Reckless Wounding in NSW — Section 35 Crimes Act 1900

A charge of reckless wounding is a serious criminal offence in New South Wales. It does not require the prosecution to prove that you intended to cause injury. It is enough that you foresaw the possibility that your actions might cause some form of harm and proceeded regardless. Incidents that occur quickly, a single punch, a push during an argument, or an altercation in a licensed venue, can give rise to this charge. In many cases, the alleged injury is not extensive, but still meets the legal definition of a “wound”.

If you have been charged under section 35 of the Crimes Act 1900 (NSW), it is important to obtain legal advice at an early stage. The charge is often dealt with in the District Court and carries significant penalties, including imprisonment.

What Is a “Wound”?

“Wounding” has a specific legal meaning. To establish a wound, the prosecution must prove that both layers of the skin — the epidermis and the dermis — were broken. Injuries such as bruising, redness, or superficial abrasions that do not penetrate the dermis do not amount to a wound in law. However, the threshold is not high. A split lip, a cut caused by a punch, or a laceration from contact with a hard surface or broken glass will usually be sufficient. There is no requirement that a weapon be used. Whether an injury meets this definition is often a contested issue and will depend on the medical evidence.

What Does “Reckless” Mean?

For the purposes of section 35, recklessness does not require an intention to cause injury. The prosecution must prove that the accused foresaw the possibility that their conduct might cause actual bodily harm — injury that is more than transient or trivial — and went ahead anyway. It is not necessary to prove that the accused foresaw the specific injury that occurred, or that a wound would result. It is enough that some form of physical harm was foreseen. This is an important distinction between section 35 and the more serious section 33 offences.

Offences and Penalties

Section 35 creates a number of related offences depending on the nature of the harm and whether the offence was committed in company:

• Reckless wounding — maximum 7 years imprisonment; maximum 2 years in the Local Court; standard non-parole period of 3 years in the District Court.
• Reckless wounding in company — maximum 10 years imprisonment; standard non-parole period of 4 years.
• Recklessly causing grievous bodily harm — maximum 10 years imprisonment (14 years if in company).

Which Court Will Hear the Matter?

Reckless wounding is a Table 1 offence. This means it can be dealt with in the Local Court unless either party elects for it to proceed to the District Court. If finalised in the Local Court, the maximum penalty is 2 years imprisonment. In the District Court, higher penalties apply and the accused has the right to a jury trial. The decision as to forum is an important one and should be made with legal advice.

What Must the Prosecution Prove?

To secure a finding of guilt, the prosecution must prove beyond reasonable doubt that the accused caused a wound; that the injury involved a break to both layers of the skin; and that at the time of the conduct, the accused foresaw the possibility of causing actual bodily harm. If the offence is alleged to have been committed in company, the prosecution must also prove that at least one other person present shared a common purpose. If any of these elements cannot be established, the charge must be dismissed.

Defences

Self-Defence. Under section 418 of the Crimes Act, a person is not criminally responsible if they believed their conduct was necessary to defend themselves or another person, and their response was reasonable in the circumstances as they perceived them.

Disputing the Wound. If the injury does not meet the legal definition — because only the outer layer of skin was broken or the medical evidence is equivocal — the charge cannot be made out.

Disputing Recklessness. The prosecution must prove that the accused actually foresaw the possibility of harm. Where the circumstances are unclear or the conduct was ambiguous, this element may be open to challenge.

Intoxication is not a defence in itself, but may be relevant to the question of what the accused foresaw at the time.

Sentencing

A custodial sentence is a real possibility, particularly where a weapon was used, the violence was significant, or the victim was vulnerable. In less serious cases, alternatives to full-time imprisonment are available, including intensive correction orders, community correction orders and conditional release orders. In some circumstances, the court may deal with the matter without recording a conviction. In determining sentence, the court will consider the extent of the injury, the level of violence, whether the offence was committed in company, the offender’s criminal history, and whether there is evidence of remorse or rehabilitation. An early guilty plea will usually result in a reduction in sentence.

The seriousness of this offence is reflected in the maximum penalties that apply. In my experience, I have represented clients from all walks of life charged with offences of this nature, ranging from those with extensive criminal histories to individuals with no prior criminal record.

If you have been charged with the offence of reckless wounding, it is important to receive tailored legal advice by an experienced criminal lawyer.

— Jelena, Lamont Law