of harm.

Recklessly Cause Grievous Bodily Harm or Reckless Wounding Defences

You may have committed actions which may constitute the offence, but you have a potential defences. Some of these defences may include:

  • Duress
  • Necessity
  • Self defence
  • Intoxication (can be taken into account when sentencing)

If you decide to plead guilty the Partners at Benjamin & Leonardo Criminal Defence Lawyers will provide you with all the important information you need and at your sentencing hearing they will ensure that all the material you wish to put before the Court is presented in a way which will give you the best chance of obtaining the right result.

Which Court?

The offence of recklessly inflicting grievous bodily harm is a Table 1 offence and is to be dealt with by the Local Court, unless an election is made by you or the prosecution for the matter to be heard in the District Court on indictment.  The summary disposal of these offences in the local court carries a maximum penalty of two years imprisonment.

The more serious the wounds of the victim, the more likely that the case will be heard in the District Court on indictment.

Recklessly Cause Grievous Bodily Harm or Reckless Wounding Penalties

Offence Maximum penalty
Reckless grievous bodily harm-in company 14 years imprisonment
Reckless grievous bodily harm 10 years imprisonment
Reckless wounding-in company 10 years imprisonment
Reckless wounding 7 years imprisonment

Pleading guilty

Regardless of whether you plead guilty or not guilty, the Partners at Benjamin & Leonardo Criminal Defence Lawyers will ensure that your case receives the preparation and consideration it requires to give you every chance obtaining the right result.

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