Unlawfully Transmitting a Serious Disease (HIV): Intent

R v Reid [2007] 1 Qd R 64

In R v Reid,¹ the appellant appealed their conviction of unlawfully transmitting a serious disease (HIV) with intent to do so, contrary to s 317(b) of the Criminal Code Act 1899 (Qld). The appeal focused on the meaning of intent.

COURT: Queensland Court of Appeal (McPherson JA, Keane JA, Chesterman J).

PARTIES: Reid (Appellant), The Queen (Respondent).

PROCEDURAL HISTORY: Appeal from the District Court. Appellant was convicted of intentional transmission of a serious disease (HIV),² pursuant to s 317(b) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’), and sentenced to 10 and a half years’ imprisonment (Robin DCJ).³

FACTS:

Between January and March 2003, the complainant engaged in regular unprotected sex with the appellant. Both agreed of not using a condom.⁴
Complainant asked the appellant of his HIV status prior and was falsely assured he was not HIV-positive; despite knowing he had been diagnosed in 1987 and had not taken medication to control it.⁵
Complainant stated that without the appellant’s assurance, he would not have engaged in sex.⁶ HIV transmission occurred early on in the relationship.⁷
After the relationship ended, the appellant taunted the complainant, saying: “Who’d want you now? You’re HIV positive”.⁸

GROUNDS FOR APPEAL:

The appellant appeals their conviction: (a) The verdict is unreasonable and unsupported by the evidence; (b) The trial judge misdirected the jury on intent; and (c) The trial judge failed to address the absence of motive.⁹ The appellant also seeks appeal against sentence.¹⁰

ISSUES:

Whether the jury, acting reasonably, could have rejected, as a rational inference the possibility of the absence of the intent to infect the complainant with HIV?
Whether the jury was misdirected on “intent” which is an essential element of the offence under s 317 of the Criminal Code?¹¹
Whether the trial judge failed to direct the jury as to the absence of evidence of motive in the Crown case?

RELEVANT LAW:

Criminal Code Act 1899 (Qld) — s 317

Intentional transmission of a serious disease such as HIV (Human Immunodeficiency Virus) is criminalised under s 317 of the Criminal Code which relevantly provided:

317 Acts intended to cause grievous bodily harm and other malicious acts

Any person who, with intent –
…
(b) to … transmit a serious disease to any person …
…
(e)… transmits a serious disease to … any person …
…
is guilty of a crime …¹²

COURT’S REASONING:

Trial evidence — Verdict reasonable?

Keane JA said at [52]:

The appellant contends that there was no evidence of actual ill-will on his part towards the complainant which would provide a rational basis for a conclusion that the appellant was motivated by a subjective desire to transmit the disease to the complainant. That contention is not, however, accurate in two important aspects.¹³

First, evidence of the appellant taunting the complainant [53]:

… [T]here was the complainants evidence of the appellant’s taunting after the complainant had been diagnosed as HIV positive. The complainant’s evidence in this regard was unchallenged and uncontradicted. The jury were entitled to regard the evidence of the appellant’s taunting of the complainant with the fact that the complainant was now HIV positive as providing an insight into the appellant’s state of mind at the time he infected the complainant. The appellant’s taunting of the complainant may have been seen by the jury as evidence of the proverbial love of misery of company. From the appellant’s evident satisfaction that the complainant had been stricken by the same condition with which the appellant was conflicted, the jury were entitled to conclude that the appellant’s conduct had indeed been calculated to achieve that result.¹⁴

Secondly, evidence the appellant knew of HIV prevention measures [54]:

… [T]here was the evidence that the appellant knew that post-exposure prophylaxis might have prevented the complainant becoming infected. There was no suggestion that the appellant alerted the complainant to the desirability of seeking treatment after unprotected sex had occurred. From the facts that the appellant knew that the complainant was at risk, and to avert that risk, the jury could reasonably infer that the appellant actually desired that the complainant should become infected.¹⁵

Keane JA said at [58] that ‘the jury’s verdict cannot be said to have been unreasonable.’¹⁶

Trial judge’s directions — Intent

The appellant’s counsel argued that the jury were misdirected on intent, asserting that conviction required proof the appellant knew unprotected sex made disease transmission “probable” or “likely”.¹⁷

Keane JA explained that this formulation was derived from The Queen v Crabbe¹⁸ where the accused drove a truck into a motel bar, causing multiple deaths.¹⁹ This decision was not concerned to affirm the need for a trial judge to explain to the jury the meaning of intent or intention, but to formulate the mental element of the crime of murder at common law.²⁰ His Honour clarified that s 317 does not require such an approach, and that intent should be left to the jury to decide unless the evidence suggests a need for clarification.²¹ Also Keane JA at [67]:

It is clear that, in relation to the present case, the position is indeed affected by “statutory provision”. The language of the Criminal Code, and in particular s. 317(b), obviates the need for any elaboration of the meaning of “intent” in the Criminal Code by reference to common law concepts of foreseeability, likelihood and probability.²²

Keane JA applied R v Willmot (No. 2),²³ that it was explained by the Court of Criminal Appeal that ‘it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language such as “intent”.’²⁴

McPherson JA, in dissent, did not consider that the jury had been adequately instructed [13]:

It would have been open to a jury, properly directed, to find that the accused wished to pass on his disease to the complainant, or that he realised that he might do so. Either version would have constituted the intent to transmit required in s 317(b). However, to my mind the problem is that the jury were not told that they must, before convicting, be satisfied that the appellant knew that, by having unprotected anal sex with the complainant, it was “probable” or “likely” that the disease would be passed on to him. Without a direction to that effect, I do not consider that the jury were adequately instructed about the meaning of the expression “with intent to transmit” in s 317(b) of the Code.²⁵

Trial judge’s directions — Motive

As to the trial judge’s failure to direct the jury as to the absence of evidence of motive in the Crown case, the appellant’s attempts to rely on De Gruchy v The Queen²⁶ is misconceived, per Keane JA at [76]:

While it is true that the absence of evidence of motive may be relevant to whether an accused acts with a particular intent, it is important to avoid confusion in three respects: first, motive must not be confused with intent; secondly, proof of motive is relevant, but not essential, to proof of intent; and, thirdly, absence of proven motive must not be confused with proven absence of motive.²⁷

Keane JA at [55] cited Cutter v The Queen²⁸ at 648, where ‘considerations of motive must, in any event, be put to one side. Intent must not be confused with motive or desire.’²⁹

DECISION:

The majority of the Court of Appeal dismissed the appeal against the appellant’s conviction of intentionally transmitting a serious disease (HIV) in contravention of s 317(b) of the Criminal Code: Keane JA and Chesterman J (McPherson JA dissenting).

Intent was inferred from the evidence: (1) the appellant’s taunting of the complainant; and (2) the appellant’s failure to inform the complainant of steps that would have reduced the possibility of HIV infection.³⁰

In s 317 of the Criminal Code, the ordinary meaning of “intent” did not require elaboration to the jury under both statutory interpretation and common law; and should be left to a jury to decide, following R v Willmot (No. 2).³¹

Intent must not be confused with motive, and absence of proven motive must not be confused with proven absence of motive: Keane JA at [76].³²

ORDER:

The appeal against conviction was dismissed. The application for leave to appeal against sentence refused.³³

LEGAL IMPACT:

R v Reid [2007] 1 Qd R 64 clarified that criminal liability under section 317(b) of the Criminal Code requires proof of intent to transmit a serious disease (HIV) which should not be confused with motive.³⁴ The meaning of intent does not require elaboration to the jury; it is for the jury to infer the defendant’s intention from their conduct for the duration.³⁵

In the case of Zaburoni v The Queen,³⁶ the High Court clarified that proof of actual intent to transmit HIV required clear evidence beyond mere recklessness.

FOOTNOTES:

R v Reid [2007] 1 Qd R 64 (Court of Appeal) (‘Reid‘). ↩︎
Ibid 69 [2] per McPherson JA: ‘HIV (Human Immunodeficiency Virus) is the serious disease, according to the medical evidence at the trial, leads if untreated to AIDS and to death …’. ↩︎
Criminal Code Act 1899 (Qld) s 317 (‘Criminal Code‘); Reid (n 1) [24], [28]. The Crown also charged Reid, in the alternative, with unlawfully doing grievous bodily harm s 320. As the jury convicted Reid on the first charge, they did not need to consider the alternative count. ↩︎
Reid (n 1) 69 [3]. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid 76 [34]. ↩︎
Ibid 75 [25]. ↩︎
Ibid 75 [26]. ↩︎
Ibid 69 [4]; Criminal Code (n 3). ↩︎
Criminal Code (n 3). ↩︎
Reid (n 1) 78-79 [52]. ↩︎
Ibid 79 [53]. ↩︎
Ibid 79 [54]. ↩︎
Ibid 80 [58]. ↩︎
Ibid 82 [66]. ↩︎
(1985) 156 CLR 464. ↩︎
Reid (n 1) 82 [66]. ↩︎
Ibid 83 [67]. ↩︎
Ibid. ↩︎
Ibid. ↩︎
[1985] 2 Qd R 413. ↩︎
Reid (n 1) 83 [68]. ↩︎
Ibid 72 [13]. ↩︎
[2002] 211 CLR 85, 92–93, 99–102. ↩︎
Reid (n 1) 87 [76]. ↩︎
Cutter v The Queen (1997) 71 ALJR 638, 648. ↩︎
Ibid; Reid (n 1) 79 [55]. ↩︎
Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia (Oxford University Press, 2021) 92. ↩︎
See R v Willmot (No 2) [1985] 2 Qd R 413; Reid (n 1) 83 [68]. ↩︎
Reid (n 1) 87 [76] per Keane JA. ↩︎
See Reid (n 1). ↩︎
Ibid. ↩︎
Ibid. ↩︎
See Zaburoni v The Queen [2016] 256 CLR 482. ↩︎