Zaburoni v The Queen

[2015] HCATrans 298

[2015] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B17 of 2015

B e t w e e n -

GODFREY ZABURONI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 NOVEMBER, 2015, AT 9.30 AM

Copyright in the High Court of Australia

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

MR M.R. BYRNE, QC:   If it please the Court, I appear for the respondent with MS B.J. MERRIN.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Yes, Mr Game. 

MR GAME:   Sorry, I forgot my lines.

KIEFEL J:   That is very unlike you, Mr Game.

MR GAME:   If the Court pleases, we are well out of time and the delay is explained at pages 52 and 53 of the ‑ ‑ ‑

KIEFEL J:   Yes.  Mr Byrne, is there any difficulty with an extension?

MR BYRNE:   There is no objection.

KIEFEL J:   Yes, thank you.

MR GAME:   If the Court pleases.

KIEFEL J:   Yes, the time will be extended.

MR GAME:   Thank you, your Honour. Could I take the Court to page 75 just as a useful locator of the provision in question? It is section 317 of the Criminal Code (Qld):

Any person who, with intent‑

. . . 

(b)to do some grievous bodily harm or transmit a serious disease –

 . . . 

(e)in any way unlawfully . . . does grievous bodily harm –

In old language that is a crime of specific intent, or in Criminal Code (Cth) language that is a crime of intent with respect to a result. Now, in legal theory and in statute and in actually the Queensland cases about this, and I am thinking of Reid, there are really only two ways in which you can get to intention.  One is if you mean to bring something about or, in the language of the Criminal Code (Cth), if you are aware that something will occur in the ordinary course of events.

Now, our special leave point could be what is the content of that second question, or our special leave point could be framed as can you ever get from recklessness to intention.  It is a different way of framing the same question.  In English jurisprudence – and I am thinking of Woollin, which is the culmination of cases about intention – the language is intending that that be the person’s purpose or knowing that the result is virtually certain consequence.  But one needs to get to intention in this situation.  One requires a very high level of awareness of the consequence or the result. 

Now, if we go to the Court of Criminal Appeal’s judgment – and I am thinking of Justice Gotterson’s judgment at page 36 – what we see at the bottom of page 36 in paragraphs [43] and [44] is effectively an eschewal of the idea that the lies could be used as a consciousness of guilt of intent because what they are being used as there is as implied admissions, that is to say, admissions that there were risks attached to the conduct.

It appears, although there is something in Justice Applegarth’s judgment that might qualify that, but it appears that what has happened is that the Crown has abandoned the idea that the lies could be used as consciousness of guilt as to intention, but that is how they were used at trial.  So it is quite an important switch because the lies were seen as critical at trial.  Here they are being used as an appreciation of risk.

Now, I said at the beginning that intent can be got at in two and only two ways.  Reid is an example of the first.  It is an example of the first because there were two things.  One is he described what he felt when he had sexual intercourse with his partner.  The other thing is he said things in respect of his partner after his partner was infected that indicated that he was actually pleased about this, that this had happened, and made fun of him in public for this.  So that is an example of the first kind of case.  This case is an example of the second type of case and the question is how do you get there.

BELL J:   Can I just inquire - as I understand it, there is no complaint respecting the sufficiency of the directions that the judge gave.  The sole ground here was that the evidence could not support the verdict.  Is that right?

MR GAME:   Well, your Honour, there is a qualification to that which is this.  We are late arrivers in this case, in a sense, but if we were doing this case again we would say that the lies could not establish a consciousness of guilt, but it does not matter for present purposes.  That would be a retrial point.  Our point is that the lies did not rise to establishing that, and so it does not matter about what the directions were.  We are just looking at whether or not the verdict can be sustained.

So when you get to paragraphs [43] to [44], what you have is an acceptance, and we accept that it is true that the lies demonstrated appreciation of risk, but there is no evidence as to what level of risk.  But the science shows, and there was an agreed fact, that over a 21‑month period there was a 14 per cent risk. 

If you created a vector of time against probability and it was a straight‑line vector - and the complainant may have been infected fairly early in the piece, if you are having sexual relations with someone at three months you are not going to know that you are going to be having sexual relations with them at 21 months, so that it is an accretion and so that it does matter, it does matter when you were infected and when the person was and it does matter what your state of mind was during the accretion.

KIEFEL J:   But do you accept as a question of degree that if you have a high probability of infection that that converts an appreciation of risk to intention?

MR GAME:   Well, that is – the question is, I accept, at a very high level but I am saying something like what the House of Lords said in Woollin which is you are aware of that circumstance, or the language of the Criminal Code (Cth) which is - I will just read it:

A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events -

that kind of idea.  Now, the thing about it is this.  Those two ideas, they are completely different because you can intend something that is very unlikely, or you can appreciate something will happen when you really do not want it to happen.  The example – it is not a great example in this context but the example given by Justice Applegarth is the example of pregnancy, for example. 

It is complicated in this situation in a very important way, which is that the desire is a desire for pleasure, so that the desire points away from the intention.  You may still have an accretion of risk but the real question that one - get to that second level.  Can you ever get there through recklessness?  We would say no as a matter of principle but I am talking about words here because the words of recklessness are appreciation of risk. 

I do accept that if you have an appreciation of a high probability then it could rise to that point.  The case of Reid is an example where there was a 60 per cent risk.  There is no evidence here about what nature of extent of appreciation of risk was.  So once you get to putting this case in the second way, and we say that is where this case ends up because no one can say once the consciousness of guilt idea is gone, as it must, no one can say that this man had a desire or intended to bring about the result that his partner was infected.

You are forced into the second way of thinking about it, and that is a big question.  The House of Lords reserved that question in Woollin as to how you get to the second and they affirmed that it had to be by way of an appreciation of near certainty.  We also say that the language that has been used in other cases, for example, Kural in other areas, it does not work here.  Justice Keane really accepted that, as did Justice Chesterman in Reid.

On another side note, your Honour, in LK and RK I tried to import the ideas of Kural into conspiracy and intention, and although it does not appear in a single footnote it can be taken that that approach to the Criminal Code (Cth) was rejected because of the language of intention and because of the meaning of bringing about an outcome, even though conspiracy is a state of mind about future events.

Incidentally, we do not adopt everything that Justice Applegarth says – we would not if we got special leave – and one of the ideas that we think we would put is important lying behind this is that the language that is used in these cases, and it is used in submissions - and when you talk about a state of mind, using circumstantial evidence directions can be very misleading because the question is asked, can you exclude the hypothesis of recklessness? 

When you talk about a state of mind - that language works when you are talking about something external, but what you are talking about here with respect to a state of mind is how high does it get?  Does it get to intention?  Not if you excluded recklessness, and it makes a difference how you think about it…..is a silly way ultimately of putting it and the language of circumstantial directions should go from this discourse, and we would put that argument if we got special leave.

But if I come to paragraph [46] which is the nub of the thing, all that is being said is this goes on for so long that it defies the description of mere recklessness.  It sounds disrespectful but that buries the question completely as to what is the question that you are asking yourself at that point.  It does not matter whether it is jury directions or this case, this question about the safety verdict you must ask that second question because you have got to answer it.  That is a big special leave question.

KIEFEL J:   You think in the way it is put it has moved from recklessness to gross negligence?

MR GAME:   That is what we think, yes.  I am not disputing the proposition that you put to me at the beginning, your Honour, but I am saying you have to work out in language what it means and you have to work out how that is going to apply, but if you are just talking about recklessness, recklessness, recklessness, that does not get you there.  You have to have more.  I am not saying you will not have more in a particular circumstance.

Our second point is probably not a special leave point but we say it is a good point on the success of the appeal, if we get special leave, which is this.  If you are basing this thing on the accretion of time and appreciation of risk, then that puts you in a very different position than Reid because Reid is a case of the first type.  But if it is the accretion of time and appreciation of risk, and in this case the complainant may have been infected as early – I say as early as June 2007, so 14 over 21 is less than 1 per cent. 

So if you are talking about the reality of the situation, it is actually quite a low proposition, low probability in those early months.  So it is the accretion of time from which you are drawing the inference.  It is the 21 months, so that three months does not work, four months does not work.  That is a point of logic which we say should succeed if we get leave.

BELL J:   There was expert evidence about the risk.

MR GAME:   Yes.

BELL J:   There was no evidence about whether the applicant had knowledge of statistical material of that kind.

MR GAME:   No, none at all.  You could have a ‑ ‑ ‑

BELL J:   Query the significance of statistical evidence ‑ ‑ ‑

MR GAME:   No, quite, your Honour, quite.  I understand, but if you are going to actually sort of objectify the thing, you could actually have a situation where a person thought the risk was much greater than it actually was.  All we know from these admissions is that he appreciated that there was a risk to the degree that he told lies to his partner about it and told lies at other times and later.  That is a significant piece of evidence but it does not go beyond an appreciation of risk and that does not get you into the first category of intention.

BELL J:   The state of mind has to accompany the act that transmitted the disease.

MR GAME:   That is the whole point, yes.  That is clear from general principles and the language of the Code itself, and so that coincidence is crucial.  So if we get special leave we want to argue both points but we put the first forward and our ground of appeal is drafted.  The second point is really a point of logic and probably not a special leave point in itself.  If the Court pleases.

KIEFEL J:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, the manner in which the appeal below was conducted - was fashioned by the way the arguments were put and hence the way the judgments are produced has been the product of that.  There were three relevant concessions made below.  The first was that the evidence could justify an inference of the requisite intent although it went on to be suggested that it was not, in effect, strong enough, if I can use that terminology, to exclude other reasonable hypotheses and as that argument developed that reasonable hypothesis was that the applicant acted with reckless indifference rather than the proscribed intent.

The second concession was that the directions concerning the lies were accurate and appropriate and, as my learned friend has made clear this morning, that is not the subject of complaint here although may be if there is to be a retrial eventually.  The third concession is in the submission particularly important.  It is that the directions concerning the intent were accurate and appropriate. 

Now, I draw that from the judgment of Justice Gotterson at application book 32 at paragraph [20].  Can I then take the Court to paragraph [22] on the same page where certain of the directions are quoted from the trial judge, where, and in my paraphrasing, the Crown had to prove beyond reasonable doubt that this applicant today had an actual subjective intention - he actually intended to transmit the HIV and conducted himself in a way designed to achieve it.  The issue is not his intent at the time of any particular act of intercourse.  The issue was whether it could be said that the conduct was accompanied by that intent to transmit HIV. 

That second direction is the product of the manner in which the indictment was drafted between dates which created a higher burden for the prosecution to prove that there was an intent throughout the whole of that period which, however, could, on the facts as they came to be adduced, be limited to the period from which condoms stopped being used in their sexual activities. 

It is, in my submission, important to bear in mind that this case is turning on the issue of what is an “intent” in the context of the Criminal Code (Qld), not in the context of common law and not in the context with respect of the Criminal Code (Cth). The directions were entirely, it is respectfully submitted, consistent with what was required by Reid and conveyed the message clearly. 

There is one further passage in which the jury were again directed in those terms and that is at application book 17 starting at that page at line 41 and over the page.  The issue of what the jury was directed has – or the appropriateness has not been put in issue.  Justice Gotterson, of course, gave the - if I could use the phrase “leading judgment” of the majority, that is, of himself and Justice Morrison.  The direction that was cited was noted by Justice Gotterson.  It was not criticised.  It was not doubted.  Our submission is that that formed the foundation for the rest of his judgment in this matter.

BELL J:   Accepting that, Mr Byrne, at paragraph [46] of his Honour’s reasons, in dealing with a challenge to the conviction based on the insufficiency of the evidence to support it, his Honour reasons that it was open to the jury from the circumstance that there was unprotected sexual intercourse over many months and from the jury’s knowledge and experience of human behaviour to have concluded that the applicant was possessed of the intention to produce the result, namely to transmit the disease to his partner.  In circumstances in which, as I understand it, there was no evidence of malice of the kind that one saw in Reid, his Honour’s reasoning raises the issue in the first of the special leave questions that the applicant identifies, does it not?

MR BYRNE:   Part of the applicant’s argument is a contention that the Crown at the intermediate appeal abandoned the use of the lies as going to a consciousness of guilt of the offence charged, that is, the offence with the proscribed intent as an element.  Now, it must be accepted that that may be a reading coming from paragraph [43] on page 36 of Justice Gotterson’s judgment, particularly the second sentence, the paragraph that is comprised of two sentences only, but must then also be seen, we would submit, in light of the wider recognition, particularly at paragraph [23] on page 33 where the trial judge’s directions concerning the fact that on the prosecution circumstantial case the alleged lies are critical.  Now, her Honour, unless it was ‑ ‑ ‑

BELL J:   I understand there is no criticism made of the sufficiency of the directions, but the ground of appeal went to the sufficiency of the evidence to support the conviction.  It is difficult to see how the mere fact of lying about one’s HIV status would support the more serious of the offences as distinct from the offence to which the applicant pleaded guilty.  How does one draw from the fact that one tells lies to a person in order to have sexual intercourse with them that one has an intention, in fact, to transmit the disease to them, as opposed to the intention to procure their agreement to the sexual intercourse?  It does seem to be a point which, as I understood his Honour Justice Gotterson acknowledges in his reasons in discussing that, the significance of lies.

MR BYRNE:   There were a number of lies which were told.  It was a matter of fact for the jury to determine, in our submission, whether the lie was told so as to – the initial lie was told so as to encourage the participation in an act of sexual intercourse or whether there were other reasons for it. 

BELL J:   But we are concerned with the review by the Court of Criminal Appeal of the sufficiency of the evidence to sustain the conviction which requires the Court of Criminal Appeal to consider the whole of the evidence, including the lies, and what inferences can properly be drawn. 

MR BYRNE:   Indeed - I am sorry, I did not mean to cut your Honour off, did I?

BELL J:   Not at all.  No, do go on.

MR BYRNE:   Thank you.  The only other passage I can directly take the Court to where Justice Gotterson dealt with that clearly was the second‑last sentence in paragraph [48] where he noted that the jury were given the clear directions on the use they could make of the lies as the evidence of the consciousness of guilt.  Now, this appeal, as I commenced my submissions, was conducted on a particular basis and the judgment has been crafted around the submissions which were made.  There was no submission made before the Court of Appeal that the lies were incapable of being used for the purpose which the trial judge directed the jury they could be used. 

It was, in our submission, therefore, not incumbent on the court to enter into an area and consider arguments that were not raised before it.  It does not preclude the court from doing it should the members of the court have thought that there was some concern in that regard but it was not incumbent upon them to do it.  That is the significance of the fact of the concession that I had raised early in my submissions.  It is, with respect, submitted. 

The point which is substantially in dispute is whether Justice Gotterson has imported concepts of reckless indifference into the concept of intent as it is used within the Criminal Code (Qld). That is the first point of substantial contention.

KIEFEL J:   Just returning to the question about the lies – I suppose it would follow from what Mr Game was saying that the directions should have been that consciousness of guilt might have meant consciousness of wrongdoing.  But you cannot have a consciousness of intent in a way, can you?  You either had the intent at the time of the act or you did not.  So the directions are really neither here nor there in relation to consciousness of guilt.

MR BYRNE:   If the Edwards‑style directions are to be used in any case where a specific intent is alleged, and if one accepts that it is appropriate to direct that the lie must evidence a consciousness of guilt of the offence charged, it is difficult, as I stand on my feet, to understand how those directions could properly be given.  The lie is post‑offence conduct, which in this case formed part of an overall circumstantial case, rather than being a standalone entity.

KIEFEL J:   The consciousness would have to be a recollection that you had the requisite intent at the time.

MR BYRNE:   Yes, yes.  Here, lies were told – or, statements made by the applicant which were capable of being seen as deliberate untruths, lies – were told through the course of the relationship and after the termination of the relationship.  There is nothing to suggest, for example, that the applicant had any difficulty recalling things that were occurring during the course of the relationship.  Whether the initial lie was told in an effort to have the complainant participate in the act of sexual intercourse or not does not necessarily preclude the fact that it was also told with an intent that the complainant suffer grievous bodily harm. 

This is purely a facts case, in our submission.  The jury were given directions which were appropriate to the circumstances before it, and they returned, one must assume, a faithful verdict based on those directions.  An issue ‑ ‑ ‑

BELL J:   Mr Byrne, the appeal is not – the appeal is from the orders of the Court of Criminal Appeal dealing with a ground that complained of the sufficiency of the evidence to support the events.

MR BYRNE:   Yes, your Honour.  I am sorry, I thought your Honour intended to continue.

BELL J:   No, Mr Byrne.

MR BYRNE:   I beg your pardon.  No, I accept of course, that it comes from the Court of Appeal.  My submission is that the Court of Appeal has

dealt with the matter on the basis of the evidence that was before the jury and recognised the function of the jury in drawing inferences where they are open, and has done so in light of the concessions that were made about the lies, and in light of the concessions that were made that the directions on intent were appropriate. 

I should say one further matter, if I may.  The issue has been taken in the applicant’s reply with the appropriateness of the directions given by the trial judge in terms of the competing hypotheses.  That direction is extracted at paragraph [21] on page 32.

KIEFEL J:   Mr Byrne, does your argument about the sufficiency of directions come to this, that in a case where it is argued after an intermediate Court of Appeal has dealt with sufficiency of evidence and directions together, that you cannot argue about the sufficiency of evidence if you have not asked for a direction that there be a verdict of acquittal?

MR BYRNE:   To say that you cannot would be contrary to cases such as Crampton that I am thinking of that should only be raised ‑ ‑ ‑

KIEFEL J:   But that is what it amounts to, does it not, because if this is to hinge upon – just upon the sufficiency of directions, and not the sufficiency of the evidence to support a conviction, we are in two parallel zones really, are we not?

MR BYRNE:   Yes, your Honour.  I accept your Honour’s observation, but I do not know that I can usefully add to that.  Unless the Court would be assisted by submissions on the second ground, given the concession by my learned friend that it would not be a special leave point on its own, I had not intended to address the matter.  They are my submissions.

KIEFEL J:   Yes, thank you, Mr Byrne.  Is there anything in reply, Mr Game?

MR GAME:   Just this your Honours, that it is not much good going back to the directions about intention with respect to the lies when we are not asking for a retrial.  It is the analysis that we are assessing.  The Crown abandons the consciousness of guilt argument about the lies on appeal.  We latch onto that, and what is said at paragraph [43].  That is where it stands.  That forces one into considering the second – what I call the second basis of intention, which must emerge from paragraph [46], in our submission.

KIEFEL J:   Yes, there will be a grant of special leave in this matter.  Would it be more than half a day, Mr Game?

MR GAME:   No, your Honour.

KIEFEL J:   Mr Byrne, do you agree with that?  Would it go over the half‑day mark?

MR BYRNE:   I did not hear Mr Game’s response, I am sorry, your Honour.

KIEFEL J:   He did not think it would go more than half a day.

MR BYRNE:   No, I agree with that, yes.

KIEFEL J:   Is there any reason that this could not be readied for the February sittings?

MR GAME:   No, your Honour.

KIEFEL J:   All right.  In that case, could your instructing solicitors please ascertain the appropriate directions from the Deputy Registrar before they leave today.

MR GAME:   If the Court pleases.

KIEFEL J:   Thank you. 

AT 9.59 AM THE MATTER WAS CONCLUDED