On appeal from the Supreme Court of New South Wales
Representation
G R James QC with P D Lange and M G Coroneos for the appellant (instructed by Murphy's Lawyers)
L A Babb SC with H Baker and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Aubrey v The Queen
Criminal law – Infliction of grievous bodily harm – Meaning of "inflicts" – Where appellant caused complainant to contract human immunodeficiency virus – Whether infliction requires force and immediate physical injury – Whether communication of infection or disease amounts to infliction – Consideration of R v Clarence (1888) 22 QBD 23 and R v Dica [2004] QB 1257.
Criminal law – Fault element – Recklessness – Foresight of risk – Where appellant diagnosed with human immunodeficiency virus – Where appellant knew of possibility of transmitting virus through unprotected sexual intercourse – Whether foresight of possibility of risk sufficient to establish recklessness.
Words and phrases – "always speaking", "contemporary ideas and understanding", "grievous bodily harm", "inflicts", "maliciously", "recklessly".
KIEFEL CJ, KEANE, NETTLE AND EDELMAN JJ. The appellant was presented in the District Court of New South Wales on an ex officio indictment alleging one count of maliciously causing the complainant to contract a grievous bodily disease (namely, the human immunodeficiency virus ("HIV")) with the intent of causing the complainant to contract that grievous bodily disease, contrary to s 36 of the Crimes Act 1900 (NSW) ("Count 1"), and, in the alternative, one count of maliciously inflicting grievous bodily harm upon the complainant, contrary to s 35(1)(b) of the Crimes Act ("Count 2").
The Crown case was, in broad terms, that the appellant engaged in unprotected anal sexual intercourse with the complainant between January and July 2004 in circumstances where the appellant had been diagnosed as, and therefore knew that he was, HIV positive. The Crown did not allege[1] "an application of direct and intentional violence" but rather that the appellant had inflicted grievous bodily harm upon the complainant by reason that "the complainant was infected with a grievous bodily disease (HIV) as the immediate consequence of the relevant act of intercourse".
On 5 March 2012, the appellant moved for an order that Count 2 be quashed on the basis that, on the acts alleged by the Crown, the appellant did not, at law, inflict grievous bodily harm on the complainant. Sorby DCJ, who heard the motion, ruled[2] that, because of the "uncertainty as to whether infecting another person with a serious disease constituted inflicting grievous bodily harm as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Aubrey v The Queen [2017] HCA 18
Case
[2017] HCA 18
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by the appellant against his conviction for maliciously inflicting grievous bodily harm under s 35(1)(b) of the *Crimes Act 1900* (NSW). The dispute arose from the appellant, who was diagnosed with Human Immunodeficiency Virus (HIV), having unprotected sexual intercourse with the complainant, subsequently transmitting the virus to him. The High Court of Australia considered the meaning of "inflicts" in the context of transmitting a disease through sexual intercourse and the fault element of recklessness.
The primary legal issue before the High Court was whether the transmission of HIV through sexual intercourse constituted the "infliction of grievous bodily harm" within the meaning of the relevant section of the *Crimes Act*. This required the Court to consider the historical interpretation of "infliction" in criminal law, particularly in light of the decision in *R v Clarence* (1888), and whether more recent authorities, such as *R v Dica* [2004], had undermined that precedent. A secondary issue related to the fault element of recklessness, specifically whether the appellant's foresight of a real possibility of transmitting the virus was sufficient to establish recklessness.
A majority of the High Court held that the transmission of HIV by sexual intercourse was not capable of constituting the infliction of grievous bodily harm under the *Crimes Act* as it stood at the material time. The Court reasoned that the long-standing interpretation in *R v Clarence* was that the "uncertain and delayed operation of the act by which infection is communicated" did not amount to infliction. While acknowledging that later decisions had broadened the understanding of "infliction" by removing the requirement for an assault, the majority found it was a significant departure to extend criminal liability to the transmission of disease in this manner, suggesting such legislative reform should be a matter for Parliament. The Court noted that Parliament had since amended the *Crimes Act* to explicitly include causing a person to contract a grievous bodily disease.
Despite the majority's conclusion on the primary legal issue, the appeal was dismissed. This was because the appellant had conceded at trial that he knew there was a real possibility of infecting the complainant through unprotected sexual intercourse, and the defence's sole basis was a challenge to proving the appellant was the source of the infection. Therefore, the issue of whether the transmission of HIV was capable of constituting grievous bodily harm was not ultimately determinative of the appeal's outcome.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE, NETTLE AND EDELMAN JJ
(dissent)
BELL J
In any event, in this case there was never any question of the jury proceeding on the basis of foresight only of a bare possibility of harm. The appellant conceded at trial that he knew that there was a real possibility that he could infect the complainant by having unprotected sexual intercourse with him. Nor was there even the slightest suggestion by or on behalf of the appellant that having unprotected sexual intercourse with the complainant, without disclosing the risk of infection to the complainant, should be considered other than reckless as to the possibility of that risk. The sole basis of the defence was that the jury ought not to be satisfied beyond reasonable doubt that the appellant was the source of the complainant's infection. Conclusion It follows that the appeal should be dismissed. The facts and procedural history are set out in the joint reasons and need not be repeated save to the extent that is necessary to explain my reasons. I agree with their Honours' analysis and conclusion with respect to proof of recklessness for the offence of maliciously inflicting grievous bodily harm. In the view I take, however, that issue is not reached. I would uphold the appellant's first ground: in my opinion the Court of Criminal Appeal of New South Wales was wrong to hold that the transmission of the human immunodeficiency virus ("HIV") by sexual intercourse is capable of constituting the infliction of grievous bodily harm within the meaning of s 35(1)(b) of the Crimes Act 1900 (NSW) ("the Crimes Act") as that provision stood at the material time[104]. [104]The material time was between January 2004 and July 2004. Section 35 as in force at that time was in substantially similar terms to s 35 as enacted in 1900, with only formatting changes, effected by the Crimes (Amendment) Act 1983 (NSW), Sched 1, item 1, having been made to the provision since its enactment. The capacity of the sexual transmission of a serious disease to constitute the infliction of grievous bodily harm was the question reserved for consideration in R v Clarence[105], and was determined adversely to the prosecution. The Court of Criminal Appeal considered the authority of Clarence had been undermined by later decisions holding that an assault is not an ingredient of the offence of unlawfully and maliciously inflicting grievous bodily harm. This was a reference to the decisions of the Full Court of the Supreme Court of Victoria in R v Salisbury[106] and the House of Lords in R v Wilson[107]. The Court of Criminal Appeal favoured the "commonsense approach" to the concept of the "infliction" of harm adopted by the Court of Appeal of England and Wales in R v Dica[108]. [105](1888) 22 QBD 23. [106][1976] VR 452.[107][1984] AC 242.[108]R v Aubrey (2012) 82 NSWLR 748 at 761 [61] citing [2004] QB 1257. It is, of course, the responsibility of the court to give effect to the legislative intention expressed in s 35(1)(b) of the Crimes Act. Nonetheless, it is a large step to depart from a decision which has been understood to settle the construction of a provision, particularly where the effect of that departure is to extend the scope of criminal liability[109]. For more than a century Clarence has stood as an authoritative statement that the "uncertain and delayed operation of the act by which infection is communicated" does not constitute the infliction of grievous bodily harm[110]. If that settled understanding is ill-suited to the needs of modern society, the solution lies in the legislature addressing the deficiency, as it has done[111]. In my judgment it was an error to follow Dica. [109]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 531 per Deane J; [1987] HCA 12; Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13 per Mason J, 22-23 per Wilson and Dawson JJ; [1987] HCA 19; Hanau v Ehrlich [1912] AC 39 at 41 per Earl Loreburn LC. [110]R v Clarence (1888) 22 QBD 23 at 41-42 per Stephen J, with Huddleston B, Mathew, A L Smith and Grantham JJ agreeing. (Lord Coleridge CJ agreed with both Stephen and Wills JJ.)[111]Crimes Amendment Act 2007 (NSW), Sched 1 [1], which amended the definition of grievous bodily harm in s 4(1) of the Crimes Act to include "any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease)".