High Court decision confirms high standard of evidence required to prove an intent to transmit HIV

Zaburoni v The Queen [2016] HCA 12 (6 April 2016)

The High Court has unanimously allowed an appeal against a decision of the Queensland Court of Appeal, in relation to the criminal offence of intentionally transmitting HIV to another person.

The decision provides further guidance as to when evidence of a person’s awareness of risk, and foresight of the consequences of his actions, will suffice to prove criminal intent.   

The appellant was diagnosed with HIV in 1998.  Some years after receiving that diagnosis, he commenced a sexual relationship with the complainant, and expressly informed her that he did not have HIV. While they initially engaged in protected sex, after a number of weeks they began engaging in regular unprotected sex for several months.  After the relationship ended, the complainant was diagnosed with HIV. 

The appellant had denied to the appellant that he had HIV on multiple occasions during the relationship.  He claimed that he only learned that he had HIV some 6 months after their relationship ended, when he undertook a blood test and received a diagnosis (and claimed to the doctor at the time that he was not aware that he was HIV positive).  He also lied to police at the time, denying that he had in fact known about his disease since 1998.  A number of doctors and specialists gave evidence to the effect that the appellant was fully aware that he had HIV during the course of his relationship with the complainant, and understood that it could be transmitted by unprotected sex. 

The appellant was convicted of grievous bodily harm.  This conviction was not at issue before the High Court.  At first instance, he was also convicted of the more serious offence of transmitting a serious disease with intent, contrary to section 317 of the Criminal Code 1899 (Qld). This conviction was upheld by the majority of the Queensland Court of Appeal.  The majority (Gotterson JA and Morrison JA) held that a jury was capable of concluding, on the evidence available, that the appellant intended to transmit HIV.

It was not controversial before the High Court that the appellant knew he had HIV and that it was sexually transmitted.  The question for consideration was whether this evidence of awareness of risk, and of foresight of the relevant consequences, sufficed to prove intent when combined with two other relevant classes of evidence.  The plurality (Kiefel, Bell and Keane JJ) observed (at [10]):

To engage in conduct while knowing that it will probably produce a particular harm is recklessness.  It is evidence which, taken with other evidence, may support a conclusion that the person intended to produce that harm.  Nonetheless, foresight of risk of harm is distinct in law from the intention to produce that harm.

However, evidence that a person foresaw that his conduct would produce a particular result as a “virtual certainty” would be of great evidential significance (at [15]).

The two other classes of evidence were the frequency with which the appellant engaged in unprotected sex (whilst knowing of his diagnosis), and certain other conduct.

Frequency of unprotected sex
The appellant and complainant engaged regularly in unprotected sex over the course of the relationship which lasted many months.  This, in combination with evidence that the appellant knew and understood that HIV was sexually transmitted, led Gotterson JA, in the majority of the Court of Appeal, to observe:

It was open to the jury to reason … that whereas one or several acts of unprotected sexual intercourse might be viewed as reckless as to whether infection would be transmitted or not, such acts repeated frequently with the same partner over many months defied description as mere recklessness as to the risk of transmission.

The High Court unanimously rejected this reasoning. The Court held that an accused’s foresight of likelihood that an outcome would occur as a result of his actions, cannot be substituted for proof of an accused’s intention to cause or bring about that action.  The exception to this case is where an accused is aware that it is a ‘virtual certainty’ that the conduct will result in the particular outcome (at [42]-[43]).  The Court also noted that a rational inference from the evidence of frequency of unprotected sex, which was open to the jury, was that the appellant engaged in such conduct because it was more pleasurable, and that he was reckless of the risk of transmission.

The Court concluded that the evidence fell well short of proving that the appellant believed that it was “virtually certain” that he would transmit HIV via regular unprotected sex.

Other evidence
The majority of the Court of Appeal also had regard to evidence related to the lies told by the appellant to police, doctors and the complainant, and his failure to undertake anti-retroviral treatment for his condition.  The majority of the Court of Appeal acknowledged that this evidence alone was not sufficient to prove that the appellant had intentionally transmitted HIV, but did reflect that the appellant was aware of the high level of risk of transmission.  From this, the Court inferred that the appellant possessed the intent to transmit.

The High Court flatly rejected this reasoning.  Again, such evidence could not support the inference that the appellant believed he was certain to transmit HIV.   

Mr Zaburoni will now be resentenced by a Queensland court for the lesser charge of reckless infliction of grievous bodily harm.

The decision confirms the high standard of evidence that will be required to prove an intent to transmit HIV. As the High Court acknowledged, while the appellant’s conduct was reckless and selfish, it simply could not be equated with an actual, subjective intent to transmit HIV in the absence of evidence of malice or of awareness of a high degree of risk.

The decision has been welcomed by advocates of persons with HIV. While this conclusion has been reached before in other jurisdictions, it has not been reached by a court of the same level of superiority as the High Court.  

The full text of the decision can be found here.

Rebecca Williams is a Solicitor at King & Wood Mallesons.