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Court of Criminal Appeal 29 November 2012

R v Aubrey

[2012] NSWCCA 254

Assault & violence
CRIMINAL LAW POSITIVE RESPONDENT POSITIVE STATUTORY CONSTRUCTION PRINCIPLES WHETHER RE

Citation: R v Aubrey [2012] NSWCCA 254
Court: Court of Criminal Appeal
Date: 29 November 2012
Judges: Macfarlan JA (principal judgment); Johnson J and Davies J (agreeing)

Background

The respondent was charged by indictment with two offences arising from the alleged transmission of HIV to a complainant through consensual, unprotected sexual intercourse between January and July 2004. The Crown alleged the respondent knew he was HIV-positive, had falsely told the complainant he was not, and acted either intentionally (Count 1: causing a grievous bodily disease under s 36 of the Crimes Act 1900) or recklessly (Count 2: maliciously inflicting grievous bodily harm under s 35(1)(b)).

The respondent applied to quash or stay Count 2, arguing that no assault had occurred and that disease transmission did not constitute the "infliction" of grievous bodily harm as required by s 35(1)(b). The primary judge, Sorby DCJ, agreed there was sufficient uncertainty about the scope of the provision and permanently stayed proceedings on Count 2.

The Crown appealed to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912, seeking to vacate the stay. Both parties accepted that the central question was whether the offence in Count 2 was known to the law in 2004.

  • Whether the word "inflicts" in s 35(1)(b) of the Crimes Act 1900 requires a direct or indirect physical assault, or whether it encompasses the transmission of a serious disease through consensual sexual intercourse.
  • Whether there was sufficient uncertainty about the scope of s 35(1)(b) in 2004 to justify a permanent stay of Count 2.
  • Whether the enactment of s 36 (causing a grievous bodily disease) in 1990 signalled a legislative recognition that disease transmission was not already captured by s 35(1)(b).
  • Whether any ambiguity in a penal provision should be resolved in the respondent's favour.

Decision

Macfarlan JA, with whom Johnson J and Davies J agreed, allowed the appeal. His Honour held that the offence in Count 2 was known to the law in 2004 and that the stay should not have been granted.

The central question turned on the meaning of "inflicts" in s 35(1)(b). The primary judge had relied heavily on R v Clarence (1888), an English decision in which a majority held that a husband who infected his wife with gonorrhoea through consensual intercourse had not "inflicted" bodily harm because there was no assault. Macfarlan JA found that Clarence had been substantially eroded by subsequent authority, particularly the House of Lords decision in R v Ireland [1998] AC 147, which held that a direct or indirect application of force to the body was not required for "infliction" of harm. The English Court of Appeal in R v Dica [2004], decided after the relevant period but reflecting reasoning applicable to it, further supported the Crown's position.

The Court also examined the legislative history of ss 35 and 36. The primary judge had treated the 1990 enactment of s 36 (which created a specific offence for intentionally causing another person to contract a grievous bodily disease) as evidence that disease transmission was not covered by s 35(1)(b). Macfarlan JA rejected that inference. The Second Reading Speech for the 1990 amendment referred to "some doubt" about whether contracting a disease from an assault constituted bodily harm, suggesting s 36 was enacted to resolve doubt and fill a potential gap, not to establish that s 35(1)(b) categorically excluded disease transmission. The Court also noted that the re-enactment of s 35 in 1983 in substantially the same terms did not, without more, signal legislative endorsement of Clarence.

Macfarlan JA acknowledged the principle that ambiguity in a penal provision should be resolved in favour of the accused, but concluded there was insufficient ambiguity in s 35(1)(b) to engage that principle on these facts. The offence in Count 2 was, on the proper construction of the provision, known to the law at the relevant time.

Orders Made

  • Appeal allowed.
  • Order staying proceedings on Count 2 of the Indictment dated 7 March 2012, made in the District Court on 8 March 2012, set aside.
  • Respondent's Notice of Motion dated 5 March 2012 dismissed.
  • Respondent granted a certificate under the Suitors' Fund Act 1951, if qualified.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the word "inflicts" in s 35(1)(b) of the Crimes Act 1900 does not require a direct or indirect physical assault; transmitting a serious disease through consensual sexual intercourse can satisfy the element.
  • R v Clarence (1888), long relied upon as authority that disease transmission could not constitute "infliction" of bodily harm, was found to have been substantially undermined by subsequent English authority and would not have been followed in New South Wales in 2004.
  • Enactment of a separate, more specific offence in the same statute does not necessarily imply that the pre-existing provision excluded the relevant conduct; the court examined the Second Reading Speech and found s 36 was intended to remove doubt rather than to carve out conduct from s 35(1)(b).
  • A permanent stay of proceedings is not justified merely because there is some uncertainty about the scope of a statutory provision; the proper question is whether the offence charged was known to the law at the time of the alleged conduct.
  • Where ambiguity in a penal provision is insufficient to be genuine or material, the principle that ambiguity should be resolved in favour of an accused will not be engaged.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35, 36
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Crimes (Amendment) Act 1983 (NSW)
- Suitors' Fund Act 1951 (NSW)
- Interpretation Act 1987 (NSW)
- Better Prevention of Offences Act 1851 (UK)
- Criminal Law Amendment Act 1883 (NSW)
- Offences Better Prevention Act 1852 (NSW)
- Crimes Act 1958 (Vic)

Key Cases
- R v Clarence (1888) 22 QBD 23
- R v Ireland [1998] AC 147
- R v Dica [2004] EWCA Crim 1103
- R v Salisbury [1976] VR 452
- Beckwith v R [1976] HCA 55; 135 CLR 569
- R v Cameron (1983) 2 NSWLR 66
- R v Halliday (1889) 61 LT 701
- R v Wilson [1984] AC 242
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89