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Criminal intent

By Andrew McGee and Andrew Garwood-Gowers - posted Friday, 11 March 2016


Introduction

The High Court recently heard submissions of counsel in Zaburoni v The Queen. This case concerns an appeal against conviction for transmitting a serious disease with intent under s 317(b) and (e) of the Queensland Criminal Code. It raises important issues about the meaning of intent and how intent can be proven in Queensland criminal offences.

Since intent is an element of so many of the more serious crimes, it is surprising to see that the courts, both in England and Australia, continue to grapple with how best to define it. In murder, for example, the accused is potentially going to be locked up for a very long time, so it is essential that the courts and juries are very clear on what intent actually means, so that they can be confident in correctly finding that it was present on the facts of the case.

In the Zaburoni case, Zaburoni, the appellant, knew he was HIV positive but concealed this from his partner. He engaged in unprotected sex with her over a significant period of time and she contracted HIV as a result.

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He claims he did not intend to infect his partner, but pleaded guilty to the less serious offence of causing grievous bodily harm (under s 320 of the Code).However, he was convicted of the more serious offence, which requires intent and can carry a longer prison term.

The Criminal Code doesn’t define “intent”, so the word bears its ordinary, natural meaning.  The Crown must prove that “the appellant’s conduct was designed to achieve that result” (Reid case). That is, the defendant aimed for the result, or achieving the result was his purpose in engaging in the conduct.

It can be hard to tell what somebody’s intention, purpose, or aim is. One important criterion – somebody’s sincere claim that they intended to cause outcome X – is normally unavailable in criminal cases, where the accused denies intending the consequence (death, HIV transmission). It is because the accused has denied it, that we are in court trying to find out what his or her intent really was.

Where there is no confession, we may have to accept that we can’t prove intention beyond reasonable doubt. Without a confession the jury will need to infer the accused’s state of mind from facts established by the evidence.  This is tricky where an accused may have been aware of some risk in acting in a certain way but claims not to have intended the result that occurred. One option we must be wary of is thinking that it suffices to prove intent to show that the accused had the consequence in mind when he or she acted.

Zaburoni’s lawyers claim he was reckless in engaging in unprotected sex, but that this does not equate to intending to transmit HIV and so should have been acquitted of the more serious offence.

How, then, should we understand intent? Is there a need to go beyond purpose or aim when defining intent?

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The courts appear to think so, and have grappled with this issue for many years.

A recent example comes from the transcript of the Zaburoni High Court appeal, where both barristers and judges alike explain intent in quite different ways.

We think there are two fundamental reasons why the law has struggled with this issue.

Intention and desire

First,the law has correctly distinguished between intention and desire. You can desire things you have no intention of bringing about, as when I desire to go to the Caribbean but don’t currently have the means or time to go there.

It is also correct to say that we can infer intention from desire, eg, if you have made claims that you ‘want Joe Bloggs dead’ and you have dropped a boulder from a bridge onto a car, thereby killing Joe Bloggs.

However, the courts have gone further and said that you can intend to bring about a consequence you don’t desire to bring about. This is, we believe, mistaken.

Take mercy killing. You may regret that someone wants to die and pleads with you to end their life. It might be the last thing you ‘want’ to do. But if you choose to kill the person over leaving them to suffer, you do want that outcome more, out of the two possible outcomes. Your motive may be compassion, but you do want them to die to avoid more suffering.

Wanting an outcome can be consistent with regretting, or being sad, that it occurs. You can regret that it is the best of all the available options but, to the extent you judge it to be the best and act on that judgement, you want that outcome. But the courts have assumed otherwise. In countless cases on the issue, a standard formula in court judgments is that ‘you can intend an outcome that you do not desire’.

This is not true, and is one of the main reasons why a satisfactory account of intent has yet to be given. Acceptance of the claim you can intend but not desire an outcome is inconsistent with the definition of intent in terms of purpose, for a purpose is, by definition, something you want to bring about. So this mistake forces the court to regard the purpose definition as insufficient.

The confusion stems in part from an example given in R v Moloney, which said: “A man who, at London airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit.” (Moloney).

Although in one sense this man has no particular desire to go to Manchester – his motive for jumping on the plane simply being to escape pursuit – he nevertheless wants to go there if he chooses to board that plane over others.

Only if he boarded the plane without thought for its destination at all, could we say he had no desire to go there at all – but if he boarded without thought for its destination, we can equally say he had no intention to go there, his intention simply being to escape.

In short, insisting you can intend an outcome without desiring it deprives the court of an important criterion for telling a jury what an intention is.

Intention and foresight

Failure to see the conceptual connection between intention and desire has led the courts into dense thickets, trying to find what an intention really is – hence the second problem, which is to identify it with foresight of virtually certain consequences. In an English case (Woollin), Lord Steyn said ‘a result foreseen as virtually certain is an intended result’. This is where, as noted above, there is a danger of incorrectly equating intention with what the accused had in his or her mind when acting. The accused might simply have been aware of the high probability of its occurring but had some other consequence in mind, as with the police officer case mentioned below.

Foresight of virtually certain consequences can be evidence from which one can infer intent, provided that there is other evidence that also leads to that conclusion (such as motive). It needs other evidence because foresight of virtually certain consequences does not equate to intent.  

A police officer can be virtually certain that breaking the bad news to relatives of a lost loved one will upset them, but he doesn’t intend to upset them in such cases. So foresight definitely cannot equal intention. But if there is evidence they are actually alive and he knows this, then his breaking the ‘news’ would then, together with that evidence, allow an inference of an intention to upset the relatives.

Interestingly, there is empirical evidence that we are more likely to find intent if the consequence is morally bad, rather than good. Joshua Knobe carried out well known experiments showing that our moral judgements influence findings of intent, whereas it ought, of course, to be the other way round.

The courts should therefore be wary of judging what the accused has done to be reprehensible, and so of defining intent in terms of reprehensible conduct where serious consequences are foreseen.

Once the claim that ‘you can intend an outcome you don’t desire’ is rejected, the courts will no longer be tempted to move beyond purpose or aim to other concepts that may stretch the meaning of intent. It will be interesting to see how the High Court decides the issue of intent in Zaburoni.

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About the Authors

Andrew McGee obtained his PhD in philosophy from the University of Essex in 2001 and is an associate professor in the Law Faculty at QUT. He has published on a number of philosophy and legal issues in leading international philosophy and law journals.

Andrew Garwood-Gowers is a lecturer at the Faculty of Law at Queensland University of Technology. He was educated at Cambridge University and the University of Queensland. Andrew’s research lies at the intersection of international law and international relations, with a focus on international security.

Other articles by these Authors

All articles by Andrew McGee
All articles by Andrew Garwood-Gowers

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