2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 15 April 2014 and, in lieu thereof, allow the appeal to that Court and substitute for the verdict found by the jury a verdict of guilty of unlawfully doing grievous bodily harm to the complainant.
3.Remit the proceeding to the District Court of Queensland for sentence.
On appeal from the Supreme Court of Queensland
Representation
T A Game SC with G E L Huxley for the appellant (instructed by HIV/AIDS Legal Centre)
T A Fuller QC with J A Wooldridge for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Zaburoni v The Queen
Criminal law – Criminal liability – Criminal Code (Q), s 317(b) – Intent to cause specific result – Where appellant HIV positive – Where appellant lied to complainant about his HIV status – Where complainant diagnosed with HIV after frequent unprotected sex with appellant – Whether element of intent to cause specific result satisfied – Whether intent could be inferred from frequency of conduct giving rise to risk of specific result – Whether intent proved by evidence of awareness of risk.
Words and phrases – "awareness of risk", "intent", "motive", "proof of intention", "recklessness", "serious disease", "specific intent".
Criminal Code (Q), ss 23, 317(b).
KIEFEL, BELL AND KEANE JJ. The appellant was convicted of unlawfully transmitting a serious disease to another with intent to do so following a trial in the District Court of Queensland before Dick DCJ and a jury. The offence is created by s 317(b) of the Criminal Code (Q) ("the Code") and carries a maximum penalty of imprisonment for life. The disease that the appellant transmitted to the complainant is the human immunodeficiency virus ("HIV"). It is a serious disease for the purposes of s 317(b)[1].
[1]Code, s 1, definition of "serious disease".
To transmit HIV to another person is to occasion grievous bodily harm to that person[2]. Section 320 of the Code makes it an offence to unlawfully do grievous bodily harm to another and provides a maximum penalty of imprisonment for 14 years for the offence. It is not in issue that a person who knows that he or she has HIV, and who engages in unprotected sexual intercourse without informing the other person of that fact, commits an offence contrary to s 320 in the event that the other person contracts HIV from that sexual contact[3]. In such a case the prosecution is not required to prove that the accused intended to transmit the disease to his or her sexual partner.
[2]Code, s 1, definition of "grievous bodily harm".
[3]See s 143 of the
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 Zaburoni v The Queen
Sign in free to access the full text
Details
AGLC
Zaburoni v The Queen [2016] HCA 12
Case
[2016] HCA 12
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Zaburoni, against his conviction for unlawfully doing grievous bodily harm to the complainant under section 317(b) of the *Criminal Code* (Qld). The prosecution alleged that the appellant, who was HIV positive, had transmitted the virus to the complainant through unprotected sexual intercourse, and that he had done so with the specific intent to cause her harm. The central dispute revolved around whether the prosecution had proven this specific intent beyond a reasonable doubt.
The legal issues before the High Court were whether the element of intent to cause the specific result, namely the transmission of HIV, was satisfied. Specifically, the court had to determine if intent could be inferred from the frequency of the appellant's conduct, which gave rise to the risk of transmission, and whether the appellant's awareness of this risk was sufficient proof of intent. The court also considered the distinction between intent and motive, and the nature of recklessness in the context of proving intention for the offence.
The High Court reasoned that proof of the offence under s 317(b) required the prosecution to establish, beyond reasonable doubt, that the appellant had the purpose of transmitting HIV to the complainant at the time of engaging in unprotected sexual intercourse. While the complainant testified that the appellant preferred unprotected sex because it was more pleasurable, the court held that this preference was not necessarily inconsistent with an intention to transmit HIV. The critical question was whether there was evidence from which the latter inference could be drawn to the required criminal standard. The court noted that the appellant had been repeatedly advised by medical professionals about his HIV status, the transmission of the virus through sexual contact, and the importance of using condoms. Despite this knowledge, he did not undertake antiretroviral therapy and did not attend further medical reviews.
The High Court allowed the appeal, setting aside the order of the Court of Appeal of the Supreme Court of Queensland. In its place, the High Court substituted a verdict of guilty of unlawfully doing grievous bodily harm to the complainant and remitted the proceeding to the District Court of Queensland for sentence.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 15 April 2014 and, in lieu thereof, allow the appeal to that Court and substitute for the verdict found by the jury a verdict of guilty of unlawfully doing grievous bodily harm to the complainant.
3. Remit the proceeding to the District Court of Queensland for sentence.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal. Its resolution requires reference to the evidence given at the trial in some detail. The evidence at the trial Much of the evidence was uncontested. Important facts were admitted in a document titled "Admissions by Defence", which became Exhibit 2. Aspects of the complainant's evidence were the subject of challenge but she adhered to her evidence in chief. It was well open to the jury to accept her evidence in each of the respects that were the subject of challenge. What follows is a summary of the evidence which it was open to the jury to find established. In April 1998, the appellant, a Zimbabwean national, was performing as an acrobat with a touring circus in Adelaide. He had concerns that he may be HIV positive and he consulted a general practitioner to arrange for a blood test. A blood test returned a positive result for HIV. The doctor advised the appellant of the result and made an appointment for him to attend an infectious disease consultant at the Royal Adelaide Hospital. The doctor stressed the importance of the appellant using condoms when engaging in sexual intercourse. The doctor considered that the appellant clearly understood this advice and clearly understood that HIV could be transmitted through sexual contact. The appellant consulted an infectious diseases physician on three occasions in April and May 1998. The physician explained that HIV was transmitted by sexual intercourse and that it was likely that the appellant had been infected through sexual contact some years earlier in Zimbabwe. She, too, told the appellant of the need to use a condom during sexual intercourse. She advised the appellant to inform any sexual partner of his HIV positive status. She referred the appellant to doctors in Perth, where the circus was next due to perform, so that he could commence antiretroviral therapy. The appellant and his then girlfriend attended the Department of Clinical Immunology at the Royal Perth Hospital in July 1998. There they were advised about the natural history of HIV, viral loads and the need to constantly monitor cell counts. Again, the appellant was told that HIV is a sexually transmittable disease. He was referred to the Sexual Health Service for screening for other sexually transmitted infections and for a detailed sexual history to be taken so that his sexual partners could be offered HIV testing. He was prescribed antiretroviral medication and a date was arranged for further review. The appellant did not attend the review and had no further contact with the immunology clinic. The appellant did not undertake the antiretroviral therapy.
Decision
Reasons for decision
KIEFEL, BELL AND KEANE JJ
(dissent)
GAGELER J
(dissent)
NETTLE J