Rejected

The appellant’s awareness of risk of transmission is obviously proven by his:

i) Lies1

ii) Reception of medical advice2

iii) Statement: “I didn’t want to ruin her life”3

A case cannot be reversed on the basis that the jury erred by giving an irrational verdict4.
However, t

1
2
3
4
Anna-Rose Mathieson, ‘Review for error’ (2003) 2 Law, Probability and Risk 259, 259.
Court video notes

Lies
1. During relationship
2. When confronted
3. To police

Legal issues

Is the available evidence sufficient to establish intent, and thus guilt?

Obiter

The High Court held that, if the evidence had established Zaburoni’s awareness of the
probability that his conduct would result in his girlfriend contracting HIV, it would have been
open to the jury to infer that Zaburoni meant to bring about that result. However, the
evidence did not rise to that level.

A person can intend a result without desiring it.

“Applegarth J considered that if the evidence established the appellant’s awareness of the
probability that his conduct would result in the complainant contracting HIV, the jury’s
verdict would be unassailable”

Ratio

“The appellant contends that the Court of Appeal conflated recklessness with proof of
intent.” (39)

“Recklessness describes a state of mind in which a person adverts to the risk that particular
conduct may result in particular harm, and, with that awareness, engages in that conduct.”
(42)

Lies

“However, contrary to Morrison JA’s analysis, the appellant’s careless disregard for his own
health does not support an inference that his conduct in having unprotected sexual
intercourse with the complainant evinced an intention to infect her with HIV.” (45)

“The inference is plainly open that the appellant lie to the complainant about his HIV status
in the first instance to obtain her agreement to have sexual intercourse with him. The
inference is also plainly open that thereafter he maintained his lie to obtain her agreement
to have unprotected sexual intercourse with him.” (47)
“A rational inference is that the appellant’s intention in engaging in unprotected sexual
intercourse with the complainant was sexual pleasure. His lies to procure and maintain the
complainant’s consent to unprotected sexual intercourse do not provide a foundation for
the further inference that it was his intention thereby to transmit HIV to her.” (47)

“It is not open to conclude that the appellant’s lies evidence his consciousness of guilt for
intentionally transmitting HIV and not his consciousness of guilt for having unlawfully
passed on the disease to the complainant” (48)

Frequency

“Apart from frequent unprotected sexual intercourse, there is no evidence to support the
inference that the appellant had that intention. And the evidence fell well short of proving
that the appellant believed it was virtually certain that he would pass on HIV by regular
unprotected sexual intercourse.” (44)

“The frequency and protracted period of unprotected sexual intercourse were insufficient
safely to exclude as a reasonable hypothesis that the accused engaged in that sexual
intercourse with the complainant not with an intention to transmit the disease to the
complainant but selfishly for his own gratification, being reckless as to whether or not the
complainant might become infected.” (63)

Awareness

“Apart from the medical advice that the appellant was given by several doctors in 1998 after
he learned of his HIV positive status, his lies to the complainant about that status before
their sexual relationship commenced, and during the course of it, point to his awareness of
the risk of sexual transmission. So, too, do his lies to the police about the number of times
they engaged in unprotected sexual intercourse” (41)

“There is no dispute between the parties that the prosecution was required to prove
beyond reasonable doubt that the appellant had an intention to transmit the disease. The
intention to be proved was an actual subjective intention to achieve that result as distinct
from awareness of the probable consequence of his actions.” (55)

“Putting to one side awareness of the virtual certainty that conduct will result in the
particular harm, a person’s awareness of the risk that his or her conduct may result in harm
does not…support the inference that the person intended to produce that harm” (42)

External cases
R v SAENGSAI-OR (2004) 61 NSWLR 135 at [75]
- Recklessness not sufficient to prove offence
R v Nedrick [1986] 1 WLR 102
- Unintentional murder
 - https://www.lawteacher.net/cases/r-v-nedrick.php
R v Moloney [1985] 1 AC 905
- Unintentional murder – foresight of risk
- https://www.lawteacher.net/cases/r-v-moloney.php
R v Jacob Bradley Holland [2017] NSWDC 47
- Unintentional assault – sleepwalking
PROSECUTOR V DRAGOLJUB KUNARAC, RADOMIR KOVAC, AND ZORAN VUKOVIC (UN Court)
- “even if the perpetrator’s motivation is entirely sexual, it does not follow that the
perpetrator does not have the intent to commit an act of torture or that his conduct
does not cause severe pain or suffering, whether physical or mental, since such pain
or suffering is a likely and logical consequence of his conduct. In view of the
definition, it is important to establish whether a perpetrator intended to act in a way
which, in the normal course of events, would cause severe pain or suffering, whether
physical or mental, to his victim (emphasis added).” [153]
R v Aubrey [2017] HCA 18
- Appeal on grievous bodily harm (alternative) dismissed – bodily harm includes
disease
R v Baden-Clay
- Appeal allowed – murder replaced with manslaughter // prosecution failed to
exclude possibility of unintentional killing
Statutory interpretation
Use of precedent – stare decisis

Literal meaning

Simple language, complex idea

Precedent

Literal meaning

“such a result is clearly absurd but where language is clear and susceptible of only one
meaning it is not permissible for the court to legislate by refusing to accept the plain
meaning of the words”
- Higgon v O’Dea (1962) WAR 140

“a statute is to be expounded according to the intention of the Parliament that made it;
and that intention is to be found by an examination of the language used in the natural
sense… even if we think the result to be inconvenient or impolitic or improbable” – Higgins J
in Engineers’ Case
 I G

Lies to the:
1. Complainant
2. Police

1
RECKLESSNESS to: INTENT of:
Risk of transmission Recklessness ≠ Intent Transmission

Awareness ≠ Awareness of certainty

2 Awareness of
Awareness of risk;
outcome; certain
not near certainty
or near certainty

Unprotected sexual intercourse

3i
Frequency
3
3ii

PURPOSE:
Sexual pleasure