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Criminal Law Blog NSW

Man was accused for deliberately infected the victim with HIV by having consensual sexual intercourse with her without a condom, knowing that he himself was diagnosed with the disease

While to inflict grievous bodily harm generally implies a physical assault, infliction under this offence also includes the act of infecting another with a grievous bodily disease. An interesting case involving this is Regina v. Michael Aubrey.

Sometime in 2004, Aubrey (accused) caused Regina to be infected with HIV. It was alleged by the Crown that the accused deliberately infected the victim with HIV by having consensual sexual intercourse with her without a condom, knowing that he himself was diagnosed with the disease. Prior to their having sexual intercourse, the accused falsely misrepresented to the victim that he did not have HIV.

While the Crown did not allege that any physical assault occurred during the sexual intercourse, it did allege that the victim was infected by a grievous bodily disease as a consequence. The Crown submitted that, while a disease does not create an immediate harm, such grievous bodily harm may manifest itself after a period of time. Understandably, the accused argued that the term “inflict” is limited to the application of violent force on the body of the victim. According to him, his act of infecting the victim with HIV does not constitute the offence of malicious infliction of grievous bodily harm.

It must be remembered that the offence of inflicting grievous bodily harm may be committed without any physical assault. The term “inflict”, therefore, is not merely limited to a harmful, physical act committed directly against the victim. It also includes indirect, non-physical harm that the victim may suffer, so long as such harm is the direct cause of the accused’s wrongful act. A good analogy for this is the “infliction” of punishment on a child by his or her parent.

In this scenario, infliction of punishment covers both physical punishment (e.g. spanking) and non-physical punishment (grounding). The accused’s argument that to “inflict” refers only to physical bodily harm is wrong. It should be noted that whatever act that gives rise to a grievous bodily harm, whether immediate or not, constitutes the offence.

Source: R v Aubrey [2012] NSWCCA 254

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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