LAWS 1006 CASE ANALYSIS AND COMMENTARY ASSIGNMENT

University of Sydney
LAWS1006 Foundations of Law
Semester 1 2019

CASE ANALYSIS AND COMMENTARY ASSIGNMENT

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LAWS 1006 CASE ANALYSIS AND COMMENTARY ASSIGNMENT

Zaburoni v The Queen (2016) 256 CLR 482

1. Case note

Court: High Court of Australia

Judges: Kiefel, Bell, Gageler, Keane and Nettle JJ

Material facts

Main fact: The appellant transmitted the human immunodeficiency virus (HIV) to

the complainant.

1. Awareness

a. Appellant was aware of:

i. His HIV positive status.

ii. HIV’s sexually infectious nature.

b. Appellant was not aware of the statistical likelihood of HIV

transmission.

2. Frequency of conduct

a. Unprotected sexual intercourse occurred 2-3 times per week.

3. Lies

a. The complainant

i. The appellant did not reveal his HIV status until 5 days after

the complainant received a possible HIV diagnosis.

b. The police

i. The appellant told the police that:

1. He was given little information about HIV and was not

advised to inform sexual partners of his status.

2. Unprotected sex occurred on possibly two occasions.

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Procedural history

Court Judge(s) Role Order

District Court of Queensland Judge Dick Convicted under s 317(b) 9.5 years imprisonment

of the Criminal Code.

Did not accept appellant’s

plea upon the alternative

offence (s 320).

Supreme Court of Queensland Gotterson JJA Court of Appeal Appeal dismissed

Morrison JJA

Applegarth J (dissenting)

Legal issues

ISSUE I: Do the appellant’s lies establish consciousness of guilt?

Does the appellant’s:

ISSUE II: a) awareness of risk of transmission; and/or

ISSUE III: b) frequency of conduct

establish the appellant’s requisite subjective intent to transmit

HIV to the complainant beyond reasonable doubt?

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Reasoning

Judge(s) Kiefel, Bell, Keane JJ Gageler JJ Nettle JJ

Supports awareness of risk1. Demonstrate consciousness of Do not establish the appellant’s

Do not evidence intent nor wrongdoing, not necessarily perception of inevitable

ISSUE I consciousness of guilt for consciousness of guilt of a crime transmission. (70)

intentionally transmitting HIV. of specific intent. (58)

(46, 47)

Knowledge/foresight of result, Appellant was reckless. This does Evidence does not establish

whether possible, probable, or not establish intent. (62) foresight of inevitable

ISSUE II
certain, does not prove intent. transmission. Therefore, does not

(13, 14) establish intent. (69)

Frequency of intercourse was Frequency does not exclude No mention.

due to its enhancement of sexual hypothesis that appellant engaged

ISSUE III
pleasure. (44) in sexual intercourse solely for

selfish gratification. (63)

Requisite No. No. No.

subjective Evidence insufficient to prove Evidence insufficient to exclude Evidence establishes, at most,

intention? intent beyond reasonable doubt. hypothesis that appellant engaged foresight of risk and thus

(49) in sexual intercourse only for recklessness. (72)

selfish gratification, reckless to

risk of infection. (63)

1
[41]

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Ratio decidendi

Conduct despite foresight of probable risk establishes, as most, recklessness.

Recklessness is insufficient in establishing subjective intent beyond reasonable doubt.

Therefore, when both a criminal act and an intent to perform that act is required for an

offence, conduct despite foresight of risk coupled with the criminal act is not

sufficient to establish guilt.

i.e.:

GIVEN Conduct + Foresight of probable risk = Recklessness;

Recklessness ≠ Intent

IF Intent + Criminal act = Guilt

THEN Recklessness + Criminal act ≠ Guilt

HENCE (Conduct + Foresight of probable risk) + Criminal act ≠ Guilt

Obiter dicta

Foresight of the inevitability/certainty of a consequence establishes intent of the

consequence. (67, 68)

Court orders

1. Appeal allowed.

2. Substitute the verdict found by the jury with a verdict of guilty for the

alternative offence (s 320).

3. Remit the proceeding to the District Court of Queensland for sentence.

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2. Analysis

Statute should be interpreted according to its intention2. The literal approach involves

finding that intention “by an examination of the language used in the natural sense”3.

When the plain meaning of the language employed by the Act has been ascertained,

the court must abide by this definition in their judgement4. Therefore, the literal

definition of the words in the statute is the ultimate authority for its interpretation.

Subsequently, interpretation makes statute more applicable to a particular case.

Statute Interpretation Applicable to case

The meaning of several phrases in s 317(b) and 320 of the Code were interpreted

using this approach.

1. ‘serious disease’ and ‘grievous bodily harm’

Kiefel, Bell, and Keane JJ stated that HIV “is a serious disease for the purposes of s

317(b)”5 and transmitting it is “to occasion grievous bodily harm”6, in accordance

with definitions given in s 1. The court did not discuss whether HIV fit under these

definitions, implying the use of common sense to determine the applicability of the

Act’s definitions to HIV. Hence, the natural meaning of the definition, and thus the

literal approach, was employed to establish that HIV was a ‘serious disease’ and

‘grievous bodily harm’.

2
s 15AA Acts Interpretation Act 1901 (Cth)
3
Higgins J in Engineers’ Case
4
Higgon v O’Dea (1962) WAR 140
5
[1]
6
[2]

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2. ‘intent’

To be liable under the Code requires proof of “an actual, subjective, intention on the

part of the accused”7 to transmit HIV to the complainant.

The court accepts Connolly J’s definition of ‘intent’ in Willmot8 as requiring the

“directing of the mind, having a purpose or design”9. As this definition originates

from The Shorter Oxford English Dictionary, it is evident the court has used the literal

approach to interpret this word.

However, the ascertained definition of ‘intent’ is not sufficiently specific to be

effectively applied to the case’s material facts – a clear “mismatch between the

simplicity of language and the complexity of an idea”10, leading to confusion.

Subsequently, the court utilises precedent to:

i) Support their literal approach

ii) Improve the definition’s applicability to this case

Literal approach Precedent Applicable statute

Firstly, this case concerns the appellant’s awareness of probable HIV transmission.

The court opposes Conolly J’s statement in Willmot11 that awareness of risk infers

7
R v Zaburoni (2016) 256 CLR 482 at [11]
8
R v Willmot [No 2] [1985] 2 Qd R 413 at 418
9
[8], [9]
10
(Readings) 2-K
11
R v Willmot [No 2] [1985] 2 Qd R 413 at 419

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intent on the basis that it contradicts his earlier recognition of the natural definition of

‘intent’12. This is evidential of the court’s literal approach. Accordingly, the court

accepts Keane JA’s rejection of foreseeability, likelihood, and probability as relevant

to proof of intention, in Reid13, establishing these concepts as irrelevant to the

appellant’s direction of mind.

Secondly, the court clarifies the concept of “purpose or design”, explaining that

‘purpose’ is distinct from ‘motive’ and ‘desire’14. As per s 23(3) of the Code, ‘motive’

is the reason behind the purpose or intention15. The court refers to Willmot to establish

that a person may intend a certain outcome without desiring it. Therefore, the

appellant’s possible desires or motives to transmit HIV are irrelevant to his intent.

Ultimately, the court’s use of precedent clarifies their literal approach to interpreting

intent, so that their dictionary definition of the term is readily applicable to this

particular case.

12
[10]
13
R v Reid [2007] 1 Qd R 64 at 83 [67]
14
[16]
15
[17]

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3. Commentary

Guilt must be proven beyond reasonable doubt. When an inference that does not

imply guilt cannot be disproven, guilt cannot be established.

This case exhibits such a situation. Therefore, I agree that the evidence does not

support a conviction.

I accept the natural definition of ‘intent’ as the directing of the mind, having a purpose

or design16. Thus, the inferences that can be drawn from the available evidence are

narratives of successive actions towards an ultimate purpose, held within the

appellant’s mind.

Action 1

Action 2

Action 3

PURPOSE

16
[8]

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I deem it highly plausible that sexual pleasure is Unprotected sex

the appellant’s primary purpose and unprotected

sex is the preceding action to fulfil that

purpose17, considering the complainant and

PURPOSE: Sexual pleasure
appellant’s agreement of the fact18.

Now, we must consider how the 3 material facts fit within the appellant’s direction of

mind.

Lies to complainant
It is an inevitable inference by common sense

that the appellant’s lies to the complainant19

were for consensual unprotected sex20. His lies

to the police21 are irrelevant, as police Unprotected sex

involvement was likely not anticipated and thus

in his direction of mind. Further, it is plausible

the lies were to avoid the alternative offence22.

PURPOSE: Sexual pleasure

The court was correct in stating that frequency does not defy description as “mere

recklessness”23, as the level of risk in question is not the actual degree of risk, but the

degree held within the appellant’s mind.

17
[44]
18
[20]
19
[24], [28]
20
[47], [70]
21
[30]
22
[38]
23
[4]

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An obvious inference is that frequency supported the appellant’s pursuit of sexual

pleasure24.

Lies to complainant

Unprotected sex

Frequency

PURPOSE: Sexual pleasure

Given that the appellant’s purpose was to attain sexual pleasure, it is a sensible

inference that the appellant perceived undertaking the risk of transmission as an action

necessary to having unprotected sex.

24
[44]

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Lies to complainant

Risk of transmission

Unprotected sex

Frequency

PURPOSE: Sexual pleasure

In this exercise, there is currently no inference of guilt, as the intent to risk

transmission is not synonymous with the intent to transmit – in law, awareness of risk

(recklessness) is distinct from intention25. However, the perceived level of risk can

distinguish recklessness from intention. I agree that perception of certainty/near-

certainty of outcome establishes intent (guilt), while anything less merely infers

recklessness (innocence).

25
[10], [55]

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Therefore, two inferences can now be drawn from the available evidence – the

appellant intended to:

i) transmit HIV, establishing guilt, or

ii) risk transmitting HIV, establishing innocence.

Lies to complainant

Risk of transmission Transmission

Unprotected sex

Frequency

PURPOSE: Sexual pleasure

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This is why the ratio is:

Recklessness ≠ Intent

This fact of law creates an inference of innocence – in the case that it cannot be

disproven, guilt cannot be established26.

I have already discussed the significance of the material facts:

1. Lies to the:

a. Complainant – to obtain unprotected sex

b. Police – to avoid a lesser offence

2. Frequency – to enhance sexual pleasure

3. Awareness – creates inferences of both guilt and innocence

All other available evidence is insignificant and insufficient for proving intent.

More crucially, it is the lack of evidence supporting perception of certain/near-certain

outcome that prevents a conviction. The court fails to describe how such perception

can be determined. Evidence of preparation could have inferred intention. For

example, if the medical appointments, where the appellant denied having received

prior diagnosis of HIV, were booked before the complainant’s possible diagnosis, this

would infer perceived near-certain transmission and thus intention.

Nonetheless, such evidence is not available and the available evidence is insufficient

to disprove the inference of innocence. Where both inferences of guilt and innocence

coexist, guilt cannot be established beyond reasonable doubt.

26
[49]

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