An Act that is ‘always speaking’: Aubrey v The Queen [2017] HCA 18 (10 May 2017)

‘Always speaking’ approach to statutory construction and contemporary understandings of GBH

By Suzanne Martinez


The High Court, by a 4:1 majority, dismissed the appellant’s appeal against a decision of the NSWCCA. The majority clarified the meaning of ‘inflict grievous bodily harm’ in a historical provision of the Crimes Act 1900 (NSW) (Crimes Act) that applied at the time of offending in 2004. Further, it was held that infliction of grievous bodily harm (GBH) did not require direct or indirect application of force and may be inflicted by the transmission of sexual disease. In 2007 and 2012 – after the offences were committed – the relevant provisions of the Crimes Act were substantially amended, and now similarly define GBH to include transmission of grievous bodily disease. Therefore, you ask, what contemporary relevance does this decision have?

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