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High Court judgments

High Court judgments

By Andrew Yuile

Courts Judgment Practice & Procedure 


Criminal law Meaning of “inflicted” where accused caused contraction of disease – recklessness and foresight of risk In Aubrey v The Queen [2017] HCA 18 (10 May 2017) the appellant had unprotected sex with the complainant when the appellant knew he was HIV positive. The complainant was infected with HIV. The appellant was convicted on an alternative charge of maliciously inflicting grievous bodily harm on the complainant, contrary to s35(1)(b) of the Crimes Act (NSW). There were two questions for the High Court. First, whether causing the contraction of a disease can come within “infliction” of harm. And second, whether recklessness, fulfilling the mental element of malice, was satisfied if the appellant foresaw the possibility, as opposed to the probability, of the contraction of the disease. On the first question, the High Court held that the decision in R v Clarence (1888) 22 QBD 23 should not be followed. For several reasons, including developments in English authorities since, the infliction of harm does not require a direct or immediate application of force resulting in injury.

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