Obiter

R v Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136 

In this matter R v Lovell; Ex parte Attorney-General (Qld),¹ the Court of Appeal considered whether disfigurement subsequently medically repaired is capable of amounting to ‘serious disfigurement’ under the definition of grievous bodily harm in s 1 of the Criminal Code Act 1899 (Qld) (‘Criminal Code‘).²

COURT: Queensland Court of Appeal (Holmes, Gotterson and Philippides JJA).

PROCEDURAL HISTORY: The Attorney-General referred a point of law to the Queensland Court of Appeal.³ Lovell was charged with doing grievous bodily harm pursuant to s 320 of the Criminal Code.⁴ In the District Court, the trial judge ruled that in order to constitute grievous bodily harm, it was necessary that the Crown demonstrate that the complainant was presently seriously disfigured at the time of trial.⁵ The Crown entered a nolle prosequi and the jury was discharged.⁶

FACTS:

The Crown’s case presented Lovell had in some way pushed the complainant from his bicycle, causing a facial fracture to the complainant’s face.⁷ Without treatment the complainant would be left severely disfigured with a facial depression, so his face was surgically re-aligned and fixed with plates and screws, averting the disfigurement.⁸ Lovell was subsequently charged with doing GBH to the complainant.⁹

ISSUE:

Whether a disfigurement which is remedied by medical treatment is capable of amounting to a ‘serious disfigurement’ within the meaning of ‘grievous bodily harm’ in s 1 of the Criminal Code?¹⁰

RELEVANT LAW:

Criminal Code Act 1899 (Qld) — GBH

The offence of causing grievous bodily harm is among the most serious non-fatal offences against a person.¹¹ Section 320 of the Criminal Code makes GBH a crime: ‘[a]ny person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.’¹²

Section 1 of the Criminal Code defines grievous bodily harm as meaning:

(a) the loss of a distinct part or an organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available.¹³

COURT’S REASONING:

Holmes JA rejected the primary judge’s interpretation of the qualifying clause “whether or not treatment is or could have been available” in the definition of grievous bodily harm under s 1.¹⁴ The trial judge had confined the application of the clause to subsection (c) only.¹⁵

Holmes JA reasoned that the clause qualifies all three limbs of the definition, and therefore applies to serious disfigurement, even if the injury is later remedied by medical treatment.¹⁶ Holmes JA stated at [16] that:

Each of the subsections of the definition should be read as qualified by the clause “whether or not treatment is or could have been available”, so that an injury can amount to “serious disfigurement” constituting grievous bodily harm whether or not it is, or is capable of being, medically repaired.¹⁷

The primary judge expressed concern that temporary injuries might be captured as “fleeting disfigurement”. Holmes JA acknowledged this concern but rejected it, citing a black eye as an example, noting that ‘[a] disfigurement which can be expected to resolve naturally and quickly is unlikely to be regarded as “serious”.’¹⁸

Second, the primary judge considered that ‘a temporarily disfiguring injury could not amount to serious disfigurement, so that it was not sufficient to have regard to the immediate aftermath of the injury.’¹⁹ Holmes JA disagreed, as the nature of the injury at the time it was inflicted is what matters, not its condition after treatment, reaffirming R v Lobston [1983] 2 Qd R 720 (‘Lobston‘),²⁰ where the “bodily injury” was a broken neck of a femur, which was treated successfully.²¹ In Lobston,²²Douglas J held:

… [W]hat was to be considered in deciding whether grievous bodily harm was caused was the nature of the injury at the time the harm was done, not the surrounding circumstances and availability of medical assistance.²³

Holmes JA considered the authority of R v Hanrahan [1999] QDC 277 (‘Hanrahan‘),²⁴ where McGill DCJ refused an application, holding that permanence is not required for serious disfigurement.²⁵ In Hanrahan, the absence of the word ‘permanent’ in subsections (a) and (b) was a compelling reason to conclude that the legislature did not intend to require permanence, to be a requisite for ‘serious disfigurement’.²⁶

Holmes JA said at [15] that ‘it is possible and practicable to read each subsection as qualified by the clause “whether or not treatment is or could have been available”‘.²⁷ Her Honour cited R v Tranby [1992] 1 Qd R 432 (‘Tranby‘)²⁸ (a severed earlobe), and observed:²⁹

The language is not elegant, but it makes sense. In the case of subsection (a), the loss of, for example, a finger, for which treatment is or could have been available by way of re-attachment would nonetheless be grievous bodily harm. Similarly, treatment may be available to remedy serious disfigurement, as it was here; and, indeed, plastic surgery might have done a good deal to improve the appearance of the earlobe partly lost in Tranby. The prospect or reality of repair can be accommodated by the application of the closing clause of the section. It would, on the other hand, be a perverse result if a conviction for injuries of such seriousness could result only if the damage remained unrepaired.³⁰

DECISION:

The Court of Appeal unanimously held that a disfigurement which is remedied by medical treatment is capable of amounting to a serious disfigurement within the meaning of grievous bodily harm in s 1 of the Criminal Code (Gotterson and Philippides JJA agreeing with Holmes JA).³¹

The qualifying phrase “whether or not treatment is or could have been available” in the definition of grievous bodily harm applies to all three limbs, including ‘serious disfigurement’.³²

It is not the condition after treatment and intervention but at the time the injury was inflicted, the Court following R v Lobston [1983] 2 Qd R 720.³³ The Court considered R v Hanrahan [1999] QDC 277, where the definition of grievous bodily harm does not require the serious disfigurement to be ‘permanent’.³⁴

LEGAL IMPLICATIONS:

Clarification of Grievous Bodily Harm (GBH):

• A disfigurement, even if remedied by medical treatment, is capable of amounting to a ‘serious disfigurement’ under the meaning of GBH.³⁵
• Such disfigurement need not be permanent. Injuries that are severe at the time of infliction, such as facial fractures or deep lacerations, can satisfy the legal threshold for GBH, regardless of later surgical repair.
• The Criminal Code recognises that GBH may encompass temporary and treatable injuries, not solely those that are life-threatening, prolonged, or permanent.

Application of Definition:

• The phrase “whether or not treatment is or could have been available” applies to all three limbs of the definition of GBH in s 1 of the Criminal Code, not just to life-threatening injuries.³⁶
• This prevents inconsistent interpretations and ensures uniform application across cases by focusing on the nature of the injury itself, rather than the treatment.
• Broadens the scope of serious injuries under the definition of GBH.

Focus on Injury at Time of Infliction:

• Courts must assess the nature and seriousness of the injury at the time it was inflicted, not its condition at trial or following medical treatment.³⁷
• This shifts the evidentiary focus to medical reports, photographs, and witness testimony from the time of the incident.

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FOOTNOTES:

1. R v Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136 (Court of Appeal) (‘Lovell‘). ↩︎
2. ‘Practice Decision – S 1 Criminal Code – Whether Definition of “Grievous Bodily Harm” Only Encompasses Permanent Disfigurement’, Queensland Law Reporter (Supreme Court of Queensland Library, Report No 30, 7 August 2015) 7. ↩︎
3. Criminal Code Act 1899 (Qld) s 669A(2) (‘Criminal Code’). Section 669A(4) of the Criminal Code requires the Court to hear argument on the reference, after which it must consider the point referred and give the Attorney-General its opinion, quoting Lovell (n 1) [8] (Holmes JA). ↩︎
4. Criminal Code (n 3) s 320; Lovell (n 1) [3]. ↩︎
5. Lovell (n 1) [4]. ↩︎
6. Ibid [5]. ↩︎
7. Ibid [2]. ↩︎
8. Ibid [2]–[3]. ↩︎
9. Ibid [3]; Criminal Code (n 3) s 320. ↩︎
10. See Lovell (n 1); Criminal Code (n 3) s 1. ↩︎
11. Andreas Schloenhardt and Joseph Lelliot, Criminal Law in Queensland: Principles, Offences and Defences (Thomson Reuters, 2020) 268. ↩︎
12. Criminal Code (n 3) s 320. ↩︎
13. Ibid s 1. ↩︎
14. Lovell (n 1) [6]. ↩︎
15. Ibid [7]. ↩︎
16. Ibid [16] ↩︎
17. Ibid. ↩︎
18. Ibid [10]. ↩︎
19. Ibid [7]. ↩︎
20. R v Lobston [1983] 2 Qd R 720 (Douglas, Sheahan and Connolly JJ) (‘Lobston‘). ↩︎
21. Ibid. ↩︎
22. Ibid. ↩︎
23. Lovell (n 1) [8] (Holmes JA), quoting Lobston, 721 (Douglas J). ↩︎
24. R v Hanrahan [1999] QDC 277 (McGill DCJ) (‘Hanrahan‘). ↩︎
25. Lovell (n 1) [9]. ↩︎
26. Ibid [10]. ↩︎
27. Ibid [15]. ↩︎
28. R v Tranby [1992] 1 Qd R 432 (Macrossan CJ, Derrington and de Jersey JJ). ↩︎
29. Ibid. ↩︎
30. Lovell (n 1) [15]. ↩︎
31. Ibid [18]–[19]. ↩︎
32. Ibid [17]. ↩︎
33. Hanrahan (n 24). ↩︎
34. Ibid. ↩︎
35. Supreme Court of Queensland, Queensland Courts Benchbook: Grievous Bodily Harm (Supreme Court of Queensland, 2023). ↩︎
36. Criminal Code (n 3) s 1. ↩︎
37. Ibid (n 36). ↩︎