By Paul Gregoire and Ugur Nedim
On New Year’s Eve 2006, Godfrey Zaburoni met a woman on the Gold Coast and the pair began a sexual relationship a few weeks later that lasted 21 months. Before the relationship began, the woman asked Zaburoni whether he’d been tested for HIV, to which Zaburoni replied that he had and that he was not HIV positive.
For the first six weeks of the relationship, Zaburoni used condoms during sex. He then stopped using them, as it was more pleasurable for him to have unprotected sex. The couple engaged in sexual intercourse two to three times per week.
In mid-2007, the woman began suffering bouts of an illness that was diagnosed as glandular fever. The symptoms may have been a response to HIV infection known as seroconversion illness.
During the course of their relationship, Mr Zaburoni informed his partner that his brother had died of HIV/AIDS, but again denied being HIV positive himself.
The couple separated in September 2008. On 27 August 2009, a doctor informed the woman that she was likely to be HIV positive. This was later confirmed by blood tests. After denying he was HIV positive once more, Zaburoni then told his ex-partner that he had been diagnosed with the virus six months earlier.
Zaburoni told a friend that he hadn’t initially informed the woman about his status, as he “didn’t want to ruin her life.”
Repeated lies
However, Mr Zaburoni had been diagnosed with HIV in April 1998, while touring Australia as an acrobat with a Zimbabwean circus. At the time, several doctors advised him of the risks associated with HIV transmission, and to use condoms during sex.
In May 2010, Zaburoni told police he and the woman had engaged in unprotected sex on just two occasions. He claimed that when diagnosed, he was given little information about the risks involved with the condition.
Zaburoni subsequently admitted to police that when he migrated to Australia in April 2005, he had tested negative to a compulsory Australian Immigration Department HIV test because he had intentionally supplied a blood sample taken from a friend.
Convicted of intent
On 18 April 2013, a Queensland District Court jury found Mr Zaburoni guilty of transmitting a serious disease with intent in contravention of section 317(1)(b) of the Criminal Code 1899 (Qld). The offence carries a maximum penalty of life imprisonment.
District Court Judge Dick later sentenced Zaburoni to 9 years and 6 months imprisonment.
Amongst the agreed facts of the trial were that the risk of contracting HIV from unprotected penile-vagina intercourse is approximately 0.1 percent. A person will be more infectious if they have high viral loads in their sexual fluids. As Mr Zaburoni had not undertaken antiretroviral treatment, it was likely that his levels were still high, and an expert estimated a 14 percent chance of transmission.
The prosecution submitted that there was proof of intent, as Zaburoni knew he was HIV positive, failed to use condoms, engaged in repeated unprotected sex over a long period of time, and repeatedly lied about his status, even when his partner showed signs of ill-health.
An initial appeal
Mr Zaburoni appealed the conviction to the Queensland Court of Appeal. The majority of justices refused the appeal, finding it was open for the jury to find beyond a reasonable doubt that Zaburoni intended to transmit the virus.
On 15 April 2014, the Court of Appeal outlined there were three reasons why the jury could “infer that the requisite intent existed from the first act of unprotected sexual intercourse to the last.”
Firstly, Zaburoni engaged in unprotected sex for his own pleasure, whilst being aware of the dangers of transmission. He failed to take prescribed antiretroviral medication, and also neglected to monitor his condition.
The court saw Zaburoni’s comment that he “didn’t want to ruin her life” as an acknowledgment that he understood the risk of transmission.
Recklessness versus intent
Mr Zaburoni then appealed to the High Court of Australia on the ground that the Court of Appeal had mistaken recklessness for intent.
The justices noted that there was ample evidence to show that Zaburoni was well aware of the risks of transmission. Their Honours pointed to the remark of Appeals Court Justice Gotterson that the frequency of unprotected sex defied the description of mere recklessness.
The High Court outlined that, “[r]ecklessness describes a state of mind in which a person adverts to the risk that particular conduct may result in particular harm and, with that awareness, engages in that conduct”. It explained that an awareness of a risk of harm does not mean a person intended the harm to come about.
Considering the evidence before the jury, the High Court found that what could be inferred was that Zaburoni engaged in regular unprotected sex to enhance his own sexual pleasure, and “he was reckless of the risk of transmitting the disease” to his ex-partner.
While the Appeals Court reasoned that Zaburoni’s lies about his HIV status was evidence that he was trying to prevent his ex-partner from protecting herself against the risk of transmission, the High Court found he had lied to obtain her agreement to unprotected sex to enhance his own sexual pleasure.
The High Court ruling
“The evidence was not capable of establishing to the criminal standard that the appellant intended to transmit HIV to the complainant,” the High Court justices ruled and quashed the conviction accordingly.
On 6 April last year, the High Court substituted the original verdict with a verdict of guilty to unlawfully causing grievous bodily harm in contravention of section 320 of the Criminal Code. This offence carries a maximum penalty of 14 years imprisonment. It does not require proof of intent.
The High Court remitted the proceedings to the Queensland District Court, where Zaburoni was re-sentenced to 5 years imprisonment.
