LAWS1006 CASE ANALYSIS AND COMMENTARY ASSIGNMENT

1. Case note
Court: High Court of Australia

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

Material facts

Godfrey Zaburoni (appellant) transmitted the human immunodeficiency virus (HIV)

to the complainant.1

1. Appellant was medically informed of:

a. His HIV positive status.2

b. HIV’s sexually infectious nature.3

2. Unprotected sexual intercourse occurred 2-3 times per week.4

3. Lies

a. The appellant denied being HIV positive until after the complainant’s

possible diagnosis of HIV.5

b. The appellant denied, to the police, frequently having unprotected sex

and being advised to inform sexual partners of his status.6

1
Zaburoni v The Queen (2016) 256 CLR 482, 492[28] (‘Zaburoni’).
2
Zaburoni, 492[21].
3
Ibid.
4
Zaburoni, 493[24].
5
Zaburoni, 493[28].
6
Zaburoni, 494[30].

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Procedural history

Court Judge(s) Role Orders Reference

District Court Judge Dick Zaburoni convicted under s 317(b) 9.5 years Zaburoni, 487[3].

of Queensland of the Criminal Code Act 1899 imprisonment

(Qld) (‘the Code’).

Supreme Court Gotterson JJA Zaburoni appealed against his Appeal Zaburoni, 487[4].

of Queensland Morrison JJA conviction – dismissed

Applegarth J Court of Appeal.

(dissenting)

High Court of Kiefel, Bell, Granted special leave to appeal Zaburoni, 488[5].

Australia Keane, Gageler, from the orders of the Court of –

and Nettle JJ Appeal.

Legal issues

Under s 317(b) of the Code:

1. What constitutes proof of intention?7

2. Does the available evidence establish the appellant’s requisite intent to

transmit HIV to the complainant beyond reasonable doubt?8

7
Zaburoni, 488[6].
8
Zaburoni, 491[19].

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Ratio decidendi and reasoning

Ratio decidendi (according to the majority):

1. Under the Code:

Where proof of the intention to produce a particular result is made an

element of liability for an offence, the prosecution is required to establish

that the accused meant to produce that result by their conduct.9

Reasoning

The majority distinguished intention under s 317(b) from intention

in common law murder, which was analysed in R v Crabbe10 and

consequently used for the judgement in R v Reid11. Subsequently,

the majority accepts the definition of ‘intent’ in Willmot v R:

“directing of the mind, having a purpose or design” 12. Thus, the

appellant must be proved to have the purpose of transmission – an

actual, subjective, intention.

2. In law:

Foresight of risk of harm (recklessness) is distinct from the intention to

produce that harm.13

9
Zaburoni, 490[14].
10
(1985) 156 CLR 464 (‘Crabbe’).
11
(2007) 1 Qd R 64, 93[93] (‘Reid’).
12
(1985) 2 Qd R 413 (‘Willmot’).
13
Zaburoni, 489[10].

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Reasoning

Lies Reception of medical advice

Supports the appellant’s foresight of Supports the appellant’s awareness of

risk.14 his HIV status and the risk of

transmission.16

Foresight of probable transmission Frequency of conduct

Does not establish intent, nor was Hypothesis that frequent conduct was

perceived probability solely for gratification was not

certain/inevitable.15 excluded.17

Recklessness Intent

Evidence establishes at most Evidence does not infer intent19

recklessness.18 – as per Applegarth J20.

Ratio Decidendi

Therefore, recklessness is distinct from intent.

14
Zaburoni, 497[41].
15
Zaburoni, 490[14]; at 504[69].
16
Zaburoni, 497[41].
17
Zaburoni, 498[44].
18
Zaburoni, 503[63].
19
Zaburoni, 497[42].
20
R v Zaburoni (2014) 239 A Crim R 505.

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Obiter dicta

Nettle J:

Foresight of the inevitability/certainty of a consequence resulting from the

accused’s actions establishes intent of the consequence.21

Results/orders

The evidence was insufficient to prove, beyond reasonable doubt, the appellant

possessed the requisite intent under s 317(b) of the Code.

1. Appeal allowed. 22

2. Substitute the verdict found by the jury with guilt for the alternative offence,

with a sentence of equal or lesser severity.23

3. Remit proceedings to the District Court of Queensland for sentence24.

21
Zaburoni, 504[66].
22
Zaburoni, 500[51].
23
Ibid.
24
Ibid.

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2. Analysis

Statute should be interpreted according to its intention.25 The literal approach

determines that intention “by an examination of the language used in the natural

sense”26. The court abides by the Act’s plain meaning in their judgement.27 Thereby,

interpretation makes statute more applicable to particular material facts.

Statute Interpretation Applicable to case

The majority interpreted several phrases in s 317(b) and 320 using this approach.

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

The majority stated that HIV “is a serious disease”28 and transmitting it is “to

occasion grievous bodily harm”29, as per definitions in s 1. The court did not discuss

whether HIV fit under these definitions, implying the use of the natural meanings of

these definitions, and thus the literal approach, to establish that HIV is a ‘serious

disease’ and ‘grievous bodily harm’.

2. ‘intent’

The court accepts Connolly J’s definition of ‘intent’ as the “directing of the mind,

having a purpose or design”30. This definition’s origin, The Shorter Oxford English

Dictionary, is evidential of the court’s literal interpretation of this word.

25
Acts Interpretation Act 1901 (Cth) s 15AA.
26
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161-2.
27
Higgon v O’Dea (1962) WAR 140.
28
Zaburoni, 487[1].
29
Zaburoni, 487[2].
30
Willmot, 418.

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This definition of ‘intent’ is not sufficiently specific to be applied to this case’s

material facts – a clear “mismatch between the simplicity of language and the

complexity of an idea”31.

Subsequently, the court utilises precedent to:

i) Support their literal interpretation

ii) Improve the definition’s applicability to this case

Literal approach Precedent Applicable statute

Firstly, the court opposes Conolly J’s statement in Willmot32, that awareness of risk

infers intent, on the basis that it:

1. Contradicts his earlier recognition of the natural definition of ‘intent’33

2. Applies to common law murder34

The court accepts Keane JA’s rejection of foreseeability, likelihood, and probability

as relevant to proof of intention, in Reid35, establishing that the appellant must be

proved to have meant to transmit HIV by his conduct, as per Knight v R36 and Cutter v

R37.

31
Murray Gleeson, ‘Statutory Interpretation’ (Speech delivered at The Justice Hill Memorial Lecture,
Dolton House, 11 March 2009).
32
Willmot, 419.
33
Zaburoni, 488[10].
34
Ibid 488[12].
35
Reid, 83[67].
36
(1992) 175 CLR 495, 502-503
37
(1997) 71 ALJR 638, 647

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Secondly, the court clarifies that ‘purpose’ is distinct from ‘motive’ and ‘desire’.38 By

s 23(3) of the Code, ‘motive’ is the reason behind the purpose or intention.39 The

court refers to Willmot to establish that one may intend a certain outcome without

desiring it.40 Therefore, the appellant’s desires or motives to transmit HIV are

irrelevant to his intent.

In contrast, Nettle J employs the golden rule, which is “applied to avoid … patently

unintended or absurd results”41. While he agrees that conviction of an offence under s

317(b) requires proof beyond reasonable doubt of intent to transmit the disease, he

states that if the accused has unprotected sex with the victim despite foreseeing

inevitable transmission of a serious disease, it logically follows that the accused

intended to transmit the disease.42 To avoid absurd results, Nettle J states that

foresight of inevitability of a consequence can establish intent to produce that

consequence.43

38
Zaburoni, 490[16].
39
Zaburoni, 490[17].
40
Zaburoni, 491[18].
41
Footscray City College v Ruzicka (2007) 16 VR 498, 505.
42
Zaburoni, 504[67].
43
Zaburoni, 504[68].

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3. Commentary

Guilt must be proven beyond reasonable doubt.44 When an inference of innocence

cannot be disproven, guilt cannot be established.45

Contrary to Nettle J46, I believe this case exhibits such a situation. Therefore, I agree

the evidence does not support a conviction.

Unlike the majority, I interpret Conolly J’s definition of ‘intent’ as “the directing of

the mind, towards a purpose or design”47. Where one kills another motivated by the

sensation of killing, the purpose is to achieve that sensation, while every preceding

action is intended.48 It would be absurd to say that because the pull of the trigger was

not the purpose, it was unintended.

Action 1

Action 2

PURPOSE

44
Criminal Code Act 1995 (Cth) s 13.2.
45
Ibid s 13.1.
46
Zaburoni, 505[71].
47
Zaburoni, 488[8].
48
Stapleton v The Queen (1952) 86 CLR 358, 365.

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We can safely regard sexual pleasure as the appellant’s purpose and unprotected sex

as the preceding action to fulfil that purpose49.

Unprotected sex

SEXUAL PLEASURE

We must consider how the available evidence fits within the appellant’s direction of

mind. It is an inevitable inference that the appellant’s lies to the complainant were to

obtain unprotected sex.50

Frequency does not defy description as “mere recklessness”51 as the level of risk in

question is not the actual degree of risk, but the degree perceived by the appellant52.

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

pleasure.53

Finally, the appellant’s lies and reception of medical advice are clearly indicative of

his awareness that risking HIV transmission is necessary to obtain unprotected sex.54

49
Zaburoni, 498[44].
50
Zaburoni, 499[47].
51
Zaburoni, 497[42].
52
Zaburoni, 497[41].
53
Zaburoni, 498[44].
54
Zaburoni, 497[41].

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Lies to complainant

Risk of transmission

Unprotected sex

Frequency

SEXUAL PLEASURE

The appellant’s perceived risk of transmission may or may not be certain. Therefore,

he intended to either risk transmission or transmit.

Accepting Nettle J’s golden rule approach, foresight of inevitability of a consequence

can establish intent to produce that consequence.55 Thus, if the perceived risk of

transmission reaches certainty, intent to risk transmission becomes synonymous with

intent to transmit. If not, they are distinct.

55
Zaburoni, 504[68].

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Hence, overall, intent to risk transmission (recklessness56) and intent to transmit are

two distinct concepts.

Lies to complainant

Risk of transmission Transmission

Unprotected sex

Frequency

SEXUAL PLEASURE

Therefore:

Recklessness ≠ Intent

This ratio decidendi creates one inference of guilt and one of innocence.

56
Zaburoni, 497[42].

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The appellant’s failure to treat/monitor his condition and his frequency of conduct

proves he did not actively attempt to prevent transmission. This infers that he:

1. Believed frequency and treatment do not affect the probability of transmission,

2. Simply did not care whether transmission would occur, or

3. Believed HIV transmission was inevitable and so did not take preventative

measures.

His lies to the police about the frequency of unprotected sex and the fact that

antiretrovirals were prescribed significantly weakens the first inference.

The second inference is likely as he was asymptomatic57 and thus disregarded the

severity of HIV. This inference is irrelevant to the appellant’s perceived probability of

transmission, and thus cannot establish intent.

All available evidence is insufficient in proving the first inference, as they fit within

hypotheses not inferring intent, and thus cannot establish intent.

Therefore, the appellant’s guilt cannot be established beyond reasonable doubt.58 The

existence of doubt within reason means a verdict of guilty is unsafe or unsatisfactory59

and should be overturned60. Hence, the appellant’s sole ground of appeal, that the

majority of the Court of Appeal erred in concluding it was reasonably open to the jury

to find beyond reasonable doubt that the appellant intended to transmit the disease to

the complainant,61 should be accepted. Thus, the evidence does not support a

conviction and the appeal should be allowed.

57
Zaburoni, 498[45].
58
Green v The Queen (1971) 126 CLR 28, 28[4].
59
Chidiac v. The Queen (1991) HCA 4, 451-452 per Dawson J
60
Davies and Cody v. The King (1937) 57 CLR 170, 180; M. v The Queen (1994) 181 CLR 487, [30].
61
Zaburoni, 501[54].

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