Australia: Defendant in AU$750k Sydney gay civil case now faces criminal charges



July 28, 2010
Source: star observer

The first gay man in NSW charged with wilfully spreading HIV to another person will face court on August 11.

A NSW Police Media Unit confirmed with Sydney Star Observer that a 55-year-old man was charged with one count of “cause person to contract grievous bodily disease”. He will appear in Balmain Local Court on August 11.

SSO understands the man is the same individual ordered by a civil court to pay his former partner $757,487 earlier this year for causing pain and suffering, loss of income and loss of life expectancy, with that court apportioning $50,000 in exemplary damages as an expression of its “disapproval of disgraceful conduct”.

A lower burden of proof is required in civil cases. In criminal cases it must be established that a person is guilty ‘beyond a reasonable doubt’.

The man’s former partner told Sydney Star Observer in April he became HIV positive during a three-year relationship with the man, with the couple allegedly having unprotected sex after discussing their HIV statuses.

He alleges that his partner told him he was HIV negative, but after he had contracted the virus told him he had known this was not the case.

The first person convicted of  passing HIV in NSW was Stanislas Kanengele-Yondjo, a heterosexual Congolese man imprisoned for 12 years in 2005 for having unprotected sex with two women he told he was HIV negative.

Responding to the general issue of the use of criminal sanctions in cases of HIV transmission, Positive Life CEO Rob Lake urged caution.

“Where, after a fair trial, a person with HIV is convicted of an offence under the Crimes Act, the Court must make its judgment,” he said.

However Lake urged the use of the public health system in cases of allegations of deliberate transmission or exposure.

“Where a person acquires HIV, and believes they were misled into having unsafe sex, they should ask their GP to make a report to the NSW Health Department and seek action,” Lake said.

“The Department has a range of measures  it can use for both the victim and the alleged perpetrator, and where it is considered appropriate, they can refer [a matter] to police.”

Lake said it was vital all parties had access to a fair trial when a crime had been alleged, and that judgement come from a court on the basis of evidence, not media or community speculation.

Editor’s Note: As this case is still before the court, we have disabled the comment facility to avoid any potential contempt of court breach.

Editorial comment

A 55 year-old gay man who was successfully sued for AU$757,487 in April for allegedly misrepresenting his HIV-positive status as HIV-negative to his former long-term partner who is now also HIV-positive, is now facing criminal charges.

one count of “cause person to contract grievous bodily disease”. He will appear in Balmain Local Court on August 11.

Reporting of both the civil case outcome and the criminal charges has been extremely well done by the local gay newspaper, the Sydney Star Observer.  Its reporting makes for a stark contrast with the local gay press in neighbouring New Zealand, which last year demonised a man accused of non-disclosure who committed suicide following his arrest before any accusations could be proven in court.

Details of the civil case can be found in this report. Notable is the

[AU]$50,000 in exemplary damages [awarded] as an expression of [the court’s] “disapproval of disgraceful conduct”.

Mike Kennedy, executive director of the Victorian AIDS Council in Melbourne mentioned the case during the Q&A session of a recent meeting of anti-criminalisation advocates in Vienna (video will be uploaded of this meeting over the next few days).  He noted that since civil cases have a lower standard of proof than criminal cases, it has allowed for extremely damaging testimony as to the impact of being diagnosed HIV-positive to be recorded in court records.  He was concerned that future criminal cases would refer to such testimony (and the damages awarded).

Currently, reporting of this case has remained within the gay press but it is likely that the mainstream media will catch on following the man’s August 11th hearing.

This is not the first gay criminal HIV exposure/transmission case in Australia – although it is the first in New South Wales.  Michael Neal was previously found guilty of attempted intentional transmission, rape and reckless conduct in Victoria; a gay male sex worker was previously sentenced to 10 weeks in prison in Australian Capital Territory for being a male sex worker with HIV; and Stuart McDonald faces charges of ‘recklessly’ infecting eight men in South Australia. His trial begins on Monday, August 2nd.