A CIRCUS acrobat who was trying to argue he did not intend to infect his girlfriend with HIV has lost his appeal.
Godfrey Zaburoni, 34, was sentenced to nine-and-a-half years in jail earlier this year after facing a trial on the Gold Coast for intentionally transmitting a serious disease to the women, who he met at a New Year's Eve party in 2006.
The acrobat toured Australia in circus troupes and performed on TV show Australia's Got Talent.
The Zimbabwe national appealed the conviction in the Queensland Court of Appeal, arguing his actions were reckless but not intentional.
His lawyers argued unprotected sex had potential consequences but it was not a probable consequence.
Zaburoni arrived in Australia in 1997 and was diagnosed with the disease in 1998 but hid his condition, even asking his best friend to fake a blood test for a visa to stay in the country in 2005.
Three doctors told him to wear condoms and to tell any sexual partners about his condition.
Justice Robert Gotterson said he could not accept Zaburoni's submission that he lacked a genuine appreciation of the transmission risks involved in unprotected sexual intercourse.
He said the most significant factor was the unprotected sexual intercourse over many months.
"It was open to the jury to reason from this and their own knowledge and experience of human behaviour that whereas one or several acts of unprotected sexual intercourse might be viewed as reckless as to whether infection would be transmitted or not, such acts repeated frequently with the same partner over many months, defied description as mere recklessness..."
Justice Philip Morrison said the jury was entitled to conclude Zaburoni intended to ensure the risk of contracting HIV from him remained hidden.
He said Zaburoni's failure to alert his girlfriend of her need to protect herself strengthened the inference of intent.
Justice Peter Applegarth dissented and would have sent the case back for sentence on the lesser charge of grievous bodily harm for which Zaburoni had already entered a guilty plea.
He said Zaburoni acted selfishly in risking someone else's health and happiness but the evidence could not prove intent beyond a reasonable doubt.