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R v Aubrey

R v Aubrey

Case [2012] NSWCCA 254 29 November 2012

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Court of Criminal Appeal

New South Wales

Case Title: R v Aubrey

Medium Neutral Citation: [2012] NSWCCA 254

Hearing Date(s): 21 September 2012

Decision Date: 29 November 2012

Before: Macfarlan JA at [1];
Johnson J at [64];
Davies J at [65]

Decision:
(1) Appeal allowed.

(2) Set aside the order made in the District Court on 8 March 2012 staying proceedings on Count 2 of the Indictment dated 7 March 2012.

(3) Dismiss the respondent's Notice of Motion dated 5 March 2012.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951, if qualified.

Catchwords: CRIMINAL LAW - Crown appeal against order permanently staying count of malicious infliction of grievous bodily harm - count stayed by primary judge due to uncertainty surrounding scope of s 35(1)(b) Crimes Act 1900 - complainant contracted HIV after consensual sexual intercourse with HIV-positive respondent - respondent alleged to have known that he was HIV-positive

STATUTORY CONSTRUCTION - principles - meaning of 'inflicts' in s 35(1)(b) Crimes Act 1900 - whether transmission of serious disease by consensual sexual intercourse constitutes infliction of grievous bodily harm - whether term 'inflicts' requires physical assault - use of extrinsic material including Second Reading Speeches - relevance of subsequent introduction of separate offence for transmission of diseases - whether re-enactment of provision signalled legislative agreement with preceding judicial interpretation

Legislation Cited: Better Prevention of Offences Act 1851 (UK)
Crimes Act 1900
Crimes Act 1958 (Vic)
Crimes (Amendment) Act 1983
Criminal Appeal Act 1912
Criminal Law Amendment Act 1883
Interpretation Act 1987
Offences Better Prevention Act 1852
Suitors' Fund Act 1951

Cases Cited: Beckwith v R [1976] HCA 55; 135 CLR 569
Commissioner of Taxation v Energy Resources of Australia Ltd [2003] FCAFC 314; 135 FCR 346
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Flaherty v Girgis [1987] HCA 17; 162 CLR 574
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Hili v R [2010] HCA 45; 242 CLR 520
Melbourne Corporation v Barry [1922] HCA 56; 31 CLR 174
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Cameron (1983) 2 NSWLR 66
R v Clarence (1888) 22 QBD 23
R v Dica [2004] EWCA Crim 1103; QB 1257
R v Halliday (1889) 61 LT 701; 6 TLR 109
R v Ireland [1998] AC 147
R v Reynhoudt [1962] HCA 23; 107 CLR 381
R v Salisbury [1976] VR 452
R v Wilson [1984] AC 242
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96
Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully [1952] HCA 4; 85 CLR 159
Williams v Dunn's Assignee [1908] HCA 27; 6 CLR 425

Texts Cited: D C Pearce and R C Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths

Category: Principal judgment

Parties: Regina (Appellant)
Michael Aubrey (Respondent)

Representation

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 R v Aubrey

Details

AGLC: R v Aubrey [2012] NSWCCA 254
Case: [2012] NSWCCA 254
Decision Date: 29 November 2012

CaseChat Overview and Summary

The appellant, the Crown, sought to appeal against an order made by a primary judge that permanently stayed a count of malicious infliction of grievous bodily harm. The primary judge had made the decision based on uncertainty surrounding the scope of section 35(1)(b) of the Crimes Act 1900, which relates to the infliction of grievous bodily harm. The respondent, who was alleged to have contracted HIV after consensual sexual intercourse with the complainant, who was HIV-positive, was the subject of the primary judge's decision. The Crown argued that the respondent knew he was HIV-positive and had intentionally transmitted the disease to the complainant.

The court was required to determine the meaning of the term 'inflicts' in section 35(1)(b) of the Crimes Act 1900. The Crown argued that the transmission of a serious disease by consensual sexual intercourse constituted the infliction of grievous bodily harm. The court examined whether the term 'inflicts' required a physical assault and considered the use of extrinsic material, including Second Reading Speeches, to assist in the interpretation of the provision. The court also considered the relevance of the subsequent introduction of a separate offence for the transmission of diseases and whether the re-enactment of the provision signalled legislative agreement with the preceding judicial interpretation.

The court held that the transmission of HIV by consensual sexual intercourse did not constitute the infliction of grievous bodily harm under section 35(1)(b) of the Crimes Act 1900. The court found that the term 'inflicts' required a physical assault and that the use of extrinsic material, including Second Reading Speeches, did not assist in the interpretation of the provision. The court also held that the subsequent introduction of a separate offence for the transmission of diseases did not signal legislative agreement with the preceding judicial interpretation. Consequently, the court upheld the primary judge's decision to permanently stay the count of malicious infliction of grievous bodily harm.

Orders