High Court to Hear Queensland HIV Appeal
Friday 15 January 2016 @ 11.13 a.m. | Crime
The Queensland Court of Appeal decision in R v Zaburoni [2014] QCA 77 is set to be heard before the High Court. The case will examine whether evidence that a man had knowledge of his HIV positive status and that HIV can be transmitted via sexual intercourse was enough to prove intention of transmitting the disease to his partner.
Facts
The evidence in the case showed that the defendant had known of his HIV positive condition six years earlier and had the knowledge that it was sexually transmittable. The defendant nevertheless engaged in unprotected sexual intercourse with his partner for a 21 month period while lying to her about his HIV status. He subsequently lied to the police regarding these matters.
Conviction and Appeal
The defendant was convicted for intentionally transmitting the disease in the Queensland Supreme Court. He appealed to the Court of Appeal where the case was also dismissed. Judge Gotterson rejected the contention that the defendant was merely reckless in his conduct and did not have the intention to transmit the disease. He said:
“To my mind, what is of singular significance here is that the unprotected sexual intercourse continued over many months. It was the norm for them. It was open to the jury to reason from this and their own knowledge and experience of human behaviour that whereas one or several acts of unprotected sexual intercourse might be viewed as reckless as to whether infection would be transmitted or not, such acts repeated frequently with the same partner over many months, defied description as mere recklessness as to the risk of transmission.”
In this instance, there was no single moment that could be pinpointed as the time in which the defendant had formed the intention to transmit the disease. Gotterson ruled that regardless of a precise time, intent can be inferred from frequent conduct.
Judge Applegarth, in dissent, ruled that the evidence merely suggested that the defendant was “extremely reckless and callous”. However, Applegarth failed to infer from that an intention to transmit the virus. He said:
“As appalling as his selfish recklessness was, it cannot be equated with a subjective, actual intent to transmit the HIV virus. In the absence of evidence of malice or knowledge of the degree of risk, a subjective intent to inflict the HIV virus was not proven beyond reasonable doubt.”
The matter is now set to appear before the High Court on 9 February 2016.
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