A Gold Coast acrobat who was sentenced to nine and a half years’ jail for intentionally infecting his girlfriend with HIV has had his conviction quashed in the High Court of Australia.
37-year-old Godfrey Zaburoni (pictured), originally from Zimbabwe, was jailed in 2013 but will now be re-sentenced in the Queensland District Court on the lesser charge of unlawfully doing grievous bodily harm, to which he pleaded guilty.
In overturning the conviction, the High Court ruled that other than the fact Zaburoni engaged in frequent unprotected sex, the jury in his 2013 trial could not infer from the evidence that he intended to give her HIV.
To prove intention, “the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct”, it said.
“(There was not enough proof to safely exclude the hypothesis) that the appellant engaged in that sexual intercourse with the complainant not with an intention to transmit the disease … but selfishly for his own gratification, being reckless as to whether or not the complainant might become infected,” Judge Stephen Gageler said.
HIV advocates have welcomed the decision, saying it would help them in their quest to improve the way such cases are prosecuted.
They claim the proceedings in the lower courts demonstrated that an “impartial” jury and the judiciary failed to understand that there are many reasons why people may not disclose their HIV status, including fear of abandonment, discrimination or violence; shame or embarrassment; and/or being in denial about their HIV status; and rather formed the view that denial and non-disclosure in the context of a one and a half year relationship amounted to intent to transmit HIV.
National Association of People with HIV Australia (NAPWHA) and Queensland Positive People (QPP) support HIV prevention strategies being driven by an evidence-based, best practice model of public health interventions.
“Police, lawyers and the judiciary need to recognise that the issues around transmission of HIV and intent are unique and a standard criminal law approach cannot be taken,” NAPWHA, the HIV/AIDS Legal Centre and Australian Federation of AIDS Organisations said in a joint statement.
“Advocates can also learn what information must be provided to defence lawyers regarding reasons for HIV non-disclosure, and what may be presented to a court to refute the assumption that non-disclosure in and of itself may equate to intentional transmission of HIV.”
QPP president Mark Counter said he feared criminal cases would deter people getting tested for HIV.
“What we’re really trying to do is to get those people to come forward and it doesn’t help when criminal cases like this scare people,” he told the ABC.
“The goal of the public health system and programs like ours is to try and get those people to come out and get tested.
“If you’re diagnosed with HIV, it’s one pill a day. That pill will give you a normal life span and it will make you technically uninfectious for HIV.”
Zaburoni, who was diagnosed with HIV in 1998 while working as an acrobat with a touring circus in Adelaide, is likely to be deported to Zimbabwe when his sentence ends.