Reid v The Queen

[2006] HCATrans 666

[2006] HCATrans 666

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B22 of 2006

B e t w e e n -

MARK KENNETH REID

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 DECEMBER 2006, AT 10.17 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, with my learned friend, MR A.W. MOYNIHAN, I appear for the applicant.  (instructed by Legal Aid Queensland)

MR R.G. MARTIN, SC:   If it please the Court, I appear for the respondent.  (instructed by Director of Prosecutions (Queensland))

KIRBY J:   Yes, Mr Callaghan.

MR CALLAGHAN:   There are two parts to this application.  Each raises a question of law which is of importance to the interpretation of the Criminal Code and each raises an issue on which differences of opinion have been expressed by Courts of Appeal.  Can I start with the question of what should have been said to the jury in this case on the question of intent?

KIRBY J:   Do you accept what the respondent says that really your complaint is not so much that the judge did not explain the word “intent” but did not elaborate the facts of the evidence back to that concept in order to explain how intent was intended to work in this context?

MR CALLAGHAN:   Our complaint is probably both.  We point at once to the fact that this is the point upon which Mr Justice McPherson would have allowed the appeal and we point to the fact that at the outset of his Honour’s judgment at paragraph [4] in application book page 5, line 10, his Honour acknowledged that in most cases intent or intention requires no elaboration or elucidation.  Everything that his Honour said on this topic thereafter and everything we submit to your Honours should be taken as acknowledging the force of that proposition.

HAYNE J:   Then what, in this case, was the factual issue for determination by the jury presented by the evidence at trial that required judicial direction?  I know the answer you give at once is the subject of intent.

MR CALLAGHAN:   Yes.

HAYNE J:   That does not help me.  What was the factual issue?

MR CALLAGHAN:   The factual issues are those which arose because the question of intent to transmit the disease arose in the context of a consensual sexual relationship which continued.  That is what makes this case an exceptional one – this type of case an exceptional one.

HAYNE J:   But the judge could give the jury a disquisition on the law of intent.  He could give them a theoretical instruction about intent which would be of no utility at all so what should the judge tell the jury that would help them to resolve the questions they had to consider?  That is the base line.

MR CALLAGHAN:   At pages 94 and 95 of the application book we have articulated 10 things which we say are at least things which should have been canvassed with the jury on the subject of intent.  Our point is that – can we leave aside the first four and just concentrate on the last six.  They are things which, had his Honour delved into them, would, in effect, have been a breach of the general prohibition, the admonition that the jury should just be told “intent” is a well‑understood word and it is the removal of that prohibition in this type of case which we say is a question of general importance.

KIRBY J:   I would mark that as the centre point of your argument.  That really is the essence of it.

MR CALLAGHAN:   Yes.

KIRBY J:   But, like Justice Hayne, when you actually come down from the cloudy heights, down into the substance of the issues in this appeal, the matter that concerns me is that there were so many indications in the facts.  Your client knew he had been infected.  He knew he was infected as far back as 1987.  He denied his HIV positive status.  He repeatedly denied it and therefore he had consensual sex, but it had been raised and he denied it.  He knew about the PEP treatment and he did not take any steps after an initial encounter to say, “Well, you’d better do this” and he went on having sexual intercourse believing, in his case, that there was about a 60 per cent risk of transmission and that was what was in his mind.

MR CALLAGHAN:   Your Honours, we do not for a moment submit that this was not a case which was capable of being regarded as a powerful one.  Against all of those propositions that you have raised, though ‑ ‑ ‑

KIRBY J:   He said that he regarded himself as a smoking gun.

MR CALLAGHAN:   A loaded gun

KIRBY J:   A loaded gun, yes.

MR CALLAGHAN:   That is something which could indicate intent – an analogy which could be reflective of intent, or ‑ ‑ ‑

KIRBY J:   That is what worries me.  This is potentially quite an important issue and the question is whether or not this is the case in which to test the issue because whatever the judge said about intent you would ultimately come back to the fact that there were all of these rather strong indications in the facts of this case, that your client had it in his mind and just went ahead and he thought there was a 60 per cent chance of transmission.  That is a very, very serious and intentional wrong to do to another human being.

MR CALLAGHAN:   There was, of course, another significant piece of the evidence which directly bore upon the issue of intent and that was the issue of intoxication which could well cut across everything that your Honour has said.

KIRBY J:   It could, maybe, in the first encounter and that is why I referred to the PEP in that context, but in repeated encounters it is against commonsense to infer that every encounter was intoxicated.  I do see that there was a statement in the evidence that he was given to alcohol and drugs, but ‑ ‑ ‑

MR CALLAGHAN:   That is ultimately, your Honour, a jury question but it is alive.

CALLINAN J:   Mr Callaghan, there was not a request for redirections or ‑ ‑ ‑

MR CALLAGHAN:   Not on this point, no, your Honour.  One apprehends that any request for redirection would be met with the reply that I have directed in terms of the Bench book which says I do not go ‑ ‑ ‑

CALLINAN J:   The Bench book is not the law.

MR CALLAGHAN:   No.

CALLINAN J:   It may well have been that prudent counsel would not have asked for any redirection by reference to the facts because that may have been very disadvantageous.  The summing‑up, itself, seems to me at pages 17 and 18, about “intent” are clear, explicit, not unfair and if you started interweaving the facts into them it could have been very dangerous for your client and that may be why no request for a redirection was made.

MR CALLAGHAN:   With respect, your Honour, there are two aspects of the direction on intention about which it is impossible to understand why there was no application for a redirection.  One is on the subject of intoxication because that was before the jury and it does seem it was part of defence counsel’s submission, more directed at the intoxication of the complainant, it is true, but the issue of drug and alcohol use was squarely before them as part of the defence case so that should have been directed on.

CALLINAN J:   It was not asked for.

MR CALLAGHAN:   It was not.

CALLINAN J:   What was the other aspect?

MR CALLAGHAN:   The other aspect is the need for a temporal connection between the intent and the act of transmission itself.

HAYNE J:   But does not that present the real factual difficulty for trial counsel, that the moment you had the judge focusing the jury’s mind on, “This man said he thought there was a 60 per cent chance of transmission.  This man described himself as a loaded gun”, those are matters which bear upon your determination of whether there was a purpose and design to transfer the disease.  It is forensically impossible, is it not?

MR CALLAGHAN:   No, your Honour.  This Court sees many cases where a loaded gun is used to cause injuries with intent and many cases in which it is used in a criminally negligent fashion.  Negligence, recklessness, would not be sufficient.

KIRBY J:   Yes, but this is a loaded gun in the context of a man who later said “I was irresponsible” and who condemned himself and who acknowledged that he thought that there was a 60 per cent change.  As we know, it is a much lesser risk ‑ ‑ ‑

MR CALLAGHAN:   Lower, yes.

KIRBY J:   ‑ ‑ ‑ but that was what was in his mind and yet he went ahead notwithstanding.  This is not an applicant and a complainant who were completely ignorant about HIV and AIDS.  They were both knowledgeable about it.

MR CALLAGHAN:   Yes.  Your Honour, on the factual issues our best point is the significant body of evidence that the applicant raised in regards intoxication, which was never placed before the jury.  That raised a very live jury issue. 

KIRBY J:   But it was factually before the jury, was it not?  I mean, the facts were in evidence.

MR CALLAGHAN:   Yes.  That is why ‑ ‑ ‑

KIRBY J:   There was no direction sought to emphasise this and that is really a two‑edged sword before juries.  Some juries will react in a rather commonsense way that that just shows added irresponsibility. 

HAYNE J:   It provoked in my mind the question I should not ask counsel.  Can you point to any case where intoxication has got up as a defence ever? But, as I say, those are questions I should not ask, are they, Mr Callaghan?

MR CALLAGHAN:   The acquittals are not reported, your Honour.  Your Honours, we have ‑ ‑ ‑

KIRBY J:   There is no application in respect of the sentence, is there, before us?

MR CALLAGHAN:   No.

KIRBY J:   We do not have it before us but there are cases in other States of Australia which suggest that illness with HIV can be a factor relevant to sentencing.  But that was dealt with in the Court of Appeal and we do not have it before us.

MR CALLAGHAN:   We do not seek to take it any further.  Can I turn to the second part of the argument which concerns the meaning to be ascribed to the word “unlawful” in section 317(e) ‑ ‑ ‑

HAYNE J:   Why do we ever get to the 317 issue.  That was the alternative count upon which the ‑ ‑ ‑

MR CALLAGHAN:   No, your Honour, 317 is the count upon which he was convicted.  Section 320 is the alternative count.

HAYNE J:   Why do you apply “unlawful” to “transmits a serious disease” when there was at least at one point in the Code an offence of unlawful wounding?

MR CALLAGHAN:   That remains.  If we are talking about the relationship between 317 and 320, that is important because they are both in Chapter 29.

HAYNE J:   I understand, but why do you get an “unlawfully” question under 317?

KIRBY J:   I have the same problem as Justice Hayne.  Forgive us as not Code people.

HAYNE J:   Barbarians are at the gate, Mr Callaghan.

CALLINAN J:   I have the same problem and I am from the Code State.

MR CALLAGHAN:   Your Honour, to coin a phrase, we start with the statute.  It is in the charge in 317(e).

HAYNE J:   Yes, but that is attached to “wounds”:

(e)in any way unlawfully wounds, does grievous bodily harm, or transmits ‑ ‑ ‑

MR CALLAGHAN:   I see.

HAYNE J:   Why do you attach “unlawfully” to “transmits a serious disease”?  Why do you not read it naturally as “in any way unlawfully wounds”, that is one offence; “does grievous bodily harm”, another kind of offence; “transmits serious disease”, last kind of offence?

KIRBY J:   That was how I read it, I must admit.  The three Queensland judges obviously read it a different way so where are we going wrong?

MR CALLAGHAN:   It is what the Crown undertook to prove in the charge.  If we go to the indictment which is ‑ ‑ ‑

KIRBY J:   That might be so but ‑ ‑ ‑

MR CALLAGHAN:  ‑ ‑ ‑ at 1B of the application book.  We submit that the word “unlawfully” governs all of those words in the section which follows.  There is an offence of unlawful wounding and likewise an offence of unlawfully doing grievous bodily harm, which are mirrored in other sections.

CALLINAN J:   It is difficult, is it not, because it would be an offence unless you had the – I mean, just to do it to somebody would be an offence without “unlawfully” unless you could rely upon the criminal responsibility provisions.  It would not be an act justified by law to wound somebody.  You do not need “unlawfully” in that sense, do you?

MR CALLAGHAN:   That is the question, your Honour.  What is the word doing there?  Let us assume that if it did apply to the following phrases in the section ‑ ‑ ‑

KIRBY J:   Your complaint is that the judge talked of a moral code and that there is the authority of Justice Murray in Western Australia that says it is just the enacted law.  I think that you have a good point in that.  But whether it is a moral code or the enacted law, the judge’s direction really took the jury to the word and you say there was a misdirection insofar as it referred to the moral code, but we do not really get to that point, I think, in this case because it was certainly unlawful if it was a transmission contrary to the higher provision of the statute in (b) in the paragraph. 

HAYNE J:   Justice McPherson also offered the view that the unlawfulness, if you have to find it separately, lay in the deception.

MR CALLAGHAN:   Therein is our point.  If Mr Justice McPherson was right then that raised a triable issue on the facts of this case because the applicant claimed that he had been honest with the complainant. 

KIRBY J:   Yes, but he admitted that he had told him that he was HIV negative and he told him not to go to the same doctor presumably because that would lead to the possibility of exploration of the fact that the doctor would have known that he was HIV positive since 1987. 

MR CALLAGHAN:   Your Honour, I do not say that there was no evidence which could negate the claim, but the most convenient way of pointing it out, I suppose, is at application book 34, line 10, where the trial judge is summing up the defence case.  He summarises what the applicant said which was that:

Mr Tebby was a willing participant with full knowledge of his HIV status.

You can take it that reflects some of the evidence.  As I say, I do not submit that other evidence could not negate that claim.  Clearly, it could.  But if, as I say, Mr Justice McPherson’s formulation is one which ought to have applied that did raise an issue for consideration in the case and it would mean that the applicant has not had a trial as required by law.  We rely, in particular, upon the uncertainty in the law created by the decision from Western Australia.  To that is added Mr Justice McPherson’s twist which leaves the law in a state of considerable uncertainty ‑ ‑ ‑

KIRBY J:   A difficulty is that if the impression which the three of us have of the statute, the issue just does not arise.  Though it is in the Crown’s indictment, it would be an exercise in futility for us to be elaborating it when on the face of the statute it just does not attach to the transmission of a disease.

MR CALLAGHAN:   I cannot dispute what your Honour says but maintain that ‑ ‑ ‑

KIRBY J:   We do not normally go on and on about matters that are not specifically essential to the issue of law presented.

MR CALLAGHAN:   No, I accept that, your Honour.  All we say in response to that is that “unlawfully wounds” is another offence in the Code.  The 317 offence creates an identical offence with the element of intent.  Unlawfully doing grievous bodily harm is an offence which is in the Code and, again, this creates, an offence to which an intent attaches, we would say it follows ‑ ‑ ‑

KIRBY J:   I take that point but, again, this is a matter that was not raised at trial for the directions to the trial judge.

MR CALLAGHAN:   It was not.

KIRBY J:   It would not seem to have the same forensic problems as the elaborations of intent might have had.  It just was not raised.

MR CALLAGHAN:   No.  In that regard, of course, one of the things which counts against the applicant is that it has not been considered by an intermediate Court of Appeal, but the exceptional circumstance in this case is that it was considered by the Court of Criminal Appeal in Western Australia.  So you do have the advantage of a comprehensive treatment of the issue by that court which has given rise to a difference of opinion which, we submit, requires settlement.

KIRBY J:   Another factor, at least as far as I am concerned, is that this is a very serious matter for your client and at his stage in the progression of the virus, the sentence being quite a heavy one is one that may well last for the rest of his life.  So you can take it that we have all given a lot of thought to the issues you have carefully put before us.

MR CALLAGHAN:   We understand.  Unless there was anything further.

KIRBY J:   Yes, thank you very much.  The Court does not need your assistance, Mr Martin. 

The applicant was convicted following a jury verdict of an offence against section 317(b) of the Criminal Code (Qld). That provision makes it a criminal offence for any person with intent to transmit a serious disease to any person. In this case the disease was the HIV virus that causes AIDS. The applicant’s contention is that his trial miscarried because the trial judge failed to give the jury directions about the meaning of the requirement of “intent” and because of an alleged misdirection about the word “unlawfully” in the section.

Assuming that the word “unlawfully” applied to the offence with which the applicant was charged, the second point is not, in our view, a material one in the circumstances of this case, any misdirection not being significant to the ultimate outcome.  However, the point about the directions on “intent” is potentially an important one.  As the respondent pointed out, the real complaint of the applicant appears to be not the failure of the trial judge to explain the meaning of the words “with intent”, as such, but the suggested failure to relate those words to the facts revealed in the evidence. 

Generally, as Keane JA said in the Court of Appeal of Queensland, it is not essential to explain words of every day use such as the words “with intent”:  see Cutter v The Queen (1997) 71 ALJR 638 at 648. However, in his dissenting reasons, Justice McPherson considered that the phrase should have been elaborated in the circumstances of this case which involved the transmission of the HIV virus during repeated consensual adult unprotected sexual intercourse between two persons who were generally aware of the risks of HIV transmission.

Potentially, the circumstances could warrant the examination of the issues by this Court to differentiate “intent” from “recklessness”, “stupidity” or “negligence.”  However, there were particular features of the evidence at trial that make this an unpromising case for this Court’s intervention. 

The applicant was aware that he had been exposed to the HIV virus in 1987.  He expressly said that he was aware of the post‑exposure prophylaxis therapy available for rapid treatment of persons exposed to the risks of HIV transmission, if such therapy is promptly accessed.  He had lied to the complainant about his status.  He repeatedly assured him that he was HIV negative.  He expressed his belief that the risk of transmission was about 60 per cent.  In fact, the medical evidence showed that this was far greater than the scientific risk.  However, it was material that was before the jury as to the applicant’s state of mind.  It would clearly sustain a conclusion that what was done was done with the requisite intent. 

In these circumstances, we do not regard the case, tragic as it is, as one in which this Court’s consideration of the matter would result in a different outcome.  The facts are special and they sustain the conviction of the offence.  There is no appeal to this Court against the sentence and we therefore say nothing about that subject.  Special leave is refused.

AT 10.40 AM THE MATTER WAS CONCLUDED