R v Zaburoni[2014] QCA 77

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  At a trial over four days at the District Court at Southport, the appellant, Godfrey Zaburoni, was convicted on 18 April 2013 of an offence against s 317(b) and (e) of the Criminal Code.  The conviction was upon a count that between 1 January 2007 and 30 September 2008 at the Gold Coast, he with intent to transmit a serious disease to the complainant, unlawfully transmitted a serious disease to her.  Upon conviction, the appellant was sentenced to imprisonment for a period of nine years and six months with a declaration that sixteen days of pre-sentence custody be imprisonment already served under the sentence.

2. At the commencement of the trial, the appellant pleaded guilty to an alternative count that between the same dates he unlawfully caused grievous bodily harm to the complainant. He was not convicted on this count.^[1]

3. By a notice of appeal filed on 22 April 2013, the appellant appealed against the conviction and applied for leave to appeal against the sentence. On 15 November 2013, some four days prior to the hearing of the appeal, the appellant filed a notice of abandonment of his application for leave to appeal against sentence.

Circumstances of the alleged offending

4. The evidence at the trial was largely uncontested. The appellant made extensive formal admissions which were first read to the jury^[2] and then admitted into evidence in documentary form as Exhibit 2 which was given to the jury.^[3]  The appellant neither gave nor called evidence.

5. The appellant was diagnosed as HIV positive in April 1998 at Murray Bridge in South Australia.  At that time, the appellant, who was then a Zimbabwean national, was visiting Australia.  He had a job as an acrobat in a touring circus.  The diagnosis was relayed to him by the general practitioner whom he had consulted.  This doctor was of the opinion that the appellant was aware that the HIV could be transmitted through sexual contact.^[4]  It was later confirmed to him personally by an infectious disease consultant physician at the Royal Adelaide Hospital to whom he had been referred by the general practitioner.  Both doctors advised the appellant to use condoms for sexual intercourse because of the disease.  The physician also advised him that he should inform any sexual partner of his HIV positive status and that he should start antiretroviral medication.^[5]

6. In July 1998, the appellant attended at the Department of Clinical Immunology at the Royal Perth Hospital to which he had been referred by the Adelaide physician because the circus was travelling to Perth.  The advice given to him then by the medical registrar re-affirmed the sexual transmissibility of his disease.  The medical registrar prescribed antiretroviral medication.  She arranged a further review in a week’s time which the appellant failed to attend.^[6]

7. The appellant and the complainant first met on 31 December 2006 at the Gold Coast.  He was then 28 years old.  Several weeks later, and after several dates, their relationship became an intimate one.^[7]  Before commencing their sexual relationship, the complainant specifically asked the appellant whether “he had any STDs” and whether “he had been checked for HIV/AIDS”.  The appellant told her that he had been tested and that he did not have HIV.^[8]

8. The complainant testified at the trial that initially the appellant wore a condom during intercourse. After about six weeks, sexual intercourse without a condom took place for the first time. The appellant ejaculated inside the complainant. The appellant said that it was more pleasurable for him not to wear a condom. Thereafter, it was common for the appellant and the complainant to have unprotected sexual intercourse, and when they did, the appellant would usually ejaculate before withdrawing.^[9]

9. In June 2007, the complainant began experiencing symptoms of light-headedness on waking up and hot and cold flushes. She would feel tired and very sick. She would catch colds easily. The symptoms persisted for a month or more. Initially, she was diagnosed as suffering from glandular fever.^[10]

10. In late 2007, the appellant and the complainant began to co-habit at the same residence.  Her symptoms, which by then included vomiting and diahorrea, continued.  The relationship terminated in September 2008 whereupon the complainant returned to Western Australia.  In August 2009, she returned to visit a friend at the Gold Coast.  She sought medical assistance for her symptoms.  After samples for testing were taken and analysed, she was advised that there was a sixty per cent chance that she was HIV positive.

11. The complainant telephoned the appellant and told him of this. Her evidence was that she asked him if he knew anything about it and that he said that he definitely did not have HIV. Later, on 1 September 2009, she saw the appellant in person at her friend’s home. She asked him to tell the truth. He then said that he did have HIV. Asked how long he had known that, he said, “six months”.^[11]  On the following day, the complainant received confirmation that she had HIV.

12. The appellant’s statement that he had been tested and did not have HIV was a falsehood. His statement in September 2009 that he had, by then, known of his HIV positive status for only six months was a further falsehood. He modified this falsehood during a pre-text telephone call between him and the complainant on 25 November 2009.  On that occasion, he told her that he learned that he had HIV six months after they broke up.^[12]

13. The appellant was interviewed by police on 24 and 26 May 2010.^[13]  He told them that during the relationship he and the complainant were careful and had protected sex but on possibly two occasions they had unprotected sex.^[14]  He said that when he was diagnosed as having HIV in 1998 he was given little information; specifically, he was not told that he had to tell people about it before he slept with them.^[15]  Initially, he told the police that he had taken a blood test at Southport in April 2005 which yielded negative results.^[16]  Later, he said that the Immigration Department had required the test, that he went to the testing clinic with a male friend, and that the friend supplied his own blood for the test in the appellant’s name.^[17]

Admitted expert evidence concerning HIV transmission

14. No medical practitioner gave evidence at the trial. The admissions in Exhibit 2 included the following summary of facts and opinion provided by Associate Professor, David Wilson, head of the Surveillance and Evaluation Program for Public Health at the National Centre in HIV Epidemiology and Clinical Research at the University of New South Wales:

“35)Provides expert opinion on the risk of contracting HIV from unprotected penile-vaginal sex is approximately 0.1% (i.e. transmission to the female partner in vaginal heterosexual intercourse).  A relatively recent study found that the best estimate of HIV transmission for male-to-female penile-vaginal sex was 0.08% per act in high-income countries and 0.3% per act in low-income countries.  The risk for penile-anal intercourse is 1%.

36)Numerous factors may increase the risk of contracting HIV.  These include ulcers, cuts, or bleeding which increase the transmission risk substantially.  (Approximately 6-times more likely for transmission to occur is the best estimate.)

37)If someone has high viral loads in the genital fluids then they are generally more infectious.  There is a relatively strong association between viral loads in genital fluids (semen) and viral loads in plasma (blood), although the association is not perfect.  If someone is newly infected then they generally have a very high viral level.  But anyone who is not on effective antiretroviral therapy still has quite high viral levels.

38)There is a relatively strong relationship between the viral load of an infected person and the probability of sexual transmission, with the greater the virus levels the greater the infectiousness.  [note:  there is no evidence of what the defendant’s viral load was in 2007 – 2008.]

39)In relation to the defendant’s medical records and his HIV results, at the time the defendant was first diagnosed with HIV he had a CD4 count of 413.  He explains that CD4 is an indicator of one’s immunological status and people with HIV who are not on antiretroviral therapy decrease in CD4 count.  HIV uninfected people generally have a CD4 count of between 800-1200 cells per ul of blood.  When infected with HIV you lose about 20-25% of cells within the first year of infection and then about 50-60 cells per year thereafter.

40)The defendant’s CD4 counts suggests he was likely initially infected with HIV a few years prior to 1998 (this is not however definitive).  It is likely the defendant acquired HIV in Zimbabwe where HIV prevalence is much higher and heterosexual transmission of HIV more common.

41)On the basis of the relationship between the complainant and the defendant lasting for a period of 21 months, it is his estimation of the risk of transmission between the defendant and the complainant would be approximately 14%.  This estimate was made without any details of the frequency of sexual intercourse or the possible presence of any other sexually transmissible diseases, ulcers etc.  His conclusion is that this is a very real and present risk of HIV transmission occurring and in his opinion it is not surprising for actual transmission to have occurred.”^[18]

15. At the hearing of the appeal, the respondent submitted that the assessment of the risk of transmission over the term of the relationship at approximately 14 per cent^[19] was a conservative one.  The court was informed that this submission was based upon the fact that persons who are not on effective antiretroviral therapy continue to have quite high viral levels^[20] and that the appellant’s medical records revealed that when he was first diagnosed with HIV, he had a CD4 count which was indicative of his not having been on such therapy.^[21]

16. I do not accept those factors as ones that would themselves justify regarding the assessment as conservative. No information is given in the Agreed Statement as to whether in making the assessment, Professor Wilson had acted upon any information or assumptions concerning what therapy or other treatment, if any, the appellant had had by the time his relationship with the complainant began, or how infectious he was at that time relative to an average. One cannot discern whether the assessment was made taking into account the appellant’s actual or likely level of infection.

17. There was no evidence that the appellant had any personal knowledge of the degree of risk of transmission of HIV from him to the complainant or, more generally, from an HIV infected person to an uninfected person at the relevant time.

Ground of appeal

18. There is one ground of appeal: that the verdict was unreasonable or contrary to the evidence.^[22]  How this ground was developed in written submissions and oral argument may be summarised briefly in the following way.

19. Intention is an element of the offence of which the appellant was convicted. For him to have committed the offence, it was essential that he have transmitted HIV to the complainant with an intent to transmit it. There was no evidence of an admission of intent on the part of the appellant. The prosecution case depended upon the drawing of an inference from evidence led at the trial, that the appellant had had the requisite intent. There was no reasonable basis for the jury to have been satisfied beyond reasonable doubt with respect to the appellant’s intent. This latter proposition combined two related elements: first, a concession^[23] that the evidence could justify an inference of intent and, second, an assertion that, notwithstanding, the evidence did not exclude at least one other reasonable hypothesis concerning the appellant’s conduct consistent with an absence of intent.

Jury directions

20. In written submissions, the appellant referred to directions given by the learned trial judge with respect to intent and lies. Her Honour had received detailed submissions on both topics on which she based the directions she gave. No issue is taken on appeal with the accuracy or appropriateness of them. The appellant’s argument is that a correct application of the directions to the evidence could not have led a reasonable jury to conclude beyond reasonable doubt that the transmission of HIV to the complainant was done with the appellant’s intent.  I propose to refer to relevant passages from the directions because of their significance to the development of the appellant’s case.

21. Her Honour explained to the jury that the prosecution was inviting them to infer intent from the appellant’s conduct. As to that process, she said:

“But to bring a verdict of guilty based entirely or substantially on circumstantial evidence, it is necessary that guilt should not only be a rational inference, but also that it should be the only rational inference that could be drawn from the circumstances.

So, if there are two equally competing hypotheses, one which, in this case, to put it very clearly, one which says, ‘All that conduct shows me he did intend to do it’, but equally, ‘All that conduct could show that he did mean to do it but equally it could mean that he was reckless, irresponsible, et cetera’, then you have to give him the benefit of that doubt, of that equal competing hypothesis and find him not guilty because that follows from a requirement that guilt must be established beyond reasonable doubt.”^[24]

22. Speaking of the nature of the requisite intent, her Honour then gave this direction:

“The Crown must prove beyond reasonable doubt that he had an actual subjective intention, that is, he, himself actually intended to transmit the HIV and that he conducted himself in a way that was designed to achieve that result, that is that the complainant would suffer from HIV.

The issue is not his intent at the time of any particular [act of] intercourse. The issue is whether it could be said that his conduct was accompanied by that intent, to transmit HIV. …”^[25]

23. Her Honour also explained that the prosecution relied on lies as showing the appellant’s guilty intent. She gave a direction with respect to what had to be found by them before any of the lies could be used to infer guilt, adding:

“In this case the alleged lies are critical in the Prosecution's circumstantial case against him and before you can use the alleged lies against him, you must be satisfied beyond reasonable doubt not only that he lied but that he lied because the truth would implicate him in this offence …”^[26]

24. The learned trial judge reminded the jury that the prosecution invited them to infer from the appellant’s lies and his other conduct that beyond reasonable doubt he had acted with the requisite intent. Her Honour said:

“Well, the Crown say that those lies, together with his conduct during the relationship would lead you inevitably to the view that you are satisfied beyond reasonable doubt that he lied because he was aware that by telling the truth, it would disclose that he was guilty of the offence in question; not the grievous bodily harm he has pleaded guilty to; not the other offences which might have been available, but to that offence. …”^[27]

The appellant’s argument

25. Counsel for the appellant began oral submissions with a proposition that intentionally engaging in risky conduct is not the same as intending the consequence that follows.^[28]  This proposition reflected the distinction that the learned trial judge had made between engaging in conduct with an actual intention to transmit a disease and engaging recklessly in conduct where transmission of a disease is a known risk.  Counsel submitted that here the evidence was such that recklessness without intent to transmit could not have been excluded by the jury.

26. The appellant’s argument was developed by a process of contrasting the facts and circumstances of the appellant’s case with those that prevailed in R v Reid.^[29]  That case concerned a homosexual relationship.  The offender was convicted of an offence against s 317(b) of the Code.  His appeal to this Court against conviction was dismissed by majority.^[30]

27. In Reid, the sexual relationship began in January 2003.  The complainant fell ill in late February that year.  Prior to engaging in the relationship, Reid lied to the complainant, assuring him that he had been tested in November 2002 as HIV negative.  Thereafter, Reid and the complainant engaged in oral sex and unprotected anal sex in which each penetrated the other to a point of ejaculation.  They would do so three of four times a week.

28. When first tested, the complainant received results which were inconclusive. Reid suggested that the complainant must have been given HIV by a previous sexual partner. He also suggested that the complainant should tell his doctor that he and the complainant had engaged in safe sexual practices from the outset.

29. The relationship broke down. Reid taunted the complainant publicly saying, “Who’d want you now? You’re HIV positive”. When interviewed by police, Reid lied saying that the complainant knew of his HIV status but had insisted on unprotected sexual activity. Initially, he was evasive about whether he had ejaculated inside the complainant, commenting that, “It feels like I’m carrying a loaded gun with me”.  Reid also told police of his belief that the risk of transmission was potentially high and of his awareness of the availability of post-exposure prophylaxis which can prevent infection.

30. In contrasting the circumstances of that case, the appellant’s counsel drew attention to several matters, including:

1. That the appellant had not engaged in treatment or counselling following his 1998 diagnosis and what was described as a lack of a genuine appreciation on his part of the transmission risks involved in unprotected sexual activity;

2. That there was no evidence that the appellant had himself suffered any significant period of ill-health subsequent to his diagnosis or otherwise had an understanding that the complainant’s illness was probably connected with HIV infection, which all of, it was suggested, may have explained his failure to react to the bouts of ill-health suffered by the complainant during the course of the relationship; and

3. That there was no evidence of ill-will towards the complainant such as Reid’s post-offence conduct towards his victim had demonstrated.

31. The other contrast made was in respect of the lies that both Reid and the appellant had told. The appellant’s lies, it was submitted, could have several explanations consistent with innocence.

32. The appellant’s lie to the complainant before they began the sexual relationship might have been due to lack of information about HIV or to self-deception, there being no evidence that he had had significant symptoms of the disease between the 1998 diagnosis and then. The deceitful conduct with respect to the blood test in 2005 and the subsequent lying about it to the police might have been borne of a fear that a positive diagnosis would have led to a visa cancellation and retributions that he might have suffered were he returned to Zimbabwe.

33. An elaboration of this aspect of the argument was referenced to a jury question as to where and when the appellant was advised that he was being charged with an “intent offence”.^[31]  The direction^[32] in answer to the question was that there was no evidence directly on the point.  Her Honour then referred to a comment by the investigating police officer during the interview that a complaint had been made by the complainant that he had transmitted HIV to her “with intent”.  Earlier in the interview, in what the learned trial judge called a “summary of the complaint”, it was described as being one whereby the complainant was complaining of having acquired the disease through sexual activity with the appellant, no further reference then being made to intent.^[33]  The appellant submits that it is possible to infer that the jury might have impermissibly reasoned from this “that any lies told during the interview necessarily related to the element of intent”.

The respondent’s argument

34. The respondent’s oral submissions began with a response to the proposition advanced by the appellant which I have mentioned. For the respondent, it was proposed that the jury could infer intent to the exclusion of recklessness from two aspects of the appellant’s conduct. One was his intentional and deceitful engagement over a protracted period in conduct which he knew risked transmission of HIV. The other was the lie that the appellant told the police that there had been unprotected sexual intercourse with the complainant on two occasions only. It was submitted that the significance of that lie was that it gave rise to an inference that the appellant appreciated at the time when he engaged in the conduct, the significant exposure to risk of transmission of HIV that accompanied unprotected sexual intercourse with the complainant.

35. The respondent submitted that where the appellant, knowing of the risk of transmission of his disease by way of unprotected sexual intercourse, engaged in it continually and deceitfully over a protracted period with the complainant, it was open to the jury to be satisfied beyond reasonable doubt of intent to transmit it.

36. In written submission, the respondent referred to the observations of Dixon J in Martin v Osborne^[34] with respect to the drawing of a conclusion by inference from proved facts.  His Honour stated that in the inculpation of an accused person, the evidentiary circumstances must bear no other reasonable explanation, adding that this meant:

“…according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.”

37. Reference was also made to the acknowledgement by the High Court in Doney v The Queen^[35] that the drawing of inferences by a jury is a process which involves more than the relevant circumstantial evidence.  Specifically, it involves the experience of the jury members.  Their Honours said:

“But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.  It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.”

38. The respondent submitted that this was a case in which the jury using their “collective experience of human affairs” were able to, and did, assess the evidence and consider what inferences were reasonable and whether any rational hypothesis consistent with the absence of intent was excluded. Having regard to the clarity of the directions, the jury must have excluded the hypothesis of recklessness. Their decision was open to them and should be respected.

Analysis

39. Where a ground of appeal challenges a verdict of guilt as unreasonable or cannot be supported having regard to the evidence, the question that the appellate court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.^[36]

40. Here, the parties’ respective arguments reduce the question for this Court to one of whether upon a consideration of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV to the complainant. The appellant’s case is that the evidence did not exclude as a reasonable hypothesis that the appellant had acted selfishly with reckless disregard for whether he transmitted the disease to the complainant.  On that basis the appellant submits that the question should be answered in the negative.

41. The evidence established clearly that the appellant knew from the time of the diagnosis in 1998 that he was HIV positive. It is also established that he was advised then by three medical practitioners, including two specialists in the field of sexually transmissible diseases, that his disease was transmissible; that he should use a condom during sexual intercourse; and that he should inform potential sexual partners of his disease.

42. The appellant’s conduct in 2005 in arranging for a friend to take a blood test is telling and the jury were entitled to regard it as such. It was consistent with his having a belief then that he continued to have HIV, and quite inconsistent with any belief that by then his disease had abated. This conduct undermines the credibility of the appellant’s contentions that the fact that he did not engage in treatment or counselling following the 1998 diagnosis together with the absence of evidence of bouts of ill-health thereafter, minimised his appreciation that he continued to suffer from the disease.

43. Furthermore, the appellant’s conduct in lying to the complainant before their sexual relationship began that he had been tested and did not have HIV is consistent with a clear appreciation on his part that his disease was infectious and transmissible through unprotected sexual activity.  I accept the respondent’s submission that the appellant’s lies to the complainant as to when he was first diagnosed with HIV and to police that he and the complainant had had unprotected sex about twice only evidenced that he had such an appreciation of these matters.

44. I am unable to accept the appellant’s submission that he lacked a genuine appreciation of the transmission risks involved in unprotected sexual intercourse.  It is, of course, true that he had not been told of the statistical risks of transmission during a single act of sexual intercourse or multiple acts of sexual intercourse over a protracted period.  But that degree of detailed knowledge is not necessary for a genuine appreciation of the risks of transmission.  The jury were entitled to conclude that the appellant had such an appreciation.

45. Such was the state of the evidence as to the appellant’s knowledge of his disease and its transmissibility. The jury had also heard that the appellant had been told to use a condom for sexual intercourse for the purpose of preventing transmission of his disease. The evidence also informed them that the appellant had transmitted HIV to the complainant. It therefore fell to the jury to consider whether the transmission was intentional or merely reckless. They were not required to consider whether any particular act of intercourse was accompanied by the requisite intent. The issue for them was whether the conduct of the appellant which resulted in the transmission of the disease was informed by an intent to transmit it.^[37]

46. The jury’s attention necessarily turned to the appellant’s conduct considered in the context of that knowledge. To my mind, what is of singular significance here is that the unprotected sexual intercourse continued over many months. It was the norm for them. It was open to the jury to reason from this and their own knowledge and experience of human behaviour 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.

47. That is not to say that the jury were required to find some point during the relationship when recklessness gave way to intent and relate that time to when transmission actually occurred. They were not. As Keane JA explained in Reid,^[38] a jury may infer from the protracted duration of the conduct that the requisite intent existed from the first act of unprotected sexual intercourse to the last.  Here, too, there was nothing in the evidence to suggest that some change occurred in the relationship which was apt to alter the appellant’s intention.

48. For these reasons, I reject the appellant’s submission that recklessness without intent to transmit the disease could not have been excluded by the jury.  I would add the following observations with respect to the appellant’s arguments.  First, even if the matters to which the appellant referred in order to distinguish Reid at a factual level had been made out, that would not have demonstrated that recklessness could not have been excluded.  In no sense is Reid to be viewed as setting some kind of factual minimum for the exclusion of recklessness.  Secondly, the suggestion that the appellant may have lied to police about the 2005 blood test because of visa cancellation concerns has no impact upon the significance of the arrangement he made with his friend as revealing his knowledge of his disease or of the lie with respect to frequency of unprotected sexual intercourse as revealing his appreciation of the risk of transmission.  Thirdly, the submission with respect to the jury question and direction in answer to it is, I think, far-fetched.  The jury were given clear directions on the use they could make of lies as evidence of consciousness of guilt.  There is no sound reason for supposing that they put those directions out of their minds so as to reason in the way that the appellant’s submission suggests.

Disposition

49. I am unpersuaded that the appellant has made out the ground of appeal. His appeal against conviction must be dismissed.

Order

50. I would propose the following order:-

1. Appeal against conviction dismissed.

51. MORRISON JA:  I have had the advantage of reading the reasons prepared by Gotterson JA.  Whilst I agree with those reasons I wish to add some observations of my own.

52. The appellant was examined by three separate medical practitioners in 1998, at which time he tested positive to HIV.  The doctors advised the appellant that:^[39]

1. HIV could be transmitted by sexual intercourse;^[40]

2. for that reason he had to wear a condom during sexual intercourse;^[41]

3. he should warn any sexual partner of the fact that he had HIV;^[42]

4. there was a need for constant monitoring of cell counts and viral loads;^[43]

5. there was antiretroviral medication which he should commence taking immediately;^[44]

and two doctors issued a prescription for the antiretroviral medication.

53. Notwithstanding that advice the appellant did not embark on the course of medication prescribed, nor any form of monitoring.^[45]

54. In 2005 the appellant was required to take a blood test to satisfy the requirements of the Department of Immigration when he applied to stay in Australia.  On this occasion the appellant arranged for a friend to give his blood and mislead the authorities into thinking that he was the appellant.  The appellant admitted that he knew full well that if it was his blood that was tested his HIV status would be revealed.^[46]

55. Not only did the appellant deceive the immigration authorities, and importune a friend to lie about the test, he later lied to police when questioned about that incident, saying that he himself had taken the test.^[47]

56. It was after that deception that the appellant met the complainant. His relationship with her became a sexual one some short time after going out for the first time. For the first six weeks the appellant wore a condom during sexual intercourse, but then he asked if intercourse could take place thereafter without a condom.  The explanation given by him to the complainant was that it was more pleasurable for him to have sex without a condom.

57. At no time during his relationship with the complainant did the appellant reveal that he had HIV. In fact, when he was asked that specific question, he lied about it, saying that he had been tested and he did not have it. The lie went a little further, in that he said that if he had HIV he would not have been allowed into Australia.^[48]  Then, part way through their relationship, the complainant asked again if the appellant was sure he did not have HIV.  Once again he lied, saying he did not.^[49]

58. At the time he lied to the appellant about his condition, and urged that he be allowed to have sex without a condom, the appellant was fully aware of the advice and warnings from the doctors given in 1998. He knew full well that:

1. having unprotected sex could transmit HIV to a sexual partner;

2. for that reason he had to wear a condom and warn any sexual partner; and

3. he should have been taking the prescribed medication to reduce the effects.

59. The appellant relied on this Court's decision in R v Reid.^[50]  That was another case where one person infected a sexual partner with HIV, and, just as in the appellant's case, the ability of the jury to find the requisite intent was challenged.

60. There are a number of similarities between Reid and the appellant's case.  In my view they support the conclusion that it was open to the jury here to conclude that the appellant had the requisite intent.  The reasons for that are set out below.

61. In Reid the Court held that it was open to the jury to conclude that it was Reid who infected the complainant in that case.  Here there is no doubt that it was the appellant who infected the complainant.

62. In Reid there was no doubt that the jury could conclude that Reid "well understood that, by having unprotected sex with the complainant, he was deliberately putting the complainant at risk of being infected by the HIV virus".^[51]  Further, that Reid "well understood that unprotected sex with the complainant was likely to infect him with HIV".^[52]  That same applies to the appellant.  The advice the appellant had received on more than one occasion, and the appellant's considerable efforts to keep the condition secret, meant that it was open to the jury to reach the same conclusion as in Reid.

63. In Reid the court concluded: "That the complainant became infected with the HIV virus was a natural consequence of the appellant's deception".^[53]  The same can be said of this case.  There can be little doubt, given the complainant's reaction when she found out that she had HIV,^[54] that had she been told at the start that the appellant had HIV, she would have insisted on protected sex, at the least.

64. In Reid the court concluded that the jury "were also entitled to conclude that the appellant intended to ensure that the complainant should be unaware of the risk to which he was exposing himself".^[55]  The same is the case here.  The appellant deceived the immigration authorities in order to keep his condition secret.  He lied to the complainant about his condition notwithstanding that he was asked a direct question (on two occasions) which could not have been misunderstood.  Even when the complainant contracted HIV and confronted the appellant about it, he continued to deceive the appellant about his condition.  The jury were entitled to conclude that he intended to ensure the risk of contracting HIV from him remained hidden.

65. Reid was similar to the appellant's case in another respect, namely that Reid deceived that complainant "to have sexual intercourse in the unprotected way which the appellant preferred".^[56]  That is the case here.

66. Further, in Reid the court held that it was reasonably open to the jury to find the requisite intent from several matters:

1. that what the Reid did "was, as he knew, plainly apt  to achieve the result that the complainant would become infected”;

2. he made a comment that “it still feels like I am carrying a loaded gun with me”,^[57] from which the jury could infer intent; and

3. that inference could be "strengthened beyond reasonable doubt by the appellant's failure to alert the complainant to the need for him to seek available treatment immediately after their first acts of unprotected intercourse".^[58]

67. There were matters present here which could reasonably lead to an inference of intent. Thus, (i) the appellant's failure to take the recommended protective steps during sexual intercourse, merely to suit his own desires, when he knew the danger of transmission, (ii) his failure to take medication prescribed on two occasions, and (iii) his failure to engage in any monitoring of his condition, are, in my view, powerful factors from which the jury could conclude that the requisite intent was present. To those, one may add the appellant’s comment when confronted by the complainant’s friend, after it was disclosed that he had HIV. When asked why he had not told her, he said: “I didn’t want to ruin her life”.^[59]  In my view it was reasonably open to the jury to conclude intent from that comment in the same way as it was open to the jury in Reid to conclude intent from the “loaded gun” comment.^[60]

68. The drawing of that inference is strengthened by the appellant's failure to alert the complainant to the need for her to take steps to protect herself, in whatever way was recommended to her.

69. In Reid it was argued that the infection may have occurred early in the relationship, and that was inconsistent with the existence of the relevant intention at that time.  However, the court held that the jury were entitled to find that the intention was the same throughout the relationship, noting that:  "There was nothing in the evidence to suggest that some change occurred in their relationship during that period which was apt to alter the appellant's intention".^[61]  The same applies, in my view, to the appellant's case.

70. For the reasons above, and for the reasons in the judgment of Gotterson JA, I agree that on the evidence it was reasonably open to the jury to find that the appellant had the requisite intention to transmit the HIV virus to the complainant.

71. I agree with order proposed by Gotterson JA.

72. APPLEGARTH J:  I have had the advantage of reading the reasons of Gotterson JA and gratefully adopt his Honour’s summary of the facts and submissions.

73. The appellant deceitfully encouraged the complainant to have unprotected sex with him for a period of about 21 months. The appellant knew he was HIV positive and that by having unprotected sex with the complainant he was exposing her to the risk of being infected.  The issue is whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit the disease.

74. I agree with Gotterson JA that the jury were entitled to conclude that the appellant had a genuine appreciation of the risk of transmission during the relevant period.^[62]  However, the evidence did not reveal whether the appellant knew that the risk was high or low, or more or less than the risk assessed by Associate Professor Wilson of about 0.1 per cent for each act of vaginal heterosexual intercourse or about 14 per cent over a period of 21 months.^[63]

75. The appellant makes the following essential points:

• Intentionally engaging in risky conduct is not the same as intending the consequence that follows.

• Foreseeing the probable consequence of one’s actions may be evidence of an intention to bring it about, but such foresight should not be equated with the statutorily required state of mind.

• The evidence fell short of proving that the appellant knew or foresaw that transmission of the HIV virus was a probable consequence of his actions.

• The appellant engaged in conduct which had the potential consequence which in fact transpired, but there was nothing on his part which proved that he intended such a consequence and, indeed, the consequence could not even be described as a probable consequence.

• The whole of the evidence did not exclude the hypothesis that the appellant was grossly reckless but did not intend to transmit the disease.

76. The first two propositions are supported by authority, and the respondent does not contest them. The word “intent” in the Criminal Code has its ordinary meaning of having something in mind, or to have a purpose or design.^[64]  A person intends some result if that is the result which the person means to bring about.^[65]  Where the Code requires an intention to bring about a particular result as an element of the offence, the prosecution must prove “an actual, subjective intention on the part of the accused”.^[66]  The required mental state, intent, should not be equated with some other state, such as knowledge, foresight or recklessness.^[67]

77. Knowledge or foresight of the probable consequence of a deliberate act may be relied upon as cogent evidence of the required intent. Depending upon the circumstances, proof of knowledge or foresight that a particular result is a probable consequence of an act may be compelling proof of the required intent. For example, proof that an accused knew or foresaw that deliberately discharging a gun into the body of a person at close range will probably cause grievous bodily harm is compelling, often irresistible, proof of an intent to cause that result. Still, whilst knowledge or foresight of probable consequences may evidence the required intent, such states of mind should not be equated with intent. In Reid,^[68] Chesterman J (as his Honour then was) observed that it is dangerous to deem that an accused intends consequences which he foresees will probably follow his actions.  It is also true that an accused may intend something which is an improbable consequence of his or her action.^[69]  In short, probable consequences may be unintended, whilst improbable consequences may be intended.

78. The respondent does not equate risky or even reckless conduct with an intention to bring about the consequence that follows from such conduct. Instead, it submits that the appellant’s conduct extended beyond merely engaging in risky conduct and that the evidence permitted the jury to exclude a hypothesis of recklessness. The evidence was sufficient to find the requisite intent proved beyond reasonable doubt. The lengthy period of unprotected sex, knowledge of the risks of such conduct, coupled with the appellant’s lies are said to have enabled the jury to conclude that the appellant meant to transmit the virus, irrespective of what the precise risk was. The respondent particularly relies upon:

1. lies told to the complainant and that, even when the complainant became sick, the appellant did not disclose his HIV status;

2. lies told to police, whereby he attempted to minimise the number of occasions he and the complainant had unprotected sex.

The appellant’s lies

79. Lies told during the course of the relationship between the appellant and the complainant are not necessarily explained by an intent to transmit the HIV virus. The appellant’s callous deception of the complainant about his HIV status during the relationship may be explained as completely irresponsible behaviour that was engaged in “in order to persuade the complainant to have sexual intercourse in the unprotected way in which the appellant preferred”.^[70]  His abysmal conduct, including his deception of the complainant, may be explained by “a selfish recklessness as to whether or not the HIV virus was transmitted to the complainant”.^[71]

80. His failure to disclose his HIV status after the complainant became sick in 2007 might have been relied upon by the jury as proving a callous state of mind. Such a state of mind would be consistent with an intent to transmit the HIV virus.  However, his failure to disclose his HIV status was also consistent with an absence of such an intent.  The complainant was initially diagnosed with glandular fever, but fell ill again when the appellant and the complainant were living together.  She had to be hospitalised and there was an unexplained bacteria.  Any decent person in the appellant’s position might have raised the possibility that the complainant’s symptoms were due to contracting the HIV virus.  The fact that the appellant did not suffer from similar symptoms does not alter this.  However, the evidence fell short of proving that he knew that the complainant’s symptoms were of HIV infection.  His failure to disclose his HIV status in late 2007 and early 2008, like his lies to the complainant about his HIV status, could be explained as extraordinary selfishness and not wishing to ruin a relationship.  The lies he told the complainant after she was diagnosed are not necessarily indicative of a consciousness of guilt of the offence for which he was convicted.  They may be explained out of a desire to escape prosecution and punishment for a lesser offence, of which intent is not an element.

81. Particular reliance was placed by the respondent in oral submissions upon the appellant’s attempt in a police interview on 24 May 2010 to minimise the number of occasions he and the complainant had unprotected sex. He asserted that they were careful, but sometimes they had unprotected sex. He did not deny that he exposed the complainant to the risk of infection or that he was the probable cause of it. In fact, he acknowledged that their unprotected sex was probably how she contracted HIV. Instead, he lied about the extent that he had exposed her to that risk.

82. It was possible for the jury to use this evidence in assessing the appellant’s intention, and the jury was given appropriate directions about permissible use of it. However the evidence did not compel the conclusion that the appellant attempted to minimise the number of occasions of unprotected sex because he was conscious of his guilt to a charge that he intended to transmit HIV. During the interview there was a passing reference to intent. The appellant’s attempt to minimise the number of times he had exposed the complainant to the risk of HIV can be explained as an attempt to avoid admitting how highly reckless his conduct had been or to reduce a possible penalty for an offence which did not charge him with having intended to transmit the disease.  His attempt to minimise the extent he had exposed the complainant to the risk of infection is not necessarily explained by a consciousness of guilt for an offence where intent is an element.

Repeated exposure to a risk

83. The respondent’s contention that the evidence excluded all reasonable hypotheses consistent with an absence of intent rests, in substantial part, upon the length of time over which the appellant deceived the complainant into having unprotected sex. The appellant knew of the risk to the complainant of having unprotected sex with him. The appellant’s persistence in having unprotected sex over a lengthy period supported the inference that he meant to transmit the disease. I accept the respondent’s submission that the greater the extent of exposure, the more easily the jury could infer that transmission was intentional. The issue, however, is not whether the prosecution case on intent was much stronger where there had been regular, unprotected sex over a period of 21 months, compared to unprotected sex over a shorter period or less frequent unprotected sex over the same 21 month period. Clearly, the more frequent the exposure to risk, the stronger an inference of intent. The issue remains whether, in all the circumstances, the evidence excluded a reasonable hypothesis consistent with an absence of intent.

84. The respondent’s argument is that, with the appellant’s knowledge of the risk, there comes a point at which it is untenable to reasonably suppose that the appellant was simply recklessly or even stupidly engaging in such dangerous conduct. But when, and, more importantly, why did the appellant’s conduct cease to be reckless and warrant a finding of intentional transmission?

85. This case relates to the transmission of a disease. Cases of this kind are fortunately rare. Cast in more general terms, the case involves a more familiar issue about conduct which carries the risk of harmful consequences and where repetition of that conduct accordingly increases the risk of that harm eventuating at some uncertain time. When, if ever, does such conduct compel the conclusion that the harm which eventuates was intended?

86. Not every person who embarks on a course of conduct which regularly exposes another to a risk of injury can be said to have intended the result. A subjective, actual intent is required. For example, a father may drink to excess each Saturday afternoon while watching his child play sport, before driving the child home. He knows that the amount of alcohol he drinks puts him well above the legal limit and greatly increases the risk of his child being injured or even killed on the way home. The father may not know the precise risk of a serious accident each time he drives under the influence of alcohol. The risk of injury each Saturday is about the same, and every time he drives whilst intoxicated, the overall risk of his child being injured increases. It may even be probable that if he continues to drive while drunk each Saturday afternoon, he will be involved in an accident in which his child is seriously injured. I leave to one side the possibility that, by not having an accident the father tends to underestimate the risk of an accident happening in the future.

87. Does the possibility, or even the probability, of his child being seriously injured if he continues this dangerous course of conduct mean that the father intends to injure his child? Is his repetitive, dangerous conduct anything more than recklessness as to whether his child will be seriously injured? Can it be said that he means to injure his child? Is the regular exposure of the child to a risk of injury, which the father appreciates, sufficient to conclude that the father has a subjective, actual intent to seriously injure his child?

88. By way of further example, the repeated firing of a rifle into a forest in a national park where bushwalkers are known to walk raises the possibility, even the probability, that one day a bushwalker will be shot. The more often a shot is fired each day or the longer the period over which shots are regularly fired the greater the risk. When can it be said that knowledge of the risk of injury transcends gross recklessness and leaves open no other reasonable hypothesis than that the shooter intends that, at some time or other, a bushwalker will be shot? In such a case, the inference of intent is not as strong as a case in which, at a particular time, the shooter knows that there are a group of bushwalkers on the track at the time he fires the gun. Also, the hypothetical situation of a shot being fired when a bushwalker may be present on a nearby track is different to a shot being fired in a crowded pedestrian precinct where the inference of an intent to injure would be practically irresistible. The answer to the question posed in the bushwalking hypothetical would depend upon all of the circumstances, including the frequency with which shots are fired, the shooter’s knowledge of the risk involved and other subjective factors, such as the existence or absence of malice. A malicious person may intend to kill a bushwalker even if this is an improbable consequence. By contrast, a stupid and merely reckless person shooting into the bush for supposed fun may not intend to injure a bushwalker even where the chances of doing so are, objectively speaking, reasonably high.

The knowledge of the appellant

89. In the present case, the consequence of the transmission of HIV was not shown to be a probable, as distinct from possible, consequence of unprotected sex between the appellant and the complainant during the period of the relationship. Nor was it shown that the appellant knew or foresaw that transmission was a probable, as distinct from possible, consequence of his conduct.

90. The appellant was not shown to have known the degree of risk of transmission of HIV, whether expressed in terms of a percentage or a probable outcome. Irrespective of how the appellant may have appreciated the degree of risk posed to the complainant from each act of unprotected sex, it was reasonable for the jury to infer that the appellant must have appreciated that the risk of infection increased according to the frequency of unprotected intercourse. However, this did not necessarily mean that the appellant knew or foresaw that engaging in unprotected sex with the frequency he did with the complainant would probably result in the complainant being infected with HIV after a certain period.

91. One cannot assume that the appellant had the same knowledge as an ordinary member of the community about the degree of risk associated with an act of unprotected heterosexual sex or the degree of risk associated with engaging in such conduct many times over a period of months. The evidence left open the possibility that the appellant was a risk taker or had a different appreciation to that of an ordinary member of the community about the degree of risk of transmission of HIV.

92. The risk the appellant was taking was not to his own health. It was to another person’s health and happiness. A selfish person, who is not risk averse, may be prepared to take risks that have potential or even probable health consequences for someone else when they would not run that risk if their own health was at stake. For example, a selfish man may persuade a female sexual partner to have unprotected sex because he prefers to not wear a condom. He may be aware that engaging in that conduct risks an unwanted pregnancy, and the more frequently he engages in that conduct the greater the risk. In such a case, as in this one, the man’s selfish and risky conduct is reckless. But in such a case can it be said that he intends to make his partner pregnant?

93. Absent direct evidence of such an intention, such as a statement to that effect, proof that he must have intended his partner to fall pregnant may depend on evidence of the man’s knowledge of the high probability of his partner falling pregnant if the conduct continues over a certain period. Depending upon all the circumstances, knowledge that his partner probably will fall pregnant if unprotected sex is engaged in over a lengthy period may be sufficient to prove a subjective, actual intent to achieve a pregnancy. Otherwise, it may simply be a case of a course of conduct by someone who is reckless about the risk of pregnancy. Proof of intent beyond reasonable doubt may depend upon proving that the man knew that continuing to have unprotected sex for many months would probably result in a pregnancy. Knowledge of that probable result may help to prove such intent. However, such knowledge cannot be equated with intent. As noted, it was not proven that the appellant knew that engaging in unprotected sex over the relevant period would probably result in the transmission of HIV.

Comparison with Reid

94. I agree with Gotterson JA^[72] that Reid does not set some kind of factual minimum for the exclusion of recklessness.  Still, a comparison between the facts of Reid and this case is instructive.  Prior to engaging in a sexual relationship, Reid falsely assured the complainant in that case that he did not have HIV, having been tested as HIV negative a few months before they met.  Reid and the complainant had unprotected sex regularly, and a few months into their relationship the complainant became ill.  Reid told the complainant that the complainant’s former sexual partner must have given him the HIV virus.  Reid told other lies.  After the relationship broke down, Reid taunted the complainant in front of others, saying “Who’d want you now?  You’re HIV positive”.  Reid participated in a police interview and his remarks led Keane JA (with whom Chesterman J agreed) to conclude that Reid “well understood that unprotected sex with the complainant was likely to infect him with HIV”.^[73]  As Keane JA stated, Reid knew that his conduct was “plainly apt to achieve the result that the complainant would become infected”.^[74]  By contrast, in this case the evidence shows that the appellant appreciated the possibility, not the probability, that he would infect the complainant with HIV.

95. In Reid there was evidence of actual ill-will on Reid’s part towards the complainant which provided a rational basis to conclude that he was motivated by a subjective desire to transmit the disease to the complainant.^[75]  His conduct, including his taunting of the complainant, may have been seen by the jury in that case as evidence of “the proverbial love of misery for company”.^[76]  In other words, Reid may have wished or meant to infect the complainant with the disease to derive satisfaction from knowing that another was afflicted by the same condition.^[77]

96. Reid is not authority for the proposition that knowledge of the likelihood of transmission, together with evidence of express malice, is required in order to exclude recklessness and prove an intent to transmit HIV.  It illustrates, however, that something more than repeatedly engaging in unprotected sex, whilst aware of a risk of HIV transmission, is required to displace the explanation that the accused’s conduct is “selfish recklessness”^[78] and to prove an actual, subjective intention to transmit the virus.  Reid does not establish that an expression of malice is required.  In some cases, it may be possible to infer malice which, in conjunction with other evidence, proves beyond reasonable doubt the statutorily required intent.

97. In this case, the lies told by the appellant to the complainant and to the police did not necessarily show a consciousness that he was guilty of intending to transmit the disease. But his deception and lies demonstrated a callous indifference to the complainant and were consistent with someone who intended to transmit the disease. They also were consistent with someone who was completely indifferent to the complainant’s welfare. The lies told during the course of the relationship showed a callous disregard for the complainant’s welfare. However, the inference of malice is not as compelling as the evidence in Reid.  Reid’s taunting of the complainant suggested actual ill-will on his part towards the complainant and provided an insight into Reid’s state of mind at the time he infected the complainant.

Conclusion

98. In the absence of proof of actual ill-will or knowledge of the probable consequences of his conduct, the prosecution case rested essentially on repeated risky conduct over a lengthy period. One is prompted to ask: how could someone who behaved so badly for so long not have intended to transmit the HIV virus? One response is that he may have been selfishly reckless about the risk, but not had a subjective intention to infect the complainant with the HIV virus.

99. The frequency of the unprotected sex strengthens the inference of intent. But, in all the circumstances, I am not persuaded that selfish recklessness which fell short of proving an intent could have been excluded by the jury beyond reasonable doubt. In reaching that conclusion, I acknowledge the constitutional role of the jury and that setting aside a jury verdict is a serious step.^[79]  But where a reasonable doubt is experience by an appellate court, “it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusions about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred”.^[80]  The jury system allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.^[81]  The evidence at the trial was largely uncontested.  The jury was not required to assess the credibility or reliability of witnesses.  It was required to consider inferences based upon facts which were relevantly uncontested.

100. The prosecution was not required to prove the precise time at which the appellant’s conduct ceased to be merely reckless and was accompanied by an intent to transmit the disease. But the prosecution still had to prove the statutorily required intent. It is one thing to say that at some point in time the appellant’s conduct in repeatedly engaging in unprotected sex defied description as mere recklessness as to the risk of transmission. It is another to say why this was the case beyond reasonable doubt.

101. The prosecution did not have to prove when the appellant first had the necessary intent.  But it had to prove, beyond reasonable doubt, that he had such an intent.  In particular, the prosecution had to prove why the appellant’s conduct could not be explained as selfish recklessness about a risk of an unknown degree (so far as the appellant’s knowledge was concerned) and why such conduct could only be reasonably explained as a case of conduct accompanied by an intent to transmit the disease.  The prosecution was not required to go further and prove that the appellant relished or welcomed the prospect of his partner contracting HIV.  But the prosecution had to prove that the appellant had a subjective intent to bring about that result by his conduct.

102. Unlike Reid, the prosecution did not show that during the relevant period the appellant knew that his conduct was likely to achieve that result.  As Keane JA put it in Reid, the appellant in that case knew that what he did was “plainly apt to achieve the result that the complainant would become infected”.^[82]  A similar state of knowledge was not proven in this case.  Nor was there sufficient evidence to show actual ill-will on the appellant’s part towards the complainant which would provide a rational basis to conclude that the appellant intended to transmit the disease to the complainant.

103. The period over which the appellant engaged in unprotected sex with the complainant, having deceived her into allowing such conduct, and the appellant’s appreciation that unprotected sex with him carried a risk of transmission, supported an inference of intent. But the evidence was not enough, in all of the circumstances, to prove the intent beyond reasonable doubt. Those circumstances include the fact that the appellant knew infection was a possible, not a probable, outcome, and did not know the degree of risk.

104. The evidence left open the reasonable hypothesis that the appellant, not knowing the degree of risk, was extremely reckless and also callous. As appalling as his selfish recklessness was, it cannot be equated with a subjective, actual intent to transmit the HIV virus. In the absence of evidence of malice or knowledge of the degree of risk, a subjective intent to inflict the HIV virus was not proven beyond reasonable doubt. I would:

1. allow the appeal against conviction, and set aside the conviction and verdict on the count of malicious act with intent;

2. remit the matter to the District Court for the appellant to be called upon and to be convicted of the alternative count to which he pleaded guilty.