Man jailed for ‘intentionally’ passing HIV to his wife and another woman loses appeal

The Court of Appeal has upheld the first conviction for “intentionally or negligently” infecting a person with HIV, in the case of a man who was sentenced to 10 years in prison for passing the virus to two of his sex partners, including his wife. Was.

He is now 31-year-old – who cannot be identified to protect the identity of his victims – after having unprotected sex, contrary to section 4 of the Non-fatal Offenses Against Person Act, convicted of causing grievous harm to women went. With him on dates between November 2009 and June 2010.

The Circuit Court trial heard that around the same time in 2009 the man began a relationship with both women, who described how he was “reluctant” to use contraception and that they had unprotected sex.

Subsequent analysis of the man’s medical records showed he had been found to be HIV positive in 2008 and had received treatment, advice and medication.

They were advised against having unprotected sex and given anti-retroviral medication, which eliminated their symptoms and made them non-contagious.

However, tests heard that the man had a positive viral load when he was examined in 2010, suggesting that he was not taking his medication.

Although he pleaded not guilty to the charges, the jury did not accept his plea and in July 2018 he was jailed after a trial in the Dublin Circuit Criminal Court before Judge Martin Nolan.

The man – who had left a Central African country to seek refuge here – later appealed against the conviction on the grounds that the jury’s decision was “inconsistent with the evidence”.

At an appeals hearing in June last year, the appellant for Paul Green SC told the court that his client had not received a fair trial.

Mr Green also claimed that the trial judges “failed to properly explain how to treat scientific evidence to the jury” provided to the court by expert witnesses.

It was further claimed that the judge had “erred in failing to stop the trial and withdraw the case from the jury, where the manner in which the appellant was being prosecuted would have been erroneous for offenses in relation to HIV transmission”. did not conform to the recognized standards for prosecution.”

Mr Green argued that the prosecution had failed in its role by calling a witness who was a medical doctor but was not a scientist or expert in HIV and AIDS, to give scientific evidence about the possible origin of the virus.

Mr Green said the testimony of this witness was later refuted by the world’s leading expert and professor of evolutionary genetics at the University of Edinburgh, Professor Andrew Leigh-Brown, who was called by the defense during the legal argument. A second scientist was then called to trial by prosecutors and agreed with Prof. Leigh-Brown’s evidence.

During the trial, Prof Leigh-Brown also told Mr Green that he had never seen a trial of this type in other jurisdictions where phylogenetic analysis had not been done.

Phylogenetic analysis can be performed in HIV transmission investigations, where the gene sequences of viruses in individual individuals are used to test whether they belong to a transmission network.

Prof Leigh-Brown told the jury that such analysis was effective in excluding potential sources of infection, but he agreed with prosecutors’ counsel, Dominic McGinn SC, that “it can never really establish that one person gave it to another”.

In his appeal submissions, Mr Green said the professor had said that it may be possible to exclude the accused because phylogenetic testing of the source of infection had been carried out. However, in the absence of analysis, he could not draw any conclusions.

Mr Green told the Court of Appeal that the trial was postponed after evidence from Prof Leigh-Brown to allow prosecutors to conduct phylogenetic testing but that the test could not actually be performed.

The counsel argued that given the lapses in the prosecution’s evidence and the failure to conduct phylogenetic tests, the judge should not have allowed the case to go to the jury. He further argued that the judge’s allegation to the jury was flawed.

However, the Court of Appeal has dismissed that person’s appeal on all grounds.

In a written decision delivered yesterday by Mr Justice Patrick McCarthy, with Mr Justice John Edwards, presiding, and Mrs Justice Isobel Kennedy, the court said there was no reasonable possibility of conducting phylogenetic testing on any meaningful basis .

The judge said that “an unfair standard” was being set by the appellant and that even if analysis was possible, the jury would have to make an inference about the outcome.

He said the scale of the work would have been very important and needed to gain the cooperation of the previous sexual partners of those involved. The defendant could not be compelled to co-operate and whatever he would have said during the process could not have taken place unless he had given evidence, could not be tested under cross-examination.

Mr Justice McCarthy said prosecutors and Gardai often must make a value judgment as to how far they will go in an investigation, and that extensive and lengthy work would be necessary “without purpose” in the case.

“The absence of expert evidence cannot in principle be grounds to exclude the prosecution or direct the acquittal,” Mr. Justice McCarthy wrote.

The jury, the judge noted, later declined the opportunity to hear expert evidence a second time, when defense counsel asked the judge “what he argued was the difference between the virus being transmitted by the individuals in question”.

Mr Justice McCarthy said the ruling indicated the jury was “well aware of the evidence and was considering all aspects of it”.

“The reliance that is to be placed on him was justified taking into account what he asked for or did not want,” he said.

In his closing speech to the jury, Mr. McGinn reminded him that the women had said they had used condoms with previous partners and that there was no evidence that any of their previous partners were HIV-positive.

However, Mr Green told the jury that both complainants had lied about their past sexual history in court. He suggested that this meant that his overall evidence was unreliable.

In a Court of Appeal decision, Mr Justice McCarthy said that the complainants’ evidence “did not suffer from such infirmities that it would be appropriate to take the matter out of the hands of a jury”.

“His credibility as to his sexual relations with other persons may or may not be relevant, but it is properly a matter for the jury,” the judge said, adding that “the jury is likely to be convicted of a conviction.” deserved”.

At trial, two women revealed in their victim impact statements that the man used to tell people to stay away from them because he had the virus.

One woman said she “began telling me over and over again that no one would want me” after the diagnosis. He said that this is the reason why he married her.

The second victim said she was close to overdose on her HIV medication and found it difficult to get out of bed when she was first diagnosed. She said she used to get drunk when she drank and that “on several occasions I tried to walk in front of cars”.

Before sentencing, Judge Nolan said the man’s behavior was “extremely reprehensible” and that he had destroyed the lives of the two women, leaving them needing medication for the rest of their lives and needing to establish a future relationship. condemned his ability.

The judge admitted that the man was remorseful, that he was young at the time and that his upbringing in his country was difficult.