R v Aubrey

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.