In a decision this week, Aubrey v The Queen  HCA 18, a 4-1 majority of the High Court overruled an 1888 decision of the Court of Crown Cases Reserved (a predecessor to England’s Court of Appeals), which had held that a man who gave his wife gonorrhoea could not be convicted of ‘inflicting’ harm. Holding that the English decision should not be applied to the case of Michael Aubrey, a NSW man convicted of maliciously inflicting grievous bodily harm by giving his sexual partner HIV in 2004, the majority said:
Granted, until this case, Clarence had not been distinguished or judicially doubted in New South Wales. It was assumed that proof of an offence against s 35 of the Crimes Act necessitated proof of a direct causing of some grievous physical injury with a weapon or blow… It may also be accepted that the Court is ordinarily loath to overturn a long-standing decision about the meaning of a provision unless there is doubt about it, or to depart from the view of judges who, because of proximity in time to the passage of the legislation in question, were more aware of the reasons underlying the legislation. But that is not this case.
The majority listed nine reasons why Clarence should no longer be followed, including contrary pre-1888 authority, the lack of a single majority view in the case, two forceful dissenting judgments, subsequent discoveries about infection, the subsequent abandonment of the presumption of consent to marital sex and the more recent rejection of Clarence in England’s courts.
Few, other than people in a similar position to Aubrey himself, will mourn the death of Clarence. However, the majority’s approach to overruling that decision is an interesting contrast to the Court’s refusal last year to overturn its own little-loved decisions on complicitydespite England’s rejection of a similar approach. In last year’s Miller, a 6-1 majority wrote:
McAuliffe was a unanimous decision. It has since been affirmed on a number of occasions. Many prosecutions have been conducted on the law stated in it in the Australian common law jurisdictions… [I]t cannot be said that to depart from the law as it has been consistently stated and applied would not occasion inconvenience. Of course, were the law stated in McAuliffe to have led to injustice, any disruption occasioned by departing from it would not provide a good reason not to do so. However, here, as in Clayton, the submissions are in abstract form and do not identify decided cases in which it can be seen that extended joint criminal enterprise liability has occasioned injustice.
Yesterday’s judgment simply didn’t refer to Miller. This may be because Clarence, unlike McAuliffe, was not a unanimous decision. It may be because the decision has not been expressly affirmed in later years. Or it may be because Clarence was not a High Court decision (something that explains why only five judges, rather than seven, ruled in yesterday’s case.) Or it may be for some other reason. Unfortunately, the High Court didn’t say.
What is especially notable about yesterday’s overruling is that it widens the criminal law (while the proposed overruling in Miller would have narrowed it.) And because it is a judicial ruling, it does so retrospectively (rather than prospectively, as the NSW legislature did when it amended the provision in 2007.) Aubrey himself faces five years in prison for conduct that was not criminal under a (then) 116-year old precedent. That is why Bell J dissented from today’s decision:
[I]t 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.
Justice Bell’s view that the courts should not interfere with a long-standing decision where the legislature has chosen not to act is consistent with the same stance of the majority judgment in Miller, where six judges held that, because some states had chosen not to act since the Court’s previous rulings, ‘it is not appropriate for this Court to now decide to abandon extended joint criminal enterprise liability.’