A circus acrobat and fleeting TV personality who was jailed for deliberately infecting his girlfriend with HIV through unprotected sex has had his conviction quashed by the high court.
The court ruled there was no evidence that Godfrey Zaburoni, who knew he had HIV and lied to his partner about it, deliberately infected his partner.
At most, the prosecution had been able to show “reckless indifference” to a woman who showed signs of illness consistent with HIV during their relationship, the court found.
Zaburoni, who was jailed in 2013 for intending to transmit a serious disease, will be resentenced in the Queensland district court for grievous bodily harm, to which he had pleaded guilty. He was originally sentenced to nine-and-a-half years’ jail.
The Zimbabwe-born Zaburoni, 38, was diagnosed with HIV in 1998 while working as an acrobat with a touring circus in Adelaide. Zaburoni was warned of the risk he could spread the virus through unprotected sex and a doctor “stressed the importance of [him] using condoms when engaging in sexual intercourse”.
He was told by an infectious disease physician he had likely been infected through sex years earlier in Zimbabwe.
Zaburoni’s then girlfriend was aware of his diagnosis and he was prescribed antiretroviral medication but never began the therapy and stopped going to an immunology clinic.
He admitted to police that he had supplied blood from a friend for a test in April 2005 required by the Australian Department of Immigration, which gave a negative result. He began a relationship with another woman in 2007 without telling her he was HIV positive, engaging in regular unprotected sex until they split in September 2008.
Zaburoni told the woman his brother had died of Aids (sic) but “lied about his [own] HIV status several times during and after their relationship”, the high court noted. The woman, who suffered regular bouts of ill-health consistent with the early stages of HIV during their relationship, was diagnosed with HIV a year after their split.
When finally confronted by the woman about his failure to tell her of his disease, Zaburoni told her “he had not wanted to make her unhappy and that he thought that she was having a good time”, the court said.
He later told a friend he had kept his disease secret from the woman as “I didn’t want to ruin her life”. Zaburoni came to national attention after appearing on the Channel Seven program Australia’s Got Talent prior to his arrest.
The high court found that apart from the frequent unprotected sex, which Zaburoni engaged in because he found it more pleasurable, there was “no evidence to support the inference that [Zaburoni] had the intention to transmit HIV to her”.
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.
“Purpose is not to be equated with motive and a person may engage in conduct having more than one purpose. “A person’s awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce the harm.”
An 2014 challenge to his conviction by Zaburoni in the Queensland court of appeal was rejected. However, dissenting judge Peter Applegarth ruled that Zaburoni’s “callous, reckless conduct was not to be equated with a subjective, actual intent to transmit HIV”, the high court ruling noted.
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