by Des Houghton, The Courier-Mail
I READ judges’ decisions for the prettiness and scholarly use of the English language as much as I do for legal enlightenment.
Occasionally I shake my head in bewilderment.
Cowardly sex cheat and liar Godfrey Zaburoni, who was found guilty of deliberately infecting his girlfriend with HIV and sentenced to nine years and six months, provides a case in point.
He didn’t like wearing condoms because it reduced his pleasure. He even swapped clean blood for his own tainted blood to fake a blood test to trick immigration authorities.
In 2010 he admitted he had unprotected sex with at least a dozen Australian women knowing he had HIV AIDS.
However, thanks to the High Court overturning the decision of the Queensland Court of Appeal, the Gold Coast acrobat is now free to lead a new life with yet another girlfriend.
I believe Zaburoni should be in jail out of harm’s way or booted out of the country.
He has even had the gall recently to apply for Australian citizenship.
I’m guessing this is probably a legal tactic to stall his deportation to his native Zimbabwe where he contracted the disease.
Zaburoni, 38, should already have had his visa cancelled for failing the good character test outlined in Section 501 of the Immigration Act.
There are plenty of acrobats in this judicial circus including the people who draft the laws with loopholes for men like Zaburoni to jump through.
And the clowns in the circus are you and I whose taxes were squandered defending the grub.
Zaburoni was represented up hill and down dale by the HIV AIDS Legal Centre, a legal aid group in NSW receiving state and federal largesse.
What irks me is that Zaburoni knew he was HIV positive after blood tests in Perth in 1998 and lied and lied and lied about it. Goodness knows how many partners he exposed to grave danger or potential death.
He was warned on three occasions that HIV was a sexually transmittable disease.
“He was referred to the Sexual Health Service (in Perth) for screening for other sexually transmitted infections and for a detailed sexual history to be taken so that his sexual partners could be offered HIV testing,” the court heard.
“He was prescribed antiretroviral medication and a date was arranged for further review. (Zaburoni) did not attend the review and had no further contact with the immunology clinic. He did not undertake the antiretroviral therapy.”
The court heard he began a new sexual relationship on the Gold Coast with another woman on December 31, 2006. Three years later she was seriously ill and went to police.
“Before commencing the relationship, the complainant asked the appellant whether he had been tested for HIV. (Zaburoni) told her that he had been tested and that he was not HIV positive,” court documents show.
“For about six weeks following the commencement of their sexual relationship, the appellant used condoms during sexual intercourse. After this initial period, they had unprotected sexual intercourse on occasionswhen they were ‘caught up in the moment’. It became more common to engage in unprotected sexual intercourse as the relationship continued.
“Unprotected sexual intercourse took place at a frequency of two or three times per week. The appellant told the complainant that he preferred to not use a condom because intercourse was more pleasurable for him without one. Usually (Zaburoni) ejaculated inside the complainant.”
When she became ill in 2007 the woman was misdiagnosed with glandular fever.
“The complainant suffered further bouts of ill health, including vomiting and diarrhoea.”
Zaburoni repeatedly told her he was not HIV positive. They split in 2008 and less than a year later the woman was diagnosed with HIV.
In a phone call recorded by police, Zaburoni lied and told the woman he was unaware he was HIV positive until six months after they broke up.
Later he admitted to police he frequently engaged in unprotected sex.
He told investigators he was given little information about HIV when diagnosed in 1998 and claimed he had not been told of the need to inform sexual partners of his HIV status. It was a big fat lie.
In 2005 he even faked a blood test so he could go on pretending he was free of HIV.
“Subsequently, (Zaburoni) admitted that for the test, which had been required by the Department of Immigration, he had submitted a blood sample taken from his friend,” the court heard.
In 2013 in the Brisbane District Court, Zaburoni was charged and convicted of grievous bodily harm by intentionally transmitting a serious bodily disease. It’s a serious criminal charge carrying a life sentence.
The prosecution argued the proof of Zaburoni’s “intention” was an inference that could reasonably be drawn from a combination of the facts and circumstances. The jury agreed.
Zaburoni appealed saying the guilty verdict was unreasonable or contrary to the evidence.
The Appeal Court majority found the jury had a right to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV.
In the decision Justice Robert Gotterson said Zaburoni’s criminal behaviour went far beyond recklessness.
Gotterson believed the jury came to the right conclusion.
They usually do.
Said Gotterson: “It was open to the jury to reason from (the appellant’s knowledge that his condition was transmissible by unprotected sexual intercourse and the frequency of unprotected sexual intercourse) and their own knowledge and experience of human behaviour that whereas one or several acts of unprotected sexual intercourse might be viewed as reckless as to whether infection would be transmitted or not, such acts repeated frequently with the same partner over many months, defied description as mere recklessness as to the risk of transmission.”
Justice Peter Applegarth, who was also sitting on the Appeal Court, disagreed with Gotterson.
Applegarth said lies told by Zaburoni after the complainant’s HIV positive diagnosis were not necessarily indicative of a consciousness of guilt of the offence.
That’s not an opinion I share.
Applegarth went further, saying the lies might be explained by a desire to escape prosecution for a lesser offence of grievous bodily harm where intent is not an element.
Unfortunately High Court judges Susan Kiefel, Virginia Bell, Stephen Gageler, Geoffrey Nettle and Patrick Keane agreed with him.
The judges wrestled with the meaning of “intent”.
They noted Applegarth’s comment that not every person who embarks on a course of conduct that regularly exposes another to a risk of injury can be said to have intended an injurious result.
They added: “In Applegarth’s analysis, the appellant’s callous, reckless conduct was not to be equated with a subjective, actual intent to transmit HIV to the complainant.”
They even looked up the meaning of the word “intent” in the dictionary.
In my view the jury got it right the first time. The courts turned the acrobat into an escapologist.
Zaburoni was the winner when the High Court set aside the more serious GBH charge and sent the matter back to the District Court for resentencing on a lesser GBH charge.
Appearing again before Judge Julie Dick, Zaburoni got five years. But the sentence was wholly suspended because Zaburoni had already served three years and 60 days in jail while the courts dithered.
In an emergency public appeal in 2010, Queensland’s chief health officer Jeannette Young urged women who had had unprotected sex with Zaburoni to come forward.
“We’re aware this gentleman has HIV and we understand he’s had unprotected sex with quite a number of women across the country, so I’m here today to ask any women who have had unprotected sex with this man to come forward and be tested,” she said.
Young said Zaburoni had given Queensland Health the names of 12 women with whom he had had unprotected sex. Seven of those were from Queensland, she said.
Zaburoni’s solicitor Alexandra Stratigos, from the HIV AIDS Legal Centre, welcomed his release.
She said the “impartial” District Court jury (her inverted commas, not mine) and the judiciary in Queensland 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.
Stratigos said the High Court judgment was a “significant advance”.
She said Zaburoni was now working with HIV organisations helping other victims.
