CLM v Accident Compensation Corporation HC Wellington CIV 2005-485-000893

[2006] NZHC 496

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ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2005-485-000893

UNDER  Section 162 Injury Prevention, Rehabilitation and Compensation Act 2001

BETWEEN  CLM Appellant

AND  ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         15 February 2006

Appearances: J Miller and P D N Fong for Appellant

A D Barnett for Respondent

Judgment:      12 May 2006

JUDGMENT OF RANDERSON J

This judgment was delivered by me on 12 May 2006

at 11.30 am, pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:  John Miller Law, Wellington, for appellant

Broadmore Barnett, Wellington, for respondent

CLM  V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2005-485-000893  12 May 2006

Introduction

[1]      The  question  for  determination  in  this  appeal  is  whether  s 8  Accident Rehabilitation & Compensation Insurance Act 1992 provides cover for mental or nervous shock suffered by the appellant upon discovering that her sexual partner was HIV positive.

Background

[2]      The appellant’s partner learned he was a carrier of HIV in 1993.   He had unprotected sexual intercourse with the appellant between September 1995 and April

1996 without disclosing his condition to her until June 1996.  The appellant did not contract the HIV virus but she has been diagnosed as suffering from post-traumatic stress disorder.  Whether there is a causal connection between the disclosure and the disorder diagnosed is an issue yet to be resolved.

[3]      Upon learning that her partner was HIV positive, the appellant parted from him.  The relationship resumed after a brief separation before finally coming to an end in April 1999.  In that year, the appellant’s partner was prosecuted on a charge of criminal  nuisance  under  s 145  Crimes  Act  1961.    He  pleaded  guilty  and  was convicted.

The Statutory Provisions

[4]      The only provision of the 1992 Act which could provide cover for the mental or nervous shock sustained by the appellant is s 8 which relevantly provides:

…

(3)       Cover under this Act shall also extend to personal injury that is mental or nervous shock suffered by a person as an outcome of any act of any other person performed on, with, or in relation to the first person (but not on, with, or in relation to any other person), being –

(a) An act that is within the description of any offence listed  in

Schedule 1 to this Act; and

(b) An act that was performed in New Zealand, or outside New Zealand where the person on, with, or in relation to whom the act was performed was ordinarily resident in New Zealand on the date on which the personal injury is deemed to have been suffered).

(4)       For the purposes of subsection (3) of this section, it is irrelevant that

–

(a)  No person can be or has been charged with or convicted of the offence; or

(b) The alleged offender is incapable of forming criminal intent.

[5]      Schedule 1 of the Act refers to a number of sexual crimes by reference to the relevant sections in the Crimes Act 1961.   The Schedule also includes an offence under s 201 Crimes Act 1961 (infecting with disease) and an offence under s 113

Mental Health Act 1969 (sexual intercourse with mentally disordered female). Significantly, the offence to which the appellant’s partner pleaded guilty under s 145

Crimes Act 1961 is not included in the Schedule.

[6]      The respondent declined cover on the basis that the sexual activity between the appellant and her partner was consensual and did not fall within the description of any of the offences listed in Schedule 1.

The Decision in the District Court

[7]      After the Corporation declined cover, the appellant appealed to the District Court but her appeal was dismissed by Judge Ongley on 7 April 2005.   Leave to appeal to this Court was granted by Judge Cadenhead on 29 April 2005.

[8]      In the District Court and again in this Court, Mr Miller raised two questions of law on the appellant’s behalf:

a)       Whether the 1992 Act  can be  interpreted to  provide  cover  for  all offences of a sexual nature even if not specifically mentioned in the First Schedule;

b)       Whether, if the offence must be one described in Schedule 1, the acts of the  appellant’s  partner  constituted  sexual  violation  under  s 128

Crimes Act 1961 or indecent assault under s 135 Crimes Act 1961, both of which are offences specified in Schedule 1.

[9]      In a careful and succinct decision, Judge Ongley noted that while the acts of intercourse occurred with the appellant’s consent, her case was that she could not have given a valid consent because she was unaware of her partner’s HIV positive status.  Had she been aware, she would not have consented.  The Judge noted that, in terms of s 128A Crimes Act 1961 as it then stood, a person does not consent to sexual connection if mistaken as to the nature and quality of the act.  And, in terms of s 135 Crimes Act 1961 consent to an indecent assault  is not a defence if the consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

[10]     Judge   Ongley   observed   that,   for   the   last   century,   in   common   law jurisdictions, the nature and quality of the act  has been consistently held  not to include the consequences that may follow from intercourse such as pregnancy or infection with disease.   And he found that indecency is generally to be found in unwanted  or  inappropriate  intimate  touching,  not  in  consensual  touching  which carries an element of risk.

[11]     The Judge found that the decision of the Supreme Court of Canada in R v Cuerrier [1998] 2 SCR 371 (in which the majority held that failure to disclose HIV positive status amounted to fraud sufficient to vitiate consent to aggravated sexual assault under s 265 and 268 Criminal Code, R.S.C. 1985), was distinguishable since the decision was influenced by a statutory change which referred to fraud without qualification (whereas the Code had formerly referred to fraud relating to the nature and quality of the act).

[12]     After reviewing other cases in the United Kingdom and in New Zealand, he concluded that the failure by the appellant’s partner to disclose his HIV positive status was not sufficient to vitiate consent to sexual intercourse or to amount to a fraudulent  misrepresentation as to the nature or quality of the act.     The  Judge

considered that  the  criminal law  in New  Zealand  had  not  moved  to  a different position  in  relation  to  HIV  infection  as  distinct  from  other  risks  of  sexual intercourse.

[13]     Finally, Judge Ongley did not consider that the statutory language in the 1992

Act permitted the Court to enlarge the description of crimes listed in Schedule 1 to include any crimes of a sexual nature as counsel had submitted.

First question of law on appeal:

Does s 8 of the Accident Rehabilitation & Compensation Insurance Act 1992 provide cover for mental or nervous shock suffered by the appellant upon discovering that her sexual partner was HIV positive?

[14]     To answer this question, it is necessary to canvass briefly the statutory history of the accident compensation legislation with regard to cover for nervous shock. The accident compensation legislation provides cover for personal injury which, in general, is limited to the physical and mental consequences of an injury or accident. Initially, under the Accident Compensation Act 1972, cover for mental or nervous shock  unrelated  to  the  consequences  of  a  physical  injury  or  accident  was  not available.  It was not until 1975 that an amendment was introduced to provide cover for “actual bodily harm” arising from specified crimes.    “Actual bodily harm” was defined as including pregnancy and  mental or nervous shock:   s 105B Accident Compensation Act 1972 as introduced by s 6 Accident Compensation Amendment Act 1974.  The crimes specified were those under s 128, 132 and 201 Crimes Act

1961.

[15]     The Accident Compensation Act 1982 incorporated “actual bodily harm” into the definition of “personal injury by accident” in s 2:

Actual bodily harm (including  pregnancy  and  mental  or  nervous  shock) arising by any act or  omission of any  other  person which  is  within the description of any of the offences specified in sections 128, 132, and 201 of the Crimes Act 1961, irrespective of whether or not any person is charged with the offence and notwithstanding that the offender was legally incapable of forming a criminal intent.

[16]     As already noted, by s 8(3) of the 1992 Act, the technique of referring to specified offences listed in a schedule was introduced. The same technique was used in the Accident Insurance Act 1998 to provide cover for mental injury caused by certain criminal acts:  s 40 and Schedule 3.  Three further offences were added to the Schedule in the 1998 Act namely s 194 (assault on a child), s 204A (female genital mutilation) and s 204B (further offences relating to female genital mutilation). The method of specifying particular offences in a schedule has also been adopted in the Injury Prevention, Rehabilitation and Compensation Act 2001:  s 21(2) and Schedule

3.  In that Schedule, the same offences described in the Schedule of the 1998 Act are included  but  have  been  upgraded  to  reflect  amendments  made  to  the  relevant sections and descriptions of the offences in the Crimes Act.

[17]     The accident compensation legislation has not referred at any time to s 145 of the Crimes Act which provides:

Criminal nuisance

(1)      Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.

(2)      Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding one year.

[18]     Mr   Miller   submitted   that   the   Court   should   adopt   a   “generous   and unniggardly” approach to the interpretation of s 8(3) of the 1992 Act referring to comments to that effect in Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA). He submitted that the common element in the description of the offences listed in Schedule 1 was that the offences were of a sexual nature and that s 145 should be treated as such an offence. It followed in his submission that an act amounting to a crime under s 145 Crimes Act 1961 was, for the purposes of s 8(3) of the 1992 Act, an act which was “within the description” of any offence listed in Schedule 1. Mr Miller also pointed to what he described as the capricious effect of the schedule including some but not all of the sexual crimes contained in the Crimes Act. He also drew attention to the fact that amendments to the Crimes Act were not always followed by amendments to the schedule either in a timely way or at all.

[19]     I have no difficulty in rejecting Mr Miller’s submissions on this point.  It is apparent from an analysis of the legislation including its history, that Parliament has deliberately extended cover to include mental or nervous shock in a limited way and by reference to specified offences listed first  in s 105B of the 1972 Act, in the interpretation section of the 1982 Act, and then in a Schedule to the 1992 Act and the statutory successors to that Act.  If Parliament had intended to include “all offences of a sexual nature” then it was open for Parliament to have done so.  It has chosen not to despite amendments from time to time in successive legislation.

[20]     More importantly, s 8(3) itself refers to an act that is within the description “of any offence listed in Schedule 1 to this Act”.  This makes Parliament’s intention absolutely plain.  The offence must be one listed in the Schedule or it is not covered. There  is  simply  no  alternative  interpretation  which  could  be  available  by  the generous interpretation encouraged by the Court of Appeal in Harrild.  The fact that the legislation may not have been amended in a timely way to reflect changes to the Crimes Act may not be called in aid to contradict the clear words of the statute.

[21]     I also note that s 145 Crimes Act is not confined to crimes of a sexual nature. It deals with criminal nuisance generally and involves any unlawful act or omission to discharge any legal duty where the accused knows that the act or omission would endanger the lives, safety, or health of the public, or the life, safety or health or any individual.    While  in the present  case,  the  failure  by  the  appellant’s  partner  to disclose his HIV positive status was in a sexual context, that could not be a sufficient basis to treat his breach of s 145 as “a crime of a sexual nature” as submitted by Mr Miller.      I  also  accept  the  submissions  made  by Mr  Barnett  on  behalf  of  the respondent  that neither the Victims of Offences Act  2002 nor the  repeal of the Criminal Injuries Compensation Act 1963 aid the interpretation of s 8(3).

Second question of law on appeal:

Do  the  acts  in  question constitute  sexual  violation  under  s  128  Crimes  Act  or indecent assault under s 135?

[22]     Before dealing with Mr Miller’s principal submission under this heading, it is convenient first to dispose of his preliminary submission that s 8(3) does not require proof of all the elements necessary to constitute the crimes described in Schedule 1. He submitted that s 8(3) focuses on a particular act “performed on, with or in relation to” another person.   Provided that act is “within the description” of any of the listed offences, then that is sufficient in counsel’s submission.   On that basis, Mr Miller submitted that, for sexual violation under s 128 Crimes Act, it was only necessary to prove for the purposes of establishing cover under s 8(3) that an act of intercourse took place.   Similarly for  indecent  assault  under  s 135  Crimes Act.     Issues of consent or belief in consent were said not to be relevant when considering whether cover was available under s 8(3).  Mr Miller pointed to the fact that s 8(4) declared that it is irrelevant whether any person can be or has been charged with or convicted of the offence and that it is also irrelevant that the alleged offender is incapable of forming criminal intent.

[23]     I am satisfied that the words “within the description of any offence listed in Schedule 1” can only be  interpreted as meaning offences where the substantive elements of the subject offence can be satisfied.  The section cannot mean that not all the elements of the offence need be established since, without those elements, there would be no offence.  In the case of sexual violation by rape, the essential element is sexual intercourse in the absence of consent or any reasonable belief by the accused in consent.   To argue that consent need not be established for the purposes of cover under s 8(3) would leave nothing to be established other than the physical act of sexual intercourse.  That alone could not constitute criminal conduct.

[24]     Similarly, in relation to indecent assault.   It is of the essence of an offence under s 135 that an assault occurs in circumstances of indecency.   To constitute assault, there must be the intentional application of force (however slight) without the consent of the victim and without any reasonable belief by the alleged offender that the victim was consenting.

[25]     The provisions of s 8(4) do not assist the appellant.  Subsection 4(a) provides that cover may still be available even though no person can be or has been charged with or  convicted of the offence.    This  is  intended to  cover  a  case  where,  for

example, the offender has not been identified or cannot be located or, for some other reason is not charged with the offence.   It also  covers a case where an alleged offender is charged with an offence but is acquitted.  This provision recognises that a case may not be capable of proof to the criminal standard but may nevertheless be proved on the basis of the civil standard (balance of probabilities) for the purposes of cover under the 1992 Act.

[26]     Subsection 4(b) specifically provides that cover may still be available even though the alleged offender is incapable of forming criminal intent.  So, if an act has occurred which is within the description of any of the offences listed in Schedule 1, cover is still available even though the offender may have been so affected by drugs or alcohol that he or she was incapable of forming the necessary criminal intent. Subject to these specific statutory exceptions, the legislation requires proof of the essential elements of the offences listed in Schedule 1.

[27]     That brings me to the substantive question in this case.  Mr Miller accepted that the law in New Zealand and in the United Kingdom had not reached the point where the Courts had accepted that failure to disclose the fact of an HIV positive status could vitiate consent for the purposes of sexual violation by rape or indecent assault.    However,  he  submitted,  primarily on  the  basis  of  the  decision  of  the Supreme Court of Canada in Cuerrier and the decision of the English Court of Appeal in R v Dica [2004] EWCA Crim 1103, that the Courts in New Zealand should now accept that failure to disclose HIV positive status is sufficient to vitiate the consent of a person in the position of the appellant who was unaware of her partner’s condition. Even if the Courts were not prepared to do so for criminal purposes, Mr Miller submitted they should do so for the purposes of accident compensation cover. In order to explore this submission, it is necessary to review authorities in England, Canada, Australia and New Zealand.

English authorities

[28]     Mr  Miller  accepted  that  the  English  authorities  focused  on  s 20  of  the

Offences Against the Person Act 1861, which provides:

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument, shall be guilty of a misdemeanour and being convicted thereof shall be liable … to imprisonment … for not more than five years.

[29]     For many years, English law proceeded on the basis of a decision of the Court of Crown Cases Reserved in R v Clarence (1889) 22 QB 23, in which the accused Mr Clarence infected his wife with gonorrhoea following consensual intercourse at a time when he knew, but she did not, that he was suffering from the disease. His conviction for an offence under s 20 of the 1861 Act and an offence of assault occasioning actual bodily harm, was set aside by a majority of 9 to 4.

[30]     As observed by Judge LJ speaking  for the Court of Appeal more than a century later in Dica at para [19], Clarence achieved notoriety as support for the proposition that a married woman is deemed to consent to sexual intercourse with her husband, a notion finally said to have been identified as a fiction in R v R [1992]

1 AC 599. This proposition permeated much of the reasoning of the majority and was described by Judge LJ as fundamental to the outcome. It was also of significance to the outcome that the majority considered the “inflicting” of grievous bodily harm required some form of assault. This too, Judge LJ said, was finally laid to rest in R v Wilson [1984] AC 242, in which it was held that there can be an infliction of grievous bodily harm contrary to s 20 without an assault being committed. In Dica, Judge LJ described this at para [26] as:

A major erosion of the authority of Clarence in relation to the ambit of s 20 in the context of sexually transmitted disease.

[31]     Lord  Justice Judge considered that  the  process  of erosion  had  continued thereafter  and  concluded  at  [31]  that  the  reasoning  which  led  the  majority  in Clarence to decide that the conviction under s 20 should be quashed, had no continuing application.  Clarence knew, but his wife did not, that he was suffering from gonorrhoea and nevertheless had sexual intercourse with her.  Although he did not intend to infect her, he was reckless as to whether she might become infected and thus suffer grievous bodily harm.

[32]     In Dica, the appellant had been charged with two offences, namely, failure to disclose HIV positive status to two complainants with whom he had unprotected sexual intercourse contrary to s 20 of the Offences Against the Person Act 1861.

[33]     Lord  Justice  Judge  considered  whether  fraudulent  concealment  of  the appellant’s condition could vitiate consent.   He referred at [35] to a statement by Stephen J in Clarence at [44] that:

… the only sorts of fraud which so far destroy the effect of a woman’s consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act.  There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault.  I should myself prefer to say that consent in such cases does not exist at all, because the act consented is not the act done.

[34]     Lord Justice Judge also noted that English legislation had, since 1885, made it unlawful to procure sexual intercourse by deception.   He concluded at [39] that because the victims in the case before the Court consented to sexual intercourse, they could not be guilty of rape.  But given the long term nature of the relationships, if the appellant concealed the truth about his condition from them, there was no reason for them to think they were running any risk of infection and were not consenting to the risk of infection.  On that basis there was no consent sufficient in law to provide the appellant with a defence to a charge under s 20 of the 1861 Act.

[35]     In summarising the case at [58] and [59], Judge LJ noted that the judgment of the Court was confined to charges under s 20 involving the reckless transmission of a serious sexual disease through consensual sexual intercourse with the resulting infliction of grievous bodily harm on a person from whom the risk was concealed and who was not consenting to it.

[36]     The approach enunciated in Dica was applied in R v Konzani [2005] EWCA Crim 706, another case involving three counts of inflicting grievous bodily harm on three different women contrary to s 20 of the Offences Against the Person Act 1861. Again, the allegation was that the appellant had failed to inform his sexual partners that he was HIV positive but nevertheless continued to have unprotected sexual intercourse with them. In consequence, they each contracted the HIV virus. The

allegation was that the appellant had behaved recklessly, knowing he was suffering from the HIV virus and its consequences.  Knowing the risks of its transmission to a sexual partner,  he concealed  his condition  from the  complainants,  leaving  them ignorant of it.

[37]     Lord Justice Judge again delivered the judgment of the Court.  He concluded at [41] that while the complainant’s had consented to sexual intercourse, they did not consent to the transmission of the HIV virus.  The Judge drew attention to what he described as:

The critical  distinction  between  taking  a  risk  of  the various,  potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease.

[38]     He added:

It is at least implicit from the reasoning in R v Dica, and the observations of Lord Woolf CJ in R v Barnes [2004] EWCA Crim. 3246, that her consent must be an informed consent.

[39]     Judge LJ continued:

[42]     The recognition in R v Dica of informed consent as a defence was based on but limited by potentially conflicting public policy considerations. In the public interest, so far as possible, the spread of catastrophic illness must be avoided or prevented.   On the other hand, the public interest also requires that the principle of personal autonomy in the context of adult non- violent sexual relationships should be maintained.    If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse.   On any view, the concealment of this fact from her almost inevitably means that she is deceived.   Her consent is not properly informed, and she cannot give an informed consent to something of which she is  ignorant.    Equally,  her  personal autonomy is  not  normally protected by allowing a defendant who knows that he is suffering from the HIV virus which he deliberately conceals, to assert an honest belief in his partner’s informed consent to the risk of the transmission of the HIV virus. Silence  in  these  circumstances  is  incongruous  with  honesty,  or  with  a genuine belief that  there is  an  informed  consent.    Accordingly,  in  such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.

[43]     This  is  not  unduly  burdensome.    The  defendant  is  not  to  be convicted of this offence unless it is proved that he was reckless.  If so, the necessary mens rea will be established.  Recklessness is a question of fact, to

be proved by the prosecution.  Equally the defendant is not to be convicted if there was, or may have been an informed consent by his sexual partner to the risk that he would transfer the HIV virus to her.   In many cases, as in Dica itself, provided recklessness is established, the critical factual area of dispute  will  address  what,  if  anything,  was  said  between  the  two individuals involved, one of whom knows, and the other of whom does not know, that one of them is suffering the HIV virus.  In the final analysis, the question of consent, like the issue of recklessness is fact-specific.

[40]     So, at least in the context of offending under s 20 of the Offences Against the Person Act  1861, the Court of Appeal in England has recognised that there will be no defence to a charge under s 20 of the 1861 Act to the infliction of grievous bodily harm where a defendant suffering from the HIV virus deliberately conceals that condition.   Silence in those circumstances was found to be inconsistent with honesty or with a genuine belief that there is informed consent and as Judge LJ pointed out, in many cases, provided recklessness is established, the critical factual dispute will involve a consideration of what, if anything, was said between the two individuals involved, one of whom knows about the HIV status of one of the participants but the other does not.

[41]     It  is  important  to recognise however  that  none  of the  English  cases  has decided that the failure of a sexual partner to disclose HIV status vitiates consent for the purposes of rape and indecent assault.  The English cases have not had to decide this question but, as noted in [34] above, Judge L J expressed the view (obiter) that the failure to disclose would not constitute a defence to rape.

Canadian authority

[42]     The case which is of most assistance to the appellant’s argument is that of the Supreme  Court  of  Canada  in  R  v  Cuerrier.    There,  the  Supreme  Court  was considering offending under ss 265 and 268 of the Criminal Code,  R.S.C. 1985 which relevantly provides:

265.(1) A person commits an assault when

(a) without   the  consent   of   another   person,   he   applies   force intentionally to that other person, directly or indirectly;

….

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application or force to the complainant or to a person other than the complainant;

(c)  fraud; or

(d) the exercise of authority.

268.(1) Every  one  commits  an  aggravated  assault  who  wounds,  maims, disfigures or endangers the life of the complainant.

(2)   Every  one  who  commits  an  aggravated  assault  is  guilty  of  an indictable offence and is liable to imprisonment for a term not exceeding fourteen years.

[43]     The respondent was charged with two counts of aggravated assault based on his having endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse.     The argument before the Supreme Court centred on whether the sexual activity had taken place without the consent of the plaintiffs.    The Crown contended that while the complainants had consented to unprotected sexual intercourse with the respondent, that consent was not legally effective because it was obtained by fraud.   The complainants testified that if they had been informed that the respondent was HIV positive, they would never have agreed to unprotected sexual intercourse with him.

[44]     The majority of the Court, in a judgment delivered by Cory J, held that for an accused to conceal, or fail to disclose, that he is HIV positive, can constitute fraud which may vitiate consent to sexual intercourse for the purposes of ss 265 and  268 of the Canadian Criminal Code.

[45]     Cory J observed at [97] that, until 1983, the indecent assault provisions in the Code  provided  that  consent  was  vitiated  when  it  was  obtained  “by  false  and fraudulent representations as to the nature and quality of the act”.  That requirement reflected the approach to consent in sexual assault cases which Cory J considered

had existed at common law since Clarence.   But the amendment to the Criminal Code in 1983 which removed reference to misrepresentations as to the nature and quality of the act and substituted an unqualified reference to “fraud” was of significance in the view of the majority.

[46]     Cory  J  then  proceeded  to  examine  the  concept  of  criminal  fraud  and concluded at para [116] that the essential elements of fraud were dishonesty, which could include non-disclosure of important facts, coupled with deprivation or risk of deprivation (in the sense of detriment or prejudice to the economic interests of the victim).  In the case of sexual assault, the majority considered at [118] that it could be accepted that fraud relating to the nature and the quality of the act or the identity of  the  partner  would  still  constitute  fraud  which  could  vitiate  consent  but  the majority considered that other acts of dishonesty could also constitute fraud in this context.

[47]     It was pointed out at [119] that, as early as 1917, courts in the United States had accepted that a woman’s consent to sexual intercourse is vitiated by the man’s fraudulent  concealment  of the  risk  of  infection  from  venereal disease:    State  v Lankford, 102 A.63 (US. Del, 1917).  That had also been the position in England prior to Clarence:  R v Bennett (1866), 4 F&F. 1105, 176 ER 925 and R v Sinclair (1867), 13 Cox C.C. 28.

[48]     Cory J concluded at [123] that:

The deadly consequences that non-disclosure of the risk of HIV infection can   have on an unknown victim, make it imperative that as a policy the broader view of fraud vitiating consent advocated in the pre-Clarence cases and in the US decisions should be adopted.

[49]     The  dishonest  act  constituting  fraud  in  this  context  consisted  of  either deliberate deceit about HIV status or non-disclosure of that status ([126]).  Given the deadly consequences of infection with HIV, there could be   “no basis for distinguishing between lies and a deliberate failure to disclose.”  And at [127]:

Without  disclosure  of  HIV status  there cannot  be  a  true  consent.    The consent cannot simply be to have sexual intercourse.   Rather it  must be consent  to  have  intercourse  with  a  partner  who  is  HIV-positive.    True consent cannot be given  if there has  not  been a  disclosure of  his  HIV-

positive status.   A consent that is not based upon the knowledge of the significant relevant factors is not a valid consent.  The extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. The failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences.  In those circumstances, there exists a positive duty to disclose.  The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular facts presented.

[50]     The majority in Cuerrier recognised that fraud for the purposes of vitiating consent  to  sexual intercourse need not  involve  a  deliberate  false  representation. Rather, they found there to be a positive duty on the part of the alleged offender to disclose the HIV status.  Failure to do so would constitute fraud for the purposes of the Canadian Criminal Code.

[51]     Recognising  that  there  must  be  some  limit  on  the  duty  to  disclose,  the majority held that the Crown would have to establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to “a significant risk of serious bodily harm”.  Absent those criteria, the duty to disclose would not arise.   The judgment of the majority was also supported by Madame Justice L’Heureux-Dubé who would have adopted an even more expansive definition of fraud.

[52]     But of interest in the present context is the judgment of McLachlin J (in which Gonthier J concurred).  McLachlin J did not consider that Parliament intended by the 1983 amendment to radically broaden the crime of assault.  Any such radical extension should be left to Parliament in her view.

[53]     McLachlin J did not consider that the commercial fraud theory of consent offered a principled rationale for allowing some risks to vitiate consent to sex but excluding others.  As she observed at paragraph [47]:

… For example, pregnancy may be regarded as a deprivation in some circumstances, as may be the obligation to support a child.  It follows that lying about sterility or the effectiveness of birth control may constitute fraud vitiating consent.   To take another example, lies about the prospect of marriage or false declarations of affection inducing consent, carry the risk of psychological suffering, depression and other consequences readily characterized as deprivation.   The proposed rule thus has the potential to criminalize a vast array of sexual conduct.  Deceptions, small and sometimes large,  have from time  immemorial been the by-product  of  romance and sexual encounters.  They often carry the risk of harm to the deceived party.

Thus far in the history of civilization, these deceptions, however sad, have been left to the domain of song, verse and social censure.

[54]     McLachlin  J  continued  at  [48]  to  express  the  view  that  there  was  no principled basis for adopting the ad hoc qualifier that there must be “significant risk of serious bodily harm” before consent is vitiated.  And, she said, the introduction of this theory would give rise to undesirable uncertainty.

[55]     She was however prepared to accept an incremental change to the common law, effectively returning to the position of the common law prior to Clarence. As she put it at [70]:

… As I have explained, pre-Clarence, the law permitted fraud to vitiate consent to contact where there was (a)  a deception as to the sexual character of the act;    (b)   deception as to the identity  of the perpetrator;   or  (c) deception as to the presence of a sexually transmitted disease giving rise to serious risk or probability of infecting the complainant (Sinclair, supra). This rule is clear and contained.   It would catch the conduct here at issue, without permitting people to be convicted of assault for inducements like false promises of marriage or fur coats.   The test for deception would be objective, focussing on whether the accused falsely represented to the complainant that he or she was disease-free when he knew or ought to have known that there was a high risk of infecting his  partner.   The test  for inducement would be subjective, in the sense that the judge or jury must be satisfied beyond a reasonable doubt that the fraud actually induced the consent.

[56]     Mclachlin J continued at [72]:

… Consent to unprotected sexual intercourse is consent to sexual congress with a certain person and to the transmission of bodily fluids  from that person.    Where the person represents  that  he or  she is  disease-free and consent is given on that basis, deception on that matter goes to the very act of  assault.    The  complainant  does  not  consent  to  the  transmission  of diseased fluid into his or her body.  This deception in a very real sense goes to the nature of the sexual act, changing it from an act that has certain natural consequences (whether pleasure, pain or pregnancy), to a potential sentence of  disease or  death.    It  differs  fundamentally  from  deception  as  to  the consideration that will be given for consent, like marriage, money or a fur coat, in that it relates to the physical act itself.   It differs, moreover, in a profoundly serious way that merits the criminal sanction.

[57]     It is immediately apparent that the outcome in Cuerrier was, at least in the view of the majority, heavily influenced by the legislative changes effected in 1983 to the Canadian Criminal Code.  And, there is another critical difference between the

Canadian Criminal Code and our Crimes Act.   In Canada, both sexual and non- sexual assaults are covered by the same statutory provisions.    In New Zealand, sexual violation (in its various forms) is carefully differentiated from non-sexual assaults.  The case is nevertheless instructive for its analysis of the effects of non- disclosure on the issue of consent to sexual intercourse.

Australian authority

[58]     The case of R v Papadimitropoulos (1957) 98 CLR 249 is widely referred to in Australia. In this case a woman alleged rape after sleeping with a man whom she believed to be her husband (although he knew that their “marriage ceremony” was a sham). The complainant stated that this was a significant factor for her and that she would not have slept with the accused otherwise. The Court held at 261 that the defendant could not be guilty and his fraud did not vitiate the complainant’s consent:

…the key to such a case as the present lies in remembering that it is the penetration of the woman’s body without her consent to such penetration that makes the felony.   The capital felony was not directed to fraudulent conduct inducing her consent.  Frauds of that kind must be punished under other heads of the criminal law or not at all:  they are not rape.

…

Carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.   But once the consent is comprehending and actual the inducing causes  cannot  destroy  its  reality  and  leave  the  man  guilty  of  rape. (Reference)

[59]     The  Court  in  Papadimitropoulos  held  that  it  was  irrelevant  that  the complainant would not have agreed to intercourse if she had been in possession of the full facts.

[60]     In R v Mobilio [1991] 1 VR 339 a woman consented to an ultrasound for diagnostic purposes. It was held that the fact that the practitioner actually performed the procedure for sexual gratification did not negate consent to the fact of the physical procedure occurring.

[61]     Specific legislation in New South Wales and Victoria has since addressed the specific factual examples raised in both Papadimitropoulos and Mobilio.  However there has not been any broadening of the circumstances that can vitiate consent at common law more generally.

[62] Some Australian states have provided that specified types of mistaken belief do not amount to consent to sexual activity. There can be no consent to sex if the act takes place as a consequence of a mistaken belief that the participants are married: see Crimes Act 1900 (NSW) s 61R (2)(a)(ii). It is also an offence to procure sexual penetration by fraud: Crimes Act 1958 (Vic) s 57(2). Further, there is no consent if the person mistakenly believes that the act is for medical or hygienic purposes: See Crimes Act 1958 (Vic) s 36g and Crimes Act 1900 (NSW) s 61R (2)(a1).

[63]     Thus, the Australian position seems also to recognise the basic premise that consent  in relation to  sexual acts is consent  to the physical  act  itself,  with  the categories of mistake as to “identity” and “nature or quality” remaining fairly circumscribed.

New Zealand cases

[64]     New Zealand authority has focussed on allegations under s 188 Crimes Act

1961 (grievous bodily harm) or s 145 (criminal nuisance).  The leading case is R v Mwai [1995] 3 NZLR 149. There, the appellant had unprotected sexual intercourse with several women at a time when he was infected with the HIV virus. Two of those women also became infected, allegedly from him. The Court of Appeal regarded the case as being “pre-eminently appropriate” for a charge under s 188(2) Crimes Act 1961 on the basis that the appellant had, with reckless disregard for the safety of others, caused grievous bodily harm. Convictions under both ss 188(2) and

145 were upheld.

[65]     The  Court  accepted  (at  152) that  s 201  Crimes  Act  was  not  appropriate because there was no evidence of the wilful causing or producing of any disease. The Judge had rightly held that this section required proof that the accused intended to cause or produce the disease.  It was not sufficient that the causative act itself was

deliberate.   The Court noted that the trial Judge had found that recklessness was not sufficient to constitute an offence under s 201, a point not challenged on appeal.

[66]     The main point at issue in Mwai was whether “bodily harm” could include mental injury. On that point, the Court held at 155 that grievous bodily harm includes “really serious psychiatric injury identified as such by appropriate specialist evidence.” Although there was no such evidence, mental harm was not needed to constitute the offence. That was because “once the jury were satisfied about causation, the infection with this dread disease was so obviously the causing of grievous bodily harm that no mental harm needed to be added for the offence to be established.”

[67]     With reference to the charges under s 145, the Court of Appeal noted the duty under s 156 Crimes Act which provides:

156     Duty of persons in charge of dangerous things

Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything  whatever,  which,  in  the  absence  of  precaution  or  care,  may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

[68]     The Court went on to observe:

This is really no more than a particular aspect of the more general common law duty not to engage in conduct which one can foresee may expose others to harm.  The Crown formulated the duty in terms of s 156 in this way: the appellant had under his charge and control seminal fluid infected with the HIV virus;  in the absence of precaution or care that infected semen might endanger human life;  reasonable precautions and reasonable care required that he use a condom if engaging in sexual intercourse;  and that he therefore had a duty to use one.  The evidence was that Mwai was averse to the use of a condom and made that clear to the complainants.  In an exchange with the Bench during argument, Mr Moore was disposed to accept that it would be more appropriate to see Mwai’s duty as one to disclose his condition so that his sexual partner understood the risk of engaging in unprotected intercourse with him.  It is certainly arguable that there would be no duty if the partner consented to run the risk.  Seen in this way, the duty to use a condom would arise  only  if  there  were  a  failure  to  disclose.    The  distinction  is  not significant  on  the  present  facts,  for  Mwai  both  failed  to  disclose  his condition and failed to use a condom.

[69]     At the time of the acts in question in this case, section 128A set out, in a non- exclusive way, matters that do not constitute consent to sexual connection:

128A Matters that do not constitute consent to sexual connection

(1)   The fact that a person does not protest or offer physical resistance to sexual connection does not by itself constitute consent to sexual connection for the purposes of section 128 of this Act.

(2)   The following matters do not constitute consent to sexual connection for the purposes of section 128 of this Act:

(a)   The  fact  that  a  person  submits  to  or  acquiesces  in  sexual connection by reason of—

(i) The actual or threatened application of force to that person or some other person; or

(ii) The fear of the application of force to that person or some other person:

(b)   The fact that a person consents to sexual connection by reason of— (i) A mistake as to the identity of the other person; or

(ii) A mistake as to the nature and quality of the act.

(3)   Nothing in this section shall limit the circumstances in which there is no consent to sexual connection for the purposes of section 128 of this Act.

[70]     The current version of s 128A now relevantly provides:

128A       Allowing sexual activity does not amount to consent in some circumstances

…

(7)      A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

(8)      This section does not limit the circumstances in which a person does

not consent to sexual activity.

…

[71]     New Zealand authorities  have accepted mistake as to  the  identity of the offender and mistake as to the nature and quality of the acts involved but without exploring the limits of mistakes of that kind. And the concept of informed consent is well established as part of New Zealand law.  For example, in R v Cox (CA213/96 2

November 1996) the Court of Appeal referred to a requirement for “full, voluntary,

free and informed” consent.  See also R v Herbert (CA81/98 12 August 1998) and R

v Isherwood (CA182/04; CA258/04 14 March 2005) at [35]:

What will … always be essential for there to be a valid consent is that the complainant has understood her situation and was capable of making up her mind when she agreed to sexual acts.

[72]     Recently, the Court of Appeal has explored the limits of consent to physical assault  in R v Yong Bum Lee CA 437/04 7  April 2006.    In passing,  the  Court considered at [209] to [216] some of the sexual assault cases already discussed.  On the issue of informed consent, the Court said at [309]:

Cases such as Konzani and Mwai suggest that any consent must also be informed.  We do not consider that there is anything intrinsically unfair or contrary to principle in such an approach. Normally, if the scope of the activity is understood by the person consenting,  then the person will be assumed to have been consenting to any risks  of  that  activity.    Where, however, there is a known information imbalance about the risks involved between those giving and seeking consent it does not seem unreasonable to require the person seeking consent to correct that imbalance.    This requirement  may,  however,  be limited  to  cases  where the risk  is  major because of the very serious consequences if it does eventuate (such as with unprotected sex and HIV).

[73]     These comments are clearly obiter in relation to sexual cases but suggest that there may be some willingness to move towards something similar to the majority approach in Cuerrier but focussing on a lack of informed consent rather than fraud or deception.   Such an approach, if adopted, would involve the introduction of a positive duty to inform.

Discussion:

[74]     Mr Miller was right to concede that, apart from Cuerrier, the common law jurisdictions have not yet recognised that failure to disclose HIV status can vitiate consent in relation to rape or other sexual offences.

[75]     It is not difficult to accept that consent can be vitiated for example in respect of a charge of indecent assault where a woman consents to a breast examination where the accused has led the woman to believe he had medical qualifications when he did not:   R v Tabassum [2000] 2 Cr App R 328(CA). Or, where a woman

consents to sexual intercourse in the  mistaken  belief that  the other  party is her husband or boyfriend, contrary to the fact.   But the issue of identity has generally been limited to “who the person is” rather than the attributes of the accused:  Adams on Criminal Law CA63.10.

[76]     While a failure to disclose HIV status could not be said to go to the “nature” of the act of sexual intercourse, it may be arguable that it goes to the “quality” of the act.   Sexual intercourse with a person suffering from a deadly disease may quite readily be regarded as something wholly different in quality from having sexual intercourse with a person who does not suffer from that condition.  Alternatively, a failure to disclose may go to the issue of informed consent as the Court of Appeal suggested in Yong Bum Lee.   But, as McLachlin J pointed out in Cuerrier, the problem is where is the line to be drawn?  Is mere non-disclosure sufficient to vitiate consent as the majority in Cuerrier thought, or is a deliberate lie or misrepresentation required? And what types of non-disclosure are sufficient to vitiate consent?

[77]     I regard it as significant that the leading cases in this area, with the exception of Cuerrier, all involve convictions for non-sexual offences.   And, in the case of Cuerrier, the offence of aggravated assault in the Canadian Criminal Code embraces both sexual and non-sexual assault  in the same provisions.   Whether considered under s 20 of the Offences Against the Person Act 1861 (UK) or under s 188(2) of our Crimes Act 1961, an essential element in the authorities to date is the infliction of grievous bodily harm on the victim.  And under s 145 Crimes Act 1961, criminal nuisance involves knowledge by the alleged offender that failure to  disclose the existence of the disease would endanger the life, safety or health of the public or an individual.

[78]     In contrast, sexual violation by rape or indecent assault does not depend upon the infliction of any form of harm or the risk of harm.  The offences are in each case complete upon the proof of the actus reus without the consent of the victim and without any honest or reasonable belief in that consent by the alleged offender.  An important distinction is that consequential harm is merely a possible result of rape and indecent assault.  It is not an essential element of the offences themselves.

[79]     There are also substantial policy reasons not to extend the reasoning in Dica and Cuerrier to the crimes of rape and indecent assault.  As Mwai shows, the law in New Zealand already provides an adequate mechanism to address the problem which this case discloses by ss 145, 188(2) and 201 Crimes Act 1961.  Then there are the difficulties of drawing the line between the non-disclosure of important facts and those  which  might  be  regarded  as  trivial.    If the  non-disclosure  of  the  risk  of contracting a fatal disease is said to be sufficient to vitiate consent in this context, how does one treat failure to disclose a family history of cancer, obesity or mental illness  to  a woman  desiring  to  have  children?    Or  the  existence  of  a  sexually transmitted disease which does not usually carry fatal consequences?

[80]     There is substantial merit in the view expressed by McLachlin J in Cuerrier that this is an area where the Court should be cautious before taking radical steps to extend the scope of the criminal law rather than leaving that task to Parliament which has the ability to assess the social and other consequences of such a change much more readily than the courts.   The proposition advanced here would involve the introduction of a positive duty to disclose which has not to date formed part of the law of New Zealand as well as other difficult and possibly controversial social policy changes.

[81]     While there may be room for some limited extension of the common law, perhaps along the lines suggested by McLachlin J in Cuerrier, I am conscious that my task  is  to  interpret  s 8(3)  of the  Accident  Rehabilitation  and  Compensation Insurance Act 1992, outside the context of criminal proceedings.  The Crown is not represented and, with respect to  Mr Barnett who  has presented the case for the Corporation admirably, the Court lacks the wider view of criminal matters which the Crown could offer.

[82]     I conclude that the law in New Zealand does not presently extend to the appellant’s proposition that  the  non-disclosure  of the  HIV  status of  her  partner vitiates  consent  to  sexual  intercourse  or  indecent  assault.     To  assent  to  that proposition would involve a significant change to the law which I am not prepared to contemplate in the context of this proceeding.   Indeed, I am of the view that, a

change of the kind proposed is properly a matter for Parliament  rather than the

Courts.

Result

[83]     The appeal is dismissed.  It is not clear to me whether the appellant is legally aided.  If the parties are unable to agree on costs, memoranda should be filed within four weeks of the date of this judgment.

A P Randerson, J Chief High Court Judge