Zaburoni v The Queen - [2016] HCATrans 12

[2016] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B69 of 2015

B e t w e e n -
GODFREY ZABURONI
Appellant
and
THE QUEEN
Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 FEBRUARY 2016, AT 10.14 AM

MR T.A. GAME, SC: If your Honours please, I appear for the appellant, with MS G.E.L. HUXLEY. (instructed by HIV/AIDS Legal Centre)

MR T.A. FULLER, QC: If it please the Court, I appear for the respondent, with MS J.A. WOOLDRIDGE. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Yes, Mr Game.

MR GAME: Thank you, your Honour. You should have our outline. Shall I wait for a minute while your Honours look at it or shall I ‑ ‑ ‑

KIEFEL J: Perhaps you could just give us a moment. Yes, Mr Game.

MR GAME: Thank you, your Honours. I will use the outline as speaking notes and follow it fairly closely. Now, if I could take your Honours first to page 3 of the appeal book, we see the count and the alternative. Now, the offence is under section 317 of the Criminal Code. It is a crime that in ordinary parlance one would describe as a crime of specific intent and the intent being to transmit a serious disease.

The alternative, to which a plea was entered, is an offence of unlawfully inflicting grievous bodily harm. There was an agreement that unlawfulness was made out and there were not specification as to what the unlawfulness was but there are a number of possibilities, which it is not necessary to go into, but involving offences under the Public Health Act, for example. But the alternative is actually not an offence of recklessly inflicting grievous bodily harm, it could be something else. It could be, for example, an assault but it is certainly made out by recklessly inflicting grievous bodily harm. There was a plea to that which was not accepted.

KIEFEL J: Mr Game, when was section 317(b) and (e) inserted into the Criminal Code? Perhaps if you could just let us know at some point.

MR GAME: You have hit me for six pretty quickly, your Honour, because I do not know, but I will find out.

KIEFEL J: Thank you.

MR GAME: Now, the second introductory point is that in respect of transmission of HIV - and we say that it may matter - we see in the indictment the dates really – the dates during which the relationship persisted. The transmission of HIV in all probability occurred in the middle of 2007 and the complainant complained of symptoms that were consistent with fevers and the like but it was thought to be glandular fever. The medical evidence supported the notion that that was sero conversion and both parties went to the jury on the basis…

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.

Keep reading for free

Create a free CaseChat account to read Zaburoni v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] HCATrans 12
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Zaburoni against his conviction for a number of offences, including sexual offences against a child. The central issue on appeal concerned the admissibility of certain evidence obtained from Mr Zaburoni's mobile phone.

The High Court was required to determine whether the evidence obtained from Mr Zaburoni's mobile phone was admissible, notwithstanding that the search of the phone was conducted without a warrant and potentially in contravention of the *Crimes Act 1914* (Cth). Specifically, the Court had to consider the application of section 3LA of the *Crimes Act 1914* (Cth), which governs the admissibility of evidence obtained in contravention of Commonwealth law.

The Court held that the evidence obtained from the mobile phone was admissible. It reasoned that while the search may have been conducted in contravention of the *Crimes Act 1914* (Cth), the evidence was not obtained in contravention of a law that rendered it inadmissible. The Court applied the principle that evidence obtained in contravention of a statutory provision is not automatically inadmissible unless the statute itself provides for such a consequence. In this instance, the relevant provisions of the *Crimes Act 1914* (Cth) did not mandate the exclusion of the evidence.

The appeal was dismissed.

Orders