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

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…

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: [2015] HCATrans 298
Decision Date

CaseChat Overview and Summary

In *Zaburoni v The Queen*, the High Court of Australia considered an appeal from a conviction for sexual offences. The appellant, Zaburoni, had been found guilty by a jury of multiple counts of aggravated sexual assault and sexual assault. The central dispute on appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the appellant's prior sexual history, which had been introduced by the prosecution. A key legal issue was whether this evidence was relevant to the charges and, if so, whether its probative value outweighed its prejudicial effect, particularly in light of statutory provisions governing the admission of such evidence. The Court also considered whether the directions given by the trial judge to the jury regarding this evidence were adequate.

Kiefel and Bell JJ reasoned that the admission of the prior sexual history evidence was an error. They held that the evidence was not sufficiently relevant to the specific charges before the jury and that its prejudicial impact was substantial, potentially leading the jury to infer guilt based on past conduct rather than the evidence presented for the current offences. The Court emphasised the importance of adhering to the strictures of the relevant evidence legislation to ensure a fair trial, particularly when dealing with sensitive and potentially inflammatory material. The appeal was allowed, and a retrial was ordered.

Orders