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Inflicting actual bodily harm

Any unlawful use or threat of force against another person can be charged with an assault, but the potential consequences are more severe when the use of force causes bodily harm. In the ACT, section 23 of the Crimes Act makes it an offence to —

  • intentionally or
  • recklessly
  • inflict
  • actual bodily harm
  • on another person.

The maximum sentence for the offence is 5 years in prison (or 7 years if the offence caused serious harm to a pregnancy). Before you and your lawyer begin to plan your defence, is important for you to understand each element of the crime of Inflicting Actual Bodily Harm.

State of Mind

To be guilty of Inflicting Actual Bodily Harm, the accused must act intentionally or recklessly. “Intentionally” means the accused must mean to cause actual bodily harm or must be aware that actual bodily harm would be the ordinary result of his or her actions. In other words, “I did not mean to hurt him” will not excuse the offence when the accused deliberately punches another person in the face because everyone (including the accused) is aware that punching someone in the face will ordinarily cause bodily harm.

“Recklessly” means the accused is aware that his or her conduct creates a substantial risk of causing bodily harm and, in light of all the circumstances, the risk is unjustifiable. In a jury trial, whether a substantial risk existed and whether the risk was justifiable is for the jury to decide.

If bodily harm was caused accidentally, rather than intentionally or recklessly, the accused has a defence.

Infliction of harm

The prosecution must prove that the accused inflicted the harm suffered by the alleged victim. Whether the alleged victim’s injuries were caused by someone else before or after an encounter with the accused is a question of fact that might present a defence to the charge, particularly when no credible witnesses saw the accused behaving violently toward the alleged victim.

Actual bodily harm

“Actual bodily harm” generally means a hurt or injury that interferes with the health or comfort of the alleged victim. Scratches and bruises can be evidence of actual bodily harm.

Pain alone might be regarded as a “hurt” that constitutes bodily harm if it impairs the alleged victim’s comfort, but not if the pain is insignificant, transient or trifling. A psychological injury can constitute bodily harm, but only if it is serious. The ordinary emotions of fear and panic do not meet the definition of bodily harm.

If there is no obvious evidence of harm beyond the alleged victim’s claim to have experienced pain or psychological injury, the accused might have a strong defence to a charge under section 23.

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