Criminal intent

Introduction

The High Court recently heard submissions of counsel in Zaburoni v The Queen. This case concerns an appeal against conviction for transmitting a serious disease with intent under s 317(b) and (e) of the Queensland Criminal Code. It raises important issues about the meaning of intent and how intent can be proven in Queensland criminal offences.

Since intent is an element of so many of the more serious crimes, it is surprising to see that the courts, both in England and Australia, continue to grapple with how best to define it. In murder, for example, the accused is potentially going to be locked up for a very long time, so it is essential that the courts and juries are very clear on what intent actually means, so that they can be confident in correctly finding that it was present on the facts of the case.

In the Zaburoni case, Zaburoni, the appellant, knew he was HIV positive but concealed this from his partner. He engaged in unprotected sex with her over a significant period of time and she contracted HIV as a result.

He claims he did not intend to infect his partner, but pleaded guilty to the less serious offence of causing grievous bodily harm (under s 320 of the Code).However, he was convicted of the more serious offence, which requires intent and can carry a longer prison term.

The Criminal Code doesn’t define “intent”, so the word bears its ordinary, natural meaning.  The Crown must prove that “the appellant’s conduct was designed to achieve that result” (Reid case). That is, the defendant aimed for the result, or achieving the result was his purpose in engaging in the conduct.

It can be hard to tell what somebody’s intention, purpose, or aim is. One important criterion – somebody’s sincere claim that they intended to cause outcome X – is normally unavailable in criminal cases, where the accused denies intending the consequence (death, HIV transmission). It is because the accused has denied it, that we are in court trying to find out what his or her intent really was.

Where there is no confession, we may have to accept that we can’t prove intention beyond reasonable doubt. Without a confession the jury will need to infer the accused’s state of mind from facts established by the evidence.  This is tricky where an accused may have been aware of some risk in acting in a certain way but claims not to have intended the result that occurred. One option we must be wary of is thinking that it suffices to prove intent to show that the accused had the consequence in mind when he or she acted.

Zaburoni’s lawyers claim he was reckless in engaging in unprotected sex, but that this does not equate to intending to transmit HIV and so should have been acquitted of the more serious offence.

How, then, should we understand intent? Is there a need to go beyond purpose or aim when defining intent?

The courts appear to think so, and have grappled with this issue for many years.

A recent example comes from the transcript of the Zaburoni High Court appeal, where both barristers and judges alike explain intent in quite different ways.

We think there are two fundamental reasons why the law has struggled with this issue.