[Update] Australia: Migrant living with HIV deported to Zimbabwe in case that went all the way to the High Court

X, who was based on the Gold Coast, has been deported to his native Zimbabwe after callously infecting his partners.

He was found guilty of grievous bodily harm in a case that went all the way to the High Court.

X, 39, was originally charged and convicted in the District Court in 2013 of grievous bodily harm by intentionally transmitting a serious bodily disease.

Queensland’s chief health officer, Dr Jeannette Young, said X had given Queensland Health the names of 12 women with whom he had unprotected sex. Most were from Queensland.

He has been sent home after failing the character test under section 501 of the Migration Act.

Now a collection of offenders, including eight murderers and 18 convicted rapists, will be sent home.

“I want people, if they have committed offences, to expect that they are going to have their visas cancelled and they will be deported, and our country will be a safer place because of it,’’ Mr Dutton said.

A spokesman for Mr Dutton said the visas of 75 criminals were cancelled in October. Of these, 21 were for people from Queensland. They had been convicted of serious drug offences and assault.

A total of 1800 undesirables, including 550 from Queensland, have had their visas cancelled since laws were strengthened in 2014.

X’s case attracted national attention. A police investigation began in 2007 when his Gold Coast lover became ill and went to police.

In an emergency public appeal in 2010, Dr Young urged women who had had unprotected sex with X 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 at the time.

Godfrey Zaburoni, 38, was found guilty of grievous bodily harm, in a case that went all the way to the High Court.

He was originally charged and convicted in the District Court in 2013 of grievous bodily harm by intentionally transmitting a serious bodily disease.

That charge was upheld by the Appeal Court but later overturned by the High Court and a lesser grievous bodily harm charge recorded.

A spokesman for Immigration Minister Peter Dutton said: “I can confirm that this person’s visa has been cancelled and he has been taken into immigration detention.”

He said Zaburoni failed the character test under section 501 of the Migration Act.

Zaburoni’s location was not disclosed.

A police investigation began in 2007 when his Gold Coast lover became ill and went to police.

In an emergency public ­appeal in 2010, Queensland’s chief health officer Jeannette Young urged women who 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.

Dr Young said Zaburoni had given Queensland Health the names of 12 women with whom he had unprotected sex.

Seven of them were from Queensland, she said.

An HIV-positive circus performer who infected his girlfriend is facing possible deportation to Zimbabwe after being given a suspended five-year jail sentence.

Godfrey Zaburoni, 38, was re-sentenced in Brisbane’s District Court today, two months after the High Court quashed his original nine-and-a-half-year jail sentence when it found he didn’t intentionally infect his former partner.

Instead, the Gold Coast acrobat was sentenced to five years imprisonment for the lesser charge of unlawful grievous bodily harm, but it was suspended immediately because he had already served more than three years in prison.

Authorities had previously indicated Zimbabwe-born Zaburoni would likely be deported upon his release. After his re-sentencing, the Department of Immigration said it was “considering” his case.

In sentencing Zaburoni, Judge Julie Dick said the grievous bodily harm charge was less serious than the original offence and that she had to consider his early guilty plea and attempts at rehabilitation.

Judge Dick said it was a difficult situation given the offence was not a one-off act and the recklessness related to “repeat transactions”.

She also referred to his former partner’s previous victim impact statement, which highlighted her difficulties having children and breastfeeding.

“She was pregnant with her second child … and she had to wait a significant amount of time to see whether that child had HIV, fortunately the first one did not have it,” Judge Dick said.

“I won’t go through everything she said but it was a very moving statement.”

Zaburoni was originally sentenced in 2013, after becoming only the second person in Queensland to be convicted of intentionally infecting someone with HIV.

He appealed the decision in the Queensland Court of Appeal, but the matter was dismissed and he then received special leave to take his case to the High Court.

It upheld his appeal against the conviction in an April, finding that despite he had frequent unprotected sex with his girlfriend, there was “no evidence to support the inference” he intended to infect her.

The High Court judges determined it was a reasonable possibility Zaburoni had sex with his girlfriend “selfishly for his own gratification” rather than with the sole intent to cause her harm.

During the trial, the jury heard evidence there was about a 14 per cent chance Zaburoni’s girlfriend would contract HIV.

He has already served three years and two months behind bars.

A Department of Immigration spokesperson said while they could not comment on specific details, visa holders must continue to meet “character requirements” and the department was considering Zaburoni’s case.

This court case has highlighted how criminal justice system doesn’t work well in the privacy of people’s bedrooms, and that HIV is a health issue, not a legal issue.

HIV advocates have welcomed the outcome of a High Court appeal related to the application of criminal law about HIV transmission, which will support future advocacy for the development and implementation of prosecutorial guidelines.

On Wednesday this week the High Court handed down a decision that it could not be proved Godfrey Zaburoni intended to transmit HIV to his former partner.

The case, which was an appeal to a 2013 verdict handed down in a Queensland court, establishes that if a HIV-positive person has sex with someone without condoms, it cannot be inferred they intended to transmit HIV.

The ruling has been hailed as a landmark in HIV advocacy, as the issue of intent has never been determined in a court at this level worldwide.

“The judgment is a significant advance, and helps to resolve the difficulty that there is no one ‘applicable criminal law standard’ across Australia and the test for the intentional transmission of HIV to a sexual partner has been a source of uncertainty,” said Alexandra Stratigos, the Sydney-based HIV/AIDS Legal Centre (HALC) solicitor representing Zaburoni.

In 2013, Zaburoni was found guilty of “intentionally transmitting a serious disease” and sentenced to an imprisonment of nine years and six months. An appeal to the Queensland Supreme Court that same year was also unsuccessful.

HALC then filed an appeal in the High Court on behalf of Zaburoni to determine if his verdict was unreasonable.

“This [High Court] decision is important as courts are recognising that the criminal system is not the place to deal with this, as there are good public health protocols in place to help people through these issues,” Queensland Positive People (QPP) president Mark Counter said.

“However, there still is place for criminal law, someone stabbing someone with an HIV positive needle or someone declaring I’m going to infect everyone I can.

“This case, however was dealing with the complexity of two people in the privacy of their own bedroom.”

Although there are allegations that Zaburoni may have lied, it was not proven that he intended the infection to occur. Repeated national surveys have found the vast majority of people living with HIV would never want to transmit the virus to others.

“Where you’ve have two people trying to negotiate sex and throw in an HIV infection, the number of complexities rises dramatically,” Counter said.

“Besides the normal power dynamics, personality issues, and egos present in any relationship, HIV introduces the added fears of discrimination, prejudice and stigma.

“As well as in some cases, pre-existing mental health, alcohol and drug issues sometimes linked to the diagnosis itself. There’s a cocktail of things in the minds of people trying to negotiate safety.”

In 2007, a Swiss report said there was evidence of people with an undetectable viral load as having a low risk of being able to transmit the virus to others.

Last January, the same authors of that paper said they have not seen a single case of a transmission occurring where a person achieved an undetectable viral load.

“The medical opinion around the world is changing and the courts haven’t caught up,” Counter said.

“The public health goal is to get people stabilised and get them onto treatment. If someone doesn’t know someone’s status, both have an equal responsibility for safety — everyone is responsible for their own health as much as relying on someone else to disclose a positive status.”

In 2013 Mr Godfrey Zaburoni was found guilty of intentionally transmitting a serious disease (HIV) and sentenced to a term of imprisonment of 9 years and 6 months.

In February 2016 the case was taken to the High Court of Australia and on 6 April the decision was handed down that it could not be proved that Mr Zaburoni intended to transmit HIV to his former partner.

Mr Zaburoni will now be resentenced for the lesser charge of reckless infliction of grievous bodily harm.

This case has clarified the existing law by finding that:

1. ‘Foresight of risk of harm is distinct in law from the intention to produce that harm’;
2. ‘Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct… knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code.’

In other words, the case establishes that if an HIV-positive person has sex with someone without protection/condoms, it can not be said or inferred that they intended to transmit HIV.

Until today these issues had not been determined in a court at this level worldwide.

Alexandra Stratigos from the HIV/AIDS Legal Centre (HALC) in Sydney, the solicitor representing Zaburoni, said ‘the judgment is a significant advance, and helps to resolve the difficulty that there is no one ‘applicable criminal law standard’ across Australia and the test for the intentional transmission of HIV to a sexual partner has been a source of uncertainty.’

This decision serves as a solid refutation to the idea that it is a crime for an HIV-positive person to have condomless sex, as is often implied in media reporting on criminal cases of people with HIV.

A circus performer jailed for intentionally infecting his Gold Coast girlfriend with HIV/AIDS has won the backing of taxpayer-funded lawyers to challenge his conviction in the High Court.

The Zimbabwean-born Australian acrobat, Godfrey Zaburoni, 37, denies intending to transmit the virus despite lying about his medical history throughout their 19-month relationship, even as the woman became increasingly sick with symptoms ranging from light-headedness to vomiting.

The case, which has been accepted for hearing by the full High Court bench in February, is likely to hinge on whether Zaburoni’s lies demonstrated an “actual subjective intention” to infect the woman, as a Queensland jury found in April 2013, or was merely “reckless” to the risk in his pursuit of sex.

If the acrobat’s appeal is successful, his 9½-year prison term would be overturned and he would be resentenced for the lesser offence.

The appeal, which could have implications for the standard of proof in future cases in which HIV-positive people are accused of deliberately spreading the disease, is backed by the HIV/AIDS Legal Centre in Sydney.

About three-quarters of the legal centre’s annual budget is provided by Legal Aid NSW.

Before their intimate relationship began in early 2007, Zabu­roni expressly told his then girlfriend he had been tested for sexually transmitted HIV and was clear of the virus. This was despite him being diagnosed HIV-positive nine years earlier.

He pressured her to allow him to stop using a condom about six weeks later, saying it would make sex more pleasurable for him, and con­tinued lying as her condition ­deteriorated.

High Court judge Virginia Bell suspected the evidence at trial may have been insufficient to prove an “actual subjective intention” to infect the woman.

“It is difficult to see how the mere fact of lying about one’s HIV status would support the more serious of the offences,” she said last month.

“How does one draw from the fact that one tells lies to a person in order to have sexual intercourse with them that one has an intention, in fact, to transmit the disease to them, as opposed to the intention to procure their agreement to the sexual intercourse?”

Prosecutor Michael Byrne QC urged the court to trust the Gold Coast jury’s 2013 verdict.

“It was a matter of fact for the jury to determine … whether the initial lie was told so as to encourage the participation in an act of sexual intercourse or whether there were other reasons for it,” he said.

Zaburoni has been accused of having sex with up to 12 women without disclosing his medical history, allegedly infecting at least two.

He claimed nobody told him he had to disclose the illness to women before sex.

QUEENSLAND’S highest court has rejected an appeal by a circus acrobat who was convicted and jailed for almost a decade for knowingly infecting his girlfriend with the HIV virus via unprotected sex. Zimbabwean-born

Godfrey Zaburoni, 36, last year admitted to a Southport District Court jury that he infected his girlfriend with the potentially fatal virus during their two-year relationship, but denied having done it intentionally.

However, the jury found Zaburoni guilty of committing an act intended to transmit a serious disease.

He became a national identity more than five years ago after appearing on then-Channel 7’s Australia’s Got ­Talent program and being ­arrested amid allegations he may have infected 40 women.

The Court of Appeal in Brisbane, in a majority 2-1 ruling, on Tuesday dismissed Zaburoni’s appeal against conviction.

A circus acrobat is appealing his conviction for deliberately infecting his girlfriend with HIV.

In April, Zimbabwe-born Godfrey Zaburoni was handed a nine-and-a-half-year jail term after becoming only the second person in Queensland to be convicted of intentionally transmitting a serious infectious disease.

The 34-year-old appeared before the Court of Appeal on Tuesday, arguing that while he’d been reckless he did not intend to infect the woman, with whom he’d had a two-year relationship.

Zaburoni’s lawyer, Mark Green, told the court that recklessness did not constitute intent. ‘‘This is a case where the Crown needed to prove intent and the reality is that there was no evidence from which a jury could exclude other explanations for the conduct,’’ Mr Green told the court.

“He had obviously engaged in conduct which had the potential for consequence. But there was no conduct on his part evidencing an intention for that consequence. Indeed, the consequence can not even be described as a probable consequence. It was a possible, but certainly not a more likely than not, consequence of his actions.’’

Lawyers for the Crown argued that Zaburoni acted with intent because the risk of passing on the HIV infection increased each time he had sex with the woman during an 18-month period. Judges Robert Gotterson, Philip Morrison and Peter Applegarth reserved their decision.