A man’s conviction for causing serious harm to two partners by intentionally or recklessly infecting them with HIV has been quashed by the Supreme Court.
The court said the 2018 case appears to be the first prosecution of its kind in this State, but found there were flaws with how the trial judge guided the jury on the scientific analysis of samples of the virus taken from the three individuals, as well as the personal witness evidence.
The prosecution’s case depended upon circumstantial evidence so it was essential to establish there was no reasonable possibility that either of the women could have been infected another way, said Ms Justice Iseult O’Malley.
The most important features were the women’s evidence and scientific evidence, both of which should have been addressed with “greater care”, the judge said.
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The seven judges agreed to allow the man’s appeal and overturn his conviction for intentionally or recklessly causing serious harm to the women, one of whom was his wife, on dates between November 2009 and June 2010.
Lawyers for the Director of Public Prosecutions said they needed some time to see whether their client wants to retry the now 33-year-old man, who cannot be identified to protect the identities of the women.
The African national denied the charges against him. His 2018 circuit court trial was told he commenced a relationship with both women in 2009 and was “reluctant” to use contraception and had unprotected sex.
A later analysis of the man’s medical records allegedly revealed that he was diagnosed with HIV in 2008 and had received treatment, advice and medication.
The court heard he was advised not to have unprotected sex and was prescribed anti-retroviral medication, which should have eliminated his symptoms and rendered him non-infectious. However, a 2010 screening showed he had a positive viral load, suggesting he was not taking his medication, the court was told.
His wife submitted a victim impact statement alleging that her life “dramatically changed” since he took away her personality, health and positivity. The other woman said she had isolated herself from everyone and that the damage caused to her prevented her from having a healthy relationship.
The man was sentenced to 10 years in jail. His conviction appeal was dismissed by the Court of Appeal last year.
Delivering judgment in his further appeal on Thursday, Ms Justice O’Malley said the scientific evidence to the court might have established that the man and his former partners each had the B subtype, which originates in Africa, but there was evidence from the defence expert that this conclusion could have been wrong.
The jury should have been told to consider whether this caused them to have a reasonable doubt about the uniformity of the subtype of all three, the judge said. Even if satisfied all three had the B subtype, the jury should have borne in mind that half of people with HIV in Ireland have this strain, she said.
The judge said the case was “almost entirely dependent” on the evidence of the women, whose credibility about their sexual history was “absolutely crucial”.
The trial judge was correct to tell the jury that if they believed there were potential lies or misleading statements by the women this did not necessarily mean the man had to be acquitted, but he should not have used language that appeared to equate the women’s position with that of the accused, Ms Justice O’Malley added.
The judge should have emphasised that the jury could not convict unless they believed beyond reasonable doubt that the complainants were fully truthful and accurate when each said they had never had unprotected sex with any person other than the man, she said.
Meanwhile, it should be communicated clearly to a jury that lies told by an accused, even in the hopes of evading responsibility, do not prove transmission.
The judge also noted that while there may continue to be advances in scientific knowledge and methods of testing, the courts will likely still have to approach an offence of this kind as if it is not possible for injured parties to prove by their evidence that they were infected by an accused. Similarly, she said, it is not possible for an accused to prove by their evidence that they were not the infection source.
The availability of any scientific analysis that can exclude an individual as the source should not be disregarded lightly, she added. The court found further flaws with how a medical consultant who treated the women provided some of his evidence.
Her decision was supported by Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Marie Baker, Mr Justice Séamus Woulfe and Mr Justice Maurice Collins.
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