Aubrey v The Queen

[2015] NSWCCA 323

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

1. GLEESON JA: I agree with Fagan J.

2. BUTTON J: I agree with Fagan J.

3. 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 supported having regard to the evidence. Two other grounds, involving points of law as detailed below, are foreclosed by previous decisions of this Court.

4. The Appellant’s trial commenced on 13 August 2013 before Marien SC DCJ. The count laid under s 35(1)(b) was the second on the indictment. It was pleaded in the alternative to a primary count under s 36, Crimes Act (a charge of maliciously causing a person to contract a grievous bodily disease with intent to do so). On 30 August 2013 the jury returned verdicts of not guilty on the first count and guilty on the s 35(1)(b) count. On 15 November 2013 sentence was passed for the latter offence: 5 years imprisonment comprising a non-parole period of 3 years and a balance of term of 2 years.

The Crown case

5. The Crown’s principal witness was GB. He had commenced a homosexual relationship with the Appellant in early January 2004. The Appellant had on 22 April 2002 tested positive for the Human Immunodeficiency Virus (“HIV”). Thereafter he had been warned repeatedly by medical practitioners, prior to January 2004, about the danger of transmitting this virus to sex partners and of the need to adopt safe sexual practices in order to avoid transmission. In particular, he had been warned by his treating doctor of the need to use a condom when having anal intercourse with another male. The Crown alleged that the Appellant had disregarded this advice without telling GB that he carried the disease and that he had infected GB.

6. Evidence was adduced from GB that he was HIV negative at the commencement of his relationship with the Appellant in early January 2004. GB was required, as an incident of his employment in critical care nursing, to undergo regular testing for sexually transmitted diseases. His most recent test prior to commencement of the relationship with the Appellant was of blood taken on 18 August 2003 (T 65). A further blood sample was taken on 15 January 2004, which was close to the date when the relationship began. Both of these samples tested negative for HIV.

7. GB gave evidence that he followed appropriate procedures in his healthcare work to avoid acquiring the virus through clinical contact. He said no potentially infectious incident had occurred at work during the several months before he commenced his sexual relationship with the Appellant. Also, prior to January 2004 he had last had anal intercourse with another male in November 2003 and on that occasion a condom had been worn by his sex partner.

8. GB testified that before engaging in anal intercourse with the Appellant for the first time he had informed the Appellant that he was himself HIV negative and that he was particularly cautious about infection because of the nature of his employment. The Appellant assured GB that he, also, was HIV negative. The first occasion of the Appellant penetrating GB anally, without a condom, occurred early in January 2004 following this express discussion. Thereafter similar acts of unprotected anal intercourse were performed by the Appellant on GB regularly and frequently up to July 2004. GB testified that in that interval he did not have anal intercourse with any other partner.

9. According to GB’s evidence, on 30 July 2004 he attended his general practitioner to have a blood sample taken for the purpose of testing for HIV. This was prompted by a communication GB had received whilst in Vietnam on holiday in early June 2004, from a former partner of the Appellant. The former partner had asserted that the Appellant was HIV positive. GB had informed the Appellant of this allegation and the Appellant had denied it.

10. The result of testing the blood sample provided by GB on 30 July 2004 was notified to him on 7 August. It was positive for the HIV antigen and antibody but “indeterminate” with respect to the “Western Blot interpretation” (a standard blood analysis by which HIV infection is verified: T 209 – 210). When GB informed the Appellant of this result promptly after receiving it, the Appellant still did not disclose that he had himself acquired the virus nearly two years before their relationship had commenced. A further blood sample was collected from GB on 7 August 2004 (Ex E; T 395 – 396). This returned an HIV positive result, including Western Blot interpretation, on 12 August 2004.

11. On 6 October 2004 the Appellant and GB together attended a consultation with Professor David Cooper, a specialist in HIV infection. During this consultation, according to evidence given by GB, the Appellant said that it was he who had infected GB – thereby for the first time acknowledging to GB that he had acquired the virus before their relationship had commenced.

12. For two further years thereafter, from October 2004 until late 2006, GB remained in a relationship with the Appellant. GB gave evidence that “I was afraid of being alone”. Medical evidence given at the trial showed that the progress of the infection had damaged GB’s immune system irreparably. He had suffered major consequential failures of health including pulmonary embolism, strokes, cataracts, prostate damage (requiring resection), metabolic disorders, early onset cognitive impairment, anxiety and depression.

Elements of the offence and issues at trial

13. During the charge period, 5 January 2004 to 30 July 2004, s 35(1), Crimes Act was in the following terms:

“35   Malicious wounding or infliction of grievous bodily harm

(1) Whosoever maliciously by any means:

(a) wounds any person, or

(b) inflicts grievous bodily harm upon any person,

shall be liable to imprisonment for 7 years.”

14. At that time the meaning of “maliciously” as it appeared in the above section was expanded by s 5, Crimes Act as follows:

“5 Maliciously

...Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and every indictment and charge where malice is by law and ingredient in the crime.” (Emphasis supplied).”

15. For the Crown to establish the charge under s 35, in the circumstances alleged, the following matters had to be proved:

1. that GB suffered grievous bodily harm, namely the disease constituted by being infected with HIV and the symptoms caused by that infection;

2. that between 5 January 2004 and 30 July 2004 the Appellant by an act of unprotected anal intercourse with GB inflicted that grievous bodily harm;

3. that when the Appellant had unprotected anal intercourse with GB between 5 January 2004 and 30 July 2004 he did so recklessly with respect to the risk of transmitting the virus and thereby causing the grievous bodily harm.

16. The first issue raised by the Appellant in the District Court was a contention that the word “inflicts” in s 35(1)(b) did not embrace the causing of grievous bodily harm by acts of which such harm was not “the immediate consequence”. This was submitted by the Appellant when the indictment was first presented against him before Sorby DCJ on 7 March 2012.

17. The issue was raised by way of a Notice of Motion filed on behalf of the Appellant seeking an order that the count pleaded under s 35 be quashed because it was “not alleged that any assault occurred during the act of intercourse or that the grievous bodily disease was the immediate consequence of the act of intercourse”. Sorby DCJ ordered a stay of proceedings on count 2 on the ground that at the time when the offence was alleged to have occurred “there existed a period of uncertainty as to whether infecting another person with a serious disease constituted inflicting grievous bodily harm as prescribed in the offence of maliciously inflicting grievous bodily harm as it was defined under s 35(1)(b) in 2004”.

18. The Crown appealed this decision pursuant to s 5F(2), Criminal Appeal Act 1912 (NSW). This Court, constituted by Macfarlan JA, Johnson and Davies JJ upheld the appeal: R v Aubrey [2012] NSWCCA 254, handed down 29 November 2012. In accordance with that decision, when the trial subsequently proceeded before Marien SC DCJ (commencing 8 August 2013) Count 2 remained on the indictment. The case was ultimately left to the jury upon the basis that they could find that the Appellant “did inflict” serious bodily harm upon GB if they were satisfied beyond reasonable doubt that his actions caused GB to contract the disease. As explained below, Ground 1 of the appeal which the Appellant has now brought following his trial and conviction seeks to re-agitate this precise legal point concerning the scope of the word “inflicts” in s 35(1)(b), Crimes Act notwithstanding that it has been decided against him by this Court, differently constituted, in the Crown’s pre-trial appeal under s 5F(2).

19. The second issue in the District Court, which arose at trial on the evidence and was a matter to be resolved by the jury, was whether the Crown had proved beyond reasonable doubt that it was the Appellant who had caused GB to contract his HIV infection. The jury’s verdict of guilty necessarily involved an affirmative conclusion on this issue. Ground 2 of the present appeal, in which it is contended the jury’s verdict was unreasonable or cannot be supported, is in substance concerned with the alleged unreasonableness of the jury’s inherent finding of causation by the Appellant.

20. In the trial there was no dispute about the legal proposition that the jury could find that the accused inflicted the grievous bodily harm upon GB maliciously if they should find that he did so “recklessly” – in the sense that the Appellant proceeded to have sexual intercourse with GB with foresight that his actions could possibly cause grievous bodily harm. The learned trial judge summed up to the effect that foresight of possibility (rather than of probability) would constitute recklessness. There was no objection to this nor any request for redirection. Nevertheless the Appellant now seeks to argue under Ground 3 of his appeal that the jury should have been instructed that in order to find that the Appellant acted recklessly, they would have to be satisfied beyond reasonable doubt that he acted with foresight of a probability that GB would be infected through his actions.

Ground 1 – “inflicts” – grievous bodily harm not the “immediate consequence”

21. Ground 1 of the appeal is cast in the following terms:

“(1) His Honour erred in failing to quash Count 2 on the ground that it failed to disclose an offence known to the law.”

22. Despite the wording of this ground the Appellant’s submissions on the appeal, both in writing and orally, accept that Count 2 in the indictment pleads an offence known to the law in that it follows s 35(1)(b), Crimes Act. What is really intended to be agitated under this ground is the proposition that an accused does not “inflict” grievous bodily harm within the meaning of the section where the harm is in the nature of a viral illness, the symptoms of which manifest themselves after a delay following the act or acts of the accused which transmit the infection.

23. After the Court had handed down its decision on this point in the s 5F(2) appeal, the High Court refused an application by the Appellant for special leave to appeal. The refusal, on 10 May 2013, was on the grounds of the High Court’s extreme reluctance “to intervene in criminal trials by granting special leave to appeal against interlocutory decisions”. The Appellant has included Ground 1 in his present Notice of Appeal in order to preserve his right to apply again to the High Court now that the impediment of the prosecution being at an interlocutory stage no longer applies. As the trial has concluded and the issue is relevant to whether the conviction is correct, it would be legitimate for the Appellant in due course again to seek leave to raise it in the High Court. In the meantime he may maintain Ground 1 of his present appeal in order to preserve that avenue of further review.

24. The completion of the trial, including the jury having made their findings of fact implicit in the verdict, has not altered the substance of the legal point comprised in Ground 1 nor the factual setting in which it arises. It remains the same point that arose on the s 5F(2) appeal to this Court. The inclusion of Ground 1 in the Notice of Appeal would be an abuse of process if it was an attempt to have this Court reconsider its previous decision, on the same question between the same parties, made in a previous appeal with respect to the same indictment. Upon my understanding of the Appellant’s limited purpose as identified in [23] above, Ground 1 should not be struck out as an abuse of process but rather dismissed peremptorily without reconsideration of its merits, upon the basis that the Court’s previous decision has adversely concluded the issue raised. This basis of disposition will leave the way open for the Appellant to apply to the High Court if he is so advised.

25. If in these circumstances it was incumbent upon the Court to approach Ground 1 in the same way that it would if its previous decision on the legal point had been made in an appeal concerning a different appellant, then the question to be asked would be whether the Court should now consider that its earlier decision was wrong: R v Johns [1978] 2 NSWLR 259; R v Moran (1991) 52 A Crim R 440; R v Mai (1992) 26 NSWLR 371; R v Jurisic (1998) 45 NSWLR 209. If that question were required to be answered, having reviewed carefully the principal judgment of Macfarlan JA referred to at [18] my response would be that I do not consider the decision to have been wrong but respectfully agree with it for the reasons given by his Honour and would still reject Ground 1.

Ground 2 – unreasonable verdict

26. Ground 2 is as follows:

“(2) The jury’s verdict was unreasonable within the meaning of s 6(1), Criminal Appeal Act 1912.”

27. In support of this ground the Appellant has submitted in writing that “the main issue for the jury’s consideration was whether the Crown had proved beyond reasonable doubt that GB had been infected by the Appellant”. The written submissions proceed to examine the evidence at trial on this question of causation, being the second of the elements of Count 2 as set out at [15].

28. The first element of this count (that GB suffered grievous bodily harm in the form of HIV infection) was indisputable on the evidence of GB himself and of his treating doctors. The third element (recklessness in the sense of foresight of the possibility that the HIV infection would be transmitted) was conceded by the Appellant in cross-examination at T 610. He gave the following answers concerning his state of mind from early January 2004 to July 2004, during which period he had been in an ongoing sexual relationship with GB involving frequent unprotected anal penetration of him:

“Q. But you knew there was a possibility that you could infect [GB]. Correct?

A. A possibility, correct.

Q. Yet you went ahead anyway and had sex with him, unprotected anal sex knowing that there was a possibility that you could infect [GB]?

A. Correct.

Q. So you knew there was a possibility, you went ahead with anal sex, knowing that there was a possibility that he could be infected?

A. I just answered that question, but correct.”

29. In final address the Appellant’s counsel conceded that these admissions established the second element, being recklessness, in the sense of foresight of the possibility of infection. At T 761-762 the Appellant’s counsel addressed as follows:

“One thing about this evidence of [the Appellant] though, he accepted that when he had unprotected anal intercourse with [GB] he was aware that there was a possibility that [GB] could have been infected, and that is a major concession that he made in the witness box. … You will recall that [the Appellant] gave evidence that from 7 May 2002 when he was first advised by Dr Price that he was HIV-positive until 30 July 2004 he was totally asymptomatic. … He had been continually reassured by a number of medical experts that it was undetectable, that he was fine, he was okay, and that he was not likely to infect anybody. He was aware, however, that there was a possibility.”

30. In the Appellant’s written submissions to this Court quoted at [27] above, the use of the expression “main issue” recognises that there was another factual question for the jury. Namely, whether the Appellant had intended to inflict a grievous bodily disease upon GB. That issue arose solely in connection with Count 1. At T 720-721 the Appellant’s counsel informed the jury that they really only had to consider three questions: whether the Appellant caused GB to contract the disease, whether the Appellant intended that GB should contract it (an issue relevant only to Count 1) and whether the accused acted recklessly (the issue which was, later in the address, conceded by reference to the Appellant’s admission of having foreseen the possibility). Therefore, on Count 2, the question whether the Appellant had caused GB to become infected (the second element of the offence), was the sole issue – on defence counsel’s address.

30. Ground 2 of this appeal thus resolves into a question of whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused” caused GB to become infected: cf M v The Queen (1994) 181 CLR 487 at 493. The Crown’s evidence of causation, which must now be evaluated for the purposes of this ground, was necessarily circumstantial, and is summarised in the following paragraphs.

Seroconversion illness and expert evidence of infection date

32. GB gave evidence that he had suffered influenza-like symptoms such as gastroenteritis, night sweats, tremors and vomiting over a period of about one and a half weeks before he had departed Australia with the Appellant for a holiday in Vietnam. He said that he still had such symptoms for about a day after arrival in Vietnam (T 89, 170, 179). Travel records were tendered to show that GB and the Appellant had left Australia for Vietnam on 30 May 2004 and had returned on 9 June 2004.

33. Dr Madeline was a general practitioner whom GB had consulted over some years before 2004. He gave evidence that during a consultation on 12 August 2004 GB had given a history that this febrile illness had occurred “in June, when he was in Vietnam” (T 397). Both in examination-in-chief and in cross-examination GB gave clear and consistent evidence that the illness had commenced about one and a half weeks before departure from Sydney and had resolved by about one day after arrival in Vietnam.

34. Dr Madeline, Professor Cooper (a specialist physician in HIV medicine at St Vincent’s Hospital, Sydney) and Dr Garsia (a senior staff specialist in immunology and allergy at Royal Prince Alfred Hospital, Sydney) all gave opinion evidence that the symptoms GB described were consistent with seroconversion illness. That is, initial bodily reaction to infection with HIV. Professor Cooper expressed the opinion that infection would “usually”, “90% of the time” have occurred within two to four weeks before the manifestation of the seroconversion illness. He said that in rare cases the interval could be as short as two days or as long as three months (T 199, 220). Dr Garsia said the “average” delay between exposure to the virus and seroconversion illness was “generally” two to three weeks (T 478, 479, 485, 496, 499).

35. Dr Garsia gave this answer at T 484:

“A. I personally haven’t seen a case where I’ve been convinced [seroconversion illness] occurred within a week [after exposure to infection]. I’m not actually familiar with any cases where that would be documented at that level. It is certainly possible. It can occur beyond six weeks. It is possible. I’ve actually published a paper which (sic) the patient took longer than that. So it certainly happens. There’s no question about that, that it can take longer, but these are – the reason you publish the cases is because they’re unusual.”

36. Professor Cooper had been working in the field of HIV medicine as a specialist for 30 years. Dr Garsia qualified as a staff specialist in immunology in 1990 and as a specialist physician in immunology and allergy in approximately 2000. For 10 years prior to giving evidence he had concentrated on clinical immunology and HIV immunology. He had published over 50 papers in scientific and medical literature and over 10 clinical trial reports as a consortium member, the majority of his publications having been in relation to HIV. Both of these experts were called by the Crown. The Appellant did not call any medical expert in his case.

37. Consistently with his evidence at trial, GB had reported to Professor Cooper on 6 October 2004 that he had suffered symptoms of a kind which the Professor attributed to seroconversion illness “at the end of May or the beginning of June” (T 199). On that history Professor Cooper considered that “he probably was infected some time in May, because usually the illness occurs two to four weeks following the sexual contact” (T 199). On the basis that the Appellant and GB were in Vietnam for 10 days (as established by other evidence), Professor Cooper considered that even if GB had not exhibited symptoms of seroconversion illness until the end of his time in Vietnam it would be only a remote possibility that he could have contracted the disease during that trip.

38. The Appellant gave evidence that GB first showed signs of febrile illness during their flight from Hanoi to Ho Chi Minh City, which was the first stage of their return journey to Australia (T 552). That was on 9 June 2004. It was open to the jury to prefer GB’s evidence that he had experienced the seroconversion symptoms in late May, leading up to the departure for Vietnam. It was also open to them to accept the expert opinions of Professor Cooper and Dr Garsia and to conclude that, whether the seroconversion symptoms arose at the beginning or at the end of the Vietnam trip, the event by which GB was infected had occurred sometime in May. The Appellant and GB had been in Australia, engaged in an active sexual relationship with each other, at that time.

39. Both Professor Cooper and Dr Garsia testified that there would be a period following GB’s acquisition of the virus during which it would have been undetectable by blood test. Professor Cooper considered that having regard to the positive result for HIV antigen and antibody on analysis of the blood taken on 30 July 2004 (see [10] above), the infecting event could have been four to twelve weeks earlier. At T 497 he gave this evidence:

“Therefore, the [seroconversion] illness and that pattern on the Western Blot of 30 July [2004] and the subsequent full seroconversion on [the report for the blood taken on 7 August 2004], both the clinical event and the laboratory test, are consistent with [GB] being infected in the middle of May”.

40. Dr Garsia said that, taking into account the sensitivity and accuracy of laboratory blood analysis for HIV in 2004, the virus would then not have been detectable by such tests within approximately four weeks post-acquisition of the virus (T 484). Putting that evidence together with the earliest date of an HIV-positive blood sample from GB, namely 30 July 2004, it was open to the jury to conclude that infection would have occurred no later than the end of June. Dr Garsia’s evidence about the length of the “eclipse period” (approximately 4 weeks following infection, during which the virus would not be detectable by then available blood tests) did not assist in determining how much earlier than 30 June 2004 the infecting event may have occurred. But nor did that evidence create any impediment to the jury finding that infection had taken place in May, based upon the timing of the first seroconversion symptoms.

Expert evidence about high risk of transmission by anal intercourse

41. Professor Cooper testified that the rate of infection from an HIV-positive person to a non-infected person through unprotected anal penetration is one percent for each act of such intercourse (T 222). Dr Garsia’s evidence was that unprotected penetration by an infected person carries a high risk of transmission because semen potentially contains high levels of the virus and the tissue of the rectum is not an effective barrier to entry of the virus into the cells and ultimately the bloodstream of the person who is penetrated (T 469 – 471).

42. At T 469 – 470 Dr Garsia gave the following evidence regarding transmission of HIV:

“The virus cannot be transmitted by unbroken skin contact with unbroken skin and is only very rarely transmitted by oral contact with sexual organs or by mouth-to-mouth contact. The highest risks of transmission of HIV are where fresh blood comes in contact with the recipient’s bloodstream by transfusion of contaminated blood or by exposure to contaminated injecting equipment or materials and by unprotected (no condom) anal intercourse…”.

Sexual contact between Appellant and GB

43. GB gave evidence that he had had unprotected (that is, without a condom) anal intercourse with the Appellant, in which the Appellant penetrated him and ejaculated, on 5 January 2004 (T 75, 77 – 79). The Appellant said that the first sex act of this nature did not take place until about the third week of January 2004, after they had had anal intercourse using a condom on three or four prior occasions, dating from 15 January 2004 (T 518 – 520). This difference in evidence of timing was not significant to the critical issue of causation of infection.

44. GB’s evidence was that after January 2004 and continuing, relevantly, to July 2004, he and the Appellant met on five or six days per week and the Appellant stayed at GB’s unit in Lilyfield frequently, for “days at a time” (T 80). He said that he had “sexual intercourse” with the Appellant on these occasions but “not all the time” (T 80). In cross-examination GB clarified that by “sexual intercourse” he meant anal penetration and that when he intended to refer in his evidence to oral sex he used those words or similar (T 301). GB said that condoms were not used when the Appellant had anal intercourse with him, from the first occasion in January 2004 through to July 2004 (T 80).

45. The Appellant’s evidence substantially accorded with that of GB as to the nature and frequency of the unprotected anal intercourse which took place between them from January to July 2004. The Appellant agreed that in this period he “had unprotected anal sex with GB many, many times” and that “GB and I had a very active sex life” (T 572). One difference between the evidence of GB and that of the Appellant concerned the commencement date of the sexual activity: see [43] above. Another difference was that the Appellant asserted that at times they had unprotected anal intercourse with each other in the toilets of various bars in the inner city areas of Sydney (T 522 – 525, 530, 558). GB disputed this (T 259 – 262). Again this difference was not significant to the critical issue. If the Appellant’s evidence on this was accepted then there were more occasions on which the virus could have been transmitted by him. If GB’s evidence was accepted there were still many occasions on which transmission from the Appellant could have occurred.

46. The Appellant said that the anal intercourse between them predominantly involved him penetrating GB (T 522, 541, 555). GB had said nothing to the contrary during his evidence given in the Crown case and the Appellant was not cross-examined about it. It was thus presented to the jury as common ground.

Expert evidence against other modes of transmission

47. It was also common ground at the trial that during the period in which GB contracted the disease and in which the Appellant frequently penetrated him anally without protection (January to July 2004), GB on several occasions (at least) had oral sex in which his mouth was penetrated by the penis of a man other than the Appellant. In cross-examination of Professor Cooper and Dr Garsia the Appellant’s counsel raised the question whether GB may have acquired the virus by this means. On this topic Professor Cooper said (T 229) “HIV isn’t transmitted through oral sex”. At T 230 he gave these answers:

“A. … The number of cases where it has been truly proven that oral sex transmits HIV is negligible.

…

A. It really is remarkable that that [transmission of the virus by oral sex] doesn’t occur and has not been – despite extensive research on that, both laboratory and epidemiological research, that does not appear to be the case and it has probably got something to do with saliva having some anti-HIV properties”.

48. On the same subject Dr Garsia said the virus was “only very rarely transmitted by oral contact with sexual organs” (T 469: see passage quoted at [42] above). Again with respect to transmission by oral sex, Dr Garsia said (T 471):

“…there isn’t a clear understanding as to why that pathway of transmission is so rare, if indeed it occurs. … The medical literature is very sparse with respect to suspected cases of transmission orally. I have been in practice looking after people with HIV since 1984 I guess, and I don’t think I’ve been convinced I’ve seen a case yet which has been transmitted by oral contact. And if I had I would actually write it up in the medical literature, if I was convinced by such a case. … That’s just not my experience, the reflection of the medical literature is that HIV is not transmitted readily in that fashion.”

49. At T 481 Dr Garsia agreed that it “is a possibility” that if a person had mouth ulcers or a laceration inside the mouth then through oral sex “the bodily fluid of the infected person [could] come into contact with the bloodstream” of the recipient. There was no evidence that GB had mouth ulcers or lacerations at any time during the period January to July 2004 when he became infected.

50. The Appellant’s counsel established in cross-examination of GB that he had some body piercings. But all of these were done prior to 2004 and could not have been a means by which he acquired HIV, given his negative test result with respect to blood collected on 15 January 2004 (T 188 – 189). GB also gave evidence of a liposuction procedure carried out on 13 February 2004 (T 187) and a large tattoo across his shoulders executed in the first half of 2004 (T 188).

51. With respect to the liposuction as a potential path of infection Professor Cooper said (at T 236):

“I think it’d be extremely unlikely… That would be a very, very, very low risk, a low risk situation”.

52. With respect to the tattoo Professor Cooper said (at T 237) that tattooing “has not been a big risk for HIV”. He said that infection with viral hepatitis C was a “big risk with tattooing” but that GB was hepatitis C negative. Professor Cooper accepted that it was possible that if a tattooist had used a needle on someone who was HIV-positive, subsequent use of the needle on another patient could transmit the disease – presumably, in the absence of appropriate sterilisation. With respect to this possibility Professor Cooper said:

“You can’t exclude it, but as I said, it’s more likely to be Hep C and in his case he doesn’t have Hep C”.

53. Dr Garsia said with respect to liposuction, involving the use of a hollow-bore device (T 486), that he accepted any surgical procedure involving the insertion of such a device, if contaminated, could cause HIV transmission (T 480). However he said that very great advances had been made in the 1980s with respect to ensuring sterilisation to avoid transmission by such surgical procedures, the changes having been “stimulated by the awareness of… blood transfers as a mechanism for spreading blood-borne viruses” (T 180). Dr Garsia also discounted the possibility of GB having contracted HIV through the tattooing of his shoulders. The doctor said that legislation required the following of safe practices with respect to cleanliness to avoid virus transmissions through tattooing and that so far as he was aware the legislation was enforced by inspectors (T 480 – 481).

54. It was well open to the jury to accept the expert evidence summarised at [47] – [53] above and from it to conclude, beyond reasonable doubt, that the Appellant transmitted HIV to GB in about May 2004 by anally penetrating him without the protection of a condom. There was ample and undisputed evidence that such penetration had occurred (see [43] – [46] above). Acceptance beyond reasonable doubt of this mode of transmission required that the jury should exclude, as not being a reasonable possibility, infection by oral sex with other men or by surgical liposuction or by tattooing. The expert evidence could have been accepted by the jury as sufficient to exclude those other possibilities as not being reasonable. This is particularly so where uncontested evidence of repeated unprotected anal penetration combined with expert opinion about the propensity of that activity for transmission provided a ready explanation for GB having acquired the virus.

Conflicting evidence about penetration of GB by other males

55. In order to convict, the jury also had to exclude as not being a reasonable possibility the proposition that GB had had unprotected anal penetration by any other male during the period January to July 2004. The conflicting evidence regarding this is summarised as follows. The Appellant testified that he had seen GB anally penetrated without condom protection by 30 or 40 other men at bars and similar venues during the period January to July 2004 (T 558 – 559). Another estimate given by the Appellant was 25 to 30 other men (T 560). The Appellant said that at a post-parade Mardi Gras party in March 2004 GB was anally penetrated, without protection, by 20 or 30 men over a 10-hour period (T 559). All of this was challenged in cross-examination by the Crown. It was in conflict with the evidence of GB who denied having been penetrated anally by any other man during his relationship with the Appellant in the period January to July 2004.

56. In the course of cross-examination about the holiday in Vietnam GB denied that he had had anal intercourse with any male other than the Appellant whilst they were overseas (T 268 – 271). On the other hand the Appellant said that the two of them together visited many saunas and spas frequented by other homosexuals and there engaged in various sexual acts with numerous other men (T 546 – 550). The Appellant was not able to recall whether the anal penetration of GB which he said took place on these occasions was without condom protection.

57. It was open to the jury to accept GB’s evidence that he had not been anally penetrated without condom protection by any man other than the Appellant in the period in which he had become infected during the first half of 2004. There was nothing inherently improbable about GB’s evidence in this respect. On the contrary, the jury might well have accepted his testimony that as a nurse working in a hospital environment he was acutely aware of the risk of HIV infection and careful to avoid it. The fact that he had his blood tested regularly for HIV was established by documentary evidence. This tended to confirm his consciousness of the risk.

58. GB’s evidence was that he believed there was significant risk of contracting the virus if he was anally penetrated, without protection, by an HIV-positive male (T 70). It would have been an obviously rational precaution, in this state of awareness, for GB to have required sex partners to use condoms unless he had known them for some time and trusted them. That is the approach he said he took (T 141). Likewise, given GB’s alertness to the risk of infection it would have been rational for him to have enquired of the Appellant directly whether he was free of the virus before accepting unprotected anal penetration. He said that he did enquire and that he received the Appellant’s assurance that he was “negative” (T 76).

59. It was open to the jury to reject the Appellant’s evidence that GB allowed himself to be anally penetrated without protection by scores of men in the toilets of bars, at a Mardi Gras party and in private homes during the first half of 2004 (T 555). No witness was called to support the Applicant’s claim that he had observed such activity by GB. The extensive alleged sexual contacts by GB as described by the Appellant were not inherently probable or such that the jury should have concluded that they must have occurred. Proof of them depended solely upon the Appellant’s testimony. The jury, utilising their advantage of observing both GB and the Appellant in the witness box, each during lengthy examination-in-chief and cross-examination, were in a position to conclude, as apparently they did, that the evidence of GB was credible and that that of the Appellant was not sufficiently believable to raise any reasonable doubt in their minds.

60. In addition to their assessment of the manner in which GB and the Appellant, respectively, gave their evidence and the inherent plausibility of GB’s account that he took care not to have unprotected anal penetration by males other than the Appellant, the jury had before them uncontested evidence of circumstances which they would have been entitled to treat as weighing heavily against the Appellant’s credibility. First, he admitted that on initially meeting GB he did not disclose that he was HIV-positive. He denied that GB had asked about this (T 514). The Appellant said that on their second meeting GB had stated “he worked in the Middle East and as such that he had to stay HIV negative” (T 515, 605). The Appellant denied that he told GB he was negative (T 515, 606) but admitted that he said “I’m fine. There was nothing to worry about” (T 606). The Appellant said that after making those statements he proceeded to penetrate GB anally without protection, knowing of the possibility of infection: see the passage of his evidence quoted at [28].

55. It was open to the jury to regard this evidence as indicative of serious dishonesty and willingness to lie on the part of the Appellant. Failing to disclose his own infection and misleadingly asserting that he was “fine”, despite knowing the risk of infection and having just heard GB’s expressed concern to remain HIV-negative, could have been viewed by the jury as showing a propensity for untruthfulness with respect to serious and important matters.

56. Secondly, GB received the test results for his 30 July 2004 blood sample on Saturday 7 August 2004 (T 394). The Appellant gave evidence that he met with GB early in the following week and was informed that the result was HIV-positive (T 616 – 617). The Appellant acknowledged in cross-examination that GB said he did not know how he could have become infected. He was upset, emotional and worried that he might have transmitted the virus to the Appellant (T 617). The Appellant admitted that even in those circumstances he did not acknowledge to GB that he was already HIV-positive and had been since April 2002 (T 617).

57. The Appellant’s own infection had a relevance to GB’s acquisition of the virus, which must have been obvious to the Appellant, given his frequent unprotected anal penetration of GB over the past several months. When cross-examined about having failed to disclose his history of infection to GB in these circumstances the Appellant said “It never came up” (T 618 – 619). It was open to the jury to find in that answer no reasonable explanation for the Appellant’s silence at the relevant time and to conclude that he exhibited serious dishonesty in failing then to reveal his own pre-existing infection, instead allowing GB to anguish about how he may have received the virus and to suffer feelings of guilt that he may have passed it on to the Appellant.

58. Thirdly, the Appellant admitted that he attended with GB a consultation with Dr Madeline on 13 August 2004 when the definitive HIV-positive results for the blood sample taken on 7 August 2004 were discussed (T 619). The Appellant admitted that on this occasion Dr Madeline recommended that he should himself be tested for the virus. The doctor offered then and there to take a sample of the Appellant’s blood (T 619 – 620). On the Appellant’s own evidence, he declined Dr Madeline’s offer. He said he would see his own general practitioner. Dr Madeline asked the Appellant for his past HIV results. The Appellant said “I can get them, but I’ve never had them” (T 620).

59. The real position was that after the Appellant’s original diagnosis of HIV infection on 22 April 2002, samples of his blood had been regularly collected by his general practitioner, Dr Price. These samples had been taken three-monthly up until late 2003 and thereafter at shorter intervals when the testing showed significant increases in the level of infection. The Appellant’s regular blood testing, indicating progression of the HIV disease, had continued from April 2002 right through the first half of 2004. Evidence of this was given by Dr Price and was unchallenged.

60. Given those underlying facts the jury could well have regarded the Appellant’s statements to Dr Madeline on 13 August 2004 about not having his own results as deliberate lies, highly damaging to his credit. In cross-examination the Appellant’s only explanation for having failed to reveal to Dr Madeline the truth about his HIV status, when the doctor had directly asked, was this answer: “It was none of his business” (T 620). The jury would have been entitled to consider that response disingenuous and confirmatory of the appearance of dishonesty arising from this episode.

61. Fourthly, Professor Cooper gave evidence from his notes of consultation with both GB and the Appellant on 6 October 2004 that on that date he was told, by one of the two persons present, “infected by Michael” – that is, the Appellant (T 199). This provided documentary corroboration of GB’s evidence that during this consultation, when Professor Cooper asked GB how he had acquired the virus, the Appellant said “He got it from me” (T 95). GB said this was the first time he had heard from the Appellant that he had been HIV-positive from the beginning of their relationship and could have transmitted the virus. The Appellant denied that he said anything to Professor Cooper on this occasion to indicate that he was HIV-positive and he claimed not to remember when or how GB found out about the Appellant’s pre-existing infection (T 623 – 624).

62. It would have been open to the jury to conclude that these answers were not honest: that Professor Cooper’s note proved the Appellant had acknowledged his own pre-existing infection on 6 October 2004 and that it was not credible that the Appellant should fail to recall the occasion when, and the means by which, GB learned that the Appellant had been HIV-positive throughout their relationship. The jury would have been entitled to think that that revelation must have been a significant and memorable event in the lives of both men, not one likely to have been forgotten.

Conclusion on Ground 2

69. The evidence considered above constituted a strong circumstantial Crown case of transmission of the virus from the Appellant to GB by unprotected anal intercourse, sometime in the period January to July 2004 and most likely in May 2004. All other possible modes of infection were capable of exclusion, to the point of not giving rise to any reasonable doubt, by the jury exercising its advantage of seeing and hearing the Appellant and GB; using that advantage to reach a preference for the evidence of GB that he was not, during the relevant period, anally penetrated by any other man without protection; weighing the experience, qualifications and scientific knowledge of the medical experts and accepting their view that all other suggested modes of transmission should be discounted.

70. As Ground 2 does not involve an issue of law alone, leave to appeal is required: s 6(1) Criminal Appeal Act 1912; Wood v R [2012] NSWCCA 21 at [49]. I consider that leave to appeal upon this ground should be granted but that the ground should be rejected, for the above reasons.

Ground 3 – recklessness constituted by foresight of possibility

71. Ground 3 of the appeal is as follows:

"(3) His Honour erred in directing the jury that the element of malice was satisfied if the Appellant thought about the consequence of his act and at least realised the possibility of some harm of that type being inflicted upon the complainant, rather than directing the jury that it had to be satisfied that the Appellant realised the probability or likelihood of some harm being inflicted."

72. It is correct that his Honour directed the jury in terms of foresight of possibility. At [8] of the written directions distributed to the jury during the course of the summing up his Honour instructed that the relevant question was whether

“…you are satisfied beyond reasonable doubt that at the time the accused did the act he realised that some physical harm may possibly be inflicted upon GB by his actions yet he went ahead and acted as he did.”

73. This written direction was reiterated orally at pp 30 and 31 of the summing up. The Appellant’s counsel did not take issue with his Honour leaving to the jury the question of recklessness as a matter which turned upon foresight of possibility rather than probability. Indeed, counsel conceded recklessness on this very basis, as referred to at [28] and [29] above. Accordingly, the Appellant now requires leave under r 4, Criminal Appeal Rules (NSW) to rely upon this ground.

74. In R v Coleman (1990) 19 NSWLR 467 this court considered the meaning of “recklessly” in s 5 Crimes Act (quoted at [14] above) in an appeal against a conviction on a charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse, contrary to s 61C Crimes Act (as then in force). At the date of the relevant offence, 19 May 1988, s 61C provided that,

“any person who: (a) maliciously inflicts actual bodily harm upon another person… with intent to have sexual intercourse with the other person shall be liable to penal servitude for 12 years”.

75. The charge under that section had been left to the jury on the basis that they could find the accused had acted recklessly (and therefore maliciously) if satisfied that he “realised the probability that some such injury might result but nevertheless [proceeded] to act” (471G). In the Court of Criminal Appeal Hunt J (with whom Findlay and Allen JJ agreed) reviewed a number of decisions of the Victorian and New South Wales Supreme Courts (at 475E – 496B). From those authorities Hunt J concluded that at the time of the High Court’s decision in R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, it was

“generally accepted law in Australia that, in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is may possibly be inflicted) yet he went ahead and acted. That general acceptance in Australia appears to have flowed from the decision of the English Court of Criminal Appeal in R v Cunningham [1957] 2 QB 396, as explained by that court in R v Mowatt [1968] 1 QB 421 at 426”.

76. Hunt J further held that this “generally accepted” position had not been altered by R v Crabbe (supra). The charge in R v Crabbe was murder under the common law. The High Court held that in the absence of proof of intention to kill or to inflict grievous bodily harm, murder may be constituted by the accused acting with foresight that his actions would probably cause death or grievous bodily harm, but not by the accused acting with foresight of one of those results as no more than a possibility. The High Court explained the basis in principle for this position in the following passage at p 469:

“The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. … [Citations omitted] It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word "probable" means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result. The former is not a case of murder even if death ensues, unless death or grievous bodily harm is intended (or, perhaps - and it is unnecessary to consider this proposition - unless the act is done with the intention and for the sole purpose of creating a risk of death or grievous bodily harm).”

77. In R v Coleman (supra), Hunt J considered the statutory offence of murder under s 18 Crimes Act which, like the common law, extends to cases where the act causing death has been done with “reckless indifference to human life”. His Honour cited R v Annakin (1988) 17 NSWLR 202 (n) in which this court applied R v Crabbe to a case of murder involving reckless indifference to life under s 18.

78. Subsection 2(a) of s 18 provides that “no act or omission which was not malicious” shall support a charge of murder. It was argued in R v Coleman that because of this requirement to prove malice coupled with the fact that “reckless indifference to life” in a case of murder under s 18 required proof that the accused foresaw the probability of death or grievous bodily harm being occasioned, therefore malice as defined in s 5 would require proof of foresight of the probability of relevant consequences wherever malice was an element of any statutory offence. This was rejected by Hunt J in R v Coleman at 476B – C:

“The degree of reckless indifference required for the crime of murder… is altogether of a different order to that required for lesser crimes. The contemplation by the accused of the probable consequence of death is required for murder because it has to be comparable with an intention to kill or to do grievous bodily harm. Such a test of probable consequences is by no means required in relation to lesser crimes as a matter of law, logic or of common sense. I am therefore satisfied that the judge’s direction was not in error.”

79. R v Coleman has since been applied by this court repeatedly, both in relation to offences which import the element of acting “recklessly” through the definition of malice in s 5 and in relation to offences which, since the repeal of s 5, have employed the word “recklessly” in their statutory formulation. Cases in the former category include Stokes and Difford v R (1990) 51 A Crim R 25 at 40 – 41; R v Baker [1999] NSWCCA 129 at [28] – [35]; R v Mostyn [2004] NSWCCA 97 at [91] – [100]; Pengilley v R [2006] NSWCCA 163 at [34] – [41] and Cryer v R [2010] NSWCCA 18 at [24] – [28]. The repeal of s 5 and the removal of the word “malicious” from a number of sections of the Crimes Act took effect from 15 February 2008. This court has continued to apply R v Coleman to those statutory offences which now directly employ the word “recklessly”: Blackwell v The Queen [2011] NSWCCA 93; (2011) 81 NSWLR 119 at [76] – [78] and [82]; Chen v R [2013] NSWCCA 116 at [34] and CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134 at [36] – [37].

80. The appellant submits that “there is no reason to distinguish between recklessness in the case of murder and recklessness in any other case”. On that basis he argues that because of the High Court’s holding in R v Crabbe, R v Coleman should not be followed and all statutory offences under the Crimes Act which require the Crown to prove that the accused acted recklessly should be construed as requiring proof that the accused foresaw the probability, rather than the possibility, of the relevant consequence – be it actual bodily harm, wounding, grievous bodily harm or the like. Applying the approach laid down in the authorities cited at [25] above I do not consider that the decisions in R v Coleman and the many cases which have followed it were wrong. Accordingly, the appellant’s argument must be rejected.

81. In R v Campbell [1997] 2 VR 585 at 593, Hayne JA (as his Honour then was) and Crockett AJA considered that a Victorian statutory offence of recklessly causing injury required proof that the accused acted with foresight of the probability of injury. Their Honours said “the spirit of the decision in Crabbe indicates” that earlier decisions allowing for proof of foresight of possibility in relation to unlawful and malicious wounding and the like “should not be applied to the offence of recklessly causing injury”.

82. The appellant urges that R v Campbell be applied to the meaning of “recklessly” in s 5 as it stood when the events with which the present case is concerned took place. However this Court has already considered R v Campbell and determined not to follow it: Blackwell v The Queen (supra) at [77] – [78]. Again, I see no reason to doubt the correctness of Blackwell v The Queen.

83. The appellant also submitted that even if the Court should continue to follow R v Coleman, “that line of authority was not intended to encompass the recognition and disregarding [by an accused] of any and all possibilities of harm regardless of how remote. The requirement of malice is not satisfied by a realisation of a merely theoretical possibility of harm”. The appellant contends that the learned trial judge should have directed the jury that “the requirement of recklessness is only satisfied where the accused treated the possibility of harm as a matter of reality”.

84. I do not consider that the requirement of proof that the accused had foresight of the possibility of the virus being transmitted to GB, in accordance with the line of authority commencing with R v Coleman, called for any direction to the jury requiring them to distinguish between a “merely theoretical possibility” which may have been appreciated by the accused and a “possibility of harm as a matter of reality”. “Possibility” is an ordinary English word of perfectly clear meaning. It was sufficient for the jury to have been directed in the terms quoted at [72] and in the passages of the summing up identified at [73].

85. As the manner in which the jury was directed upon the element of recklessness was fundamental to their deliberations, I would grant leave under rule 4 notwithstanding that the point comprehended by Ground 3 was not taken by counsel at trial. However for the reasons given I would reject this ground.

Conclusion

86. For these reasons I propose the following orders of the Court:

1. Leave to appeal granted with respect to all grounds.

2. Appeal dismissed.

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Decision last updated: 18 December 2015