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Court of Criminal Appeal 18 December 2015

Aubrey v R

[2015] NSWCCA 323

Assault & violence
PRECEDENT UNREASONABLE VERDICT CAUSATION GRIEVOUS BODILY HARM MALICE “INFLICT” GRIEVOUS BODILY HARM

Citation: Aubrey v R [2015] NSWCCA 323
Court: Court of Criminal Appeal, New South Wales
Date: 18 December 2015
Judge(s): Gleeson JA, Button J, Fagan J (Fagan J delivering the principal judgment; Gleeson JA and Button J agreeing)

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900 (NSW). The Crown alleged that between January and July 2004 he had unprotected anal intercourse with a male partner (referred to as GB) without disclosing that he was HIV positive, thereby transmitting the virus to GB. The appellant had tested positive for HIV in April 2002 and had been repeatedly warned by treating doctors to use condoms and to disclose his status to sexual partners.

GB was a critical care nurse who underwent regular STI testing as a condition of employment. His test results were negative for HIV immediately before and shortly after the relationship commenced in January 2004. GB gave evidence that during the relationship he had no other partners with whom he engaged in unprotected anal intercourse, and that the appellant had falsely assured him he was HIV negative. GB subsequently tested positive for HIV in August 2004, and his health deteriorated significantly, suffering strokes, pulmonary embolism, cognitive impairment, and other serious conditions.

The case raised contested issues about whether the verdict was unreasonable given the circumstantial evidence on causation, and two points of law regarding the elements of the offence. Both legal grounds were foreclosed by existing Court of Criminal Appeal authority, but the appellant sought to have those earlier decisions revisited.

  • Whether the verdict was unreasonable and unsupported by the evidence, particularly regarding whether the Crown had proved beyond reasonable doubt that the appellant caused GB's HIV infection.
  • Whether the word "inflicts" in s 35(1)(b) required the grievous bodily harm to be the immediate consequence of an assault, such that transmitting HIV through sexual intercourse could not constitute the offence.
  • Whether the trial judge erred in directing the jury that recklessness under s 5 of the Crimes Act was established by proof of foresight of the possibility of harm (rather than the probability of harm).

Decision

Unreasonable verdict. The Court found that the jury's verdict was reasonably open on the evidence. GB had no other identified source of infection during the charge period, he had tested negative immediately before the relationship began, and the appellant had knowingly misrepresented his HIV status. The Court applied the principles from M v The Queen (1994) 181 CLR 487, considering whether any reasonable jury could be satisfied beyond reasonable doubt on the circumstantial evidence as a whole. The appellant's argument that the evidence was insufficient was rejected.

The meaning of "inflicts." An earlier decision of this Court, R v Aubrey [2012] NSWCCA 254, had already determined that transmitting HIV through sexual intercourse could constitute "inflicting" grievous bodily harm under s 35(1)(b), rejecting the submission that the harm had to be the immediate consequence of an assault. The Court saw no reason to depart from that earlier holding and declined to revisit it.

Recklessness: possibility versus probability. The established line of New South Wales authority, commencing with R v Coleman (1990) 19 NSWLR 467, holds that recklessness under s 5 of the Crimes Act requires only proof that the accused foresaw the possibility of the relevant harm, not its probability. The appellant argued for a higher standard, relying on the Victorian decision in R v Campbell [1997] 2 VR 593, which required foresight of probability. The Court declined to follow Campbell, noting that this Court had already considered and rejected it in Blackwell v The Queen [2011] NSWCCA 93.

The appellant also contended that any possibility the jury was directed to consider must have been a "real" possibility, not a merely theoretical one. The Court rejected this gloss, holding that "possibility" carries its ordinary English meaning and that no additional direction was required distinguishing theoretical from real possibilities. The trial judge's directions were found to have been adequate.

Orders Made

  • Leave to appeal granted on all grounds.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction for maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900 can be sustained where HIV is transmitted through sexual intercourse, without any requirement that the harm be the immediate consequence of an assault.
  • Recklessness under s 5 of the Crimes Act (as it stood in 2004) requires only that the accused foresaw the possibility of the relevant harm occurring, not its probability. This standard, established in R v Coleman, was reaffirmed.
  • The Court declined to follow the Victorian Court of Appeal's approach in R v Campbell, which required foresight of probability for recklessness. The earlier New South Wales refusal to adopt Campbell in Blackwell v The Queen was treated as correctly decided.
  • No additional jury direction is required to distinguish a "merely theoretical" possibility of harm from a "real" possibility. The word "possibility" bears its ordinary meaning and is sufficient without further qualification.
  • Circumstantial evidence of causation, including evidence of a negative test result immediately before the relationship, exclusive sexual contact during the charge period, and deliberate concealment of HIV status, can support a finding beyond reasonable doubt that a particular accused was the source of infection.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 5, 35, 36
- Criminal Appeal Act 1912 (NSW), s 5F(2)

Cases
- Blackwell v The Queen [2011] NSWCCA 93; (2011) 81 NSWLR 119
- CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134
- Chen v R [2013] NSWCCA 116
- Cryer v R [2010] NSWCCA 18
- M v The Queen (1994) 181 CLR 487
- Pengilley v R [2006] NSWCCA 163
- R v Annakin (1988) 17 NSWLR 202
- R v Aubrey [2012] NSWCCA 254
- R v Baker [1999] NSWCCA 129
- R v Campbell [1997] 2 VR 593
- R v Coleman (1990) 19 NSWLR 467
- R v Crabbe [1985] HCA 22; (1985) 156 CLR 464
- R v Johns [1978] 2 NSWLR 259
- R v Jurisic (1998) 45 NSWLR 209
- R v Mai (1992) 26 NSWLR 371
- R v Moran (1991) 52 A Crim R 440
- R v Mostyn [2004] NSWCCA 97
- Stokes and Difford v R (1990) 51 A Crim R 25
- Wood v R [2012] NSWCCA 21