Aubrey v The Queen

The High Court has dismissed an appeal against a decision of the New South Wales Court of Criminal Appeal on the meaning of ‘inflict’ in ‘infliction of grievous bodily harm’ and the foresight of risk in establishing recklessness. Aubrey was charged with several offences related to his allegedly infecting his partner with HIV through unprotected sex and in the knowledge that he was HIV positive. The appellant sought to have a more general offence against s 35 of the Crimes Act 1900 (NSW) of maliciously inflicting grievous bodily harm quashed on the basis that, on the Crown’s factual case, the transmission did not constitute an ‘infliction’. The NSWCCA held that ‘inflicts’ should not be given a limited, technical meaning or require any violent act with an immediate result, and that transmitting a disease that manifests itself over time could amount to grievous bodily harm; special leave to appeal to the High Court against that decision was refused. Following these interlocutory appeals and a trial, Aubrey was convicted of maliciously inflicting grievous bodily harm. A differently constituted NSWCCA rejected his argument that this count disclosed no offence known to the law, agreeing with the reasoning in the earlier NSWCCA decision. Following a grant of special leave, the appellant sought to contend that sexual transmission of a grievous bodily disease could not amount to infliction, and that recklessness and maliciousness required that the accused forsesaw the probability that sexual intercourse would result in the other person contracting the disease.

A majority of the High Court (Kiefel CJ, Keane, Nettle and Edelman JJ) dismissed the appeal, holding that transmission by sexual intercourse could amount to infliction, and that the Crown need only establish that the accused foresaw the possibility of contracting the disease. On the first issue, the majority judges held that R v Clarence (1888) 22 QBD 23 — in which a majority of the English Court for Crown Cases Reserved held that a man who knew he had gonorrhoea and foresaw the possibility to infecting his wife through sexual intercourse could not be convicted of maliciously inflicting grievous bodily harm upon her when he did so without informing her — should no longer be followed (at [18], and see discussion of Clarence and later cases at [10]ff). The majority articulated nine reasons why Clarence should not be followed (at [18]–[26]): it was contrary to contemporary authority, was not unanimous, contained forceful dissents, seems to have involved the synonymous use of ‘inflicting’, ‘causing’, and ‘occasioning’, involved consideration of provisions that seemed to leave open infliction by any means, was likely not using standardised language (meaning that different forms of expression are not necessarily significant), rested on rudimentary understandings of infectious diseases, relied on the presumption of consent to sexual intercourse within marriage, and had been more recently rejected in later English decisions the reasoning in which seems to apply to equally to s 35 here.

The majority then rejected the appellant’s various contentions on the interpretation of s 35. The use of ’causes’ in s 36 following s 35 did not imply any narrower connotation for the latter because, again, the various provisions of the Act were written without efforts to standardise the language, and thus the ordinary significance of those differences should not be assumed (at [31]–[32]). Nor would following the English approaches here result in a remarkable and unsatisfactory result, urged by the appellant, that a person could be convicted of maliciously inflicting grievous bodily harm by contemplating non-violent and possible non-physical action that might cause a disease (at [31]–[32]). The majority then rejected the appellant’s contention that the NSW Parliament be assumed to have been aware of Clarence and thus intended s 35 to apply in accordance with Clarence: the eventual words of the offence were proposed prior to Clarence, and the use of ‘by any means’ suggests a legislative intention that inflicts be read more widely than it was in Clarence and in the natural and ordinary meaning of causing an unwelcome consequence of some harm or detriment to the victim (see at [33]–[34]). While the High Court should be usually reluctant to overturn a long-standing decision or depart from the views of earlier judges who were likely more closely acquainted to the purpose of older pieces of legislation, Clarence has long been regarded as doubtful, and it is not clear that any majority judge had particular insight into Parliament’s purpose in enacting the statue at issue in Clarence (at [35]–[36]). The majority then rejected the appellant’s suggestion that the 1990 enactment of s 36 indicated a legislative intention that s 35 should continue to operate in accordance with Clarence: the second reading speeches underlying that reform show that s 36 was intended to dispel any doubt that contracting a disease might not constitute bodily harm for the purposes of s 35 (see [37]–[38]). Finally, the majority rejected the appellant’s invocation of the general principle that doubts about the meaning of a penal statute should be resolved in favour of the subject: that rule is one of last resort, and the generality of the 1861 Act suggests it should be appropriately construed as ‘always speaking’ (that is, across time and beyond its enactment meanings and context), and that any other result would produce ‘considerable inconvenience’ (at [39]–[40]).

Turning to the second issue of the meaning of ‘maliciously’, the majority judges noted that at the time of s 5’s enactment there was no clear meaning to ‘malice’ or ‘reckless’ in the common law or in proposed draft criminal codes of the late nineteenth century (see at [41]–[44]). While jurisdictions beyond NSW take different approaches to the requirements of reckless infliction of grievous bodily harm (see [45]), the majority held that the approach in R v Coleman (1990) 19 NSWLR 467 — which rejected the Victorian approach, in the context of murder, of requiring that the accused foresaw the probability, and not just the possibility, of death or grievous bodily harm (see at [46]) — remains correct in NSW (at [47]). The majority rejected the appellant’s invitation, said to be based on English decisions, to replace the requirement of the foresight of possibility with a test of foresight of probability on the basis that foresight and the possibility of harm must be balanced against the social utility of particular activities (see [49]), and that this balancing is best left to juries (at [50]). In any case, there was no possibility that a jury proceeded in this matter on the basis of foresight only of the possibility of harm: the appellant conceded that he knew there was a real possibility of infection (at [51]).

Bell J, in dissent, agreed with the majority’s analysis on the issue of proof of recklessness, but would have upheld the appellant’s first ground and ruled that the transmission of HIV could not constitute the infliction of grievous bodily harm within the meaning of s 35 as the provision stood at the time (at [53]). Bell J stated, at [55], that:

it is a large step to depart from a decision which has been understood to settle the construction of a provision, particularly where the effect of that departure is to extend the scope of criminal liability. For more than a century Clarence has stood as an authoritative statement that the ‘uncertain and delayed operation of the act by which infection is communicated’ does not constitute the infliction of grievous bodily harm. If that settled understanding is ill-suited to the needs of modern society, the solution lies in the legislature addressing the deficiency, as it has done. In my judgment it was an error [by the NSWCCA here] to follow Dica.

After examining several ways in which the NSW Act generally followed the 1861 UK Act (see at [57]–[63]), Bell J noted a number of similarities between the facts here and those in Clarence, and the common analysis among the majority judges that infliction required immediate relation to the harm inflicted (at [65]). Bell J then turned to the subsequent English decisions dealing with Clarence, reading them as a process of ‘erosion’ (at [71]) that ultimately, in Dica, still did not ‘undermine the conclusion’ that sexual transmission of a disease is not wihtin the expression ‘infliction of grievous bodily harm’ (at [72]). Bell J concluded that the construction in Clarence remains a plausible one and in these circumstances the High Court should not depart from it: ‘Certainty is an important value in the criminal law. That importance is not lessened by asking whether it is likely that persons would have acted differently had they known that the law was not as it had been previously expounded.’: at [73]. Her Honour would have allowed the appeal and entered a verdict of acquittal.

High Court Judgment [2017] HCA 18 10 May 2017
Result Appeal dismissed
High Court Documents Aubrey
Full Court Hearing [2017] HCATrans 13 3 February 2017
Special Leave Hearing [2016] HCATrans 277 16 November 2016
Appeal from NSWCCA [2015] NSWCCA 323 18 December 2015
Trial Judgment, NSWDC
Case No 2010/247176 15 November 2013
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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