Aubrey v The Queen  HCA 18 (10 May 2017)
In a majority decision, the High Court of Australia in Aubrey v The Queen  HCA 18 (Aubrey) held that the act of infecting another individual with a sexually transmitted infection falls within the meaning of 'maliciously inflicting grievous bodily harm' under s 35(1)(b) of the Crimes Act 1900 (NSW) (the offence). The decision also clarifies that it is sufficient that the Crown establish that an accused foresaw the possibility, and not the probability, that an act of sexual intercourse could result in the contraction of a grievous bodily disease for an accused to be convicted of the offence.
The majority decision held that the English decision of R v Clarence (1888) 22 QBD 23 (Clarence) should no longer be followed. Clarence held that maliciously inflicting grievous bodily harm required proof of the "direct causing of some grievous injury to the body itself" where harm is the manifest immediate and obvious result, which is to be contrasted with the uncertain and delayed effect of an infection communicated by an act of sexual intercourse.
The majority decision, in considering the case law which has transformed the scope of the offence to align with contemporary ideas and understanding, found that the offence should be interpreted to include the reckless infliction of a disease, whose symptoms may only manifest hours or days after the incident.
The appellant tested positive for Human Immunodeficiency Virus (HIV) on 22 April 2002. He was advised by medical practitioners of the need to adopt safe sex practices to reduce the risk of HIV transmission. In January 2004, the appellant commenced a sexual relationship with the victim but did not inform the victim that he was HIV-positive. The appellant had assured the victim that he was HIV-negative prior to the first instance of sexual intercourse.
As a requirement of his employment, the victim undertook regular testing for sexually transmitted infections. In July 2004, he was notified that he had tested positive for HIV.
At trial in the New South Wales (NSW) District Court, the appellant was indicted for two offences:
- maliciously inflicting grievous bodily harm (s 35); and
- maliciously causing the complainant to contract a grievous bodily disease with an intention to cause the complainant to contract that disease (s 36).
The appellant was convicted for the s 35 offence and sentenced to five years' imprisonment with a non-parole period of three years. This decision was appealed on two grounds:
- there was no offence known to law committed by the appellant; and
- the trial judge erred in directing the jury that the element of malice was satisfied by requiring only the probability of harm to be foreseen.
The case was dismissed by the NSW Court of Criminal Appeal and subsequently appealed to the High Court of Australia on the same grounds.
First ground: the scope of the offence
Chief Justice Kiefel and Justices Keane, Nettle and Edelman (the majority) first considered the authority of Clarence. Clarence held that proof of maliciously inflicting grievous bodily harm required "the direct causing of some grievous injury to the body itself". A necessary condition for the offence was the manifestation of an "immediate and obvious result". Sexually transmitted diseases did not satisfy this threshold because the consequences were "uncertain" and had a "delayed effect".
The majority held that the narrow interpretation of 'inflicting grievous bodily harm' in Clarence should no longer be followed. The majority accepted the reasoning in the English Court of Appeal case of R v Dica (2004) QB 1257 (Dica) which held that Clarence has "no continuing application" because "subsequent developments in knowledge of the aetiology and symptomology of infection" had transformed the ordinary understanding of ‘grievous bodily harm’ to include the transmission of a sexual disease.
The majority also rejected several submissions raised by the appellant.
- The appellant submitted that the ordinary meaning of the word 'inflicts' connoted immediate consequences. The majority rejected this argument, referring to the reasoning in Alcan Grove Pty v Zabic (2015) 257 CLR 1 which found that damage from a disease may be inflicted even prior to the manifestation of any symptoms.
- The appellant submitted that the rules of statutory construction did not allow a court to adapt the scope of the offence to new and present circumstances. The majority rejected this submission. Citing Chief Justice Barwick in Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327, the majority accepted that "if things not known or understood at the time an Act came into force fall, on a fair construction, within its words, those things should be held to be included". Therefore, rules of statutory construction allowed Courts to interpret the offence in the light of modern developments and understandings of infection and sexually transmitted diseases.
- The appellant submitted that it was apparent from the introduction of s 36 of the Crimes Act that Parliament were of the view that the s 35 offence had the meaning attributed to its words by the majority in Clarence. The majority rejected this argument and found that the s 36 offence was enacted due to the doubt as to whether the contraction of a disease constituted bodily harm. That there was doubt about the effect of Clarence did not mean that the s 35 offence was intended to be restricted in the manner suggested by Clarence.
- The appellant submitted that where there is doubt about the meaning of a penal statute, it should be resolved in favour of the subject. The majority found that this rule was one of last resort and this was not a case where the principle applied because the meaning of the statute was clear using ordinary rules of construction that a statute is "always speaking".
Second ground: the meaning of ‘maliciously’
The majority considered whether the meaning of ‘maliciously’ causing grievous bodily harm required proof that the accused foresaw the probability, rather than the possibility, of harm.
The majority considered the Victorian Court of Appeal case of R v Campbell (1997) 2 VR 585 (Campbell) which found that an offence of reckless infliction of grievous bodily harm requires proof of the foresight of a probability of harm. The Court in Campbell relied upon the High Court case of R v Crabbe (1985) 156 CLR 464 (Crabbe) which held that foresight of the probability of death or grievous bodily harm was required for common law murder. The Court in Campbell reasoned that it could not be supposed that the legislature intended there to be different requirements for recklessness for offences other than murder.
The applicability of this reasoning for section 35 of the Crimes Act 1990 (NSW) was rejected by the majority. It reasoned that the requirements of ‘recklessness’ will vary between each State depending on the relevant statute. Crabbe is not authority that the requirement of recklessness for statutory offences other than murder is the probability of injury. As a result, the majority affirmed the NSW Court of Criminal Appeal case of R v Coleman (1990) 19 NSWLR 467 which held that, despite Crabbe, the offence only required foresight of the possibility of harm.
It was further submitted by the appellant that recent English case law had demonstrated an additional burden for the offence of not only foreseeing the possibility of harm, but also that it was unreasonable for the accused to take the risk they did. The majority noted that the reasonableness of an act is "logically connected" to the degree of foresight of harm and is determined by the act’s social utility. For example, the killing or injury from driving is not judged as reckless solely by the degree of foresight of the possibility of injury from driving. The majority considered that such an additional burden (as has been applied in English case law) was not required in Australia as juries using common sense and experience are capable of taking account the social utility of an act into account when determining recklessness.
In dissent, Justice Bell agreed with the majority decision that a finding that an accused has recklessly inflicted grievous bodily harm will be satisfied where the accused foresaw the possibility of harm. However, Her Honour disagreed with the majority's interpretation of the scope of the offence. Justice Bell considered that Clarence is long-standing authority for the principle that "the 'uncertain and delayed operation of the act by which infection is communicated' does not constitute the infliction of grievous bodily harm" and Her Honour did not see any good reason to depart from it.
This decision provides clarification on the scope of the offence of maliciously inflicting grievous bodily harm in NSW. Importantly, it overturns the decision of Clarence which found that 'inflicting grievous bodily harm' required an act with an "immediate and obvious result".
This case raises important public policy issues around the criminalisation of HIV transmission in Australia. HIV / AIDS advocacy organisations have long argued against the criminalisation of people living with HIV on the basis that prosecutions relating to the sexual transmission of HIV undermine public health efforts and stigmatise people living with HIV as dangerous and harmful. The Australian Federation of AIDS Organisations has argued that this is inconsistent with UN AIDS policy guidance and has the effect of discouraging key populations from accessing testing and engaging with the health system.
The full text of the decision can be found here.
Brenton Pollard is a Senior Associate and Jamil Diu is a Lawyer at Allens.