Reckless conduct endangering person - Unprotected anal intercourse between HIV infected accused and uninfected complainant - Defences - Consent - Whether informed consent to risk of infection with HIV constitutes defence to reckless or intentional conduct endangering a person with infection with HIV - R v Dica [2004] EWCA Crim 1103; [2004] QB 1257, R v Barnes [2005] 1 WLR 910, R v Konzani [2001] UKHL 10; [2005] 2 Cr App R 14, followed; R v Mwai [1995] 3 NZLR 149, R v Lee [2006] 3 NZLR 42, R v Currier [1998] 2 SCR 371, considered.

Rape - Mens rea - Accused's belief as to complainant's state of intoxication and lack of comprehension of sexual nature of act - Whether necessarily following that accused aware complainant not consenting or may not be consenting - Interrelationship between s 36 and s 37AA of Crimes Act 1958 - Belief in consent - Whether accused's belief that complainant consenting precluding finding that accused aware of possibility that complainant not consenting - R v Worsnop [2010] VSCA 188, followed - Crimes Act 1958, ss 36, 37AA and 37AAA.

Appeal against conviction allowed in part and convictions on counts of rape and reckless conduct endangering person set aside.

SENTENCE - On remaining counts, applicant re-sentenced to total effective sentence of 12 years' imprisonment with non-parole period of nine years.

1 Following a contested committal mention on 19 March 2007, the applicant was presented for trial on Presentment UO1180807 on multiple counts of causing or attempting to cause another person to be infected with HIV, and with a number of other offences, to which he pleaded as follows:

2 x Causing another person to be infected with HIV (Counts 1 and 14)[1]

14 x Attempting to cause another person to be infected with HIV (Counts 2, 7, 11, 15, 17, 19, 23, 25, 27, 29, 31, 33, 35 and 37)

(Counts 3, 6, 12, 16 18, 20, 24, 26, 28, 30, 32, 34, 36 and 38)

1x Administering a drug for the purposes of sexual penetration (Count 4)

3 x Possession of child pornography (Count 10, 40 and 45)

1 x Procuring sexual penetration by fraud (Count 13)

2 x Introducing a drug of dependence into the body of another

2 x Producing child pornography (Counts 42 and 46)[2]

2 On 16 June 2008, Presentment UO1180807.1 ('the trial presentment') was filed over preferring the counts to which the applicant pleaded not guilty, as follows:

14 x Attempting to cause another person to be infected with HIV

(Counts 2, 7, 8, 12, 14, 16, 19, 21, 23, 25, 27, 29, 31 and 33)

(Counts 3, 6, 9, 13, 15, 17, 20, 22, 24, 26, 28, 30, 32 and 34)

1x Administering a drug for the purposes of sexual penetration (Count 4)

1 x Procuring sexual penetration by fraud (Count 10)

3 After a trial of 39 days duration, on 31 July 2008, the jury returned a verdict of guilty on Counts 2, 4, 5, 6, 8, 10, 12, 14, 16, 18, 21, 26, 28, 29 and 31 and not guilty on Counts 1, 7, 11, 19, 20, 23, 24, 25, 27, 33 and 34 and, after a plea in mitigation of penalty, the applicant was sentenced as follows:[3]

Attempting to cause another person to be infected with HIV

Administering a drug for the purposes of sexual penetration

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Introducing a drug of dependence into the body of another

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Introducing a drug of dependence into the body of another

4 The applicant now seeks leave to appeal against conviction and sentence.

5 In brief substance, the alleged facts of the offences for which the applicant was presented were as follows.

6 The applicant was born on 26 August 1958. On 19 June 2000 he was diagnosed by Dr Michael Medland of the Centre Clinic, St Kilda, as being HIV positive. At that time, and thereafter as he received medical treatment for HIV, including Anti-Retroviral Therapy ('ART'), he was advised that it was his responsibility to practise safe sex and to inform his sexual partners of his HIV status. He was also handed publications about the transmission of HIV.

7 On 21 November 2001, Dr Medland made a complaint to Beth Hatch at the Department of Human Services ('DHS'), Partner Notification Office ('PNO'), about the applicant's sexual activity while HIV positive. As a result of his complaint, PNO opened and maintained a file on the applicant. Between November 2001 and 7 April 2006 the DHS served the applicant with three letters and four orders issued under section 121 of the Health Act 1958. Despite the orders, the applicant continued to engage in unprotected sex with a number of partners.

8 The applicant and PC first met in September or October 2000 and initially engaged in protected sex. They did not discuss HIV status. Later, there were many occasions when the applicant removed his condom after ejaculating and then reinserted his penis into PC's anus. Eventually, the applicant disclosed his positive HIV status to PC, who was HIV negative at the time. The applicant lied to PC that his viral load was undetectable and that he could not transmit the HIV virus. On that basis, PC agreed to have unprotected sex with the applicant (Counts 1, 2 and 3).

9 On one occasion, the applicant inserted crystal methylamphetamine ('crystal meth') into PC's anus (Count 4) and, due to its disinhibiting effects, PC allowed the applicant to have unprotected sex and ejaculate into his anus up to seven times (Count 5).

10 The applicant and ST first met in October 2005 and engaged in unprotected group sex in a toilet block and at the applicant's house (Count 6). Both of them were HIV positive and disclosed that fact to each other, after they had sex (Count 7). ST gave evidence that the applicant told him that he had 'made 75 people poz'.

11 The applicant and NS first met in 2002 on-line and then in person at the Laird Hotel in Abbotsford. They had sex at the Laird Hotel in a 'group-type situation'. NS was the receptive partner. They did not discuss HIV status before they had sex but, immediately after the applicant ejaculated into NS's anus, NS turned to the applicant and enquired of his HIV status. The applicant replied that he was negative. NS had unprotected sex with the applicant on two more occasions at the hotel later in 2002. The applicant ejaculated into NS's anus on the first and third occasions they had unprotected sex. NS did not query the applicant's HIV status on the second or third occasion (Counts 11, 12 and 13).

12 NGS and the applicant first met in September or October 2002 on 'Gaydar' and a few weeks later in person. They engaged in unprotected sex with the applicant ejaculating into NGS's anus. Neither man mentioned his HIV status. The following day, NGS bled from his anus due to the applicant's Prince Albert piercing (in effect a metal ring, something like an ear ring, worn by the applicant in his penis). They had sex again on or about 19 November 2002.

13 On 9 December 2002 NGS was advised by his doctor that he was HIV positive. NGS had not had unprotected sex with anyone other than the applicant around that time. After he received the diagnosis, NGS telephoned the applicant and the applicant then told him that he was HIV positive. NGS and the applicant continued to have a sexual relationship for some months after that. The applicant told NGS that his penis piercing 'makes breeding boy holes easier' and that he was responsible for infecting about 90 people with HIV (Counts 14, 15, and 16).

14 MB and the applicant first met in February 2005 at a 'sex party' in Prahran. They had sex with the applicant inserting his penis into MB's anus, with a condom, but when the applicant withdrew his penis there was no condom. The applicant did not mention his HIV status and, on that occasion, he did not ejaculate. The following day, they left the party and went to the applicant's home. As they left the party, MB asked the applicant whether he was HIV positive, to which the applicant replied that he was. MB was not HIV positive but falsely told the applicant that he was. They had sex again at the applicant's home.

15 Later, the applicant told MB that he had organised parties where HIV positive men would deliberately infect HIV negative men with HIV. The applicant called them 'conversion parties'. The applicant also told MB that his viral load was negligible or undetectable and that he could not transmit HIV.

16 MB next saw the applicant on Easter Saturday 2005. On that occasion, they went to another person's house in Fairfield where they all engaged in unprotected sex (Counts 17 and 18).

17 PW and the applicant met on 'Gaydar' on 23 May 2005. They discussed HIV status and both stated that they were HIV negative. They met in person at a 'sex party' at the applicant's home. Most of the people at the party, including PW, consumed some crystal meth. PW had unprotected sex with the applicant by inserting his penis into the applicant's anus.

18 During the next week, the applicant invited PW to his home, where they shared drugs and engaged in unprotected sex with PW inserting his penis into the applicant's anus (Counts 19 and 20).

19 On 15 June 2005, PW invited the applicant to his home. Before the applicant arrived, PW took an ecstasy tablet and when the applicant arrived they used more drugs. PW attempted to penetrate the applicant but was unsuccessful, due to the effect of the drugs. The applicant had a bag of sex toys with him which included ropes, snooker balls, golf balls, pegs and other items. PW chose some items from the bag which he agreed the applicant could use on him during the sex. They included a snooker ball but not a golf ball. The applicant rubbed around PW's anus using the snooker ball. PW said that, after a while, he perceived a change in sensation to something rougher, but he was so heavily drug affected that he did not remember much more (Count 22).

20 Later that night, he received a telephone call from the applicant, who said that he had inserted a golf ball into PW's anus. During that conversation, the applicant also told PW that he was HIV positive and that he 'gets off on infecting people with HIV' (Count 21).

21 SB and the applicant first met on 'Gaydar' during New Year's Eve 2003/2004. They met in person later that night at a 'sex party' in Prahran. They engaged in unprotected insertive and receptive anal sex. After the encounter, the applicant gave SB a lift home. During the trip home, the applicant told SB that he was HIV negative. Between January and April 2004, the applicant and SB engaged in unprotected sex on approximately six to eight occasions (Counts 25 and 26).

22 Later, as a result of a conversation with another person, SB confronted the applicant over his HIV status. The applicant again stated that he was HIV negative but, after further questioning, admitted to being HIV positive. He said, however, that his viral load was at zero so it meant he could not transmit HIV.

23 JOG and the applicant had known each other for approximately ten years. At the start of their relationship, they had unprotected sex at the applicant's home. Later, in December 2004, JOG contacted the applicant through 'Gaydar' and, in or about April 2005, he met the applicant at his apartment. They discussed the applicant's poor health and JOG assumed that the applicant was HIV positive. They had unprotected anal sex with the applicant ejaculating into JOG's anus. They also had unprotected anal sex in May 2005 with the applicant ejaculating into JOG's anus (Counts 29 and 30).

24 KFC and the applicant met on 'Gaydar' and then in April 2005 in person at the applicant's home. They engaged in sex where KFC used protection as the insertive partner. The applicant then rubbed his penis around KFC's anus without a condom. About a week later, they met again at the applicant's home. They had unprotected sex with each man inserting his penis into the other's anus. The last time they had sex was in April 2006 at the applicant's home. KFC inserted his penis into the applicant's anus. They never discussed HIV status (Counts 31 and 32).

25 RK first met the applicant in the first half of 2005 and was then invited to the applicant's home for sex. Before having sex, RK told the applicant that he only practised safe sex and he asked the applicant to remove his penis piercing and to wear a condom. They took some crystal meth. The applicant was the insertive partner. The applicant continually tried to remove his condom and RK had to keep reminding him that only safe sex would be practised between them. On two occasions, RK realised that the applicant had penetrated him without a condom. The applicant also replaced his penis piercing and attempted to penetrate RK with it without a condom (Counts 33 and 34).

26 BM met the applicant on 'Gaydar' in 2002. In late 2002, early 2003 they met in person at the applicant's home. They engaged in a 'group sex' session. There was no discussion of HIV status and the sex was unprotected. The applicant was the insertive partner and ejaculated into BM's anus.

27 Over the next 12 months they engaged in unprotected sex with the applicant ejaculating into BM's anus on three occasions. They had the same type of sex again in 2005. On that occasion, the applicant wore his penis piercing. After the sex, BM noticed some bleeding from his anus. He was concerned and phoned the applicant to enquire about his HIV status. The applicant said 'don't worry about me, you'll never catch anything from me'. They next saw one another about six to eight weeks later. They met at a hotel and travelled to BM's home. They had unprotected sex with the applicant inserting his penis into BM's anus. The applicant did not ejaculate (Counts 35 and 36).

28 In addition to the evidence of each of the complainants, the Crown called several treating health care professionals and administrators who had been involved in the applicant's care over the period of his offending. The effect of that evidence was that the applicant was for most of the relevant time well aware of his HIV positive status and his responsibility to avoid infecting others with the disease and yet continued to have sexual intercourse with other people knowing the risks and, at least in some cases, with the intention of infecting sexual partners with the disease.

29 Under Ground 1, the applicant contended that the judge erred by refusing to sever Counts 4 and 5 (administering a drug of dependence to PC for the purposes of sexual penetration, and rape of PC) and Count 21 (rape of PW). Counts 4 and 5 alleged the administration of drugs to PC and the rape of PC in or about August or September 2001, and Count 21 alleged the rape of PW on 15 June 2005. It was not suggested that the evidence of the attempts to infect PC and PW was not cross admissible with the evidence of the attempts to infect the other complainants.

30 Counsel for the applicant submitted that counts 4, 5 and 21 comprised of discrete allegations of a non-consensual sexual nature which were separated from each other in time and circumstance. Contrastingly, counsel said, all but one of the remaining counts alleged offences over the period 2001 to 2005 involved consensual sexual contact, whereby the applicant attempted to infect other complainants with HIV, or recklessly placed those other complainants in danger of serious injury. In counsel's submission, the evidence on Counts 4, 5 and 21 was thus not admissible on the remaining counts and created incurable prejudice in relation to the remaining counts which should have been avoided by a separate trial of counts 4, 5 and 21.

31 At relevant times, ss 372(3), (3AA) and (3AB) of the Crimes Act 1958 provided for the possibility of severance of a presentment, as follows:

(3) Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.

(3AA) Despite subsection (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together. [emphasis added]

(3AB) The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.

32 As Winneke P explained in R v Papamitrou:[5]

these amendments [s 372(3AA) and (AB)] make it appropriate that severance of the presentment:

... should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of Christou.[6]

33 In Christou the offender was presented for trial and convicted of sexual abuse of two young female cousins. He appealed to the House of Lords on a ground that the indictment should have been severed because the evidence of each girl was not cross-admissible. It was held that the test for severance was not cross-admissibility but one of fairness and the fair resolution of the issues. Lord Taylor of Gosforth said:

That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are:- how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows, as for example in R v Blackstock[7] and in the instant case, that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately.[8]

34 In Papamitrou, Winneke P concluded, however, that despite the changes effected by s 372(3A) and (3B):

it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will - in most cases - be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton ... will remain influential in this State.[9]

That approach has since been followed consistently in this court.

35 Approaching the matter in accordance with Papamitrou, we consider that the applicant's submission should be rejected, for several reasons. To begin with, the evidence concerning Counts 1, 2 and 3 (causing PC to be infected with HIV, attempting to cause PC to be infected with HIV and reckless conduct endangering PC (by infection with HIV)) was cross-admissible in relation to Count 5 (rape of PC) because the acts the subject of Counts 1, 2 and 3 bespoke the nature of the applicant's relationship with PC and logically that was relevant to whether the applicant raped PC.[10] That is to say, it demonstrated the applicant's homosexual interest in PC and showed the applicant's 'willingness to use [PC] as the object of gratification of a sexual interest or attraction directed at [PC']'.[11]

36 Secondly, the evidence concerning Count 19 (attempt to cause PW to be infected with HIV), Count 20 (reckless conduct endangering PW by infection with HIV) and Count 22 (introducing a drug of dependence into the anus of PW) was cross-admissible in relation to Count 21 (rape of PW), because it demonstrated the applicant's homosexual interest in PW and showed the applicant's 'willingness to use [PW] as the object of gratification of a sexual interest or attraction directed at [PW']'.[12]

37 Thirdly, in our view, the evidence concerning Count 5 (homosexual penile anal rape of PC) was cross-admissible in relation to Count 21 (homosexual anal rape of PW by the insertion of a golf ball into PW's anus) because, in each case, it was alleged that the applicant took advantage of his relationship with the complainant to penetrate the complainant when the complainant was so affected by crystal meth as to be unable to consent. Despite the different means of penetration used in each case, it appears to us that the use of crystal meth to overcome the complainant's lack of consent to anal penetration, by whatever means, but in otherwise similar circumstances, took the evidence of each offence out of the category of 'general evidence of sexual abuse' and gave it the level of special probative value which rendered it admissible as propensity evidence pursuant to s 398A of the Crimes Act 1958.[13]

38 Fourthly, and in any event, the mere fact that evidence which is admissible on one count is inadmissible on another is not ordinarily grounds for separate trials. Rule 2 of the Presentment Rules[14] permitted the joinder of Counts 5 and 21 in the one presentment because those offences, taken with the other offences alleged, formed part of a series of offences of the same or similar character; and, as s 372(3AA) and (3AB) make clear, even in the case of sexual offences, the presumption that counts may be so joined in one presentiment is not rebutted by reason only that evidence admissible on one count is inadmissible on another. Of course, the section calls for an exercise in discretion and it is an important consideration in the exercise of the discretion that, where evidence is not cross-admissible, the accused inevitably faces a degree of prejudice. But where the offences exhibit unusual common features, as they do here, a joint trial is in the general interests of justice 'regard being had to the interests not only of the [accused] but also ... the Crown, the witnesses and the public.'[15]

Ground 2: Directions as to attempted infection with HIV - Counts 2, 7, 8, 12, 14, 16, 19, 21, 23, 25, 27, 29, 31, and 33.

40 Counsel for the applicant advanced two contentions in support of Ground 2. The first was that the judge erred by directing the jury with respect to the counts of attempting to cause another person to be infected with HIV that, in order to convict the applicant, the jury had to be satisfied that the applicant 'believed that he may be infectious'. In counsel's submission, the judge should have directed the jury that they needed to be satisfied that the applicant believed that he was infectious.[16]

41 We accept that submission. In fact, the judge twice directed the jury that 'the facts and circumstances necessary for the commission of the offence' were that 'the applicant believed' that he may be infectious and that the complainant was not already HIV positive. After the first occasion, his Honour went close to correcting the problem by telling the jury later in the charge that 'you would need to find that he was infectious'. But later still, the judge reverted to the original formulation of 'the Crown have got to establish that [the applicant] believed he may be infectious'.

42 Counsel for the Crown acknowledged that the first and last ways in which the judge so put the direction were erroneous. But he contended that the error was cured by written directions which the judge gave the jury in the form of a two page document headed Elements of Charges and a 25 page document setting out a summary of the Crown case and defence case in relation to each count.[17] Counsel stressed that the mental element of the offence was correctly set out in Elements of Charges document,[18] as follows:

The accused intended or believed that at the time of the offence was to take place the facts or circumstances necessary for the commission of the offence would exist.

43 This was a description of the of the mens rea required by s 321N(2)(b) of the Crimes Act 1958. It did not instruct the jury as to what it was that the applicant must believe or intend. Counsel also emphasised that the judge read out that element from the document and directed the jury that the Elements of Charges document set out the elements of each offence which the Crown had to prove and that, if there were any conflict between it and the summary document, they were to follow the Elements of Charges document.[19]

44 In our view, the written direction was not sufficient to overcome the deficiencies in the oral directions. In order to have done so, the written direction would need to have stated that it was incumbent on the Crown to prove that the applicant knew that he was infectious. But, as has been noted, all that the written direction provided on the subject of the applicant's state of mind was that the Crown had to establish that the applicant intended or believed that the facts necessary for the commission of the offence would exist. Since the only direction given as to the fact to be established included the twice stated oral misdirection (that the Crown had to establish that the applicant believe that he may be infectious), the jury were likely to have been left with the impression that the Crown needed to do no more to establish intent than show that the applicant believed that he may be infected.

45 Counsel for the Crown submitted in the alternative that, even if that were so, the case was never argued on the basis that the applicant may have been infected with HIV - the Crown case was that the applicant was infected with HIV and was aware of his status - and thus that the jury must have appreciated that the matter of which they had to be satisfied was that the applicant knew that he was infectious, not simply that he may be.

46 We accept that submission in part. Plainly, the Crown did conduct its case on the 14 counts[20] of attempting to cause another person to be infected with HIV on the basis that the applicant was infected and knew that he was infected. As against that, the defence case in relation to eight[21] of those 14 counts was that the relevant acts of intercourse occurred at a time when the applicant had a low or undetectable HIV viral load and, therefore, that the Crown had not established that the applicant believed that he was capable of infecting others with HIV. But that defence applied to only five of the counts of attempting to cause another person to be infected with HIV of which the applicant was convicted,[22] namely, to counts 7, 14, 16, 21 and 25. In the case of the three other counts of attempting to cause another person to be infected of which the applicant was convicted, namely, counts 2, 8 and 12, it was not in issue that the applicant was HIV positive and knew that he had the capacity to infect sexual partners. In those cases, the only question was whether the applicant intended to cause the complainant to be infected, and there was abundant evidence that he did.

47 For those reasons, we uphold Ground 2(a) in relation to Counts 7, 14, 16, 21, 25, 27, 29 and 31 (as they were numbered on the second presentment) (or Counts 7, 17, 19, 25, 29, 31, 33 and 35, as they were numbered on the original presentment) but reject it in relation to Counts 2, 8, 12, 23 and 33 (as they were numbered on the second presentment) (or Counts 2, 11, 15, 27 and 37, as they were numbered on the original presentment).

48 The second contention advanced under Ground 2 (Ground 2(b)) was that the judge erred by directing the jury in a manner which foreclosed the question of whether, by having unprotected anal sex with a complainant, the applicant engaged in behaviour which was 'immediately and not remotely connected with the commission of the offence'[23] of attempting to cause the complainant to be infected with HIV. Counsel for the applicant submitted that, on any view of the evidence, the risk of infection through unprotected anal sex was at most less than even,[24] and thus should have been left to the jury to determine whether it met the test 'of being immediately and not remotely connected with the commission of the offence'.

49 We reject that contention. It proceeds upon a misconception that an act must be likely to produce an intended consequence before it may be regarded as immediately and not remotely connected with the intended consequence. To the contrary, an act may be sufficiently connected with an intended consequence if, according to common sense conceptions of causation, it is physically or otherwise proximate to that intended consequence, and even if it is very unlikely to produce the intended consequence. As Bray CJ explained in Leonard v Morris:[25]

... a man may desire a result from his act which he thinks unlikely to happen. There could be a case in which the defendant desires to impede the police officer and does something with the conscious object of impeding him even though he realises that he is very unlikely to achieve that object. It may be a desperate throw which by a violently improbable chance succeeds so that the officer is in fact impeded. In such a case I would say that the defendant was guilty. Suppose that in the hope that it will slow up a police car, and with the conscious object of slowing it up, the defendant fires a shot at a great distance at the tyre of the car. The shot may be very unlikely to hit the tyre. The chance of it so doing may be a thousand to one. It is not an act which is likely to impede or obstruct the police. Nevertheless if the thousand to one chance comes off and the tyre is hit I would say that, whatever other crimes the defendant may have committed, he has hindered a member of the police force in the execution of his duty. And I would say further that if it does not come off he has attempted so to hinder such a member. (emphasis added)

50 Further, as counsel for the applicant properly conceded,[26] short of injecting HIV into the bloodstream of a complainant, it is difficult to conceive of anything more immediately connected with infecting a complainant with HIV than an HIV infected man having unprotected anal intercourse with a complainant, especially when the HIV infected man is fitted with a Prince Albert piercing. As there was an appreciable risk that the complainant would become infected,[27] the act was immediately connected with the commission of the offence. Accordingly, if it were shown that the applicant intended to infect a complainant with HIV, and for that purpose engaged in unprotected anal intercourse with the complainant, there could be no doubt that the applicant thereby committed an act which was 'immediately and not remotely connected with the commission of the offence' of attempting to cause the complainant to be infected with HIV.

51 As to the element that the applicant intend to infect a complainant with HIV, it must be established that the applicant's purpose was to produce the consequence or result that the complainant be infected with HIV. Provided the applicant hoped to infect a complainant with HIV and believed that there was some chance he might be able to do so, it matters not that the applicant may have believed it was improbable that having unprotected anal intercourse with the complainant would result in the complainant becoming infected with HIV.[28]

52 It follows that, if the applicant were shown to have had unprotected anal intercourse with a complainant, with the purpose of infecting that complainant with HIV, the applicant was to be viewed as having committed an act which was 'immediately and not remotely connected with the commission of the offence' of infecting the complainant with HIV, with the intention that the complainant be infected with HIV, and thereby guilty of attempting to commit an offence of intentionally causing injury to the complainant.

Ground 3 - Directions as to reckless conduct endangering persons - Counts 3, 6, 9, 13, 15, 17, 20, 22, 24, 26, 28, 30, 32 and 34.

54 Turning to Ground 3(a), the applicant contended that the judge erred by declining to direct the jury that, in order to convict the applicant of reckless conduct endangering a complainant, the Crown had to establish that it was not reasonably possible that the complainant was aware of the risk of HIV infection and had voluntarily assumed the risk or, alternatively, that the applicant believed that the complainant was consenting to the assumption of the risk.

This Court is bound by the decision [in] Stein,[29] which stated that 'no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself,' as stated by Justice Vincent in McIntosh.[30] In the present matter, there is no argument contesting that HIV infection is a serious injury. Thus, the fact that the injury sustained in this matter occurred in a context different from that sustained by the deceased in Stein does not provide a compelling reason to not follow the Court of Appeal's reasoning. As Justice Vincent stated in McIntosh, if a victim consents to an activity that involved the infliction of significant physical injury 'or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized'.

In R v Welch,[31] the Ontario Court of Appeal held, 'the extent to which consent may form a defence to physical violence was a matter to be determined according to public policy and public interest.' In this case, we are faced with a matter relevant to the propagation of the HIV virus, which has been defined by the Crimes Act of 1958 as a 'very serious disease'. By making this specification through subsection (2) of Section 19A of that Act, the legislature has demonstrated its awareness of the general threat to public health that is posed by HIV. In my view public policy dictates that the medical welfare of society must be considered in matters involving the transmission of serious diseases, as it not only threatens the health of individuals, but also that of all Victorian citizens.

56 Counsel for the applicant accepted that Vincent J's remarks in R v McIntosh,[32] and the decision of this court in R v Stein,[33] may appear to support the judge's ruling. But, in counsel's submission, those cases are properly to be distinguished in accordance with the reasoning of the English Court of Appeal in R v Dica.[34]

57 We agree. The logical starting point is the decision of the House of Lords in Reg v Brown,[35] on which Stein was based. In Brown, the appellants were convicted of offences under s 20 and s 47 of the Offences Against the Person Act 1861 (UK) of occasioning grievous bodily harm and actual bodily harm in the course of ritual of sadomasochistic practices. The question on appeal was whether the victims' willing and enthusiastic consent to the practices provided a defence. Lord Templeman, who delivered the principal majority speech, reasoned that the question was to be decided according to whether ritual sadomasochism should be recognised as a 'lawful activity' in the same way that, for example, surgery or boxing or playing rugby are recognised as lawful activities. In turn, that was to be decided according to whether the perceived social advantages of the activity so outweighed the risk of harm which might flow from it as to render it a socially acceptable activity. Lord Templeman took account of the fact that there have been significant changes over time in the range of activities which are regarded as sufficiently socially utile or at least sufficiently socially acceptable to come within the bounds of lawful behaviour. But his Lordship reasoned that, despite changing attitudes towards homosexual practices, there was no evident social utility in homosexual sadomasochism. To the contrary, it involved the deliberate infliction of violence for no better reason than the indulgence of cruelty of sadists, and the degradation of victims, which was injurious to the participants and unpredictably dangerous. Thus, Lord Templeman concluded, it would be contrary to public policy and the public interest to extend the defence of consent to the infliction of bodily harm in the course of sado-masochistic encounters. Lord Jauncey of Tullichettle[36] and Lord Lowry[37] expressed concurring views.[38]

58 Lord Mustill and Lord Slynn of Hadley, who dissented, approached the matter from different perspectives. Lord Mustill accepted that there could be no question of consent amounting to a defence to a charge of occasioning grievously bodily harm contrary to s 20. But his Lordship reasoned that, so far as the offences of occasioning actual bodily harm under s 47 were concerned, the majority of the House were wrong to approach the question according to whether sadomasochism should be recognised as a lawful activity (and, therefore, whether the activities of the appellants should cease to be criminal). In his Lordship's view, it was a question of whether the public interest required s 47 to be interpreted as penalising a consensual infliction of actual bodily harm in private 'for the gratification of sexual desire, and not in a spirit of animosity or rage'.[39] His Lordship concluded that it was not.

59 Lord Slynn of Hadley approached the matter by a different route again. He too accepted that consent was not available as a defence to an offence of occasioning grievous bodily harm contrary to s 20. But his Lordship reasoned that, just as consent was a defence to common law assault occasioning less than grievous bodily harm,[40] so too it could be a defence to an offence of occasioning actual bodily harm contrary to s 47 of the Act, provided it was committed in private.[41]

60 Next, in R v McIntosh,[42] Vincent J was concerned with offending the result of sadomasochism, with the added complication that the offending conduct resulted in the victim's death, but without any dispute as to the basis of criminal liability. The accused pleaded guilty to manslaughter by deliberately pulling on a rope which, with the apparent consent of his sexual partner, he placed around her neck in order to heighten sexual pleasure in the activity in which they were engaged. In the course of passing sentence, Vincent J remarked that consent is not recognised as a defence to the infliction of significant physical injury, or to the reckless acceptance of the risk it will occur, in the course of sadomasochistic activity or bondage activity. That appears to accord with the view of the majority in Brown that where there is no social utility in the activity, consent is no defence. It also accords with the minority view of Lord Slynn that the seriousness of the injury is an important consideration.

61 Then in R v Stein,[43] this court dealt with sadomasochistic activities which resulted in death. The accused was charged with manslaughter after he placed a gag in the victim's mouth and thereby, unintentionally, choked him to death. Following Brown, and also Vincent J's observations in McIntosh, it was held that the victim's consent to the application of the gag could not be regarded as consent to the infliction of actual bodily harm and that, if the victim had consented to the application of the gag to his mouth, it would not have availed the accused, because by placing the gag in the victim's mouth, the applicant exposed the victim to a foreseeable risk of serious physical injury.

62 The decision in Stein is not inconsistent with the majority's decision in Brown, although, unlike McIntosh, it is more restrictive than the formulation suggested by Lord Slynn in Brown that, although consent is not available as a defence to a charge of occasioning grievous bodily harm (scil. really serious bodily harm), in certain circumstances it can be a defence to a charge of occasioning actual bodily harm. Logically, Lord Slynn's view is to be preferred. It accords with the test propounded by Martin J in R v Miller[44] and subsequently approved by the House of Lords in Director of Public Prosecutions v Smith,[45] which was later followed by McInerney J in Pallante v Stadiums Pty Ltd (No 1)[46] (to which Lord Slynn referred with approval in Brown[47]). The test of mere actual bodily harm has also been criticised in academic writings and, as was pointed out by the New Zealand Court of Appeal in R v Lee,[48] has in effect not been followed in a number of subsequent English decisions.

63 Whichever of those two views be correct, however, the decision of the English Court of Appeal in R v Dica[49] and subsequent decisions in England establish that different considerations apply where the question is whether consent to the risk of infection with HIV is a defence to a charge of conduct endangering life by engaging in sexual activity while infected with HIV.

64 In Dica, the defendant knew that he was HIV positive and had unprotected consensual sexual intercourse with two women who were both subsequently diagnosed as HIV positive. He was charged with two counts of inflicting grievous bodily harm, contrary to s 20 of the Offences Against the Person Act 1861, on the basis that he had recklessly transmitted the disease to the women when they did not know of, and did not consent to, the risk of infection. The trial judge ruled that it was irrelevant whether the women knew of the defendant's condition, because they did not have the capacity to consent to such serious harm. On appeal, it was held that, although a victim's consent to sexual intercourse was not, of itself, to be regarded as consent to the risk of consequent disease, a victim could consent to the risk of the disease and, if she did, it would provide the defendant with a defence under s 20. Judge LJ, who delivered the judgment of the court, reviewed the authorities which demonstrate that violent conduct involving deliberate and intentional infliction of bodily harm remains unlawful notwithstanding its purpose is sexual gratification of one or both participants. He reasoned that, although as a matter of public policy violent conduct could not be excused merely because there was 'a private consensual sexual element to it', and the same public policy reason would prohibit the deliberate spreading of disease, including sexual disease, it did not follow that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. His Lordship explained that:

These participants are not intent on spreading or becoming infected with disease through sexual intercourse. They are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk - not the certainty - of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse...

The problems of criminalising the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life ...[50]

65 In R v Barnes,[51] Lord Woolf CJ summarised the effect of the decision in Dica as being that an accused who knew that he was HIV positive, and infected a female sexual partner with HIV by having unprotected sexual intercourse with her, would have a defence to a charge of inflicting grievous bodily harm by infecting her with HIV if it were shown that he made her aware of his condition and that she '[was] still prepared to accept the risks involved and consented to having sexual intercourse with them'.

66 In R v Konzani,[52] the English Court of appeal re-affirmed the authority of Dica and Barnes while emphasising again that, in order for consent to operate as a defence to an offence of causing injury by the transmission of HIV, it must be informed consent. Judge LJ, who once again delivered the judgment of the court, stressed that:

For the complainant's consent to the risks of contracting the HIV virus to provide a defence, it is at least implicit from the reasoning in R v Dica, and the observations of Lord Woolf CJ in R v Barnes confirm, that her consent must be

an informed consent. If that proposition is in doubt, we take this opportunity to emphasise it.[53]

If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner ... the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant ... Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.[54]

67 In New Zealand, it is also accepted that informed consent may provide a defence to a charge of reckless transmission of HIV. In R v Mwai,[55] the accused was charged with two counts of reckless transmission of HIV to women with whom he had unprotected sexual intercourse, and two counts of criminal nuisance in relation to two other women with whom he had unprotected sexual intercourse but were not infected. The accused had not informed any of the complainants that he was HIV positive and, consequently, consent was not an issue. But, in dealing with the question of whether the accused was guilty of criminal nuisance,[56] by failing to discharge the duty imposed on him by s 156 of the Crimes Act 1961 (NZ) to use reasonable care to avoid endangering sexual partners with HIV, the New Zealand Court of Appeal stated that, although the duty might have been discharged by the use of a condom, it was arguable that the accused would not have been under a duty to use a condom if the complainant had consented to run the risk of infection with HIV. As Hardie Boys J put it:

Seen in this way, the duty to use a condom would arise only if there were a failure to disclose.[57]

68 In R v Lee,[58] the question was whether consent was a defence to an offence of causing death by an unlawful act (assault), or to an alternative count of causing death by failing to use reasonable knowledge, skill and care, in the course of an exorcism. As such, the case had nothing to do with the transmission of sexual disease. But, relevantly for present purposes, the New Zealand Court of Appeal held that consent would be a defence to the intentional or reckless infliction of injury (regardless of the level of injury inflicted) except in cases where public interest factors outweigh the social utility of the activity and the value which the New Zealand legal system places on personal autonomy.[59] As we later explain, in our respectful opinion it is an unjustifiable extension of principle to suggest that the defence can apply in the case of an intentional infliction of serious injury.

69 The Court did not express a view as to whether exorcism in general or in the case before them fell within the category of cases in which public interest in avoiding injury outweighs the social utility of the activity in question. Nor did their Honours offer any guidance as to how one should go about the assessment of the social utility of exorcism or other human activities. They said only that it was up to the individual trial judge in each case to decide as a preliminary matter after full argument and hearing any necessary evidence whether public policy requires that consent should not be a defence to the case of intentionally or recklessly causing grievous bodily harm with which the accused is charged.[60] But the court did refer to Konzani and Mwai in a manner which implied acceptance of the notion that informed consent may provide a defence to an offence of recklessly transmitting HIV to a sexual partner in the course of consensual sex. Their Honours said that:

Cases such as _Konzan_i and Mwai suggest that any consent must also be informed. We do not consider that there is anything intrinsically unfair or contrary to principle in such an approach. Normally, if the scope of the activity is understood by the person consenting, then the person will be assumed to have been consenting to any risks of that activity. Where, however, there is a known information imbalance about the risks involved between those giving and seeking consent, it does not seem unreasonable to require the person seeking consent to correct that imbalance. This requirement may, however, be limited to cases where the risk is major

because of the very serious consequences if it does eventuate (such as with unprotected sex and HIV).[61]

70 The position in Canada is also similar. In R v Cuerrier[62] it was accepted that consent would be defence to a charge of aggravated assault constituted by transmitting HIV to a sexual partner through unprotected sexual intercourse. The court did not expressly say anything about the need for consent to be informed consent. But it was held that any apparent consent to sexual intercourse would be vitiated by 'fraud' if the accused's failure to disclose his HIV positive status were dishonest and had the effect or exposing his sexual partner to a significant risk of serious bodily harm.

71 In the present case, counsel did not refer to any Australian authority on the point and our research has not revealed any Australian case in which it has been considered.[63] But, with respect, it appears to us that the reasoning in Dica is compelling. It is consistent with the view expressed in Brown that, absent social utility in the subject activity, informed consent may not be a defence. At the same time, it accords with the fact that it has not been thought necessary to criminalise those who recklessly take or accept the risks associated with consensual sexual intercourse. To do so would have ramifications which extend well beyond the criminal law to considerations of social and public health policy[64] and is more appropriately a matter for Parliament.[65]

72 In our view, informed consent is capable of providing a defence to a charge of recklessly endangering a person with HIV through unprotected sexual intercourse,

72 so long as the consent is communicated to the offender.[66] It follows that, in order for the Crown to succeed in a prosecution for an offence of reckless conduct endangering a person with HIV through unprotected sexual intercourse, if the accused puts consent in issue, the Crown must prove beyond reasonable doubt that the complainant did not give informed consent to the risk or that the accused did not honestly believe that the complainant had given informed consent to the risk.

73 It is different in the case of intentional infection of a complainant with HIV. Although it has been accepted in New Zealand that informed consent may constitute a defence to an offence of intentionally inflicting injury, as well as to an offence of recklessly inflicting injury,[67] that is not the law in England[68] and, in our view, it is not the law in this State. We consider that the distinction between indifference to the risk of probable infection and intent that it should occur has a justifiable moral basis. As Lord Templeman said in Brown,[69] in principle there is a difference between violence which is merely incidental to an activity and violence 'which is inflicted for the indulgence of cruelty'. As Judge LJ said in R v Dica, there is a similar distinction between the spreading of sexual disease which is merely incidental to consensual sexual intercourse and the intentional spreading of sexual disease through sexual intercourse. To adopt and adapt his Lordship's words, where the spread of sexual disease is merely incidental to sexual intercourse, the participants are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk - not the certainty - of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse. Contrastingly, where sexual intercourse is engaged in with intent to spread sexual disease it is, as a matter of public policy, just as unlawful as consensual violent conduct causing serious physical injury.[70]

74 The applicant also contended that the judge erred by failing to explain the law or sufficiently to relate it to the evidence and the parties' arguments. The first of those contentions was abandoned in the course of oral argument. As to the second, it is sufficient to record that, for the reasons already given, we consider that the judge failed to direct the jury adequately as to the elements of the offence of reckless conduct endangering a person and that his Honour should have directed the jury that, in order to convict the applicant of Counts 3, 6, 9, 13, 15, 17, 20, 22, 24, 26, 28, 30, 32 or 34, they had to be satisfied that the Crown had excluded beyond reasonable doubt:

a) The possibility that the complainant knew that the applicant was infected with HIV and consented to the sexual intercourse with the applicant knowing that it might result in the complainant becoming infected with HIV; and

b) The possibility that the applicant honestly believed that the complainant knew that the applicant was infected with HIV and consented to the sexual intercourse with the applicant knowing that it might result in the complainant becoming infected with HIV.

Ground 4 (a) and (b): Directions on rape - Counts 5 and 21

76 The elements of rape were set out in the Elements of the Charges document. As stated in the document, the third and fourth elements were:

[3]. The complainant did not consent to this act of penetration.

[4]. At the time this sexual penetration occurred, the accused was either:

• Aware that the complainant was not consenting; OR
• Aware that the complainant might not be consenting.

77 The judge also gave the jury the following oral directions with respect to those elements:

Now, the third element of consent. Now, this is the one that of course in a sense, if I can say, this is where the battle lines are drawn between the prosecution and the defence.

The prosecution must prove at the time of sexual penetration that the complainant, either [PC] or [PW], were not consenting. Consent is a state of mind. The law says that consent means free agreement. So, [PC] and [PW] will not have consented to the sexual penetration if he did not freely agree to be sexually penetrated.

The law identifies a number of circumstances where the complainant is deemed not to freely agree or consent to sexual penetration. Now, relevantly the circumstances include that if the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing - and that is clearly relevant to [PC], if you find it. And also that a person is mistaken about the sexual nature of the act, or the identity of the person. That, if you find, it would apply to [PW], that is, that he was mistaken about the sexual nature of the act.

So, the law has identified a number of circumstances where the complainant is deemed not to freely agree or consent to sexual penetration, and they are an example of the circumstances, if you find them, obviously.

If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to [PC] or [PW], you must find he was not consenting. However, you do not need to consider this question only by reference to these particular circumstances, if you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.

...

Let me tell you something about the fourth element, the state of mind of Mr Neal. The fourth element relates to Mr Neal's state of mind about the complainant's consent. The prosecution must prove beyond reasonable doubt that at the time of sexual penetration the accused was either aware that [PW] or [PC] was not consenting or aware that [PC] or [PW] might not be consenting.

I have already directed you about some circumstances that the law deems to be circumstances in which the complainant did not clearly agree or consent to the penetration, and I have given you an example. Applying those directions to this fourth element, this element will be therefore satisfied if the prosecution can prove beyond reasonable doubt that Mr Neal was aware that in [PC's] case he was so affected by the drug as to be incapable of freely agreeing, or Mr Neal was aware that [PC] might be in one of these states. And with regard to [PW], that Mr Neal with regard to this fourth element, if the prosecution can prove beyond reasonable doubt that Mr Neal was aware that [PW] was mistaken about the sexual nature of the act, or that Mr Neal was aware that [PW] might be mistaken.[71]

78 Under cover of Grounds 4(a) and (b), counsel for the applicant contended that those oral directions were in error because they amounted to saying that, although the applicant may have believed PC was consenting to sexual penetration, the applicant would be guilty in relation to PC if he also believed that PC might be so affected by the drug as to be incapable of freely agreeing, and guilty in relation to PW if he believed that PW might be mistaken about the sexual nature of the act. In counsel's submission, that was erroneous because s 37AA(b)(i) makes clear that whether an accused is aware that a circumstance specified in s 36 exists in relation to a complainant goes only to whether the accused's asserted belief in consent was reasonable. It is not determinative of whether the applicant actually believed that the complainant was consenting.

79 That submission must be sustained. Section 37AAA(c) provides that, if a jury is satisfied that a circumstance specified in s 36 exists in relation to a complainant, the jury must find that the complainant was not consenting. If s 37AAA(c) stood alone, it would be logical to suppose that, if a jury were satisfied that an accused was aware that a circumstance specified in s 36 existed in relation to a complainant, the jury should also find that the accused was aware that the complainant was not consenting. But s 37AAA(c) does not stand alone. Section 37AA provides that, in deciding whether the accused was aware that the complainant was not consenting, the jury is to have regard inter alia to any evidence of belief and, in the case of a proceeding in which the jury finds that a circumstance specified in s 36 exists, to whether the accused's belief was reasonable having regard to 'whether the accused was aware that that circumstance existed in relation to the complainant'. Section 37AA was introduced to ensure that the directions to a jury were sufficiently focussed upon circumstances relevant to disproof by the prosecution of an accused's asserted belief that the complainant was consenting. This accords with the conventional approach that reasonableness of belief bears upon the question of whether the belief was held.[72] The applicant's awareness of the relevant s 36 circumstance informs the reasonableness of any belief that the applicant claimed to have held as to the complainant's consent. Section 37AA thus contemplates the possibility of cases in which an accused was aware that a s 36 circumstance existed in relation to a complainant but, because of evidence that the accused believed the complainant was consenting, then notwithstanding that s 36 circumstance, the jury may not be satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting or might not be consenting. Read in the context of s 37AA, s 37AAA(c) cannot be taken to mean that it will be enough to establish that an accused was aware that a complainant was not consenting or might not be consenting to show that the accused was aware that a circumstance specified in s 36 existed in relation to a complainant.

80 It follows, in our view, that the judge erred by directing the jury that, if they were satisfied that PC was so affected by crystal meth as to be incapable of freely agreeing and that the applicant was aware that PC was so affected, they should find that the Crown had established beyond reasonable doubt that the applicant knew that PC was not consenting or might not be consenting. Similarly, his Honour erred in directing the jury that if they were satisfied that PW was mistaken about the sexual nature of the act of penetration, and the applicant was aware of that, they should find that the Crown had established beyond reasonable doubt that the applicant was aware that PW was not consenting or might not be consenting. The directions were erroneous because they equated awareness by the applicant of the circumstances of deemed consent under s 36(f) and (g) with awareness by the applicant of a lack of consent or of a possible lack of consent. The trial judge's direction foreclosed a finding that the Crown had failed to prove beyond reasonable doubt that the applicant was not aware that a complainant was not consenting or might not be consenting once the jury was satisfied that he was aware of the circumstances of deemed non-consent under s 36(f) and (g). The question of whether the accused was aware that the complainant was not consenting or might not be consenting must be determined by the jury on the evidence as a whole.

81 Admittedly, if the jury were satisfied that PC was so affected by crystal meth as to be incapable of consenting, and satisfied that the applicant was aware that was so, it is difficult to imagine that the jury would not also be satisfied that the applicant was aware that PC was not consenting or might not be consenting. Consequently, were it not for Ground 4(d), to which we shall come, it might be appropriate to apply the proviso to save the conviction on Count 8. But in view of the conclusion we have reached on Ground 4(d), we do not stay to consider that possibility further.

82 In the case of PW and count 21, it is clear that knowing that a complainant is mistaken as to the sexual nature of an act is not necessarily the same thing as knowing that the complainant is not consenting to the act or knowing that the applicant might not be consenting. There is also a further problem with Count 21, that PW's mistake was never precisely defined. On one view of PW's evidence, he did not know that he had been penetrated with a golf ball, or with anything else, until after the event. If so, his mistake was not about the sexual nature of an act of penetration, but a mistake about the fact of penetration. On another possible view of the evidence, PW was willing to be penetrated with a snooker ball but did not know, and therefore did not consent to, the applicant penetrating him with a golf ball. Even then, however, it seems to us that the mistake would have been one about the physical nature of the act, as opposed to the sexual nature of the act.

83 More precisely, we consider that the idea of being mistaken about the sexual nature of an act for the purposes of s 36(f) of the Act is practically speaking confined to cases where the complainant, though aware of the physical nature of the act of penetration, does not understand that it is sexual in nature. That might be the case, for example, with an intellectually handicapped complainant who lacks the mental capacity to comprehend the sexual significance of an act of penetration or with a complainant who has been misled to believe that the act is for therapeutic purposes other than medical or hygienic purposes of the kind described in s 36(g).

84 We say for practical purposes because, ultimately, it is a question of fact for a jury. But, given the circumstances of this case, if PW knew that the applicant was penetrating him with either a golf ball or a snooker ball, it is difficult to imagine that PC was mistaken that the act of penetration was not sexual in nature. Further, if the jury were satisfied that PW was aware that the applicant was penetrating him with some sort of ball, even if he did not know it was a golf ball, it is distinctly possible that the jury would not be satisfied beyond reasonable doubt that the applicant knew that PW was not consenting or might not be consenting to be penetrated with a golf ball.

85 Thus, in order properly to direct the jury on Count 21, it was necessary for the judge to identify what it was that was said by the Crown to be PW's mistake as to the sexual nature of the act of penetration, as opposed simply to any mistake about the nature of the object used to effect the penetration, and to identify for the jury what evidence there was as to PW's mistake as to the sexual nature of the act, as opposed simply to any mistake about the object used to effect the penetration. Absent directions of that specificity, the jury could not be expected to reason correctly to a conclusion, one way or the other.

87 Under Ground 4(c), counsel submitted that the judge erred by directing the jury that:

You might find that the accused believed the complainant was consenting, but still be satisfied beyond reasonable doubt that the accused was aware of the possibility that the complainant was not consenting. In that case the fourth element would be met.

88 We agree that the direction was erroneous. Although it accorded with the Victorian Charge Book (as it was at the time of the trial), and thus his Honour could not be criticised for framing the direction as he did, the subsequent decision of this Court in R v Worsnop[73] shows that the charge book was erroneous.

89 In Worsnop, another trial judge similarly charged a jury as to a count of rape, as follows:

Evidence of [the accused's] belief in consent must be taken into account by you when determining whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not, or might not be, consenting. Even if you find that the accused did have such a belief, you will still need to decide whether the prosecution has proved this fourth element. You might find that the accused believed the complainant was consenting, but still be satisfied, beyond reasonable doubt, that the accused was aware of the possibility that the complainant was not consenting. In that case the fourth element would be met.[74]

90 Ashley JA, with whom Buchanan JA, agreed held that the direction was erroneous, because:

if the jury concluded that the applicant believed that [the complainant] was consenting to ... penetration, the Crown necessarily failed to establish the fourth element [of rape] to the criminal standard. It mattered not that the belief was, let it be assumed, unreasonable. It followed that the last part of the charge just cited was erroneous.[75]

91 Counsel for the Crown fairly conceded that the impugned direction must now be regarded as erroneous. He submitted, however, that this was a case in which the proviso should be applied. He relied on the fact that the misdirection was not repeated in the immediately following section of the charge, in which the judge summed up the fourth element of rape; the fact that the misdirection did not appear in the Elements of Charges document; and the fact that the defence to each count of rape was, counsel said, patently fanciful. Further and in any event, in counsel's submission, convictions on the counts of rape were inevitable because of the overwhelming strength of the Crown case.

92 Taking those points in turn, we do not think that it assists the Crown that the misdirection was not repeated and that it was not included in the Elements of Charges document. In effect, the judge gave the oral direction by way of exposition of the Elements of Charges document. There was thus a perceptible risk that the jury paid regard to the oral direction and acted on it.

93 The same goes for the significance of the fact that the misdirection did not appear in the Elements of Charges document. The misdirection and the Elements of Charges documents are not ex facie inconsistent. There is no reason for the jury to have preferred one to the other. The appreciable risk remained that the jury took the oral direction as an explanation of the meaning of elements as set out in the written direction.

94 The suggestion that conviction was inevitable is equally problematic. We allow that the Crown case was in some respects a strong one. But, depending on the view which was taken of the complainants' evidence, there was also room for reasonable doubt. In the case of PC, there was no independent evidence of the applicant administering crystal meth. The only direct evidence of administration of the drug was PC's testimony that the applicant afterwards admitted to PC that he had administered it and penetrated PC while PC was under its effects. The applicant, however, denied that evidence and was able to point to the undisputed fact that, at and around the relevant time, PC engaged frequently in consensual penetrative sexual activity with the applicant. In the result, much was likely to turn upon the jury's assessment of PC's credibility and reliability.

95 The same is true in relation to the alleged rape of PW. Other things being equal, one might think it highly improbable, if not incredible, that a man would consent to having a golf ball inserted in his anus. But, seen in the context of the nature of the relationship between PW and the applicant, the idea is not as improbable as first appears. According to the evidence, PW became so infatuated with the applicant that he registered himself with the local council as a Rottweiler dog and then presented the applicant with the dog tags and collar as a gift. On the occasion in question, the applicant went to PW's house with a bag of sado-masochistic sex toys and PW then made a selection from them of those which he wanted to be used on him. Significantly, they included a snooker ball although, as we have observed, the way in which that was intended to be used is less than clear. More significantly, however, according to PW's testimony, the applicant infected him with HIV by having anal intercourse with him without disclosing that the applicant was HIV positive. Yet, even after PW learned of what the applicant had done to him, PW consented to further acts of anal intercourse with the applicant.

96 Faced with the natural limitations which exist in the case of an appellate court proceeding wholly or substantially on the record,[76] we are not persuaded that either rape was proved beyond reasonable doubt. We would not be prepared to decide one way or the other without first hearing and seeing PC and PW give their evidence.

97 During oral argument, counsel for the applicant sought and was granted leave to vary Ground 4 so as to add that the judge erred in directing the jury as to the elements of rape by including twice in the twenty-five page document that the mental element of rape would be established if, when penetration took place, the applicant 'was not giving any thought to whether the complainant was or might not be consenting'.

98 We agree that direction was erroneous. The words in question were added to s 38(2)(a) of the Crimes Act 1958 by s 5 of the Crimes Amendment (Rape) Act 2007. Section 9(2) of that Act provided that the amendment made by s 5 applies only to offences committed on or after the commencement of s 5. Section 5 did not commence to operate until 1 January 2008, which was after the offences of rape in this case were alleged to have been committed. It is remarkable and unfortunate that the prosecutor and defence counsel failed to bring that to the judge's attention.

Ground 5: Inadequate summary of the evidence, law, issues and arguments

100 Finally, under the heading of Ground 6, counsel argued that it was not open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. He advanced three contentions in support of that proposition.

101 First, he submitted that the evidence of the complainants was so unsatisfactory that it was unsafe to convict. We reject that submission. It was a matter for the jury to assess the credibility and reliability of the complainants. Whatever criticisms may be made of them, there is insufficient reason to conclude that it was not open to the jury to accept that they were witnesses of truth.[77]

102 Secondly, counsel submitted that the risk of unprotected anal sex resulting in the infection of the complainants with HIV was so low that it was not open to conclude that the applicant's behaviour was 'immediately and not remotely connected with the commission of the offence'. We have already dealt with that proposition under Ground 2(b) and, for the reasons given, we reject it. If the applicant were shown to have acted with the purpose of infecting a complainant with HIV, he was to be taken as having acted with the intention of infecting that complainant with HIV. It was not to the point that he may have believed that it was improbable that having unprotected anal sexual intercourse with the complainant would result in the complainant becoming infected with HIV.[78]

103 Thirdly, counsel argued that, even taking the evidence against the applicant at its highest, the risk of infection was so low that it was not open to conclude that the applicant's behaviour subjected the complainants to danger of infection with HIV, which is to say, an appreciable risk,[79] of infection with HIV. We disagree. As we apprehend the notion of an 'appreciable risk' of infection in this context, it means a real and potential danger of being infected with HIV which exceeds the ordinary risks of contracting HIV from homosexual anal intercourse.[80] Professor Grulich gave evidence that the risk of an HIV infected man transmitting HIV in a single sexual act of homosexual penile anal intercourse was between one in 200 and one in 33. Similarly, Associate Professor Mijch gave evidence that, although she did not 'feel comfortable' with the estimate of one in 33, apparently because she perceived it might have been based on too small a statistical sample, the estimate of one in 200 is what the Centres for Disease Control in America consider to be reasonable. Professor Grulich also gave uncontested evidence that the risk of infection would increase, and could increase dramatically, with the number of occasions on which a couple have sexual intercourse. On any reasonable view of the matter, therefore, it was open to the jury to conclude that the risk was sufficient.

104 Fourthly, the applicant's counsel submitted in writing, but did not press the submission in oral argument, that it was not open to conclude with respect to the counts of reckless conduct endangering life that the applicant believed that it was probable he was exposing the complainants to an appreciable risk of infection with HIV.

105 It is unsurprising that the submission was not pressed. Apart from the objective evidence of risk to which we have already referred, the applicant's treating psychiatrist, Dr Harte, gave evidence of conversations with the applicant wherein the applicant revealed that he was conscious of the risk of infecting sexual partners through unprotected anal intercourse and was intent on continuing to have unprotected anal intercourse notwithstanding the risk to others. The evidence also showed that the applicant was advised by other medical practitioners and contact tracers from the Department of Human Services over a period of years concerning the danger of transmitting HIV and that he was the subject of at least one order pursuant to the Health Act 1958 that he was not to have intercourse with another person without first informing them of his HIV status.

106 Finally, with respect to the counts of rape of PC and PW, it was submitted that, because the applicant and the complainants took drugs before the sexual intercourse alleged to constitute the rapes, and in view of the continuing sexual relationships between PC and PW and the applicant, it was impossible to exclude beyond reasonable doubt that the applicant believed that those complainants consented to the intercourse which was alleged to be rape.

107 We do not accept that submission either. Admittedly, if the matter were looked at on the basis only of the transcript, one might have doubts about whether the Crown can exclude as a reasonable possibility that the applicant believed that his acts of anal intercourse with PC and PW were consensual. But, as has already been observed, much depends upon an assessment of the credibility and reliability of PC and PW, which it is impossible to undertake satisfactorily on the basis of transcript alone.

108 For the reasons we have given, we shall allow the application for leave to appeal, treat the appeal as instituted and heard instanter and allowed, and quash the convictions sustained below on the counts of rape (Counts 5 and 21), the counts of attempting to cause another person to be infected with HIV (Counts 17, 19, 25, 33 and 35) and the counts of reckless conduct endangering a person (Counts 6, 30 and 32). Because the evidence as to the counts of administering a drug for the purposes of sexual penetration (Counts 4 and 22) is so closely bound up with the evidence as to the counts of rape, we shall also quash the convictions on those counts.

109 The effect of the foregoing is to re-open the sentencing discretion. Consequently, it is unnecessary to consider the applicant's application for leave to appeal against sentence as such. But it is appropriate as part of the re-sentencing process to take into account the submissions advanced on behalf of the applicant that the individual sentences, total effective sentence and non-parole period were manifestly excessive for a first time offender of the applicant's age and ill-health, in view of the circumstances of the offending.

110 Bearing those submissions in mind, we observe that, although the applicant is a first time offender, in the sense that this was the first time that he had been convicted of any such offence, his offending occurred over a period of years and thus the offences occurring later in that period warrant a greater degree punishment. We also note that, for the purposes of setting a new non-parole period, we have taken into account that the applicant is suffering from HIV and that his time in prison is particularly burdensome. Given the risks of re-offending, however, and the consequent need for community protection, we are not persuaded that a less than normal non-parole period is warranted.

111 On that basis, we have determined to re-sentence the applicant as follows:

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Attempting to cause another person to be infected with HIV

Introducing a drug of dependence into the body of another

[1] Contrary to s 19A of the Crimes Act 1958.

[2] The applicant was subsequently rearraigned on Count 46 and pleaded not guilty. The trial judge ordered a verdict of acquittal on that count.

[3] Note that, for the purposes of sentencing, the judge reverted to the numbering of the counts as they appeared in the original presentment, Presentment UO1180807.

[4] The sentence period is incorrectly recorded in the judge's sentencing remarks as 18 years and nine months with a non-parole period of 13 years and nine months.

[5] [2004] VSCA 12; (2004) 7 VR 375, 388.

[6] R v Christou [1997] AC 117, 129.

[7] (1979) 70 Cr App R 34.

[8] [1997] AC 117, 129.

[9] [2004] VSCA 12; (2004) 7 VR 375, 388 [27] (citation omitted).

[10] HML v The Queen (2008) 235 CLR 335, 395 [155]-[156].

[13] R v Kilbourne [1973] AC 729, 758; _BRS v The Qu_een [1997] HCA 47; (1997) 191 CLR 275, 283 (Brennan CJ).

[14] Crimes Act 1958, Schedule 6, Rule 2.

[15] R v Kray [1970] 1 QB 125, 131; Ludlow v Metropolitan Police Commissioner [1971] AC 29, 41 (Lord Pearson); R v Cogley [1999] VSCA 123; [1999] 3 VR 366, 373-4 [24] (Buchanan JA).

[16] Crimes Act 1958 s 321N(2)(b) requires -

(2) For a person to be guilty of attempting to commit an offence, the person must -

(b) intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place.

[17] A copy of the Summary was not on the County Court file. Both parties to this appeal are working from a 24 page document which matches the document given to the jury. It appears the pagination may have altered when the document was printed out in court.

[20] Counts 2, 7, 8, 12 14, 16, 19, 21, 23, 25, 27, 29, 31 and 33 .

[21] Counts 7, 14, 16, 21, 25, 27, 29 and 31.

[22] Counts 2, 11, 15, 17,19, 25, 33 and 35.

[23] Crimes Act 1958, s 321N(1)(b).

[24] The expert estimates ranged between one chance in two hundred and one chance in thirty three.

[25] (1975) 10 SASR 528, 531-532 (Bray CJ); see also Braysich v The Queen ([2009] WASCA 178; 2009) 238 FLR 1, 18 [65] (Buss JA); R v Reid [2006] QCA 202; (2006) 162 A Crim R 377, 396 [69]-[71] (Keane JA), 407 [108]-[113] (Chesterman J); Cross and Jones, Introduction to Criminal Law, 6th Ed, 41.

[26] And the expert evidence of Professor Grulich established it beyond reasonable doubt. See, too, and compare R v Parenzee [2008] SASC 245; (2008) 101 SASR 469, 473 [8]-[11] and [15] (Doyle CJ).

[27] See [103]-[104] below.

[28] Cf Amelia Evans, Critique of the Criminalisation of Sexual HIV Transmission [2007] VU Law Rw 30 (Conclusion).

[29] [2007] VSCA 300; (2007) 18 VR 376.

[30] [1999] VSC 358.

[31] [1995] 101 CCC (3d) 216.

[32] [1999] VSC 358.

[33] [2007] VSCA 300; (2007) 18 VR 376.

[34] [2004] EWCA Crim 1103; [2004] QB 1257.

[35] [1994] 1 AC 212.

[38] Lord Mustill and Lord Slynn of Hadley delivered dissenting speeches.

[39] [1994] 1 AC 212, 272-273.

[42] [1999] VSC 358.

[43] [2007] VSCA 300; (2007) 18 VR 376.

[44] [1951] VicLawRp 49; [1951] VLR 346, 357.

[45] [1961] AC 290, 334.

[46] [1976] VicRp 29; [1976] VR 331, 340.

[47] [1994] 1 AC 212, 279-280.

[48] [2006] 3 NZLR 42, 93-4 [199], [203].

[49] [2004] EWCA Crim 1103; [2004] QB 1257.

[50] [2004] EWCA Crim 1103; [2004] QB 1257, 1270 [47]-[51].

[51] [2005] 1 WLR 910, 913 [10].

[52] [2001] UKHL 10; [2005] 2 Cr App R 14.

[55] [1995] 3 NZLR 149, to which the Court of Appeal referred in R v Dica.

[56] Under s 145 of the Crimes Act 1961 (NZ).

[57] [1995] 3 NZLR 149, 156.

[58] [2006] 3 NZLR 42.

[62] [1998] 2 SCR 371, of which the effect was analysed by the NZ Court of Appeal in R v Lee [2006] 3 NZLR 42, 103 [243]-[245].

[63] Houghton v State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 mentions Dica, but in another context. See, however: Sexual Assault by HIV Positive Male (2004) 78 ALJ 782.

[64] R v Dica [2004] EWCA Crim 1103; [2004] QB 1257, [53]; Reg v Brown [1994] 1 AC 212, 282 (Lord Slynn of Hadley).

[65] See and compare Cherkassky L, Being informed: the complexities of knowledge, deception and consent when transmitting HIV (2010) 74(3) Crim L 242, 258; and Weait M, Knowledge, autonomy and consent: R v Konzani [2005] (Oct) LR 763_-772._

[66] The latter to avoid the problems identified in Cooper S, Informed consent and the transmission of sexual disease: Dadson revivified (2007) 71(5) J Crim L 461-474.

[67] R v Lee [2006] 3 NZLR 42, 114 [293], 115 [296]-[300]; see also Chatterjee I, HIV and consent: when yes means no (2010) 8(4) HIV Australia 20-22.

[68] Cf Matthew Weait, Criminal Liability for HIV Transmission (2005) 68 MLR 121, 130.

[69] [1994] 1 AC 212, 236.

[72] Jabir v R; Ahmed v R [2010] VSCA 342, [51].

[73] [2010] VSCA 188 [22].

[76] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [40].

[77] As to which, see SKA v The Queen [2011] HCA 13, [45] (Heydon J).

[78] Leonard v Morris (1975) 10 SASR 528, 531-532 (Bray CJ); Braysich v The Queen ([2009] WASCA 178; 2009) 238 FLR 1, 18 [65] (Buss JA).

[79] R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586, 604 [69].

[80] Cf R v De Montero [2009] VSCA 255; (2009) 198 A Crim R 68, 93 [78].