In Queensland a charge of causing grievous bodily harm (GBH) is a very serious criminal offence. The Queensland Criminal Code defines three types of GBH offence: intentionally causing GBH, unlawfully doing GBH, and dangerous driving causing GBH.
While a custodial sentence will often be the result of committing one of the offences above in Queensland, it is not inevitable if you are properly advised by an experienced Brisbane criminal lawyer. The prosecution must prove you committed the offence beyond a reasonable doubt and there are other defences available, some of which are outlined below.
What Is GBH?
Section 1 of the Queensland Criminal Code defines GBH as:
- 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.
What do the various charges mean?
The most serious charge is that you intentionally caused GBH (rather than that you simply caused it without lawful excuse), which carries a maximum penalty of life imprisonment.
Under section 320 of the Queensland Criminal Code, unlawfully doing GBH carries a maximum sentence of imprisonment of 14 years. ‘Unlawful’ is generally defined as “not authorised, justified or excused by law”. It should be noted that a charge of unlawfully doing GBH does not require any proof of intent. It is also important to note that it is not necessary for the prosecution to prove that the defendant was the sole cause of the injury. As the High Court decided in 1991 case Royall v The Queen, conduct that constitutes a significant or substantial cause of the injury can be enough.
In Queensland, dangerous driving causing death or grievous bodily harm is a serious criminal offence that carries a maximum penalty of 10 years imprisonment. In order for you to be convicted of an offence of dangerous driving causing death or grievous bodily harm, the police must prove that:
- You were driving a motor vehicle, or you interfered with someone who was, and;
- your driving, or interference, was dangerous, and;
- as a result of your driving or interference, another person was killed or suffered grievous bodily harm.
In some cases certain facts will be treated as ‘aggravating’ and therefore deserving of increased punishment. In GBH offences, aggravating circumstances includes where:
- A person is a participant in a criminal organisation and is convicted of causing GBH. This can result in the imposition of a minimum of seven years’ imprisonment in actual custody, on top of the sentence for unlawfully causing GBH.
- If the GBH offence was committed in a public place while the person was adversely affected by an intoxicating substance. In this event, community service must be ordered as part of the punishment, whether or not the court imposes another punishment.
- If the GBH is part of a ‘domestic violence offence’, the court will treat this fact as an aggravating factor unless it is not reasonable because of the exceptional circumstances of the case.
What are the defences to a GBH charge?
There are a number of possible defences available to someone charged with a GBH offence. The guidance of a criminal lawyer with experience in this area is highly advised in order to work out the best strategy to defend any charge.
It is up to the prosecution to establish all the elements of the offence beyond a reasonable doubt. This is sometimes referred to as a ‘default’ defence in criminal matters.
Other common defences to GBH include:
Accident: If an ‘event’ occurs that the person does not intend or foresee as a possible consequence, and an ordinary person would not reasonably foresee as a possible consequence, then a person may have a defence to a charge of GBH. But a person is not excused from criminal responsibility for GBH that results to a victim because of a physical defect, weakness or abnormality, even though the offender does not intend or reasonably foresee the death or grievous bodily harm.
Self-defence: This defence is divided into whether you were subject to an unprovoked assault, or provoked an assault. In terms of the former, Section 271 of the Criminal Code makes it legal for a person to use such force as is reasonably necessary to defend them against an unprovoked assault. The force used must not be intended or likely to cause death or grievous bodily harm, and must be proportionate. If the person being assaulted reasonably fears that their attacker may cause death or grievous bodily harm, that person can use necessary force to defend themselves (or the person being attacked) even if the force causes the death of, or grievous bodily harm to, the attacker.
Mistake of fact: A person is not criminally responsible if they did something based upon an honest and reasonable mistake of fact.
Extraordinary emergency: A person is not criminally responsible for an act or omission done under a sudden or extraordinary emergency that an ordinary person, possessing ordinary powers of self-control, could not reasonably be expected to act otherwise.
Insanity: A person is insane and not criminally responsible if they are deprived of one or more of the following capacities: understand what they are doing; control of their actions; know that they ought not to be doing it.
There are other defences as well and again, an experienced criminal lawyer will be able to determine which may suit the offence you’ve been charged with.
The need for good representation
Clearly, a charge of GBH is a very serious matter and requires expert legal advice and guidance. Hannay Lawyers has many years of experience dealing with the Queensland criminal justice system, calling on an extensive knowledge of relevant laws and the vital practical experience of appearing in many Queensland courts on behalf of people charged with such offences.
If you’ve found yourself in the difficult position of facing a GBH charge, or are trying to help someone who is, contact our Brisbane or Gold Coast offices today on (07) 3184 2323 for a free initial consultation.