The difference between “inflicting” and “causing” assault
The criminal law of the Australian Capital Territory draws a distinction between inflicting grievous bodily harm and causing grievous bodily harm. Causing grievous bodily harm is prohibited by section 25 of the Crimes Act.
The offence requires proof that the accused:
- by any unlawful
- or negligent
- or omission
- grievous bodily harm
- to another person.
The offence is punishable by a maximum prison sentence of 5 years.
State of mind
The two offences in the Crimes Act that prohibit the infliction of grievous bodily harm require proof that the accused acted intentionally (section 19) or recklessly (section 20). The less serious offence of causing grievous bodily harm does not require proof of an intentional or reckless act. Rather, section 25 requires proof that the accused was negligent or was acting unlawfully.
An unlawful act is an act that is prohibited by law. The unlawful act must, however, be a dangerous act. An act is dangerous if it exposes another person to the risk of serious injury.
Negligent behaviour generally means careless behaviour, but as the term is used in section 23, something more than “ordinary” carelessness must be established. In civil law, proving that an accident was caused by careless behaviour is enough to establish negligence. In criminal law, negligent behaviour requires a high degree of disregard for the safety of others. The behaviour that causes the harm must be deliberate or conscious, although it does not need to be reckless. An injury caused by an accident resulting from ordinary careless behaviour, therefore, does not violate section 23.
Act or omission
Bodily harm is usually caused by an act committed by the accused, but it can also be caused by an omission, or a failure to act. The failure to apply brakes to stop a vehicle before it collides with a person is an example of an omission.
The negligent or unlawful act or omission of the accused must cause a grievous bodily harm. The act or omission is usually the direct cause of the harm but it can also be the first link in a chain of events that eventually causes harm. In some cases, however, the chain is so long, and the harm is so far removed from the accused’s act or omission, that the accused cannot be said to have caused the harm. As a general rule, the accused’s act or omission will be deemed to have caused the harm if the accused could have foreseen the harm and the harm is a natural and probable consequence of the accused’s act or omission.
Grievous bodily harm
Courts define the term “grievous bodily harm” as a “really serious” bodily harm. That term is discussed in more detail in our article on the offence of inflicting grievous bodily harm.