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Chapter 34: Grievous Harm

Table Of Contents  

[34.0] Introduction 

This chapter will examine the offence of 'Grievous Harm', as provided for by section 226 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See sections 18 and 20 of the Offences Against The Person Act 1861 (UK).

[34.1] Offence 

Section 226 of the Penal Code (Ch. 26) states: 

'Any person who unlawfully does grievous harm to another is guilty of a misdemeanour, and shall be liable to imprisonment for fourteen years.'

[34.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did unlawfully do grievous harm to a person namely [specify the name of the complainant].' 

[34.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Grievous Harm 

F. Complainant

[34.4] Unlawfully

[34.4.1] Introduction 

An act or omission is 'unlawful' unless it is authorised, justified or excused by law. 

The prosecution has the burden of proving the 'unlawfulness' of the defendant's actions, see R v Williams (1984) 78 CrAppR 276 [[1984] CrimLR 163] at page 281 & R v May (1912) 8 CrAppR 63; [1912] 3 KB 572, per Lord Alverstone CJ at page 575. 

Section 235 of the Penal Code (Ch. 26) states: 

'Any person authorised by law or by the consent of the person injured to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.' 

Section 236 of the Penal Code (Ch. 26) states: 

'Notwithstanding anything contained in section 235, consent by a person to the causing of his own death or his own maim does not affect the criminal responsibility of any person by whom such death or maim is caused.' (emphasis added) 

See also: section 234 of the Penal Code (Ch. 26) – 'Surgical Operations'. 

If a complainant in trying to escape from the defendant as a consequence of what he/she said and/or did suffers injuries amounting to grievous bodily harm, then the defendant may be guilty of an offence under section 226 of the Penal Code (Ch. 26). 

In R v Roberts (1972) 56 CrAppR 95 the Court held at page 102: 

'The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?' 

In R v Mackie (1973) 57 CrAppR 453 [[1973] CrimLR 438] Stephenson LJ, delivering the judgment of the Court, stated at page 459: 

'Where the injuries are not fatal, the attempt to escape must be the natural consequence of the assault charged, not something which could not be expected, but something which any reasonable and responsible man in the assailant's shoes would have foreseen.' 

See also: Director of Public Prosecutions v Daley [1979] 2 WLR 239. 

The courts have consistently held that the mens rea of every type of offence against the person covers both actual intent and recklessness, in the sense of taking the risk of harm ensuing with foresight that it might happen, see R v Spratt (1990) 91 CrAppR 362 [[1991] 2 AllER 210; [1990] 1 WLR 1073; [1990] CrimLR 797] at page 370. 

The question is therefore whether the defendant considered the possibility that the complainant might have been hurt by his/her actions.

[34.4.2] Defence Of Person Or Property 

The law relating to the 'Defence Of Person Or Property' is examined commencing on page 451.

[34.5] Grievous Harm 

The term 'Grievous Harm' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.' (emphasis added) 

The term 'Maim' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'the destruction or permanent disabling of any external or internal organ, member or sense'. 

The evidence of a doctor will therefore be essential, unless there is a 'Formal Admission'. 

The law relating to: 

·                     'Opinion Evidence - Experts' is examined commencing on page 202; and 

·                     'Formal Admissions' is examined commencing on page 325. 

See also: Freezer Lausalo v R (Unrep. Criminal Appeal No. 4 of 1994; Court of Appeal) & Epeli Davinga v The State [1995] PNGLR 263 at page 266 regarding 'Formal Admissions'.

[34.6] Multiplicity Of Acts 

The law relating to 'Multiplicity Of Acts' is examined commencing on page 566.

[34.7] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Grievous Harm' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[34.8] Related Offences 

The following offences are related to the offence of 'Grievous Harm': 

·                     'Common Assault', section 244 of the Penal Code (Ch. 26) which is examined commencing on page 562; 

·                     'Bodily Harm', section 245 of the Penal Code (Ch. 26) which is examined commencing on page 570; and 

·                     'Unlawful Wounding', section 229 of the Penal Code (Ch. 26) which is examined commencing on page 578.