News: High Court overrules 130 year-old criminal law precedent

In a decision this week, Aubrey v The Queen [2017] 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 occasionsMany 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.’

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

8 thoughts on “News: High Court overrules 130 year-old criminal law precedent

  1. I would say the difference is found in the passage you quote from Miller:
    “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.”

    Despite criticism, the HC didn’t feel there was an injustice in refusing to overrule McAuliffe. They did feel that there would be an injustice in refusing to overrule Clarence. And this makes sense, as the “complicity” principle remains arguable, while the rule in Clarence is clearly outdated by modern values and medical understanding.

    Justice Bell’s position is certainly understandable- retrospective changes to the criminal law should be avoided. I suppose I would argue in this case a failure to consider that society as a whole would not be aware of the Clarence precedent or the idea that it would still be applied in 2004. Society would expect that the offence of grievous bodily harm does include intentionally causing a serious illness, no different than if Aubrey had injected his victim with poison, regardless of what some judges 130 years ago had said in very different circumstances (where the presumptions surrounding marital sex in that era undoubtedly influences the decision). And so the majority has decided.

    Any alternative decision would have tended to undermine public confidence in the administration of justice.

  2. Arky, you’re probably right on the overall merits (though many would claim that extended joint criminal enterprise similarly lacks merit) but Clarence was at least partly just a statutory interpretation of the word ‘inflicts’, where I think the merits of the 1888 ruling are a good deal more defensible. The NSW parliament was certainly aware of the problem, because it changed ‘inflicts’ to ’cause’ in 2007, as a part of a package of legislation expressly dealing with the spreading of disease. Given that, I don’t think the High Court’s failure to retrospectively overrule Clarence to cover a case from 2004 is either here or there when it comes to public confidence.

    (There’s also the problem of deciding on the correct mens rea for this offence. The Court in Aubrey had to puzzle over what the word ‘maliciously’ adds in this context. Again, the legislature was attuned to that problem, replacing malice with recklessness in 2007. Surely, that sort of legislation is a better way to deal with criminal law reform than these sorts of judicial rulings? And, if it isn’t, then why did the Court baulk at fixing a common law doctrine in Miller?)

    • I don’t think “inflicts” is the problem. I believe NSW changed the term not because “inflicts” has some inherent problem but just to avoid an unnecessary fight over the precedent without the inherent clumsiness of expressly overruling Clarence in the definition. I go back to the “injecting with poison” example. The 1888 Court defined inflict in a particular way to reach a result satisfactory to the ethical mores of 1888 vis a vis marital sex.

      I disagree about the public confidence point. If the Court let Aubrey off the hook on a technicality over an 1888 definition of “inflict”, that’s exactly the sort of outcome that ends up in the newspapers, talkback radio and internet comments sections with people swearing a blue streak at lawyers and the legal system. I don’t know who that outcome serves besides precedence obsessives, but it isn’t justice.

  3. It’s interesting you raise the injected with poison example. NSW has a specific offence for poisoning causing GBH (from the same package of UK legislation that yielded the inflicts offence for GBH):

    (1) A person is guilty of an offence if:
    (a) the person administers to another person, or causes another person to take, any poison, intoxicating substance or other destructive or noxious thing, and
    (b) the poison, intoxicating substance or other thing endangers the life of, or inflicts grievous bodily harm on, the other person, and
    (c) the person intends to injure, or is reckless about injuring, the other person.
    Maximum penalty: Imprisonment for 10 years.

    Note the actus reus ‘administers… or causes another person to take’ and the reduced mens rea (intent or reckless to injury, not GBH.) The NSW courts have (controversially) applied older English precedents to rule that mere supply of a drug, even when the other party is inexperienced and intoxicated, does not fall within the provision (notably in the Diane Brimble case.)

    I’m curious: would you say that Michael Aubrey’s conduct fell within this provision (with his HIV-infected semen playing the role of an ‘other destructive or noxious thing’, ‘administer[ed]’ via sex?) And would a ruling to the contrary please only precedent obsessives? Or just be accepted as an instance of an old statute not meeting a modern (or heightened modern) problem?

    • Interesting- I hadn’t been aware of the separate offence.

      I would say the separate offence is completely unnecessary and a plain reading of the word “inflicts” should have no difficulty taking into account both the poisoning and disease examples. The separate offence existing obviously suggests the legislature thought otherwise, but that can be overcome. Legislatures make legal errors all the time.

      You could probably just about shoehorn Aubrey’s conduct into the poisoning offence on a plain reading of the words (without looking into the precedents) but “administered” perhaps makes it a dicier fit. Had the legislature completely excluded inflicting disease from standard GBH, causing the prosecution to charge the s39 offence… it’s a more line-ball call. I think it should still fly unless the precedents on the definition of administered are against it and are a lot stronger than the Clarence case. But at least a judicial finding that s39 didn’t apply would be able to point to the legislature excluding disease from GBH and say “legislature’s fault, don’t blame us”. It’d be less of a problem for confidence in justice.

      My concern is when debatable points like this are decided by judges in a way that seems to undermine public confidence in judges. It’s like the whole sentencing problem when judges became more interested in following the overly lenient precedents set by other judges than with the sentencing range set by the legislature and the public confidence in the whole system, which the HCA has had to weigh in on. Precedent is important to our system but is not the whole game. And at this point in history, I think trust in the judicial system is crucial to keeping the rule of law going.

      • I agree on sentencing, but then public opinion is a relevant sentencing factor and parliament (for now) just gives the courts the final say. But I’m not convinced on statutory interpretation, which isn’t a matter of public opinion and which parliament could readily deal with itself.
        All up, I’m a fan of the traditional rule on interpreting penal provisions (lenity, in the US), where precedents and history and purpose and the like can only be used to narrow criminal offences, not broaden them. (Scalia was a big fan of that rule, and he’s no friend of crims.)

  4. As well as echoes of Miller, I also thought the decision had echoes of PGA v The Queen [2012] HCA 21, (2012) 245 CLR 355 — there is a certain consistency between Bell J’s dissenting position in both cases.

    • Agreed. PGA is closer in many ways, particularly the shared subject-matter of marital sex, the majority stance and Bell’s dissent. One difference is that PGA concerned a common law rule (that interacted with statute) rather than (as I see it) the statutory interpretation question in Aubrey (albeit one that interacted with the common law rule addressed in PGA.) In that respect, PGA is more like Miller than like Aubrey.

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