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1. This was a judge-alone trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT). Ms Rebecca Krutsky (the accused) signed an election to be tried by judge alone.

2. The accused was arraigned on 20 November 2023 and pleaded not guilty to the offence of intentionally inflicting grievous bodily harm, contrary to s 19 of the Crimes Act 1900 (ACT) (Crimes Act).

3. I pronounced the verdicts in this matter on 24 November 2023 and indicated that reasons were reserved. The reasons now follow.

Directions

4. Section 68C(2) of the Supreme Court Act 1933 (ACT) requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by a Territory law to be given to a jury in proceedings, or a comment to be made, the Court in a judge-alone trial must take the warning, direction or comment into account when considering its verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52].

5. I adopt the following directions, set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (Mulcahy), in relation to my role in the present case. The directions have been adopted by Refshauge J in R v DM [2010] ACTSC 137 and Mossop J in R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 at [6]-[18] and R v Droudis (No 14) [2016] NSWSC 1550 (Droudis). The relevant directions are as follows.

Onus and standard of proof

6. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.

7. The prosecution bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The prosecution has asserted that the accused has committed a criminal offence, therefore, the prosecution must prove that the accused committed that offence. The accused does not have to prove that they did not commit that offence.

8. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of guilt.

9. The accused is presumed by law to be innocent of the offence with which the accused stands charged, unless and until the evidence which I accept satisfies me beyond reasonable doubt of guilt. If the evidence which I accept satisfies me beyond reasonable doubt of guilt, then the accused loses the presumption of innocence, and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of guilt, then the accused remains presumed to be innocent and the appropriate verdict is not guilty: see Mulcahy at [16]; Droudis at [23]; R v Sutton [2021] ACTSC 37 at [10].

Judge of facts and law

10. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.

General directions on witnesses

11. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.

12. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom in assessing the evidence given by the witnesses: see Mulcahy at [20]-[21].

13. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance. Accused as a witness

14. There was no evidence given or called by the accused. The fact the accused did not give any evidence cannot be used against the accused or to make up any deficiencies in the prosecution case. As I have said before, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt if it can: see DPP v Guarini (No 2) [2023] ACTSC 269.

Elements of the offence

15. The offence of intentionally inflicting grievous bodily harm is contained under s 19 of the Crimes Act.

16. Section 19 relevantly provides as follows: 19 Intentionally inflicting grievous bodily harm (1) A person who intentionally inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 20 years. (2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 25 years. Note Section 48A (Aggravated offences—pt 2 offences against pregnant women) and s 48C (Aggravated offences—pt 2 offences involving family violence) make provision in relation to an aggravated offence against this section.

17. The Dictionary of the Crimes Act defines grievous bodily harm as follows: grievous bodily harm to a person includes— (a) any permanent or serious disfiguring of the person; and (b) for a pregnant woman—loss of or serious harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).

18. In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.

19. The elements of the offence of intentionally inflicting grievous bodily harm are as follows: (a) the accused engaged in conduct; (b) the accused intended to engage in conduct; (c) the conduct resulted in grievous bodily harm being inflicted on another person; and (d) the accused intended to inflict grievous bodily harm on the person.

20. The prosecution indicated at the beginning of the trial that it relied on two statutory alternatives, namely: (a) Recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act; and (b) Inflicting actual bodily harm contrary to s 23 of the Crimes Act.

21. Section 20 of the Crimes Act states: 20 Recklessly inflicting grievous bodily harm (1) A person who recklessly inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 13 years. (2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 15 years. Note Section 48A (Aggravated offences—pt 2 offences against pregnant women) and s 48C (Aggravated offences—pt 2 offences involving family violence) make provision in relation to an aggravated offence against this section.

22. The elements of recklessly inflicting grievous bodily harm are as follows: (a) the accused engaged in conduct; (b) the accused intended to engage in conduct; (c) the conduct resulted in grievous bodily harm being inflicted on another person; and (d) the accused was reckless as to inflicting grievous bodily harm on the person.

23. Section 23 of the Crimes Act states: 23 Inflicting actual bodily harm (1) A person who intentionally or recklessly inflicts actual bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years. (2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 7 years. Note Section 48A (Aggravated offences—pt 2 offences against pregnant women) and s 48C (Aggravated offences—pt 2 offences involving family violence) make provision in relation to an aggravated offence against this section.

24. The elements of inflicting actual bodily harm are as follows: (a) the accused engaged in conduct; (b) the accused intended to engage in conduct; (c) the conduct resulted in actual bodily harm being inflicted on another person; and (d) the accused intended or was reckless as to inflicting actual bodily harm on the other person. The prosecution case

25. On 6 November 2022, the complainant attended the Alexander Maconochie Centre (AMC) as a volunteer to facilitate a Narcotics Anonymous meeting. This meeting was co-facilitated by another volunteer (‘the co-facilitator’). This was the complainant’s third time attending the AMC as a volunteer.

26. At around 2pm that afternoon the meeting commenced in the Programs room, which is contained in the female unit of the AMC. There were several detainees present. The meeting commenced with the complainant reading aloud from a pamphlet.

27. Approximately 10 minutes after the meeting commenced, the accused walked into the Programs room where the complainant was speaking. She was carrying two cups of black tea, one in each hand. The accused and the complainant were known to each other, having met while they were both detained at the AMC between 2017 and 2018. The prosecution alleged the cups contained boiling water that was “at a maximum boiling hot and at a minimum scalding hot”. It was the prosecution case that the accused filled the cups with tea in the kitchen area of the “WS1”, which is approximately a 100-metre walk from the Programs room, in another building.

28. The accused then walked towards the complainant holding the two cups of tea. The complainant believed she was approaching her to give her a hug. The accused, standing approximately 20 centimetres from the complainant, then poured the two cups of tea over the complainant’s upper chest and back area. The complainant felt instant, intense pain and removed the jumper she was wearing. The complainant then said to the accused, “what the fuck?” and the accused replied, “you know” or “you know what that’s for”.

29. The complainant then went to the bathroom with the intention of putting cold water on the effected area. At this point, she noticed that her skin had started to peel.

30. Shortly after this, and after hearing the screams of the complainant, two Corrections Officers, Officer Sanotti and Officer Schneider, saw the complainant clutching her chest and being escorted away from the Programs room. As the Corrections Officers approached the Programs room, they heard other detainees shouting, “she jugged her, she jugged her, it was Krutsky”.

31. The two Corrections Officers then approach the accused, who was walking between the Programs room and WS1. The accused was seen holding two cups that were folded into each other. Officer Schneider asked the accused, “who did it?” and “did you throw boiling water over that person?”. The accused responded yes and said, “it wasn’t boiling water, it was just two cuppas”. Later, the accused told Officer Norris that “she knows what she did” and explained that it was “over $100,000 in the community” and that it was 150 percent worth it.

32. The complainant was then taken to the Emergency Department at Canberra Hospital by the co-facilitator. She had a cold shower for approximately 15 minutes and was then treated for her injuries and given pain relief. The complainant had blisters over her neck, back, chest and underneath her breasts. Photos of the injuries were taken at the hospital and were tendered by the prosecution.

33. Since the incident, the complainant has attended the hospital several times to have the dressings on her injuries changed. She continues to experience “stinging” and sensitivity in those areas.

The defence case

34. At the commencement of the trial, counsel for the accused identified that there were two primary issues. The two issues were, firstly, whether or not the conduct amounted to grievous bodily harm; and secondly, the question of intention.

35. Counsel conceded in written submissions that there was no issue that the accused engaged in the relevant conduct on the complainant or that the complainant suffered actual bodily harm.

Evidence

Evidence of the complainant

36. The complainant gave evidence at the trial. The complainant’s Record of Police Interview was played in court, and she indicated that she agreed with the answers she gave to police. Overall, I found the complainant to be an impressive witness doing her best to tell the truth.

37. The complainant was shown photos of her injuries taken at Canberra Hospital on 6 November 2022. She confirmed the blistering seen in the photos were a result of the incident that occurred earlier that day. The images depicted the complainant’s injuries on her back, chest, neck and breast areas.

38. The complainant was then shown a second bundle of images which was tendered in evidence. These were images taken by the complainant herself in September 2023. The images showed an “area of discolouration”, “depigmented skin” and “scar tissue” on the complainant’s back, chest, neck and breast areas. When asked about how her injuries felt as of the day she gave evidence, the complainant described the scarring on the top of her right breast as “quite sensitive” and prone to “stinging” and irritation when she is wearing a tight shirt. She also said that it is a “bit extra sensitive”.

39. When asked about the other injuries depicted in the photographs, she said that she does not feel much pain from them anymore but that she has to be “careful being in the sun because they easily get burnt”.

40. During cross examination, she denied owing the accused money. She also denied delivering drugs to prisoners whilst she was facilitating the Narcotics Anonymous meeting.

41. The complainant described the accused as irrational and said that the last time she saw the accused before the incident on 6 November 2022, she seemed “quite inebriated with drugs” and said she was “very chaotic”.

42. As I stated at the outset, I formed the view that the complainant was an impressive and truthful witness.

Medical report

43. The prosecution tendered a report of Dr Amanda Barry dated 12 January 2023. The report was completed on the basis of Dr Barry’s treatment of the complainant on 6 November 2022 and her contemporaneous notes made during her examination of the complainant.

44. The report notes the complainant attended Canberra Hospital and was triaged as a Category 2 patient – Category 2 being for patients that have medical conditions that are imminently life threatening. Her injuries included: (a) Superficial partial thickness burns to 3-4 percent TBSA (Total Body Surface Area) to chest and posterior neck; and (b) Scarring of the posterior neck, back, chest and bilateral breasts: (i) Risk of hypertrophic scar development of the breast injuries was document, and a compression garment was ordered to mitigate this complication.

45. The report then noted the following: [The complainant] sustained burn injuries to approximately 4% of her body. The burn injuries were a mixture of superficial dermal and deep mid dermal burns. The burns located on the inferior (lower) aspect of both breasts were deep mid dermal burns and the remainder of the burns were superficial dermal in nature. The injury depth has been surmised from the forensic clinical examination and from the multiple outpatient appointments noting the protracted healing time of the inferior breast burns injuries.

46. The report also noted that the complainant’s burn injuries are “likely to result in a colour match defect in which a visible difference in colour is seen between the burnt areas of skin (even after healing) compared to areas of unaffected skin”. The report also stated that “the deeper dermal burns sustained on both breasts will possibly result in scar tissue formation and specialist garments were required to mitigate the risk of this complication”. The report also noted that erythema (a term used when skin or mucous membranes become reddened) was evident on the complainant’s burns to her neck, chest, breasts and back. th

47. Reference was made in the report to the NSW Burns Transfer Guidelines 4 Edition, which describes various burns classifications on a scale; epidermal burn being the most minor (1) to full thickness burn being the most major (5). It provides the following: … (2) Superficial dermal burn (i) Damage to upper layer of dermis. (ii) Pink; blisters present or absent. (iii) Brisk capillary refill (under blister). (iv) Should heal within 7-10 days with minimal dressing requirements. (v) Usually heals without any residual scarring. There is a risk of colour match defect. Low risk of hypertrophic scarring. (3) Mid dermal burn (i) Damage into mid dermis. (ii) Dark pink. (iii) Sluggish capillary refill. (iv) Should heal within 14 days. (v) Deeper areas may need surgical intervention and referral. (vi) A deeper mid dermal burn can extend into the deeper substructures including sweat glands and hair follicles. (4) Deep dermal burn (i) Burn extends into deeper layers of dermis, but not through entire dermis. (ii) Blotchy red/white. (iii) Sluggish to absent capillary refill. (iv) Generally needs surgical intervention. (v) Referral to specialist unit. (vi) Scar tissue formation will occur. (vii) High risk of hypertrophic scar formation. …

48. The report noted that the complainant had attended ongoing appointments with nursing care and burns treatment from late November 2022 to early January 2023, totalling 10 appointments.

49. The complainant also met with the plastic surgery registrar twice in November 2022 for review.

50. In conclusion, the report expressed the following opinions: … [The complainant] sustained a mixture of superficial dermal and deep mid dermal burns to approximately 4 % of her body. a. [The complainant’s] burns injuries are likely result in a colour match defect of her chest, breast, neck and back resulting in an obvious and permanent abnormality. b. In addition, the deeper dermal burns sustained to both breasts will possibly result in scar tissue formation and specialist garments were required to minimise the risk of this complication. c. Ongoing twice weekly outpatient specialist wound care was required at the time of th the last documented clinical consultation on the 6 of January 2023. … [The complainant] may have additionally long-lasting and permanent sequelae from her injuries including: a. Chronic pain b. Psychological sequelae secondary to experiencing a traumatic event.

51. During examination in chief, Dr Barry was shown a series of images taken by the complainant of her injuries in September 2023. These were photographs that the doctor had not seen before. Dr Barry identified areas of discolouration and scar tissue which were present in the complainant’s photos of her injuries. When taken to a photo of the complainant’s right breast, Dr Barry said that “there is obvious scarring there, approximately … 9-10 months after. It may be a little bit raised and a bit pinker. So it looks like long term scar tissue to me, indicating it’s a deeper burn”. In respect of an image showing the complainant’s lower inside area of her right breast, Dr Barry said “in the centre of that photo is quite an irregular shaped area of discolouration. The darker discolouration is in the centre”. She confirmed that this would be characterised as scar tissue.

52. During cross examination, Dr Barry was asked whether she was a burns specialist. Dr Barry said she was not. Dr Barry said she could not be sure as to how the injuries would look in 10 years’ time. When asked about the complainant’s injuries, Dr Barry confirmed that the complainant had not had any surgical procedures and there had been no infections of the complainant’s injuries.

CCTV footage

53. The prosecution tendered two short segments of CCTV Footage. One video showed the complainant carrying the two cups of tea into the Programs room and, approximately nine seconds later, walking back out with two empty cups. The other video depicted the accused in handcuffs being escorted down a hallway after the incident.

Other evidence

Evidence of the co-facilitator of the Narcotics Anonymous meeting

54. The co-facilitator of the Narcotics Anonymous meeting gave evidence at the trial. She said this was her first time attending the AMC as a volunteer for Narcotics Anonymous. She said there was approximately eight people who attended the meeting, including her and the complainant.

55. The co-facilitator said the meeting started with the complainant reading out from a pamphlet. She said she then saw the accused enter the room holding two white polystyrene cups, one in each hand. Both the co-facilitator and the complainant were seated at this time. The co-facilitator then said she saw the accused pour the two cups of tea onto the complainant. She heard the complainant yell “what the fuck?” or “what the fuck is going on, why did you do that?”. The accused then responded by saying “you know” and walked out of the room.

56. The co-facilitator then said the complainant went to the bathroom to get cold water. She said it was obvious that the complainant was in extreme pain. The co-facilitator said to the complainant that she would take her to the hospital, however the Corrections Officer said the complainant should go to their medical clinic instead. The complainant was given an ice pack by the staff, but it did not assist the pain. At this point in time, the co-facilitator noticed the complainant’s skin starting to blister. They then left to go to Canberra Hospital. She said on the way to the hospital, the complainant was “incredibly distressed”.

Evidence of Corrections Officer Schneider

57. Corrections Officer Schneider gave evidence at the trial. At the time of the incident, she was an Acting Correctional Officer 2.

58. Officer Schneider gave evidence that on the day of the incident, she had escorted the complainant and the co-facilitator to the Programs room. Sometime later, she had heard screaming coming from the Programs room. She noticed a lady who was waving and appeared to have wet clothing. That lady was wearing a black t-shirt and Officer Schneider had assumed it was a detainee as detainees sometimes wear black clothing.

59. As Officer Schneider approached the Programs room, she heard other detainees yelling “Krutsky jugged her, Krutsky jugged her”, and screaming “Krutsky did it, Krutsky did it”. The officer saw the accused walking towards the WS1 building and stopped her. The officer asked the accused if she had thrown boiling water over the complainant and accused said she had but that “it was not boiling water, it was just a couple of cuppas”. Officer Schneider gave evidence that the accused said it very calmly.

Evidence of Corrections Officer Norris

60. Corrections Officer Norris gave evidence at the trial. On the day of the incident, Officer Norris was in charge of the security unit at the AMC.

61. At the time of the incident, Officer Norris said she saw Officer Schneider standing with the accused in between WS1 and the Programs room. Officer Norris approached them and asked what had happened. Officer Schneider said that the accused had thrown hot water on a civilian staff member. Officer Norris then placed handcuffs on the accused. Officer Norris then escorted the accused into the Admissions area of the AMC. The accused said to Officer Norrish she “knew what she did” and the complainant “knew what she did”. The accused said that it was “150 percent worth it”. The accused also told the officer that the incident was over $100,000 in the community.

62. Once back into the Management unit, the accused then told the officer that the accused was under the impression that the complainant was to be bringing a “drop” in for the females in the Women’s area. The officer understood a “drop” to mean contraband, which would usually include something like drugs or a phone.

Evidence of Corrections Officer Sanotti

63. Corrections Officer Sanotti gave evidence that at around 2:00pm on 6 November 2022 she escorted the complainant and the co-facilitator to the Programs room. After that, she returned to the officers’ station where one of the officers did a public announcement that the Narcotics Anonymous meeting was starting.

64. Approximately two minutes later, she said she heard a loud scream. A detainee had run out of the Programs room to the officers’ station and alerted the officers. The officers then left the room and approached the Programs room. As they approached the Programs room, she saw one of the program facilitators walking out, clutching her chest and hair region. As she further approached the Programs room, she heard the other detainees shouting, “It was Krutsky”. Officer Sanotti and Officer Schneider then left the Programs room and saw the accused walking towards the WS1 building. The accused was holding two empty cups. They approached her and Officer Schneider asked the accused “did you do it”. The accused answers yes and said words to the effect of “it was just two cuppas” or “cups of tea”.

65. During cross examination, Officer Sanotti was asked about her incident report that she prepared on 6 November 2023 following the incident. In the officer’s report, she said the following: CO 2 Schneider then asked, ‘You poured boiling water on her?’. Detainee Krutsky replied with the words to the effect of, ‘It wasn’t boiling water. It was just cuppas’.

66. When asked whether it was more likely that the accused said “it wasn’t boiling water. It was just cuppas” as opposed to “it was just two cuppas”, the officer said she did not know the exact words and that was how she wrote her report.

Evidence of Constable Faulds

67. Constable Faulds gave evidence at the trial. He was the informant in this case.

68. Constable Faulds was an officer attached to the Woden Police Station at the time of the incident. Constable Faulds attended Canberra Hospital to see the complainant while she was being treated. The complainant confirmed to the officer that she had boiling water thrown on her and that it was the accused who had thrown the water.

69. Constable Faulds then attended the AMC to obtain incident reports which had been written by the Corrections Officers. He also obtained the CCTV footage which I have alluded to earlier in these reasons.

Consideration

70. As referred to earlier, the issues were refined at the outset to the following: (a) Do the injuries sustained by the complainant amount to grievous bodily harm? and (b) What was the accused’s intention?

71. In the event I were to find the injuries did not amount to grievous bodily harm, I would then have to consider whether the injuries constituted actual bodily harm.

72. I note that neither the credibility nor reliability of any of the witnesses was in issue. Were the injuries grievous bodily harm?

73. For the reasons given below I have formed the view that the prosecution has not proven beyond reasonable doubt that the injuries constitute grievous bodily harm.

74. Grievous bodily harm is really serious bodily harm which may not be life-threatening or permanent: see R v Freeman-Quay (No 1) [2015] ACTSC 262 at [64] and R v Byrne [2013] ACTSC 246 (Byrne) at [28].

75. Relevantly in Swan v The Queen [2016] NSWCCA 79 (Swan), Garling J (Hulme and Wilson JJ agreeing) stated at [71]: To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase “grievous bodily harm”: (a) It is to be interpreted according to its natural and ordinary meaning; (b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury; (c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree; (d) not every injury is capable of amounting to grievous bodily harm; (e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury. (emphasis added)

76. Thus, it is important to distinguish between “serious” bodily injury and “really serious” bodily injury. It is not a bright line distinction. It remains a question of fact and degree in every case.

77. In this case, in my view, “serious” bodily harm has been established beyond reasonable doubt but not “really serious” bodily harm in accordance with the authorities.

78. The prosecution submitted that the following facts establish that the complainant’s injuries constituted grievous bodily harm. They are: (a) The complainant was triaged at Canberra Hospital as a Category 2 patient (being a patient that has medical conditions that are imminently life threatening); (b) The photos taken by the complainant 9-10 months after the injuries had occurred showed scarring. The evidence of Dr Barry was that it would be unlikely there would be further healing; (c) The evidence of Dr Barry that the injuries would likely result in a discolouration of the complainant’s chest, breast, neck and back resulting in obvious and permanent abnormality; (d) The evidence of the complainant that she feels “stinging” sensations when wearing tight clothing and that the scar on her right breast is “a bit extra sensitive”; and (e) The photos of the injuries taken at Canberra Hospital which show significant blistering and burn of the skin.

79. I note that in my view these are matters that established serious harm but not necessarily really serious bodily harm beyond reasonable doubt.

80. I further note that Swan emphasised that it was the physical consequences for the victim that defined grievous bodily harm, not subjective consequences for the victim. In other words, the same injury should not constitute grievous bodily harm in one person and not in another. In Swan, Garling J stated the following at [70]: … [I]n determining whether an injury constitutes grievous bodily harm, within that expression’s ordinary and natural meaning, such individual or subjective characteristics and features must be ignored. It is not, and should not be, open to regard the same injury with the same physical consequences as amounting to actual bodily harm in one victim, and grievous bodily harm in another. This is particularly so in circumstances where the offender may not know of the individual features of the victim which give rise to the particular subjective consequences. (emphasis added)

81. Counsel for the accused submitted that, in respect of disfigurement, regard should be had as to the location of the disfigurement in considering whether grievous bodily harm had been proved. Counsel referred to the case of ST v The Queen [2022] NSWCCA 169 (ST). In that case, the Court concluded the dislodgment of one front tooth amounted to grievous bodily harm. The Court in ST said at [69]: In Haoui, the majority (Johnson J, with whom McCallum J, as her Honour then was, agreed; Beazley JA, as Her Excellency then was, dissenting on this issue) found that it was open to the jury to be satisfied beyond reasonable doubt that a fracture of the cheekbone which required surgery was “grievous bodily harm” though “very much at the low end of that scale”. In Swan, a stable fracture of a vertebra not requiring operative treatment was not. That illustrates the proposition recognised in the authorities that there is no bright-line in this regard. (emphasis added)

82. Thus, the dislodgement of a front tooth can amount to grievous bodily harm or really serious bodily injury but a fracture to a vertebra may not. Perforce, each case must be judged on its own facts.

83. Counsel for the accused submitted that the injuries in this case do not amount to grievous bodily harm. That was because of a number of factors including the following: (a) The complainant did not undergo surgery; nevertheless, the complainant attended a burns outpatient nursing clinic until at least January 2023; (b) The complainant’s burns cover 3-4 percent TBSA. The deeper level of burns, as opposed to the mid dermal burns are areas covering less than 3-4 percent TBSA. (c) There is no evidence of full thickness burns. The complainant’s burns were assessed as at 13 January 2023 to be a mixture of superficial dermal and deep mid dermal burns; (d) It is not possible to determine the size of the scars, discolouration or depigmented areas of the complainant’s injuries in the photos taken in September 2023; (e) Comparing the injuries taken at the time of injury to September 2023, the injuries have healed to a significant degree with the exception of the scar; (f) It is unclear how much further healing will occur according to the evidence of Dr Barry who is not a burns specialist; and (g) It is unclear whether the scarring and depigmenting of the skin would be permanent.

84. Obviously, not one of these factors in isolation answers the issue before me.

85. Counsel for the accused submitted the photographs of the complainant’s injuries as of September 2023 amount to serious bodily harm but are not really serious bodily harm. I have accepted that submission for the following reasons.

86. In my view the most significant factors that lead to the conclusion that the injury is serious bodily harm as opposed to really serious bodily harm are the following. First, the fact that it is not possible to determine the size of the scars, discolouration or depigmented areas of the complainant’s injuries in the photos taken in September 2023. Second, it is unclear how much further healing will occur, taking into account the evidence of Dr Barry. Third, it is unclear whether the scarring and depigmenting of the skin would be permanent.

87. I am fortified in my conclusion having regard to the following cases that have considered whether various injuries constitute grievous bodily harm.

88. In R v Cameron [2001] ACTSC 57, there was no dispute that an injury involving someone being struck in the eye with a schooner glass and then having it shatter in the victim’s eye constituted grievous bodily harm.

89. In R v Yeaman [2021] ACTSC 252, Murrell CJ concluded at [56] that four blows (by the offender’s closed fist) to the victim’s head and indirect injuries from the blows which caused the victim to fall and fracture her ankle constituted grievous bodily harm, although her Honour went on to say that the injuries were at the lower end of the range to what amounts to grievous bodily harm.

90. In Swan, a fracture of a bone which formed part of the lumbar vertebrae was found not to be grievous bodily harm.

91. In Reyne (a pseudonym) v The King [2022] NSWCCA 201, Dhanji J (with Beech-Jones CJ at CL and Yehia J agreeing) provided a useful summary of the authorities at [121]: In Swan v R, Garling J provided an overview of the approach of the courts to the expression. His Honour (at [58]) noted the genesis of the accepted meaning of “really serious injury” is to be found in the speech of Viscount Kilmuir in Director of Public Prosecutions v Smith [1961] AC 290 at 334 and was adopted in Hyam v DPP [1974] UKHL 2; [1975] AC 55. As noted in JH v R at [16], the only reason that such explication is required is because of the arcane nature of the word “grievous”. Garling J (at [57]) observed that it is necessary to explain to a jury that the injury must not just be “serious”, but “really serious”, referring to R v Perks (1986) 41 SASR 335; (1986) 20 A Crim R 201. His Honour continued (at [62]-[65]): In one sense, describing “grievous bodily harm” as “really serious bodily injury” does little to elucidate the meaning of the phrase. However, the addition of the word “really” to the phrase “serious injury” does indicate that the phrase refers to injuries which are considerably more serious than those which constitute “actual bodily harm”. In Haoui v R [2008] NSWCCA 209, Johnson J observed at [162] that there is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm, a remark with which McCallum J agreed at [168]. His Honour also approved the direction given in that case to the jury that the words “grievous bodily harm”: … do not require that the injuries are a permanent one nor that the consequences of the injury are long-lasting or life threatening, but that they do require that the injury is a really serious one. (sic) … It is clear from the authorities that in ascertaining what constitutes really serious bodily injury, questions of fact and degree are involved. In R v Overall (1993) 71 A Crim R 170, Mahoney JA (with whom Allen J agreed) considered the difference between actual bodily harm and grievous bodily harm. At 174, his Honour said: The difference between actual bodily harm and grievous bodily harm is … one of degree. Actual bodily harm if ‘really serious’ (cf DPP v Smith at 335; 291) may constitute grievous bodily harm. Each is ‘harm’ but the one is more serious than the other. (emphasis added)

92. In this case, as stated earlier, in my view “serious bodily injury” has been established beyond reasonable doubt but not “really serious bodily injury” in accordance with the authorities.

93. It is fundamental to underline that the criminal standard of proof applies. The onus and burden of proof is on the prosecution and the prosecution must prove each element beyond reasonable doubt.

94. Weighing all the evidence, I am not satisfied beyond reasonable doubt that the injuries amount to grievous bodily harm. The criminal standard is not what is likely or not likely. The requisite standard of beyond reasonable doubt has not been met in this case by evidence as to likelihood.

95. Thus, in circumstances where the prosecution has not satisfied the Court that the injures amount to grievous bodily harm beyond reasonable doubt, I must acquit the accused of both the offences of intentionally inflicting grievous bodily harm and also for the statutory alternative of recklessly inflicting grievous bodily harm.

Actual bodily harm

96. As I have not been satisfied beyond reasonable doubt the complainant’s injuries constituted grievous bodily harm, I must then consider whether the injuries constitute actual bodily harm. Although the defence has properly conceded the complainant suffered actual bodily harm, nevertheless, I must be satisfied to the requisite standard.

97. In Markou v The Queen [2012] NSWCCA 64, the definition of actual bodily harm was discussed. In that case, Macfarlan JA (with RS Hulme and RA Hulme JJ agreeing) said at [17]: The expression “actual bodily harm” is not defined in the Crimes Act. The generally accepted judicial explanation of the meaning of the expression “bodily harm” is that given in R v Donovan [1934] 2 KB 498: “… we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling” (at 509); see also for example Overall v R (1993) 71 A Crim R 170 at 178 and R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330 at 332. (emphasis added)

98. In R v Shevlin [2013] ACTSC 88, Refshauge J said at [36]: So far as the part of the offence which requires that actual bodily harm be occasioned by the assault, this involves hurt or injury which interferes with the health or comfort of the victim. See R v Miller [1954] 2 QB 282 at 292. The term “bodily harm” is to be interpreted widely and is not restricted to “harm to the skin, flesh and bones” of a victim, but includes any harm to all Mr Maloney’s organs, his nervous system or his brain: R v Morrison; Ex parte West [1998] 2 Qd R 79 at 81. It does not, however, include pain alone without an identifiable bodily injury: Scatchard v The Queen (1987) 27 A Crim R 136. See also R v Britten at [13].

99. Suffice to say, the complainant’s injuries clearly constitute actual bodily harm. The injuries are more than “merely transient and trifling” and have significantly interfered and continue to interfere with the complainant’s health and comfort.

100. Thus, I am satisfied beyond reasonable doubt that the injuries constituted actual bodily harm.

Intention

101. The intention of the accused may be evidenced through the direct evidence of the admissions of the accused, the circumstances of the conduct and the post offence conduct of the accused: see Byrne at [31].

102. The prosecution referred to the Judicial Commission of New South Wales’ Criminal Trial Bench Book (“NSW Criminal Trial Courts Bench Book”), where it is stated at [3-210]: Intent and intention are very familiar words; in this legal context they carry their ordinary meaning.

103. I also note in this context that where a specific result is the obvious and inevitable consequence of a person’s act, and where the person deliberately does that act, it may readily be concluded that the accused did that act with the intention of achieving that specific result.

104. The prosecution submitted that the accused must have known or at least had some insight into the temperature of the tea which was poured on the complainant. The prosecution submitted that the accused had filled the cups in the WS1 room which was approximately 100 metres away from the Programs room. It was submitted that when the accused entered the Programs room, the temperature of the cups must have been somewhat mimicking the temperature of the liquid contained within them.

105. The prosecution submitted that the accused’s comment that “it wasn’t boiling water, it was just two cuppas” should be inferred to mean the accused was saying the liquid in the cups was tea, rather than just boiling water. I am not persuaded of this particular submission as that is not the only inference that is available. The prosecution submitted that, much like hitting someone in the head with a hammer, the obvious and inevitable outcome of pouring scalding liquid over someone is to result in really serious injury.

106. The prosecution further submitted that the accused’s manner after the offence supports the conclusion of intention to cause serious injury. Evidence from the co-facilitator and Officer Schneider was that the accused had walked out of the room calmly.

107. On the admissions of the accused to Officer Norris, the prosecution submitted that this was evidence that, in the accused’s mind, the complainant had deserved ‘it’.

108. In respect of intention, the prosecution submitted the admissions by the accused about the $100,000 in the community and the evidence about a “drop” are not mutually exclusive. The prosecution submitted both instances could be true, and the accused was operating under the belief that the attack was a result of the money and also that the accused believed, as a result of hearing the other women in the facility talk, that the facilitators were bringing a “drop”.

109. The prosecution submitted that the accused must have known how hot the liquid was and, even in a Styrofoam cup, the cup itself would mimic the temperature of the liquid inside of it. Someone carrying the cup would therefore appreciate how hot the liquid is inside it.

110. As I have been satisfied the injuries constituted actual bodily harm, the prosecution must prove beyond reasonable doubt the accused intended to inflict actual bodily harm on the complainant. This must be assessed in respect to the accused’s state of mind. If there is no direct evidence of this, surrounding circumstances and the accused’s actions ought to be considered: see Byrne at [31].

111. In this case, the following must be considered: (a) the accused had been described as irrational before the incident of 6 November 2022; (b) the accused filled two cups of hot tea in the WS1 room and walked approximately 100 metres to another building to the Programs room; (c) it was common for detainees to have food and coffee/tea in the Programs room and consume it during the program; (d) there is no evidence the accused knew the complainant would be facilitating the program for that day; (e) the tea was ‘poured’ on the complainant’s chest rather than on her exposed skin or face; (f) there was no evidence the admissions to the Corrections Officers regarding the money and drop were true in any way; and (g) the accused appeared calm after the incident.

112. The factors listed above in combination lead me to the conclusion that the prosecution have not proved beyond reasonable doubt the requisite intention. Therefore, recklessness must now be considered.

Recklessness

113. The prosecution submitted that if the Court were not satisfied beyond reasonable doubt of the accused’s intention, then the Court would be satisfied the accused was reckless. I am satisfied of recklessness.

114. The prosecution referred to R v Daniel [2021] ACTSC 64, where I considered the test for recklessness in Blackwell v The Queen [2011] NSWCCA 93 and Byrne, along with the NSW Criminal Trial Courts Bench Book.

115. The prosecution submitted that pouring scalding hot liquid on the complainant leads to the inescapable conclusion that the accused must have foreseen the possibility of serious injury.

116. Counsel for the accused submitted that the prosecution had failed to prove beyond reasonable doubt that the accused intended to inflict grievous bodily harm or actual bodily harm, or that the accused was reckless in respect of inflicting grievous bodily harm or actual bodily harm.

117. Ultimately, counsel for the accused submitted that the Court could not discount the reasonable possibility the accused made a split-second and irrational decision to pour hot tea on the complainant as there was no cogent evidence of premeditation. Counsel said the following facts support this submission: (a) it was normal for detainees to bring food and coffee/tea into the Programs room to consume; (b) it is not unusual that the accused brought two cups of tea given there was no kettle in the kitchenette in the Programs room; (c) there was no evidence the accused knew the complainant would be running the program. The complainant’s name was not broadcasted over the PA system; (d) neither the complainant or the co-facilitator noticed anything about the accused indicative of malice until she poured the liquid over the complainant; (e) the accused’s remark “you know what you did” is directly contradicted by the evidence of the complainant who said that she could not think of anything she had done to the accused and who considered the accused to be her friend; (f) the accused’s statements to Officer Norrish about the money and the “drop” are untrue; (g) the phrase “it was 150 percent worth it” sheds little light on the issue because the officer could not remember the tone with which it was said; (h) the accused poured the tea onto the complainant’s chest area which was covered by clothing rather than aiming the liquid at exposed skin such as her face; and (i) the accused did not increase the severity of the burns by adding honey or jam which is a common method to increase the seriousness of a burn.

118. Counsel also relied on the evidence of Officer Schneider and the complainant about the accused’s behaviour. It was said that the accused was irrational from time to time prior to the incident, had been misbehaving and was described as “volatile”, “bat-shit crazy” and “not of sound mind”. It was emphasised that this did not amount to a mental illness defence.

119. Counsel for the accused also submitted there was no evidence to suggest the heat from the cups would have caused the accused to pause to consider what effect the hot tea might have on someone’s skin. Counsel submitted that the evidence was the cups were made from Styrofoam rather than paper, which are better at insulating heat.

120. In my view, the prosecution has proven beyond reasonable doubt that the accused was reckless as to inflicting actual bodily harm. I am satisfied beyond reasonable doubt that the accused was at least reckless in causing or inflicting actual bodily harm. I am satisfied that the accused realised the possibility of actual bodily harm occurring but went ahead with the act anyway. The accused was at least aware the liquid in the cups was of a temperature that was significantly hot. The accused’s statement that “it wasn’t boiling water, it was just a couple of cuppas”, even taken at its highest, only leaves the reasonable inference that the accused knew the approximate temperature as she herself had made the tea. I am satisfied the accused poured the liquid in the cups and was alive to the possibility of inflicting actual bodily harm.

121. I am satisfied beyond reasonable doubt that the accused thought about the consequences of her act and realised the possibility of actual bodily harm occurring. Conclusion

122. On the evidence, I am satisfied beyond reasonable doubt that the accused was reckless as to inflicting actual bodily harm.

Orders

123. I returned the following verdicts on 24 November 2023: (1) I find the accused not guilty of intentionally inflicting grievous bodily harm (CC2022/10976). (2) I find the accused not guilty of the statutory alternative of recklessly inflicting grievous bodily harm. (3) I find the accused guilty of the statutory alternative of recklessly inflicting actual bodily harm contrary to s 23 of the Crimes Act 1900 (ACT).

I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas- Karlsson. Associate: Date: 20 December 2023