There are two justice systems in Australia: the civil justice system, and the criminal justice system. Although they bear some similarities, they serve different purposes and they should not be confused. Below, we consider the main differences between civil and criminal law, and how to determine whether a case is civil or criminal in nature.
Civil law governs the rights and responsibilities we all have towards each other. We can turn to the civil legal system to resolve disputes between individuals, companies, and government departments. Civil disputes include:
Civil cases are based on “wrongs”, or harms, rather than crimes.
Criminal law creates rules which we all must follow to safeguard others and protect societal norms. These laws aim to:
Someone who breaks a criminal law commits an offence. We can find relevant laws and the penalties for offences in legislation such as the Crimes Act 1900. Criminal offences include:
The person harmed by a criminal act is known as the victim, and the individual deemed responsible is the defendant. All criminal cases move through the criminal courts, and jury trials are mandatory in certain circumstances. Depending on the offence committed and the defendant’s criminal record, jail time may apply.
It is important to distinguish between the three main offences related to inflicting grievous bodily harm:
· Grievous bodily harm with intent
· Recklessly causing grievous bodily harm
· A person causes grievous bodily harm by an unlawful or negligent act
Grievous bodily harm is also inflicted with dangerous and negligent driving.
Each of these offences can be considered a form of assault. The main difference between the three main offences is the mental state of the accused. A person who causes another person serious or permanent injury can be charged with an offence even if they did not intend to cause harm or if their actions fell short of a reasonable standard.
The penalties for causing grievous bodily harm are very serious and vary depending on the offence. The Court will consider the degree of violence during the assault and the extent of the harm or injuries inflicted. The penalties that apply depend on the offender’s conduct, and whether the crime was committed alone or in company.
Under Section 33(1) of the Crimes Act 1900 (NSW) causing grievous bodily harm with intent is a crime. This offence is charged when the accused intended to cause grievous bodily harm to a person. The prosecution must prove the accused had the intention to cause serious injury. The offence of inflicting grievous bodily harm with intent is very serious and it is one of the most serious assault charges.
This carries a maximum penalty is imprisonment for 25 years. Grievous bodily harm is an indictable offence and will be heard in the District Court. There is no minimum sentence for a greivous bodily harm charge.
Recklessly causing grievous bodily harm is a criminal offence under Section 35(2) of the Crimes Act 1900 (NSW). The accused will be charged with this crime if the accused was reckless and resulted in serious injuries and potentially caused permanent damage to another person. The Court defines reckless as less serious than intentional, but with the understanding that the offender’s actions would cause grievous bodily harm.
The prosecution has to prove two things beyond a reasonable doubt before an accused can be found guilty of recklessly inflicting grievous bodily harm. The prosecution has to prove:
· The accused inflicted serious grievous bodily harm upon another person
· The grievous bodily harm was caused by the accused’s recklessness – the accused did not intend to inflict grievous bodily harm, but the type of physical injury occurred as a result of the accused’s recklessness.
Recklessness refers to situations where a person knew or should have known that their actions could cause grievous bodily harm, but the person continued to act anyway. For example, when a person punches someone and breaks a bone.
Recklessly causing grievous bodily harm is a “Table 1” offence with significant penalties if dealt with in a District Court. The matter can be dealt with in the Local Court unless the Prosecution or the Defence elects to have the matter dealt with in the District Court. The maximum penalty is two years in prison if the matter is finalised in the Local Court.
Penalties for recklessly causing grievous bodily harm dealt with in the District Court:
· Reckless grievous bodily harm
The offender guilty of the offence of reckless grievous bodily harm will face a maximum penalty of ten years imprisonment.
· Reckless grievous bodily harm in company
The maximum penalty for the offence is fourteen years in prison when an offender causes reckless grievous bodily harm to another person in the company of another person or persons.
The legislation contains an alternative verdict provision for intent and reckless grievous bodily harm offences. The Judge or Jury can acquit the accused for one offence, but they may still find the accused guilty of another. For example, the accused can be charged with reckless grievous bodily harm if the jury decides the accused did not intend to cause grievous bodily harm.
A Person Causing Grievous Bodily Harm by Unlawful or Negligent Act
Section 54 of the Crimes Act defines causing grievous bodily harm by unlawful or negligent act as a crime. The offence is charged when the act was unlawful or negligent.
An unlawful act is a dangerous act against the law and it is an offence under legislation or common law. For example:
· Illegal dumping of toxic chemicals into a river or stream causing harm to water users
· Jaywalking and causing an accident
· A dangerous animal escapes and attacks a person because the owner kept the dangerous animal without a license or in an inadequate enclosure
A person can be charged if their actions fell short of a reasonable standard of care even if a person did not intend to cause anyone harm or injury. The act must be done voluntarily or consciously, but without any intention to cause grievous bodily harm. For example:
· Failing to seek medical treatment for a family member results in a permanent health condition
· A nurse failing to obtain treatment for a patient after incorrectly administering a drug
· Igniting a fire with a highly flammable ingredient and causing an explosion and severe burns
An offender who causes grievous bodily harm through an unlawful or negligent act is liable to imprisonment for up to two years. Causing grievous bodily harm by unlawful or negligent behaviour will be dealt with in the Local Court. However, the case can be heard in the District Court if the defendant is also charged with further serious offences or if the Prosecutor or Defence elects to have the matter dealt with in the District Court.
Dangerous and Negligent Driving Causing Grievous Bodily Harm
Under Section 52A of the Crimes Act 1900 (NSW), dangerous driving causing grievous bodily harm is an offence. The offence is seen as an aggravated offence when the accused:
· drove at a speed of more than 45km/h over the speed limit
· is over the legal BAC limit
· try to escape pursuit by the police
· is under the influence of a drug
An offender found guilty of this offence may receive a prison sentence up to seven years in prison. If the offence is aggravated a sentence of up to 11 years in prison apply.
Negligent driving causing grievous bodily harm is an offence under Section 117 of the Road Transport Act 2013. An offender who commits this offence for the first time may be sentenced to nine months imprisonment or a fine of 20 penalty units. If the offender commits the same offence a second time the sentence increase to two years in prison and/or a fine of 50 penalty units.
The burden of proof lies on the Prosecution. The prosecution has to prove two main things beyond a reasonable doubt to satisfy the Court that the offence of grievous bodily harm was committed.
The prosecution has to prove that the injury amounted to grievous bodily harm. The injury has to be very serious and can include any permanent or serious disfigurement. The prosecution has to also establish if the accused was reckless or intended to cause grievous bodily harm. The prosecution will focus on the mental aspect to determine what the thought process of the accused was at the time of the offence.
In NSW the prosecution has to prove the accused understood that some type of harm could occur and the actions were still taken to cause injury.
Some of the more common possible defences against a charge of grievous bodily harm are:
· The seriousness of the injuries
The Defence can argue that the injuries of the victim are not serious enough or permanent to amount to a charge of grievous bodily harm. It is common for the defence and the prosecution to argue with one another about the seriousness of the injuries and whether they amount to grievous bodily harm. Experts will be called to give evidence and these experts will be cross-examined by the defence and the prosecution. The Court or a Jury will decide the merits of the arguments presented in the case.
Another possible defence for grievous bodily harm is self-defence. Self-defence occurs in circumstances where the accused protected their property, themselves, or another person from harm. The accused have to show beyond a reasonable doubt that he/she believed their conduct was necessary to defend themselves. The Defence has to prove that the actions were a reasonable response in the circumstances as the accused perceived them.
Necessity occurs in situations where imminent danger by human or natural forces resulted in the accused committing the criminal offence of grievous bodily harm. The Defence has to prove that the accused reverted to reckless grievous bodily harm to avoid consequences that are seen as “irreparable evil”. The accused had to genuinely believe that they were in imminent danger and that no other alternatives were available to the threat.
Duress involves the use of dangerous threats to pressure a person to participate in a criminal act that they would not usually partake in. The threats that may justify such behaviour could include death threats or warnings of grievous bodily harm. The accused have to prove beyond a reasonable doubt that the threat would have been executed if they did not commit the offence of grievous bodily harm to another person or persons.
Lyons Law Group is criminal defence lawyers with years of experience with grievous bodily harm charges, common assault and assaults occasioning actual bodily harm. Schedule a consultation with one of our experienced criminal lawyer if you or someone you know is facing charges of grievous bodily harm. Alternatively, if you have pleaded guilty to one of these offences, contact us immediately. We can effectively assess your case and advise you on a defence strategy and the penalties you may face.