Thursday, March 1, 2018
Thomas Alured Faunce and Brendan Siles (Australian National University and Australian National University - ANU College of Law) have posted High Court of Australia and HIV/AIDS Disease Criminalisation: Aubrey V the Queen and Zaburoni V the Queen ((2017) 25 JLM 52- 61) on SSRN. Here is the abstract:
In 2017, the High Court of Australia in Aubrey v The Queen (2017) 91 ALJR 601;  HCA 18 considered the term “inflict” grievous bodily harm, under common law, and expanded its interpretation to incorporate nonviolent and non-immediate infection of a disease, overturning a 120 year authority in R v Clarence (1888) 22 QBD 23. In the previous case of Zaburoni v The Queen (2016) 256 CLR 482;  HCA 12, the High Court allowed an appeal from the Qld Supreme Court finding that repeated acts of unprotected sexual intercourse by a man who knew he was infected with HIV/AIDS, though callous and reckless, did not constitute intention to infect his female partner; consequently, he could be found guilty of a lesser offence of inflicting grievous bodily harm which carried a maximum 14-year prison sentence rather than life imprisonment. These decisions illustrate a court intersecting with an emerging trend to use legislation creating criminal offences to deter those who intentionally or recklessly infect others with life-shortening diseases.