The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on the test for intent and foresight of consequences in the context of HIV transmission. After the appellant was diagnosed with HIV in April 1998, he commenced a sexual relationship with the complainant in December 2006 involving unprotected sex, and in 2009, after the relationship had ended, she was diagnosed with HIV. Throughout this time, the appellant denied on multiple occasions that he had HIV, claimed that he only knew about having HIV 6 months after the relationship had ended, and lied to police about these matters. The appellant was convicted of transmitting a serious disease with intent, contrary to ss 317(b) and 317(e) of the Criminal Code 1899 (Qld) and sentenced to 9 years and 6 months imprisonment. The QCA, by majority, dismissed an appeal against that conviction, rejecting the argument that the verdict was unreasonable or contrary to the evidence: the Court of Appeal held that a jury was capable of concluding that, on the basis of the evidence, the appellant intended to transmit a serious disease (see [39]ff). Applegarth J, in dissent, held that while the appellant had a genuine appreciation of the risk of transmission, the evidence did not show whether he knew that risk to be high or low, and could only support a finding of recklessness, but not intent (see [89]ff). Before the High Court, the appellant sought to argue that the QCA majority erred in conflating recklessness in awareness of a potential risk with intent to achieve a specific result, here, transmission of HIV.

The High Court unanimously allowed the appeal, set aside the orders of the QCA, entered a verdict of guilty on the alternative offence of doing grievous bodily harm (s 320), and remitted the matter to the QDC for sentencing. The plurality (Kiefel, Bell and Keane JJ), noting that the QCA relied on frequency of unprotected sex over many months to infer intention to transmit HIV, held that the evidence was not capable of establishing that intention to the criminal standard. Their Honours rejected Gotterson JA’s conclusion that the frequency and time went beyond recklessness to intention, because a rational inference still open on the evidence was that the accused was reckless as to transmitting HIV to the complainant and unprotected sex enhanced his pleasure: ‘the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse’ (at [44]). Their Honours also rejected Morrison JA’s further factors (his failure to embark on a course of treament, various lies told by the appellant, and so on) as insufficient to show an intention to infect the complainant through sexual intercourse (see at [45]ff). Gageler J agreed with the orders of the plurality, concluding that the reasoning of Applegarth J was compelling, and that on the evidence the jury could not exclude the reasonable hypothesis that the appellant engaged in sex with the complainant for his own gratification and reckless as to whether she may be infected, but without that intent (see at [62]–[64]). Nettle J also agreed with the orders of the plurality, adding comments on intention (at [66]ff) and the significance of the appellant’s lies (at [70]ff).