Zaburoni v The Queen [2016] HCATrans 12 (9 February 2016)

Last Updated: 9 February 2016

[2016] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B69 of 2015

B e t w e e n -

GODFREY ZABURONI

Appellant

and

THE QUEEN

Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 FEBRUARY 2016, AT 10.14 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If your Honours please, I appear for the appellant, with MS G.E.L. HUXLEY. (instructed by HIV/AIDS Legal Centre)

MR T.A. FULLER, QC: If it please the Court, I appear for the respondent, with MS J.A. WOOLDRIDGE. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Yes, Mr Game.

MR GAME: Thank you, your Honour. You should have our outline. Shall I wait for a minute while your Honours look at it or shall I - - -

KIEFEL J: Perhaps you could just give us a moment. Yes, Mr Game.

MR GAME: Thank you, your Honours. I will use the outline as speaking notes and follow it fairly closely. Now, if I could take your Honours first to page 3 of the appeal book, we see the count and the alternative. Now, the offence is under section 317 of the Criminal Code. It is a crime that in ordinary parlance one would describe as a crime of specific intent and the intent being to transmit a serious disease.

The alternative, to which a plea was entered, is an offence of unlawfully inflicting grievous bodily harm. There was an agreement that unlawfulness was made out and there were not specification as to what the unlawfulness was but there are a number of possibilities, which it is not necessary to go into, but involving offences under the Public Health Act, for example. But the alternative is actually not an offence of recklessly inflicting grievous bodily harm, it could be something else. It could be, for example, an assault but it is certainly made out by recklessly inflicting grievous bodily harm. There was a plea to that which was not accepted.

KIEFEL J: Mr Game, when was section 317(b) and (e) inserted into the Criminal Code? Perhaps if you could just let us know at some point.

MR GAME: You have hit me for six pretty quickly, your Honour, because I do not know, but I will find out.

KIEFEL J: Thank you.

MR GAME: Now, the second introductory point is that in respect of transmission of HIV - and we say that it may matter - we see in the indictment the dates really – the dates during which the relationship persisted. The transmission of HIV in all probability occurred in the middle of 2007 and the complainant complained of symptoms that were consistent with fevers and the like but it was thought to be glandular fever. The medical evidence supported the notion that that was sero conversion and both parties went to the jury on the basis that sero conversion occurred at that time.

Now, the significance of that I will come to shortly but our argument is if you rely on the accretion of risk and the appreciation of risk over a period of time, then it does matter, it may matter because what it would mean is that you would have to say that the offence was committed between February and June or, shall I say, in fact the evidence was that first there was protected sexual intercourse for a period of weeks and then after – sorry, there was no intercourse for two weeks then after six weeks of use of condoms there was unprotected sex.

So it would be between March and June that it was actually most likely sustained. So if you want to make the mental element and the physical element coincide you would actually have to do it early in the relationship and before June 2007. And, as I say, it is important that if you are relying on what might be described as the accretion of risk – i.e. the appreciation over a period of time – then it does matter when it is sustained.

The next point is not a preliminary point, it is a significant one relating to the lies, and I will not take you through those individually, they were outlined in the submissions and the judgments. But if you look at our outline, first, the lies were relied on that were described as being critical. They were the subject of a no-case submission and it was submitted that they could not go to the jury as evidence of intent. We are not saying that they could not go to the jury, but we say that they only went to establish appreciation of risk. It is not a question of competing inferences; it is a question of how high does the inference rise.

In fact, it confuses the subject to introduce the idea of competing inferences. When you are looking at something like intent, really it is a question of how high the inference rises, not on the one hand but on the other hand. It is not like a circumstantial case where you have got something external – some external event which might be a hypothesis that has to be excluded. If you look at paragraph 5 of our document – sorry, I should say the judge said in that exchange leading up to 206 that the Crown might have difficulties, but it is a matter for the jury and the judge relied on the Victorian case of Cianter, which is a judgment in which your Honour Justice Nettle was a party.

We are not challenging Cianter. Cianter is a case involved with what might be described as competing inferences and Cianter criticises Canadian cases concerned with competing inferences. But we say that is not this case. We say it is just a question of how high does the inference rise. In paragraph 5 of our document, the ones in 5(i) – they were not included in the judge’s specific direction on lies as consciousness of guilt, but in the very next breath in the summing-up, when he summarised the Crown case, they were included and they were included in the Crown submissions.

We would say that denials during the relationship – it might be said that that summary is a gloss on – but we have summarised it elsewhere and this is only intended to be a brief summary of it. We say that those lies during the relationship would be better described as circumstantial facts in the case than consciousness of guilt lies. They actually go to how, you know, wanting the relationship to continue, wanting to continue to have sexual intercourse, so they do involve, one might say, an implied admission that it was appreciated risk involved obviously.

KEANE J: Well, and an appreciation that the risk was such that without the lie, the unprotected sex would not occur.

MR GAME: That is true. So you might say a condition of the relationship continuing was the maintaining of the lie; that is correct, your Honour, I agree - - -

BELL J: All of that in a context in which the complainant had made it clear by her inquiry before intercourse commenced about whether the appellant had a sexually transmitted disease and, in particular, what his HIV status was.

MR GAME: Quite, your Honour, but again I should add there is evidence in there that that occurred early and again during the relationship when there was a conversation about his brother. Then the (ii) in our list there, (ii) is - - -

KIEFEL J: I am sorry to interrupt you, Mr Game, but her Honour the trial judge did not direct on the basis of consciousness of guilt, did she?

MR GAME: She did not with respect to (i), but it was picked up when the Crown’s address was summarised because he did. But the judge said to the jury – focused on what she described as two categories of lies and they are 5(ii) and (iv) and (v), so they are the ones after her diagnosis and also the ones to the police. So in (ii) he is denying to her – first he is denying that he had HIV in the first conversation, which is a phone conversation, and then he later suggests that he was diagnosed with HIV six months after the relationship was over.

But again, we say that lie again involves an admission that, first, he should have told her about his HIV status early, before – during the relationship, an appreciation that he either did or may have transmitted HIV to her and that he was aware of risks. We are not saying it is inadmissible but we say that it cannot rise to establishing meaning to, as I say, bring about an event in which HIV is transmitted.

I should add this: appreciation of transmission of risk coupled with other evidence could be probative if you take a situation where, say, a person is doing an act wantonly like shooting into a park but they are aware that it is highly significant whether or not they know there are people walking in the park. So it is relevant, but we say that it does not rise to establish intent and it does not matter for this but we say it should have not been left on that basis. So we are not asking for a retrial, we are saying that the verdict cannot be sustained. We actually say that the no-case submission should have been upheld on the principle count.

Now then, (iii) was not included by the judge but it does not matter much; (iv) and (v) are the lies to the police. Now, not much can be made and not much has been made of the fact that at the very beginning of the interview the police referred to the offence making provision and at the end they did not. But the lies to the police, we say, again – I will deal with (iv) and (v) together – but they involve an admission of appreciation of risk.

They also, because of the minimisation of conduct they would involve an admission that he was aware that the more frequently intercourse took place, the more likelihood the – so, we would accept that as well. We say that is as high as the lies go in this case. We also say that Justice Gotterson so limited them. If I could just take you to that passage in that judgment of Justice Gotterson page 295, paragraph 43. Now paragraph 43 read closely picks up in the first sentence:

did not have HIV –

that is during the relationship. Then, the second sentence picks up in the first part:

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 –

So we have, in effect, everything – I mean, it is not every single thing but that covers lies during the relationship, lies when confronted and lies to the police. So, again, they are dealt with together but, we say, it is correct not to put the matter higher than that.

Now, that then brings me to – I should say this, Justice Applegarth dealt with this in a slightly different way which - we would adopt, shall I say, the way in which his Honour reasons in showing the fact that they may amount to less but we do not accept that they can rise to – it is a question of alternative inferences and that is how Justice Applegarth actually articulates it. But the discourse that his Honour engages with, in fact, in terms of analysing is otherwise sound in our submission.

That then brings me to the offence-making provision and what has to be established. Now, the respondent accepts, as we see, that intent under section 317 is to be construed in the way in which was construed in Willmot and Reid which is that it is something that the person meant to occur, that it was their purpose or design.

KIEFEL J: Speaking for myself, I would appreciate some assistance with what was actually said in Willmot and, more particularly, in Reid that by which you can say with such certainty that this is where the position was left.

MR GAME: Yes, your Honour. Well, your Honours would appreciate that there is a – we have gone through the arguments in our submissions in-chief but there is an issue about whether or not the idea of intent itself picks up what I would refer to as the extension in section 52 of the Criminal Code, that is to say if you appreciate that something will occur whether or not as a matter of law that can be taken that you intend it.

I think we referred to Glanville Williams’ article about Oblique Intention, and it seems that that debate is not being pursued, particularly in this case. I will come to that case in a moment, but if one looks at it from an evidentiary perspective, depending on the circumstances one comes up with different outcomes. So if one looks, for example, at Crabbe, very angry about being thrown out of a hotel, driving deliberately into a hotel, one can readily see how the inference of intent – that is a reckless indifference case, but one can readily see how the foresight of consequences would lead to an inference of intent.

This might sound like an absurd example, but if one kept a pet lion, a cub, in the bottom of one’s garden and it grew and grew and grew, even though one would appreciate that at some point it is almost certain it is going to jump over the fence and eat the neighbour’s children, one would never say that one intended that. The reason for that is because of the intention in keeping the pet – it could be snakes or something – is for some different reason.

If you take another case: if you were very angry with your builder who had done some work in, say, your office in Castlereagh Street and he came and pushed the wall down into the street, you can see that you can have more than one intent. You can have an intent to, shall I say, vent one’s frustrations and a foresight that it is so highly likely that people will be killed in Castlereagh Street, that you intended. So it depends on the circumstances. This case has the character of it being problematic to reason from foresight of probabilities and the reason for that is because of the aspect of desire – that is to say, if one continues to have sexual intercourse because of pleasure, shall I say, selfish or otherwise, then that intent detracts very much from one drawing an inference about intent.

KEANE J: It certainly might mean that he was not motivated by the desire to inflict AIDS but motive and intent are different.

MR GAME: I appreciate that, your Honour, but - - -

KEANE J: Is there not a risk, from your point of view, that the argument is: well, one can see what his purpose was very easily. It was simply self-gratification. How can you not have a reasonable doubt that that did not exhaust the extent to which he was motivated to do what he did?

MR GAME: Yes, your Honour, I accept the observation about motive, but what I am saying is, in effect, the last part of the proposition that your Honour just put back to me. If I gave another example, which is not intended to equate it with this situation at all but, say, you had a male and a female who were having a relationship. There was no protection and she wanted to have a child and he did not, but him continuing to have sexual intercourse over and over and over again, you would not infer that he intended for her to get pregnant and that is because of the nature of the activity in having sexual intercourse in those circumstances.

So, if you are going to, shall I say, look at – I am trying to sort of draw out how it will work when you have got, shall I say, intentions that enable you to see another purpose, but intentions that do not, and that is the point I am trying to draw out. Depending on the circumstances, you do not come up with the same answer.

So, the first point is that intention under the statutory provision does not involve the extension as a matter of principle. There is an acceptance that, in certain circumstances – there is acceptance that foresight of consequences is relevant to drawing inferences. But, there is an acceptance that there may be circumstances in which a foresight of, shall I say, certainty or a very high probability, as a matter of fact, may lead you to the inference of intention. That is because of what I said about, for example, the Crabbe Case – driving through the front door of the hotel when you know there are patrons in there or pushing bricks down in to Castlereagh Street.

So, whether you call them motives or not, but when you have got other purposes that drive the thing and you have got no explicit evidence of intention – in this case, you have got nothing - for example, nothing like in Reid where – in Reid you had two things. You had him saying that he thought – I think the words were “firing bullets” - - -

BELL J: Loaded gun.

MR GAME: Loaded gun. That was in the record of interview, and he also taunted the victim in a public setting, kind of join the club or you have got – you are HIV positive. So, there was evidence where, quite independently, where you could infer that he had that intention. And, you could infer that he had the intention from the commencement of the – that he always had that intention.

KIEFEL J: Yes. I think Justice McPherson referred to it as the inference being open that someone else could share your unhappiness.

MR GAME: I think that was Justice Keane - - -

KIEFEL J: Was it?

MR GAME: - - -who said something about misery - - -

BELL J: I think both did.

MR GAME: - - - “misery enjoys company”, I think was the phrase. It was something like that. So, coming back to your Honour Justice Kiefel’s questions about Willmot, I should say this first. The way in which – the point has, obviously, significance, not just for section 317, it has significance because Willmot, for example, is about intention in a completely different provision in the Code, so it does have significance in Code context.

KEANE J: When Justice Connolly in Willmot spoke of intent involving – intent to produce a result involving mindfulness, having in mind the outcome, do you accept that that is a correct explanation of what “intent” means in this context, that it may be something that you do not at all desire, but you are “mindful” of the intent - “mindful” of the outcome when you act?

MR GAME: Yes.

KEANE J: And so can be taken to have intended it?

MR GAME: Yes, I can accept that you can intend something that you do not desire, and you could also intend something that you think is very unlikely will happen. So, yes, you can intend something but - - -

BELL J: What Justice Connolly said was that what is involved is “the directing of the mind, having a purpose or design” – this was in Willmot at 418.

MR GAME: Yes. That is the passage that I took it that your Honour Justice Keane was referring to. Well, we accept that “intends” does mean mean or to have in mind but you can have in mind something and we accept that, that is not your primary purpose. But the examples I gave before were an attempt to draw out the fact that your primary purpose is going to touch on whether or not you have it in mind, but having it in mind - one would not want to, shall I say, pull out the words “have in mind” and call that a definition of intention.

BELL J: I am sorry to interrupt you, Mr Game, but it does seem important to quote - his Honour was there speaking of the OED definition and it was “directing of the mind, having a purpose or design” is the passage that I understood was the subject of discussion at 418 in Willmot.

MR GAME: Yes, it is “directing of the mind, having a purpose or design”, we adopt that idea though, but you can intend things without desiring them. This is clearly the case.

BELL J: Plainly.

MR GAME: The example - - -

BELL J: But nonetheless, there is a distinction, so it seems to me, between “intent” defined in the way that it is at 418 in Justice Connolly’s analysis in Willmot and the view that to do an act knowing it is likely that an act will produce a consequence is itself proof of intent, as distinct from a matter from which with other evidence one may draw the inference.

MR GAME: Yes. I missed something your Honour said but we resist the notion that you can infer intent if all you have is foresight of consequences.

BELL J: Foresight of the probability.

MR GAME: Foresight of probability.

BELL J: Yes, I understand.

MR GAME: That is - - -

BELL J: Well, it is just, if I may raise it with you, not entirely clear that Reid is to be understood in that way because when one looks at the reasons of Justice McPherson, dissenting in the result I acknowledge, his Honour, while adopting the views of Justice Chesterman with respect to the requirement for proof of an actual subjective intent, nonetheless does appear to have said that foresight of probability of consequence serves to establish that.

MR GAME: We challenge that notion but there is one thing about Reid that we would want to emphasise straight away which is that from the position that we stand our position is that Reid went – nothing to do with your Honour Justice Keane’s judgment, in fact, you addressed it - but Reid went off on a wrong footing because counsel was putting the wrong argument. Counsel was actually arguing for something less than, in fact, was the thing directed on, which was the point that your Honour Justice Keane actually made.

They were saying you need to talk to the jury about foresight of consequences and probabilities and Justice McPherson accepted that argument. Your Honour Justice Keane pointed out that that proposition actually detracted from its direction in accordance with Willmot and Ping.
Maybe if I could just pick up that passage from your Honour’s judgment. But, as I said, our position about Reid is that the court was ultimately dealing with an argument that was misconceived.

At the end of the whole discussion of your Honour Justice Keane at page 86, paragraph [71], that is to say, I took – well, I would say that paragraph [71] is saying this. You asked for directions introducing the idea of probable or likely to the – that is somewhat less than, in fact, the jury were directed and is appropriate in applying Willmot at the end of your Honour’s Justice Keane’s discussion. Now, that is how we would submit that passage should be read.

BELL J: I understand that. I think Justice McPherson had pointed out sometimes to say that intent as its ordinary meaning can be an incomplete degree of assistance to a jury and his Honour saw it in this case. When one sees that his Honour saw actual subjective intent for the purpose of the Code under and conformably with Willmot as embodying proof on the Crabbe standard of foresight of probability of consequence one sees the force in the idea that you need to spell out what actual intent means.

MR GAME: Yes, but, your Honour, if one went down this road, that is to say building a case on intention from foresight of consequences, one would have to engage in the discipline of Woollin and cases – one would have to engage in the discipline and say well, look, this has to be at a very – it is going to have to be at a very, very high level for you to draw that inference as a matter of fact and you would have to actually draw out the idea and that was not what happened in this case.

But what we say in this case was, it was said he told all these lies, you can infer intent from that and this relationship went on for a very long time and he is guilty, full stop. In no sense am I meaning to belittle the judgment, but what Justice Gotterson has done, as we say, is introduce the idea of inferring this from recklessness but not drawn out or drawn out the problems that are associated with that and where that takes one. I am not sure whether I have answered your Honour Justice Kiefel’s first question to me but those were the extracts I was going to take you to from those two judgments.

KIEFEL J: Could I just ask you about the statement by Justice Connolly in Willmot at page 418?

MR GAME: Yes, your Honour.

KIEFEL J: You have taken us to the definition at line 15. But, at line 31, his Honour refers to how, as a matter of evidence, as I understand it – as a matter of evidence:

Knowledge of the probability of death –

whilst not an element, may lead:

almost inevitably to the conclusion that death . . . was intended.

You would dispute that.

MR GAME: I would dispute that but, at the beginning I was – and mindful of the thoughtful article called “Oblique Intention” by Glanville Williams - I was trying to draw out that you will come up with different answers depending on the circumstances. So, the Crabbe example – furious for being thrown out of the hotel – you can easily see that the foresight of the consequences will lead you to the conclusion of intention. But you will come up with different outcomes in those other examples where, whatever you call it - intention, desire or purpose – takes you in a different direction which does not necessarily bring in this ulterior intention at all.

I should say one thing also, that one – I will give your Honours an example of a completely different discourse but it does draw out the point. In conspiracy to defraud, one would say that the object, shall we say, of this conspiracy is to defraud the Commissioner of revenue. If you went up to the conspirators and said what is the object of this activity they would say we are trying to sell cheap dresses. Their object might be quite different, so there is a level of artifice. But, in the example I just gave you, the desire to sell cheap dresses, it is easy to see how the purpose, the object of the conspiracy to defraud the Commissioner, fits with that. So, that is why I say you have to – you will not come up with the same answer in different circumstances. So, that is my answer to the question, if your Honours please.

Incidentally, the discussion – and I will not take your Honours to it – but the discussion by Justice Brennan in He Kaw Teh is instructive. It is also instructive for – I was not going to take your Honours to it – but it says sometimes but not always - sometimes it supports an inference. One of the real significances of what Justice Brennan said in He Kaw Teh is that that judgment was the template for the Criminal Code. So that is where the section - - -

BELL J: His Honour distinguished “purpose” from “knowledge” in terms of intent, and that is the point that you are making. The Code brings in the idea that intent embraces not only meaning to do something, but knowing that in the ordinary course of events it will occur.

MR GAME: Yes.

BELL J: A moment ago you talked of the fact that different circumstances will produce different outcomes in terms of the content of intent. Another matter that I just raise with you is in Woollin Lord Steyn points out that the intent for murder involves a constructive intent, and that may explain why his Lordship suggests the discussion of intent for murder may not be applicable to the discussion of intent in relation to offences of specific intent.

MR GAME: Yes.

BELL J: Now, here we have a Code which does not define intent but in which it appears to be commonly put that wherever it appears in the Code intent is to be understood by reference to ordinary principles of statutory construction as meaning the same thing.

MR GAME: Yes. So what that means, we would say, is that you cannot have any extension of the kind contemplated by Glanville Williams as a matter of law, but you can look at the same material for the drawing of inferences. Foresight of the probability of consequences is very unlikely to get you there by itself, but coupled with other evidence it might be highly probative and it is going to depend - and I will not make the point again, but what your primary purpose is will tell you a lot about the answer to that question. Being mad with the publican in Alice Springs, you are going to see your way pretty quickly into the inference of an intention.

I should make this clear as well, just coming back to what your Honour Justice Bell said, is that Crabbe is actually a case about murder and it picks up the idea of reckless indifference so it has got its own problems. One thing I should mention is this. In New South Wales the idea of recklessness has been taken to mean foresight of possibility. There is even a debate about that between the States.

There is a Victorian case called Campbell of 1997, in which Justice Hayne was one of the judges, where recklessness was treated as foresight of probability, and there is a New South Wales case called Blackwell which declined to follow it. So, when we talk about recklessness, it has to be said straight away that we are not necessarily talking about the same thing.

So, for the purposes of this discussion, it is quite problematic to say exclude mere recklessness when we are not really sure what recklessness means and recklessness is not an element of the alternative offence to which he pleaded. Now, I should say that there are, for example, in the Commonwealth Code, the Code has intention, recklessness, negligence as – so an offence like this you would have a second tier offence of reckless infliction. So then, if I come back to the submissions - - -

KEANE J: And it is problematic anyway, is it not, because in some fields of legal discourse indifference one way or the other as to an outcome has been equated with intent.

MR GAME: Yes. Well, in section 18 of the Crimes Act (NSW) reckless indifference to human life is a route to proving murder, so could not care less about human life can actually get you all the way. So, yes, it is very problematic, but we make this point. We have made it in the submissions and it sounds like I am harping on it, but it is a bad kind of way of analysing the thing to start by excluding another inference. It is far better to work from the bottom up and ask what inference can be drawn.

Again, if I could take an example from a completely different situation. In one of the coincidence cases, called Joffe and Stromer, it is reported as DSJ and NS, it was an argument about whether or not alternative inferences could be taken into account on an insider trading case. There are telephone calls from – Joffe is an analyst, Stromer is a person who buys shares. There are a whole series of telephone calls. The prosecution had all these particulars about what they said in the calls. That is the inference they wanted. The defence said “They might just be tipping”.

But if you are looking at inferences, it is completely wrong to look at it in terms of this inference and that inference. You have to start from the bottom and say “He spoke to him and then he did this.” The only inference you can draw from that is that something he said caused him to buy the securities. So you start from the bottom. As soon as you start talking in terms of alternative inferences in these kinds of discourses, you run into difficulties.

What has happened is that the discourse of circumstantial evidence where external circumstances, excluding hypotheses, has kind of been brought into a discourse in which it has no place, in our submission. It detracts from the critical question because, if you infer intention, you have excluded recklessness. That is the end of it, so full stop. It is as short a point as that.

Coming back to the outline, paragraph 10 is just a point about how where the English authorities have ended up. It is not an extension of a legal principle, it is an extension – it is a proposition about the inferences that you drew. I have just discovered that section 317(b) and (e) were inserted in July 1997 by the Criminal Law Amendment Act 1997.

If I could come to paragraph 11, the judge twice said to the jury that it is a question of whether or not you have got two equally competing hypotheses. We just make the point that what has happened is that cases like Knight and Cutter have been misused in the discourse and Knight actually disproves that proposition.

Now, paragraph 12, in the respondent’s submissions there is a proposition that somehow the jury had an advantage in this case. There is no questions of demeanour or the like. We accept entirely that, on the question of credibility, the thing has to be based on the complainant’s account. So there is no advantage and the passage in SKA at paragraphs 11 to 14 applies to this circumstance.

Paragraphs 13 and following – if I can take your Honours to the relevant passage in Justice Gotterson’s judgment. I have been to paragraphs [43] and [44]. At the top of page 296, third to fourth line:

It therefore fell to the jury to consider whether the transmission was intentional or merely reckless.

KIEFEL J: Sorry, which paragraph is this, Mr Game?

MR GAME: Paragraph [45], top of 296, third to fourth line. I may be placing too much worth on the words “merely reckless,” but the introduction of the idea of reckless, as I said, is not going to help you get to the question whether or not intention is established. Reading the summing-up, “intentional or merely reckless” is how the thing was framed to the jury. Then in paragraph [46]:

The jury’s attention necessarily turned to the appellant’s conduct –

to my mind what is of singular significance now over many months. We take it that that can only mean that his Honour is saying okay, we have appreciation of risk. It is the continuing of the activity over time. As I said, if you step into this world you are going to have to actually elaborate how you get there and there is no elaboration and we say that is because the evidence just does not take you there. Then, as I say, the next sentence:

It was open to the jury to reason . . . might be viewed as reckless . . . defied description as mere recklessness –

Again, in a way, that is throwing the discourse away because it is not answering the question. It is just saying this defies a description of “mere recklessness” without saying what “mere recklessness” is. If you are going to do it you are going to have to work out – so he appreciated – and we saw back at page 295:

It is, of course, true that he had not been told of the statistical risks of transmission during a single act of sexual intercourse –

Now, what that means is that you have an appreciation of risk at some level but you cannot say precisely what the level is. I am not saying - - -

KEANE J: All you can really say about his appreciation of the risk is that it was sufficiently significant that he lied to the complainant about it.

MR GAME: True, that is true.

KEANE J: Because he appreciated that if he did not lie she would refuse unprotected sex.

MR GAME: That is true. I am repeating myself but, we say, in no way does that get you to - - -

KEANE J: Is not a level of appreciation of that order pretty significant?

MR GAME: Yes, but well, we say, that in no way is that going to get you to the idea that he meant it. That is the point. That is the whole point of the case.

KEANE J: It would justify the inference beyond a doubt that he was content for that to occur. He might not have set out to do it but he was content for it to occur.

MR GAME: He might have just been putting his head in the sand. He comes through as being a person who did put his head in the sand a lot.

KEANE J: Where does wilful blindness to consequences - - -

MR GAME: Wilful blindness does not come into this discourse but it is to be remembered that wilful blindness is, shall I say, an independent doctrine. It is not a doctrine about intent. It is an extension – it is a legal extension, it is not a – wilful blindness will not get you to intention other than through the application of a legal doctrine called wilful blindness.

BELL J: You say that what the prosecution was required to prove was that in having intercourse with the complainant it was a purpose to transmit to her HIV. He may not have desired her to get it but it was a purpose in the sense of he meant to produce that consequence. That is your argument?

MR GAME: Yes, that is the whole argument.

NETTLE J: So, even if the inference is that he was content for her to contract the disease that, you say, is not enough.

MR GAME: Even if, yes, your Honour; as unattractive as that is, yes.

BELL J: And you say that is consistent with the statement of the law in Queensland as it has been explicated in Willmot.

MR GAME: Yes, your Honour. Now, I mean, all is not lost for the prosecution. He is liable to a very serious penalty for another very serious offence of which this is a very serious example. As I explained, you do not actually have to prove reckless infliction of GBH to get to the alternative. You could have an assault, a common assault. Now, I should say this: paragraph [47], we say there is a contradiction in paragraph [47]. In Reid, you could do it, you could say, well, that was his intention from first to last because of these other statements, but in paragraph [46], his Honour is relying on the accretion of events.

Paragraph [47], if that is the case, then it is going to matter when you sustained it because it has to have been his purpose early in the events which does not fit with – he could not foresee in February 2007 what would happen in 2008 or that he would still be in a relationship with her in September 2007, and it is certainly not the case that it could be asserted that, shall I say, having inflicted HIV he continued to have an intention to inflict HIV in August or September 2007, so time does matter. All I am saying now is that if you are doing the exercise in [46], time matters. So that really - - -

KEANE J: What do you say about the fact that when she became ill he did not tell her then and intercourse continued?

MR GAME: Your Honour, I think the state of the evidence is this, that it is not safe to infer that he drew the inference that she had sustained it at that time, and I think that is the way in which it – there is a submission that the prosecutor kind of flirted with about this but it is not – and if that is the case - - -

KEANE J: You cannot be sure beyond reasonable doubt that he was aware that her symptoms were attributable to - - -

MR GAME: Yes, and I think that is why it dropped out of the discourse in the Court of Appeal. Apart from that, which appears in our submissions, that is pretty much the argument, but I just wanted to pick up a couple of things at the very end. If we succeed and you conclude that the verdict is unreasonable under 668E, then you could substitute a verdict under the alternative and then remit it to the District Court for sentence. If you concluded that the reasoning of the Court of Criminal Appeal was erroneous, but you did not go further, then the appropriate order would be to remit it to the Court of Criminal Appeal.

The first course I have suggested has some awkwardness, if you look at 668F, because it says, substitute and sentence, but you are not going to sentence. But we would say, and I think our opponents, if it is possible, would not dispute that the language of - you combine that with section 37 of the Judiciary Act, which enables you to sit in the position of the Court of Criminal Appeal and make the orders it makes - - -

BELL J: What is the provision of the Queensland - - -

MR GAME: It is here in our submission, 668F, and it is the same as the New South Wales one.

BELL J: Yes, I see. Yes, thank you.

MR GAME: The reason I am emphasising it is that your Honours will not necessarily trip over it if I do not draw it to your attention. But section 37 of the Judiciary Act puts you in the position of the court below so you could do this, in our submission, applying yourself to 668F, substitute the verdict and remit to the trial judge for sentence. If we succeed, that would be the

most appropriate course, if your Honours please. Those are my submissions.

KIEFEL J: Yes, thank you, Mr Game. Yes, Mr Fuller.

MR FULLER: Your Honours - - -

KIEFEL J: Perhaps you would give us moment just to have a look at your outline.

MR FULLER: Yes, thank you.

KIEFEL J: Yes, Mr Fuller.

MR FULLER: If I could deal firstly with your Honour Justice Kiefel’s question which you started about the section itself. The amendment in 1997 made it clear that the transmission of a serious disease could amount to grievous bodily harm and the intention was included then as a specific intention within the Code, though it was argued prior to that amendment that a serious disease, such as HIV, would amount to grievous bodily harm, in any event, but it was overcome by that.

Your Honours would note that the specific intent is - with a person who with intent to transmit a serious disease to any person, which a basis upon which the concession is made with respect to the way in which this trial was conducted which was a direction to the jury that a specific intent to transmit the disease was required. That followed upon the decision in Reid in which your Honour Justice Keane gave a judgment and that was discussed and argued at trial level before the direction was given.

Indeed, Justice Gotterson makes that observation with respect to his judgment, that that was the specific intent required to be achieved by the Crown. Because of that the focus at both trial and on appeal was the issue of his intention. My friend has spoken of an accretion. In my submission, it was not an accretion that was identified by Justice Gotterson but a factual basis upon which an inference could be drawn.

The dispute at the Court of Appeal focused on that issue of whether the Crown could exclude recklessness on behalf of the appellant. If your Honours follow through the judgment of Justice Gotterson, after outlining what the factual basis was and making observations with respect to what the appellant’s grounds were, there was an acceptance from Justice Gotterson’s point of view that there was evidence from which intent could be inferred.

KIEFEL J: But the path to that was by the exclusion of the hypothesis of recklessness.

MR FULLER: Well, that was something that had to occur for that path to be followed and that was the argument which was placed before the Court of Appeal and which his Honour was dealing with at paragraph [46] – that the standard of the evidence was not such that a reasonable jury could exclude the recklessness and thus could not be satisfied beyond a reasonable doubt that there was an intention to commit the offence.

The tests relied upon by the court are both stated in the judgment prior to the summarising of the evidence. So a suggestion that his Honour, or their Honours, were not aware of the tests which were to be applied, which appears in my friend’s outline, I think, misconstrues the point. The real issue to be addressed is what appears in Justice Gotterson’s judgment against the background of the admissions which were made because it applies to the knowledge that the appellant had which was part of – if your Honours look at paragraph [46] on page 296 of the record – the opening lines are:

The jury’s attention necessarily turned to the appellant’s conduct considered in the context of that knowledge.

His Honour in the previous part of his judgment, in the analysis that my learned friend has already taken your Honours to on page 295 of the record, deals with the level of knowledge that he had. I join with my friend in that - - -

KIEFEL J: But does it not follow from paragraph [46] that if you have something approaching gross recklessness that you have intention? Once you exclude mere recklessness, you have something much greater - - -

MR FULLER: Much higher than that.

KIEFEL J: - - - much higher in degree in terms of recklessness, whether one calls it a gross negligence, recklessness – whether one is content for the outcome to follow.

MR FULLER: Indeed.

KIEFEL J: That, implicitly, is said to equate with intent, is it not?

MR FULLER: Well, it becomes an evidential basis from which an inference can be drawn and then it becomes an argument about, is that inference inevitable.

KIEFEL J: But it is not quite evidential. It is one competing inference against another, is it not? If anything, it distracts from a consideration of the inference that the evidence allows.

MR FULLER: The issue of intention requires something greater than the recklessness. But recklessness is not itself to be equated with intention in the law.

BELL J: Do you accept that what the jury was required to be satisfied of beyond reasonable doubt was that the appellant meant, by having sexual intercourse with the complainant, to transmit to her HIV, albeit he may not have desired it, but if he had as his object or purpose, as one of them, the transmission to her of the disease?

MR FULLER: I do, your Honour, and that is the way in which it was left to the jury and, indeed, the way it was argued before the Court of Appeal and so I do not step away from that. Returning to your Honour Justice Kiefel’s question, the way in which the state of knowledge came about - and if I can develop that, if I can use the word “prohibition” to describe what his state of knowledge was, I was about to embark upon the fact that there was no real contest as to the facts other than a couple of conversations where the complainant asserted that certain things were represented by the appellant.

In light of other statements which were false on his behalf, the issue of credit, one would assume, would fall to the complainant in the circumstances and my friend has conceded that is how the argument should proceed today. If your Honours look to the admissions which were made as to the state of knowledge then perhaps if I can take your Honours to the admissions themselves, there was a document which was placed before the Court which your Honours will find at page 79 of the record book.

I take your Honours to this because of the line at the start of paragraph [46] as to what the evidence actually was as accepted by way of admission as to the appellant’s state of knowledge in 1998. What is extracted from that is that he became aware of his condition in 1998. You will see at paragraph number 9) of that document, which falls on page 80, that it was accepted that it was stressed to him the importance of:

the practise of safe sex techniques . . . that he had to use condoms for sexual intercourse . . . HIV could be transmitted through sexual contact.

With respect, issues later of percentages and risk were not part of his subjective knowledge and perhaps are a bit misleading placing them before the jury. Your Honours will then see that that falls again in paragraph 11) where he was told that:

HIV was transmitted by blood or sexual intercourse . . . that he should also inform his sexual partners –

and that he should be using “antiretroviral medication”. Then, just by way of completeness if your Honours go to paragraph 14), it was a “sexually transferable disease” and there should be a tracing of his sexual history for the purpose of seeing whether other partners of his had acquired the disease. So, those are the factors which are acting on his mind on the evidence before the jury.

BELL J: Well, additionally, it is common ground, is it not, that before the sexual relationship commenced the complaint specifically asked the appellant whether he had any sexually transmitted diseases and whether he had been checked for HIV? So that before sex commenced, a fair inference one might think is that the appellant understood if he said, by the way, I am HIV positive, there was more than a chance she would say, I am not interested in a sexual relationship with you.

MR FULLER: Yes.

BELL J: So that when you talk about what was in his mind in terms of proving that an object in having sex with this complainant was to give her HIV, the fact that he has been warned that it is a transmissible condition and of the precautions that he ought as a responsible person to take may not get one over the hurdle.

MR FULLER: But it is a factor, then looking at longitudinally the relationship that then occurred, is a matter that the jury could take into account because it is not a matter of freezing that point in time and determining what his state of knowledge is. It is a factor the jury were entitled to take into account in drawing an inference, given his other conduct.

KIEFEL J: But his knowledge does not increase over time, does it – it does not change?

MR FULLER: No, that is correct, your Honour, and in addition to that is in 2005 you would have noted that he inveigled a friend to conduct a blood test on his behalf so that again there is a degree of deception on his part and I take your Honour Justice Bell - - -

BELL J: This was deception of the Department of Immigration, was it?

MR FULLER: Indeed.

BELL J: So, I suppose, one inference might be a concern about one’s status remaining in Australia if known to be HIV positive, was that an inference that was open?

MR FULLER: That was an inference that was open with respect to that.

BELL J: How does it bear then - - -

KIEFEL J: There was some direct evidence about a visa, was there not, concerns about a visa?

MR FULLER: There was, yes, but it falls again as part of the circumstances which were behind the then statements to her that he was not HIV positive, and a positive statement with respect to that. There was also evidence during the course of the relationship itself there was a discussion about the death of his brother, and again an assertion by him that he was not HIV positive at that time.

His Honour then when dealing with what the issue was between the recklessness as not being able to be excluded then deals with that at paragraph [46] against the background of what he saw was the knowledge at that time. In my submission, his Honour is not making a finding with respect to accretion of acts. His Honour is making an observation that if an act of unprotected sex had occurred on a couple of occasions, then the issue of recklessness would be far more difficult to exclude.

But if a person with that state of knowledge embarks on a course of conduct where there is repetition of the acts over a long period of time and the act is the act of unprotected sex that is occurring by way of repetition against the background of the knowledge that I have already taken you to where he was informed that it would or could transmit HIV, that he should inform his partners and that he should only practise protected sex.

KIEFEL J: Well, the highest one could put it is, from what his Honour says, that the accused should have known that the risk of infection was getting greater as time went on, and that is - - -

MR FULLER: Medically that may be correct.

KIEFEL J: Maybe not correct either.

MR FULLER: Well, that is right. It is a statistical issue and again it relies upon the context and other matters.

KIEFEL J: So, if it not mere recklessness, what his Honour saying? If it is something beyond mere recklessness, what is it?

MR FULLER: That it was evidence from which the jury could conclude or infer that his intention was to pass HIV to her.

KIEFEL J: How? Where is the purpose?

MR FULLER: Because of the state of knowledge he was provided with, that doing that act can transfer HIV. He engages in that act on a number of occasions with unprotected sex across a period of time.

KEANE J: If his object was not to transmit the disease, then he should use protection.

MR FULLER: Yes, and he should inform his partner that he should be on the antiviral medication. Those are all things which are known to him which are within his control and similar to the observations that your Honour made in Reid, that there is a callousness about that and a degree of deception. Whilst there may be other inferences about some of his acts of deception, Reid was a very short period of time – it was a matter of months. If your Honours look to the facts of that that the statements about misery wants some company and it was only once that the complainant in that matter was aware that he had the virus, that the breakup occurred between the two of them. So, any statements made after that event, have to be seen against that background.

KIEFEL J: But if one puts aside the callousness and lack of thought about this – his actions – to say that there were actions open to him to take which he did not take is to describe intention by omission, is it not?

MR FULLER: No. In my submission, your Honour, they are facts, looking at all of the evidence as a whole, that the jury can take into account in determining what his intention was. They do not of themselves create the intention but the cumulative effect of them.

KEANE J: You say justifies the jury in concluding that if he did not want to transmit AIDS he would have used protection.

NETTLE J: How does the jury exclude beyond reasonable doubt the possible inference that, although he knew it was probable the woman would get infected, his purpose was to have unprotected sex because of personal gratification regardless of the consequences for her?

MR FULLER: That is a difficulty in matters of this type and I acknowledge that, your Honour. The issue is there may be more than one purpose or we come back to the issue of the wilful blindness that where there is a purpose which subsumes a number of other consequences on the way through and it is an argument that is run with respect to where there is an intentional offence and a lesser offence which may be available, does the fact that the existence of a lesser offence is there negate or prevent the prosecution with respect to the intentional offence.

BELL J: Well, not if there is evidence. But a moment ago you slipped into wilful blindness. Do you make a submission that intent, for the purposes of the Code, is made good by evidence of what is sometimes described by the doctrine of wilful blindness?

MR FULLER: The issue becomes what evidence there is in a negative sense that can be used. Wilful blindness of itself cannot establish intent and it is not part of the law of Queensland with respect to that. But, again, they are factors which a jury can take into account and what is the factual matrix from which they will then draw an inference as to intent.

GAGELER J: Wilful blindness is a conclusion which is inconsistent with intent, is it not?

MR FULLER: That is and that is inconsistent with the directions which were given with respect to it because at the end of the day the Crown had to be satisfied or had to satisfy the jury with respect to that intention, with respect to HIV other than a negative of that.

KIEFEL J: Could we just consider the reasoning process based on he did not want that outcome and could have taken action? The jury would reason, would it not, he did not – putting the other word in for “want” - he did not desire that she contracted the disease. The second step is he could have ensured that she did not. He did not take that step. What is the inference open from that apart from the fact that he did not, in fact, protect her in accordance with his wishes about her safety? What other inference is open?

MR FULLER: That that is an action consistent with somebody who has an intention to pass the disease.

KIEFEL J: That is viewed objectively rather than subjectively, is it not, but the test of intention is purely subjective.

MR FULLER: His intention, certainly. The jury are looking objectively at the evidence as to what his subjective intention is.

KIEFEL J: This is where, I think, the two are starting to become a little blurred. The jury is still looking for his subjective intention so where on that analysis is the inference that it was his purpose actually to transmit the disease to her?

MR FULLER: Only by way of its absence. That further supports what other evidence there is of his intention. The issue that is taken with his Honour’s reasons at paragraph [46] and then what follows, your Honours would see at page 296 of the record book at paragraph [47], the specific statement that the intention was required to exist:

from the first act of unprotected sexual intercourse to the last.

So that the analysis that his Honour is making is that that intention must have pre-existed prior to the first act of unprotected sexual intercourse. His Honour then deals with some of the other submissions from the appellant and if I can touch then upon the lies and the statements which were relied upon. Not all of the lies could establish a consciousness of guilt. Some of the false statements occurred prior to the acts of unprotected sex occurring and, therefore, could not be a consciousness of an offence which is yet to take place as post-offence conduct.

However, reliance was placed upon the Crown in particular with respect to his statement that only a couple of acts of unprotected sex took place during the course of the relationship, in his interview with police. Reliance was placed upon that before the court as showing a consciousness of guilt of the offence with which he was charged. That was the direction which was given to the jury with respect to it.

BELL J: Appreciating that was the direction that was given, how rationally could one reason in the circumstances of this case to the lies as evidencing a consciousness of guilt of this offence, as distinct from an offence of a public health nature or the lesser offence charged in the indictment?

MR FULLER: The only basis that that could be placed is that, as causation was not in dispute – indeed, in the record of interview before he made that statement he accepted that he was the most likely person to have given HIV to the complainant – that he is then reducing the number of times which he has exposed the complainant. The Crown says that, therefore, is a recognition or a consciousness of the intentional offence, as against the lesser offence.

BELL J: I appreciate the Crown says that. I am asking for the rational connection.

MR FULLER: The only connection can be a reduction by him of the exposure that he made the complainant to, whilst accepting that he has

already exposed her to the virus and that the transmission of the virus was as a result of his actions.

NETTLE J: Mr Fuller, when the accused told the lies about the number of times he had unprotected sex with the complainant, had he then made the admission that he was probably the cause of her disease?

MR FULLER: He had, your Honour, yes, so that there was that acceptance to the complainant herself. So, initially, when confronted by the complainant he denied that he had HIV. He then later made some concession that he had HIV and that he had known for a period of time and then, when interviewed by the police prior to making the statement about the number of times of intercourse, he accepted that he was the likely person to have provided it to her. I think there was evidence, and I think it was accepted by him, that the complainant had not been involved with anybody else and, therefore, he was the source of the HIV virus.

Your Honours, the final issue then to address is the one of the temporal concurrence and I have already taken you to the statements by his Honour Justice Gotterson with respect to the need for it to have been prior to the first act of unprotected sex. So the real dispute is not around whether the jury made a finding of that. The issue then is whether there was evidence to support that. That, again, came down to observations and, again, reliance on Justice Keane’s judgment in Reid with respect to the fact that there was no change in the nature of the relationship across the course of the relationship. It then returns to an argument about his state of knowledge prior to the relationship commencing, the unprotected sexual acts occurring within the relationship itself.

Finally, then, your Honours, I agree with my learned friend that the appropriate course is, if the Court was to find that the intentional offence was not established, to refer the matter back to the District Court so that the plea of guilty could then be accepted, as a matter of machinery, and he could be resentenced. Unless I can assist your Honours any further.

KIEFEL J: Yes, thank you, Mr Fuller. Is there anything in reply, Mr Game?

MR GAME: Just a couple of things. I just wanted to make a general point about lies and in a way it is an unfortunate outcome of Edwards setting down a template and quite often the lies are not consciousness of guilt lies at all but things that, for example, if somebody tells a series of different lies to a bank about a loan that might tell you what they really knew so the lie actually kind of might - what Edwards talks about is how does the truth implicate the person.

Now, what actually emerged in a case called Dickinson which your Honour Justice Nettle sat on where there was a refusal of special leave but there was a teasing out in the special leave of how one has to - there was a short judgment at the end - tease out in any individual case what the significance of the particular lie is because again you will come up with different answers, depending on the content of the lie. If you ask yourself if you told the police the truth how does that implicate him, you cannot come up with an answer that it implicates him with respect to intending to bring it about. It does not make it inadmissible.

Now, there was an exchange with your Honour Justice Keane, which I would just like to draw one thing out which is this. In the first part of the exchange your Honour said if the object was not to infect, then he should use a condom. You come up with a different answer if you ask the question in that way. It does not lead you to an inference that the not using of the condom meant - - -

KEANE J: Well, it is a way of trying to come to grips with this very difficult distinction between what your motive is, what your driving desire is and the idea that intent involves an object.

MR GAME: The discourse I do not challenge but the idea of the object not to infect, you do come with - - -

KEANE J: Well, no, it is only about an inference, is it not?

MR GAME: Yes, I understood, but - - -

KEANE J: It is about what the jury can infer.

MR GAME: Yes, but you are not going to draw an inference that he intended to give her HIV because he did not use a condom from the earlier proposition. But, a couple of other things I wanted to say – and this has already - - -

KEANE J: Why is that right? I mean if he did not have an object of infecting her, he could have used a condom and he would not have infected her.

MR GAME: That does not follow and that is objectifying the question, your Honour.

KIEFEL J: No, no, no. It is just a matter of plain commonsense that the jury is entitled to say, of his subject of intent, if it was not his subject of intent that she be infected, the situation was easily remedied.

MR GAME: But, in my submission, that is not a logical conclusion. You need something upon which you can actually draw and it is not a logical conclusion in this case because of the persistence of the activity explained in the context of desire or pleasure.

Just one other point, as soon as you go from mere recklessness, you are driven into these ideas of gross recklessness, foresight of probability or possibility. You are going to have to do the analysis that Woollin and those cases requires. Perhaps another way of answering your Honour Justice Keane’s question is that that is not inconsistent with recklessness, if you put it that way. It is not inconsistent with gross negligence, even. Anyway, that is all I want to say in reply.

KIEFEL J: Thank you. The Court reserves its decision in this matter. The Court will adjourn until 10.15 am tomorrow.

AT 11.41 AM THE MATTER WAS ADJOURNED