Retrovirus: Retroactive change to HIV law changes little-A case study of Aubrey v The Queen

The law in Australia, as in other common law countries, comes from two sources: legislation enacted by parliament and the common law of decisions made by superior courts.

What happens when laws passed by a parliament and a case decision are in conflict is that the statute prevails, an important democratic supremacy of parliament. But the common law keeps moulding and shaping the interpretation of the words of the legislative provision. The High Court case of Aubrey v The Queen is exemplative of how these two sources of law continue to work concurrently over long tracks of time.


Knowingly transmitting HIV to someone without their knowledge or consent is a criminal offence.

Section 35 of the Crimes Act 1900 states the act of causing reckless grievous bodily harm to another person is guilty of an offence with 14 years maximum penalty [1]. The legislation had been keeping up with Australia’s contemporary social, healthcare, and clinical contexts since 2007 in its amendments to include “grievous bodily disease” within the definition of “grievous bodily harm” [2].

However, before this legislative amendment, this area of criminal law was left to the common law. In the context of this offence, the current common law was based on an ancient 1888 precedent, R v Clarence [3]. This case stood as authority, holding that infliction of grievous bodily harm does not include “delayed operation” of how infection is communicated and requires an “immediate and obvious result”.

The common law and legislation were in conflict here. Legislation includes grievous bodily disease, but the common law refused to recognise it. Now, you may be thinking, “Doesn’t legislation call the shots over common law?” The answer is yes… usually, but the common law still lurks in the shadows of the legislation, applying where the statute does not apply. One such application is to events occurring before the legislative amendments came into force.

A big difference between legislation and common law is that legislation is not retrospective whereas common law is. Grievous bodily disease was included in the definition of grievous bodily harm only from 2007 onwards. Therefore, for events occurring before 2007, this legislative amendment has no effect, and the common law takes effect. The common law is the law as it was since the inception of time and for forever in the future.

In the case of Aubrey v The Queen, the events in question took place nearly twenty years ago, in 2004.

Michael Aubrey (“the appellant”) and the complainant had previously engaged in unprotected sexual intercourse, where he knowingly did not disclose his HIV positive diagnosis with the complainant. As a result, the complainant contracted HIV.

The appellant was charged with two offences under the Crimes Act 1900 (NSW). He sought an order to overturn the charge regarding the offence under s 35(1)(b) of maliciously inflicting grievous bodily harm. The appellant argued that the transmission did not constitute an “infliction” under the common law as it was in 2004. The proceedings were to be stayed due to “uncertainty”.

How was Aubrey v The Queen Decided?

Departing from R v Clarence, the majority in Aubrey v The Queen had expressed key reasons for their decisions in doing so. Clarence in fact, ran in opposition to another case from the same court, which stated the infliction of harm does not require a direct application of force. That case relied upon the presumption of marital sexual consent and an obsolete understanding of infectious diseases. There was no standardized language employed in Clarence, with terms ‘inflicting’, ‘causing’ and ‘occasioning’ used synonymously. 

In her Honour’s dissent, Bell J, in Aubrey v The Queen, asserted that departing from a decision that has settled the “construction of a provision” is a large step, and, if this settled construction is “ill-suited to the needs of modern society”, the solution would lie with the legislature to address the deficiency with statutory amendment.

Her Honour concluded that each common element analysis of the majority in Clarence had the immediacy relationship to the harm as a requirement. An analogy was made by her Honour, comparing infection to “animal poison”, that disease communication through sexual intercourse is similar to the administration of poison, both lacking the “necessary immediacy of connection” for it to amount to infliction of grievous bodily harm.

What is the Significance of the Decision?

In Aubrey v The Queen, the majority overturned the decision of R v Clarence and set a new standard for the common law. This has significant effects, because the court is effectively declaring that this is what the common law has always been but was merely wrongly enunciated, this re-interpretation having retroactive force. The Court pronounced a myth that the common law has always held grievous bodily disease as falling within grievous bodily harm. Grievous bodily harm means what the High Court chooses it to mean. It now includes grievous bodily disease.

The doctrine of precedent has been an important constraint on judicial decision-making. The general objective behind the doctrine is that proper respects must be paid to past judicial decisions; like cases should be determined in a like manner to establish consistent decisions. Therefore, the overturning of old authority with Aubrey v The Queen amounts to a modernising of the case law.

In a very real and practical sense, due to the legislative amendments in 2007 (which was before Aubrey), with the definition to “grievous bodily harm” extended to include “grievous bodily disease”, the decision relating to events before 2007 is, for any case occurring after this date, largely symbolic.

However, legislation, as easy as it can be enacted, can just as easily be repealed. And if the definition of grievous bodily harm was amended to remove grievous bodily disease, the common law would come back into effect.

Until then, current cases pertaining to this issue would apply the current legislation, and the impact of the new common law precedent upon interpretations of s 35 as it stands now is limited to events occurring before 2007.  

The law in 2023 – and beyond – was changed by parliament in 2007, while the law of 2004 was changed by the courts, in 2017. The law on this now looks forward, and backward in time, which is, that recklessly spreading HIV is grievous bodily harm irrespective of when the events causing transmission occurred.


[1] Crimes Act 1900 (NSW)

[2] David Carter, ‘Transmission of HIV and the Criminal Law: Examining the Impact of Pre-Exposure Prophylaxis and Treatment-as-Prevention’ (2020) 43(3) Melbourne University Law Review (advance)

[3] Aubrey v The Queen (2017) 260 CLR 305

[4] R v Clarence (1888) 22 QBD 23

[5] James Morgan, ‘Offences Against the Person and Sexually Transmitted Disease: Aubrey v The Queen (2017) 260 CLR 305’ (2018) 39(1) Adelaide Law Review 207

 *Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action*.

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