Aubrey v The Queen

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.