Charged with reckless wounding or reckless GBH in NSW.

The legislative source.

The section was rewritten in 2007 by the Crimes Amendment Act 2007 (NSW) and amended again in 2012. The four offences are graduated by two variables: the type of injury (GBH or wounding) and whether the offence was committed in company. The Crown must prove the relevant injury and, on top of that, recklessness as to causing actual bodily harm. The recklessness threshold is the lower one of foresight of the possibility of harm, not foresight of the actual injury caused.

A wound is the breaking of both layers of the skin (epidermis and dermis). The mere bruising or breaking of the surface skin is not enough. GBH is defined in s 4 of the Crimes Act and includes any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease. The factual category of injury frequently determines which subsection is in play and so the maximum that applies.

The in-company element requires the physical presence of one or more other persons and a shared purpose. It is not enough that others were nearby; the Crown must prove that the accused and the others were acting together in some sense.

Penalties and likely outcomes.

The basic offence (s 35(4), 7 years).

For a first-offence basic-tier matter with a strong subjective case, an ICO of 12 to 24 months is realistic. CCOs are reached only where the conduct is at the lower end and the subjective case is unusually strong. Section 10 outcomes are rare; the wounding itself is sufficient seriousness to attract a recorded conviction in almost every case.

The intermediate offences (s 35(2) and s 35(3), 10 years).

Once GBH or in-company conduct is established, full-time custody is the realistic starting point unless the conduct is at the lower end and the subjective case is strong. ICOs of 18 to 30 months are achievable on plea with careful mitigation.

The aggravated offence (s 35(1), 14 years).

Reckless GBH committed in company is the most serious form. Full-time custody for a substantial period is the realistic outcome. The matter sits high in the assault hierarchy.

Defences and arguments worth running.

The injury element.

The Crown must prove the relevant injury beyond reasonable doubt. For wounding, the injury must penetrate both layers of the skin; for GBH, the injury must meet the s 4 threshold. Medical evidence is tested closely. Where the medical evidence does not establish wounding or GBH on the orthodox definition, an alternative verdict to common assault or AOABH is the more likely outcome.

Recklessness.

The Crown must prove the accused foresaw the possibility of actual bodily harm and proceeded with that conduct. Where the conduct was inadvertent or accidental, the recklessness element is not made out.

Self-defence under s 418.

Where the accused believed the conduct was necessary to defend himself or herself or another person, and the conduct was a reasonable response in the circumstances as the accused perceived them, the defence is engaged. The s 418 framework runs in s 35 matters as it does in any other assault matter.

The in-company element.

For s 35(1) and s 35(3), the Crown must prove the in-company element. Mere presence is insufficient. Where the accused was acting alone and the others nearby were not acting in concert, the in-company aggravation is contestable.

Identification and continuity.

Where the incident was crowded or the medical examination occurred long after the alleged conduct, identification and continuity of injury become live issues.

What we do for clients facing this charge.

The first step is the brief. Medical records, BWC footage, CCTV, hospital triage notes and the statements of any independent witnesses are all sought without delay. The factual category of injury and the in-company element are the two questions on which the matter most often turns; the brief is read with those questions front of mind.

Where the medical evidence does not support wounding or GBH on the orthodox definition, the matter is run with a view to reduction to common assault or AOABH. Where the s 35 charge is sound on the facts, the strategy turns to subjective material: psychological context, antecedents, restorative work and a careful plea narrative.

For matters that proceed to defended hearing or trial, the brief is run hard on the medical evidence, on the recklessness element, on the in-company aggravation, and (where it arises) on s 418 self-defence.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with reckless wounding or reckless grievous bodily harm in the first hour.

What evidence police usually rely on.

The complainant's statement, body-worn video from attending officers, photographs of any injuries, treating-doctor records, and any witnesses present at the scene. CCTV from the location is often subpoenaed.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• A list of every person present, in the order you say events occurred; any photographs you took of marks, surroundings, or injuries to you.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Sending an apology to the complainant. Even a well-intentioned message becomes prosecution evidence.

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. An early plea makes sense where consent is not in issue, the injury is at the low end, and the realistic best outcome on the facts is a section 10 or a non-conviction CRO. Otherwise the brief is read first.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · reckless wounding / reckless GBH matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Frequently asked.