Gerard Green should be charged with the offense of causing grievous bodily harm. This charge is attributable to his own testimony that he beat up the victim (Hinton), tied him to a chair and poured hot water on his back. According to file notes, the police officer Senior Constable Moore who tried to stop the accused also sustained burns in his face and left arm that required instantaneous medical attention. This case will rely on the laws from Victoria State. The charge for causing grievous bodily harm is found in the Crimes Act of 1900. According to the Act, grievous harm refers to any action that permanently or serious disfigures a person.
Section 25 of the Crimes Act of 1900 notes that grievous bodily harm can be caused in two ways; either by unlawful omission or act, or through a negligent omission or act. Further, Section 19 of the Crimes Act 1900 states that a person found guilty of intentionally inflicting grievous bodily harm like in the case of Green is liable to 20 years in prison. However the section also notes that in the case of a pregnant woman, the accused would can be sentenced to up to 25 years imprisonment. The penalties are high in this instance because it is not easy for the prosecution to prove that that an accused person intentionally inflicted grievous bodily harm. However, in cases where the prosecution proves that the grievous harm was caused intentionally, the seriousness of the case becomes greater and the sentences even higher.
The states in Australia have particular legislations that regulate the charge of assault. In Queensland, for example, the definition of assault and its penalties are outlined in chapter 30 and chapter 32 of the Criminal Code of 1899. Assault is an indictable offence in the state of Victoria as illustrated in R v Patton [1998]. The charge of assault in Victoria is covered under section 31 of the Crimes Act 1958. The section notes that there are two kinds of assaults; a) those involving application of force and b) those that require no usage of force.
There are three elements required to prove an assault in court. The first element that the prosecutor must prove is that the accused applied force on the victim’s body. Notably, the accused person does not have to apply the force directly. In Fagan v Commissioner of Metropolitan Police [1969], the court noted that force may be applied through an instrument that the accused controls. In this case the accused controlled hot water that he poured on the victims. The second element that the prosecution must prove is that the force was applied intentionally. In R v Venna [1976] the court determined that it is necessary for the prosecution to prove that the accused applied the force intentionally. It is clear that the accused in this case poured hot water on Hinton intentionally to make him confess to having an affair with his wife. The defendant knew well that pouring hot water on the victims would hurt them and the act is unlawful. The prosecution also has to prove that the accused used force without any lawful justification. The justification is usually hinged on a person defending themselves. However, in this case Gerard was not defending himself. Therefore, the use of force by the defendant in this case is unjustified.
The prosecution needs to prove that the accused intended to cause grievous bodily harm to the victim. The accused person may argue that the unlawful act he committed does not amount to causing grievous bodily harm to the victim. This defence is usually aimed at reducing the seriousness of the case against the accused to so as to avoid the 20 years of imprisonment term prescribed under the law. However, the court should only be satisfied that the defendant unlawfully caused the victim grievous bodily harm. In this case, the accused and other witnesses narrated in their testimonies, it is clear that this is a case of intentional causation of bodily harm to individuals that did not pose any harm to the defendant. The proof of the causation of bodily harm is visible in Hinton who is badly hurt due to the actions of the accused. The court will also take into consideration the fact that the accused is a convict who has spent 4 years of his life in prison. The accused is clearly undergoing delinquency, and the court will endeavor to award a jail term that is in tandem with the offence committed. Concerning the offence of intentionally inflicting grievous bodily harm to Hinton, the accused will be sentenced to 20 years imprisonment.
Green will also be charged with the offence of assaulting the Senior Constable Moore. The accused poured hot water on Moore as he was trying to stop the defendant from causing further injuries to his victim. Under Australian laws, Assault is recognized as an offence against an individual. The offence of assault is usually intentional and can either be attributable to reasonable apprehension of harm or causing actual harm to the individual. Australian law has different categories of assault. The assault referred in this case is the one that results in causation of actual bodily harm to the victim. In this case, Green (accused) actually caused bodily harm to the police officer who was trying to stop him from pouring hot water on Hinton.
For an assault occasioning actual bodily harm to be said to have occurred, an assault must take place and there must be evidence of physical injury. In case of Senior Constable Moore, assault actually took place as the defendant himself noted, and there is evidence of physical injury. The police constable had to seek medical care because of the assault inflicted by the defendant.
Intent is a critical element in cases of assault like this one. In R v O’Conner (1980), the court established that intention is a crucial element in an assault case. Where it is certain to a reasonable person that a particular act will result in a certain degree of injury, intent will be inferred against the accused. In the above case, it is reasonably foreseeable that when one ties a victim up in a chair and then pours hot water on his back and face, this will result in grievous harm to the victim. It does not matter whether or not the accused person had intended to harm or kill the victim. Green may have not intended to kill Hinton as he only wanted him to confirm that he was having an affair with his wife. However, it does not matter, he will still be found guilty of causing grievous harm to the victim.
Cases of assault occasioning actual bodily harm usually rely on the severity of the assault. For instance, in the case of Senior Constable Moore, the court will look at the seriousness of the burns he sustained. The burns he sustained were not as serious as the burns sustained by Hinton. The court will also look the criminal history of the accused person. In this case, Green is a convicted criminal who was only granted freedom through parole. In the case of Green, he will definitely get a prison sentence since he is a repeat offender and his offences are felonious in nature. The onus however is on the prosecution to prove their case. According to Zecevic v DPP the prosecution must prove their case for a conviction.
The offense of intentionally causing grievous harm can be prosecuted and determined at the Magistrates Court where the court is expected to apply statutory penalty to. Therefore, the Police prosecutor in the Magistrates court can handle this case. However, it is essential to hear cases of intentionally inflicting grievous harm at the Supreme Court because it has a tougher penalty and the full statutory penalty is available for judges to sentence. The offense of occasioning bodily harm should also be dealt with at the local court because it is an indictable offense.
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