Australia New South Wales

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

Australia New South Wales
Whether Specific law enacted: 
No
Number of people prosecuted: 
6 known (2 under public health laws)
Number of people convicted: 
4 known (1 under public health laws)
Applicable law: 

Public Health Act 1991

  • NB: Public Health Act 2010 (pending) will supercede the 1991 Act from 2012 or 2013.

The Crimes Act 1900

Key wording in the law: 

Crimes Act 1900 grievous bodily harm

Key Cases: 

R –v- Kanengele-Yondjo (2005)

Ryan James Montgomery (2008) Pleaded guilty 

New South Wales man who “spat blood” on arresting officer pleads guilty to assaulting and intimidating police North Albury man spits blood, threatens HIV February 8, 2013 

Michael Aubrey (charged 2010) pending

Discussion: 

Public Health Act 1991 (s.13)

A person who knows that he or she suffers from a sexually transmissible medical condition is guilty of an offence if he or she has sexual intercoursewith another person unless, before the intercourse takes place, the other person:

  1. has been informed of the risk of contracting a sexually transmissible medical condition from the person with whom intercourse is proposed, and
  2. has voluntarily agreed to accept the risk.

Maximum penalty: a $5000 fine.

Pending Public Health Act 2010 (not enacted at April 2012).

s79 Duties of persons in relation to sexually transmitted infections (cf 1991 Act, s 13)

(1) A person who knows that he or she suffers from a sexually transmitted infection is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:

  •         (a) has been informed of the risk of contracting a sexually transmitted infection from the person with whom intercourse is proposed, and
  • (b) has voluntarily agreed to accept the risk.

Maximum penalty: 50 penalty units.

3) It is a defence to any proceedings for an offence under this section if the court is satisfied that the defendant took reasonable precautions to prevent the transmission of the sexually transmitted infection.

Crimes Act 1900(s33): Intent to cause grievous bodily harm states that: A person who:

  1. wounds any person, or
  2. causes grievous bodily harm to any person,

with intent to cause grievous bodily harm to that or any other person is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

Crimes Act 1900(s35(2)): Reckless grievous bodily harm states that: A person who recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years.

Crimes Act 1900 (NSW) s3 Wounding or causing grievous bodily harm with intent (5) Intent to cause grievous bodily harm. A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years

Crimes Act 1990 (NSW) s35 Reckless grievous bodily harm or wounding (5) Reckless grievous bodily harm in company. A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: imprisonment for 14 years (2) Reckless grievous bodily harm. A person who recklessly causes grievous bodily harm to any person is guilty of an offence Maximum penalty: imprisonment for 10 years

Crimes Act 1900 (NSW) 2007: NSW amended the Crimes Act 1900 to remove s.36 (causing a grievous bodily disease) and amended s.35 to remove “malicious” as an element of that offence. The s.4 definition of GBH was amended to include causing a grievous bodily disease. In the NSW case of R –v- Kanengele-Yondjo (2005) Hislop J. set out the difference between an offence under the now- repealed s.36 (which required intent) and s.35 (which arises where someone has been reckless or indifferent)

Disclosure: NSW law requires that any person that is suffering from a sexually transmissible condition must disclose their status to any potential sexual partner.

The pending Public Health Act will include a defence if a person takes reasonable precautions to prevent the transmission of the sexually transmitted infection.