Court of Appeal (WA)|2004-02-12|Before: Murray J, Steytler J, Wheeler J

Houghton v The Queen [2004] WASCA 20 (12 February 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HOUGHTON -v- THE QUEEN [2004] WASCA 20

Criminal law and procedure - Grievous bodily harm - Sexual intercourse between complainant and HIV positive applicant - Whether damage to cells and immune system of complaint constitutes grievous bodily harm - Sufficiency of directions about expert evidence - Meaning of "unlawfully" in causation of grievous bodily harm - Need to direct on question of a willed act - Need for direction about drawing inferences - Sufficiency of direction about lies as consciousness of guilt - Sufficiency of direction about mistake of fact

BRK v The Queen [2001] WASCA 161

Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115

Campbell v The Queen [1981] WAR 286

Evgeniou v The Queen (1964) 37 ALJR 508

Fletcher v The Queen [1999] WASCA 18

G J Coles & Co Ltd v Goldsworthy [1985] WAR 183

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Huynh v The Queen [1999] WASCA 45

Jackson & Hodgetts v The Queen (1989) 44 A Crim R 320

Leary v The Queen [1975] WAR 133

Morrison v Kiwi Electrix Pty Ltd & Anor [1998] WASCA 203; (1998) 19 WAR 482

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

R v Martin [2002] QCA 443

R v Pullman (1991) 25 NSWLR 89

Royall v The Queen [1991] HCA 27; [1991] 172 CLR 378

Speed v The Queen [2001] WASCA 125

Zecevic v Director of Public Prosecutions Victoria [1987] HCA 26; (1987) 162 CLR 645

1 MURRAY J: On 3 October 2002, the applicant was convicted in the District Court on an indictment charging him that between 1 June 1999 and 30 September 1999 he unlawfully did grievous bodily harm to a young woman. He now seeks leave to appeal against that conviction.

2 It is a most unusual case, the facts of which may be shortly summarised. The applicant made contact with the complainant on the Internet. A meeting was arranged. A physical relationship developed. The applicant however had, for some years, been, to his knowledge, infected by the human immunodeficiency virus - he was HIV positive. The complainant said that during the course of their relationship she and the applicant had consensual, unprotected vaginal and anal intercourse. She said there was ejaculation, but she was not certain that it was inside her. In any event, she became infected with the virus. A Prof French was called to give evidence about that occurrence and what happens to the human body when infection occurs. I shall return to that evidence, but for the moment it is sufficient to say that it was the effect of that infection which was said to constitute the grievous bodily harm.

3 Prior to her relationship with the applicant, the complainant had had two other relationships. Both of her previous boyfriends gave evidence at the trial. The evidence was that neither was infected by the virus.

4 The applicant conceded that he had unprotected vaginal intercourse with the complainant. However, he said that he did not ejaculate inside or near any orifice of the complainant. His evidence was that he was diagnosed with HIV at the beginning of 1990. He accepted that an important aspect of his treatment was counselling by medical practitioners and others about safe sex practices. He said that his understanding was that he ought to avoid passing bodily fluids on to another and he was told that if he did not ejaculate semen into a sexual partner, thereby reducing the bodily fluid exchange, he would not pass the virus on. As a result, following his diagnosis, he maintained an active sexual life, initially with his then wife, who conceived a child, born in October 1993.

5 Despite that, the applicant spoke of having unprotected sex in the belief that it was safe to do so without ejaculation and he wore a condom only when he intended ejaculation would occur. He agreed that he had not told the complainant that he was HIV positive. He said he did not want to "scare her off" and he still believed that the sex practices he had used, apparently without causing any problem with his wife, were effective. He therefore continued them with the complainant.

6 I will not set out the grounds of the application. With respect to the draughtsperson, they are verbose and contain much argumentative material. The true grounds are buried in their verbiage. The first four grounds of the application may be taken together. They raise the question whether the evidence was capable of establishing that the complainant had suffered grievous bodily harm and it is contended that the trial Judge erred in his direction to the jury in that regard. The question whether the complainant had suffered grievous bodily harm was a major issue at the trial.

7 The Criminal Code (WA), s 1(1), defines the term "grievous bodily harm" to mean:

"any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."

8 The term "bodily injury" is not itself defined by the Code, but, specifically to cater, inter alia, for the transmission of the disease known as AIDS the Code was amended in 1992 to add, relevantly for present purposes, s 1(4)(c), which provides that in the Code:

"a reference to causing or doing grievous bodily harm to a person includes a reference to causing a person to have a serious disease."

9 Section 1(1) was amended to add a definition of the term "serious disease" to mean:

(a) endanger, or be likely to endanger, life; or

(b) cause, or be likely to cause, permanent injury to health."

10 The evidence on this general topic was that of an expert witness, Prof French, Professor of Immunology in the Immunology Department of RPH and specialising in the immune response to infections in patients with immunodeficiency diseases. Prof French had provided a report to investigating police. The document was tendered in evidence. It dealt with a number of questions raised by an investigating police officer. In the report, the professor explained that the human immunodeficiency virus, HIV, is transmitted from one person to another by blood or other bodily fluids, particularly semen or vaginal fluids. The virus gains entry to the body through breaks in the skin or mucous membranes lining the rectum, vagina or mouth.

11 There are other means of transmission to which it is unnecessary to refer in the context of this case. But once the virus has entered the body, it infects cells of the immune system. Initially, the immune system attempts to control the HIV infection, but there is usually an eventual change in the structure of the virus which enables it to evade the immune response and final dysfunction and depletion of cells of the immune system may occur, leaving the body open to a variety of serious infections which, if contracted, may result in damage to infected organs.

12 But the professor stressed that different individuals will respond in different ways, so that in the case of some individuals infected by HIV, they may never develop disease because they have genetic factors which allow their immune system to control the virus. On the other hand, the professor said in his report, people who do not have these genetically determined resistance factors may develop disease very quickly. The professor was asked if HIV was an injury. He responded that HIV infects cells of the immune system, leading to their dysfunction and depletion.

13 The professor's viva voce evidence was to the same effect. He gave as his opinion that HIV infection caused bodily injury in the form of the destruction of the immune system, of cells constituting that system. He distinguished between that and disease or illness produced by the body's reaction to the virus and the occurrence of disease as a result of destruction and depletion of cells of the immune system. Some people, he said, would develop such illness, but some would be infected without any signs at all.

14 Thus far, it appeared, the complainant, although HIV positive, was in the latter category of patient and required, as at the time of trial, no treatment. She might never require treatment for an illness of the kind described by the witness, but he made it clear that in his opinion she was infected by the virus with the result that cells of her immune system were destroyed, not only those directly infected by the virus, but what the witness described as "bystander cells", destroyed by a process to which he referred as "immune activation". The witness said that there had not been, "any significant damage to her immune system, although we do know that the cells are infected." It might be the case that the complainant was one of those persons described as "long-term, non-progressors", up to 5 per cent of those who are infected, who may continue for many years without suffering any progression to any ill-effects.

15 As I have said, this case was not presented to the jury by the prosecution as a case of serious disease constituting grievous bodily harm, no doubt having regard to the evidence of Prof French. The question before the jury was twofold; whether there had been bodily injury caused by the applicant to the complainant and whether that injury was of sufficient severity to constitute grievous bodily harm.

16 The trial Judge discussed with the jury, the evidence given by Prof French. He reminded them that the evidence was uncontradicted. He told them that it was open to them to conclude, in the light of that evidence, "that the infection of the immune cells by the virus is itself a bodily injury without proof of any other long-term ramifications". In my respectful opinion, that was a fair summation of the evidence and how there might be bodily injury as a result of the transmission of the virus. As a matter of law I consider that if the jury found that immune cells were infected and destroyed, that would constitute bodily injury. The complainant's body was injured if cells comprising her immune system were damaged and destroyed.

17 The more live question was whether that injury constituted grievous bodily harm. The question was clearly left to the jury by the trial Judge. The jury were left to consider whether they would conclude specifically that, there having thus far been no permanent injury caused to the complainant's health, such an outcome was "likely". His Honour reminded the jury of the evidence given by Prof French bearing upon that issue, to which I have referred.

18 It was, I think, clearly open to the jury to conclude, as they apparently did, that while there was a relatively small chance that the complainant would turn out to be a "non-progressor", the likelihood was that ultimately her immune system would be so damaged or overcome by the virus that she would become ill and would suffer damage to organs of her body, that she would develop the disease AIDS itself with the consequent increased danger of infection and damage to her body, and that the injury she had sustained was likely in that way to cause permanent injury to her health. It was, in my opinion, fairly open to the jury, the issue having been properly left to them, to conclude that the applicant had done the complainant grievous bodily harm.

19 The offence of which the applicant was convicted is that defined by the Code, s 297, an offence committed by a person who "unlawfully does grievous bodily harm to another". The applicant submits that the trial Judge erred when, at least inferentially, his Honour told the jury that the use of the word "unlawfully" meant that the prosecution was required to prove that what the applicant did to the complainant in causing her grievous bodily harm was not authorised, justified or excused by law.

20 In putting it that way, his Honour picked up the language of the Code in relation to assaults. Section 223 provides that, "An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law." Similarly, in cases of homicide, s 268 provides, "It is unlawful to kill any person unless such killing is authorised or justified or excused by law."

21 Like a homicide, doing grievous bodily harm to a person need not involve an assault as defined in the Code, s 222. The same may be said of other offences defined by Ch 29, the offences endangering life or health, eg, those serious offences defined in s 294 and s 298, the poisoning offences in s 300, wounding and the other similar offences defined in s 301, unlawfully doing bodily harm as defined in s 306.

22 These offences are often defined differently from offences against property, such as stealing and the like, where the criminal quality of the interference with the property of another is generally conferred by the intention with which the act is done, although the form of stealing constituted by unlawfully using a motor vehicle without the consent of the owner adopts a formula more like that used in defining offences against the person of another.

23 When one comes to offences concerned with damage or injury to property of another, one finds the provision in s 441:

"An act which causes injury to the property of another, and which is done without his consent, is unlawful unless it is authorised, or justified, or excused by law."

24 A different use of the word again is in the surviving offences against morality, ss 186, 191 and 192, where the concept of unlawful carnal knowledge or unlawful carnal connection refers to intercourse outside the bond of marriage. Where sexual offences are more recently defined by the Code, in Ch 31, if the offence is such that the victim may be lawfully married and consent is not an issue, one finds the fact of marriage referred to as a defence, the burden of proof of which lies on the accused. Examples are s 321(10), s 321A(8) and s 322(8). Finally, in relation to abortion the word "unlawful" used in the definition of the offence is again given a particular meaning by s 199(1). In that rather long-winded way I make the point that where the word "unlawful" is used in the definition of an offence in the Code, its meaning will either be expressly given or will depend on the context in which the word is used.

25 The point is perhaps illustrated by referring to the terminology of Ch 35, concerning defamation. Offences known generally as criminal defamation are defined in ss 360 and 361. The relevant act is the unlawful publication of defamatory matter. The word "unlawfully" is dropped, however, when one comes to the offence defined by s 363, that of publishing defamatory matter with intent to extort money. It is, as is commonly found in the Code, that intention which inevitably establishes the criminal nature of the publication.

26 There are some provisions in the Chapter which provide specific defences. Section 362 is a good example, applying where it is proved that the circumstances were such that the person defamed was not likely to be injured by the publication. On the other hand, there are cases where criminal responsibility for an unlawful publication is negated, eg, in the case of innocent publishers or sellers: s 365 and s 366. Finally, there is a provision giving the meaning of the word "unlawful" in this context in s 350, which provides, "It is unlawful to publish defamatory matter unless such publication is protected, or justified, or excused by law."

27 The use of the word "protected" in this provision is significant because in ss 351 - 357 there is a comprehensive set of provisions to provide absolute protection or qualified protection by detailing occasions when a person "does not incur any liability" for a publication, or publication "is lawful". In that regard, s 5 of the Criminal Code Act 1913, by which the Code was enacted, should be noted. It provides, inter alia, "When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof." So to provide positively in the Code that some conduct is lawful will negate, not only criminal liability, but any civil cause of action.

28 Speaking in the context of the Customs Act 1901 (Cth), s 233, and the offence of unlawfully importing, exporting, conveying or having in possession goods, the High Court in Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143, per Griffith CJ, at 147, and Barton J, at 155, said that the word "unlawfully" meant contrary to federal law. Griffith CJ said that the word used in a statute in the context of defining a criminal offence might have one of two meanings - as denoting conduct which was to be taken to be contrary to law of itself, or as denoting "some prohibition of positive law."

29 Over the years there has been some controversy about what may constitute an unlawful act for the purpose of constituting the offence of manslaughter and unlawful killing at common law. The applicant relies upon the statement made in that context by Brennan, Deane and Dawson JJ in Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 335, where their Honours said:

"An unlawful act is one which is contrary to the criminal law. Criminal negligence in the performance of an act which is otherwise lawful is not an 'unlawful act'. Where an act of that kind is involved, the case is one of manslaughter by criminal negligence, not manslaughter by an unlawful and dangerous act."

30 For my part, I derive little assistance for present purposes from a statement of the common law.

31 Similarly, I think there is little assistance to be gained from the decisions of the High Court concerning the meaning of the word "unlawfully" in the context of the offence of wounding or causing grievous bodily harm defined in s 172 of the Criminal Code (Tas), or in the context of homicide in s 157 of that Code. The cases are Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 and Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10. Both cases rely to an extent upon the Criminal Code Act 1924 (Tas), s 8, which provides for the continued operation of the rules and principles of the common law in respect of the operation of the Tas Criminal Code.

32 A case in point, however, is the decision of the Queensland Court of Criminal Appeal in R v Knutsen [1963] Qd R 157, where a woman had suffered grievous bodily harm when she had been unlawfully assaulted by the accused, rendered unconscious, and left on a roadway. Shortly afterwards, when the accused had left the scene, she was run over by a motor vehicle driven by an innocent third party, causing the injuries relied upon as constituting the grievous bodily harm.

33 Philp J, at 162-3, discussed the meaning of the word "unlawfully" in the context of this offence, defined in the Queensland Criminal Code in terms identical to section 297 and in broadly the same statutory context. His Honour commenced by noting that in some places in the Code, the meaning of the term was given, as in connection with an assault, homicide or damage to property, whereas otherwise the word was used without definition, as in the case of an unlawful wounding or unlawful carnal knowledge. His Honour referred to the old authorities establishing that in the latter context, carnal knowledge, except between spouses, is unlawful.

34 His Honour referred to Lyons v Smart. Reference was made to the case of R v Clarence (1888) 22 QBD 23, where a bench of 13 judges was assembled to consider the prisoner's conviction of "unlawfully and maliciously inflicting grievous bodily harm" upon his wife by infecting her with venereal disease. A majority of the court held that the act of infecting the prisoner's wife in that way was unlawful, as being contrary to the law relating to marriage. It was classified as cruelty, but the point was that the conduct of the prisoner was held to be unlawful because it contravened the law generally.

"Of course, an act can be unlawful apart from its criminality; thus the doing of grievous bodily harm to or the wounding of a man may be an unlawful trespass to the person, or it may be lawful, eg, if done by a surgeon in a proper operation. The unlawfulness of a doing of grievous bodily harm or of a wounding depends upon consideration of matters outside the Code subject to any special provision of the Code relating to the matter."

36 Finally, his Honour observed that in the context of this offence the meaning of the word "unlawfully" was encapsulated in the proposition that, "All that it requires the Crown to prove is that the doing of the grievous bodily harm was contrary to law and not excused." That was a dissenting judgment, although not on this point.

37 The case turned on the issue of causation and the majority held that the accused had not done grievous bodily harm to the woman when she suffered the injuries as a result of being run over by the car. However, Mack J, at 187, permitted himself the obiter observation as to the meaning of the word "unlawful" that:

"All grievous bodily harm arising out of assaults is unlawful unless authorised, justified or excused by law, s 246, and one looks to the provisions of the Code or other statute law to find the authority, justification or excuse. In the instant case the evidence proves that the assault was not authorised, justified or excused."

38 Section 246 of the Queensland Criminal Code is the equivalent of s 223 of our Code. Perhaps it may be said that the question of construction may be assisted by having regard to the fact that, although an assault is not an element of doing grievous bodily harm, the relevant act of the accused may in fact constitute an assault in relation to which s 223 may provide its assistance.

39 In that regard I note the concern expressed in argument for the applicant that unless "unlawfully" means contrary to some positive law, the causing of serious injury on the sporting field may constitute unlawfully doing grievous bodily harm. I think it may. While one may consent, by participation in a sporting contest, to the application of force by other players, so that such application of force will not constitute an assault as defined by the Code, s 222, non-consent is not an element of the offence of doing grievous bodily harm and it will not be rendered lawful by consent to an activity which causes it: cf Attorney-General's Reference (No 6 of 1980) [1981] EWCA Crim 1; [1981] QB 715, 719; Lergesner v Carroll [1991] 1 Qd R 206, 217-8.

40 In the words of Griffith CJ in Lyons v Smart, grievous bodily harm is, generally, contrary to law of itself.

41 In Kuczynski v The Queen (1989) 2 WAR 316, the question was the validity of a conviction of attempting to cause grievous bodily harm upon an indictment charging the applicant with doing grievous bodily harm with intent to do grievous bodily harm. Speaking of s 297 the Court said:

"Intent to do grievous bodily harm is not an element of the offence under s297. The Crown case need only prove a willed act of the accused which is contrary to law and not excused, ..."

42 The cases of Knutsen and Clarence were cited. The words used in the judgment of the Court in Kuczynski are those of Philp J in Knutsen at 163.

"The Crown must prove that what the accused did to [the complainant] was not authorised, justified or excused by law. In the context of this trial, as you heard [defence counsel] say, the Crown must negative an honest and reasonable but mistaken belief by the accused that it was safe to practise penetrative sex provided ejaculation did not occur."

44 The phrase used by his Honour to describe the meaning of the word "unlawfully" is clearly borrowed from sections such as s 223 and s268. There the words are used in the context of different types of offence. Section 313 provides the offence committed by a person who "unlawfully assaults another". And there are other variants of that offence contained in Ch 30 of the Code. By s 222, an assault is defined by reference to the actual or attempted application of force to the person of another. It is the nature of the act of the offender, not the result caused to the victim, which constitutes the unlawful assault. On the other hand, homicide is differently defined by reference to the event which is the killing; the death of the victim.

45 The Code, s 1(1) defines the term "criminally responsible" as "liable to punishment for an offence", and s 2 defines an offence as "an act or omission which renders the person doing the act or making the omission liable to punishment". But it is clear from the provisions of the Code generally, particularly those in Chs 3 and 5, that, in the language of the Code, an offence will be "constituted" or committed by an act or omission, whether or not the offence is defined by reference to a particular act or omission. Of course, the offence may, as in the case of a homicide or grievous bodily harm, be constituted as well by the occurrence of an event by reference to which the offence is defined, whether or not there is also incorporated in the definition of the offence an intention to cause a specific result. His Honour referred to "what the accused did" to the complainant. That seems to me to occasion no difficulty.

46 The other aspect which is noteworthy is that his Honour the trial Judge equated the authority, justification or excuse for doing grievous bodily harm with the "defence" relied on, that raised by s 24, honest and reasonable but mistaken belief, the presence of which might negate the applicant's criminal responsibility and thus prevent the doing of grievous bodily harm being found to be unlawful because it would not, in the circumstances, be punishable as an offence, the applicant not being criminally responsible for it.

47 Finally, I note that his Honour's approach to this matter was apparently that urged on behalf of the accused and the point now raised on behalf of the applicant was not argued at the trial. In my opinion, this is one of those relatively rare cases where this Court ought to permit the point to be raised on this application for the first time. If the point argued is good and the alleged misdirection is established, the point has the capacity to show that a miscarriage of justice has occurred because the jury was not required to find facts directly bearing upon the Crown's capacity to prove that the applicant committed the offence charged: cf Crampton v The Queen (2000) 206 CLR 161.

48 The applicant argues that the trial Judge erred in failing to direct the jury that it was necessary for the Crown to establish to their satisfaction to the required standard, "that the act causing the grievous bodily harm was unlawful in the sense that it constituted either a contravention of an express provision" of the Code or some other criminal statute of the State or Commonwealth. It was insufficient, so it was argued, to simply refer to the requirement that the grievous bodily harm be done unlawfully only by reference to an exculpatory provision of the Code. Only if the relevant act causing the grievous bodily harm was established to be unlawful would the question of negation of criminal responsibility arise.

49 In my opinion, this argument cannot be made good. I accept that grievous bodily harm is done unlawfully if the doing of the grievous bodily harm is contrary to law and not excused, as held in Knutsen and Kuczynski. However, that does not mean that the act done by the applicant must itself be contrary to law. It is the doing of grievous bodily harm which must be contrary to law, because the offence is defined by reference to the occurrence of that event. It is that event which attracts criminal responsibility.

50 There was no suggestion here that in the circumstances of this case, the doing of grievous bodily harm would be other than unlawful, such as might be the case if the virus was transmitted in blood as part of a reasonably undertaken surgical or medical procedure. In this case, the grievous bodily harm done by the transmission of the applicant's bodily fluids to the complainant was unlawful unless authorised by some affirmative provision of the law which made the doing of grievous bodily harm lawful (and none was suggested, of course) or the criminal responsibility of the applicant was negated in some way. It was upon that aspect that the direction of the trial Judge rightly focused attention.

51 In this regard, it does not seem to me to be necessary, or possible, to rely on s 266 of the Code, the duty to use reasonable care and take reasonable precautions imposed upon those who have in their charge or under their control, dangerous things, to make the infection by HIV, the doing of grievous bodily harm, unlawful. I do not think it is possible to regard the virus as a thing falling within s 266, in the charge or under the control of the applicant, of which he has the "use or management". I would not accept the contrary view expressed in R v Mwai [1995] 3 NZLR 149.

52 In my opinion, his Honour's direction was not wrong in law. Indeed, this was a case, such as Knutsen was described to be by Philp J, at 164, when his Honour said:

"As I see it, if the act of the accused, whether an assault or not, mediately or immediately effects grievous bodily harm on another, guilt is established, subject to the exculpatory provisions of the Code or other relevant law."

The Omission of a Direction in Terms of s 23

53 A related argument arising out of the particular ground under discussion is that the trial Judge erred in failing to give a direction in terms of s 23 of the Code that the prosecution was required to prove a willed act of the accused from which his criminal responsibility would be derived or, alternatively, to give the jury a direction as to criminal negligence. No such direction was given and again none was sought.

54 I accept, of course, that if, on a view of the facts fairly open on the evidence, the issue arose, it was incumbent upon the trial Judge to give the direction required. The failure to do so would constitute an error of law and a miscarriage of justice which would cause the conviction to be quashed: Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158. However, in my opinion, this was not such a case.

55 The trial was not fought on the basis that a direction in terms of s 23 was required and in my view the evidence did not give rise to the need for any such direction. There was no evidence to suggest that any act of the applicant causally related to the transmission of the HIV virus and consequent bodily injury constituting grievous bodily harm was not a willed act. All the evidence was to the contrary and the evidence focused exclusively upon transmission by sexual penetration. Whatever the physical act of the applicant was which in fact transmitted the virus, all the evidence was that it was a voluntary act on his part.

56 Nor was there any evidence to suggest that the bodily injury in the way of destruction of cells of the complainant's immune system which constituted the grievous bodily harm was other than the direct result of the act which transmitted the virus. The question of the grievous bodily harm being an accidental event therefore did not arise. If it did, however, contrary to the view just expressed, then there was no suggestion in the evidence that an ordinary person in the position of the accused could not reasonably foresee that if there was a transfer of relevant bodily fluids from the applicant, HIV positive as he was, the virus would be transmitted.

57 The question of accident did not arise and in those circumstances it was entirely unnecessary that there should be any prosecution case based on criminal negligence and any direction by the trial Judge on that question. The law in respect to these matters was recently comprehensively discussed by this Court in Agnew v The Queen [2003] WASCA 188; 20 August 2003. The relevant authorities are discussed there. I need not repeat that discussion for the purposes of this application.

The Direction about the Relevant Act or Acts

58 The complaint here is, by grounds 7 and 14, that the trial Judge erred in directing the jury as to causation in that his Honour did not instruct the jury that the Crown must prove the precise act by which the HIV virus was transmitted by the applicant to the complainant. It is asserted that the prosecution had to prove that the virus was transmitted by an act of sexual penetration of the complainant's vagina or anus and had to exclude transmission of the virus by any other means, by the applicant or anyone else.

"The Crown, as you have heard me say, is required to prove that the [applicant] did grievous bodily harm to the complainant. To do, in this context, primarily means to effect or to bring to pass. The Crown must prove that it was an act of the [applicant] that transmitted the HIV virus to the complainant. The Crown does not have to identify the precise act of the accused by which it is said he did grievous bodily harm to his victim. The Crown need only prove that it was an act or acts by the accused that caused grievous bodily harm, that is to say, resulted in the transmission of the HIV virus to the complainant with permanent ramifications."

60 Of course, it was the case that the Crown had to exclude beyond reasonable doubt the transmission of the virus to the complainant as a result of an act or acts, not of the applicant, but of some other person. To my mind, in the context of the way this case was fought at trial, the trial Judge made that sufficiently clear by focusing upon the need to establish that it was some act or acts of the applicant by which the virus was transmitted.

61 As to that, it was certainly the case that the prosecution focused its attention upon acts of sexual intercourse involving penetration of the vagina and/or anus of the complainant. It would not matter, however, if the transmission occurred by some other means discussed in a general way by Prof French, provided it was an act of the applicant by which the transmission occurred. As to that, the evidence of the complainant and the applicant suggested no other mechanism, such as blood contaminated needles and syringes, by which the applicant might have transmitted the virus. In my opinion, in the context of the evidence in this case, no error in the direction of the trial Judge is revealed and no further direction was required.

62 As I have mentioned, this was the basis upon which the applicant contended at trial that he was not criminally responsible, if it was found that by his sexual practices he infected the complainant with HIV. It is contended that in directing the jury on this matter, the trial Judge erred about the Code, s 24, by referring to the honest belief of an ordinary person in the accused's position rather than the question whether the applicant honestly believed that by having unprotected sex during which he did not proceed to ejaculation in the vagina or anus of the complainant he would prevent the transmission of the virus.

63 In my opinion, this ground is plainly without merit when one considers, in its entirety, the direction upon this issue of the trial Judge. It is convenient to set the direction out fully:

"I explained to you at the outset that the third element of the offence requires the Crown to negative an honest and reasonable but mistaken belief on the part of the accused that he could have safe sex with someone without using a condom, provided he did not ejaculate.

I now want to turn specifically to that particular issue and give you a direction which in law you are required to follow. The Code says that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist.

If the accused honestly and reasonably but mistakenly believe that it was safe to have penetrative sex without a condom, provided he did not ejaculate, then he would not be criminally responsible and would necessarily have to be found not guilty of the charge he was facing.

There is no onus on the accused to prove that he held an honest and reasonable but mistaken belief to that effect. All he need do is assert that he had such a belief. That is what he has done. The burden lies on the Crown to satisfy you beyond reasonable doubt that the accused did not honestly and reasonably hold the belief in question.

The Crown may discharge this onus by proving either that the accused did not honestly believe what he claims to have believed or that his belief was unreasonable in all the circumstances. The honesty of the accused's belief is a subjective issue. You will have to inquire into the evidence you have heard, both from him and other witnesses, in deciding whether or not he honestly held the belief he professes to have held.

The reasonableness of the accused's belief is an objective factor, to be judged by the standard of a reasonable person familiar with all the circumstances that were known to the accused at the relevant time.

The issue is whether the Crown has proved beyond reasonable doubt that an ordinary person in the accused's position did not honestly believe or could not reasonably have believed that it was safe to do what he did with the complainant. You, as a jury, must use your own judgment as to the belief which could reasonably be held in the context of the circumstances you find to have been established in this case."

64 The ground seizes upon the statement at the end of the direction that, "The issue is whether the Crown has proved beyond reasonable doubt that an ordinary person in the accused's position did not honestly believe or could not reasonably have believed ... ." Taken in isolation, of course it is wrong, but in my view, in context, there is no possibility that the jury could have been misled as to the elements of the doctrine of mistake and I do not consider that the applicant has been deprived of any chance of acquittal on this ground. It is unsurprising that the error appears to have been missed by both prosecuting and defence counsel at the trial. No redirection was sought.

65 In my opinion, ground 5, which raises an issue with respect to a comment made by the trial Judge is a make-weight, unworthy of the pursuit. The comment of which complaint is made is as follows:

"In this particular case you have heard evidence from an expert, Prof Martyn Andrew French. Evidence of experts is not always adduced in a criminal trial. You must decide whether to accept the expert evidence wholly or in part. You are not bound to accept what the expert has told you in this trial. You certainly are, however, bound to consider what the expert has said in evidence. You should examine what he said in the context of all the other circumstances which you find to have been proved and you must further consider the quality and weight of the expert evidence.

If you are not satisfied by it or any part of it you may properly refuse to accept or act upon it. In reaching a conclusion on the expert evidence you can take into consideration that it stands uncontradicted and substantially unchallenged. Prof French said the transmission of the HIV virus and the damage it did to the immune cells was, in his opinion an injury which can lead to the ramifications he described in evidence but it is for you to decide whether the transmission of the virus and the effect you find it has had on the complainant constitutes a bodily injury within the legal definition and if so whether it is likely [the complainant] will suffer permanent injury to her health.

In reaching this decision you must decide what guidance you can obtain from the expert evidence and what conclusions you can draw from that evidence and all the other circumstances you have found to have been proved."

66 The complaint is that the comment made, impermissibly indicated to the jury how they should approach the evidence of the witness; how they might reason towards the guilt of the applicant. It is argued that by so doing there was a dilution of the Crown's obligation of proof beyond reasonable doubt. Reliance is placed upon decisions of the High Court concerned with directions which may be given in respect of the failure of an accused person to give evidence and call witnesses: Azzopardi v The Queen (2001) 205 CLR 50 and Dyers v The Queen (2002) 210 CLR 285, but in my opinion these cases provide no ground for the conclusion that the direction of his Honour in this case was anything other than a proper instruction to the jury as to the manner in which Prof French's evidence was to be approached.

67 In the early part of his directions, the trial Judge spoke of general matters and then of the rules about the onus and standard of proof. His Honour then continued by speaking of the difference between direct and indirect, or circumstantial, evidence, in respect of which, his Honour said to the jury, they would be "required to resort to inferential reasoning", as to which, his Honour said, there were special rules flowing from the fundamental rules already explained about the onus and standard of proof. His Honour continued:

"An inference is simply a logical deduction from a set of facts which are proved to your satisfaction. In a criminal trial, however, you may not draw an inference against an accused person unless it is the only reasonable inference consistent with the true facts.

This means that if there are competing inferences that you can properly draw from established facts it would not be proper for you to draw an inference adverse to the accused unless, as I have said, you have reached the conclusion that such an inference is the only reasonable inference that is open on the evidence. In the event of any ambiguity in the evidence or if it can be the case that more than one reasonable inference can be drawn from the same established facts the accused is entitled to the resolution of that ambiguity in his favour or the drawing of the inference which is more favourable to him.

That direction will be important in this case and as I have said it is simply an extension of the general rules requiring the Crown to prove guilt and to do so beyond reasonable doubt. In carrying out this task you are, of course, entitled to look at the whole of the evidence and draw an inference from a combination of facts you have found established even if none of those facts alone would support the inference."

68 The only part of the evidence which caused his Honour to return to this general direction and relate it to the evidence was that of Prof French as to the likelihood of the complainant suffering permanent injury to her health as a result of the bodily injury in the form of the destruction of the cells of her immune system, resulting from her infection with the virus. His Honour discussed the witness's evidence about the effect of HIV on the immune system. He discussed the evidence as to what happens to the overwhelming majority of such persons and he contrasted that case with the case of persons described as "non-progressors". I have summarised this evidence above. His Honour commented:

"I think you will agree with me that the likelihood of [the complainant] suffering permanent injury to her health is an inferential issue. There is no direct evidence of such a likelihood. There cannot be because we know her condition is currently dormant. Only the future will tell whether she suffers permanent ill-effects or harm from her HIV infection."

69 His Honour concluded these remarks by telling the jury that they should ask themselves whether the likelihood of the complainant suffering permanent injury to her health, "is the only reasonable inference consistent with the facts as you find them to be."

70 The complaint made by the applicant in argument is both about the terms of the direction and the need for it. As to the terms of the direction, it is convenient to refer to the summation of the law by Dawson J in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. At 578, his Honour explained it had long been the practice of judges directing juries in cases where circumstantial evidence was relied upon, to give a direction that guilt should not only be a rational inference, but should be the only rational inference that could be drawn from the primary facts found by the jury. Such a direction is given by way of amplification of the standard direction in relation to onus and burden of proof. His Honour said:

"In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence."

71 There is a tendency these days to make it an invariable practice to give the direction, even in cases where there is a danger that it may mislead or where the direction may be expressed as a gloss upon the primary direction about the onus and standard of proof in such a way that it detracts from the force of that direction. The case relied upon by the applicant, Wedd v The Queen [2000] WASCA 273, is an example of such a case. I am of the view that the direction should not be given by way of elaboration upon the standard direction as to onus and burden of proof unless the evidence in the case is of a character which appears particularly to call for the additional guidance that such a direction may give a jury.

72 As the content of the direction in this case, it must be said, I think, that when given there should not be included in the direction an observation of the kind made by the trial Judge in this case that where more than one reasonable inference can be drawn from the established facts, the accused is entitled to the drawing of the inference which is more favourable to him. As I endeavoured to explain in Wedd at [41]:

"This area of the law is not about drawing inferences one way or the other, either in favour of or adversely to the interests of the accused. It is about the capacity of the jury to draw an inference of guilt of the offence charged."

73 It follows that anything which may have the tendency to water down the force of the standard direction about the burden of proof should be scrupulously avoided.

74 However, in this case, having regard to the full context of the directions given and particularly to the way in which the trial Judge left this topic, after referring to and discussing the relevant evidence given by Prof French, I think that there was no detraction from the direction, about which there is no complaint, given in relation to the onus and standard of proof, and I would not uphold the particular ground of application for that reason.

75 As to the other complaint that the direction should not have been given at all, it seems to me that, with respect to his Honour, that is right. I do not think this was a case of inferring guilt, or an important fact on the way to a finding of guilt, from the existence of another set of facts found by the jury. It was simply a matter for the judgment of the jury, whether they were prepared to conclude that grievous bodily harm was established beyond reasonable doubt because the bodily injury which they found had occurred bore the particular character that it was of such a nature as to be likely to cause permanent injury to health. That was a conclusion the jury would draw by making findings of fact on the basis of the evidence given by Prof French, direct evidence of the character of the bodily injury suffered. It was for the jury then to determine whether they were satisfied to give it the particular characterisation which would make the injury constitute grievous bodily harm.

76 However, the direction having been given in the terms I have described, it seems to me that it can have had no capacity in any way to cause the applicant to suffer a miscarriage of justice. The direction was unnecessary, but did no harm to the applicant in relation to the jury's determination of the issues raised at trial.

77 The prosecution relied as implied admissions upon lies allegedly told by the applicant to persons outside the courtroom and in giving his evidence. They were particularised and referred to on a number of occasions in the relatively short closing address made by prosecuting counsel. They were as follows -

1. The applicant gave evidence that he had been informed and he honestly believed it to be the case that if he had unprotected sex per vaginam he would not transmit the virus provided he did not ejaculate. He said that if he planned to ejaculate, generally speaking he would use a condom. He said this was his practice when having sex with his wife and after the breakup of that relationship that was the practice he adopted when having sex with the complainant. That evidence was contradicted by two health officers who gave evidence of their advice, given to the applicant during the early 90s after he was initially diagnosed HIV positive, that the only safe sexual practice was the invariable use of a condom. If the jury concluded in the light of that evidence that the applicant had lied, the materiality of that lie to his defence is obvious.

2. The complainant gave evidence that after she was diagnosed HIV positive, she approached the applicant, told him of the diagnosis and he told her that he had been tested for HIV and returned negative results. She asked to see them and she arranged with him to go to his home so that he could show her the advice of which he spoke. He showed her a letter which confirmed what he said, but it was fabricated by him, as he admitted in his evidence at the trial.

3. During the course of the investigation of the complainant's condition, the applicant was interviewed by a health officer to whom he said he had not had what was described as penetrative sex with the complainant. That also was an admitted lie. The applicant did not deny that he had vaginal intercourse with the complainant.

4. The applicant did, however, deny in his evidence that he had ever had anal intercourse with the complainant. Her evidence was that it had happened twice and if she was believed it would certainly be open to the jury to conclude that the applicant lied when he gave that evidence on oath.

78 The first lie referred to above, if so found, seems to me to have direct and obvious materiality not only to the honesty of the applicant's belief, but that it was based on reasonable grounds. The last three lies, if lies they were found to be, related to the question whether the applicant might have been the person who had done grievous bodily harm to the complainant by infecting her with HIV, a question which was also very much in issue at the trial. As I have mentioned, other boyfriends of the complainant were called to give evidence that although they had sexual intercourse with the complainant, neither was HIV positive.

79 The issues at trial might be summarised as being, did the applicant infect the complainant with the virus? If so, did that result in a bodily injury to her? If so, did that bodily injury constitute grievous bodily harm? If so, did the evidence negate an honest and reasonable but mistaken belief on the part of the applicant that the sexual practices he adopted would prevent transmission of the virus to the complainant.

80 This was a case, I think, where it was incumbent upon the trial Judge to direct the jury on the use they could make of the conclusion, if they came to it, that on the evidence the applicant had told all or any of what were asserted to be deliberate lies relied upon by the Crown. At trial, counsel did not suggest that that should not be done.

81 The direction was, of course, to be based upon, and to cover the ground required by, the decision of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. It is useful to recall how the High Court said a jury should be instructed in this regard. I refer to the judgment of Deane, Dawson and Gaudron JJ, at 210-1 where their Honours said:

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie, it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, ... because of 'a realisation of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission."

82 Of course, in this case the applicant maintained throughout that he had not told the alleged lie first identified above. This was his defence if the commission of the offence was otherwise established. Therefore, there was no suggestion that he might have any reason apart from a realisation of his guilt for telling that lie, if so it was found to be. Similarly, he denied throughout that he had had anal intercourse with the complainant. If that was found to be a lie, again there was no reason which might be advanced other than a realisation of guilt for the telling of that lie. It was not, for example, suggested that in his mind any opprobrium attached to the idea of anal intercourse. As to the admitted lies, the applicant said that they were told because, although he honestly believed that he was not the source of the complainant's infection, he feared what ultimately happened, that he would be prosecuted if he made admissions which might suggest that he could have been the source of the complainant's infection.

83 By ground 9, it is contended that the alleged lies did not go to a material issue and were incapable of amounting to an implied admission of guilt. For the reasons I have given, I am unable to accept those propositions. More importantly, however, it is contended that in his direction to the jury on this topic, the trial Judge erred because his Honour failed to identify how the lies might constitute an admission, failed to identify the applicant's statements which might be lies and the evidence which might establish that to be so and failed to identify the material issue to which the lies related.

84 The direction given by the trial Judge is clearly based on the law set out in Edwards. The direction follows that statement of the law and the jury were specifically reminded, in effect, that if they found that the applicant had told the lies identified and that it might be the case that he had done so "to escape an unjust accusation" as it was put in Edwards, then they could not use such a lie as an admission by the accused which might strengthen the Crown case against him.

85 As to the complaint that the trial Judge failed to identify the material issue, I have expressed the view that the lies did go to material issues and in my view that was a matter for the Judge, not the jury. They were not expressly told how the lies or any of them might constitute an admission, but how they might have done so was, in my view, self-evident. The first alleged lie went directly to the honesty and reasonableness of the applicant's belief that he was practising safe sex. The other lies identified went to the question whether the applicant had inflicted bodily injury upon the complainant as a consequence of the transmission of the virus and demonstrated a consciousness on the part of the applicant that he was a person who might have done so. The failure of the trial Judge to say those things was, in my opinion, unproductive of any miscarriage of justice from the point of view of the applicant in the circumstances of this case.

86 It is true, as the applicant complains, that the trial Judge failed to identify the statements made by the applicant which were said to constitute lies. Indeed, his Honour said that he did not need to do that because it had been done adequately and in detail by prosecuting counsel, whose address concluded immediately before his Honour summed up the case for the jury. In this case it seems to me that no injustice can have been caused to the applicant by the fact that the trial Judge confined himself to reminding the jury that the lies about which he was directing them were those identified by the prosecutor. There was no prospect that the jury might have been confused or misunderstood what his Honour was talking about. While I would not recommend what was done in this case as a general practice, it seems to me that, given the fact that the identification of the lies by the prosecutor was clear and made relatively shortly before his Honour spoke on the topic, the lies were "precisely identified" for the jury as the law requires. I would not uphold this ground.

87 Finally, the applicant raises by ground 10 the serious allegation that the opening address of prosecuting counsel breached his duty to act fairly, when he asserted that the applicant had had unprotected sexual intercourse with the complainant, knowing that he was HIV positive and without informing the complainant of that fact. Counsel sought an immediate direction from the Judge that those matters were irrelevant to the question of the applicant's guilt.

88 The trial Judge acknowledged, as is of course the case, that these matters form no part of the elements of the offence charged. He declined to give the immediate direction sought, but his Honour said that he would ultimately direct the jury that these were not matters which comprised elements of the offence. Of course, prosecuting counsel was not asserting that these were matters which the Crown was required to prove if the applicant was to be convicted and the position in that regard was made clear, in my opinion, when his Honour directed the jury what the elements of the offence were. In addition, his Honour said:

"Absence of consent by a person to unprotected vaginal or anal sexual penetration by an HIV-positive person is not an element of the offence charged. Whether or not the complainant consented, knowing that the accused person was infected, is not an element of the offence charged. The Crown does not have to prove that the accused wilfully failed to disclose that he was HIV positive to the complainant. The Crown does not have to prove that the accused intended to transmit the virus to [the complainant]."

89 The effect of those remarks, I think, was to make it clear to the jury that they need not trouble themselves with the question of the applicant's failure to inform the complainant that he was HIV positive. That was calculated to reduce substantially any prejudicial effect that the Crown's opening or indeed that the leading of the evidence might have had as, in my opinion, did his Honour's concluding remarks endorsing the submissions of both prosecuting and defence counsel that the jury were

not to allow their deliberations to be swayed by feelings of sympathy for the complainant or prejudice towards the applicant.

90 In my opinion, there was no ground for excluding such evidence, as this ground in part complains should have been done, on the ground that it was either inadmissible or that its prejudicial effect outweighed any probative value. It was a part of the narrative of what occurred as between the applicant and the complainant. That he knew he was HIV positive was a relevant fact because from that fact stemmed the dispute in the evidence about the advice he received as to how he might safely have sexual relations with another. That he did not inform the complainant of this, but indeed that he lied to her was, as has been seen, relevant to issues raised at trial. In my opinion, no further direction was required than that given by the trial Judge.

91 Whilst I would grant leave to appeal, in view of the importance of some of the issues raised by the application, I would dismiss the appeal.

92 STEYTLER & WHEELER JJ: We have had the advantage of reading the judgment of Murray J. It is consequently unnecessary for us to set out the circumstances giving rise to the appeal save insofar as is necessary to explain the different conclusion at which we have arrived in respect of grounds 9 and 13 of the grounds of appeal.

93 The applicant was convicted, on 3 October 2002, of unlawfully doing grievous bodily harm to the complainant, contrary to s 297 of the Criminal Code. The grievous bodily harm was found to have been caused to the complainant by way of the transmission to her, by the applicant, of the human immunodeficiency virus ("HIV").

94 The applicant was diagnosed with HIV at the beginning of 1990. In his evidence at the trial, he said that he was thereafter counselled by medical practitioners and others about safe sex practices. He said that this counselling led him to believe that if he did not ejaculate semen into a sexual partner he would not pass on the virus.

95 Some years later, in 1999, he formed a relationship with the complainant. In the course of it, he had unprotected sexual intercourse with her (in the sense that no condom was used) between 1 June 1999 and 30 September 1999. At no time during that period, or prior to it, did the applicant tell the complainant that he was HIV positive. He said that this was so because he did not want to "scare her off". The complainant discovered, in January 2000, that she had contracted HIV as a consequence of her unprotected sex with the appellant.

96 Expert evidence which was led at the trial established that HIV may be transmitted from one person to another by blood or bodily fluids, including, but not limited to, semen and that the belief which the appellant claimed to hold that the virus could not be transmitted during unprotected sexual intercourse if there was no ejaculation was consequently false. The Crown case was that the applicant did not, in truth, hold that belief and that he knew that there was a risk of passing on the virus in the course of unprotected sex even if he did not ejaculate. It contended that he had, in any event, ejaculated into the complainant on one of the occasions of unprotected sexual intercourse with her. It led evidence from the complainant to the effect that, on this occasion, during which the applicant had anal sex with her, she felt liquid near her anus at the completion of the act of sexual intercourse. When she washed herself, she noticed that the liquid was an off-white colour. She believed, from this, that the applicant had ejaculated in her anus, but said that she could not be certain. The applicant, on the other hand, not only denied that he had ever ejaculated into the complainant, but denied, also, that he had ever had anal sex with her.

97 The applicant has raised some 15 grounds of appeal against his conviction. The substance of those grounds will be apparent from the judgment of Murray J. We are in general agreement with what has been said by his Honour in respect of all grounds of appeal, other than grounds 9 and 13, although we wish to make some comments of our own in respect of ground 8. We shall consequently restrict ourselves to a consideration of those three grounds.

98 It is convenient, first, to deal with ground 13. As will be apparent from Murray J's judgment, the applicant contends, in effect, that the trial Judge erred in construing the word "unlawfully", where it appears in s 297, as meaning only that the prosecution was required to prove that what the applicant did to the complainant in causing her grievous bodily harm was not authorised, justified or excused by law.

99 Murray J has considered various provisions of the Code in which the word "unlawful" has been used. We will not repeat all that his Honour has said in that respect. It is enough to say, as Murray J has done, that in some sections in which the word is used its meaning has expressly been provided and in others the meaning is provided by the context in which the word is used. In the case of s 297 no definition of the word "unlawfully" has been provided, with the consequence that the Court is left to determine the meaning of that word from its context, aided by a consideration of such cases as might be of assistance in fixing the meaning of that word.

100 As to the case law, we are aware of only two Australian cases which are directly in point.

101 The first of these is R v Knutsen [1963] Qd R 157. There the Queensland Court of Criminal Appeal was called upon to consider the provisions of s 320 of the Criminal Code (Qld). That section then read as follows:

"Any person who unlawfully does grievous bodily harm to another is guilty of a crime and is liable to imprisonment with hard labour for seven years."

102 The section is consequently in identical terms, so far as is relevant for present purposes at least, to s 297 of the Western Australian Code.

103 Philp J, who was in dissent in the result, expressed the opinion (at 163) that the word "unlawfully" required the Crown to prove that the doing of the grievous bodily harm was "contrary to law and not excused", although he added (at 164) that, as he saw the position, "if the act of the accused, whether an assault or not, mediately or immediately effects grievous bodily harm on another guilt is established, subject to the exculpatory provisions of the Code or other relevant law".

104 Stanley J, in that case, found it unnecessary to consider the point. The third Judge, Mack J, while finding it unnecessary to deal at length with the meaning of the word "unlawful", said (at 187) that all grievous bodily harm arising out of assaults is unlawful unless authorised, justified or excused by law and that one looks to the provisions of the Code or other Statute law to find the authority, justification or excuse. However, his Honour was there applying s 246 of the Queensland Code and did not address a situation in which the harm does not arise out of an assault.

105 The second case is that of Kuczynski v The Queen (1989) 2 WAR 316, in which the Court of Criminal Appeal in this State (Malcolm CJ, Brinsden and Seaman JJ) applied (in circumstances in which it was unnecessary to give the issue any detailed consideration) what had been said by Philp J in Knutsen in concluding that, under s 297 of the Western Australian Code, the Crown "need only prove a willed act of the accused which is contrary to law and not excused, and that the consequences which did in fact occur were such that an ordinary man would reasonably have foreseen them".

106 In both of those cases some reliance was placed on R v Clarence (1888) 22 QBD 23. That was a case stated by the Recorder of London and reserved by the Court for the consideration of all the Judges. There the Court was required to consider the terms of an indictment charging the prisoner with "unlawfully and maliciously inflicting grievous bodily harm" upon his wife, an offence under s 20 of 24 and 25 Vict c 100. The prisoner was said to have communicated gonorrhoea to his wife in circumstances in which he knew, but his wife did not, that he was suffering from the disease. The disease was communicated during an act of sexual intercourse. Stephen J (with whom A L Smith, Mathew and Grantham JJ, and also Huddleston B, were in agreement) considered that, in its context, the word "unlawfully" meant "forbidden by some definite law" and that the act in question (the transmission of the disease) was one "forbidden by the law relating to marriage, according to which it constitutes cruelty, and is as such a cause for a judicial separation, whilst it is strong evidence of adultery, which coupled with cruelty would be a ground for a complete divorce". Each of Coleridge LCJ and Wills, Hawkins and Day JJ (the last two of whom were in dissent in the result) also considered that the act of imparting the disease was unlawful because it was forbidden by the law relating to marriage.

107 Philp J, in Knutsen, referred also to the case of Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143, in which the High Court was required to consider s 233 of the Customs Act 1901 (Cth) which reads, in part, as follows:

"No person shall smuggle or unlawfully import, export, convey or have in his possession any goods ...".

"Now, the word 'unlawfully' is a word commonly used in Statutes creating crimes, misdemeanours and minor offences, and in such Acts it is used in two shades of meaning, one when referring to an act which is wrong or wicked in itself - recognized by everybody as wicked - as, for instance, when it is used with reference to certain sexual offences, or with reference to acts which are absolutely prohibited under all circumstances; the other when referring to some prohibition of positive law. The Customs Act 1901 has nothing to do with what is right or wrong or virtuous. It contains certain arbitrary rules which the legislature lays down. What is wrong is wrong because the Act says so, and for no other reason. The word 'unlawfully' must, therefore, there being no other relevant law, be read in that context as meaning 'in contravention of the provisions of this Act.'"

109 Each of Barton, O'Connor and Higgins JJ, in that case, applied what had been said by Stephen J in Clarence. Barton J concluded that the word "unlawfully", read in its context, meant in "contravention of a federal law". O'Connor J took the ordinary meaning of the word to be "something forbidden by a definite law whether Statute law or common law". Higgins J considered that the word "unlawful" meant "forbidden or condemned somewhere else, most probably in other sections of the Act".

"The words 'unlawfully and injuriously' in a section 'preclude all legal cause of excuse', per Lord Ellenborough CJ in R v Burnett [1815] EngR 827; 4 M & S, 272, at p 274. Mellor J in Taylor v Newman [1863] EngR 610; 4 B & S, 89, at p 94, interpreted 'unlawfully' as 'without any claim of right or colour of justification' -- which must of course be bonâ fide. There are numerous instances in the Criminal Codes of England and the Australian States where similar language is used to constitute an offence, but, if it were insisted that the illegality had to be defined by some other Statute, the provisions referred to would be useless. See, for instance, R v Prince LR 2 CCR, 154, at p 173, where Bramwell B (representing the views of seven Judges besides himself) said that the word 'unlawfully' means 'not lawfully, otherwise than lawfully, without lawful cause.' It is plain the legislature meant to make some possession unlawful, and I understand it to be possession that would contravene the Act, that would not exist if the provisions of the Statute were obeyed, and that the conscious possession by a person of any imported goods that could not, without some contravention of the Act, be in his possession at all is unlawful and therefore an offence."

111 The High Court has, on a number of occasions since that time, had cause again to consider the meaning of the word "unlawfully". On three of these occasions it did so in the context of provisions contained within the Tasmanian Criminal Code: see Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56; R v Phillips (1971) 45 ALJR 467 and Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10.

112 In Vallance the Court was required to consider s 172 of the Criminal Code (Tas) which provided that:

"Any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime."

113 Of the Judges there comprising the Court (Dixon CJ and Kitto, Taylor, Menzies and Windeyer JJ), three expressly considered the meaning of the words "unlawfully wounds". Kitto J (at 63) considered that the presence of the word "unlawfully" might be accounted for by the necessity of allowing for cases, such as "surgical operations the performance of which is lawful as s 51 of the Code provides, in which the circumstances supply a legal justification for what is done". However, he said (ibid) the expression "unlawfully wounds", read in its setting, connoted a mental element attending the doing of an act which caused a wound.

114 Taylor J obtained some help from s 8 of the Criminal Code Act 1924 (Tas), which provided that "all rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code". His Honour said that that provision made it very difficult to escape the conclusion that, for the purposes of s 172, a wounding must be taken to be unlawful unless justifiable or excusable according to the rules and principles of the common law.

115 Both Kitto and Taylor JJ construed the expression "unlawfully" by reference to its statutory context, which differs from that of the Code. In particular, there is no equivalent in the Code of s 8 of the Criminal Code Act 1924 (Tas). Their Honours' observations do not, therefore, afford assistance in the present case.

116 Windeyer J, at 78, after asking himself what was "unlawfully wounding", went on to say:

"Although wounding was not a crime at common law, it was, from very early times, a trespass. An 'aggravated species of battery', Blackstone called it: Commentaries, iii, p 121. But not all batterys were actionable trespasses. Some were always justifiable. Examples of these, commonly given in the old books, are a constable wounding a man resisting arrest, wounding in self-defence, wounding in the course of a game with cudgels (boxing is a modern equivalent), wounding in a surgical operation and so forth: See Comyn's Digest under 'Battery'; Hawkins' Pleas of the Crown i, pp 483, 484. 'Unlawful wounding' is thus a term that gets its meaning by reference to law outside the Code. The question is not whether the wounding occurred in the course of some prohibited conduct, such as shooting in a town contrary to the Police Offences Act or driving at an excessive speed contrary to the traffic laws. Nor, it seems, is a wounding that occurs merely by negligence, without intent or recklessness, and for which a civil action for negligence would lie, an unlawful wounding."

117 Windeyer J's observations are directed at the meaning at common law of the expression "unlawfully wounds". It has been accepted, in the construction of the various Australian criminal codes, that, if the Code has not defined an expression and its meaning is not clear from the context, resort may be had to the pre-existing law in construing that expression: Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at 437. However, it does not appear to us that Windeyer J's observations concerning the common law afford assistance in this case. We note that his Honour's survey of the common law was brief and that the real point of that discussion appears to have been directed to the question of whether the intention of the appellant was such as to give rise to criminal responsibility. R v Clarence was not cited in any of the judgments in Vallance, and it seems none of their Honours - including Windeyer J - considered whether that decision could assist in giving meaning to the word "unlawfully".

118 In any event, the expression with which we are concerned is not "unlawfully wounds", but "unlawfully does grievous bodily harm". To the extent that pre-existing law affects the meaning of that expression, it is our view that the law should be understood as explained in R v Clarence.

119 In each of Phillips and Boughey the Court was concerned with the meaning of the word "unlawful" in the rather different context of s 157(1) of the Criminal Code (Tas) which provided, inter alia, that "culpable homicide" was murder if committed, inter alia, "... (c) by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person". In the second of those cases Mason, Wilson and Deane JJ also considered s 184 of the Tasmanian Code which provided that "Any person who unlawfully assaults another is guilty of a crime". The Code did not define the word "unlawfully", but their Honours derived some assistance from s 8 of the Criminal Code Act 1924 (Tas) (referred to above) in concluding that an assault would be unlawful for the purposes of the Code unless it was justifiable or excusable under particular provisions of the Code or according to rules and principles of the common law whose applicability was not excluded by the express provisions of the Code.

120 Neither of these last mentioned cases, given their different context, seems to us to provide much assistance. The same might, in our respectful opinion, be said of the case of Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 (relied upon by counsel for the applicant) where, at 335, in considering the offence of manslaughter by an unlawful and dangerous act on an appeal from the Supreme Court of South Australia, Brennan, Deane and Dawson JJ said that, for the purposes of that offence, an unlawful act was one which was contrary to the criminal law.

121 In the end, it seems to us that the word "unlawful", in its context in s 297, should be given what we take to be its ordinary meaning of "prohibited by law" or, to put it differently, contrary to law and not excused (being the meaning put upon that word by this Court in Kuczynski). There is, in our opinion, nothing in the context of s 297 which would require that the word be given anything other than its ordinary meaning. While we recognise, from Murray J's comprehensive survey of the legislation, that there is no consistent approach, in the Code, to the use of the word "unlawfully", it seems to us to be significant that, in the case of s 277, which provides that any person "who unlawfully kills another" is guilty of a crime, the legislature has seen fit to include, by way of s 268, a definition of unlawfulness by providing that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. In our opinion, had the legislature intended that the word "unlawfully" should be similarly understood in s 297, it would have said so. Further, as we have noted, to the extent that the pre-existing law may assist in understanding the Code, R v Clarence supports what we would take to be the ordinary meaning of "unlawfully".

122 It may very well be the case that the act in question was unlawful in this case. Section 266 of the Criminal Code provides as follows:

"266 Duty of persons in charge of dangerous things

It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."

123 In R v Mwai [1995] 3 NZLR 149, the New Zealand Court of Appeal considered a similar provision in the form of s 156 of the Crimes Act 1961. That section provided as follows:

"156 Duty of persons in charge of dangerous things -

Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty."

124 There, the Court had to deal with a situation in which the appellant had unprotected sexual intercourse with several women at a time when he was infected with HIV and, in the course of doing so, infected two of those women. He was charged, inter alia, with criminal nuisance, contrary to s 145 of the Crimes Act which, so far as is relevant, made it an offence, inter alia, to omit to discharge any duty, knowing such omission would endanger the life, safety or health of any individual. The evidence was that the appellant had failed to disclose his infection to any of the women and also that he had not used a condom on any relevant occasion. The appellant submitted that, as he had no control over the virus, he had not omitted to discharge any legal duty in respect of it. On the other hand, the Crown, in its submissions to the Court, formulated what it contended had been the appellant's duty in terms of s 156 by saying that the appellant had under his charge and control seminal fluid infected with HIV and, because the infected semen might endanger human life in the absence of precaution or care, reasonable precautions and reasonable care required that the appellant use a condom if engaging in sexual intercourse.

125 The Court said, of this contention, that it was "certainly arguable" that there would be no duty if the partner had consented to run the risk, with the consequence that the duty to use a condom would arise only if there were a failure to disclose (page 156). However, that distinction was not significant in that case (as it is not in this case) because the appellant had there both failed to disclose his condition and to use a condom. The Court went on to say (at 156 - 157) that the expression "anything whatever", coupled with the adjectives "animate or inanimate", was one of deliberately wide import and that there seemed no reason to limit it by excluding a part of the bodily makeup that otherwise meets its definition. That being so, it said (ibid), there was "a strong argument" that the statutory duty was established, on the part of the appellant, in respect of his bodily fluid containing the virus.

126 Applying that logic to this case (and we do not see the word "whatever" in the New Zealand statute as adding anything of significance to the words "anything whether animate or inanimate"), it seems to us to be strongly arguable that the doing of grievous bodily harm to the complainant in this case was unlawful in that it was done in breach of the duty imposed by s 266 of the Code. That said, it also seems to us that the question whether or not the appellant's conduct was unlawful was one for the jury, rather than for this Court on an appeal. That issue never having been placed before the jury, the trial substantially miscarried in such a way as to exclude, in our opinion, the operation of the proviso to s 689(1) of the Code. As was said by Brennan, Dawson and Toohey JJ in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373:

"It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR, at p 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice."

127 That brings us to ground 9 of the grounds of appeal. By this ground the appellant contends that the trial Judge failed, contrary to the requirements in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210 - 211, to identify each of the lies relied upon by the Crown to prove guilt.

128 The prosecutor, in the course of his address to the jury, identified a number of lies which, he submitted, had been told by the appellant. One of these was said to be constituted by the appellant's denial that he had had anal intercourse with the complainant. The prosecutor said, in that respect:

"My learned friend dismisses the denial by the accused that he had anal intercourse with ... [the complainant]. He says, 'Don't worry about that.' The accused has lied to you. It's one thing to lie to ... [the complainant] over that period of time, which he obviously did by not telling her. It's one thing to lie to Mr Talikowski [an employee of the Western Australian Health Department who had been told by the appellant that he had had no sexual relationship, involving penetration, with the complainant], but when an accused man lies to you, Mr Foreman and members, you're entitled to treat that in a very different manner.

Why does he lie to you, to this jury? He lies to avoid conviction. He lies because he's conscious of his guilt and he has a fear of the truth. That's why that lie is told. You can understand the lie - why he would lie to you. How the virus infects the human body, organ and cells. Once the virus has entered the body by a passage through a break in the skin or mucosal surface or through injection into the bloodstream, it infects cells of the immune system."

129 The trial Judge, in directing the jury on the issue of the lies allegedly told by the appellant, generally followed the format suggested by the Court in Edwards, save that he said that he "need not actually outline the alleged lies because that has been done adequately and in detail by the crown prosecutor, both in cross-examination and in his final address".

130 It is well established that a lie can constitute an admission against interest only if it relates to a material issue and if it was told by the accused in circumstances in which the explanation for it is that he knew that the truth would implicate him in the commission of the offence: Edwards, above, at 210 and Zoneff v The Queen (2000) 200 CLR 234 at 244. As a general rule, an Edwards-type direction should only be given if the prosecution contends that the lie is evidence of guilt in this sense and if, in fact, the lie is capable of bearing that character: Zoneff, above, at 244. Where such a direction is required, each lie relied upon by the prosecution should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest: Edwards, above, at 210 - 211.

131 We do not consider that the alleged lie with respect to anal intercourse was in fact capable of bearing the character attributed to it by the prosecutor. There had been no real dispute as regards the proposition that it was the appellant who had infected the complainant. He did not deny that he had had vaginal intercourse with her and, as we have said, the evidence established that, even in the absence of ejaculation, the virus could be transmitted in this way (a proposition with which the appellant took no real issue).

132 It seems to us that the trial Judge should have identified each lie relied upon by the prosecution, as well as the circumstances and events that were said to indicate that it constituted an admission against interest. Had he done so, he would have appreciated that the alleged lie with respect to anal intercourse could not be so regarded and he would have, as we respectfully consider he should have, directed the jury that the alleged lie, if they found it to be a lie, should not be treated as reflecting a consciousness of guilt on the part of the appellant.

133 It consequently seems to us that this ground, too, has been made good. Given the conclusion at which we have arrived in respect of ground 13, it is unnecessary for us to consider whether there is, in the case of ground 9, scope for the application of the proviso.

134 Finally, and as we have foreshadowed, we wish to make some comments in respect of ground 8.

135 We agree with Murray J that nothing that was said by the trial Judge with respect to the drawing of inferences had the capacity to cause the applicant to suffer a miscarriage of justice. However, we consider it sufficient, in addressing the question whether or not a trial Judge should give the customary direction (that, where the jury relies upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances), to repeat what was said by Dawson J in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 578, as follows:

"Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given."

136 It follows, in our opinion, that leave to appeal should be granted, that the appeal should be upheld, that the appellant's conviction should be quashed and that a retrial should be ordered.

Houghton v The Queen [2004] WASCA 20

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Houghton v The Queen [2004] WASCA 20 (12 February 2004)

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