Neal v R

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.