James Latham Peters v The Queen[No 2]
[2019] VSCA 292
•10 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0109
| JAMES LATHAM PETERS | Applicant |
| v | |
| THE QUEEN [No 2] | Respondent |
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| JUDGES: | MAXWELL P, KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 November 2019 |
| DATE OF JUDGMENT: | 10 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 292 |
| JUDGMENT APPEALED FROM: | [2013] VSC 93 (T Forrest J) |
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CRIMINAL LAW – Appeal – Conviction – Negligently causing serious injury – Doctor transmitted hepatitis C virus to patients – Some patients ‘cleared’ virus without treatment – Whether transmitting disease constituted ‘causing serious injury’ – Whether disease must become symptomatic – Crimes Act 1958 s 24 – Welsh v The Queen (Victorian Court of Criminal Appeal, Crockett, King and Tadgell JJ, 16 October 1987), Aubrey v The Queen (2017) 260 CLR 305, applied – Houghton v The Queen (2004) 28 WAR 399, R v Chan-Fook [1994] 1 WLR 689, R v Mwai [1995] 3 NZLR 149, considered – Seriousness assessed at time of injury informed by hindsight given subsequent events – Whether medical intervention or availability of new treatments relevant to assessing seriousness – R v Lobston [1983] 2 Qd R 720, Wick v The Queen [2017] NSWCCA 244, R v Lovell; Ex parte Attorney-General (Qld) (2015) 252 A Crim R 362, considered.
CRIMINAL LAW – Appeal – Conviction – Application to extend time to seek leave to appeal after guilty pleas – Whether applicant could not have been convicted on facts alleged – Whether integrity of pleas compromised by not being attributable to genuine consciousness of guilt – Whether issuable question of guilt – Gurappaji v The Queen [2018] VSCA 187, R v Murphy [1965] VR 187, R v Forde [1923] 2 KB 400, Weston (a Pseudonym) v The Queen (2015) 48 VR 413, Meissner v The Queen (1995) 184 CLR 132, applied.
WORDS AND PHRASES – ‘injury’, ‘serious injury’, ‘causing serious injury’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M FitzGerald (Solicitor) | Doogue & George Pty Ltd |
| For the Respondent | Mr C Boyce QC with Ms G A Coghlan | Solicitor for Public Prosecutions |
MAXWELL P
KAYE
McLEISH JA:
Introduction and summary
The applicant James Peters was an anaesthetist who between March 2006 and 7 December 2009 carried out anaesthetic procedures at Croydon Day Surgery. In 1997 he was diagnosed with hepatitis C. Despite knowing of his infection, between
6 June 2008 and 20 November 2009 the applicant repeatedly stole syringes of the drug fentanyl from the operating theatre, took them to a private place, injected himself and then re-used the same syringe on a patient.
As a consequence of this conduct, 55 of the applicant’s patients were infected with hepatitis C. Of those patients, about eight to ten tested positive for hepatitis C antibodies but negative for the virus itself, meaning that by the time of testing they had ‘cleared’ the virus with which they had been infected.
After a plea of guilty, the applicant was sentenced by a judge in the Trial Division on 7 March 2013 to a total effective term of 14 years’ imprisonment on
55 charges of negligently causing serious injury contrary to s 24 of the Crimes Act 1958. He was sentenced to five years’ imprisonment on each charge, with two months of each sentence other than the base sentence being cumulated. A non-parole period of ten years was fixed.
The applicant made an unsuccessful application for leave to appeal against sentence in 2013.[1] He now seeks an extension of time within which to make an application for leave to appeal against conviction, relying on two proposed grounds. The first proposed ground is that certain of the convictions are ‘unsafe and unsupported by the evidence’, including because infection with hepatitis C virus, without more, did not constitute a ‘serious injury’ for the purposes of s 24. The second is that there is fresh evidence which gives rise to a reasonable possibility that a miscarriage of justice has occurred. The fresh evidence is said to be that new treatment options for hepatitis C have become available with close to a 100 per cent success rate, meaning that people infected with the hepatitis C virus who take the new medications will not develop long term injurious symptoms. It is said that the applicant would not have entered guilty pleas to several of the charges if this evidence had been available at the time.
[1]Peters v The Queen [2013] VSCA 222.
The applicant seeks leave to appeal out of time. He seeks that extension on the basis that the fresh evidence on which he relies was not available at the time of his conviction or within the appeal period. It is said that the fresh evidence only became available as a result of recent advances in medical science and changes in government policy. The applicant also submits that he was not able to engage new legal representatives until 2017 when he was offered pro bono representation. In an affidavit sworn in support of the application for an extension of time, he states that his understanding at the time of the plea was that infection was deemed a serious injury. He became aware of new treatments for hepatitis C in ‘late 2015 or early 2016’ when a brochure was distributed to him in prison and he personally underwent treatment. The applicant states that he made ‘numerous’ attempts to secure legal representation since becoming aware of the new treatment, but was unable to do so because of his impecuniosity. He states that, since a settlement reached with his victims between November 2014 and April 2015, he has not ‘had control over any assets’. The applicant also says that he is in a dispute with Victoria Legal Aid which has prevented him from obtaining further legal aid for the present application. The affidavit states that the applicant’s current legal representative only came into contact with him, offering pro bono assistance, in March 2017.
The respondent opposes the extension of time application. It is submitted that the applicant’s affidavit does not adequately explain the five year delay and that the proposed grounds of appeal lack merit. The respondent also points to the public interest that the finality of the proceedings is maintained, especially in the present case because of the potential for unnecessary further suffering for the victims.[2] The respondent notes that approximately ten years have passed since the victims were infected, that they were not required to give evidence in the earlier proceedings and they have been making attempts at recovery.
[2]Relying on Gray (a Pseudonym) v The Queen [2018] VSCA 163 [25] (Priest, Beach and Niall JJA).
The respondent also contended that the applicant had delayed in bringing the application. He had the services of senior counsel at the committal, on the plea and in the appeal against sentence. He became aware of new treatments in 2015 or early 2016 and obtained the assistance of his current legal representative in March 2017, but the application for an extension of time was not made until 8 June 2018.
For the reasons that follow, the proposed appeal reveals no substantial miscarriage of justice and the extension of time should be refused.
Proposed grounds of appeal
The applicant wishes to seek leave to appeal against his convictions on the following two grounds:
Ground 1: The convictions are unsafe and unsupported by the evidence.
PARTICULARS
(a)There was no evidence that the applicant had caused serious injury.
(b)There was no basis on which the applicant could be convicted in circumstances in which his negligent conduct had resulted in an infection that would or might cause serious injury after a long time.
Ground 2:There is fresh evidence, the admission of which gives rise to a reasonable possibility that a miscarriage of justice has occurred.
PARTICULARS
(a)Since the applicant’s conviction, new medications have been developed and approved by the Commonwealth government for use in the treatment of hepatitis C.
(b)The new medications have a success rate of one hundred percent, or close to one hundred percent, in eliminating the hepatitis C virus.
(c)The new medications will be made available for all persons infected with hepatitis C.
(d)Persons who take the new medications will not develop the long term injurious symptoms of hepatitis C infection (in particular, liver damage).
(e)Had evidence of the availability of the new medications and treatments been available at the time of the applicant’s trial proceedings, his pleas of guilty would not have been entered.
Statutory definitions
At the time of the offences,[3] s 24 of the Crimes Act provided:
[3]The definition of injury in s 15 of the Crimes Act 1958 was substantially amended in 2013 to include ‘physical injury’, which was further defined as including ‘infection with a disease’. ‘Serious injury’ was also redefined in 2013 as including ‘an injury (including the cumulative effect of more than one injury) that—(i) endangers life; or (ii) is substantial and protracted’.
24 Negligently causing serious injury
A person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence.
Penalty: Level 5 imprisonment (10 years maximum).
Section 15 included the following definitions:
injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function;
…
serious injury includes—
(a) a combination of injuries; …
Hepatitis C virus
The sentencing judge found that the applicant had given his victims ‘a virus from which there is no certain recovery’.[4] He had placed most of them at risk of developing cirrhosis of the liver and liver cancer. The judge also found that the applicant had caused all his victims to suffer ‘significant emotional trauma’.[5]
[4]R v Peters [2013] VSC 93 [1] (T Forrest J).
[5]Ibid.
The judge did not make findings as to the effects of the hepatitis C virus. However, the Crown opening on the plea (which was not contested) stated:
Research has shown that if 100 people are infected with Hepatitis C, about 25 of those will clear the virus completely within two to six months of infection but will continue to have Hepatitis C antibodies in their blood and are thus at risk of transmitting the disease. About 75 of the 100 people who do not clear the virus will develop ongoing (or chronic) infection and are at risk of developing cirrhosis of the liver. After an average of 15 years, between 40 and 60 of the 75 people with chronic Hepatitis C will experience some symptoms and develop liver damage. After 20 years, between 5 and
10 people with liver damage will develop cirrhosis. Between 2 and 5 of these people will experience liver failure or develop a form of liver cancer known as hepatocellular carcinoma.
The major factor with Hepatitis C is that the natural history is described over 40 years. Of those infected after 40 years 20% of those chronically infected will have cirrhosis, half of whom will develop cancer. This is a ticking time bomb and it will tick until 2050.
The evidence on the plea included the statement of Dr Alex Thompson, a gastroenterologist and hepatologist, dated 28 June 2011. Dr Thompson stated that ‘acute’ hepatitis C is defined as presenting within six months of exposure. Approximately 20 per cent of patients infected with hepatitis C virus would spontaneously ‘clear’ the infection within that period. The remaining 80 per cent would progress to the chronic stage, in which spontaneous clearance is very rare and infection is life-long.
Dr Thompson explained that there are different kinds or ‘genotypes’ of the virus, the most common in Australia being genotypes 1 and 3. Genotype 1, sub-type 1b of which was the kind with which the applicant and his victims were infected, is harder to treat.
Dr Thompson described the main treatment available at the time, involving a weekly injection and daily tablets for a period of 48 weeks. The aim of curing the infection was to prevent the complications caused by the infection. The cure rate for patients chronically infected with genotype 1 virus was approximately 40 to
50 per cent. Dr Thompson stated that the most common side effects to this treatment included flu-like effects such as fatigue, headache, fever and sweats, which occur in more than half of all patients. Other common side effects were said to include nausea, anorexia, diarrhoea and weight loss, itch, rash, and hair thinning (usually reversible). Between 10 and 14 per cent of patients had to discontinue treatment during registration trials, due to adverse events.
Dr Thompson stated that blood tests are frequent for patients undergoing treatment, with a common finding being a reduction in blood counts. The treatment was said to cause bone marrow suppression and severe reductions in haemoglobin. A severe reduction in white cell counts occurred in 4 per cent of patients and was associated with a risk of serious infection. Treatment was also said to potentially result in anaemia, which occurred in about one third of patients, potentially causing tiredness, shortness of breath and decreased energy levels.
Dr Thompson also stated that psychiatric side effects from treatment were common, with depression, irritability and insomnia occurring in approximately
30 per cent of patients. One of the medications was said to carry a risk of autoimmune disorders (such as thyroid disease in 10 to 15 per cent of patients), or the risk of worsening pre-existing autoimmune disorders.
Dr Thompson stated that those patients who were not cured (50 to 60 per cent in cases of chronic genotype 1) remained at risk of cirrhosis, liver failure and liver cancer. He also noted that no alternative therapies were then available, but that direct acting antiviral therapies were expected to become available in Australia in the next two to three years, to be used in combination with existing medications. This was expected to increase cure rates significantly, but to be associated with an increased risk of side effects.
Applicant’s evidence as to basis of guilty plea
The applicant swore an affidavit on 18 May 2018 in which he deposed, among other things, to the circumstances in which he pleaded guilty. In particular, he stated that he pleaded guilty under the mistaken belief that infection with hepatitis C virus was deemed by statute to constitute ‘serious injury’. In submissions, this misapprehension was said to show that his guilty pleas were not attributable to a genuine acknowledgment of the commission of the offences. The applicant did not state the basis for his misapprehension, beyond saying that he ‘had been advised’ to the effect. He referred at some length to the advice he received from senior counsel, but conspicuously did not state that he had received legal advice that the law deemed infection with hepatitis C virus to be a serious injury.
The applicant also states that, at the time of the pleas, he was under a great deal of mental and financial pressure and ‘in a constant state of depression and mental confusion’. He decided that he ‘had to plead guilty in order to avoid all of the details being aired in court and broadcast in the media’ because of his concern about the effect this would have on family members.
It should also be noted that the applicant deposes to having decided to plead guilty, with legal advice, after the prosecution agreed to drop more serious charges of reckless conduct endangering life and recklessly causing serious injury.
First proposed ground — No evidence of serious injury
The applicant submitted that merely being infected with hepatitis C virus could not constitute a serious injury. It was only when the injurious consequences of the infection manifested that the virus could be said to cause an injury. The applicant submitted that proof of ‘injury’ required actual damage to the host, or disease symptoms, and not simply proof of the presence of the infection. The applicant relied on Alcan Gove Pty Ltd v Zabic[6] and Houghton v The Queen,[7] to which it will be necessary to return. Only once there was an ‘injury’ did the question arise whether that injury was serious. In that context, disease symptoms which merely interfere with a person’s bodily health and comfort were said not to constitute a ‘serious’ injury.
[6](2015) 257 CLR 1 (‘Alcan Gove’).
[7](2004) 28 WAR 399 (‘Houghton’).
In his written case, the applicant contended that at the time of the guilty pleas, the infection only had the potential to cause future injurious effects (including liver failure and liver cancer), and only in about 47 of the 55 cases. The actual effects at the time of the pleas, however, were said to be limited to those that arose in the acute stage within six months of exposure, as to which the prosecution had advanced no evidence. At the oral hearing, Dr FitzGerald, who appeared for the applicant, conceded that he could not maintain that submission for all 55 cases. He accepted that it was open to the jury to find that the applicant had caused serious injury in the case of those victims who had displayed symptoms of hepatitis C. He did not, however, specify the number or identity of those victims in respect of whom the first ground was pressed. Dr FitzGerald said that the argument embraced those who had ‘cleared’ the virus as well as those who were ‘asymptomatic’ at the time of the plea hearing. The parties agreed that, if Dr FitzGerald’s legal argument as to the causing of injury was sustained, it would be necessary for a factual inquiry to be undertaken to determine the practical application of the correct legal test, but that this exercise could be deferred until it might become necessary.
Dr FitzGerald submitted that, to the extent that the above approach to the proof of ‘injury’ made establishing the offence more difficult, a more appropriate charge would have been an ‘endangering’ offence.[8] He submitted that the evidence could not establish more than the potential for future serious injury and that, where the victim had either ‘cleared’ the virus or displayed no symptoms at the time of the plea, a case of serious injury could not be sustained. In that regard, Dr FitzGerald disputed the statement in the prosecution’s plea opening, set out earlier, to the effect that those who had ‘cleared’ the virus remained capable of infecting others. It was also said that the statement was absent from material relied upon by the prosecution until the plea hearing. As noted below, he sought to lead expert evidence to disprove that statement.
[8]At the relevant time, s 22 of the Crimes Act made it an offence recklessly to engage in conduct that may place another person in danger of death (with a maximum penalty of ten years’ imprisonment) and s 23 proscribed recklessly engaging in conduct that may place another person in danger of serious injury (with a maximum penalty of five years’ imprisonment).
The respondent submitted that the sentencing judge convicted and sentenced the applicant on the facts as they were known at the time and that these facts were agreed by the parties. At the time of conviction, ‘serious injury’ had a broad meaning and involved a value judgment to be made by a jury about the gravity of the injury or injuries. The respondent relied on Welsh v The Queen,[9] R v Ferrari[10] and R v Cogley.[11]Injuries such as two black eyes and grazes to the head have been held to constitute a serious injury, and psychological injury can be sufficient.[12]
[9]Victorian Court of Criminal Appeal, Crockett, King and Tadgell JJ, 16 October 1987 (‘Welsh’).
[10][2002] VSCA 186.
[11][1989] VR 799.
[12]Ferrari v The Queen [2002] VSCA 186 [2], [8] (Winneke P, with Eames JA and O’Bryan AJA agreeing).
The respondent submitted that it was reasonably open to regard the fact of being infected with a virus such as hepatitis C, that permeates every bodily cell of the victim, as a serious injury. Infection constituted a serious injury even for those patients who were infected but had ‘cleared’ the virus. The applicant at the plea accepted that the patients who had cleared the virus were not to be treated differently for the purposes of sentencing. Mr Boyce QC, for the respondent, submitted in this Court that the question of seriousness fell to be decided as at the time when the injury was suffered, namely the time of infection. At that point, it was not known whether the person who suffered the injury would experience symptoms at a later date or ‘clear’ the virus, but the potential impact of the infection meant that it could readily be regarded as ‘serious’.
Those potential consequences of the infection included experiencing symptoms in its early stages. In the victim impact statements, some victims had described symptoms including being ‘really sick for about eight weeks’, loss of vision, lethargy, body aches, hot and cold flushes, liver pain and constipation. Some victims had endured extensive treatment with significant side effects and no certainty of a cure. The effects of treatment included rashes over almost all of one victim’s body, memory loss, nausea, vomiting, hair loss, constant tiredness and 30 kg of weight loss, daily flu-like symptoms, daily injections for extended periods of time and poor appetite. These impacts were to be anticipated even without considering the potentially life-threatening consequences of the virus, including cirrhosis, liver failure and liver cancer.
The respondent relied on the High Court’s decision in Aubrey v The Queen, concerning whether having sexual intercourse with another person, and thereby causing that person to contract a serious disease, was capable of amounting to the infliction of grievous bodily harm within the meaning of s 35(1)(b) of the Crimes Act 1900 (NSW).[13] It will be necessary to return to this case also.
[13](2017) 260 CLR 305.
Second proposed ground — Fresh evidence of new treatment
The applicant submitted that, since the pleas, there was fresh evidence of new treatments by means of combinations of medications with fewer side effects and a cure rate of close to 100 per cent. Reliance was sought to be placed on a statement of the Gastroenterological Society of Australia from 2017[14] and a 2015 parliamentary report.[15] It was submitted that the new treatments typically lasted 8 to 12 weeks, rather than 48 weeks. The side effects were said to include headaches, fatigue and nausea, typically mild in nature and infrequent. It was submitted that, had this evidence been available at the time of the guilty pleas, the applicant would not have entered those pleas. There would have been no grounds to believe that serious injury had been caused, rather than a treatable infection which had, in some cases, initially presented with flu-like symptoms.
[14]Gastroenterological Society of Australia, Australian recommendations for the management of hepatitis C virus infection: a consensus statement (August 2017).
[15]House of Representatives Standing Committee on Health, Parliament of Australia, The Silent Disease: Inquiry Into Hepatitis C in Australia (Final Report, June 2015).
In oral argument, Dr FitzGerald accepted that this argument could not avail the applicant in respect of those cases in which he conceded that it had been open to find serious injury. As such, the argument was confined to the cases where the victim had either ‘cleared’ the virus or had shown no symptoms at the time of the plea hearing. As argument progressed, it also became clear that the argument could not avail those who had ‘cleared’ the virus, because the nature of the treatment that was available for the virus was irrelevant to those people.
The respondent submitted that the material relied on by the applicant did not constitute fresh evidence. The prosecution had noted in the plea hearing that treatment of hepatitis C was undergoing rapid development over time and that prognoses were significantly improving. The evidence sought to be relied on was therefore available at sentencing.
The respondent submitted that, in any event, the evidence was not admissible because it consisted of either the applicant’s inexpert opinion or hearsay evidence of the contents of the 2015 parliamentary inquiry report and the statement of the Gastroenterological Society.
Moreover, the respondent submitted that there was not a significant possibility that the evidence would have led to an acquittal, because (as contended under the first proposed ground) serious injury was established through infection alone. The fact that, had the injury been suffered today, the prognosis might be different, was said not to affect that position. Nor, the respondent submitted, would the fact that new treatment becomes available serve to deny that the condition being treated amounted to a serious injury when it was suffered.
Applicant seeks leave to examine Dr Thompson
The applicant sought to meet the alleged deficiencies in the evidence by making an application under s 318 of the Criminal Procedure Act 2009 to examine
Dr Thompson. It was submitted that it was in the interests of justice for
Dr Thompson to be examined regarding whether there was evidence capable of amounting to serious injury in the case of the patients who had ‘cleared’ the virus, as well as in the case of those who were yet to show symptoms, and as to the availability and efficacy of new treatments for hepatitis C. The evidence sought to be adduced included evidence contesting the statement in the prosecution plea opening to the effect that those who had been ‘cleared’ of hepatitis C infection remained at risk of infecting others with the virus.
The Court heard argument on this application at the same time as it heard the substantive applications, and indicated that it refused the application. Shortly stated, that was because the proposed evidence as to new treatments did not bear on the situations of those victims who had been ‘cleared’ of the virus and did not materially alter the evidentiary position regarding those who were yet to show symptoms because it was accepted at the plea that new treatments with significantly increased cure rates were likely shortly to become available. As far as evidence of the effect of being ‘cleared’ was concerned, that was a matter ventilated at the plea hearing, at which the applicant was legally represented. We did not consider it to be in the interests of justice to permit the applicant to seek to contradict the basis upon which the matter had proceeded to date.
Conviction appeals after a guilty plea
The test for determining whether a conviction should be set aside following a plea of guilty is whether the applicant has established a substantial miscarriage of justice, in accordance with s 276(1) of the Criminal Procedure Act 2009. Although most cases in this area have been decided under earlier criminal appeal provisions, those cases remain a useful guide to the kinds of circumstances that will tend to satisfy the modern test.[16]
[16]Gurappaji v The Queen [2018] VSCA 187 [5] (Priest, Beach and Weinberg JJA) (‘Gurappaji’).
Although the categories of miscarriage of justice are of course not closed, two kinds of situation have emerged repeatedly in the cases.[17] As articulated by Avory J in R v Forde,[18] they are, first, where the applicant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it, and secondly, where the applicant could not in law have been convicted of the offence charged on the facts alleged.
[17]Ibid [6]–[7]; R v Murphy [1965] VR 187, 190 (Sholl J) (‘Murphy’).
[18][1923] 2 KB 400, 403.
The first of these cases can be described as challenging the integrity of the plea in the sense that it was not really attributable to a genuine consciousness of guilt.[19] Of itself, that will ordinarily only suffice to warrant a new trial if, in addition to doubt attaching to the integrity of the plea, it is shown that there was an ‘issuable question of guilt’, meaning a genuine issue as to the guilt of the accused.[20]
[19]Murphy [1965] VR 187, 190 (Sholl J); Weston (a Pseudonym) v The Queen (2015) 48 VR 413, 445–6 [109(13)] (Redlich JA) (‘Weston’); Kohari v The Queen [2017] VSCA 33 [122] (Weinberg and Kyrou JJA).
[20]Murphy [1965] VR 187, 190 (Sholl J); Jamieson v The Queen [2017] VSCA 140 [79]–[81] (Ashley, Osborn and Santamaria JJA) (‘Jamieson’); Rotner v The Queen [2011] NSWCCA 207 [49] (Simpson J, with McClellan CJ at CL and Fullerton J agreeing); Weston (2015) 48 VR 413, 432 [77], 444 [109(5)] (Redlich JA).
The second kind of circumstance does not involve merely an arguable case as to the guilt or otherwise of the accused. It involves a relatively narrow class of case in which the material relied upon by the Crown was insufficient at law to sustain a conviction on the charge in question.[21] In this situation, the focus is not on the integrity of the plea but on the conviction itself. The conviction involves a miscarriage of justice because the facts alleged simply could not support a conviction, or the charge in question was not known to the law.
[21]Jamieson [2017] VSCA 140 [44(6)] (Ashley, Osborn and Santamaria JJA); Galasso v The Queen (1981) 4 A Crim R 454, 457 (Samuels JA, with Begg and Slattery JJ agreeing).
In contrast, identification of a mere issue as to the guilt or innocence of the person who has pleaded guilty, without more, will rarely if ever warrant setting aside a conviction after a plea of guilty. This itself respects the integrity of the plea and the high public interest attached to finality of criminal proceedings.[22] It also recognises the fact that, in pleading guilty, an accused will have chosen to forego potential defences in the hope of deriving some compensating benefit. Dawson J explained in Meissner v The Queen that an accused may be motivated
for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.[23]
[22]Gurappaji [2018] VSCA 187 [9] (Priest, Beach and Weinberg JJA), quoting R v BDC [2018] QCA 132 [6] (Philippides JA, with Sofronoff P and Henry J agreeing).
[23](1995) 184 CLR 132, 157.
Meissner concerned a conviction for perverting the course of justice. The following observations from the judgment of Brennan, Toohey and McHugh JJ have general application to cases where the facts alleged would suffice at law to sustain a conviction on the relevant charge:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.[24]
[24]Ibid 141.
In the present case, the applicant sought to rely on both of the circumstances identified by Avory J in Forde.[25] In so far as he sought to impugn the integrity of his pleas of guilty, the argument may be shortly rejected. The evidence rises no higher than suggesting that the applicant felt stressed, anxious and depressed, and had the mistaken impression that hepatitis C was the subject of a specific provision of the Crimes Act deeming it to constitute a serious injury. As already mentioned, that impression is not said to have derived from legal advice. Moreover, the evidence is that the pleas were voluntarily entered into following negotiations between senior counsel representing the applicant and prosecutors, which led to more serious charges being discontinued. Nothing in this material suggests that the plea did not reflect a consciousness of guilt on the part of the applicant. To the contrary, the objective circumstances point to a well-represented accused knowingly and voluntarily pleading guilty after the conduct of very successful pre-trial negotiations on his behalf.
[25][1923] 2 KB 400, 403.
The alternative basis advanced by the applicant is that he could not in law have been convicted of the offences with which he was charged. If so, the case falls within the second situation identified by Avory J and, notwithstanding the applicant’s conscious decision to plead guilty, the convictions would by definition involve a serious miscarriage of justice.
This raises the fundamental question argued on the application, namely whether it was possible for the applicant to have been guilty of causing serious injury to those complainants who at the time of the pleas had ‘cleared’ the hepatitis C virus or were asymptomatic. In order to demonstrate that his conviction on the relevant charges involved a substantial miscarriage of justice, this Court must be satisfied that, on the material relied on by the prosecution, a jury could not reasonably have been satisfied beyond reasonable doubt that the applicant caused the complainants in question serious injury.
‘Serious injury’ (proposed grounds 1 and 2)
As set out earlier, the Crimes Act at the relevant time contained only inclusive definitions of ‘injury’ and ‘serious injury’. In most cases, the question is whether a given injury rises to the level of ‘serious injury’. However, the present case also involves the anterior question whether there is an ‘injury’. It will be necessary to consider these issues independently, but the point may be made at the outset that both are ordinary English expressions readily capable of being understood and applied by a jury. This was explained, in relation to the word ‘serious’, in Welsh v The Queen.[26] In that case, the victim had suffered cuts, a swollen inner lip, bruising of both eyes, bruising of the left forearm and a broken tooth. Crockett J (with whom King J agreed) explained:
There is no exclusive definition of the word ‘serious’ in the Act. It was left to the jury to determine as a matter of fact what injury or injuries in combination might properly be categorised as being serious having regard to the fact that the word ‘serious’ is an ordinary English word, the meaning of which must be taken as well understood by the members of the jury. This accordingly required that it be left to the jury to determine as a fact whether the injuries as it found them to have been should have been properly treated as ‘serious’ injuries.
There must, of course, be a stage in which it would be impossible having regard to the ordinary meaning to be given to the word, for any tribunal of fact to find that an injury proved to have occurred could be classified as serious. If the stage were reached where it could not be so categorised then, of course, there would be insufficient evidence for the jury to make a finding of an injury as being serious in such an instance. In that case, it would be for the Judge to remove the matter from the jury's consideration.[27]
[26]Victorian Court of Criminal Appeal, Crockett, King and Tadgell JJ, 16 October 1987.
[27]Ibid 10.
Tadgell J quoted from the reasons of Brooking J in R v Rhodes to similar effect.[28] He continued:
A determination whether a given injury or series of injuries can be characterised as ‘serious injury’ in terms of s 16 of the Crimes Act will, no doubt, involve a value judgment. That judgment will, in turn, involve a comparison between the injury or injuries in question alleged to be serious injury and an injury or injuries which would, according to ordinary human experience, be commonly regarded as slight, superficial or trifling, and therefore falling short of being serious injury.
The particular surrounding circumstances will or might also be relevant. The age, the sex, state of health and physical and mental circumstances of the victim might well require consideration.[29]
[28]Ibid 17, citing R v Rhodes (Victorian Court of Criminal Appeal, 14 November 1984).
[29]Ibid 18. See also Ferrari v The Queen [2002] VSCA 186 [6]–[7] (Winneke P, with Eames JA and O’Bryan AJA agreeing).
The word ‘injury’ as used in s 24 is somewhat more nuanced, because the inclusive definition makes it clear that it includes unconsciousness, ‘hysteria’ and pain. It is plain, therefore, that physical injury is not essential. It is not necessary for present purposes to decide what limits there may be to the use of the word ‘injury’ to describe psychiatric, psychological or emotional conditions.[30] The immediate question is whether infection with hepatitis C virus may constitute an injury.
Can infection constitute an injury?
[30]Cf R v Chan-Fook [1994] 1 WLR 689, 696 (Hobhouse LJ for the Court).
In some cases, the mechanism of infection by a disease will be the subject of expert evidence. For example, in Houghton v The Queen evidence was given as to the manner in which the human immunodeficiency virus (HIV) damaged and destroyed cells in the body’s immune system, whether or not the virus later progressed to cause other ill-effects.[31] The Western Australian Court of Appeal held that the jury was properly directed that it was open to find that infection of the immune cells by the virus was a bodily injury without proof of other long-term ramifications.[32]
[31](2004) 28 WAR 399, 402–3 [11]–[13] (Murray J, with Steytler and Wheeler JJ relevantly agreeing).
[32]Ibid 403 [16].
There does not appear to have been similar evidence of cell damage in the present case (although the evidence that the virus caused bodily conditions to change sufficiently for the presence of the virus to be able to be identified by testing came very close). The case was rather advanced on the basis that the injury consisted of the bodily infection, without reliance on any specific impact at the cellular level.
The question is then whether infection by a disease can be found of itself to constitute harm or injury, irrespective of whether physical symptoms have been manifested. It is convenient to start by referring to several cases in the United Kingdom.
In R v Chan-Fook,[33] the English Court of Appeal held that ‘actual bodily harm’ was capable of including psychiatric injury or other identifiable clinical condition, as distinct from a strong emotion such as fear or panic, provided there was expert evidence to support such a finding.[34] In the course of the judgment, the Court said that the word ‘harm’ is synonymous with ‘injury’ and that ‘an injury can be caused to someone by injuring their health’.[35] However, it is clear that the Court did not consider that every interference with a person’s health or comfort could constitute an injury. It was not necessary to explore these ideas further, given the absence of expert psychiatric evidence of the kind the Court considered essential. The House of Lords approved this case in R v Ireland,[36] holding that psychiatric harm was capable of constituting ‘actual bodily harm’.[37]
[33][1994] 1 WLR 689.
[34]Ibid 696 (Hobhouse LJ for the Court).
[35]Ibid 694.
[36][1998] AC 147.
[37]Ibid 158–59 (Lord Steyn).
Relevantly for present purposes, the reasoning in Chan-Kook was adopted and applied by the English Court of Appeal in R v Dica,[38] a case concerning HIV infection. The appellant had been convicted of unlawfully and maliciously inflicting grievous bodily harm upon two women by having unprotected sexual intercourse with them when he knew himself to be infected with HIV. The judge had instructed the jury that it was immaterial whether the women had known of the infection at the time when they consented to intercourse with the appellant.
[38][2004] QB 1257 (‘Dica’).
The appellant in Dica sought to rely on the 1888 decision R v Clarence,[39] which held that a man could not be convicted of inflicting grievous bodily harm, or an assault occasioning actual bodily harm, as a result of having infected his wife with gonorrhoea through consensual sexual intercourse. Among the reasons for that decision, in which several different judgments were written by members of the majority, were that both ‘grievous bodily harm’ and an ‘assault occasioning actual bodily harm’ require such harm to be the ‘manifest immediate and obvious result’ of an assault.[40] The Court in Dica rejected this reasoning, noting that the Court in Chan-Fook had stated that an injury can be caused to someone by injuring their health and that an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill, even without the infliction of external injury.[41]
[39](1888) 22 QBD 23.
[40]Ibid 41 (Stephen J).
[41]Dica [2004] QB 1257, 1265 [27] (Judge LJ for the Court), citing Chan-Fook [1994] 1 WLR 689, 694 (Hobhouse LJ).
In reliance on the above line of authority, the English Court of Appeal held in R v Golding[42] that a person suffering from a sexual disease who has sexual intercourse with a person, knowing that the person was unaware of that condition, may be guilty of recklessly inflicting grievous bodily harm without the need for any assault to have been committed.
[42][2014] EWCA Crim 889 [67] (Treacy LJ).
The High Court reviewed Chan-Fook, R v Ireland and Dica in Aubrey v The Queen.[43] The case concerned a conviction for maliciously inflicting grievous bodily harm. The appellant had unprotected sexual intercourse with the complainant while knowing that he was infected with HIV. The relevant issue was whether the act of sexual intercourse, causing the other participant to contract HIV, was capable of amounting to the infliction of grievous bodily harm for the purposes of s 35(1)(b) of the Crimes Act 1900 (NSW).
[43](2017) 260 CLR 305.
The majority approved the reasoning in Chan-Fook, Ireland and Dica.[44] It held that:
it now accords with ordinary understanding to conceive of the reckless transmission of sexual disease by sexual intercourse without disclosure of the risk of infection as the infliction of grievous bodily injury. Viewed in hindsight, a deal of the majority’s reasoning in Clarence presents as based on a necessarily more rudimentary understanding of infectious diseases, a consequent fear of the unpredictability of what might be the consequence of recognising the spread of infectious disease as the infliction of serious bodily harm and, ultimately, what now appears as an unwarranted concern that it may prove impossible to define the demarcation between culpable and non-culpable non-violent acts that transmit infectious diseases.[45]
[44]Ibid 321 [26] (Kiefel CJ, Keane, Nettle and Edelman JJ).
[45]Ibid 320 [24].
Addressing the meaning of ‘inflict’, the majority said:
Counsel for the appellant contended that the word ‘inflicts’ connotes the production of an immediate consequence with the result that, because the symptoms of the HIV which the appellant transmitted to the complainant were not immediately apparent, it could not be said that there had been any infliction of disease or injury. Arguably, that idea derives some support from some of the observations of Stephen J in Clarence. But it is misplaced. It rests on the kind of discredited logic that was rejected in Alcan Gove Pty Ltd v Zabic that until and unless the symptoms of an insidious disease become manifest, no damage has been inflicted. As Zabic established, that is not so.
On the appellant's submission, the ordinary acceptation of the word ‘inflicts’ does not, even now, extend to the communication of disease or infection. That contention must also be rejected. It is commonplace to speak of the infliction of suffering and thus, as counsel seemed to accept, it is now commonplace to speak of the infliction of psychiatric injury. Semasiologically, it is just as commonplace and just as appropriate to speak of the infliction of physical disease.[46]
[46]Ibid, 321 [27]–[28] (citations omitted).
Before this Court, the applicant submitted that the above reasoning was confined to the meaning of the word ‘inflict’. But that is not so. It is plain that the Court rejected the notion that the symptoms of a disease must become manifest before it can be said that there has been harm, damage or injury. The case cited by the majority, Alcan Gove Pty Ltd v Zabic,[47] bears this out.
[47](2015) 257 CLR 1.
In Alcan Gove, a worker had inhaled asbestos fibres between 1974 and 1977, resulting in molecular changes to cells in his lungs which led to the development of a malignant tumour shortly before he first experienced symptoms of mesothelioma in 2013 or 2014. He then commenced proceedings for damages in negligence against his employer. In order to bring such proceedings despite a statutory exclusion, it was necessary that the cause of action arose before 1987. The High Court held that it could be inferred from the evidence that the relevant cell changes were bound to lead ‘inevitably and inexorably’ to mesothelioma.[48] Conversely, there was no reason why it could not be inferred that there were initial molecular changes in cells which preceded the appearance of symptoms of mesothelioma.[49] The cause of action accrued when those molecular changes occurred. In other words, damage was suffered once the progression of the disease became ‘inevitable’, at the stage of cell change.
[48]Ibid 15 [27]–[28].
[49]Ibid 19 [42].
A similar approach was taken by the New Zealand Court of Appeal in
R v Mwai.[50] The case concerned a man who had unprotected sexual intercourse with several women despite knowing that he was infected with HIV. Two of the women became infected and he was charged with causing them grievous bodily harm. On appeal against conviction, he contended among other things that merely infecting the women with HIV did not cause grievous bodily harm. The argument was the same as that advanced before us, that the causing of injury requires something immediate and is not satisfied merely by pointing to the potential for future injury. The Court of Appeal rejected this argument, as follows:
In the first place, Mr Hart submitted, the section is concerned only with the immediate harmful consequences of the offender’s actions; it is not concerned with prospective harm. He argued that it is designed, at least primarily, to deal with the more serious consequences of external assault or injury, typically from a blow of some kind. There is however no such limitation in the section. All that is required for the actus reus is an act causing grievous bodily harm. The link between cause and effect is a physical one, not one of time. Usually of course the effect is instant: a blow causes a wound. But it is not necessarily so. The consequences may be delayed, but they are consequences none the less.
The evidence before the jury was that infection occurs when the virus present in the male ejaculate enters the cells of the vagina or the cervix. From there it enters the bloodstream and attacks the body’s immune system. Thereafter there is, as a medical expert witness described it, ‘a steady relentless progression’ leading to AIDS and then inevitably to death. This may occur within a few years, or even up to 20 years or more, but there is at present no real hope of escape. The doctor described it as one of the most unpleasant illnesses a person can suffer from. It would be placing an unrealistically restrictive meaning on s 188 to hold that a person who brings about such consequences in another has not caused grievous bodily harm.
It will not of course be every kind of reckless infection with disease that will fall within the section. But this disease, so simply communicated, and so deadly in its outcome, is pre-eminently appropriate for a charge under the section. The Judge reminded the jury of the medical evidence that HIV ‘will sadly but inevitably lead to AIDS and to death’ and directed them that it was a matter for them as to whether that was really serious harm (the synonym for grievous bodily harm). For the reasons we have given, that was a proper direction.[51]
[50][1995] 3 NZLR 149 (‘Mwai’).
[51]Ibid 152–3 (Hardie Boys J for the Court).
The above reasoning does not depend on establishing that the symptoms of the disease are ‘inevitable’ in order for the underlying cause of those symptoms to constitute an injury. A jury may reasonably find that an infection constitutes an injury without needing to be convinced of the inevitability, or even the likelihood, of its consequences. The infection, in the case of a virus, is analogous to the cellular change considered in Alcan Gove and Houghton. As in Aubrey and Mwai, the infection itself is capable of constituting an injury irrespective of whether symptoms have become manifest. In terms used in Chan-Fook and in the legislation considered in Houghton, the injury is capable of being seen, if nothing else, as an injury to the health of the person concerned. The degree of likelihood of future consequences, and the nature of those potential consequences, then properly bear on the question whether the injury is ‘serious’.
In our opinion, it follows from these authorities that, on the Crown case, it was open to find that, when the applicant infected each complainant with hepatitis C virus, he injured her because, at that point, the complainant had become infected with the virus. There is no requirement that outward symptoms of the disease be manifest at that point. It would be absurd if it were otherwise. It would be necessary to wait until each complainant developed symptoms, perhaps many years later, in order to bring charges in respect of that complainant, even though the evidence showed the significant likelihood that such symptoms would one day present themselves. The logic of the applicant’s argument would appear to suggest that this was so, even if it could be said that the development of symptoms was inevitable. No principled basis for such an approach was suggested and we can think of none ourselves.
For the same reason, the fact that it can now be said of some complainants that they will not develop symptoms cannot alter the fact that, when they were infected, they suffered injury. (We shall return shortly to the question of seriousness in this context.) Put differently, those complainants recovered from the injury. They are in no different position in that respect from the victim of a physical injury whose wounds have healed or whose broken bones have mended.
It also follows from the above analysis that the fresh evidence sought to be relied upon by the applicant could do nothing to gainsay that it was open to regard the act of infecting each of the complainants with hepatitis C virus as the causing of an injury. We deal below with the relevance of that evidence to the question of seriousness.
Was it open to find the injuries ‘serious’?
Having concluded that it was open to conclude that the complainants suffered injury caused by the applicant when they were infected, it remains to consider the question of seriousness. We have already referred to the discussion in Welsh about the application of this term as an ordinary English word. As the case was put, two issues arise.
The first question is whether, having regard to the fact that some complainants have not exhibited symptoms, or have ‘cleared’ the virus, it was open to regard their injuries as ‘serious’. The short answer is that seriousness is to be determined at the time of the injury, albeit informed by hindsight given subsequent events. The question is whether the injury itself is ‘serious’, not whether it has had serious consequences.
The need to assess the question of seriousness as at the time of the injury is borne out by authorities in other jurisdictions. In R v Lobston,[52] the Queensland Court of Criminal Appeal held that the question of grievous bodily harm was to be evaluated at the time that the harm is done.[53] As such, the fact that a broken femur could be fully repaired did not detract from the character of the injury as grievous bodily harm. This decision was followed in R v Lovell; Ex parte Attorney-General (Qld),[54] R v Smiler[55] and Pham v The Queen.[56] Although many of these cases involved questions of statutory construction, including of the expression ‘likely to cause permanent injury to health’, they indicate the need to focus on the injury itself when assessing its nature.
[52][1983] 2 Qd R 720 (‘Lobston’).
[53]Ibid 721 (Douglas J, with Sheahan and Connolly JJ agreeing).
[54](2015) 252 A Crim R 362, 365 [8]; [2015] QCA 136 (Holmes JA, with Gotterson and Philippides JJA agreeing).
[55][2000] NTSC 56 [5]–[6] (Mildren J).
[56]
Applying this approach, it would have been well open for a jury to find that infection with the hepatitis C virus constituted a ‘serious injury’, given the potential adverse consequences of the disease. It was held, in the particular statutory context of Lobston, that this question is to be asked without reference to the prospect of medical treatment ameliorating the disease.[57] That approach was also taken by the New South Wales Court of Criminal Appeal in Wick v The Queen.[58] It reflects the fact that an injury can be serious even though it can be (and has been) remedied by medical intervention. Since the question is to be asked as at the time of the injury, the fact that medical treatment is expected to ameliorate its consequences cannot deny or undo the seriousness of the injury. The need for medical intervention may, rather, tend to show that the injury is serious. In the present case, for example, the profoundly unpleasant side effects of medical treatment were themselves advanced as part of the potential consequences of infection going to show its seriousness. Whichever way the matter is approached, the evidence that would have been available at a trial would have sufficed to justify a finding that the injuries caused were serious.
[57][1983] 2 Qd R 720, 721 (Douglas J, with Sheahan and Connolly JJ agreeing).
[58][2017] NSWCCA 244 [22] (Fagan J, with Basten JA and Beech-Jones J agreeing).
The position is no different for those who ‘cleared’ the disease. At the time of infection, which it was open to regard as constituting the causing of an injury, there was a real prospect that the disease would progress. Even though, as events transpired, the patients in question did not have that experience, the prospective impacts of infection sufficed to permit a jury to regard their injuries, when they happened, as serious. In this respect, nothing turns on the factual matter sought to be raised by the applicant regarding the possibility of those in the ‘cleared’ group infecting others with the virus.
The second question that arises is whether the development of more successful treatments since the time of the convictions bears on the question of seriousness. It may be assumed, without deciding, that the evidence of such treatments which the applicant seeks to advance is properly admissible on the present application.
The short answer is that the evidence does nothing to detract from the seriousness of the injuries at the time they were caused. As already explained, that conclusion was open irrespective of the prospects of remedial medical treatment on the evidence as it stood at the time. The analysis is unchanged by the availability (or receipt) since then of more effective treatment. Even if it could be shown that the adverse effects of hepatitis C can be wholly avoided without significant side effects, that would not alter the fact that those adverse effects were the prospective consequences of the infection, and the gravity of their nature would have sufficed to justify finding the injuries to be serious.
It should be added that the further evidence did little beyond confirming what was already known at the time of the guilty pleas, namely that more advanced treatments were shortly to become available. It appears that the new treatments may have less serious side effects than were anticipated. But the state of the evidence was that the treatments were getting better all the time. Again, that says nothing about the seriousness of the condition for which those treatments are required.
Conclusion
For the above reasons, the proposed application for leave to appeal would fail. As such, there is no reason shown to extend the time within which to seek leave. The application for an extension of time is accordingly refused.
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Western Australian Court of Criminal Appeal, Malcolm CJ, Wallace and Pidgeon JJ,
21 December 1990, 6 (Malcolm CJ).
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