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Chapter 33: Unlawful Wounding

Table Of Contents  

[33.0] Introduction 

This chapter will examine the offence of 'Unlawful Wounding', as provided for by section 229 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Offences Against The Person Act 1861 (UK), sections 18 & 20.

[33.1] Offence 

Section 229 of the Penal Code (Ch. 26) states: 

'Any person who unlawfully wounds another is guilty of a misdemeanour, and shall be liable to imprisonment for five years.'

[33.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did unlawfully wound a person namely [specify the name of the complainant].'

[33.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Wound 

F. Complainant

[33.4] Unlawfully

[33.4.1] Introduction 

An act or omission is 'unlawful' unless it is authorised, justified or excused by law. 

The prosecution has the burden of proving the 'unlawfulness' of the defendant's actions, see R v Williams (1984) 78 CrAppR 276 [[1984] CrimLR 163] at page 281 & R v May (1912) 8 CrAppR 63; [1912] 3 KB 572, per Lord Alverstone CJ at page 575. 

Section 235 of the Penal Code (Ch. 26) states: 

'Any person authorised by law or by the consent of the person injured to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.' 

See also: section 234 of the Penal Code (Ch. 26) – 'Surgical Operations'. 

If a complainant in trying to escape from the defendant as a consequence of what he/she said and/or did suffers injuries amounting to a wounding, then the defendant may be guilty of an offence under section 229 of the Penal Code (Ch. 26). 

In R v Roberts (1972) 56 CrAppR 95 the Court held at page 102: 

'The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?' 

In R v Mackie (1973) 57 CrAppR 453 [[1973] CrimLR 438] Stephenson LJ, delivering the judgment of the Court, stated at page 459: 

'Where the injuries are not fatal, the attempt to escape must be the natural consequence of the assault charged, not something which could not be expected, but something which any reasonable and responsible man in the assailant's shoes would have foreseen.' 

See also: Director of Public Prosecutions v Daley [1979] 2 WLR 239.

The courts have consistently held that the mens rea of every type of offence against the person covers both actual intent and recklessness, in the sense of taking the risk of harm ensuing with foresight that it might happen, see R v Spratt (1990) 91 CrAppR 362 [[1991] 2 AllER 210; [1990] 1 WLR 1073; [1990] CrimLR 797] at page 370. 

The question is therefore whether the defendant considered the possibility that the complainant might have been hurt by his/her actions.

[33.4.2] Defence Of Person Or Property 

The law relating to the 'Defence Of Person Or Property' is examined commencing on page 451.

[33.5] Wound 

The term 'Wound' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane'. 

In C (A Minor) v Eisenhower [1983] 3 AllER 230; (1983) 76 CrAppR 48 [[1984] QB 331] Robert Goff LJ, with whom Mann J concurred, stated at pages 232 – 233 and 53 – 54 respectively: 

'There must be a break in the continuity of the skin. It must be a break in the continuity of the whole skin, but the skin may include not merely the outer skin of the body but the skin of an internal cavity of the body where the skin of the cavity is continuous with the outer skin of the body. 

[…] 

It is not enough that there has been a rupturing of blood vessel or vessels internally for there to be a wound under the statute because it is impossible for a court to conclude from that evidence alone whether or not there has been any break in the continuity of the whole skin. There may have simply been internal bleeding of some kind or another, the cause of which is not established. Furthermore, even if there had been a break in some internal skin, there may not have been a break in the whole skin.' (emphasis added) 

The medical terms 'skin' and 'true skin' are defined in the Butterworths Medical Dictionary as follows: 

'Skin' '              The outer covering of the body consisting of two layers, an inner, the dermis or corium and an outer, the epidermis.' 

'True Skin' '      Dermis – the inner skin.' 

In R v Berwick & Findlater [1979] TasR 101 Crawford J stated at page 109: 

'I hold that the cut into the dermis is not a wounding, that an injury going further than the dermis is necessary before there can be wounding … It seems to me when Coleridge J [in R v McLoughlin (1838) 8 C & P 635, 173 ER 651] said: 

"If it is necessary to constitute a wound, the skin should be broken, it must be the whole skin." 

He could hardly be saying that the whole skin should be broken unless he was referring to the complete depth of the whole skin and he was not saying that a partial break in the dermis was sufficient.' (emphasis added) 

Therefore, the prosecution must prove that the complainant suffered a bodily injury that resulted in the whole skin being broken. 

The evidence of a doctor will therefore be essential, unless there is a 'Formal Admission'. 

The law relating to: 

·                     'Opinion Evidence - Experts' is examined commencing on page 202; and 

·                     'Formal Admissions' is examined commencing on page 325. 

See also: Jervis (1991) 56 ACrimR 374 & Epeli Davinga v The State [1995] PNGLR 263 at page 266 regarding 'Formal Admissions'.

[33.6] Multiplicity Of Acts 

The law relating to 'Multiplicity Of Acts' is examined commencing on page 566.

[33.7] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Unlawful Wounding' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[33.8] Related Offences 

The following offences are related to the offence of 'Unlawful Wounding' as provided for in the Penal Code (Ch. 26): 

·                     'Common Assault', section 244 of the Penal Code (Ch. 26) which is examined commencing on page 562; 

·                     'Bodily Harm', section 245 of the Penal Code (Ch. 26) which is examined commencing on page 570; and 

·                     'Grievous Harm', section 226 of the Penal Code (Ch. 26) which is examined commencing on page 584.