Court of Appeal (Qld)|2006-06-09|Before: McPherson and Keane JJA and Chesterman JSeparate, reasons for judgment for each member of the Court, Keane JJA and Chesterman J, concurring as to the orders made, McPherson, JA dissenting in part.
McPherson and Keane JJA and Chesterman JSeparate, reasons for judgment for each member of the Court, Keane JJA and Chesterman J, concurring as to the orders made, McPherson
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE
PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO
LIFE OR BODILY HARM
-OTHER OFFENCES AGAINST THE PERSON – where appellant charged under s
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THEPERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TOLIFE OR BODILY HARM-OTHER OFFENCES AGAINST THE PERSON – where appellant charged under s317(b) of the Criminal Code 1899 (Qld) with one count of unlawfullytransmitting a serious disease with intent and in the alternative with one countof grievous bodilyharm under s 320 – where the appellant transmitted theHIV virus to the complainant through acts of sexual intercourse –whetherthe jury were adequately instructed about whether the appellant intentionallytransmitted the HIV infection to the complainant– where jury wereinstructed ‘intent’ and ‘intention’ carry their ordinarymeaning – meaningof intention – whether the transmission of adisease is an event which occurs “by accident” under s 23(1)(b) ofthe Code – whether verdict reasonable – whether trial judge erred innot directing the jury on the absence of evidence
of motive in the Crown
caseCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED
GENERALLY – whether sentence
of 10 years and 6 months manifestly excessive
– where sentence imposed considered to be at the lower end of the
sentencing
discretionCriminal Code Act 1899 (Qld) s 23(1)(b), s
317(b), s 320Boughey v The Queen (1986) 161 CLR 10,
citedBrennan v The King [1936] HCA 24
(1936) 55 CLR 253, citedCutter v The
Queen [1997] HCA 7
(1997) 71 ALJR 638, citedDe Gruchy v The Queen [2002] HCA 33
(2002) 190
ALR 441, consideredHe Kaw Teh v The Queen [1985] HCA 43
(1985) 157 CLR 523,
citedHoughton v The Queen [2004] WASCA 20
(2004) 144 A Crim R 343,
consideredHyam v Director of Public Prosecutions [1974] UKHL 2
[1975] AC 55,
consideredKaporonovski v The Queen [1973] HCA 35
(1973) 133 CLR 209,
citedKnight v The Queen [1992] HCA 56
(1992) 175 CLR 495, citedKuczynski v
The Queen (1989) 2 WAR 316, citedParker v The Queen [1963] HCA 14
(1962) 111
CLR 610, citedR v Butler [2006] QCA 51
CA No 248 of 2005, 3 March
2006, distinguishedR v Clarence (1888) 22 QBD 23, citedR v
Crabbe [1985] HCA 22
(1985) 156 CLR 464, cited, distinguishedR v GE Nelson, CA
No 324 of 1986, 3 February 1987, unreported, citedR v Glebow [2002] QCA 442
CA No 85 of 2005, 25 October 2002, citedR v Horn 1958 (3) SA
457, citedR v Ireland [1997] UKHL 34
[1998] AC 147, citedR v Irlam
ex parte
Attorney-General (Qld) [2002] QCA 235
CA Nos 157 and 173 of 2002, 28 June
2002, citedR v Knutsen [1963] Qd R 157, 163, citedR v Laus
[2005] QCA 33
CA 347 of 2004, 18 February 2005, citedR v Mwai [1995]
3 NZLR 149, citedR v Ping [2005] QCA 472
CA 207 of 2005, 2 December
2005, citedR v Perussich [2001] QCA 557
CA No 169 of 2001, 7
December 2001, cited R v Taiters, ex p Attorney-General [1996] QCA 232
[1997]
1 Qd R 333, appliedR v van den Bemd [1994] HCA 56
(1994) 179 CLR 137, citedR
v van den Bemd [1995] 1 Qd R 401, citedR v Williams [2002] QCA 142
CA No 44 of 2002, 17 April 2002, citedR v Willmot (No 2)
[1985] 2 Qd R 413, citedS v Mini 1963 (3) SA 188, citedStevens
v The Queen [2005] HCA 65
[2005] 222 ALR 40
(2005) 80 ALJR 91, cited
Vallance v R [1961] HCA 42
(1961) 108 CLR 56, cited
Judgment (233 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM -OTHER OFFENCES AGAINST THE PERSON - where appellant charged under s 317(b) of the Criminal Code 1899 (Qld) with one count of unlawfully transmitting a serious disease with intent and in the alternative with one count of grievous bodily harm under s 320 - where the appellant transmitted the HIV virus to the complainant through acts of sexual intercourse - whether the jury were adequately instructed about whether the appellant intentionally transmitted the HIV infection to the complainant - where jury were instructed 'intent' and 'intention' carry their ordinary meaning - meaning of intention - whether the transmission of a disease is an event which occurs "by accident" under s 23(1)(b) of the Code - whether verdict reasonable - whether trial judge erred in not directing the jury on the absence of evidence of motive in the Crown case
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSON - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED GENERALLY - whether sentence of 10 years and 6 months manifestly excessive - where sentence imposed considered to be at the lower end of the sentencing discretion
[3]
Criminal Code Act 1899 (Qld) s 23(1)(b), s 317(b), s 320
Director of Public Prosecutions (Queensland) for the respondent
[36]
[1] McPHERSON JA: The appellant was convicted after a trial in the District Court on an indictment charging two counts: (1) that between 1 January 2003 and 4 March 2003 with intent to transmit a serious disease to the complainant he transmitted a serious disease to that complainant; and, in the alternative, (2) that between those two dates he unlawfully did grievous bodily harm to the complainant. The offence in count 1 is constituted under s 317(b) of the Criminal Code, and that in count 2 under s 320 of the Code. Because the jury returned a verdict of guilty on count 1, they had no occasion to consider the alternative in count 2. It may, however, be necessary to do so if in future this appeal succeeds and a new trial is ordered to take place.
[37]
[2] The serious disease referred to in count 1 was the virus HIV which, according to the medical evidence at the trial, leads if untreated to AIDS and to death within about eight years. If prescribed medication is taken regularly, the progress of HIV can in most cases be controlled, but otherwise it is in time fatal.
[38]
[3] There was evidence, which it is clear from the verdict the jury accepted, that from about 16 January 2003 the complainant had anal sexual intercourse with the appellant at a frequency of from three to four times a week. They did so without using condoms on any occasion, having agreed that both preferred not to use them. The complainant testified that before doing so he had asked the appellant and was assured by him, that he was not HIV-positive; that is, he was not infected by that disease. The assurance was false, and was known by the appellant to be false. He had been diagnosed HIV positive in November 1987, and had taken no medication to check its development. Without that assurance, the complainant would not have engaged in sexual intercourse with him. The evidence also showed that the disease had been transmitted by the appellant to the complainant probably by 20 February, but in any event by or before 4 March 2003. This suggests that the disease had been communicated at an early stage of their relationship.
[39]
[4] The appellant did not testify at the trial, and the prosecution evidence, including that of the complainant, was uncontradicted by other testimony. The principal question on appeal is whether the jury were adequately instructed about an essential element of the offence, which was whether the appellant intentionally transmitted the HIV infection to the complainant. As to this, his Honour directed the jury that:
[40]
"Success for the prosecution depends on it being proved to your satisfaction that [the appellant] had intent to transmit a serious disease to [the complainant]. You cannot actually see a person's intention, of course. 'Intent' and 'intention' are familiar words in English. In this context they carry their ordinary meaning. In ascertaining the defendant's intention, you are entitled to draw inferences from facts which you find have been established on the evidence relevant to the defendant's state of mind."
[41]
Judicial statements that intention is an ordinary English word, implying that it therefore requires no explanation, are by no means uncommon. It is no doubt correct that, in most cases, intention requires no elaboration or elucidation, and it may often be undesirable to provide it. However, the present case is, I am persuaded, not one that falls into that category. Being as everyone agrees a subjective state of mind, the intention that the prosecution was obliged here to establish beyond reasonable doubt was one that in the particular circumstances called for something more than the bland statement that it is an ordinary word. Ignoring the difficulty associated with the meaning of intention here will not make it go away.
[42]
[5] The problem of satisfactorily defining the meaning of intention in some cases has arisen in relation to the state of mind required for murder. In Hyam v Director of Public Prosecutions[1974] UKHL 2; [1975] AC 55, the accused stuffed newspaper through the letter box in the door of a house occupied by a Mrs Booth, poured petrol on to it and set fire to it. Mrs Booth was her rival for the affections of a man and the accused wished to frighten her. The ensuing fire caused the deaths through smoke inhalation of Mrs Booth's two young daughters, who were sleeping in the house. Their Lordships upheld the accused's conviction of murder following a trial in which the jury were directed that they must be satisfied that when the accused set fire to the house she knew it was "highly probable" that it would cause death or grievous bodily harm.
[43]
[6] In his speech in Hyam v DPP[1974] UKHL 2; [1975] AC 55, 86, Lord Diplock said that he agreed with the "uncomplicated view" that in crimes of this class (that is, those requiring an element of intention):
[44]
"no distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. What is common to both these states of mind is willingness to produce the particular evil consequence: and this, in my view, is the mens rea needed to satisfy a requirement, whether imposed by statute or existing at common law, that in order to constitute the offence with which the accused is charged he must have acted with 'intent' to produce a particular evil consequence or, in the ancient phrase which still survives in crimes of homicide, with 'malice aforethought'." (The italics are mine).
[45]
Later efforts to refine the concept have produced a series of further judicial decisions, as well as proposals from law reform committees, which are discussed in Smith & Hogan, Criminal Law, (9th ed. 1999), at 54-61, and by R A Duff in Intention, Agency and Criminal Liability, at 15-37 (1990).
[46]
[7] The decision in Hyam was considered in R v Crabbe[1985] HCA 22; (1985) 156 CLR 464 in which the accused, apparently in a spirit of revenge, drove his heavy road train through the wall of a motel and into the bar killing five persons who were present inside. He was convicted of murder following a direction to the jury in which the trial judge said it was sufficient if the accused foresaw the "possibility" that what he did might cause death or really serious harm but took no steps to ascertain whether it would or not; that is, whether there were people inside. In setting aside the conviction, their Honours said [1985] HCA 22; (156 CLR 464, 469-470) that it should now be regarded as settled law in Australia, if no statutory provision affected the position:
[47]
"that a person who without lawful justification or excuse does an act knowing that it is probable that death or grievous bodily harm will result is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.
[48]
See also Boughey v The Queen(1986) 161 CLR 10, 19-20, in which their Honours considered the use of the word "likely" in place of "probable" in this context, and discouraged resort to mathematical formulae for arriving at what was meant by it.
[49]
[8] Turning to other legal systems, in South Africa it was held in S v Mini1963 (3) SA 188 in the Appellate Division that "if a person foresees the possibility of death resulting from his deed and nevertheless does it, reckless whether death ensues or not, he has in law the intention to cause death" (Holmes JA at 190). See also R v Horn1958 (3) SA 457. Advertence to the mere possibility of death would not satisfy the requirement for murder laid down for Australia in R v Crabbe; but it must be borne in mind that under South African law the mental element in murder is intention to kill or cause death, and not as in Australia or England intention to cause death or grievous bodily harm. The critical point, however, is that in all three legal systems, some degree of foresight of the result or outcome of the act is required in order to constitute intention.
[50]
[9] The meaning of intention has been the subject of a good deal of discussion in the United States. Le Fave & Scott in Substantive Criminal Law s 3.5(a), at 303-304, and in the authors' hornbook on the same subject, say that the generally accepted meaning of intention is that a person intends a result of his act under two quite different circumstances: (1) when he consciously desires that result; and (2) when he knows that result is practically certain to follow from his conduct whatever his desire may be. The requirement of "practical" or "substantial" certainty imposes a heavier onus of proof on the prosecution in America than that of probability or likelihood under Australian law.
[51]
[10] It might be said that the discussion in these authorities and some of the texts is confined to the intent in murder; but that is not how I read the introductory qualification in R v Crabbe "if no statutory provision affects the position". It was certainly not the view of Lord Diplock in Hyam v DPP in the passage quoted above that a statutory requirement of intent was any different in that respect. The meaning of the word intention or intent is not altered by incorporating it in a comprehensive code of criminal law or other statutory provision as in s 317(b) in the present case. In considering intention generally in He Kaw Teh v The Queen[1985] HCA 43; (1985) 157 CLR 523, 569, Brennan J said that intention in one form "connotes a decision to bring about ... a particular result", and "in another form connotes knowledge". No doubt what his Honour said was not designed to be an exhaustive definition of intention; but, in any event, s 317(b) of the Code specifies precisely the intention that must be established in the case of this offence. It is the intention to transmit a serious disease, in this instance the immune deficiency virus HIV. The word "transmit" in this context plainly means communicate or pass on to another person. I accept that, as Chesterman J says in his reasons in this appeal, the meaning to be ascribed to "intent" in s 317(b) of the Code is that the accused must be proved to have meant to transmit the disease: his actions must have been designed to bring about that result.
[52]
[11] Did the appellant in his HIV infective condition engage in unprotected anal intercourse with the complainant with the design of passing that virus on to the complainant? Applying the criterion laid down in R v Crabbe, it was for the Crown to prove beyond reasonable doubt that he did so knowing that such a result was probable or likely to ensue; that is, that he meant it to happen. There was evidence at the trial on which a jury could properly reach such a conclusion. In particular, the appellant knew since 1987 that he was HIV positive and that he had been taking no medication to control it. That he misled the complainant about his infective status and thereby induced him to engage in anal intercourse with him, whether unprotected or at all, might seem to be evidence as much of the complainant's intention as of his own; but it is also some evidence that the appellant may have wished or meant to infect the complainant with the disease. When one asks why anyone would wish to do so, a possible answer may be that it is not unknown for some individuals to derive satisfaction from knowing that others are being reduced to their own level of unhappiness. Some further indication of this may be seen in the appellant's later public taunting of the complainant with the fact that he had now been diagnosed HIV positive. Consider also the following remark in the appellant's record of interview on 12 December 2003:
[53]
"I still can't ejaculate with a positive partner. You know, inside of me it still feels like I am carrying a loaded gun with me. ... For goodness sake, I've got a terminal disease. I'd rather not pass it on to somebody else. I've had 16 years of hell. Why the hell should I give it to someone else?".
[54]
Despite the reservation about his ability to ejaculate, he later said he had done so inside the complainant.
[55]
[12] There was expert medical evidence at the trial that the incidence of transmission of HIV from unprotected anal penetration is of the order only of about one per cent, although the risk inevitably increases according to the frequency with which such intercourse is engaged in. It is pertinent to add that there is nothing to suggest that the appellant was aware of this particular statistic. There is another passage in the record of interview in which the appellant was asked about the extent of his knowledge of safe sex practices. His answer to this question was incomplete; but he said that there was "great debate" about ejaculating in someone's mouth if "you both have cuts in your gums ... you know, blood to blood". He added, "semen to mucosal or a broken membrane if by someone who is HIV positive, you know there is around a 60 per cent chance they might contract ... the disease; but if they do there's post-exposure prophylaxis available". He did not warn the complainant in time that he might need such treatment. In the course of their relationship there were incidents of ejaculation in each other's mouths, although there is nothing to suggest that the complainant had fissures in his mouth. Medical evidence was that the linings of mouths and vaginas are less vulnerable to this form of invasion than the linings of the rectum.
[56]
[13] It would have been open to a jury, properly directed, to find that the accused wished to pass on his disease to the complainant, or that he realised that he might do so. Either version would have constituted the intent to transmit required in s 317(b). However, to my mind the problem is that the jury were not told that they must, before convicting, be satisfied that the appellant knew that, by having unprotected anal sex with the complainant, it was "probable" or "likely" that the disease would be passed on to him. Without a direction to that effect, I do not consider that the jury were adequately instructed about the meaning of the expression "with intent to transmit" in s 317(b) of the Code. As a result, in my opinion, the appellant lost a perceptible chance of acquittal on count 1. His appeal against conviction on that count should be allowed; the conviction should be set aside; and a new trial should follow on that count.
[57]
[14] On count 2 the appellant was charged with doing grievous bodily harm under s 320 of the Code. It is a crime that is constituted and committed without any element of intention on the part of the offender, of which Kaporonovski v The Queen[1973] HCA 35; (1973) 133 CLR 209 is a classic example. Despite a passing observation in one of the judgments of their Honours in the recent decision in Stevens v The Queen[2005] HCA 65; (2005) 80 ALJR 91, the offence of doing grievous bodily harm under s 320 that was charged in count 2 is not one in which any issue about the intention of the doer or actor fell to be established by the prosecution. In Kaporonovski the accused smashed a glass in the victim's face. The offence of doing grievous bodily harm under Code s 320 satisfied the terms of s 23(2) of the Code that:
[58]
"(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial".
[59]
Under count 1 in this indictment, s 317(b) expressly declared the intention to cause a particular result (namely, the transmission of a serious disease) to be an element of the offence of transmitting the disease "with intent". By contrast, s 320 embodies no such declaration. The offence under s 320 in count 2 is therefore constituted solely by the act of transmitting the disease, just as in Kaporonovksi v The Queen[1973] HCA 35; (1973) 133 CLR 209 it was constituted simply by doing grievous bodily harm.
[60]
[15] The only general ground of exculpation provided by the Code in such a case is contained in the provisions of s 23(1)(a) and 23(1)(b) of the Code. The present case is not one in which anything in the nature of automatism was raised in relation to the accused's act. It was not suggested, nor could it be, that he was asleep or unconscious or in an automotive state when he engaged in the act of unprotected sexual intercourse or any other act that resulted in the transmission of the disease to the complainant. It was a willed act, for which he was criminally responsible, and not one for which he was exempted as something occurring independently of the exercise of his will under s 23(1)(a) of the Code.
[61]
[16] This leaves for consideration the question whether the transmission of the disease was or is an event that occurred or occurs "by accident" within the meaning of s 23(1)(b). So far as this Court is concerned the meaning of that phrase has been authoritatively settled by the decision in R v Taiters, ex p Attorney-General[1996] QCA 232; [1997] 1 Qd R 333, following and applying Kaporonovski v The Queen[1973] HCA 35; (1973) 133 CLR 209 and R v Van Den Bemd[1994] HCA 56; (1994) 179 CLR 137, affirming [1995] 1 Qd R 401. It is that, stating it at its lowest level, an ordinary person in the position of the accused "would have foreseen the event as a possible outcome". In contrast to s 317(b), that is a criterion which in the case of s 320 is entirely objective. The "event" is infection by transmission of the disease. Section 23(1)(b) will not operate to exempt the accused from criminal responsibility for passing on HIV if an ordinary person in his position would have realised that that result, consequence or outcome might possibly ensue.
[62]
[17] But it has been said that this would give no effect to the word "unlawfully" in the expression "unlawfully does grievous bodily harm" in s 320. The word in question was considered in this context by the Court of Criminal Appeal of Western Australia in Houghton v The Queen[2004] WASCA 20; (2004) 144 A Crim R 343. Each of their Honours (Murray J at 352; Steytler and Wheeler JJ at 366) held, applying R v Knutsen[1963] Qd R 157, 163, and Kuczynski v The Queen(1989) 2 WAR 316, that the doing of the grievous bodily harm or the act causing it must be prohibited or be "contrary to law and not excused". Their Honours differed as to where the prohibition or "unlawfulness" was to be found. Steytler and Wheeler JJ considered that that element was supplied by s 266 of the Criminal Code of Western Australia, which is an exact reproduction of s 289 of the Code in Queensland.
[63]
[18] Steytler and Wheeler JJ held that the appellant's infective seminal fluid fell within the description in that section "anything, whether living or inanimate and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered ...". It followed, according to this view, that, because of the introductory phrase in Code s 23(1) "subject to the express provisions of this Code relating to negligent acts or omissions", it was incumbent on the prosecution to establish negligence at the higher or "criminal" standard on the part of the accused in the use or management of his infective seminal fluid. In this their Honours applied a decision of the New Zealand Court of Appeal in R v Mwai[1995] 3 NZLR 149, given on a section (s 256) of the Crimes Act 1961 of that country, which is worded somewhat differently from s 266 or s 289 respectively of the Codes of Western Australia and Queensland.
[64]
[19] I feel bound to say that, like Murray J, I respectfully consider that to speak of a man's own seminal fluid as something requiring "use or management" by him involves a rather strained interpretation of those words and of the section as a whole. Section 289 has hitherto been regarded as applying to "dangerous things" as objects external to the human body, such as knives and guns. If it is instead to be construed in the broad manner suggested, it will also extend to human saliva and blood (which are also capable of transmitting serious diseases) as well as to human teeth, hands and feet, which are notoriously capable of being used to do grievous bodily harm. My respectful preference in this respect is for the more orthodox views of Murray J in Houghton v The Queen[2004] WASCA 20; (2004) 144 A Crim R 343, 352, which accord more closely with the way in which s 289 of the Code has consistently been applied in Queensland. The decision in R v Clarence(1888) 22 QBD 23, on which the majority relied in Houghton, has since been reconsidered by the House of Lords in R v Ireland[1997] UKHL 34; [1998] AC 147 both in relation to the words "inflict" and "grievous bodily harm".
[65]
[20] But in my view, there is no occasion at this stage to choose finally between the competing interpretations adopted in the Western Australian decision. If it is necessary to locate in the Criminal Code or elsewhere in the law of Queensland a provision that makes "unlawful" the transmission of a serious disease in the circumstances disclosed by the evidence in the present case, it is to be found in s 408C(1) of the Code. It constitutes it the crime of fraud on the part of a person who dishonestly:
[66]
"(e) causes a detriment, pecuniary or otherwise, to any person."
[67]
Inducing someone to have unprotected intercourse with him by falsely representing that he was not HIV positive, while knowing that he was, seems to me to fall within the ambit of this provision. It hardly need be said that infecting someone with HIV involves causing a detriment to him or her. See also s 408C(1)(f).
[68]
[21] At the trial, the learned judge followed the majority in Houghton v The Queen in directing the jury on count 2, feeling constrained to do so by the authority of the majority decision in that case. It is not possible here, any more than the majority considered it was in Houghton, to make a final ruling on this point. In my view, there must, as I have said, be a retrial on count 1. Only if the jury decides to acquit on that count, will the question arise whether or not Houghton v The Queen ought to be followed on s 289 of the Code. I have discussed it here only because I do not wish it to be thought that the majority decision in Houghton is necessarily decisive of the question in Queensland.
[69]
[22] On the matter of the trial judge's direction, or the lack of it, to the jury on motive in this case, it is I think necessary to recall that s 23(3) of the Code provides that:
[70]
"(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility."
[71]
This is not a case in which, either under s 317 or s 320, the appellant's motive, if any, for infecting the complainant with HIV is "expressly declared" in the Code to be the inducement for transmitting the disease, or for forming an intention to do so. It follows that by virtue of s 23(3) it was immaterial to his criminal responsibility under either of those sections, and it was not an error in the summing up if his Honour failed expressly to advert to it. Of course, questions of motive may bear heavily on which parts of the evidence tendered at trial are accepted, rejected, doubted, or acted upon by the jury. But observations on the evidence are by s 620(1) of the Code committed to the discretion of the judge at trial, and I see no compelling reason why his Honour was bound here to direct the jury on the appellant's possible motivation for infecting the complainant with HIV if that is what the appellant meant to do. If on the evidence on count 1 the jury were, or in future are, satisfied beyond reasonable doubt in this case that the appellant had unprotected anal intercourse with the complainant knowing that it was probable that the disease would be transmitted to him, they will in arriving at that conclusion no doubt have assessed and made use of any motive they thought he had for doing so.
[72]
[23] I would allow the appeal, set aside the conviction on count 1, and order a new trial on the indictment.
[73]
[24] KEANE JA: On 8 December 2005, the appellant was convicted after a trial by jury of unlawfully transmitting a serious disease with intent to do so, in contravention of s 317(b) of the Criminal Code. On the following day, he was sentenced to imprisonment for 10 and a half years.
[74]
[25] The appellant seeks to appeal against his conviction on the grounds that:
[75]
"(1) The verdict is unreasonable and cannot be supported having regard to the evidence;
(2) The learned trial Judge erred in the directions he gave to the jury as to the manner in which they should approach the issue of intent; and
(3) The learned trial Judge erred in failing to direct the jury in relation to the absence of motive."
[76]
[26] The appellant also seeks to appeal against his sentence.
[77]
[27] A consideration of the appeal against conviction must commence with a summary of the evidence at trial.
[78]
[28] The Crown case was that the appellant, who knew that he was HIV positive, transmitted the HIV virus to the complainant, who until then was HIV negative, when the two of them had unprotected sexual relations between 1 January 2003 and 4 March 2003. The Crown case was that the appellant transmitted the HIV virus to the complainant with intent to do so. The Crown also charged the appellant, in the alternative, with unlawfully doing grievous bodily harm to the complainant in contravention of s 320 of the Criminal Code. Because the jury convicted the appellant on the first charge, they did not need to consider the alternative count.
[79]
[29] The complainant gave evidence that he met the appellant in mid January 2003. The complainant said that the appellant told him that he, the appellant, was HIV negative, having been tested on 2 November 2002.
[80]
[30] The complainant said that on the day after they met, they had oral sex followed by anal intercourse in which the complainant penetrated the appellant. The complainant said that he told the appellant that he did not like using condoms, and that the appellant said "that it was fine because [the appellant] was HIV negative". The appellant told the complainant that he too did not like using condoms. Later that day, they had anal sex in which the appellant penetrated the complainant.
[81]
[31] It was the complainant's evidence that, thereafter, the appellant and complainant had unprotected anal intercourse three or four times a week in which they penetrated each other on a roughly equal basis. The complainant said that the appellant ejaculated inside him.
[82]
[32] The complainant said that he became ill in mid February 2003 when he developed diarrhoea, a high fever and welts all over his body. He could not keep food down, and "had no energy at all". He was tested for HIV and, at first, the tests were inconclusive. When he told the appellant, the appellant said that the complainant's former sexual partner must have given him the HIV virus. The appellant said that he too would have a blood test performed. From that time, the complainant did not have sexual contact with the appellant. Ultimately, the complainant was diagnosed as positive for HIV.
[83]
[33] The complainant made an appointment to see Dr Roy Whittaker, a medical practitioner specialising in the treatment of HIV, who was the same doctor that the appellant was seeing. The appellant suggested to the complainant that the complainant should tell Dr Whittaker that the appellant and complainant "were having safe sex from the beginning". Shortly thereafter, the complainant came to believe that it was the appellant who had transmitted the virus to him; and their relationship came to an end.
[84]
[34] After the relationship had broken down, the appellant taunted the complainant in front of other patrons at a hotel saying: "Who'd want you now? You're HIV positive."
[85]
[35] The complainant gave evidence that he had had no sexual partners other than his former partner and the appellant from the time when his relationship with his former partner began until the termination of his relationship with the appellant.
[86]
[36] In cross-examination, the complainant admitted that he had suffered severe injuries in a motor vehicle accident in 1988. As a result, part of his face was reconstructed. It was suggested to him that he insisted that he and the appellant not use condoms while they had anal intercourse. He denied that he had so insisted, but agreed he "didn't like" using condoms. It was also suggested that the complainant was a heavy drinker who, while drunk, had had sexual partners, other than his former partner and the appellant, after his relationship with his former partner had terminated in January 2003. The complainant denied that he had had other sexual partners.
[87]
[37] The Crown called Dr James McCarthy, a medical practitioner specialising in infectious diseases and who has been caring for HIV patients since 1986. Dr McCarthy said that a very common form of transmission of the HIV virus is sexual transmission by reason of the exchange of bodily fluids. His evidence was that symptoms of the kind said to have been experienced by the complainant in mid February 2003 are common in about half the people who contract HIV. The onset of such symptoms usually occurs within two to four weeks of being infected. The complainant's hospital records were in evidence. Dr McCarthy said that the complainant's hospital records supported the inference that he had become infected with HIV in January 2003.
[88]
[38] Dr McCarthy said that, with any particular episode of anal intercourse, the risk of infection is less than one per cent. The risk of infection increases according to the frequency of unprotected intercourse.
[89]
[39] Dr McCarthy also gave evidence that there was treatment available which could have prevented infection if administered within 24 - 48 hours of exposure to HIV.
[90]
[40] The complainant's former partner gave evidence. He said that he had a sexual relationship with the complainant between June 2002 and mid January 2003. He said that he was tested for HIV in 2003 because of what he was told by the complainant of the complainant's HIV status. The tests were negative.
[91]
[41] The appellant did not give evidence. The appellant had, however, given an interview to the police on 4 December 2003. The record of interview was in evidence. In the course of that interview, the appellant said that he had been HIV positive since November 1987. He said that he and the complainant met in January 2003. For a time, they lived together and had sex. The appellant said that the complainant knew that he, the appellant, was HIV positive because he had told him so. Nevertheless, the appellant said that the complainant insisted on having intercourse without condoms. The appellant said that the complainant had said to him: "You know, I've had my head reconstructed. I mean, what else can kill me?" The appellant said that he agreed to have unprotected sex. He said that they had unprotected anal intercourse "once or twice" when he was the "receptive partner". The appellant also said that "on occasions" he sexually penetrated the complainant. He also said that they had engaged in oral sex but without ejaculation. The appellant said that he knew the complainant was HIV negative before their relationship began and that he was now HIV positive. The appellant said that his relationship with the complainant ended acrimoniously with the complainant assaulting him.
[92]
[42] When the appellant was asked whether he had ejaculated while having sex with the complainant, he said: "I have no idea. Probably not. I - I still can't ejaculate even with a positive partner. You know? Inside of me, it still feels like I'm carrying a loaded gun with me." When asked "Why do you say that?", he said: "Well, for goodness sake, I've got a terminal disease. I'd rather not pass it on to somebody else. I've had 16 years of hell. Why the hell should I give somebody else that?" Later in the course of the interview, the appellant admitted that he had ejaculated inside the complainant.
[93]
[43] In the course of this interview, the appellant also acknowledged his awareness of the availability of post-exposure prophylaxis which can prevent infection.
[94]
[44] Later in the course of his interview, the appellant described his conduct in having unprotected sex with the complainant as "completely irresponsible", and "stupid in the extreme".
[95]
[45] The issue here is whether, on the whole of the evidence, it was reasonably open to the jury to be satisfied of the appellant's guilt.
[96]
[46] The jury were clearly entitled to accept the uncontradicted evidence of the complainant that it was the appellant, and no-one else, who infected the complainant with the HIV virus.
[97]
[47] The principal issue agitated by the appellant on appeal under this rubric was whether it was reasonably open to the jury to accept the Crown's contention that the appellant intended to transmit the HIV virus to the complainant. In this regard, the jury had to be satisfied of the appellant's intent to transmit the virus.
[98]
[48] There can be no doubt that the jury were entitled to conclude that the appellant well understood that, by having unprotected sex with the complainant, he was deliberately putting the complainant at risk of being infected by the HIV virus. That the complainant became infected with the HIV virus was a natural consequence of the appellant's deception. The jury were also entitled to conclude that the appellant intended to ensure that the complainant should be unaware of the risk to which he was exposing himself.
[99]
[49] The question here, though, is whether the jury could reasonably conclude beyond reasonable doubt that the appellant did subjectively intend to inflict the HIV virus upon the complainant. The issue is whether the jury, acting reasonably, could have rejected, as a rational inference, the possibility of the absence of an intent to infect the complainant with the HIV virus.[1]
[100]
[50] In this regard, the appellant points first to the evidence of Dr McCarthy to the effect that, with any given episode of anal intercourse, the risk of infection is less than one per cent. It is said that the earlier in the relationship the infection occurs, the less likely it is that the appellant intended to infect the complainant. Because the infection seems to have occurred very early in the relationship, it is, therefore, less likely to have been a result intended by the appellant.
[101]
[51] There are two flaws in this aspect of the appellant's argument which may conveniently be mentioned now. The first is that it attributes Dr McCarthy's appreciation of the chances of infection to the appellant. There is no evidentiary support for that attribution. Secondly, and more importantly, the issue here turns on what the appellant himself actually intended, not upon an objective appreciation of the prospects of his achieving that intention. In this latter regard, there can be no doubt that the appellant well understood that unprotected sex with the complainant was likely to infect him with HIV. That this is so is readily apparent from the "loaded gun" remark in his record of interview. There are, in my opinion, further flaws in this aspect of the appellant's argument to which I shall return.
[102]
[52] The strength of the appellant's first ground of appeal, it seems to me, is in the argument that it is possible that the appellant was merely, either "completely irresponsible" or "stupid in the extreme", in deceiving the complainant as to the appellant's HIV status in order to persuade the complainant to have sexual intercourse in the unprotected way which the appellant preferred. On this view, the appellant's motivation is sufficiently explained by a selfish recklessness as to whether or not the HIV virus was transmitted to the complainant. The appellant contends that there was no evidence of actual ill-will on his part towards the complainant which would provide a rational basis for a conclusion that the appellant was motivated by a subjective desire to transmit the disease to the complainant. That contention is not, however, accurate in two important respects.
[103]
[53] First, there was the complainant's evidence of the appellant's taunting after the complainant had been diagnosed as HIV positive. The complainant's evidence in this regard was unchallenged and uncontradicted. The jury were entitled to regard the evidence of the appellant's taunting of the complainant with the fact that the complainant was now HIV positive as providing an insight into the appellant's state of mind at the time he infected the complainant. The appellant's taunting of the complainant may have been seen by the jury as evidence of the proverbial love of misery for company. From the appellant's evident satisfaction that the complainant had been stricken by the same condition with which the appellant was afflicted, the jury were entitled to conclude that the appellant's conduct had indeed been calculated to achieve that result.
[104]
[54] Secondly, there was the evidence that the appellant knew that post-exposure prophylaxis might have prevented the complainant becoming infected. There was no suggestion that the appellant alerted the complainant to the desirability of seeking treatment after unprotected sex had occurred. From the facts that the appellant knew that the complainant was at risk, and that the appellant refrained from taking steps, which he knew were available, to avert that risk, the jury could reasonably infer that the appellant actually desired that the complainant should become infected.
[105]
[55] Considerations of motive must, in any event, be put to one side. Intent must not be confused with motive or desire.[2] What the appellant actually did was, as the appellant knew, plainly apt to achieve the result that the complainant would become infected. It was open to the jury to regard the appellant's statement about the "loaded gun" as affording a clear insight into the appellant's understanding and intention. The appellant's reference to the "loaded gun" may reasonably have led the jury to conclude that, just as someone who fires a loaded gun at another may reasonably be taken to have intended to do grievous bodily harm to the victim, so the appellant's acknowledged appreciation of the lethal risk of unprotected sexual contact with himself established that when he engaged in such contact with the complainant he intended that risk to come home. Such an inference could have been strengthened beyond reasonable doubt by the appellant's failure to alert the complainant to the need for him to seek available treatment immediately after their first acts of unprotected intercourse.
[106]
[56] Further in relation to the appellant's argument that the infection may have occurred very early in the relationship, it may be said that this possibility is in no way inconsistent with the existence of an intention to pass on the disease at that time. This argument seems to accept that, the more frequent the occurrence of acts of unprotected sex, the stronger is the inference that the appellant intended to infect the complainant. But the jury were entitled to infer that the appellant's intention in that regard was the same at the time of the first act of unprotected sex as it was throughout the sexual activity between the complainant and the appellant. There was nothing in the evidence to suggest that some change occurred in their relationship during that period which was apt to alter the appellant's intention.
[107]
[57] Moreover, the offence with which the appellant was charged was not "having a particular act of intercourse with intent on a particular day". The relevant offence consists of transmitting the disease with the intent to do so. Thus, the issue was not what the appellant's intent was at the time of any particular act of sexual intercourse, but whether it can be said that the conduct of the appellant which resulted in the transmission of the disease was informed by the necessary intent. For the reasons stated above, I consider that it was reasonably open to the jury to come to an affirmative conclusion on this issue.
[108]
[58] In relation to the first ground of appeal, I conclude that the jury's verdict cannot be said to have been unreasonable.
[109]
[59] The appellant's next ground of appeal involves the contention that the trial judge erred in failing to direct the jury that, before they could be satisfied beyond reasonable doubt that the appellant intended to infect the complainant with HIV, they would have to be satisfied beyond reasonable doubt that this was not a case of mere reckless disregard by the appellant as to the potential consequences of his actions.
[110]
[60] The appellant also argues under this ground of appeal that the learned trial judge's directions to the jury did not properly explain the use which the jury could make of the statements made by the appellant in the record of interview.
[111]
[61] As to the appellant's criticism that the trial judge's directions were deficient in the absence of a specific direction that mere reckless disregard by the appellant for the welfare of the complainant would not suffice to establish the element of intent, one may say immediately that such a direction would have been one way of explaining to the jury that it is a strong thing to find that one person intended to inflict HIV on another. But to say this is not to accept that a sufficient explanation of the issue may not be given by a trial judge without resort to a dichotomy between "reckless disregard" and "intent to infect". Counsel for the appellant was not able to cite any authority to support the proposition that failure to direct the jury in terms of this dichotomy is an error of law.
[112]
[62] To the extent that the issue is to be considered more broadly in terms of the trial judge's function to ensure that the jury understand so much of the law as is necessary for them fairly to resolve the issues of fact in the case, it is necessary first to set out the directions which the trial judge gave to the jury on this point. His Honour said:
[113]
"To enable the jury to bring in a verdict of guilty based on circumstantial evidence, it's necessary not only that guilt should be a reasonable inference, it has to be the only reasonable inference, the only rational inference that the circumstances enable the jury to draw. This follows from the general requirement that guilt must be established beyond reasonable doubt. If there's any reasonable explanation of proved facts consistent with innocence, it's the jury's duty to acquit the accused. It's for the jury to say whether the inference of guilt exists actually and clearly and so completely overcomes all over [sic] inferences or hypotheses or explanations as to leave no reasonable doubt of guilt in the jury's mind.
One of the things which the prosecution set out to prove in count 1 is the intention of [the appellant]. Success for the prosecution depends on it being proved to your satisfaction that [the appellant] had intent to transmit a serious disease to [the complainant]. You cannot actually see a person's intention, of course. 'Intent' and 'intention' are familiar words in English. In this legal context, they carry their ordinary meaning. In ascertaining the defendant's intention, you are entitled to draw inferences from facts which you find have been established on the evidence relevant to the defendant's state of mind. One Judge once said that, although you can't see the state of a man's mind, it's as much a fact as the state of his digestion.
The intention of a person may be inferred or deduced from the circumstances and from the conduct of the defendant in particular, in those circumstances. Of course, whatever a person says about his intention may be looked at by a jury for the purpose of deciding what his intention was at the relevant time. You may think people ordinarily intend the foreseeable or ordinary consequences of their actions, but that's just one of the considerations, among others, that I've been discussing with you. So this is a circumstantial case in which you have to decide whether, assuming that [the complainant] does have HIV, the defendant gave it to him, and in count 1 you have to decide whether the defendant intended to do that. You may think that only the Almighty knows the exact situation and the whole truth, although the defendant, in principle, would know what he intended." (emphasis added)
[114]
[63] His Honour administered a redirection to the jury in the following terms:
[115]
"Two things, ladies and gentlemen, that I have to fix up. The first relates to intent in count 1. The focus is not on the 'ordinary consequences of the defendant's actions', a phrase which I used as an example of one factor that you might consider. The focus is on what the defendant actually intended. In count 1 the Crown has to prove an actual intention to transmit a serious disease." (emphasis added)
[116]
[64] It should also be borne in mind here that the appellant was charged in the alternative with unlawfully doing grievous bodily harm to the complainant. In that regard, his Honour gave the jury a direction in relation to criminal negligence in the course of which his Honour said:
[117]
"To convict you must be satisfied beyond reasonable doubt that his conduct here in engaging in unprotected sex, if you find that that happened, so far departed from the standard of care incumbent upon him to use reasonable care to avoid danger to life, health, safety as to amount to recklessness involving grave moral guilt deserving of punishment."
[118]
[65] It may be noted that the jury did not seek any further direction or assistance in relation to what was involved in the element of intent. To suppose that the jury, so instructed, did not understand that the element of intent involved in the first count was something quite different from, and not satisfied by, the reckless disregard relevant to the grievous bodily harm charge is to assume, without warrant, that the jury were not able to understand the direction which they were given. It is well-established by authority that the jury may be taken to have understood and acted upon the directions they were given.[3]
[119]
[66] In the course of argument on the appeal, counsel for the appellant was disposed to urge that the jury were not adequately instructed about the element of intent, in that they should have been told that in order to convict the appellant they must be satisfied that the appellant knew that, by having unprotected sex with the complainant, it was "probable" or "likely" that the disease would be transmitted to the complainant. This formulation was derived from the decision of the High Court in The Queen v Crabbe.[4] In that case, the High Court was concerned with the formulation of the mental element of the crime of murder at common law. The accused had driven a prime mover and trailer through the wall of a motel into a bar and thereby caused the death of several people. The trial judge directed the jury that they could convict the accused if they were satisfied beyond reasonable doubt that the accused "foresaw the possibility that there might be some people in the bar, but didn't take any step that might have been available to him to find out whether there were any people there or not, before he went ahead and drove the vehicle in".[5] The High Court held that the trial judge had misdirected the jury in telling them that they could convict if they were satisfied beyond reasonable doubt that the accused foresaw the possibility that there might be people in the bar. The High Court said:[6]
[120]
"The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. That view was expressed in Reg v Hyam[7] by Viscount Dilhorne, Lord Diplock[8] and possibly by Lord Cross of Chelsea,[9] although Lord Hailsham of St Marylebone LC[10] denied its correctness. There is other authority in favour of the view, including some of the cases mentioned in Archbold's Criminal Pleading, Evidence and Practice 41st ed (1982), pp 995 - 1001, and the passage from Kenny, Outlines of Criminal Law cited by Dixon CJ in Vallance v The Queen.[11]It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence and where he knows that it is a likely result. The former is not a case of murder even if death ensues, unless death or grievous bodily harm is intended (or, perhaps - and it is unnecessary to consider this proposition - unless the act is done with the intention and for the sole purpose of creating a risk of death or grievous bodily harm).
[121]
[67] A number of observations may be made here. The first point to be made in relation to the decision in The Queen v Crabbe is that it was not concerned to affirm the need for a trial judge to explain to the jury the meaning of intent or intention, but to formulate the mental element of the crime of murder at common law. Secondly, the emphasised parts of the passage cited show that there was room for argument as to whether the mental element of the crime of murder at common law was the same as that involved in a killing with intent to kill or do grievous bodily harm. However that controversy should be resolved for the purposes of the common law, it seems that, to the extent that there is any difference in substance between the mental element of the crime of murder at common law and the mental element of murder under the Criminal Code, the High Court regarded proof of "intent" to kill as tending to cast a somewhat heavier burden on the Crown than the common law requirement of mens rea for murder. Thirdly, in The Queen v Crabbe, the High Court was concerned, not with the sufficiency of a trial judge's explanation of any element of the crime, but to correct a misstatement by the trial judge of one element of the crime. Fourthly, it is clear that, in relation to the present case, the position is indeed affected by "statutory provision". The language of the Criminal Code, and in particular s 317(b), obviates the need for any elaboration of the meaning of "intent" in the Criminal Code by reference to common law concepts of foreseeability, likelihood and probability.
[122]
[68] In R v Willmot (No 2),[12] in the Court of Criminal Appeal, it was explained that "it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language" such as "intent". In that case, Connolly J, with whom Moynihan J agreed, said:[13]
[123]
"It may be that the problem which has arisen in this case derives from an assumption that s. 302 of The Criminal Code was intended as no more than a restatement of the common law. It cannot be too strongly emphasized that where the construction of the Code is involved the point of departure must be the Code itself. The proposition cannot be better stated than in the language of Gibbs J., as he then was, in Stuart v. The Queen[1974] HCA 54; (1974) 134 C.L.R. 426 at p. 437:
[124]
'The correct approach to the interpretation of a section of the Code is that stated by Dixon and Evatt JJ. in Brennan v. The King[1936] HCA 24; (1936) 55 C.L.R. 253, at p. 263, as follows:
[125]
'... it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.'
[126]
This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v. Canadian Pacific Railway Co.[1892] A.C. 481, at p. 487, cited in R. v. Scarth[1945] St.R.Qd. 38, at p. 44. If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J. in Vallance v. The Queen[1961] HCA 42; (1961) 108 C.L.R. 56, at p. 76), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased: if the former is clear, the latter is of no relevance.'
[127]
The mental element which must be proved when a case of murder goes to the jury under s. 302(1) is intention to cause death or to do grievous bodily harm. The ordinary and natural meaning of the word 'intends' is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design. The notion of desire is not involved as the learned judge rightly held. A person may do something, fully intending to do it, although he does not in the least desire to do it.
Now there is, in my judgment, no ambiguity about the expression as used in s. 302(1) and it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language. It is a truism that it is the Code itself which speaks and that it is, with respect, wrong in principle to gloss it.
It must be accepted that there is a difference in the formulation of murder at common law and in s. 302(1) although there may be little difference in substance. The common law formulation will be found, for Australia, in The Queen v. Crabbe[1985] HCA 22; (1985) 59 A.L.J.R. 417. It is unlawful homicide with malice aforethought: and malice aforethought means intention to cause death or grievous bodily harm or knowledge that it is probable that death or grievous bodily harm will result. Knowledge of the probability of death or grievous bodily harm is not an element of s. 302(1), although, if established, it leads almost inevitably to the conclusion that death or grievous bodily harm was intended. In _Crabb_e at p. 419, the former state of mind was described as comparable with the relevant intention. It was doubtless this consideration which led certain of the Law Lords in Hyam v. Director of Public Prosecutions[1974] UKHL 2; [1975] A.C. 55 to the view that the two states of mind are the same. In Queensland the mental element is intention to cause death or grievous bodily harm. It is what the High Court in at p. 419, after stating Stephen's formulation, referred to as 'actual intent'.
[128]
[69] Similarly, in Cutter v The Queen,[14] Kirby J, with whom McHugh J agreed, said:
[129]
"It is important to draw a distinction between the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged (R v Hyam[1974] UKHL 2; [1975] AC 55 at 73). Attempts have been made to define the meaning of 'intent' or its derivatives (See, eg, R v Steane[1947] KB 997 at 1004 - 1005; R v Willmot (No 2)[1985] 2 Qd R 413 at 418 - 419). However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning (R v Moloney[1984] UKHL 4; [1985] AC 905 at 926). The only exception is a case where some element in the evidence suggests the need for elucidation, so as to draw the distinction between intention, on the one hand, and the accused's motives, desires, wishes, hopes, reasons or expectations, on the other. Clearly enough, where there is no direct evidence to which the trier of fact can safely resort, so as to draw an inference as to the 'subjective' intention of the accused, the principal focus of attention will ordinarily be the facts surrounding the alleged offence."
[130]
While McHugh and Kirby JJ dissented as to the result in Cutter v The Queen, there is nothing in the reasons of the majority in that case to cast doubt upon this statement of principle. As to the exceptional case to which Kirby J referred, there was not, for reasons which I will explain in discussing the appellant's ground of appeal in relation to the trial judge's directions in respect of "motive", any need for elucidation of the distinction between "intention on the one hand, and the accused's motives, desires, wishes, hopes, reasons or expectations, on the other".
[131]
[70] The reasons of D M Campbell J in R v Willmot (No 2)[15] were to the same effect. The approach supported by the observations which I have cited from R v Willmot (No 2) was approved by this Court in R v Glebow.[16]
[132]
[71] In the light of these authorities, it is my respectful opinion that the directions given by the trial judge in the passages emphasised in paras [62] and [63] were adequate to explain to the jury that they could only convict the appellant if they were satisfied that the appellant intended to transmit the HIV virus to the complainant. That direction was sufficient and it was accurate. There is no reason, in my respectful opinion, to suppose that the jury did not understand the task with which they were charged so as to necessitate some further exploration or elaboration. Further, to the extent that the jury were not told to address the question whether the appellant knew that, by having unprotected sex with the complainant, it was "probable" or "likely" that the disease would be transmitted to the complainant, it may well be the appellant had the benefit of a direction more favourable to him than that which he now asserts should have been given, in that it required the Crown to meet a more stringent test, ie one involving actual intent to transmit the disease.
[133]
[72] In relation to the appellant's complaint that the trial judge inadequately directed the jury on the use that could be made by them of the statements made by the appellant in his record of interview, the appellant refers in particular to the appellant's assertions that he was "completely irresponsible" and "stupid in the extreme", and the circumstance that his Honour did not draw these statements to the attention of the jury.
[134]
[73] The appellant seeks to rely on the decision of this Court in R v Butler.[17] In that case, the relevant flaw in the learned trial judge's direction to the jury was the suggestion (expressed or implied) that the jury were not entitled to act upon the accused's out of court statements as evidence of his actual intention at the time of the alleged offence. In this case, the trial judge gave no such direction. Indeed, his Honour made it clear that the jury were entitled to take the appellant's out of court statements into account in determining whether he acted with the requisite intent. It is true that his Honour did not refer specifically to the appellant's statements referred to above, but there is a significant difference between a suggestion that the jury should not take out of court statements into account, and the mere absence of specific reference to particular out of court statements. There is no reason to suppose, either that the jury did not appreciate that it could have regard to those statements, or that it did not do so.
[135]
[74] Furthermore, the appellant's statements were not assertions about his intentions, but characterisations of his conduct. Whether those characterisations should be regarded as accurate was, of course, the issue which the jury was required to determine. In the end, whether the jury were assisted in this regard by the appellant's statements was a matter for them as the arbiters of issues of fact. The learned trial judge's direction would not have led them to act on any other basis.
[136]
[75] The appellant also argued that the trial judge should have made more detailed reference to the terms of the record of interview in his directions to the jury. In my view, the record of the appellant's interview with the police was so adverse to the appellant that, from the appellant's point of view, it cannot be said that the lack of detailed reference prejudiced the appellant.
[137]
[76] As to the appellant's ground of appeal in relation to the trial judge's failure to direct the jury as to the absence of evidence of motive in the Crown case, the first point to be made is that the appellant's attempt to rely upon De Gruchy v The Queen[18] is misconceived. While it is true that the absence of evidence of motive may be relevant to whether an accused acts with a particular intent, it is important to avoid confusion in three respects: first, motive must not be confused with intent; secondly, proof of motive is relevant, but not essential, to proof of intent, and, thirdly, absence of proven motive must not be confused with proven absence of motive. These points are explained in De Gruchy v The Queen, where Gaudron, McHugh and Hayne JJ said:[19]
[138]
"Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball ([1911] AC 47 at 68):
[139]
'Evidence of motive necessarily goes to prove the fact of the homicide by the accused ... inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.'
[140]
So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies J in Plomp v The Queen, 'is commonly relied upon as a circumstance tending in favour of ... a person accused of a crime' ((1963) [1963] HCA 44; 110 CLR 234 at 250).
Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other (See Ellwood[2009] EWCA Crim 2575; (1908) 1 Cr App R 181. See also Phipson, Best on Evidence, 12th ed (1922), s453, p 385; Best, Presumptions of Law and Fact (1981), s232, p 182). In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive (See R v T[1998] 2 NZLR 257 at 266 per Eichelbaum CJ). And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.
The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of 'positive significance', either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive."
[141]
[77] The points made in the joint judgment in De Gruchy v The Queen were also made by Kirby J. Moreover, his Honour made it clear that, consistently with due recognition of the jury's exclusive role as the tribunal of fact, a proper direction to a jury may well not involve any reference to motive at all. The relevant passage is somewhat lengthy; but I am respectfully of the view that it deserves to be cited in full because it confirms the sufficiency of the learned trial judge's directions to the jury. Kirby J said:[20]
[142]
"Motive is neither necessary nor sufficient: Because motive, as such, is not an ingredient of a legal offence (such as the murders with which the appellant was charged), it is not necessary, as a matter of law, for the prosecution to prove that an accused had a particular motive, still less one to commit the offence in question. This rule is based not only upon sound legal analysis of the actual ingredients of the offence. It is also grounded in highly practical considerations. The United States Supreme Court in Pointer v United States ((1894) [1894] USSC 38; 151 US 396 (1894) at 413; cf Wigmore on Evidence, vol 1A (rev), 1983, s118, pp 1698-9) explained:
[143]
'The law does not require impossibilities. The law recognises that the cause of the killing is sometimes so hidden in the mind and breast of the party who killed, that it cannot be fathomed, and as it does not require impossibilities, it does not require the jury to find it.'
[144]
Yet even if a motive can be proved, as part of the circumstantial case which the prosecutor seeks to build against the accused, it will not, of itself, be sufficient to establish guilt of the offence. A motive may, in the circumstances, be so remote or unlikely that it makes any conversion of emotion into action an unlikely possibility. A person may hate another but be unwilling, or unable, to convert such hate into action or be restrained by fear of detection and punishment: (Best on Evidence, 12th ed (1922), p 384)
[145]
'The mere fact ... [that] a party being so situated that an advantage would accrue to him from the commission of a crime, amounts to nothing, or next to nothing, as a proof of his having committed it ... Still, under certain circumstances, the existence of a motive becomes an important element in a chain of presumptive proof.'
[146]
Motive and proof: It is because motive (or lack of it) will sometimes be considered highly relevant to the drawing of inferences and the pursuit of the chain of proof, that questions can arise in a criminal trial as to what the judge should tell the jury about the subject. The reason that assistance is sometimes necessary follows from the experience of humanity that ordinary people 'do not act wholly without motive' (Kennedy v The People(1868) 39 NY 245 at 254. As to proof of prior threats of menaces or irritating behaviour see: R v Bond[1906] 2 KB 389 at 400; R v Wilson[1970] VicRp 89; [1970] VR 693 at 695-6. Motive can also sometimes be relevant to understanding the facts in issue: Alister v The Queen[1984] HCA 85; (1984) 154 CLR 404 at 461. It is for just such a consideration that evidence of motive is generally regarded as admissible in criminal cases, because it is thought to make it more likely that the crime was committed (R v Ball[1911] AC 47 at 68 per Lord Atkinson). It was also upon such bases of 'sound sense' (Plomp v The Queen[1963] HCA 44; (1963) 110 CLR 234 at 249 per Menzies J) and common reasoning that this Court, in ((1963) ; , a case involving the drowning of the accused's wife whilst swimming with him, upheld the proof of the facts that the husband had formed a liaison with another woman, to whom he had represented himself to be a widower and whom he had promised to marry.
[147]
'All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.'
[148]
Judicial instructions on motive: It follows from the foregoing that a number of general propositions can be accepted to guide judges in the consideration of whether they should give instructions to a jury concerning motive, where that issue has arisen as a live one in the course of the trial, and if so in what terms:
[149]
(1) No general direction can be formulated to accommodate all the different circumstances that can arise (cf Glissan and Tilmouth, The Right Direction, (1990), pp 54-5; Moore v United States[1893] USSC 209; (1893) 150 US 57; Goldsby v United States[1895] USSC 243; (1895) 160 US 70. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole.
[150]
(2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive (Wigmore on Evidence, vol 1A (rev), (1983), s118, pp 1698-9), and that the absence of a proved motive cannot as a matter of law be fatal to its case (Wigmore on Evidence, vol 1A (rev), 1983, s118, pp 1697-1701). Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation.
[151]
(3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that '[t]he stronger the motive the more influence it is likely to have [on the jury]' (Mutual Life Insurance Co of New York v Moss[1906] HCA 70; (1906) 4 CLR 311 at 321). On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong (R v Shaw[1917] NSWStRp 41; (1917) 17 SR (NSW) 383 at 387-8 per Street J; cf Pointer v United States[1894] USSC 38; (1894) 151 US 396 at 413-14).
[152]
(4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime.
[153]
(5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is 'always a fact in favour of the accused' (Best on Evidence, 12th ed, (1922), p 385. See also Best, Presumptions of Law, (1981), s310, p 182). There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury (R v Askeland(1983) 18 A Crim R 102 at 114; cf Robinson v State(1974) 317 NE 2d 850; Peoples v Commonwealth1927) 137 SE 603. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury's notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed (Mutual Life Insurance Co of New York v Moss[1906] HCA 70; (1906) 4 CLR 311 at 317): 'the more heinous the act ... the more important becomes the question of motive.' If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard.
[154]
(6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, 'there may be a motive, and perhaps a strong one, but no evidence of it available' (R v Askeland(1983) 18 A Crim R 102 at 114). In Pointer v United States ((1894) [1894] USSC 38; 151 US 396 (1894) at 414), the Supreme Court of the United States put it this way: 'The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction.'"
[155]
[78] In the light of these observations, it can be seen that the trial judge was correct to refrain from commenting about the issue of motive and the distinction between motive and intention. It would have been quite wrong for the learned trial judge to direct the jury that proof of motive by the Crown was essential to proof of intent. Furthermore, for the reasons given earlier, the trial judge would have been quite wrong to direct the jury that this was a case of proven absence of motive. If the trial judge had directed the jury in relation to the issue of motive in this case, a comprehensive direction could not have avoided reference to the matters referred to in paras [53] and [54] above. Such a direction would have been a serious disadvantage to the appellant. Similarly, a comprehensive direction as to the distinction between intention and motive would have adverted to the matters referred to in paras [55] and [56] above. Such a direction would also have been seriously disadvantageous to the appellant.
[156]
[79] The appellant was born on 2 December 1968. He has a substantial criminal history which consists largely of offences of dishonesty. In the early 1990s, he was imprisoned for supplying drugs.
[157]
[80] The appellant has been HIV positive for 17 years. It is likely that he will soon need treatment. He also suffers from a serious back condition for which he requires medication. He suffers psychological conditions as well. In this regard, the sentencing judge noted the "strong policy ... against what might be seen as sentimental amelioration of otherwise condign punishments because of the age, because of the health condition of the offenders".
[158]
[81] On the appellant's behalf, it was submitted that these personal factors should have been taken into account as mitigating the sentence to be passed upon the appellant. While these matters were relevant to the question of sentence, they could not diminish the seriousness of the offence and its impact on the complainant so as to displace the need for condign punishment. As was said by this Court in R v Irlam; ex parte A-G[21] and in R v Laus:[22]
[159]
"While an offender's ill-health is a mitigating factor in circumstances where imprisonment will lead to additional burdens beyond those experienced by others, that feature must not be allowed to overwhelm appropriate reflection of the grave nature of offences like these."
[160]
[82] The appellant's offending was grave indeed. The learned sentencing judge was satisfied that the appellant deliberately misinformed the complainant as to his HIV status to induce him to have unprotected sex. Further, as the learned primary judge recognised, the complainant has been infected with a terminal disease. The complainant's victim impact statement shows that the complainant's enjoyment of what life he has left has been wholly destroyed by the condition for which the appellant was responsible.
[161]
[83] It is to be emphasised that the sentence imposed by the learned sentencing judge reflected the jury's finding that the appellant actually intended to transmit the virus. The appellant's submission that "there is no suggestion of malice ... in this offence" is belied by the jury's verdict. It was, therefore, entirely appropriate for the sentencing judge to proceed on the basis, as he explained it, that:
[162]
"There could hardly be anything more repellent than the thought of a person with a disease which is going to prove fatal in the short or longer term deliberately infecting somebody else with it, somebody else who will then share the same bleak prospects in life."
[163]
[84] There are no decisions of this Court involving circumstances truly comparable to the circumstances of the present case; but in my opinion, this Court should affirm that the level of criminality reflected in the jury's finding of guilt on a charge of which intent is an element significantly exceeds the level of criminality involved even in serious cases of grievous bodily harm with intent to do same grievous bodily harm.[23]
[164]
[85] The infection which the appellant intentionally transmitted to the complainant can be expected to be fatal, and until the complainant succumbs to the infection, his life has been reduced to a state of abject misery. It was inflicted by deceit which was callous in the extreme. The appellant was, and has remained, utterly without remorse as was shown by the uncontradicted evidence that the appellant taunted the complainant with the affliction which the appellant had caused.
[165]
[86] For an offence involving that level of criminality, even giving full weight to the mitigating circumstances, a sentence of 10 and a half years must be regarded as distinctly at the lower end of the range of a sentencing discretion.
[166]
[87] The appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.
[167]
[88] CHESTERMAN J: I have read the draft judgment prepared by Keane J.A. and agree entirely with the orders proposed by his Honour and with the reasons given for dismissing the appeal and application. However, because of the importance of the point on which the Court is divided in opinion, I intend to give some brief reasons of my own.
[168]
[89] The Criminal Code includes in its definition of a number of offences a statement that an intention to bring about a particular result is an element of the offence. Section 317, with which this appeal is concerned, is one such provision. The section provides, relevantly, that any person who, with intent, transmits a serious disease to another is guilty of a crime. Another well known example is found in
[169]
s. 302(1)(a) which provides that a person who unlawfully kills another is guilty of murder if the offender intended to cause death or if the offender intended to do grievous bodily harm. A third example is afforded by s. 320A which provides that a person who tortures another person commits a crime, and defines torture to mean "the intentional infliction of severe pain or suffering ...".
[170]
[90] The Code does not define "intention". In ordinary, everyday, usage, "intention" means the act of "determining mentally upon some result'. Intention is a 'purpose or design". If an accused intends to kill, or transmit a disease, he means to kill or transmit the disease. His actions are designed to bring about the result.
[171]
[91] To my understanding this meaning has always been the one ascribed to the word "intent" or "intention" where the Code makes that mental state an element of an offence.
[172]
[92] This view was expressly, and indeed emphatically, stated by the Court of Criminal Appeal in R. v. Willmot (No. 2)[1985] 2 Qd.R. 413. Connolly J. (with whom Moynihan J. agreed) said (at 418):
[173]
"The mental element which must be proved when a case of murder goes to the jury under s. 302(1) is intention to cause death or to do grievous bodily harm. The ordinary and natural meaning of the word "intends" is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design.
... [T]here is ... no ambiguity about the expression ... and it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language. It is a truism that it is the Code itself which speaks and that it is ... wrong in principle to gloss it."
[174]
[93] The same approach was taken in this court in a recent decision in a case of torture,
[175]
R. v. Ping[2005] QCA 472; [2006] 2 Qd.R. 69. The court emphasised the necessity for the prosecution to prove an actual, subjective intention on the part of the accused. The judgment, in which all the members of the court agreed, said (at 76):
[176]
"To make out a case of torture the prosecution must prove ... that an accused intended his acts to inflict severe pain and suffering on his victim. It is not enough that such suffering is the consequence of the acts, and that the acts were deliberate. The prosecution must prove an actual, subjective, intention on the part of the accused to bring about the suffering by his conduct. The acts in question must have as their object the infliction of severe suffering; that must be their intended consequence."
[177]
[94] The judgment criticised the summing up which had suggested that intention could be proved by "what a person of ordinary knowledge and common sense would realise would follow ... from what they did ...". The court said that that passage was misleading (at 78):
[178]
"It suggests that intention to bring about a result is to be presumed where the consequence of an act is foreseeable, and the act is performed. Alternatively it suggests that intention is to be assessed by an objective evaluation of what is a likely consequence of an act, so that if a result is intended it was objectively likely to follow the act.
What the jury should have been told was that the Crown had to prove that the appellant had an actual subjective intention to cause the complainant to suffer ... and that his conduct was designed to achieve that result."
[179]
[95] "Intent" and "intention" must have the same meaning wherever they appear in the Code. If an actual, subjective, intention to bring about a particular result, such as death or the infliction of severe pain and suffering, must be proved before a jury may convict of murder or torture, the same must be true of intent in s. 317. What is necessary to prove intent is proof that an accused (here the appellant) meant to transmit his HIV to the complainant.
[180]
[96] When considering the provisions of the Criminal Code the approach is well settled, and it is scarcely necessary to repeat the instruction given by Dixon and Evatt J.J., Brennan v. The King[1936] HCA 24; (1936) 55 C.L.R. 253 at 263:
[181]
"... it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered ...".
[182]
[97] The common law differs from s. 302 in relation to the mental state which it must be proved an accused had before he can be convicted of murder. It was with this different mental state that the judgments in Hyam v Director of Public Prosecutions[1974] UKHL 2; [1975] A.C. 55 were concerned.
[183]
[98] The facts of the case are set out in the judgment of McPherson J.A. The trial judge had directed the jury:
[184]
"The prosecution must prove, beyond all reasonable doubt, that the accused intended to [kill or] do serious bodily harm to Mrs Booth ... If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause [death or] serious bodily harm then the prosecution will have established the necessary intent."
[185]
The judge advised the jury to concentrate on the intent to do serious bodily harm rather than to kill.
[186]
[99] The question which the House of Lords gave leave to argue was:
[187]
"Is malice aforethought in the crime of murder established by proof beyond reasonable doubt that when doing the act which led to the death ... the accused knew that it was highly probable that that act would result in death or serious bodily harm?"
[188]
[100] Viscount Dilhorne (at 81) explained the position at common law:
[189]
"In his Digest of the Criminal Law, published in 1877, in art. 223, Sir James Stephen defined 'malice aforethought' as involving the following states of mind:
'(a) An intention to cause the death of, or grievous bodily harm to, any person ...
(b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person ...'
...
The Royal Commission on Capital Punishment ... said ... that this was the statement of the modern law most commonly cited as authoritative. ... In paragraph 76 ... five propositions were stated ... The fifth proposition was:
'(iv) It is murder if one person kills another by an intentional act which he knows to be likely to kill or to cause grievous bodily harm ...'
...
Stephen in his Digest treated such knowledge as a separate head of malice aforethought and distinct from those in which intent is necessary."
[190]
[101] The House was divided on the question whether, if an accused knew that his deliberate, or intended, act which in fact caused death would probably cause it, or at least do grievous bodily harm, he intended, or was deemed to have intended, to cause the death. The answer to the question would have no effect on the result of the appeal. Either of the mental states described in art. 223(a) and (b) was sufficient, if present, to make a homicide murder. It had no consequence whether the two mental states were distinct or identical.
[191]
[102] Viscount Dilhorne's opinion (at 82) was that it was not
[192]
"... strictly necessary in this case to decide whether such knowledge establishes the necessary intent, for ... it is not such a misdirection as would warrant the quashing of the conviction as, even if it did not establish intent, it was correct in that such knowledge amounted to malice aforethought ..."
[193]
although he "inclined to the view" that the direction given by the trial judge was correct.
[194]
[103] Lord Hailsham denied the proposition. He said (74, 75, 79):
[195]
"I know of no better judicial interpretation of 'intention'... than that given ... by Asquith L.J. (Cunliffe v. Goodman[1950] 2 K.B. 237 ... at p. 253):
'An "intention" ... connotes a state of affairs which the party "intending" ... does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.'
If this be a good definition of 'intention' for the purposes of the criminal law of murder ... it is clear that 'intention' is clearly to be distinguished ... from ... foresight of the probable consequences.
...
I do not ... consider ... that the fact that a state of affairs is correctly foreseen as a highly probable consequence of what is done is the same thing as the fact that the state of affairs is intended."
[196]
"... I agree with those of your Lordships who take the uncomplicated view that in crimes of this class no distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. What is common to both these states of mind is willingness to produce the particular evil consequence: and this ... is the mens rea needed to satisfy a requirement, whether imposed by statute or existing at common law, that in order to constitute the offence with which the accused is charged he must have acted with 'intent' to produce a particular evil consequence or, in the ancient phrase which still survives in crimes of homicide, with 'malice aforethought'."
[197]
As I understand that passage Lord Diplock had in mind not statute law in general but s. 1 of the Homicide Act which retained the necessity of proving malice aforethought before a homicide would amount to murder.
[198]
[105] Lord Cross accepted the distinction but pointed out it was irrelevant to the proof of malice aforethought. He said (96, 97):
[199]
"Stephen's definition covers four states of mind. A(1) an intent to kill, (2) knowledge that the act in question will probably cause death. B (1) an intent to cause grievous bodily harm, (2) knowledge that the act in question will probably cause grievous bodily harm. ... I am prepared to assume that as a matter of the correct use of language the man in question [who foresaw the probable consequence of his action] did not intend to injure those who were in fact injured by his act. But we are not debating a problem of linguistics; we are asking ourselves whether Stephen was right in saying that the states of mind labelled A (2) and B (2) constitute 'malice aforethought'. The first question to be answered is whether if an intention to kill - using intention in the strict sense of the word - is murder - as it plainly is - doing an unlawful act with knowledge that it may well cause death ought also to be murder. I have no doubt whatever that it ought to be. ...
...
I think that we should for present purposes accept Stephen's article 223 (a) and (b) as a correct statement of the law."
[200]
[106] In The Queen v. Crabbe[1985] HCA 22; (1985) 156 C.L.R. 464 the High Court had to consider a charge of murder when "the rules of the common law governed the question what mental element is necessary to constitute the crime of murder, or, to use the traditional terminology, what is meant by malice aforethought."
[201]
[107] The court had regard to Stephen'sDigest, the relevant part of which appears in the passage quoted from the judgment of Viscount Dilhorne. The court (Gibbs CJ, Wilson, Brennan, Deane and Dawson J.J.) said (469):
[202]
"Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. That view was expressed in Reg. v. Hyam ... by Viscount Dilhorne, Lord Diplock ... and possibly by Lord Cross ... although Lord Hailsham ... denied its correctness. ... It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result ... That state of mind is comparable with an intention to kill or to do grievous bodily harm."
[203]
[108] What emerges from this passage is that equating knowledge, or foresight, of the probable consequences of an act with the intention of bringing about that consequence is controversial and, as the division of opinion in the House of Lords demonstrates, lacks distinct authority. A definite answer to the controversy is unnecessary when one relies upon malice aforethought as constituting the necessary mental element to constitute the crime of murder. Either state of mind is sufficient. The Code does not speak of malice aforethought. It speaks of intention.
[204]
[109] To say that the two states of mind are comparable for the purpose of imposing criminal liability is not to say that the two mental states are identical or that proof of foresight of the consequences of a deliberate act is proof that an accused intended to bring about that consequence.
[205]
[110] It will be appreciated that the question at common law in cases of homicide is: did the accused act with malice aforethought? The question which the Code poses is: did the accused intend the particular result?
[206]
[111] As a matter of evidence, proof that an accused knew, or foresaw, that the probable consequence of his deliberate act was, for example, death, will usually establish that the accused intended to cause the death. One is not here concerned with questions of evidence but of an essential element of a statutorily defined offence. When that element is intention it is not helpful to consider that proof of a different mental state may afford cogent proof of the existence of the statutorily required element. It is, I think, instructive to recall that in Director of Public Prosecutions v. Smith[1961] A.C. 290 the House of Lords flirted with the proposition that an accused is deemed to have intended the natural and probable consequence of his deliberate acts. The High Court immediately dissented in a significant case, Parker v. The Queen
"In Stapleton v. The Queen [(1952) [1952] HCA 56; 86 CLR 358] we said: 'The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous' [(at 365)]."
[209]
The effect of the decision in Smith was abolished in England by s. 8 of the Criminal Justice Act 1967.
[210]
[112] It is similarly dangerous to deem that an accused intends the consequences of his actions which he knows will follow them, or foresees will probably follow them.
[211]
[113] In my respectful opinion the Code requires nothing less than proof of intention.
[212]
[114] To make good the charge against Reid the Crown had to prove that he engaged in intercourse with the complainant intending, by that conduct, to transmit the HIV virus to the complainant. Applying Willmot and Ping, the Crown had to prove that the appellant's conduct was designed to achieve that result, that his purpose in engaging in intercourse was to infect the complainant.
[213]
[115] I agree with Keane J.A. that the trial judge's summing up was adequate to instruct the jury as to that element of the offence and that the evidence was sufficient to support the conviction.
[214]
[116] I would dismiss the appeal and the application for leave to appeal against sentence.
It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.
A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen's Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element." (emphasis added)
Crabbe
In charging the jury elaboration or paraphrase of what is meant by intent should be avoided: Reg. v. Moloney[1984] UKHL 4; [1985] 2 W.L.R. 648 at p. 664. The jury should of course be told in appropriate cases that intention is not the same as motive or desire. They should also be told that they are to decide whether the intention is established on the whole of the evidence. Thus, in this case, the appellant denied having formed any intention to kill. But it was clearly open to the jury to conclude that the cruel death which this young woman suffered must have been and in fact was intended by him." (emphasis added)
In the cases before Plomp there had sometimes been suggestions that evidence of motive should not be received without some independent proof of the accused's involvement in the crime first being established (Cross on Evidence, 6th Aust ed (2000), at [1140]; cf R v Georgiev[2001] VSCA 18; (2001) 119 A Crim R 363). That approach had grown out of a concern that too much weight might otherwise be accorded by a jury to evidence of motive (Best on Evidence, 12th ed, 1922, p 384; Cross on Evidence, 3d NZ ed, 1979, p 42). Occasionally, the exploration of the motives of a witness or of the accused may open up impermissible considerations, having regard to the accusatorial nature of the criminal trial (Palmer v The Queen[1998] HCA 2; (1998) 193 CLR 1 at 41-3 [100]- [103]; Gans, 'Why Would I be Lying?: The High Court in Palmer v R Confronts an Argument that may Benefit Sexual Assault Complainants') Sydney Law Review vol 19 (1997) 568). However, the decisions of this Court have consistently recognised that, in some circumstances in criminal trials, evidence of motive may be 'of the greatest importance' (Mutual Life Insurance Co of New York v Moss[1906] HCA 70; (1906) 4 CLR 311 at 321 per Griffith CJ). In Plomp, Dixon CJ emphasised (Plomp v The Queen[1963] HCA 44; (1963) 110 CLR 234 at 242):