Assault causing grievous bodily harm is the infliction of any serious or permanent injury which will cause the victim ongoing problems. Broken bones or internal organ damage are examples. Grievous bodily harm can include the destruction of the foetus of a pregnant woman by your action(s) section 4 of the Crimes Act 1900 (NSW).

To be convicted of the charge of Assault Causing Grievous Bodily Harm, the prosecution must prove:

1. That you caused a wound, or inflicted grievous bodily harm upon another person.

A wound is generally defined as an injury that results in the breaking of layers of skin such as a deep cut or laceration or badly split lip.  Grievous bodily harm is defined as ‘really serious harm’, including permanent and serious disfigurement. Examples of Assault Causing Grievous Bodily Harm or Wounding include broken bones, damage to internal organs, or the killing of a foetus.

1. That the wound or grievous bodily harm was caused by your recklessness

If you did not intend to wound or cause grievous bodily harm, you can still be charged if your recklessness gave rise to the injury.

Recklessness means you knew, or should have known that your actions could cause wounding or grievous bodily harm, but you continued to act anyway.

A conviction on the charge of Assault Causing Grievous Bodily Harm mostly results in imprisonment. The average term is 36 months, with a non-parole period of 18 months.

For the assault charge of reckless wounding offences, the most common penalty is imprisonment (55%), followed by a suspended sentence (29.8%). The median term was 30 months, with an average non-parole period of 18 months.

You will be found not guilty of Assault Causing Grievous Bodily Harm if your defence is accepted in court. The best defence is to prove that the accused did not know that their conduct was likely to cause fear of physical or mental harm to the other person.

Available defences are:

Self defence

This can be raised if:

1 – you were acting to protect yourself, somebody else, or your property.

2 – you honestly believed you were acting reasonably in taking the action you did. Even if you were mistaken in your belief, you can still rely on this defence as long as you honestly and reasonably believed that you had to act in self defence.

There are some qualifiers. Your actions have to have been proportionate to the threat. If you were drunk or using drugs and your level of intoxication caused you to misinterpret the threat, you may not be able to rely on this defence.

Duress

This defence can be raised where somebody forced you to commit the crime against your will. You have to show evidence:

1 – that an actual threat was made and that the threat was ongoing. Text messages, phone conversations, or testimony in court can all be used. It is irrelevant whether the threat could be carried out. You just have to have genuinely believed in the threat.

2- that the threat was so menacing (death/serious injury) that it would have deprived any person of your age and gender of their free will and left no option but for you engage in the unlawful conduct.

Necessity

This defence can be difficult to prove and is rarely used. The prosecution must prove beyond reasonable doubt (more than 50% likelihood) that there was no immediate danger to you.

No threat has to be present but there must have been some reason that left you no option but to assault somebody. For example, you were being restrained by somebody who was unaware there was fire in the building you were trying to exit and you had to assault them to break free and make your way to safety.

You will need evidence to show:

1 – you acted to avoid death or serious injury or other serious, irreversible consequences to you or somebody else.

2 – you honestly and reasonably believed the threat or situation existed.

3 – you acted in a manner that was proportionate and reasonable in the circumstances.

Lawful correction

Crimes Act 1900 Section 61AA provides the defence of lawful correction by way of punishment to somebody under the age of 18 only if:

1(a) the physical force was applied by the parent of the child or by a person action for the parent of the child, and

1(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

2 Unless the force applied is negligible, it is not reasonable if the force is applied to the child’s head or neck or to any part of the body where any harm caused lasts for more than a short period.