Zaburoni v The Queen

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.