GBH & Wounding Charges in NSW

Wounding and GBH — what each actually means

Crimes Act 1900 (NSW): s 35 — recklessly causing grievous bodily harm or wounding; s 33 — wounding or causing grievous bodily harm with intent to cause grievous bodily harm. "Grievous bodily harm" is defined in s 4(1) to include permanent or serious disfiguring, the destruction of a foetus, and any grievous bodily disease.

These are two different concepts, routinely confused — including by people who have been charged with them.

Wounding has a precise legal meaning: the breaking of both layers of the skin — the outer epidermis and the inner dermis. That is the whole test. A deep cut from a bottle or a knife is a wound; a graze, a scratch or a bruise, however ugly, is not. The definition cuts both ways: a small but deep cut can found a wounding charge even where the injury healed in days.

Grievous bodily harm means really serious injury — fractured skulls, broken bones with lasting consequences, internal injuries, injuries requiring surgery. The statute adds three specific inclusions: permanent or serious disfigurement, any grievous bodily disease, and the destruction of a foetus. There is no requirement of a wound at all: serious internal injuries from a single punch can be GBH without the skin ever breaking.

Whether an injury is "really serious" is a question of fact — and it is contestable. The medical evidence, not the police facts sheet, decides it.

"Wounding sounds worse than GBH" — it is the other way around

Because "wounding" sounds graphic, people charged with it often assume it is the graver allegation. It is not. Within each section of the Act, GBH carries the higher maximum: really serious injury is treated more severely than a broken skin layer. What actually moves a charge up the ladder is not the word — it is the intent. A wounding committed with intent to cause GBH (s 33) is far more serious than a reckless GBH (s 35), even though the injury in the first case may be smaller. Read the section number on your court attendance notice before drawing any conclusion about how much trouble you are in.

The intent ladder — s 35 to s 33

The same injury can be charged at very different levels depending on the mental element the prosecution says it can prove:

• Reckless wounding (s 35(4)) — maximum 7 years; 10 years if in company;
• Reckless GBH (s 35(2)) — maximum 10 years; 14 years if in company;
• Wounding or GBH with intent to cause GBH (s 33) — maximum 25 years, strictly indictable, dealt with only in the District Court.

"Reckless" means you realised that some actual bodily harm could possibly result from what you did, and did it anyway. "With intent" means the prosecution must prove you actually meant to cause really serious injury. Standard non-parole periods attach to these offences, which makes the choice of charge — and any negotiation about it — enormously consequential.

That is where much of the defence work in this area lives: moving a matter down the ladder. A s 33 charge where the intent evidence is thin — a single blow, a spontaneous incident, alcohol clouding the picture — may resolve to s 35. A GBH allegation where the medical evidence shows full recovery may resolve to wounding, or to assault occasioning actual bodily harm. Each step down changes the maximum, the court, and the realistic sentencing range.

What the police must prove

For a s 35 charge, the prosecution must prove beyond reasonable doubt that you caused a wound or grievous bodily harm to another person, and that you were reckless as to causing actual bodily harm. For s 33, it must prove the injury and a specific intent to cause grievous bodily harm — the most demanding mental element in the assault chapter.

Intent is rarely proved by confession. It is built from inference: the weapon, the number of blows, what was said, what was done afterwards. Every one of those inferences can be tested, and incidents that police charge as intentional frequently look very different once the CCTV, the medical chronology and the witness accounts are examined frame by frame.

Defences to wounding and GBH charges

• Self-defence — a complete defence, including to s 33. If you acted to protect yourself or another and your response was reasonable in the circumstances as you perceived them, the prosecution must disprove it beyond reasonable doubt.
• The injury threshold — the harm is not "really serious", or the skin was not broken through both layers; the charge is overstated.
• The mental element — no intent to cause GBH (s 33), or no foresight of harm (s 35).
• Causation — the serious injury had another cause: a fall, an intervening event, a pre-existing condition.
• Identification — in group violence, proving whose blow caused the injury is often the prosecution's weakest point.

How Lenz Legal approaches GBH and wounding charges

These are the assault matters where early, senior work changes outcomes most. Dean Lenz's approach begins with the two contestable foundations of every serious-injury charge: the medical evidence (does the injury actually meet the definition charged?) and the intent evidence (can the mental element actually be proved?). Those two questions decide whether the matter is fought, negotiated down the ladder, or prepared as a plea at the right level with the injury and the incident placed honestly in context.

Because s 33 is strictly indictable and standard non-parole periods loom over both sections, the charge you ultimately face matters more here than almost anywhere else in criminal law. The negotiation about it should happen early — before the brief is served, where possible, and always before positions harden.

If you have been charged under s 33 or s 35 — or someone was seriously injured and police want your account — get advice before you say anything. Your description of what you meant to do is the intent evidence.

GBH & wounding — your questions answered