Intention Recklessness

Posted on Jun 27, 2016 by Nicholas Amos   |   Categories: Criminal & Traffic Law

A fundamental aspect of the criminal law is that many crimes can only be prosecuted when the offender has some form of guilty state of mind at the time they commit the crime.

In some cases, the law requires that the offender intend the results of their actions in order to be guilty of the crime. So, for example, to be guilty of murder a person who causes the death of another must intend to kill that person or at least to cause them really serious injury.

In other cases, the guilty state of mind may not require the offender to actually intend the ultimate outcome of their actions but simply to be reckless as to whether those consequences will result. The law says that a person is reckless when they are aware that their conduct may result in a certain outcome (for example another person being injured) but continues on with their conduct regardless.

A recent case from the High Court of Australia demonstrates the important differences between these two guilty states of mind.

In that case, the accused man conceded that he had transmitted HIV to a partner at some stage during a relationship where they would regularly have unprotected sex.

He was charged with and initially found guilty of, unlawfully transmitting a serious disease to another person with the intention to do so. His defence was that he had no intention to transmit HIV to his partner, simply engaging in unprotected sex because he found that more pleasurable.

The man was diagnosed with HIV in April 1998. Between April and July 1998 he saw at least three different doctors and was advised that HIV could be transmitted through sexual contact. It was stressed to him the importance of using condoms when engaging in sex and advised that he should inform any future sexual partners of his HIV positive status. He did not follow through with reviews and treatment recommended to him at the Department of Clinical Immunology at a hospital in Perth where he was then living.

In April 2005 the man, who was originally from overseas, was required by the Department of Immigration to provide a blood test. He dishonestly provided a sample taken from a friend of his.

The man met the victim in December 2006 and several weeks later they commenced a sexual relationship. He told the victim that he had been tested and was not HIV positive. For about six weeks after their relationship began, the man would use condoms during sex. After that initial period, there were occasions of unprotected sex which became more and more common.

The relationship ended in September 2008. The victim was subsequently diagnosed with HIV in the second half of 2009. She spoke with the man in early September that year and he told her that he was HIV-positive but had only known this fact for six months.

The man was then interviewed by police in May 2010. In that interview, he claimed that he had engaged in unprotected sex with the victim on possibly two occasions. He also told the police that when he was diagnosed with HIV in 1998 he had not been given much information about the condition or of the need to inform his sexual partners of his HIV status.

The prosecution claimed that a combination of factors allowed the court to draw the inference that the man must have intended to transmit the disease to his partner. They relied on the advice he had been given by doctors when he was first diagnosed that HIV was sexually transmitted, his decision to have unprotected sex despite this knowledge, his dishonesty in arranging for a friend to provide the blood sample to the Department of Immigration, the lie he told his partner about his HIV status at the start of their relationship and the lies that he told her and the police after she was diagnosed with HIV.

When his case was appealed to the High Court the judges emphasised the need for the prosecution to be able to prove that when the man had unprotected sex with his partner he had the actual intention to (that is that he meant to) transmit HIV to her.

Ultimately the court was not satisfied by the evidence relied on by the prosecution that the man had this intention. The court was satisfied that he had been reckless as to whether having unprotected sex with his partner would cause her harm. Indeed, he had been prepared to plead guilty to a charge to that effect.

This case does emphasise the importance of understanding each of the aspects of any criminal charge a person might be facing. Anyone charged with a criminal offence should seek legal advice to ensure that the prosecution is made to properly prove all of the aspects of that charge.

For further information please contact Baker Love Lawyers, call (02) 4944 3322