Aubrey v R [2015] NSWCCA 323

Aubrey v R [2015] NSWCCA 323

The appeal was dismissed because the earlier decision of the Court in R v Aubrey [2012] NSWCCA 254 had adversely concluded the argument that HIV transmission could not amount to "inflicting" grievous bodily harm; the circumstantial and expert evidence, including evidence of repeated unprotected anal intercourse,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Appeal in the Court of Criminal Appeal
Outcome
Appeal dismissed
Legal Topics
['maliciously Inflicting Grievous Bodily Harm' 'hiv Transmission' 'causation' 'unreasonable Verdict' 'recklessness' 'foresight of Possibility' 'meaning of "inflict"' 'precedent']
['criminal Law' 'criminal Appeals' 'statutory Interpretation'] ['maliciously Inflicting Grievous Bodily Harm' 'hiv Transmission' 'causation' 'unreasonable Verdict' 'recklessness' 'foresight of Possibility' 'meaning of "inflict"' 'precedent']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the earlier decision of the Court in R v Aubrey [2012] NSWCCA 254 foreclosed the argument that transmission of HIV was not an "infliction" of grievous bodily harm within s 35(1)(b) of the Crimes Act 1900 (NSW).' "Whether the jury's verdict was unreasonable because causation of GB's HIV infection by the Appellant was not proved beyond reasonable doubt." 'Whether the trial judge erred by directing the jury that malice/recklessness was satisfied by foresight of the possibility, rather than probability, of some physical harm.']

Ratio Decidendi

The appeal was dismissed because the earlier decision of the Court in R v Aubrey [2012] NSWCCA 254 had adversely concluded the argument that HIV transmission could not amount to "inflicting" grievous bodily harm; the circumstantial and expert evidence, including evidence of repeated unprotected anal intercourse, timing of seroconversion, and exclusion of other suggested transmission routes, made it open to the jury to find beyond reasonable doubt that the Appellant caused GB's HIV infection; and the trial judge correctly directed that recklessness/malice under s 35(1)(b), read with s 5 of the Crimes Act 1900 (NSW), was satisfied by foresight of the possibility of some physical harm.

Court Disposition

Appeal dismissed

Orders

  • ['Leave to appeal granted with respect to all grounds.' 'Appeal dismissed.']