The Court of Appeal has upheld the first conviction for “intentionally or recklessly” infecting a person with HIV, in the case of a man who was jailed for 10 years for giving the virus to two of his sexual partners, including his wife.
The now 31-year-old – who cannot be identified to protect the identity of his victims – was convicted of causing serious harm to the women, contrary to Section 4 of the Non-Fatal Offences Against the Person Act, after he had unprotected sex with them on dates between November 2009 and June 2010.
The circuit court trial heard that at around the same time in 2009 the man commenced relationships with both women, who described how he was “reluctant” to use contraception and that they had unprotected sex.
A later analysis of the man's medical records revealed he had been diagnosed as HIV positive in 2008 and had received treatment, advice, and medication.
He was advised against engaging in unprotected sex and was prescribed anti-retroviral medication, which would have eliminated his symptoms and rendered him non-infectious.
However, the trial heard that the man had a positive viral load when he was screened in 2010, suggesting he had not been taking his medication.
Although he had pleaded not guilty to the charges, the jury did not accept his plea and he was jailed following a trial at Dublin Circuit Criminal Court before Judge Martin Nolan in July 2018.
The man – who had left a central African country to seek asylum here – later launched an appeal against the conviction on the grounds that the verdict of the jury was “inconsistent with the evidence”.
At an appeal hearing in June of last year, Paul Greene SC, for the appellant, told the court his client did not get a fair trial.
Mr Greene also claimed that the trial judge "failed to properly explain to the jury how to treat scientific evidence” provided to the court by expert witnesses.
It was further claimed Judge Nolan had erred by failing to “stop the trial and withdraw the matter from the jury in the circumstances where the manner by which the appellant was being tried failed to accord with recognised standards for the prosecution of offences regarding HIV transmission”.
Mr Greene argued that the prosecution had failed in its role by calling a witness who was a medical doctor but not a scientist or an expert in HIV and AIDS to give scientific evidence regarding the likely origin of the virus.
Mr Greene said the evidence of this witness was later contradicted by Professor Andrew Leigh-Brown, a world leading expert and professor of evolutionary genetics from the University of Edinburgh, who was called by the defence during legal argument. A second scientist was then called by the prosecution at trial, and he agreed with Prof Leigh-Brown's evidence.
During the trial, Prof Leigh-Brown also told Mr Greene that he had never seen a prosecution of this type in other jurisdictions where phylogenetic analysis was not carried out.
Phylogenetic analysis can be carried out in HIV transmission investigations, where the gene sequences of the virus in different individuals is used to investigate whether they belong to a transmission network.
Prof Leigh-Brown told the jury that such an analysis was effective at excluding potential sources of infection, but he agreed with counsel for the prosecution, Dominic McGinn SC, that “it can never actually establish that one person gave it to another”.
In his appeal submissions, Mr Greene said the professor had said it might be possible to exclude the accused as the source of the infection had phylogenetic testing been carried out. In the absence of the analysis, however, he couldn't make a finding.
Mr Greene told the Court of Appeal that the trial was postponed following Prof Leigh-Brown's evidence to allow the prosecution to carry out phylogenetic testing, but the test could not actually be carried out.
Counsel argued that, given the flaws in the prosecution's evidence and the failure to carry out phylogenetic testing, the judge should have not allowed the case to go to the jury. He further argued that the judge's charge to the jury was flawed.
The Court of Appeal, however, has dismissed the man's appeal on all grounds.
In a written judgement delivered on Thursday by Mr Justice Patrick McCarthy, sitting with Mr Justice John Edwards, presiding, and Ms Justice Isobel Kennedy, the court noted there was no reasonable possibility of conducting the phylogenetic testing on any meaningful basis.
The judge said "an unreasonable standard" was being posited by the appellant and, even if were possible to carry out the analysis, the jury would have to speculate as to the result.
He said the scale of the work would have been very significant and would necessitate securing the cooperation of the past sexual partners of those involved.
The defendant could not be forced to cooperate and anything he might have said during the procedure could not, unless he gave evidence, be tested under cross-examination.
Mr Justice McCarthy said the prosecution and gardaí often must make a value judgement on how far they will go in an investigation, and in this case wide-ranging and lengthy work would have been necessary "without purpose".
"The absence of expert evidence cannot be in principle be a basis for excluding prosecution or directing an acquittal," Mr Justice McCarthy wrote.
The jury, the judge noted, later declined an opportunity to hear expert evidence for a second time after the defence counsel asked the judge deal with “what he contended were differences between the viruses suffered by the individuals in question”.
Mr Justice McCarthy said this decision indicated that the jury “were thoroughly conversant with the evidence and were considering all aspects of it”.
“The trust which is to be placed in them was amply justified having regard to what they sought or didn’t require,” he added.
In his closing speech to the jury, Mr McGinn had reminded them that the women said they had used condoms with previous partners and there was no evidence that any of their previous partners were HIV positive.
However, Mr Greene told the jury that both of the complainants told lies in court about their previous sexual history. He suggested this meant their overall evidence was unreliable.
In the Court of Appeal's judgement, Mr Justice McCarthy noted the evidence from the complainants did “not suffer from such infirmities as would render it appropriate to take the matter out of the jury’s hands”.
“Their credibility as to their sexual relations with other persons may or may not be relevant, but that is properly a matter for the jury,” the judge stated, adding that the “jury were entitled to convict”.
Before passing sentence Judge Nolan said the man's behaviour was “grossly reprehensible” and that he had destroyed the two women's lives, leaving them requiring medication for the rest of their lives and condemned in their ability to establish future relationships.
The judge accepted the man was remorseful, that he was young at the time and had a difficult upbringing in his home country.