Under QLD law, there are several types of assault at differing levels of seriousness.
The charge received will generally depend on the injury(s) that the victim sustains.
Assault causing death, and certain acts “with intent“, are the most serious forms of assault. Short of these actions, grievous bodily harm (GBH) is the most serious of the assault charges.
Given this, you should contact a lawyer if the police would like to question you about a potential charge. The investigation stage is vital. You should not participate in an interview without first seeking legal advice. To speak to a Sunshine Coast criminal lawyer, call 07 5408 0655.
“any person who unlawfully does grievous bodily harm to another is guilty of a crime.”
We can break this charge down into its various “elements“. These are what the Court requires proven for a charge against a person to be successful.
“Unlawfully” means that the Crown must show that the doing of grievous bodily harm was not:
This means they must prove that no defences apply to the charge.
“Does” is a question of fact. Case law demonstrates what the Courts hold as relevant in determining this.
In this case, the Court held that the offender’s actions need to have been a significant cause of the injury. Their actions do not need to have been the sole cause of the injury.
In this case, the Court considered the defendant was liable for an injury. This was as a reasonable person would have regarded the injury as a likely outcome of their actions. The Court held this would be the case for an ordinary person in the same position as the defendant had been.
The legislation defines “grievous bodily harm” to mean:
- “the loss of a distinct part or an organ of the body; or
- serious disfigurement; or
- 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 term “likely” has also been subject to much discussion. The Courts have accepted that “likely” means a substantial chance. That is a real and not remote chance; more than a mere possibility.
Generally, an expert medical opinion can determine if the injury amounts to GBH. A medical professional can give an opinion in the form of a written statement or as verbal evidence at a trial. Evidence can come from a doctor or medical professional who:
Generally, expert medical evidence is sought by the prosecution to support the charge. It is important to remember that the defence can also obtain an independent report.
As a leading firm on the Sunshine Coast, we have working relationships with experts in the area. We will advise you if we believe it would be beneficial to seek a report from a doctor or specialist on the injury.
The lesser assault charge to GBH is assault occasioning bodily harm (AOBH). If an injury does not meet the legal definition of GBH, the prosecution can downgrade the charge. This may be the case if medical evidence or opinion does not support that the injury amounted to GBH. If they substitute the charge with AOBH, the offending and charge will be less serious, as:
If an independent report states the injury is not consistent with GBH, you may be able to negotiate. Speak to your criminal defence lawyer about your prospects of downgrading the charge.
This offence carries a maximum penalty of 14 years imprisonment. Courts will generally use this as an example of a sentence for “worst-case” offending and compare it with:
Grievous bodily harm is a serious offence.
A period of imprisonment is the most common penalty imposed by the District Court.
This period may be partially or wholly suspended. If this is the case, the defendant will serve the period or part of the period of imprisonment in the community.
A period of actual imprisonment, however, is still within range as a penalty. This would mean that an offender would need to serve their sentence in a correctional centre.
The law in QLD provides a governing principle that the Court may impose a sentence:
“to punish the offender to an extent or in a way that is just in all the circumstances.”
For many offences, there is also a guide that the Court should only impose imprisonment as a last resort. This is not the case, however, for a charge of grievous bodily harm or any offence that:
Other or alternative penalties can include intensive corrections orders or probation.
If the defendant committed the offence whilst:
the Court must also impose a community service order. This is in addition to any other penalty received.
The only exception to this is if the offender is not capable of complying with a community service order. This may be due to a physical, intellectual, or psychiatric disability.
As discussed above, a key element of the charge of grievous bodily harm is that the actions are “unlawful”. An action is unlawful if no defence applies.
If a defendant does not agree with a charge of grievous bodily harm against them, they can plead not guilty. The matter will proceed to a trial before a jury. There are several defences available which the defence can raise. These include:
Provocation as a defence is not available for this charge.
For more information, see our article about defence to assault.
We can advise you whether a defence applies to your situation. Contact our office for legal advice if you are facing a charge of GBH and want to know if a defence may be applicable.
Our Criminal Defence Lawyers are experienced advocates. We have represented many clients for assault-related offences, including successfully at trial.
If the police have charged you with a criminal offence, contact us for representation. We have the knowledge and expertise to guide you through the process and achieve the best result.
If you need to attend Court, we will appear and present your matter in the best possible light. We will fight to protect your rights. Aitken Whyte Lawyers Sunshine Coast are focused on results.
For representation from a leading Sunshine Coast law firm, contact 07 5408 0655.
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311