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Aubrey v The Queen

Aubrey v The Queen

Case [2015] NSWCCA 323 18 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aubrey v R [2015] NSWCCA 323
Hearing dates: 26 October 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Before: Gleeson JA at [1]
Button J at [2]
Fagan J at [3]
Decision:
Appeal dismissed

Catchwords:
PRECEDENT – review of previous decision by same court – whether previous decision was wrong

APPEAL – unreasonable verdict – causation – whether proved beyond reasonable doubt that applicant caused HIV infection – consideration of circumstantial evidence

APPEAL – whether trial judge erred by directing jury that recklessness constituted foresight of possibility of some harm – grievous bodily harm – malice – possibility or probability
WORDS AND PHRASES – “inflict” grievous bodily harm – Crimes Act 1900 (NSW) s 35(1)(b) – “malicious” – “possibility”
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Blackwell v The Queen [2011] NSWCCA 93; (2011) 81 NSWLR 119
CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134
Chen v R [2013] NSWCCA 116
Cryer v R [2010] NSWCCA 18
M v The Queen (1994) 181 CLR 487
Pengilley v R [2006] NSWCCA 163
R v Annakin (1988) 17 NSWLR 202
R v Aubrey [2012] NSWCCA 254
R v Baker [1999] NSWCCA 129
R v Campbell [1997] 2 VR 593
R v Coleman (1990) 19 NSWLR 467
R v Crabbe [1985] HCA 22; (1985) 156 CLR 464
R v Johns [1978] 2 NSWLR 259
R v Jurisic (1998) 45 NSWLR 209
R v Mai (1992) 26 NSWLR 371
R v Moran (1991) 52 A Crim R 440
R v Mostyn [2004] NSWCCA 97
Stokes and Difford v R (1990) 51 A Crim R 25
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Michael Aubrey (Appellant)
Regina (Respondent)
Representation:
Counsel:
Greg James QC/Peter Lange (Appellant)
Huw Baker (Respondent)
Solicitors:
Bryan Wrench (Appellant)
Tamar Lopis (Respondent)

File Number(s): 2010/247176
Publication restriction: Names of witnesses suppressed
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

15 November 2013

Before:

Marien SC DCJ

File Number(s):

2010/247176

Judgment

GLEESON JA: I agree with Fagan J.
BUTTON J: I agree with Fagan J.
FAGAN J: Michael Aubrey applies for an extension of time within which to appeal against his conviction in the District Court on a charge of maliciously inflicting grievous bodily harm upon a male person, who will be referred to in these reasons by the initials GB. The offence was charged as having occurred between 5 January 2004 and 30 July 2004 contrary to s 35(1)(b), Crimes Act 1900 (NSW). That section was then in the terms reproduced at [13] below. The Crown does not oppose the extension of time for the appeal and I propose that it be granted. I will therefore refer to Michael Aubrey hereafter as “the Appellant”. One ground of the appeal is that the verdict is unreasonable and cannot be…

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.

Continue reading Aubrey v The Queen

Details

AGLC: Aubrey v The Queen [2015] NSWCCA 323
Case: [2015] NSWCCA 323
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case of Aubrey v The Queen involved an appeal against a conviction for grievous bodily harm (GBH) with intent. The applicant, Aubrey, was convicted of infecting another person with HIV. The appeal was heard in the NSW Court of Criminal Appeal. The central issue before the court was whether the trial judge had erred in directing the jury regarding the concept of recklessness and foresight of harm in relation to the offence of GBH with intent. Additionally, the court had to determine whether the jury had reached an unreasonable verdict based on the evidence presented.

The legal issues that the court needed to address included the interpretation of the terms "inflict" and "malicious" within the context of section 35(1)(b) of the Crimes Act 1900 (NSW). Specifically, the court needed to consider whether recklessness constituted foresight of the possibility of some harm or the probability of some harm. Furthermore, the court examined the sufficiency of the circumstantial evidence to prove causation of the HIV infection beyond reasonable doubt.

The court found that the trial judge had not erred in his direction to the jury. The judge had correctly explained that recklessness involves a foresight of the possibility of some harm. The court also held that the jury was properly directed on the meaning of "malicious" and that the possibility of harm was sufficient to establish recklessness. The court concluded that the jury's verdict was not unreasonable, as the circumstantial evidence was sufficient to prove the applicant caused the HIV infection. Therefore, the appeal was dismissed.

The final orders of the court were to dismiss the appeal and affirm the conviction. The court did not find any errors in the trial judge's direction to the jury or in the jury's verdict. The court upheld the conviction for grievous bodily harm with intent.

Orders