R v Zaburoni - [2014] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

R v Zaburoni [2014] QCA 77

PARTIES:

R
v
ZABURONI, Godfrey
(appellant)

FILE NO/S:

CA No 97 of 2013
DC No 211 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

15 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2013

JUDGES:

Gotterson and Morrison JJA and Applegarth J
Separate reasons for judgment of each member of the Court, Gotterson and Morrison JJA concurring as to the order made, Applegarth J dissenting

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was diagnosed as HIV positive – where the appellant and complainant commenced a relationship – where the complainant was diagnosed with HIV after engaging in unprotected sex with the appellant numerous times – where the appellant was deceptive about his HIV diagnosis – where the appellant was found guilty of transmitting a serious disease with intent – where the evidence of the appellant’s conduct led to the inference that there was intent – whether the verdict was unreasonable or contrary to the evidence – whether the appellant had intent to transfer HIV

Criminal Code 1899 (Qld), s 317, s 668E(1)

BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23, cited
R v Reid [2007] 1 Qd R 64; [2006] QCA 202, distinguished
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

M A Green for the appellant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: At a trial over four days at the District Court at Southport, the appellant, Godfrey Zaburoni, was convicted on 18 April 2013 of an offence against s 317(b) and (e) of the Criminal Code. The conviction was upon a count that between 1 January 2007 and 30 September 2008 at the Gold Coast, he with intent to transmit a serious disease to the complainant, unlawfully transmitted a serious disease to her. Upon conviction, the appellant was sentenced to imprisonment for a period of nine years and six months with a declaration that sixteen days of pre-sentence custody be imprisonment already served under the sentence.

At the commencement of the trial, the appellant pleaded guilty to an alternative count that between the same dates he unlawfully caused grievous bodily harm to the complainant. He was not convicted on this count.[1]
[1]AB179 Tr4-22 L19-AB180 Tr4-23 L48.

By a notice of appeal filed on 22 April 2013, the appellant appealed against the conviction and applied for leave to appeal against the sentence. On…

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 Zaburoni

Details

AGLC: R v Zaburoni [2014] QCA 77
Case: [2014] QCA 77
Decision Date: 15 April 2014

CaseChat Overview and Summary

The appellant in this case was convicted of transmitting a serious disease with intent. The matter came before the court on appeal, where the appellant sought to challenge the conviction on the basis that the verdict was unreasonable or insupportable having regard to the evidence. The appellant was diagnosed with HIV, a serious disease, and had engaged in unprotected sexual intercourse with the complainant numerous times without disclosing his HIV status. The complainant later tested positive for HIV. The court was tasked with determining whether the verdict was unreasonable or contrary to the evidence, and whether the appellant had the requisite intent to transfer HIV.

The legal issues before the court included whether the evidence was sufficient to support the verdict, and whether the appellant had the intent to transmit HIV. The court needed to consider the nature of the appellant’s conduct and whether it was reasonable for the jury to infer intent from this conduct. The appellant argued that the evidence did not support a finding of intent and that the verdict was unreasonable. The prosecution maintained that the evidence of the appellant’s conduct was sufficient to establish intent and that the verdict was sound.

In dismissing the appeal, the court found that the evidence of the appellant’s conduct supported the inference of intent. The appellant’s deliberate concealment of his HIV status and continued unprotected sexual activity with the complainant provided a basis for the jury to conclude that he intended to transmit HIV. The court held that the verdict was not unreasonable or insupportable given the evidence. The appeal against the conviction was dismissed, and the original verdict was upheld.

The court’s decision was based on the evidence of the appellant’s conduct and the reasonable inferences that could be drawn from it. The court was satisfied that the jury had properly considered the evidence and reached a conclusion that was supported by the facts. The appeal was dismissed, and the conviction for transmitting a serious disease with intent was upheld.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Zaburoni [2014] QCA 77
PARTIES:	R v ZABURONI, Godfrey (appellant)
FILE NO/S:	CA No 97 of 2013 DC No 211 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	15 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2013
JUDGES:	Gotterson and Morrison JJA and Applegarth J Separate reasons for judgment of each member of the Court, Gotterson and Morrison JJA concurring as to the order made, Applegarth J dissenting
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was diagnosed as HIV positive – where the appellant and complainant commenced a relationship – where the complainant was diagnosed with HIV after engaging in unprotected sex with the appellant numerous times – where the appellant was deceptive about his HIV diagnosis – where the appellant was found guilty of transmitting a serious disease with intent – where the evidence of the appellant’s conduct led to the inference that there was intent – whether the verdict was unreasonable or contrary to the evidence – whether the appellant had intent to transfer HIV Criminal Code 1899 (Qld), s 317, s 668E(1) BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23, cited R v Reid [2007] 1 Qd R 64; [2006] QCA 202, distinguished SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	M A Green for the appellant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent