Criminal law: June 2016

Swan v R [2016] NSWCCA 79

Grievous bodily harm – meaning – whether finding of GBH open to jury – relevance of subjective factors

What does ‘grievous bodily harm’ (‘GBH’) really mean? The (fairly unhelpful) explanation is usually ‘really serious harm’ – but what do we take into account when we decide that?
In Swan, the Court of Criminal Appeal (CCA) has told us that, whatever else it means, consideration of GBH does not include subjective factors which might make a particular injury more serious to a particular victim.

The victim was at home late at night when he heard voices. Outside, he was confronted by about ten men, some of them armed with bats and pieces of wood. One of them threatened him. The accused, Swan, was one of the members of the group. Things were thrown at the victim, he and his house were hit, and he took his daughter to safety. The group of men then dragged him into the middle of the yard to make good on the threat to beat him: he was hit with a cricket bat and a guitar, and punched and kicked by the group while he was in the foetal position. Amongst other things he suffered a ‘fracture to the transverse process of the L3 vertebra’. The fracture was described by the doctor who gave evidence in the trial as having ‘no long term consequence’ and ‘[c]onsidering the circumstances, … very minor’; it hadn’t required surgery or follow up with a doctor. The accused was convicted.

The accused appealed, arguing that it shouldn’t have been open to the jury to find that the fracture was GBH. Garling J (with whom RA Hulme J agreed, adding a short additional comment, Wilson J dissenting) allowed the appeal on the basis that the jury should have had a reasonable doubt about whether the injury was GBH. Garling J cited at least six reasons which led him to that conclusion, including that there was no displacement of the fracture, it did not require an operation or treatment, was not permanent, and was described by the doctor as ‘minor’ (at [74]).

In the process, Garling J considered this question: There is often a difficult distinction to be made between ‘actual bodily harm’ and GBH – but can we take into account subjective factors when we decide where that line is? In thinking about that question, (at [66]-[68]) his Honour considered rhetorical examples, such as the fact that a broken finger might not be the end of the world for someone in an administrative job, but it might be financially devastating for a concert pianist. A black eye might be merely embarrassing to some, but to a fashion model it would have much more dire consequences. Does that make it GBH?

The examples led Garling J to conclude that the subjective features should not be included in deciding whether something is GBH, particularly where the offender did not know about them (at [70]).

The question then is whether this principle is ratio. RA Hulme J agreed with Garling J on the outcome, but it seems he found it unnecessary to decide this particular point (at [2] – but it is not perfectly clear what RA Hulme J was distancing himself from). Wilson J dissented on the outcome, but expressed general agreement with Garling J’s outline of the law (at [92]). However, whether binding or not, the decision is plainly a very persuasive consideration of a complex area.