On 9 February 2016 the High Court of Australia heard the matter of Zaburoni v The Queen, B69 of 2015 with the decision handed down today, 6 April 2016.
In 2010 Mr Zaburoni was charged under s.317 of the Criminal Code 1899 (Qld) with intentionally transmitting a serious disease, ie HIV. He was also charged and plead guilty to an alternative offence under s.320 of the Criminal Code, this offence involved the reckless infliction of grievous bodily harm.
In 2013 Mr Zaburoni was found guilty of the first offence and sentenced to a term of imprisonment of 9 years and 6 months. The Court of Appeal was asked to determine whether the verdict was unreasonable and whether it was open to the jury to find beyond reasonable doubt that the Mr Zaburoni had intended to transmit HIV to the complainant; Mr Zaburoni was unsuccessful on appeal.
The proceedings in the lower courts demonstrated that an ‘impartial’ jury and the judiciary failed to understand that there are many reasons why people may not disclose their HIV status, including fear of abandonment, discrimination or violence; shame or embarrassment; and/or being in denial about their HIV status; and rather formed the view that denial and non-disclosure in the context of a one and a half year relationship amounted to intent to transmit HIV.
UNAIDS calls for “any application of criminal law to HIV non-disclosure, exposure or transmission should require proof, to the applicable criminal law standard, of intent to transmit HIV.”1
Alexandra Stratigos from the HIV/AIDS Legal Centre in Sydney, the solicitor representing Zaburoni, states “the judgment is a significant advance, and helps to resolve the difficulty that there is no one ‘applicable criminal law standard’ across Australia and the test for the intentional transmission of HIV to a sexual partner has been a source of uncertainty.”
The HIV/AIDS Legal Centre filed an appeal in the High Court of Australia on behalf of Mr Zaburoni, with Tim Game SC and Georgia Huxley as Counsel.
Alexandra Stratigos states that “when Mr Zaburoni asked us to help him to appeal the decision we could see that this case would have implications that would go beyond just assisting Mr Zaburoni. The case will resolve unanswered questions and expose the problems with transmission of HIV being dealt with under criminal law instead of under public health laws”.
This case has clarified the existing law by finding that:
“foresight of risk of harm is distinct in law from the intention to produce that harm”;
“Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct… knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code.”
Until today these issues had not been determined in a court at this level worldwide.
The outcome of the proceedings can be utilised by HIV advocates to progress the need to have adequate prosecutorial guidelines. Police, lawyers and the judiciary need to recognise that the issues around transmission of HIV and intent are unique and a standard criminal law approach cannot be taken.
Advocates can also learn what information must be provided to defence lawyers regarding reasons for HIV non-disclosure, and what may be presented to a court to refute the assumption that non-disclosure in and of itself may equate to intentional transmission of HIV. It is critical to advocate on behalf of accused persons to have this information brought before the court.
Joint Media Release: AFAO, HIV/AIDS Legal Centre (HALC), National Association of people With HIV Australia (NAPWHA)
Media Contacts:
HIV/AIDS Legal Centre, Alexandra Stratigos (02) 9206 2060
The HIV/AIDS Legal Centre is a specialist, not-for-profit community legal centre that provides advocacy, law reform and education on issues around HIV and the law.
NAPWHA Executive Director Aaron Cogle (02) 8568 0301
NAPWHA Vice-President Robert Mitchell 0406 925 937
AFAO, Linda Forbes (02) 8568 1109.
1 UNAIDS, Guidance Notes 2013, Ending overly broad criminalization of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, at 26.
