R v Aubrey [2012] NSWCCA 254

R v Aubrey [2012] NSWCCA 254

The offence of maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900 in 2004 did not require an assault or direct application of force; the transmission of HIV by consensual intercourse could constitute the infliction of grievous bodily harm. The stay on Count 2 was not justified as the offence charged was known to the law during the relevant period.

Jurisdiction
Australia
Judgment Date
29 November 2012
Procedural Posture
Crown Appeal Against Order Staying Criminal Proceedings / Appeal From District Court Order Permanently Staying Count 2 of Indictment
Outcome
Appeal allowed
Legal Topics
['malicious Infliction of Grievous Bodily Harm' 'statutory Construction' 'transmission of Serious Disease' "interpretation of 'inflicts' in Crimes Act 1900"]
['criminal Law'] ['malicious Infliction of Grievous Bodily Harm' 'statutory Construction' 'transmission of Serious Disease' "interpretation of 'inflicts' in Crimes Act 1900"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Crown Appeal Against Order Staying Criminal Proceedings / Appeal From District Court Order Permanently Staying Count 2 of Indictment

Legal Issues

  1. 1 ['Whether the infliction of grievous bodily harm under s 35(1)(b) Crimes Act 1900 includes the transmission of a serious disease by consensual sexual intercourse' "Whether the term 'inflicts' requires physical assault" 'Whether a stay of proceedings on Count 2 was appropriate due to uncertainty in the law']

Ratio Decidendi

The offence of maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900 in 2004 did not require an assault or direct application of force; the transmission of HIV by consensual intercourse could constitute the infliction of grievous bodily harm. The stay on Count 2 was not justified as the offence charged was known to the law during the relevant period.

Court Disposition

Appeal allowed

Orders

  • ['Set aside the District Court order of 8 March 2012 staying proceedings on Count 2 of the Indictment dated 7 March 2012.' "Dismiss the respondent's Notice of Motion dated 5 March 2012." "Grant the respondent a certificate under the Suitors' Fund Act 1951, if qualified."]