Grievous bodily harm in Queensland

What grievous bodily harm means

The offence itself is short. The Criminal Code makes it a crime to do grievous bodily harm to another.

The work is done by the definition of the injury. Grievous bodily harm means any injury that involves:

• the loss of a distinct part or organ of the body;
• 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.

The first and third are self-explanatory. Serious disfigurement generally means an injury that permanently alters a person’s appearance, so significant scarring or burns can qualify.

Note the words "if left untreated" in the third limb. The question is what the injury would have done without medical treatment, not what happened after a surgeon dealt with it. That is why prompt and effective treatment does not take an injury out of the definition.

Three features that catch people out

Intention is not an element

Police do not need to prove you intended to cause grievous bodily harm. Your intention is largely beside the point. They need to prove beyond reasonable doubt that you caused the injury and that you had no lawful justification or excuse for doing so.

That is why a single punch that causes a fractured skull can be charged as grievous bodily harm even where nobody suggests the person meant to fracture anything.

Consent is not a defence

Unlike some assault charges, a person cannot consent to suffering grievous bodily harm. Permission does not make it lawful. That has obvious implications for consensual fights and for some organised combat outside a regulated sporting context.

Circumstances of aggravation

Some circumstances expose you to a higher penalty or to a different charge entirely:

• the offence forms part of a domestic violence offence, which must be recorded on your criminal history under section 12A of the Penalties and Sentences Act 1992 (Qld);
• you were a participant in a criminal organisation at the time; or
• the harm arose from driving, in which case the charge is ordinarily dangerous operation of a vehicle causing grievous bodily harm under section 328A of the Criminal Code rather than section 320, and being adversely affected by an intoxicating substance is itself a circumstance of aggravation on that charge.

On criminal organisations, the Criminal Code definition is broadly a group of three or more people who engage in, organise, plan, facilitate, support or arrange serious criminal activity and who represent an unacceptable risk to the safety, welfare or order of the community.

Penalties

The maximum is 14 years imprisonment.

What a court actually imposes depends on the circumstances of the offence, the injuries, any criminal history, mitigating factors, the plea and whether any circumstance of aggravation applies.

Grievous bodily harm is a serious violent offence for the purposes of Part 9A of the Penalties and Sentences Act 1992 (Qld). If a sentence of 10 years or more is imposed, a serious violent offence declaration is automatic, which means serving 80 per cent of the sentence or 15 years, whichever is less, before becoming eligible for parole. Between 5 and 10 years, the court has a discretion whether to declare.

In practice this offence is treated seriously and actual custody is a realistic outcome in many cases. That is precisely why the preparation matters.

Defences

An injury having occurred does not end the matter. Depending on the facts, the defences that most commonly arise are:

• Self-defence. Under sections 271 and 272 of the Criminal Code, a person subjected to an unprovoked assault may use such force as is reasonably necessary to defend themselves. Force intended or likely to cause death or grievous bodily harm is only permitted where the person reasonably apprehends death or grievous bodily harm and reasonably believes they cannot otherwise preserve themselves.
• Insanity. Section 27 applies where, because of mental disease or natural mental infirmity, a person was deprived of the capacity to understand what they were doing, to control their actions, or to know they ought not do the act.
• Compulsion and extraordinary emergency. Sections 31 and 25 can apply where the act was done under certain forms of duress, or in circumstances of sudden or extraordinary emergency.
• Accident. Section 23 excludes criminal responsibility for an event that occurs by accident, which can be significant where an injury was far more serious than any reasonable person would foresee.

Two things are not defences. Consent, as above. And provocation, which under section 269 applies to assault-based charges and is not available to a charge of doing grievous bodily harm.

What to do if you are charged

The first point is the right to silence. You are not obliged to answer questions, provide a statement or take part in a record of interview before getting legal advice. People routinely say things in an interview that convert an arguable self-defence case into a guilty plea.

Get advice as early as you can, ideally before police contact you if you know an incident has occurred. Early involvement allows the material that matters to be preserved. CCTV is frequently overwritten within weeks, and independent witnesses become harder to find as time passes.

What early advice covers:

1. A full account of the incident and its context, which is privileged and confidential and is not shared with police.
2. Whether the elements of section 320 can actually be made out on the available material.
3. Whether it is in your interests to engage with the investigation, provide a statement, or say nothing.
4. What other witnesses and evidence should be secured now rather than later.
5. Bail, and what conditions are likely to be sought.

Our page on assaults and violent crime covers the related charges, and bail applications covers what happens if you are held.