Neal v R

Case [2011] VSCA 172 15 June 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0505
MICHAEL JOHN NEAL	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and REDLICH JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 March 2011
DATE OF JUDGMENT	15 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 172	1^st Revision 20 June 2011 [95], [98] and [108]
JUDGMENT APPEALED FROM	The Queen v Neal (Unreported, County Court of Victoria, Judge Parsons, 16 January 2009)

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CRIME – Intentionally causing another person to be infected with very serious disease – Attempt – Actus reus – Conduct constituting attempt – Whether unprotected anal intercourse ‘Immediately and not remotely connected with the commission of the offence’ – Whether act must be likely to produce intended consequence – Whether supposedly low risk of infection inconsistent with act being immediately and not remotely connected with commission of offence – Mens rea – Necessity for accused to believe himself to be infectious and not just that he may be infectious – Leonard v Morris (1975) 10 SASR 528, referred to – Crimes Act 1958, ss 19A, 321N(1)(b) – s 321N(2)(b).

Reckless conduct endangering person – Unprotected anal intercourse between HIV infected accused and uninfected complainant – Defences – Consent – Whether informed consent to risk of infection with HIV constitutes defence to reckless or intentional conduct endangering a person with infection with HIV – R v Dica [2004] QB 1257, R v Barnes [2005] 1 WLR 910, R v Konzani [2005] 2 Cr App R 14, followed; R v Mwai [1995] 3 NZLR 149, R v Lee [2006] 3 NZLR 42, R v Currier [1998] 2 SCR 371, considered.

Rape – Mens rea – Accused’s belief as to complainant’s state of intoxication and lack of comprehension of sexual nature of act – Whether necessarily following that accused aware complainant not consenting or may not be consenting – Interrelationship between s 36 and s 37AA of Crimes Act 1958 – Belief in consent – Whether accused’s belief that complainant consenting precluding finding that accused aware of possibility that complainant not consenting – R v Worsnop [2010] VSCA 188, followed - Crimes Act 1958, ss 36, 37AA and 37AAA.

Appeal against conviction allowed in part and convictions on counts of rape and reckless conduct endangering person set aside.

SENTENCE – On remaining counts, applicant re-sentenced to total effective sentence of 12 years’ imprisonment with non-parole period of nine years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M J Croucher	Victoria Legal Aid
For the Respondent	Mr G J C Silbert SC Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

REDLICH JA
KYROU AJA

Following a contested committal mention on 19 March 2007, the applicant was presented for trial on Presentment UO1180807 on multiple counts of causing or attempting to cause another person to be infected with HIV, and with a number of other offences, to which he pleaded as follows:

Offence

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Neal v R

Details

AGLC: Neal v R [2011] VSCA 172
Case: [2011] VSCA 172
Decision Date: 15 June 2011

CaseChat Overview and Summary

The case of Neal v R involved an individual who was charged with various offences including intentionally causing another person to be infected with a very serious disease, attempt, reckless conduct endangering a person, and rape. The case was heard in the Victorian Court of Appeal, which was asked to review the decision of the lower court.

The central legal issues in the case revolved around the actus reus and mens rea of the offences charged. In relation to the attempt offence, the court was asked to determine whether the accused's conduct, unprotected anal intercourse, was immediately and not remotely connected with the commission of the offence, and whether the accused must have believed himself to be infectious. In relation to the reckless conduct endangering person offence, the court needed to decide whether informed consent to the risk of infection with HIV could constitute a defence to the offence. Finally, in relation to the rape charge, the court needed to determine whether the accused's belief as to the complainant's state of intoxication and lack of comprehension of the sexual nature of the act precluded a finding that the accused was aware of the possibility that the complainant was not consenting.

The court found that the lower court had erred in its interpretation of the actus reus and mens rea of the offences charged. In relation to the attempt offence, the court held that the accused's conduct must be immediately and not remotely connected with the commission of the offence, and that the accused must have believed himself to be infectious. In relation to the reckless conduct endangering person offence, the court held that informed consent to the risk of infection with HIV could constitute a defence to the offence. Finally, in relation to the rape charge, the court held that the accused's belief as to the complainant's state of intoxication and lack of comprehension of the sexual nature of the act did not preclude a finding that the accused was aware of the possibility that the complainant was not consenting. The court found that the accused's convictions on counts of rape and reckless conduct endangering person were therefore set aside.

The court also re-sentenced the accused on the remaining counts, imposing a total effective sentence of 12 years' imprisonment with a non-parole period of nine years. The court found that the original sentence was too lenient given the seriousness of the offences committed by the accused.

Orders