Aubrey (MA) v The Queen [2017] HCATrans 13 (3 February 2017)

Last Updated: 3 February 2017

[2017] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S274 of 2016

B e t w e e n -

MICHAEL AUBREY (MA)

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 FEBRUARY 2017, AT 10.01 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC: May it please the Court, in that matter I appear with my learned friends, MR P.D. LANGE and MR M.G. CORONEOS. (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC: May it please the Court, I appear with my learned friends, MR H. BAKER and MS B.K. BAKER. (instructed by Solicitor for Public Prosecution (NSW))

KIEFEL CJ: Yes, Mr James.

MR JAMES: Your Honours, before I commence on the actual argument, I should draw the Court’s attention to a misprint or misstatement appearing in the appeal book referring to the judgment of Justice Fagan. At page 185 in paragraph numbered 75, in the third line the word “probability” appears to have been inserted for the word “possibility”. I picked that up last night when going through the material, but it obviously was intended to be “possibility”, whatever be the accuracy or otherwise of the transcription, and we accept that.

KIEFEL CJ: I see. Yes, thank you. Is there any dispute about that, Mr Babb, or have you not - - -

MR BABB: No, that is fine, your Honour.

KIEFEL CJ: Yes, thank you. Yes, Mr James.

MR JAMES: Your Honours, the outline of submissions for both parties, the arguments before the Court of Criminal Appeal in the initial appeal and subsequently set out very fully the arguments that are sought to be made here. Firstly, as far as the initial argument concerning the concept of – underlying the words “inflict grievous bodily harm” is concerned, it is our primary argument that there is nothing in what has been said that detracts from the ordinary and natural meaning of those words as they appeared in the section arising from the dispute in the United Kingdom concerning the basis upon which Clarence may or may not have been decided. There is some difficulty as to terminology from time to time. The word “assault” appears to have been used on some occasions as embracing only a battery.

KIEFEL CJ: If we just go back to the meaning of “inflicts”. Does it not sometimes take its meaning from what it is that is inflicted?

MR JAMES: Yes, your Honour.

KIEFEL CJ: So, to inflict psychiatric harm might not have the same temporal element that you argue for the immediacy as a striking or a blow on a body and, similarly, it might be thought inflicting a disease depending upon the nature of the disease might not have that same connotation.

MR JAMES: Possibly, your Honour, but one rarely talks about inflicting a disease. If you are using the language in its ordinary sense, “inflict” carries with it a meaning distinct from “communicate” or “infect”.

EDELMAN J: What do you mean by its “ordinary” sense? In Clarence, for example, the “ordinary” sense that was relied upon by Justice Stephen was a different etymological “ordinary” sense from the “ordinary” sense that one might rely upon if I was looking at a dictionary today.

MR JAMES: It may be. In our outline we referred to Thiess v Controller-General of Customs and its adoption of what Justice Learned Hand said about dictionary meanings and so forth. The concept of “ordinary sense” is the concept conveyed to those who must obey and implement the law rather than taking a meaning from a range of meanings in one of the range of dictionaries to try to see if the possible meanings that might be attached to the word might embrace a concept which otherwise strains at least genuine popular acceptance.

KIEFEL CJ: Section 36 itself refers to causing a disease. In common parlance one would not usually talk of causing a disease either.

MR JAMES: With respect, your Honour, that does not help in the sense that “cause” certainly has more going for it than “inflict” does when talking about a disease and, indeed, the minority judgment of Justice Hawkins was the only one to attempt to equate “inflict”, “cause” and “occasion” as though they were all sufficient there for the communication of the disease to be inflicted.

KIEFEL CJ: This is the dissenting judgment in Clarence.

MR JAMES: In Clarence, yes.

KIEFEL CJ: But that appears to be the modern view taken by the more recent decisions in the United Kingdom.

MR JAMES: The more recent decision - - -

KIEFEL CJ: While saying they are not synonymous, they are saying that they are very close.

MR JAMES: The more recent decisions in the United Kingdom extend the meaning of “maliciously inflict grievous bodily harm” dramatically and, indeed, when we get to the second branch, the second question, as does the judgment of Justice Hunt in Coleman.

The upshot of all of that is that at the end of the day in New South Wales, if you advert to the possibility that you might cause or occasion a disease which might in due time bring on a critical, harmful change to the body, you can be said to be maliciously inflicting grievous bodily harm, even though that communication may not be otherwise unlawful in the sense that it was unlawful as occasioned by committing an act not otherwise unlawful.

Now, if we come back to Clarence, Clarence stood for some 88 years before Salisbury and Salisbury did not overturn Clarence critically. In Clarence there were discussions about assault and unlawfulness in the sense of discussions concerning consent to an assault and that became involved with the concepts of the relations between a husband and wife, and particularly those approved by the ecclesiastical courts; it was quite clear that the communication of a venereal disease was a form of ecclesiastical cruelty for which the ecclesiastical law made some provision.

What was looked at was lawfulness and consent for the purposes of the common - the criminal law – that for the purpose of working out if something was an assault, though the case seemed to accept that the word “inflict” carried with it some degree of immediacy. In answer to your Honour the Chief Justice’s question, immediacy, again, is a matter of some flexibility. The direct or indirect application of force, with some degree of immediacy about it, would seem to have the meaning of “inflict” linked with it. But to talk about inflict, as though it provided for a long-term, indirect result of something that involved no force – and coming to the second branch – no unlawfulness and which could only occasion indirectly or, indeed, sometimes even remotely a degree of serious psychological harm as falling within “inflict grievous bodily harm” is to take a very long stretch without resorting to dictionaries at all.

But even if one resorts to dictionaries, the various meanings all seem to embrace the concept of a fairly close relationship between the harm caused and the causing of it, even if that is outside what we contend is the meaning to be given to the word “inflict”.

KIEFEL CJ: If one considers the immediacy of the grievous bodily harm, the causation element, in a sense, if someone was punched in the head, assaulted in that way, but a brain haemorrhage did not appear for some months – one does not have to pick a time but for some time – that would, nevertheless, be the infliction of grievous bodily harm, would it not?

MR JAMES: There would have to be some causal linking between the punch and the brain haemorrhage.

KIEFEL CJ: Yes. Well, there is in this case as well.

MR JAMES: Well, yes, I appreciate that, but there would have to be some causal linking and an issue would arise as to whether the cause was sufficiently direct or insufficiently remote. In other fields of the law, we do not talk about negligence or such like, the idea that the damage can be caused at any remote or by any mechanism. We have some limiting or qualifying factors to be applied.

KIEFEL CJ: All I am trying to do really, Mr James, is try to identify what is the critical feature of the elements taken from Clarence that you are relying upon.

MR JAMES: I appreciate that, your Honour, and I am - - -

KIEFEL CJ: The temporal element in a causative sense from action and result is a bit flexible. I think you would have to agree with that.

MR JAMES: I have to accept that.

KIEFEL CJ: Yes.

MR JAMES: But it does not go so far as to suggest that when something may not happen in the future, may only happen through a difficult mechanism and is likely to happen through some extended process, in any event. That is necessarily within the meaning of the term “inflict”.

EDELMAN J: What do you do then with cases like Halliday which were even more proximate to the legislation where the accused was responsible for causing the panic in the theatre and there was a delay between his acts and putting out the lights and barring the doors and then the panic. That was indirect. There was a temporal delay. Would it really have made a difference if the delay had been a bit longer?

MR JAMES: I am not sure, your Honour, that it was indirect. It was not direct in the sense of a direct blow to the body of a person. Similarly, in Royall, the activity of the individual, although it did involve a blow to her body in the sense of the ashtray to the face, and then her leaving the window, whether by reason of a jump or by falling out in fear, all of that is sufficiently direct to fit in with the customary analysis of assaulters putting in fear or a battery as occasioning violence.

Halliday was an example of very much the same thing. So is the administration of a noxious thing in that sense. But we talk about the administration of a noxious thing as causing. Now, in Halliday’s Case, the infliction, often that term without precise analysis is adapted as though it were simply a cause. But it plainly is not. It is a different word used in a different context and has stood for use in that limited context for a very long while. There was nothing in Salisbury and in the cases that talk about the possible alternative of an implied assault from the charge which in any way cuts down that proposition.

Now, it is not that we have to say that Halliday must have been wrongly decided. It is a completely different circumstance to this. The task is trying to tease out what it is about “inflict”, if there is a difference, that is different from “cause”, that is different from “occasion”, where “inflict” has been used where in 1888 nine judges sitting as the Court for Crown Cases Reserved looked at that precise word and where it stood thereafter for a very lengthy period of time.

EDELMAN J: You keep saying it stood for a lengthy period of time. I mean, at what time are we looking at these words? The legislation is 1900.

MR JAMES: We are looking at the words in 1900 because Clarence was 1888 and we are looking at it from 1900 until now and including now. The argument put against us is that there is some sort of cultural or meaning change which is referred to particularly in the UK decisions in Dica that somehow the meaning of the words has sufficiently changed so that concepts which one would not have thought on a first reading of it either as at 1888, 1900 or now would be embraced within it, are now embraced within it.

KIEFEL CJ: I think two things are really put against you either directly or indirectly by reference to the later United Kingdom cases and the first is what I referred to earlier that the modern notions of psychiatric injury which would not have been available in the late 19th century, the nature of the injury might suggest that “infliction” as the verb might have a wider and temporally spaced meaning.

The other is that Clarence is something of a decision for its times and the judges in Clarence viewed the matter through the prism of marriage, imputed consent to a wife to intercourse and through the notion that no one had ever been charged even though sexually transmitted diseases such as gonorrhoea had been around for, I think they said, 400 years or more. Those matters must be taken as influential.

MR JAMES: Certainly, your Honour. We will deal with the latter or the last, I should say. Since Clarence, no one has been charged under this provision until us. So, consequently, we have during that entire range of time - - -

KIEFEL CJ: I do not suppose people came forward with HIV/AIDS until relatively recently.

MR JAMES: But it was not HIV/AIDS that was the problem, it was the communication of a disease. Secondly, as far as the marriage and implied consent and so forth was concerned, all that was bound up with the concept of an assault. From that comes the extension from the criticism that if assault was not there, i.e. battery, then unlawfulness was there and the lack of consent coupled – vitiated by reason of the collateral promise - and we have referred to the Papadimitropoulos problem in relation to that - but that lack of consent was material because otherwise you would have had a consent to the act which did the communicating and without much clarity there seems to have been the suggestion that - and it appears in various other places as well - the consent to the act carried with it consent to the risk.

Now, whatever be the position, the New South Wales legislature adverted to it directly when section 36 was passed – a section for which there would have been no real need unless the appreciation of the meaning, as it presently stood, was such as to indicate the inappropriateness of section 35. So far as there is a guide to what people might have thought it meant at the relevant time, the time of the passing of section 36 is very material to the New South Wales position.

Whilst Clarence was undoubtedly a case of its time there are principles in it which have transcended mere history and which had continued in operation up until really the two United Kingdom decisions – one extending grievous bodily harm to what really amounts to grievous mental harm, and the other, on that basis and on the basis that an alternative verdict for assault might not have been thought to be available, no express words used and no necessary implication, that therefore nothing remained of what Clarence said. Yet when one analyses it that is not the case. The basic principle in Clarence still remained and, indeed, was thought to still remain when section 36 was enacted.

KIEFEL CJ: And that basic principle is?

MR JAMES: That basic principle is that the mere fact of communication is not inflict, and with a disease it is not sufficiently proximate.

NETTLE J: Was that not because their conception of grievous bodily harm was restricted to grievous physical bodily harm and with the advancement of language or change in conception to one which involved both disease and mental injury the necessity for physical infliction of harm evaporated?

MR JAMES: Certainly, your Honour, that is right as far as it goes. But the section turned on grievous bodily harm and their appreciation of grievous bodily harm was it was harm to the body. There was no reason to believe - - -

KEANE J: Harm to the body, as opposed to the mind.

MR JAMES: Well, no, just harm to the body. I am coming – my answer to your Honour’s question is yes because as at 1888 there is no reason to believe that either the judges or the legal system were ignorant of harm to the mind. It was not that there was no psychology or psychiatry and that it sprung newborn after 1888 into existence.

KIEFEL CJ: Except they probably thought a woman was hysterical then if they suffered any kind of emotional harm.

MR JAMES: Hysteria, your Honour, was one class of mental illness in those days.

KIEFEL CJ: It covered quite a lot in those days.

MR JAMES: Yes, but there were quite a lot of mental illnesses that were not either specifically related to women. Indeed, it was well known that there were derangements of the mind. Justice M’Naghten did not spring into existence from a vacuum. It was well appreciated that there were mental illnesses, mental harm and mental diseases and so forth as at 1888. But it was not thought necessary for the court to embark on that because the section referred to grievous bodily harm.

Now, what has happened in the United Kingdom, and it is pointed out actually in Dica, that modern research has tended to indicate electrical and structural changes in the brain at least correlative to mental or emotional states and there is an argument in effect that everything psychological is reflected, in terms of bodily, in that way. But that has never been, until Dica, the way in which the law has tended to use the term “bodily”, particularly in relation to “grievous bodily harm”. Disfigurement, permanent disfigurement and such like, are within the term.

Now, many old cases from 1888 and before were creatures of their time in the reasoning, carrying with them notions that may not be as central to the conclusion and which, if excised, might leave the conclusion lacking in some support but still which remain effective, authoritative and to be followed unless or until the legislature sees fit to embrace a much more extended meaning by legislation.

BELL J: The more extended meaning having the effect of creating a criminal liability which did not previously exist on the authoritative interpretation of the particular provision.

MR JAMES: Yes, your Honour.

BELL J: On the other hand, there is the approach that Lord Steyn adopted in Ireland which was to look at the equivalent of the New South Wales section 35 and simply apply the canon of construction that a statute is always speaking and then look at what the language of the statute might be taken to convey in the early 21st century.

MR JAMES: It is to that approach, the argument I put concerning - even looking at the meaning now it is - construing the language in its ordinary and natural meaning with the statute speaking now we still would not talk about the communication or infection with a disease as being the infliction of bodily harm and that is why the legislature included the new offences and amended the concepts of grievous bodily harm and created the new section.

BELL J: I understand the latter aspect of your argument, but do you accept that the approach in relation to the construction of a statute imposing criminal liability is to adopt that canon that the statute is always speaking and to consider the meaning of the language in the current context, or does one exercise some restraint, taking into account the meaning of the statute at the time of its enactment and the associated authoritative construction of the statute at that time because to do otherwise is to enlarge criminal liability on one view.

EDELMAN J: And could possibly create a circumstance where that which - the exact same event which was not criminal could become criminal at some undefined point in time by reference to an unchanged statute.

MR JAMES: As to your Honour’s first question, firstly, we do not see it as necessary for the decision in this case in that our primary argument is if it is speaking and speaking with a present voice, the same conclusion is reached. Secondly - - -

KEANE J: Except that on the views of what has happened in England we know the English courts have taken the view that Clarence misunderstood, did not hear the voice in which the Parliament was speaking. The Parliament spoke in language that, according to the English courts now, the court then misunderstood. So, that it is not a case of a criminal liability springing up now, it is rather a case that it was always there but the court misunderstood the effect of the statute.

EDELMAN J: Which is what Professor Kenny was saying in 1904.

MR JAMES: I understand, your Honours, that that is one of the bases on which it is said that Clarence was wrong. Nonetheless, if one – the argument we were putting forward is in Australia, in New South Wales now, looking at that use of language, the meanings said to be attributed to the language now are so far away from the ordinary and natural meaning of the words that whatever might be the position of the English courts talking about what the position – their understanding is there, it would not be reflected in an understanding of the same kind here, if we are dealing with a statute speaking in a contemporary way.

The idea of the legislature being – speaking, must have some restraint to it, otherwise, as Justice Edelman has pointed out, in effect, every case has to be decided anew, in effect, without principle. That restraint is affected by the continued existence of what is thought to be an authoritative or persuasive or, to be followed, decision. Sometimes the subject matter is not such as to ever give rise to the practical application of the principle, Donoghue v Stevenson, we do not know about the half snail or not, because of the demurrer. But, nonetheless, the principle has operated.

In Clarence, apparently, we have all ordered our existence on the basis of the continued applicability of the principle. Now, a re-examination of the wording in order to attain a completely different meaning to that which existed and which, frankly, with hindsight, makes it very difficult for the English courts to say that court got it wrong back then when looking at what Parliament meant. These assume somewhat of a quandary here and our legislature has, to an extent, sought to solve it, as far as it is prepared to go. That is not to equate maliciously inflicted grievous bodily harm with the extension that the English have adopted, nor to say that Clarence is wrong; nothing in the extrinsic materials indicates that Clarence was wrong. The only allegation about it was doubtfulness and doubtfulness, I might say, is applied to intent to infect.

Now, your Honour Justice Bell, I may have become distracted from the second branch of your question. Accepting that if we are dealing with the speaking phenomenon and we are not dealing with some sort of equivalent to one of the schools of thought in the United States concerning the Constitution, what was in the mind of the maker at the time, we are certainly dealing with the proposition that, yes, one does have to consider the provision in its current application. But there is a limited role for the courts in that regard, particularly the courts in relation to criminal offences and criminal statutes where the meaning has stood as accepted.

Now, it is challenged by my friend that the meaning has stood as accepted. But in Salisbury, except for that issue concerning whether an assault is implied into the offence, Clarence was affirmed. It is not to the point to say that nobody has been charged and no one has run the point and no court has upheld it in the meantime because it has governed in effect what prosecutions might be brought.

It is not to be thought that in the 400 years prior to Clarence and in the 100 years or more since Clarence, there have not been cases in which persons have had intercourse adverting to the possibility of infection, which infection could occasion psychological or physical harm. There have been no prosecutions, one could only if one was going to reason in that way, because it was not thought that the section related to them, and similarly the legislature. Now, I do not want to repeat the same points, but there has got to be some restraint on speaking order, and that is where the restrain lies, in firstly following what we have got unless Parliament wants to change it.

BELL J: That submission I understand. I have more difficulty understanding that part of your submission that invites attention to the objective legislative intention in relation to the insertion of section 36. Surely one is concerned - section 36 did not alter the terms of section 35.

MR JAMES: No, it did not, but if we are trying to work out what is the modern attitude to the meaning of the terms in section 35, it is legitimate to have regard to the legislature creating an offence of cause or communicate a serious infectious disease as being something to which they had focused as requiring the elucidation of the concepts, and the leaving alone of section 35 to which Clarence had been thought to apply satisfactorily shows that what they were talking about was a meaning which was not embraced in section 35. It is not a question of extrinsic materials in the sense of defining the terms in section 35; it is looking to rebut that idea of speaking, or what the English courts were essentially doing, claiming a warrant to change the meaning. Now, New South Wales Parliament did not claim such a warrant.

KIEFEL CJ: But in enacting section 36 there is obviously some importance placed upon the words “by any means”. They do not appear anywhere else and the extrinsic material explains how important they are.

MR JAMES: Your Honour, the “by any means” may well have been an attempt to get over the idea that consent to intercourse was lawful or made the activity of communication lawful.

KIEFEL CJ: It had more to do I think at the time with the means by which people were threatened with HIV/AIDS, not in the sense of sexual intercourse but by a syringe.

MR JAMES: A syringe – that, too. I am not to be taken as restricting the meaning of section 36; I am contrasting section 36 with section 35.

KIEFEL CJ: But to acknowledge that section36 has this wider operation by reference to “by any means” overcomes some of the problem that you identify in your submission that, if the word “inflict” in section 35 has the meaning that the Court of Criminal Appeal gave to it, section 36 would have no work. “By any means” gives it quite a lot of work to do.

MR JAMES: It does give section – our argument is section 36 has got the work to do in this area of communication of infectious disease. And that the “by any means” and the specific references to the communication of infectious diseases makes it clear enough that it is not intended to alter the meaning which was not thought to include such things in section 35. It gives an alternative to section 35.

Now, “by any means” allows an amplification of the means, but it includes within that meaning the very matter of infect. We submit that “inflict” and “infect” are not synonyms. Your Honours, we have set out the arguments and they have been substantially - - -

KIEFEL CJ: Is it not more to the point about whether “inflict” and “cause” are so similar, as they might carry the same idea?

MR JAMES: It is, again, Justice Hawkins’ “cause”, “occasion” or “inflict” as being the same thing. That is the proposition which was rejected by the majority in Clarence, which has stood until now. They do not have the same meaning now. They do not have the same meaning historically or presently. “Inflict” carries something different with it to cause or occasion.

And when one attempts to pin it down, as best I can, it has got to involve the causing of some harm – “inflict” has got to be linked to harm - and it has got to involve some degree of connection, we say, some degree of immediacy, either factually or temporarily, and not a concept that would involve the absence of some such qualifying or limiting factor as in the other branches of the law would be applied to the words “cause” or “occasion”. “Inflict” is simply not the same and carries in with it, we submit, its own somewhat limiting idea.

NETTLE J: What about Lord Hope’s explanation of it as cause where the consequences are not desired?

MR JAMES: Again, that produces a concept in which the cause can be remarkably remote, indirect and so forth contribute in any significant degree to a result unintended. It might be background to that.

KIEFEL CJ: What about the – here I will resort to dictionary meanings, to “inflict” as meaning to impose as something that must be suffered or endured; to cause to be born. Both of those, directly the word “cause” is taken up. In the meaning “impose something that must be suffered” is the notion of causation. It is carrying it across.

MR JAMES: There is no doubt that within “inflict” there is also a notion of “cause”. But that is not all it is. Our argument is that “inflict” in that sense narrows “cause”.

KIEFEL CJ: Your argument comes down to immediacy, does it not?

MR JAMES: A degree of immediacy or at least there should be some such limiting factor that “inflict” carries with it to make it narrower than “cause”. Indeed, again, it said that in the cases.

KIEFEL CJ: What is it if it is not “immediacy of injury”?

MR JAMES: Clarence said “immediacy of injury”, that is, immediacy of consequential resultant injury rather than an extended process. So, I think it has to come down to a degree, at least, of immediacy which enables one to trace the act through to the result with some degree of direct link.

BELL J: Here, it may be accepted - and I think the evidence was one can have an act of intercourse where one party is HIV positive and the virus is not transmitted - but on those occasions when the virus is transmitted, albeit there is a lengthy incubation period, nonetheless, the act of intercourse has directly occasioned the transmission of the virus to the other party. What is the - - -

MR JAMES: It may.

BELL J: Well, you say it “may” – what was the - - -

MR JAMES: Your Honour, the act of intercourse could result in the transmission, need not. In fact - - -

BELL J: But when one looks at a circumstance when it has then one can say, surely, notwithstanding a lengthy incubation period that the harm, namely, the transmission of the virus, was occasioned in consequence of the act of intercourse.

NETTLE J: At the instant of intercourse.

MR JAMES: Your Honour, we can accept that the transmission of the virus was the act. We can accept further that the evidence was that the virus being transmitted, you may or may not manifest - - -

BELL J: It may not manifest but if it does manifest, what matter that it takes years to do so?

MR JAMES: Because the concept of inflict grievous bodily harm also requires advertence – anyway, I will move to that on the second branch. But in terms of causation, you are going to have to look to what other factors might have operated during that period. Now, in this case, there were other illnesses and they may or may not have caused the effect of the virus to manifest itself in the damage to the body. I am in no position to say what might have been in this case the mechanisms. It may be that the mere transmission of the virus can so sufficiently be linked to something that is so remote in the absence of other things which may affect it as to be able to, in popular language, say not that the accused caused the eventual condition but that the accused inflicted it by the act of intercourse – by the act of transmission – sorry, I should withdraw that – not the act of intercourse, the act of transmission of the virus.

Now, there has got to come a point of time at which the meaning of the word “inflict” has some real significance, otherwise then ever since the argument that it is the same as “cause” and “occasion” was rejected in Clarence, there has been no parliamentary necessity to intervene, but it is treated as though it were the same one.

KIEFEL CJ: Perhaps it might be best in terms of usual approach to statutory construction not to focus just on the verb “inflicts”, but to read “inflicts grievous bodily harm”.

MR JAMES: Yes, your Honour.

KIEFEL CJ: Now, if the virus is transmitted and someone is HIV positive, harm has resulted. It may be necessary for the prosecution to prove the connection, but otherwise the offence could be made out. There would be an infliction of grievous bodily harm.

MR JAMES: Only if we equate infliction with cause. If there is something extra involving an inflict - - -

KIEFEL CJ: What is the something extra?

MR JAMES: Well, the only thing I can put to your Honour is that degree of immediacy which is something to which Clarence directly looked, in any event, and that the fact that the word used is not “cause” or “occasion”; the word is “inflict”.

KIEFEL CJ: Yes.

EDELMAN J: Does your argument then mean that with communicable diseases it will depend upon the immediacy of the disease that is contracted? So some diseases may be inflicted and some diseases, if there is sufficient temporal disconnection, would not be inflicted?

MR JAMES: Or other disconnection of one kind or another, yes.

NETTLE J: So syphilis, because it is immediate, would be infliction, but HIV, because it is not, would not be?

MR JAMES: Syphilis may not be immediate. I am not aware as a factual matter whether syphilis must manifest itself as grievous bodily harm immediately.

NETTLE J: The infection is transmitted immediately.

MR JAMES: I accept infection, but again infection is not infliction. Syphilis, of course, does have, and gonorrhoea, somewhere down the track severe physical effects, and that was one of the problems in Clarence where they were looking specifically to that, and that is why they were looking to this idea of directness in the language of the time.

KIEFEL CJ: Maybe another way of approaching it is to consider what the harm is. The harm may be the syphilis or the HIV virus which is immediately sent into the body, in a similar way that some asbestosis cases are approached.

MR JAMES: Yes.

KIEFEL CJ: The harm, the infliction occurs at that point, and what you are really talking about is some way in which the harm is exhibited, which goes more to a question of proof rather than whether or not the offence is actually made out - whether or not the terms of the offence are met.

MR JAMES: It is not just harm; it is grievous, really serious bodily harm.

KIEFEL CJ: Yes.

MR JAMES: That may be a consequence of a consequence of a consequence. That can get you into, in the criminal law, calculations which involve not merely the attribution of responsibility and the award of damages, and the criminal law would normally limit the concepts, defining it in terms of some sort of notion of accepted culpability which also seems to underlie the reasoning in Clarence to a certain extent.

KIEFEL CJ: We have probably given “infliction” a fairly good going over.

MR JAMES: I think I have.

KIEFEL CJ: Do you want to say anything more about the English authorities and their approach to - - -

MR JAMES: Statutory construction. I think we have said what we needed to say in our written submissions. The object of what was done in the United Kingdom and what was done by the Court of Criminal Appeal here, appears to have been on a purposive basis, looking toward a result in order to avoid what was thought to be an uncongenial construction, and we have put in our written submissions what we want to say concerning that.

Our submission is that is not the way in which, by adopting contemporary ideas or culture, you would simply redefine the law or you get into the sort of problem that Justice Bell and Justice Edelman have referred to. If that is what is to be done, if there is to be such a leap, then we say it is a matter for Parliament and that is what we say about the statutory construction issue.

There was clear evidence of the probability of any one act of infliction in producing the grievous bodily harm in this case and it is referred to a number of times in the summing-up and in the appeal book. Professor Cooper gave evidence that as a general overall statistic, not applicable to the appellant specifically but as a general overall statistic, there was a one per cent chance that each act of intercourse might transmit the HIV: 100 to one against. That was - - -

KEANE J: They are pretty bad odds when the consequence of the risk coming home is infection with AIDS.

MR JAMES: It may be but that is not - as I said, that is an overall statistic not shown to be within the knowledge of Mr Aubrey.

KEANE J: But they are unacceptable odds, are they not, given the consequence.

MR JAMES: With respect, your Honour, not necessarily unacceptable to the persons engaged in the activity and that, of course, was one of the problems in one of the English cases dealing with the prostitutes as being willing to consent even though, knowing that the person concerned was infected with a venereal disease, but without talking about whether it is acceptable or unacceptable - - -

KEANE J: But you cannot, you cannot not talk about whether it is acceptable or unacceptable because you are talking about recklessness. You are not talking about possibilities or probabilities divorced from the consequence. Recklessness is the courting of a risk of a bad result and the uglier, the nastier the result, the more acceptable and the more reckless is the courting of even a small risk.

MR JAMES: The uglier and the nastier the result that you perceive is obviously mercurial to your decision to court the risk. We are not dealing with punters lavishing a dollar on a horse to win at 100 to one where they have no downside but losing the dollar.

KEANE J: No, we are dealing with the risk that is imposed on a victim who believes that he is engaging in conduct that is risk-free.

MR JAMES: Effectively risk-free; yes, your Honour, as indeed again said in one of the cases, in intercourse there is always risks of one kind or another but a risk that is real, yes, your Honour. However, when one comes to the second question and the concept of recklessness, what the cases talk about is a willingness to run the risk of a likelihood occurring. Now, I do not think there is any issue between my friend and myself that a fanciful or whimsical possibility is not what we are talking about here.

BELL J: Well, I think in Miller it was pointed out that in a case in which there was advertence to what was viewed as a theoretical possibility and for that reason discarded, it would be necessary to tailor directions appropriately.

MR JAMES: Yes, precisely.

BELL J: So to that extent, then, it may be that there is common ground, but a moment ago did you say that it was accepted that recklessness involved a willingness to run the risk that was likely to occur?

MR JAMES: Run the risk of a likelihood occurring.

BELL J: What authorities are you pointing to in that formulation?

MR JAMES: I will have to give your Honour a list in a moment but I will take your Honour even to Coleman in a moment. The term “likelihood” has been used as embracing possibility. The idea is not the concept of racing odds, balance of probabilities. Indeed, Justice Deane in Tillman’s Butchery looked to various ways in which probability worked. We are not dealing with probability theory. We are dealing with a state of mind which in the criminal law is to be determined as culpable on the basis of the extension of the old common law concept of malice, i.e. within the idea of meriting by reason of your subjective mental state criminal responsibility of a serious kind.

BELL J: Well, here we are looking at section 5, malice, under the Crimes Act as it stood at the time which is thought to extend the common law malice.

MR JAMES: It undoubtedly did. Every act done with malice, or if not done maliciously shall be within this Act, but that is what Justice Fullagar referred to in Mraz as the question begging, concept.....With respect, Justice Hunt in Coleman seemed to consider that there was no element of malice in murder in New South Wales following the passing of section 18, but section 18(2) plainly says “No act . . . which was not malicious . . . shall be within this section”.

In Mraz, this Court held that the murder felony, Mraz embarking on the rape and in the rape killing, the felony – the rape – supplied the malice so as to mean that the murder could not be said to not be malicious in that sense. Since Mraz, there have been struggles with section 5 which is what led to its eventual removal. On an analysis of it, it includes unlawful intent to injure in personal property and recklessly or wantonly.

From Coleman it is said we can get the proposition that unlawfully does not govern the idea of recklessness. Now, my only concern about that is that if what the interpretation of the section is is that a mere advertence to a possibility – not hypothetical, not theoretical, not negligibly disregarded – that some degree of harm might be occasioned which may turn out to be serious, by way of psychological injury or otherwise, even though not otherwise unlawful, then with the application of section 5 to section 35, we have an enormous broadening of liability. Mere recklessness in that sense, advertence to a possibility, will create a crime wherever the Crimes Act refers to statutorily the term “maliciously” or “malice”.

KIEFEL CJ: Are you saying the decision in Coleman was wrong?

MR JAMES: Yes, your Honour.

KIEFEL CJ: That is R v Coleman (1990) 19 NSWLR 467.

MR JAMES: I think so. If your Honour will just – I will just check the citation. My junior tells me the citation is correct, if your Honour pleases.

BELL J: You may have been a little harsh in terms of Justice Hunt’s analysis in Coleman. His Honour was concerned to explain the rationale in Crabbe, a case in which this Court considered the concept of recklessness for the purposes of the common law of murder, and in that context looked at recklessness as fulfilling the requirement for malice aforethought.

MR JAMES: Recklessness as to a probability, your Honour.

BELL J: Yes, in the context of the requirement of malice aforethought for murder at common law. Then, his Honour in Coleman turned to murder under section 18 as defined in the Crimes Act and the concept of reckless indifference to human life in that context as distinct from the separate consideration of section 5 “malice” in 18(2). It was, I would suggest, a more sophisticated analysis of the concepts than might have first been suggested by your submission.

MR JAMES: Yes, your Honour. I am making submissions rather than attempting to perform that kind of extended dissection. Coleman did not come up to this Court. It was not a suitable vehicle, obviously. The issues in it involved both the recklessness and also the intoxication and the eventual result and the facts speak for themselves. That being said, his Honour embarked on this lengthy analysis, in particular, motivated by what Chief Justice Gibb had said in Crabbe at 469 to 470 and that is - - -

KIEFEL CJ: Are you referring to Coleman or to Crabbe?

MR JAMES: To Crabbe, if your Honour pleases. It is in our written submissions at paragraph 50 with the citation. It is simply that:

It should now be regarded as settled law in Australia, if no statutory provision affects the position –

that is the first step:

that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.

KIEFEL CJ: That is reading from Crabbe (1985) 156 CLR at 469.

MR JAMES: Yes, your Honour. That was later caught up in relation to the Tasmanian Criminal Code by this Court again in Boughey (1986) 161 CLR 10 and the judgments of Justices Mason, Wilson and Deane. Now, Justice Hunt went to a considerable degree of trouble to analyse the applicability of Crabbe to the New South Wales position. As I have submitted already to the Court, section 5 does have a role to play, in any event, so that there is a question of a statutory provision affecting the position and it has a role to play in relation to murder. But, nonetheless, as Justice Hunt pointed out, it has been accepted law for a very long period of time, including by this Court in La Fontaine and other cases that notwithstanding that the relevant recklessness in section 18 whilst it might have as its object indifference to human life, embraces the concept of probability, not mere possibility.

Your Honours will have heard much discussion of that, including in Miller and in other cases. It is not to be doubted that recklessness toward the occasioning of grievous bodily harm at common law involves probability. It is not necessary – Crabbe, of course, the common law case of reckless indifference to human life or grievous bodily harm could found murder if somebody died. In New South Wales, at least, the limit is reckless indifference to human life. Reckless indifference to human life and reckless indifference to occasioning really serious bodily harm are not very far apart, particularly where, even in New South Wales, you can by intentional infliction of grievous bodily harm occasion death and the liability for murder.

BELL J: But, on one view, this is to confuse two issues and it was to that point that one finds Justice Hunt’s analysis in Coleman. It is one thing to consider the requirement of proof of probability that one’s act will occasion death or grievous bodily harm – this is for the purposes of the common law – to constitute the concept of malice aforethought because its blameworthiness is, as this Court explained in Crabbe, equivalent to intending that result, whereas recklessness, for the purpose of the criminal law more generally, as Justice Hunt pointed out by reference to the decision of the English court in Cunningham [1957] 2QB 396, is spoken of in terms of advertence to the possibility.

MR JAMES: If I might turn to Cunningham shortly, your Honour. If we are working on the criterion of blameworthiness in order to give some meaning to what subjective state of mind should be criminally culpable when the harm is not intended but the actor, adverting to some risk or other of the harm being intended, should have attributed to them the responsibility for the occasioning of the harm there is no particularly good reason for saying mere advertence to a possibility and going ahead anyway should be as culpable, and the extension of the liability to such persons, which effectively Coleman made in New South Wales, is to extend the criminal law very widely, particularly if the requirement for “without lawful cause or excuse” is put aside, which is why I raised it.

BELL J: When you say that Justice Hunt’s decision in Coleman extended the law in New South Wales, his Honour did rely on a line of English authority respecting the common law, did he not?

MR JAMES: It comes down really to Cunningham. If I take your Honours to what was said in Coleman (1990) 19 NSWLR 467. Justice Hunt commences his discussion of the matter with citing and setting out section 5, so far as is here relevant, on page 471 and referring to the directions on intent and malice. After having set out the relevant section, he sets out the direction, just below point F. The trial judge defined:

the concept of recklessness as a realisation of the possibility that some such injury might result but nevertheless proceeding to act . . . followed what has long been accepted as the correct direction, which is based upon the decision of the English Court of Criminal Appeal in R v Cunningham -

If your Honours go over to page 472, his Honour then does an examination of section 5, and particularly how recklessness or wantonness, as referred to in that section, might relate to malice or without malice. He says at 472 just above point B:

The element of recklessness (or wantonness) could be considered either as an alternative within the category of acts done with malice, or as an independent alternative to acts done both of malice and without malice. The framework of the section does not make it clear. But, whichever way it be considered, an act done recklessly or wantonly amounts without more to an act done maliciously within the statutory definition. On the other hand, an act done with intent to injure some person . . . does not by itself amount to an act done maliciously within that definition. An act done without malice but with intent to injure falls that definition only if it were also done without lawful cause or excuse.

So if you intend to hurt somebody - - -

BELL J: But his Honour goes on in the next sentence to explain the very evident reason for that.

MR JAMES: There are - there are example of things which would make that applicable. But that does not in any way detract from the possibility that it is more general than those examples would relate to. His Honour goes on to, just below E, point out that the definition has occasioned a great many problems and should be replaced. It was not until we come to - - -

BELL J: But that is because of the criticism of it for its question-begging quality.

MR JAMES: Not just the question begging, but also what it attributes to recklessness and wantonness, and I do not think in 40 years I have ever had any awareness of somebody being charged with “maliciously by reason of wantonness”. The definition is one that is uncongenial, at least to modern thought. Whether that means I am praying against myself the same doctrines the English adopted or not - - -

KIEFEL CJ: Perhaps.

MR JAMES: In which case I am tempted to say I might win on one branch but not on the other. If I go on, your Honours can see there his Honour refers to how, in the United Kingdom and in Victoria, there has been amendment of statute to replace the idea of malice maliciously with a “recklessness” definition in it by the use of the words “intentionally or recklessly”. His Honour goes on to say:

The possibility of confusion for the jury (I would so far as to say the probability of such confusion) –

and again the two concepts are related:

when questions of intent also arise –

Then his Honour points out at the next page the various history of the case law in New South Wales, particularly relating to murder and advertence to the probability of causing harm and malice aforethought, and your Honour raised that with me. It appears at the bottom of page 473 below paragraph F and continues through to - - -

BELL J: Relevantly, if one looks to Stephen’s Digest as to the meaning of “malice aforethought”, that is where you pick up the requirement for advertence to probability of the infliction of grievous bodily harm.

MR JAMES: Certainly probability is contained within section 5 itself in the sense that every act done of malice adopts that concept that was common to malice aforethought or not done of malice, and it goes on to give an extended definition.

We submit there is no reason when reading section 5 to say that that concept of probability is to be entirely disregarded because of a reference to recklessness.

Your Honour, could I digress for a moment? The terminology in this clouds one’s thinking to a degree. Concepts such as “possibility” and “probability”, when considered by the ordinary speaker – ordinary listener, and particularly one on the jury – are not concepts dealing with probability theory or the way sometimes in which the words are used.

Within probability discourse there is a room for possibility but to say to the ordinary listener “a possibility” means the prospect of something, no matter how remote, unless it can be entirely ruled out of the discourse, it is not a matter of mathematical assessment - it is not a matter of more than not. That leaves the idea of defining the possibility very much up in the air for the individual juror. Justice Keane has suggested one way in which that concept would be material to the particular juror, and that is by the gravity of the harm contemplated as possibly or likely to occur, but that is not how we have gone in Coleman.

EDELMAN J: But why is that not caught up exactly in your formulation of willingness to run the risk of the likelihood of the event occurring? When one talks about “willingness to run the risk” then that brings into it consideration of the nature of the consequences.

MR JAMES: It does. That is one of the reasons why I put it in there, my point being that if you merely talk about the person adverts to a possibility of some such harm as was in fact suffered without having any regard to the degree of harm, the possibility in popular acceptance is very minimal.

BELL J: This is somewhat removed from the issues at this trial where this point was not ventilated. That might be because to say at this trial involving an issue where the evidence was “Yes, I considered it was possible that in having sexual intercourse with my partner who did not know of my HIV status I might transmit that disease to him and I went ahead with sexual intercourse in any event”, that does not raise in any acute sense the concern that the criminal law might fasten criminal liability on individuals who have adverted to some remote fanciful risk.

MR JAMES: I understand that, I am not suggesting he was adverting to something which was a remote, fanciful risk, but there was nothing put one way or the other to say what he meant by “possible”.

BELL J: Nor was it asked for.

MR JAMES: No, it was not, and in fact Coleman was at that stage thought to operate such that the mere advertence to a possibility – not a risk, a possibility, was all that was involved, and the cross-examination proceeded on that basis and the trial judge summed up on that basis and that is why I drew the Court’s attention to the misstatement in the appeal book, because it was starkly a case which was run on the basis – by all concerned, any possibility – and we are not including in that whimsical, theoretical, hypothetical or whatever, any possibility was sufficient, and the argument we are putting here is because the case was so starkly run in that way that this allows a clear analysis of what should be the ambit of the provision.

BELL J: Well, then looking at the contention that the direction that is given places criminal liability on too wide a basis, the other view is the view by analogy with the discussion of possibility and probability in McAuliffe and in Johns which is that to elevate to probability is to stake everything on the probability or improbability of an act, admittedly contemplated, occurring and if one asks for the principled basis for why the direction is given in terms of possibility, that might be thought to be the answer.

MR JAMES: The gravity of the consequence of joining a criminal endeavour to cause the death of a person may well warrant attributing liability to those who join or participate with the contemplation of a possibility that death will ensue.

BELL J: But the principle - - -

MR JAMES: But it is a different thing if we are dealing with the gravity of a consequence which is lesser than that.

BELL J: But joint criminal liability would apply to offences other than murder so let us - just looking at the principle, what is wrong with the analysis that says it is appropriate to attach criminal liability to a person for a mental state that is, “I acknowledge that if I go ahead with my act it is possible that this consequence will result; namely, the transmission of HIV and I am going to go ahead anyway”.

MR JAMES: That would involve a different mode of thinking in a different area of discourse to the way in which the Victorian courts, South Australia courts, the courts dealing with principles in homicide and so forth, have approached that question of recklessness. We are not dealing with recklessness when we are dealing with adhesion to a joint criminal - designed to cause death. We are not dealing with that more removed concept of adherence to or adoption of a joint criminal endeavour where the risk of the occasion of the endeavour is, in effect, the sought risk or the contemplated risk.

In this case, we are actually dealing with the concept of simple advertence and proceeding anyway as a principle, and it has not been suggested in any of the cases, including McAuliffe, Johns, Miller and so forth, that La Fontaine, Crabbe and so forth are wrong. I mean, they have talked about recklessness as inherent in probability. There is a tension between the McAuliffe, Johns, Miller line of authority and the Crabbe, La Fontaine, Solomon, longstanding case law.

This is not the case for me to reargue McAuliffe. What we are dealing with here is the statutory meaning of an expression in section 5 which was meant to extend to some extent “malice” but which on the face of it seems, when one looks at Justice Hunt particularly, from 474 onwards, seems to have been to extend it to any contemplation of possibility, whether with lawful cause or excuse or not.

BELL J: Well, now, the argument is focusing, as it must, on section 5 “malice”, which of course has been repealed. As I understand your argument the contention is that it has broader significance and would apply to the statutory concept of recklessness, with which the Crimes Act (NSW) is now concerned.

MR JAMES: Without the legislature defining it, yes.

BELL J: Yes. Now, you refer to La Fontaine and to Crabbe, cases concerned with liability for murder which in some contexts is seen to attract particular principles having regard to it being the most serious offence in the criminal calendar, but when you say that there is a tension how do you resolve that tension in relation to this Court’s statements in Banditt respecting recklessness for sexual offences?

MR JAMES: Banditt involves a different concept entirely, with respect, your Honour. At common law the mens rea for rape involved an intention to have intercourse when the objective circumstance existed that there was no consent and adverting to whether there might or might not be consent. That was a different thing to recklessness that we are talking about now because that was the element, the very element of that offence. Banditt picked up from that and it is wrong to talk about that kind of sexual activity as being reckless. It was deliberate. It is deliberate because one did not do what you had to do which was advert to the prospect of consent.

BELL J: Indeed, so we speak of being reckless with respect to consent and for those purposes it is sufficient to advert to the possibility of non-consent.

MR JAMES: No, your Honour, the recklessness there is a different meaning of the word reckless, that is, “wrecking not”, i.e. having nothing to do with it, nothing - not thinking about that which you ought to think.

BELL J: Not adverting at all, yes, I understand that. But, equally, the concept takes up the notion of the actor whose state of mind is she may or may not be consenting and I will nonetheless go ahead and the person who thinks I think it is possible she is not consenting and I am going to go ahead.

MR JAMES: It embraces a lot of that. But my point is that it is different to this line of discourse which is confined to a limited area of what you - - -

BELL J: But why in point of principle should it differ – should criminal liability attach to the person who proceeds to have intercourse with another knowing it is possible the other is not consenting, in which case, as I understand it, your argument accepts liability attaches but you suggest it does not attach to the actor who knows that he or she has an infectious disease, does not convey it to the other and thinks it is possible I will transmit the disease and I will go ahead, nonetheless. What is the basis in principle?

MR JAMES: It is not my argument that the possibility is sufficient. What my argument is, your Honour, is that Banditt is dealing with a different area of discourse in which the person by saying I shut my mind to whether she was consenting or not, I disregard it, I go ahead, is involved with a different kind of recklessness to the advertence to a positive possibility of the result.

BELL J: You do not suggest, surely, that the authority of Banditt does not extend to the state of mind of advertence to the possibility of non-consent - - -

MR JAMES: Because that is embraced within that definition.

BELL J: Yes. So, I understand different points were being argued but I am asking for the basis in principle for the distinction you draw.

MR JAMES: Your Honour, I would love to be able to give your Honour a unified field theory which deals with accession to joint criminal enterprise and which deals with sexual offences as well. The word “recklessness” is used in dialogue and sometimes in definition in relation to such concepts, sometimes in the same sense, sometimes not. I cannot make sense of every use of the word to apply it consistently and in a limited way. I can, however, deal with this area of the concept of “recklessness” in relation to the causation of harm in a definition substituting a new concept for the concept of common law malice.

In one sense, rape was not a crime of common law malice except in the sense referred to in Mraz, that is, the commission of a felony brought in the common law malice that way to the definition under section 18 because of the intent and because of the various definitions in section 18. It was a crime to a very great extent involved a mental element remarkably different to most other - - -

KIEFEL CJ: I think we have gone over this area fairly heavily.

MR JAMES: Now, your Honours, I was going to refer to – and I can do this fairly quickly in passing - his Honour in Coleman, at 475 and onwards, commencing particularly at C, looks at the murder cases; Stephen’s Digest is referring to “probable”; the effect of Crabbe, this is just below D:

a realisation on the part of the accused that the particular kind of harm . . . might be inflicted -

And your Honours will find through the cases an almost indiscriminate use of the terms “may”, “might”, “realisation of the likelihood” and so forth, but a distinction only in relation to the terms “probable” and “possible”.

Then there is the reference to the series of decisions in Victoria which, as we point out, are overcome by the decision in Victoria in Campbell, which does not cite Coleman. “Possibility” is described as a lower standard. In fact “possibility” is only part of the concept of probability. “Probability” must be thought of in that reference as in only one of his meanings, i.e. more probable than merely possible.

KIEFEL CJ: “Probable” in the context of murder carries with it – is to be understood by reference to an intention to kill. That is the explanation for the requirement of probability, is it not?

MR JAMES: When Crabbe was used, an intention to cause grievous bodily harm and a realisation of the likelihood of causing grievous bodily harm was sufficient for murder. And, if that is so, the idea that it is sufficient if the death fortuitously occurs but it is not if the grievous bodily harm is all that occurs would seem to be somewhat incongruous.

Your Honours, when there is the discussion of Cunningham, which commences at 476, in its context in particular above point F, his Honour goes on to describe the history backwards and forwards of the Cunningham doctrine and what happened in England about it. We have referred to that in our written submissions. I do not think there is anything more that I can say in oral argument.

His Honour, through to 478, points out that even the seminal work involves a toing-and-froing as to what should be said concerning “probability” and “possibility”, and the upshot is that his Honour elects, we submit, for the possibility as inherent in recklessness, thus extending the liability well beyond what one might have thought the statutory meaning of

the words was. His Honour points out, when dealing with the matter at the bottom of the first paragraph commencing on 478, concerning where a case has stood for a lengthy period of time, referring to Uren’s Case, it should be followed without.....unless Parliament wishes to intervene.

Now, your Honours, unless there is any other matter on which I might assist the Court, that is as much I think as I should be saying in exegesis of what we have said in our written submissions.

KIEFEL CJ: Yes.

MR JAMES: But we certainly adhere and put forward what we have put in our written submissions.

KIEFEL CJ: Yes, thank you, Mr James. Yes, Mr Babb.

MR BABB: I will give your Honours a moment to read my outline of oral submissions.

KIEFEL CJ: Yes, Mr Babb.

MR BABB: Thank you, your Honour. I will deal with immediately, as I do in the outline of oral submissions, this proposition raised for the first time in the appellant’s reply and repeated in his oral submissions that there is a requirement for – in the reply it was said to be unlawfulness and I think that has been refined now to accord with part of the words in section 5 “without lawful . . . excuse”. There is no textual requirement for that.

The words “without lawful . . . excuse” convey the absence of a positive right and when looked at in the text of section 5 it is quite clear, in my respectful submission, that the reference to “without lawful cause or excuse” applies to all the factors detailed before an act done recklessly or wantonly. That was the reasoning of Justice Hunt that my learned friend referred to at page 472B in his Honour’s judgment and, in my respectful submission, that is quite correct.

NETTLE J: So that qualification does not apply to the “recklessly or wantonly” section of the definition?

MR BABB: No, it does not. The unlawfulness applies to everything that is in the initial parts of the section and recklessly and wantonly stand alone after that requirement for lawful cause and excuse. Now, in any event, in this case the act done was done unlawfully and I go on to set out in the outline of oral submissions the requirements of section 13 of the Public Health Act that there be informed consent before someone engages in the inherently risky exercise of sexual intercourse with the possibility of communicating a transmissible disease.

That informed consent is the same informed consent that was picked up in relation to the case of Dica in the UK and by the appeal court in the case of Neal (2011) 32 VR 454 in relation to reckless conduct endangering a person with infection from HIV and, in my submission, quite correctly as held in the Victorian authority of Neal could be a defence in relation to the reckless infliction of HIV but not a defence in relation to the intentional infliction of HIV.

Moving on to the two grounds of appeal - in my submission the natural and ordinary meaning of the word “inflicts” is to impose something that must be borne or suffered or to impose a thing that is unwelcome. In my submission there is only one distinction between the word “cause” and the word “inflict” and that is the distinction picked up on in the English authorities. “Cause” is a neutral meaning. It can cause both a positive and a negative thing to happen. “Inflict” has a negative connotation. You are always - - -

KIEFEL CJ: This is Lord Hope’s approach?

MR BABB: It is. In my respectful submission, that is the correct approach. That is borne out by the text of the legislation in New South Wales as it existed in 1900 in that the same Act referred to inflicting harm by poison. This contains – the infliction of harm by poison contains neither force being applied violently to the body of the person, nor necessarily an immediate connection between a violent act and the onset of its consequences.

BELL J: But in Clarence there was some consideration of the administration of poison provision of the 1861 Act and my recollection is it was in the same terms.

MR BABB: It was. It was not substantially the same terms. In my submission, Justice Hawkins’ consideration, which is the correct one, and he draws on this very example to say the term “inflict” must mean to cause by any means because you cannot otherwise reconcile this section that refers to administering a poison inflicting harm on a person.

BELL J: I appreciate that was the dissentient’s view but it remains that the majority in Clarence were mindful of the like provision and considered that inflicting grievous bodily harm did not embrace the administration of poison, albeit the word “inflict” was used in the provision that dealt with that particular harm.

MR BABB: That really highlights why the later courts in the United Kingdom have decided that Clarence was quite clearly wrong. There the majority, various judgments, and there are different approaches taken by those in the majority but their reasoning is very much influenced by the irrevocable privilege in relation to sexual intercourse of a husband.

BELL J: I think a strand in the reasoning of the majority was certainly to accept the notion of the wife’s irrevocable consent but nonetheless to accept that this did not involve the lawfulness of the husband imposing the exercise of his marital right when he knew that he had gonorrhoea and an acceptance that it was open to the wife to refuse the marital privilege in those circumstances and that under canon law she was entitled to - it was a ground of cruelty to be subjected to intercourse by an infected husband and that was sufficient to make the conduct relevantly unlawful.

So that interesting as some of that discussion in Clarence is, the majority, including, when one looks at it, a judge of the eminence of Sir James Fitzjames Stephen, with whom a number of other members of the court concurred, concluded that what was needed was the infliction of a blow or the like, some immediate act as distinct from conduct akin to administering poison. It was not a question of whether or not there was irrevocable consent to intercourse.

MR BABB: In that regard, in my submission, their reasoning cannot sit with the poisoning provision which refers to inflicting harm via a poison and it really shows that their reasoning was not consistent with the intention of the legislature at the time of enacting both those sections.

KIEFEL CJ: But did not Justice Stephen in Clarence refer to poisoning as not being an assault? Was that not the relevance of poisoning?

MR BABB: I will have to go to that.

KIEFEL CJ: Page 42.

MR BABB: Thank you, your Honour.

KIEFEL CJ: (1888) 22 QBD at 42, towards the bottom of the page.

MR BABB: Thank you.

KIEFEL CJ:

I think that the act of infection is not an assault at all, for the reasons already given. Infection is a kind of poisoning. It is the application of animal poison, and poisoning, as already shewn, is not an assault.

BELL J: Earlier on page 41, he said:

The one act differs from the other in the immediate and necessary connection between a cut or a blow and the wound or harm inflicted, and the uncertain and delayed operation of the act by which infection is communicated -

in that context.

MR BABB: In that regard, my submission is that interpreting the natural meaning of the word “inflict” there does not need to be an assault and that referring to poisoning not being an assault does not assist in this Court’s assessment of the true meaning of the word.

BELL J: But the circumstance that the 1861 Act made provision for liability to attach to the infliction of grievous bodily harm and then separately dealt with liability for the infliction of harm occasioned by poison might suggest the rightness of the analysis of the majority, surely.

MR BABB: Except that the infliction of a harm by poison did not have to result in grievous bodily harm which explains - - -

BELL J: I see, yes, I understand.

MR BABB: - - - the distinction there, your Honour. Importantly, the sections are different to the textual provisions in relation to inflict. The provision in New South Wales in 1900, and from that time on, refer to the infliction of grievous bodily harm “by any means”, and those words indicate a broad construction of the word “inflicts” was intended. That addition of “by any means” does not appear in the statute that was considered in Clarence, and your Honours will see that in our – I have extracted the relevant provision at paragraph 16 in the respondent’s written submissions.

So the UK provision does not say “by any means” and, similarly, in Salisbury at paragraph 19 of the respondent’s written submissions, the Victorian provision does not refer to “by any means”. So it does indicate a broad construction of the word “inflicts”, a broader construction than in the section considered in Clarence which is very important when considering whether there is any binding precedent in the authority of Clarence.

KIEFEL CJ: A matter which seems to have weighed with Justice Stephen in Clarence was that there is no general principle that the communication even intentionally of infectious diseases should give rise to a felony and as part of the reasons he thought that that was the case, was that it might be hard to discern whether an infection arose from that one party or from another source, and he was referring to diseases such as plague and smallpox. He said they are so common - we will have so many punishments for something that is so common. I mean, the focus there was in another time in relation to diseases which were common and which were not controlled, as they are now.

MR BABB: And also part of the reasoning was the difficulty in determining who transmitted the disease, whereas that - - -

KIEFEL CJ: Exactly. That is the first reason he gives.

MR BABB: Yes, whereas that is not an issue that – or it is an issue that was resolved in this case.

KIEFEL CJ: As you have discussed earlier, the notion about the act taking place in the context of marriage was something that Lord Justice Judge took up in R v Dica [2004] EWCA Crim 1103; [2004] QB 1257 at 1262. It was his view that this notion of consent which permeated the reasoning of the majority and he considered it was fundamental to the outcome in relation to not only the section 47 offence, but the section 20 offence. It is always a difficult thing looking at older authority to actually discern whether that is the case. It is probably not the most important point in this particular – in your argument, I suggest.

MR BABB: No, it is not. So really it is a question of – in my submission, Clarence is not binding authority. There is a Queens Bench Division case, not a Privy Council case - - -

BELL J: It is a pretty significant Queens Bench decision.

MR BABB: I accept that - - -

BELL J: They sat 13 judges, some of very great eminence.

MR BABB: I accept that, your Honour. In my submission, though, it is a case where the dissenting decision of Justice Hawkins had some real substance to it and it is really the thinking that was endorsed by the subsequent UK court in deciding to find it wrong.

BELL J: In Dica there is reference to the process of erosion is complete in relation to Clarence and that does rather lend support to this view that, whatever authority Clarence might have held in 1888, in some way at some point between 1888 and 2004, it ceased to have that authority because the words of the statute came to be understood differently.

MR BABB: Yes.

KIEFEL CJ: Another view might be that Lord Justice Judge – this is at pages 1264 and 1265 – was referring to the commencement of a process starting with the decision in Wilson [1984] AC 242 where it was held that there could be a conviction under section 20, notwithstanding the absence of an assault, and he says that that view was expressed by Justice Hawkins in dissent and that view has been vindicated. Then Lord Justice Judge goes on to say that the decision in Wilson:

Undermined, indeed destroyed, one of the foundations of the reasoning of the majority in Clarence - - -

That “process has continued”, and refers to Chan-Fook and Ireland and then says Ireland has confirmed it, and I think the erosion is really that process by the various decisions held rather than by reference to the meaning to be given to the word “inflict”.

MR BABB: Yes, and there certainly - before Dica, the analysis, for example, that in Ireland and the analysis of the meaning of “inflict” -and this is at page 164, R v Ireland [1997] UKHL 34; [1998] AC 147, starting at E:

The question is whether there is any difference in meaning, in this context, between the word “cause” and the word “inflict.” -

and the analysis that continues on in that –

for all practical purposes there is, in my opinion, no difference - - -

BELL J: In Ireland one gets this approach to the statutory construction involving the concept that the statute is always speaking. One comes back, in Dica at paragraph 59 to the statement that:

The effect of this judgment in relation to section 20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse . . . In this context, Clarence 22 QBD 233 has no continuing relevance.

So, there does seem to be some element of tension, depending upon the approach that one takes in terms of construction.

MR BABB: There was an element of tension even in the majority decision in Clarence in that they had to deal with, the case that Justice Edelman referred to, was it Halliday, the locking of the doors, switching off of the lights, no - - -

EDELMAN J: I think it was Martin. It was Martin, I think.

MR BABB: Martin, I beg your pardon. No assault, a delay in the connection between the act done and the harm occasioned so that the tension was there in the initial - - -

BELL J: Yes.

MR BABB: - - - decision. Justice Stephen focused his decision completely on assault and Justice Wills that my learned friend tries to highlight as being the majority decision - it was not the majority decision. There were a number of different lines of thinking within the majority. Justice Wills - - -

BELL J: I think there were six members of the court were at one in agreeing with the judgment of Justice Stephen, as I recollect it.

MR BABB: Yes, yes. I worked through it and it was six or seven; some of them agreed with both Justice Stephen and Justice Wills and - - -

BELL J: Yes.

MR BABB: - - - so it made it hard to know who they were agreeing with in relation to that distinction. So that is relevant in taking into account whether it was binding authority in 1900 in New South Wales in relation to a section that changes the wording by adding in “inflicts by any means”.

EDELMAN J: In circumstances where the decision had itself been criticised and contained strong dissents.

MR BABB: Exactly, that is my submission in relation to - - -

EDELMAN J: On the assault point, as I understand it, your submission is twofold. You say, first of all, that there is no textual basis for importing a requirement of assault but, secondly, that the directness notion or immediacy notion that was, at least at the time, caught up in the notion of assault would still include circumstances such as the transmission of a communicable disease in the same way as in cases like Martin and Halliday. There is a delay.

MR BABB: Exactly, there is a connection both factual and physical in relation to the transmission of the disease. There was some interesting discussion with my learned friend about is the grievous bodily harm – well, the infliction of grievous bodily harm, does it crystallise at the time that the disease is communicated and that is an interesting question. That is actually the question that concerned the New South Wales legislature at the time that they passed section 36, not some concern about whether an assault was required but concern about - in the context of people presenting syringes with blood in them at the time of robbery. If someone was injected with blood but had not started to display symptoms, whether the charge of intentionally inflicting - - -

KIEFEL CJ: Does that appear in the extrinsic materials – could you take us to it?

MR BABB: It is, yes, I will take your Honours to that. So, if your Honours go to the second reading speech to the Crimes (Injuries) Amendment Bill, Legislative Council, 4 November 1990 at 11737, the Honourable E.P. Pickering demonstrates the context in which the enactment was made in the opening line of the speech. He there says:

This bill arises out of community concern following a new and disturbing form of activity. There have been a series of robberies carried out recently by bandits armed with syringes that they have claimed contained blood infected with the AIDS virus.

So that was the context. There were two amendments made by the 1990 Act. The first is described partway down that first paragraph. The first was an amendment to the year and day rule, to take into account the fact that the victim could die of AIDS many years after the intentional infliction of the virus. The second is over the page, your Honours, and it is the start of the first full paragraph over the page:

I now turn to the second important amendment –

and I will let your Honours read it. Your Honours can see what was in the mind of the legislature. It was not a concern about whether an assault or an immediate application of force – I know that there has been an eliding of the stand taken in the written submissions to the position now being argued about the proximity argument but it was this – the fact that your symptoms would not have developed and shown serious bodily harm immediately upon being injected with the virus and this was a way to ensure, remove any doubt about that question and ensure that charges could be brought immediately in relation to someone inflicted with the HIV virus.

Your Honours, unless I can assist you further in relation to ground 1, they are my submissions. Actually, I am not true to my word. Could I just make one further point and that is in relation to the point, there is an annexure to our written submissions that puts in the address of defence counsel at trial. There should be three pages. It was dealing with a point raised by my learned friend in his written submissions, this raising of whether it was a real or a remote possibility. Do your Honours have the three pages from the defence counsel’s address? I have extra copies in the event that they are not - we filed them at the same time that we filed our written submissions.

KIEFEL CJ: Perhaps you could pass up a couple of copies.

MR BABB: If I could take your Honours to the last page first – and I put this material on to remove any suggestion in the appellant’s written submissions that the fanciful or remote possibility could be sufficient and what was the situation in this case. At the end of the second paragraph - this is defence counsel’s closing address to the jury:

Michael Aubrey has told you that he accepts he acted within the framework of what constitutes recklessness.

He’s accepted that, but with respect to count 2 he says to you, look, I did act recklessly but I didn’t infect him.

Much forensic use was made of that concession. If you go to the first page, your Honours, at about line 31:

One thing about this evidence of Michael Aubrey though, he accepted that when he had unprotected anal intercourse with GB he was aware that there was a possibility that GB could have been infected, and that is a major concession that he made in the witness box.

If you’re going to lie you might think he’d be lying about something big. This is something big. He told the truth.

That really shows the context of this case. There was just no issue about it as raised in my learned friend’s written submissions going to count 2. Your Honours, the decision in Coleman in my submission is correct. In my submission, the accused must subjectively foresee the possibility rather than the probability of harm within the meaning of section 5 of the Crimes Act, and so holding Coleman drew upon the established authorities in the United Kingdom.

Concerning the meaning of the word “malice” my learned friend indicated that he will come back and give a list of authorities that stood for the proposition that recklessness in offences other than murder required foresight of the likelihood. There is, in my submission, no authority in relation to the UK authorities for that proposition. Cunningham refers to foresight that grievous bodily harm might be inflicted.

Lord Diplock in Mowatt [1967] EWCA Crim 1; [1968] 1 QB 421, specifically referred to the possibility of harm being inflicted. In R v G they referred to a risk of grievous bodily harm and in this Court in Zaburoni referred to the definition of recklessness as a foresight of the risk. In my submission, they are all principles that go to foresight of the possibility of harm, not the probability or the likelihood of harm. We agree with my learned friend that a fanciful and remote possibility will not be sufficient. Justice Bell correctly summarised what is found at paragraphs 43 and 44 in R v Miller.

KIEFEL CJ: Mr Babb, can I just take you back to the counsel’s address that you have attached to your submissions.

MR BABB: Yes.

KIEFEL CJ: Was it drawn to the attention of the Court on the application for special leave?

MR BABB: I do not believe so, your Honour, no.

KIEFEL CJ: Are you suggesting that special leave on that ground should be revoked on account of this?

MR BABB: I leave that to the Court, your Honour. It is before the Court now and your Honours – I will leave it there, for you to decide.

KIEFEL CJ: Thank you.

MR BABB: Your Honours, R v Crabbe is a decision that concerned the offence of common law murder and neither the ratio nor the reasoning extended to offences other than murder. An analysis of the reasoning shows that there were three drivers for that decision. First, Stephen’s Digest states that you require a foresight of the probability in relation to murder. Secondly, there was an analysis of cases where there was – of the High Court where there was an inconsistency of views in relation to whether it was “possibility” or “probability”. None of those cases dealt with anything but murder. Thirdly, moral blameworthiness, and that was fleshed out in the discussion with my learned friend.

The court in Crabbe were at pains to focus on the connection between the intention to kill or do grievous bodily harm and the equivalence or near equivalence in moral blameworthiness of foresight of the probability of death. So it is a case that can be kept to its own area – that is, murder. The textual differences and contextual differences between section 18 and section 5 that give an extended definition of “maliciously” support the fact that the word “reckless”, even though it appears both in section 18 - appears in different contexts and would have different meanings.

That is supported, as the discussion demonstrated with my learned friend, that “recklessness” does have different contextual meanings, quite clearly, because the High Court has in relation to two uses of the word “recklessness” – one in relation to section 61R of the New South Wales Act in Banditt and one in relation to section 18 – determined that one refers to “probability” and one refers to “possibility”.

My learned friend attempted to suggest that Banditt stood for a proposition that was a blindness - not even contemplating the risks. That is not the factual scenario of the case of Banditt. In fact, in Banditt the jury were clearly directed that if the accused foresaw the possibility that the complainant was not consenting and went ahead and acted he would be reckless under the Act and therefore she would be deemed not to have been consenting. So it really stood for the exact proposition here – that is, that “possibility” in that context was used.

The phrase “reckless indifference to human life” in section 18 has a different historical context to the phrase “act done recklessly” in section 5, then the common law history in relation to “act done recklessly” I have, in a sense, been through that in discussing Cunningham, Mowatt and the other authorities. The text and history of the definition of “maliciously” shows that it is an expansive definition, it related to both acts done maliciously and beyond acts done maliciously went on to give an expansive definition which also, in my respectful submission, supports a finding that relates to foresight of the possibility of harm.

BELL J: What do you say about the Victorian decision of Campbell [1997] 2VR 585?

MR BABB: Your Honour, interestingly, until the decision of Campbell, the Victorians were directing juries that recklessness related to foresight of possibility. In that decision it was decided that deference should be paid to the spirit of Crabbe and that the direction should be foresight of probability. I have taken your Honours through, in some detail, why Crabbe does not stand for the proposition that, for offences other than murder, foresight of the probability of harm is the correct direction. So I say that the analysis was not wrong.

Of course, in Victoria it is an overly cautious direction and beneficial to an accused person. But it is not correct, your Honour, because it was relying Crabbe not being through - why Crabbe does not apply to offences other than murder. One point that I am reminded of is that, of course, in

relation to Crabbe, there is an analysis within the context of murder. The reckless indifference to human life is in the context of whether – what “reckless” means there in the context of convicting someone of murder. The analysis was that the blameworthiness should be at least as close as possible to intentionally inflicting grievous bodily harm or intending to cause death.

That is a different sort of analysis and thinking in relation to the two sections of the Crimes Act that deal with the infliction of grievous bodily harm, one in section 33 that deals with the intentional infliction, by any means, of grievous bodily harm and the other offence, with a much lesser maximum penalty – that is seven years compared to 25 years – that deals with the malicious or reckless infliction of grievous bodily harm.

Interestingly, at the time that the 1990 Act – the 1900 Act was created, the difference was even greater in that it was life – sorry. In our written submissions we footnote the fact that in an earlier provision the disparity was even greater in that it was the difference between life imprisonment for intentionally inflicting grievous bodily harm and five years’ imprisonment for maliciously inflicting it. They are my submissions.

KIEFEL CJ: Yes, thank you. Any reply, Mr James?

MR JAMES: Might I deal with the matter that my friend raised alleging – concerning the grant of special leave.

KIEFEL CJ: Yes.

MR JAMES: If your Honours go to the appeal book page 185 in the judgment of the Court of Criminal Appeal, being the judgment of Justice Fagan with which the court agreed - at paragraph 72 perhaps I should commence - his Honour had prepared written directions and discussed them with counsel beforehand as to the ambit of the appropriate term legal concepts including “recklessness”. Counsel did not take issue with his Honour but the matter was raised. The concession was made in the context of his Honour having concluded the appropriate direction based on the authorities - - -

KIEFEL CJ: I am sorry, are you reading from the judgment?

MR JAMES: No, I am not, I am drawing your Honours’ attention to those paragraphs and pointing out that counsel conceded on the basis that his Honour had, in effect, ruled and in the earlier discussion that he would apply the concept of recklessness by advertence to a possibility and - - -

KIEFEL CJ: That means the issue was never raised at the trial.

MR JAMES: The issue was raised – sorry, the issue was never otherwise raised at trial. Rule 4 was considered and the crucial nature of the direction was the basis on which the Court of Criminal Appeal had granted leave to appeal on that ground and had dealt with the matter on that ground and it was before this Court on the application for special leave on that basis.

KIEFEL CJ: I see.

MR JAMES: It was not a question that it was not drawn to the Court’s attention on the grant of special leave.

KIEFEL CJ: Yes, thank you.

MR JAMES: Your Honours, very quickly in reply, if I might. The significance of the unlawfulness is to go to this question of consent as having the effect of undermining the judgment of the majority – or eroding the judgment of the majority in Clarence. It is only in relation to that matter that it arises, but it has some significance when interpreting section 5 overall, because if we are dealing with recklessly and wantonly without otherwise it being unlawful, we are dealing with a very, very wide species of activity.

It is not to the point that it might be unlawful on some act which may have it punishable by a fine or summary prosecution or something to that effect. It is dealing with it in the context of malice or, if not done in malice, done in a way which is contemplated by the substitution for common law malice of other ingredients or by the extension of common law malice to some extent.

We do not contend that section 5 was not intended to substitute for some aspects of the difficult and unclear common law concept of malice statutory ingredients which may have had the effect of extending to some extent the application of the term “maliciously” to things that it would not have adhered to at common law. The question is not that. The question is how far did it go, and that is why we have drawn attention to the unlawfulness.

The suggestion that the Crimes Act uses the terms “cause” and “inflict” indistinguishably and without any rational difference is, in our submission, not borne out on an examination of the Act. Indeed, the fact that different terms are used may arise from some historical consideration when translating other legislation into that Act. But it was not simply a consolidation Act and, indeed, the Act of 1883 was not simply a consolidation Act; it was intended to amend and consolidate with a view to producing one statute to embrace all of these offences against the person of indictable nature.

BELL J: My recollection is that in the commentary, Greaves said one did not have regard to the differing use of terms because the Act represented a pulling together of statutory provisions of some age from a variety of sources. So I am not sure that that - - -

MR JAMES: Not that one did not have regard to it, but that the regard that you might have to that difference had to take that into consideration. That is a different thing if we are dealing with the concept of speaking now, and where something has sat with a defined and established meaning for a lengthy period of time, it is a different thing when one comes to dealing with the concept as well.

The “by any means” adds little to it, except to indicate that apparently it is an extension of the concept of “inflict” and, if it is an extension of the concept of “inflict”, we come back to the core concept which exists in section 35 without that extension of meaning.

KEANE J: To the extent that “inflict”, at least in the judgments of some of the judges in Clarence, seemed to take the view that “inflict” involves striking - - -

MR JAMES: They were ejusdem generis.

KEANE J: - - - by any means, certainly puts that out, does it not? There cannot be any doubt that one can inflict without striking.

MR JAMES: Yes. That was ejusdem generis with wound and beat and so forth. But the extension of “by any means” again does not do away with the core concept of “inflict” and, in our submission, does not turn “inflict” into “cause”.

KEANE J: Well, it does mean that one can inflict without striking, without an external battery.

MR JAMES: Yes.

KEANE J: Without a physical battery, I should say.

MR JAMES: Yes, I have to accept that; or perhaps with an indirect battery. Battery seems to have in the law moved a bit too since then, so that you can get, for instance, blowing on people as turning into an assault/battery of the kind that can, by your blowing the air on them, make you liable, which would be indirect under the thinking in those days. We accept that there are developments and changes. Certainly, the attitude the law takes to such things as, for instance, turning off the lights and creating an imminent state of fear of physical harm in a theatre of persons would have been assault in that sense.

But, as I have said before much earlier, the concepts of assault and battery do seem to have been subject to some elision and different approaches at different times. It is not so much that we are concerned with assault. The consent matter relates particularly to that, but the “inflict” and how that relates to the eventual conclusion of the process.

My friend put that Clarence is not binding and would not have been considered as binding in New South Wales in 1900. With respect, we do not accept that. The status of English decisions, particularly the Court for Crown Cases Reserved, with judges of the eminence of these sitting on a common law proposition or a matter of statutory construction common, or at least sufficiently common, to the English statute, and in Australia, was such that the authority of that decision in 1900 in New South Wales was to be undoubted.

BELL J: The first edition of Watson and Purnell does not suggest any doubt that it applied.

MR JAMES: Yes, and, indeed, if one goes back to the view taken of the decisions of the Court of Queen’s Bench, even single judges, they had immense significance. I am deliberately avoiding the languages of binding, persuasive, authoritative and so forth, but such as to say that if that is what they said we would adopt that as ours and we would do so unless there was legislation to the contrary.

My friend referred to the second reading speeches in relation to section 36 and timing. Section 36 did have as the example the infliction of HIV by one mode of communication, and the prospect that it might not come to fruition in terms of killing somebody within a year and a day and the year and a day rule was abolished.

That is not to say that the second reading speech should be substituted for a reading of the provision itself and, in particular, what was not done. It was thought necessary to provide for any other means to embrace the syringe and to use the syringe as a mode of communication. It was plainly not intended to change what was thought to be the established meaning of section 35 and that which it had had in 1900 and was still considered to have. In that sense, the second reading speeches, we say, assert and assist our construction.

Your Honours, turning to the second ground, in relation to these concepts of likelihood, risk, possibility and probability; in Zaburoni, your Honour Justice Keane disclaimed them as having relevance to the concept of direct intention or intention, but your Honours will find them referred to and, indeed, we refer in our submission to the use of this language at paragraph 55 and onwards through to paragraph 60 and paragraph 18 of our submissions in reply.

It is not a matter of language with which so much we are concerned. It is the concept of what is a possibility and the concept of probability. We have disclaimed - notwithstanding what my friend said - we have disclaimed any reliance on something hypothetical, unrealistic, whimsical and so forth, but for the purposes of directing a jury, it is essential that the concept of the willingness to run the unwarranted risk leading to the consequential infliction of such a serious result, should be communicated if the culpability of the conduct is to be met.

We say the way to do that is to consider the proper construction, as their Honours did in the majority in Crabbe - I should say in Crabbe and in Clarence. It is not a matter of putting out of mind how serious the consequence might be for the accused or how seriously the accused contemplated the consequence might be for another, that is to be taken into account, but simply to talk about possibility is to leave an unqualified, almost minimal, mental state as attracting a very severe culpability.

It is exactly the same as with murder in that the grievous bodily harm is in New South Wales and at common law an act - or the occasioning of grievous bodily harm is an act, the carrying out of which attracts that sort of serious consequence. There is no need to read it down in one case and maintain it as probability in another and that underlay the thinking of this Court in Crabbe. They are the submissions in reply we make, if your Honour pleases.

KIEFEL CJ: Yes, thank you. The Court will reserve its decision in this matter and adjourns until 10.15 am on Tuesday, 7 February in Canberra.

AT 12.25 PM THE MATTER WAS ADJOURNED