R v Aubrey

THE PARTIES' COMPETING CONTENTIONS 9The Crown's contention on the appeal was, in summary, as follows: "In the Crown['s] submission the word 'inflicts' should not be given a limited and technical meaning which requires that the harm result from a violent act which creates an immediate result. That being so, the transmission of a disease which manifests itself after a period of time can amount to the infliction of grievous bodily harm" (Written Submissions dated 21 August 2012 [35]). 10The respondent's contention was as follows: "The transmission of a disease may be the communication of the medium by which the disease is carried, but it is not, itself, the infliction of bodily injury or necessarily the infliction of bodily injury in the future. There may be a lengthy period of incubation or, indeed, the disease may manifest itself in a way which does not cause bodily injury, let alone really serious bodily injury. The distinction between an injury and an event, which might at some future point in time lead to what might properly be termed an injury, was recognised as early as the case of R v Clarence (1889) L.R. 22 Q.B.D. 23 at 41-42 per Stephen J ... " (Written Submissions dated 14 September 2012 [12]).

The provisions operative during the period of the alleged offences 11The following relevant provisions of the Crimes Act 1900 were operative during the period 1 January to 30 July 2004: "33 Wounding etc with intent to do bodily harm or resist arrest Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years. ... 35 Malicious wounding or infliction of grievous bodily harm (1) Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years. ... 36 Causing a grievous bodily disease A person: (a) who maliciously by any means causes another person to contract a grievous bodily disease, or (b) who attempts maliciously by any means to cause another person to contract a grievous bodily disease, with the intent in any such case of causing the other person to contract a grievous bodily disease, is liable to imprisonment for 25 years."

The Legislative History 12In 1851 the Better Prevention of Offences Act (UK) s IV was enacted, making it an offence to unlawfully and maliciously inflict grievous bodily harm. A similar provision was enacted in New South Wales in the Offences Better Prevention Act 1852 s 4. This provision was substantially re-enacted in 1883 in the Criminal Law Amendment Act s 24. 13A similar provision was then re-enacted in s 35 of the Crimes Act 1900. Prior to their enactment, the Crimes Act 1900 and other related statutes were described in their parliamentary Second Reading Speech as "consolidation bills" (Legislative Council, Parliamentary Debates (Hansard), 23 August 1990, Volume 105 at p 2362). 14In 1983 s 35 was re-enacted in substantially the same terms, with only formatting changes. This provision was still in force in almost identical terms in 2004 (see [11] above). 15In 1990 s 36, as set out in [11], was enacted as a new provision, the previous s 36 having been repealed in 1924. The Second Reading Speech relating to this enactment included the following: "The various assault offences in the Crimes Act 1900 are graded in seriousness according to a number of criteria including the particular harm caused. For example, section 59 of the Crimes Act 1900 contains the offence of assault occasioning actual bodily harm, whereas section 33 contains the offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. However, there is some doubt in the criminal law whether the contraction of a disease as a result of an assault constitutes bodily harm. This doubt results from the English decision in R v Clarence, reported in volume 22, Queen's Bench, 1888, at page 23. A person who intentionally inflicts a serious disease upon another should be convicted of an offence that reflects the gravity of the harm. This bill, therefore, creates a new offence that removes any doubt as to whether such conduct can be treated appropriately by the criminal law. This offence will be committed where a person maliciously causes another person to contract a grievous bodily disease, where the person intends the other person to contract a grievous bodily disease. It is not a requirement that the disease be actually causing any ill effects at the time of the prosecution. All that is required is that the victim has the disease. The offence also covers circumstances where there is an attempt to inflict the grievous bodily disease but the attempt fails." 16In 2007, s 36 was repealed and the definition of "grievous bodily harm" in s 4 of the Act was extended to provide that "a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease". The Explanatory Note accompanying the extension stated that: "The amendment extends the definition to make it clear that causing harm to a person includes causing a person to contract a disease. As a consequence, item [9] omits the separate offence under section 36". 17In his introduction of this legislation to the Legislative Assembly, Parliamentary Secretary Mr Barry Collier made the following remarks: "I turn now to the offence of inflicting a grievous bodily disease. Intentionally or recklessly infecting someone else with a serious disease is a horrifying breach of trust that many people in the community would find abhorrent. In some cases this can mean giving someone a lifelong illness or disability as well as helping to spread these terrible diseases. It is important to help protect the community from these crimes through punishing those offenders, with the prospect of them staying behind bars for a long time. This area of the law has been somewhat uncertain since the United Kingdom case of R v Clarence (1888) 22 QBD 23. The majority of the court in Clarence held that infecting another person with a sexually transmissible disease could not amount to inflicting grievous bodily harm. The authority of Clarence has been substantially eroded by a long line of critical or contrary decisions in the United Kingdom, Canada and Western Australia. However, it is at least arguable that it remains good law in New South Wales".

THE RELEVANT CASE LAW 18Central to the argument on this appeal was the 1888 decision of 13 judges of the Queen's Bench Division in R v Clarence. In that case the accused was convicted of "unlawfully and maliciously inflicting grievous bodily harm" upon his wife, and of "an assault" upon her "occasioning actual bodily harm". The Crown case was that the accused had had sexual intercourse with his wife when he knew, but his wife did not, that he was suffering from gonorrhoea. By a majority of nine to four, the Court held that the convictions should be quashed, as the conduct of the accused did not constitute an offence under either of the sections under which he was charged. 19Wills J, in the majority, said the following: " ... I think the section clearly points to the infliction of direct and intentional violence, whether with a weapon, or the fist, or the foot, or any other part of the person, or in any other way not involving the use of a weapon, as, for instance, by creating a panic at a theatre whereby people trampled upon one another: Reg. v Martin 8 QBD 54 ... I do not think this section was ever intended to apply to the administration of poison ... The Court for the consideration of Crown Cases Reserved in Reg v Taylor Law Rep 1 CCR 194 decided that in the offence of 'unlawfully and maliciously inflicting grievous bodily harm' an assault is necessarily included ... I think the argument is even stronger here, for the context seems to me to shew [sic] that direct personal violence of some kind was intended, so that even if the constructive assault contended for by those who support a conviction under s 47 were established, a conviction under this section would still be wrong" (pp 36 - 7). 20The judgment of Stephen J (with which at least six other majority judges agreed) included the following: "[I]s there an 'infliction of bodily harm either with or without any weapon or instrument'? I think there is not, for the following reasons. The words appear to me to mean the direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon, as by a blow with the fist, or by pushing a person down. Indeed, though the word 'assault' is not used in the section, I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result. ... The administration of poison is dealt with by s 24, which would be superfluous if poisoning were an 'infliction of grievous bodily harm either with or without a weapon or instrument'. The one act differs from the other in the immediate and necessary connection between a cut or a blow and the wound or harm inflicted, and the uncertain and delayed operation of the act by which infection is communicated" (pp 41 - 42). 21The views of the other judges in the majority were to similar effect. 22In R v Halliday (1889) 61 LT 701; 6 TLR 109, the Court for the hearing of Crown Cases Reserved held that a person had properly been convicted of unlawfully and maliciously inflicting grievous bodily harm where his threats to his wife frightened her, causing her to fall whilst attempting to escape from him. Lord Coleridge CJ observed: "If a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result." 23In R v Salisbury [1976] VR 452, the applicant had been convicted under s 19A of the Crimes Act 1958 (Vic) of maliciously inflicting grievous bodily harm. On appeal, the Victorian Full Court rejected the applicant's contention that the trial judge should have left the charge of assault to the jury as an alternative upon which it was open to the jury to convict the applicant because a charge of assault was not necessarily encompassed within the charge of maliciously inflicting grievous bodily harm. 24The Court reviewed the authorities, including R v Clarence and R v Halliday, and observed in relation to R v Halliday: "The members of the Court did not direct their attention to the question whether the prisoner could not be convicted unless the facts showed an assault. There is at least some difficulty in seeing that there was any assault, but it would seem that there had been 'the infliction of direct and intentional violence' in the sense in which Wills J had used that expression in R v Clarence, supra. ... Since R v Martin, supra and R v Halliday, supra were decided [see 22] above) in 1881 and 1889, the English courts have apparently proceeded upon the basis that factual situations similar to the ones that arose in those cases were within the scope of the offence of inflicting grievous bodily harm ... At the same time, the English courts have apparently also proceeded upon the basis that common assault (and assault occasioning actual bodily harm) were alternative verdicts which were open on a charge of inflicting grievous bodily harm ..." (at 458). 25The Court concluded as follows: "None of the cases in the two lines of English authorities are binding on us, though all are of considerable persuasive power. Having examined the cases for the purpose of obtaining assistance with the construction of s 19A, we have found the reasoning in the line of authority which includes R. v Martin, supra, the judgment of Wills J, in R v Clarence, supra, and R v Halliday, supra, more persuasive and of more assistance in construing s 19A than the line which has continued to maintain that assault is an alternative verdict on a charge of inflicting grievous bodily harm. It may be that the somewhat different wording of s 20 of the English Act has played a part in bringing about the existence of the two lines of authority in England, but, be that as it may, we have come to the conclusion that, although the word 'inflicts' in s 19A does not have as wide a meaning as the word 'causes' in s 17, the word 'inflicts' does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted, contrary to s 19A, either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'inflicted' it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault, contrary to s 37, are not necessarily included in the misdemeanour of inflicting grievous bodily harm, contrary to s 19A" (at pp 460 - 461). 26In the present case the Crown relies upon R v Salisbury as authority for the proposition that the offence of inflicting grievous bodily harm may be committed without the occurrence of assault. The respondent accepts this in his submissions, noting that he "does not contend that s 35 Crimes Act 1900 requires an assault" (Written Submissions dated 14 September 2012, footnote 8). However the respondent relies upon R v Salisbury for the proposition that although the accused's act need not be "itself a direct application of force to the body of the victim", it must "directly result in force being applied violently to the body of the victim". These are the words used in R v Salisbury (see the third paragraph quoted in [25] above). 27The conclusion that grievous bodily harm can be inflicted without the commission of an assault was accepted by the House of Lords in R v Wilson [1984] AC 242 and by this Court in R v Cameron (1983) 2 NSWLR 66. 28In R v Ireland [1998] AC 147, complainants suffered psychiatric illnesses as a result of non-violent harassment by the accused, including silent telephone calls. The House of Lords held that both accused were properly convicted of maliciously inflicting grievous bodily harm, notwithstanding the absence of a direct or indirect application of force to the body. Lord Steyn (with whom the other members of the House agreed) observed that "one can nowadays quite naturally speak of inflicting psychiatric injury" (at 161). Lord Hope concluded: "As the Supreme Court of Victoria held in Reg. v Salisbury [1976] VR 452, it is not a necessary ingredient of the word 'inflict' that whatever causes the harm must be applied directly to the victim. It may be applied indirectly, so long as the result is that the harm is caused by what has been done. In my opinion it is entirely consistent with the ordinary use of the word 'inflict' in the English language to say that the appellant's actions 'inflicted' the psychiatric harm from which the victim has admittedly suffered in this case" (at 164 - 5). 29In R v Dica [2004] EWCA Crim 1103; QB 1257, the Court of Appeal for England and Wales held that a person who, knowing that he was suffering from a serious sexual disease, recklessly transmitted it to another through consensual sexual intercourse could be guilty of inflicting grievous bodily harm. The Court observed: "30 Such differences as may be discerned in the language used by Lord Steyn and Lord Hope respectively [in R v Ireland] do not obscure the fact that this decision confirmed that even when no physical violence has been applied, directly or indirectly to the victim's body, an offence under section 20 may be committed. Putting it another way, if the remaining ingredients of section 20 are established, the charge is not answered simply because the grievous bodily harm suffered by the victim did not result from direct or indirect physical violence. Whether the consequences suffered by the victim are physical injuries or psychiatric injuries, or a combination of the two, the ingredients of the offence prescribed by section 20 are identical. If psychiatric injury can be inflicted without direct or indirect violence, or an assault, for the purposes of section 20 physical injury may be similarly inflicted. It is no longer possible to discern the critical difference identified by the majority in Clarence, and encapsulated by Stephen J in his judgment, between an "immediate and necessary connection" between the relevant blow and the consequent injury, and the "uncertain and delayed" effect of the act which led to the eventual development of infection. The erosion process is now complete."

The terms of the legislation in force at the time of the alleged offences 30In the period 1 January to 30 July 2004, both ss 33 and 35(1)(b) criminalised the infliction of grievous bodily harm (the former where the offender acted maliciously and with a specified intent and the latter where he or she simply acted maliciously). The respondent submitted that if the concept of infliction encompassed the transmission of disease, s 36 (introduced in 1990) would have been redundant. Accordingly he submitted that s 33 should be construed as excluding the transmission of disease and, because it used the same word ("inflicts"), s 35(1)(b) should be similarly construed. 31The respondent relied in this respect upon the following observations made in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]: " ... a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'" (citations omitted). 32However this principle does not in my view assist the respondent. Sections 33 and 35(1)(b) formed part of the Crimes Act long before s 36 was enacted in 1990 (see [12] - [14] above). Both sections thus had a meaning prior to the enactment of s 36. For the terms of s 36 to assist the respondent in the present case, the conclusion would have to be reached that the legislature, by enacting s 36, intended to change the meaning of ss 33 and 35(1)(b). (If the word "inflicts" already had the narrow meaning contended for by the respondent, there would be no need for him to resort to this argument). 33To assist in ascertaining the legislature's purpose in enacting s 36, regard can be had to extrinsic materials, including the relevant Second Reading Speech (Interpretation Act 1987, ss 33 and 34; D C Pearce and R C Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [3.7]). That speech (see [15] above) indicates that s 36 was introduced because the legislature was concerned that s 33 might not cover the causing of harm by the intentional transmission of a disease. The legislature did not proceed on the basis that s 33 had a settled meaning conforming with the respondent's contentions in this case or had a wider meaning that needed to be narrowed to give the new section some operation. Rather, it showed an intention to fill the gap in s 33, if there was one. It follows that there was no narrowing of the ambit of s 33 as a result of the 1990 legislation, and no corresponding effect on the ambit of s 35(1)(b).

Subsequent legislative amendments 34The respondent submitted that the 2007 legislative amendments (see [16] above) indicated that the legislature regarded s 35(1)(b) as having the narrow construction for which he contends, otherwise the broadening amendments would have been unnecessary. The respondent submitted that it was permissible to have regard in this way to subsequent legislative amendments in construing an ambiguous statutory provision (see Commissioner of Taxation v Energy Resources of Australia Ltd [2003] FCAFC 314; 135 FCR 346 at [19]). 35Again, recourse to parliamentary Hansard is permissible to ascertain the purpose of the amendments (see [17] above). That reveals that they were made against the background of what the relevant Minister thought were continuing doubts as to the ambit of s 35(1)(b) and thus were made to ensure that the legislation contained, without doubt, a provision criminalising the malicious transmission of a serious disease. Again, the extrinsic material indicates that the legislature did not proceed upon the assumption that s 35(1)(b) had a settled meaning conforming with the respondent's contention. At most, the 2007 amendments recognised the existence of uncertainty concerning that meaning by including in the legislation a new provision not attended by uncertainty. In these circumstances the 2007 amendments do not assist the respondent.

Use of Parliamentary Speeches 36The respondent submits that the parliamentary Hansard from 1990 and 2007 quoted in [15] and [17] above indicates that the proper construction of s 35(1)(b) is that for which he contends. 37The first answer to this submission is that the use the respondent seeks to make of the speeches is not to assist in understanding the meaning or effect of the amending legislation to which the speeches related (compare [15] and [17] above) but to use comments in the speeches about the pre-existing law as authoritative expositions of the law. This is not a permissible use of extrinsic material. As noted by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [15]: the "authoritative determination of the meaning of a statutory provision is an exercise of the judicial power, not of the legislative power". 38Secondly, the comments do not in any event indicate that the relevant minister had a view as to the correct construction of s 35(1)(b). They simply indicate, in both cases, that the minister considered there to be uncertainty concerning the ambit of offences involving the infliction of grievous bodily harm.

The re-enactment principle 39The respondent submits that by re-enacting in s 35(1)(b) of the Crimes Act 1900 the provision that was formerly in s 4 of the Offences Better Prevention Act 1852, the legislature manifested an intent that the words of s 35(1)(b) be interpreted in accordance with the views expressed in R v Clarence. Alternatively, the respondent submits that Parliament manifested that intent by re-enacting s 35 of the Crimes Act by Clause 1 Schedule 1 of the Crimes (Amendment) Act 1983 in identical terms (save for some minor formatting changes). 40The respondent relies upon the following principle stated in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 at 106: "There is abundant authority for the proposition that where the parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]', although the validity of that proposition has been questioned. But the presumption is considerably strengthened in the present case by the legislative history of the Act" (citations omitted). 41The relevant history in that case included a judicial decision interpreting the provision subsequently re-enacted, a Committee of Review recommendation conflicting with that decision, a statement in the Second Reading Speech that the government had decided not to adopt that recommendation and, finally, the re-enactment of the provision in an unchanged form. The facts thus strongly favoured the application of the re-enactment principle. 42The decisions questioning the validity of the principle, to which the Court referred in Re Alcan, were Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully [1952] HCA 4; 85 CLR 159 at 174 and 182, R v Reynhoudt [1962] HCA 23; 107 CLR 381 at 388 and Flaherty v Girgis [1987] HCA 17; 162 CLR 574 at 594. 43In Salvation Army (Victoria) Property Trust, Dixon, Williams and Webb JJ said at 174 that: "[The re-enactment principle] affords at most a valuable presumption as to the meaning of the language employed. It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous". 44In the same case Fullagar J observed that the principle: "is a familiar, but somewhat artificial, argument. It never carries great weight: indeed it can seldom be effectively used except as lending additional support to a view which is already supported by an independent argument" (at p 182). 45In R v Reynhoudt, Dixon CJ said at 388: "In any case the view that in modern legislation the repetition of a provision that has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of lawmaking no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed". 46In Flaherty v Girgis at 594, Mason ACJ, Wilson and Dawson JJ, referring to R v Reynhoudt, said: "For the reason given by Dixon CJ, the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct". 47Furthermore, in Williams v Dunn's Assignee [1908] HCA 27; 6 CLR 425 at 441, Griffiths CJ indicated that the principle only applied where "it appears that the Legislature intended to apply their minds to the subject" and not where "the Legislature intended a mere consolidation of existing statutory provisions". Similarly, in Melbourne Corporation v Barry [1922] HCA 56; 31 CLR 174 at 188, Isaacs J said with reference to consolidating Acts: "In passing those Acts, Parliament was addressing its mind not to the matter but the form of the law, and was considering not what it should enact but how existing law should be arranged. Statutory provisions were collected and systematized, but with the intention that their effect was to be precisely the same after the work was completed as before". See also D C Pearce & R S Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [3.45]. 48As indicated by the Second Reading Speech referred to in [13] above, the Crimes Act 1900 was an Act which consolidated earlier statutory provisions. The respondent pointed to some changes of substance that were made by the Act but these were minor and did not in my view deprive the Crimes Act of its character as a consolidating statute. The respondent has not provided any basis for concluding that Parliament, or its advisors, thoroughly reviewed the substantive effect of, and decisions concerning, all of the pre-existing provisions that were incorporated into the Crimes Act 1900 or that this was at least done for s 35(1)(b)'s predecessor. Thus, one cannot infer that the legislature addressed its mind to the content of s 35(1)(b) and decided to adopt, in relation to it, the interpretation of a cognate UK provision in R v Clarence. 49Quite apart from the consolidating character of the Crimes Act 1900, the historical background to the Act was far removed from that in Re Alcan where there was a strong indication of the legislature's intention. 50Similarly, I do not consider the legislature's re-enactment of s 35(1)(b) in 1983 assists the respondent. By that stage R v Salisbury, which took a different view to R v Clarence, at least on the important issue of whether the infliction of grievous bodily harm required an assault, had been decided. In those circumstances no inference could be drawn from the re-enactment that the legislature intended to adopt the R v Clarence approach. In order for the presumption to carry any weight, the state of the law must have been certain at the time the provision was re-enacted.

CONCLUSION AS TO THE PROPER CONSTRUCTION OF S 35(1)(b) 51It remains for me to reach a conclusion as to the proper construction of s 35(1)(b) taking into account my earlier description of the relevant case law and my review of the respondent's legislative arguments. The task is to identify the law as it stood between 1 January and 30 July 2004, the period in which the respondent's offence charged under Count 2 was allegedly committed. Cases decided after that period may in my view be taken into account insofar as their reasoning sheds light on how s 35(1)(b) would have been interpreted by a court if the issue had arisen in that period. 52I start with the language of s 35(1)(b). The word upon which the appeal turns is "inflicts". The meanings of the word given in the Macquarie Dictionary are: "(1). To lay on: to inflict a dozen lashes (2). To impose as something that must be borne or suffered: to inflict punishment (3). To impose (anything unwelcome)." 53In my view these definitions do not confine the word to the application of force. As the second definition indicates, the concept is broader, for example, a parent "inflicts" punishment on his or her child when the child is sent to its room, not simply when it is struck. The child's confinement to its room is something that must be "borne or suffered". Likewise it conformed with ordinary parlance to describe the accused's non-violent harassment in R v Ireland (see [28] above) as having "inflicted" psychiatric harm on the victim. 54It is consistent with the conclusion reached in R v Salisbury, and the subsequent cases to which I have referred, that the infliction of grievous bodily harm does not necessarily involve an assault. R v Salisbury and the decision of this Court in R v Cameron were decisions that this Court would have been bound to follow in 2004, unless it took the view that they were plainly wrong (see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]; Hili v R [2010] HCA 45; 242 CLR 520 at [57]). In my view however they were correct and would have been followed in 2004 in construing section 35(1)(b), bearing in mind that none of the respondent's statutory arguments would have required the adoption of his interpretation of s 35(1)(b). The respondent's submissions reflect the inevitability of this conclusion as he does not contend that an assault is an essential element of the offence (see [26] above). 55The argument that the respondent does put however is that "infliction" of an injury nevertheless requires a direct and immediate connection between the accused's conduct and the injury. The respondent claims that there is a distinction, recognised in R v Clarence, "between an injury and an event which might at some future point in time lead to what might properly be termed an injury" (Respondent's Submissions dated 14 September 2012 at [12]). He submits that the continuing relevance of this distinction was recognised in R v Salisbury in the Court's statement, noted earlier but repeated here for convenience: "In our opinion, grievous bodily harm may be inflicted, contrary to s 19A, either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'inflicted' it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm." 56In R v Clarence, Stephen J, who gave the principal majority judgment, distinguished between the direct causing of an injury by assault (where there is an "immediate and necessary connection") and "the uncertain and delayed operation of the act by which [an] infection is communicated" (see [20] above). The judgment of Wills J, also in the majority, similarly concluded that the section required "the infliction of direct and intentional violence" (see [19] above). In my view the subsequent rejection of the requirement for an assault (see [23] - [25] above) necessarily involves a complete rejection of the authority of R v Clarence. I do not think that one can excise the requirement of an assault from the majority judgments in R v Clarence and find remaining a proposition concerning the concept of "infliction" for which the case stands as authority. The majority reasoning was that infliction required a direct and immediate connection between the accused's act and the injury and that this necessarily involved an assault. Rejection of the need for an assault necessarily involves a rejection of the need for a direct and immediate connection. 57In R v Salisbury, the Victorian Full Court was concerned only with the questions of whether a charge of assault was encompassed within a charge of maliciously inflicting grievous bodily harm and whether the infliction of grievous bodily harm therefore necessarily involved an assault. Having answered those questions in the negative, it was unnecessary for the Court to determine what conduct falling short of an assault would suffice to constitute "infliction". Its reference to the way in which grievous bodily harm may be inflicted without an assault was thus obiter dicta and not binding authority for the proposition that some act was still needed that "directly result[s] in force being applied violently to the body of the victim, so that he suffers grievous bodily harm". As I have said, that proposition must be rejected if the requirement of an assault is rejected. The proposition is not, and was not in 2004, supported by binding authority and does not in my view accord with the ordinary meaning of "inflicts". 58It is apparent that that proposition was stated in the judgment because the Court decided to reject the line of authority which had treated assault as a necessary element in favour of authority indicating the contrary (see [25] above). R v Martin and R v Halliday had dealt with situations in which the victim was subjected to force, but not by the direct act of the accused. It was unnecessary in these cases, or in R v Salisbury, to consider whether there could be an "infliction" of harm where, as in R v Ireland and the present case, the victim was not subjected to force at all. 59There was no suggestion in R v Ireland that R v Salisbury was authority for the proposition that whilst the infliction of grievous bodily harm does not require an assault, the grievous bodily harm must be suffered as a direct, rather than indirect, result of the accused's act. Such an argument would have been relevant on the facts of that case as the psychiatric injury was suffered not only as a result of silent telephone calls but also as a consequence of the distribution of offensive cards in the complainant's street, the sending of menacing notes, and the taking of photographs of her and her family. On the contrary, the House of Lords held that a direct application of force to the body was unnecessary. 60R v Ireland is not, and was not in 2004, binding on this Court. However it was and is of persuasive authority. Various differences between the statutes applicable in that case and those of the present, as identified in the respondent's submissions, do not in my view detract from the relevance of its conclusion that the "infliction" of harm does not require either a direct or indirect application of force. In my view, R v Ireland would have been followed in 2004 in New South Wales, in preference to the obiter dicta in R v Salisbury to which I have referred, if the present issue had then arisen. 61Moreover, although decided after 2004, R v Dica in my view supports the Crown's submission as its reasoning reflects a commonsense approach to the concept of "infliction" of harm that is likely to have been taken here, and in the United Kingdom, if the issue had arisen in 2004. 62In my view, it follows that the offence charged in Count 2 of the Indictment was one known to the law in 2004 and proceedings on that Count should not have been stayed. In reaching these views I have not overlooked the fact that ambiguity in a penal provision should ordinarily be resolved in favour of the accused (see Beckwith v R [1976] HCA 55; 135 CLR 569 at 576; Statutory Interpretation in Australia [9.8] - [9.10]). However in my view there is insufficient ambiguity in the meaning of s 35(1)(b) to attract this principle.

ORDERS 63For the reasons that I have given, the following orders should be made: (1) Appeal allowed. (2) Set aside the order made in the District Court on 8 March 2012 staying proceedings on Count 2 of the Indictment dated 7 March 2012. (3) Dismiss the respondent's Notice of Motion dated 5 March 2012. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951, if qualified. 64JOHNSON J: I agree that the orders proposed by Macfarlan JA should be made for the reasons expressed by his Honour. 65DAVIES J: I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2012