[Update]Ireland: Lawyers argue that case of African migrant sentenced to ten years for alleged HIV transmission is one of circumstantial evidence

Appeal

Lawyers for man jailed for infecting former partners with HIV take case to Court of Appeal

July 20, 2021
Source: Sunday World

The Ugandan man (30), who cannot be named to protect the anonymity of his victims, appeared via video-link

Lawyers for a man serving a ten-year prison sentence for infecting former partners with HIV have argued before the Court of Appeal that a crucial circumstantial evidence warning should have been given to the jury who convicted him.

The Ugandan man (30), who cannot be named to protect the anonymity of his victims, appeared via video-link on Tuesday appealing his 2018 Dublin Circuit Criminal Court conviction for intentionally or recklessly causing serious harm to his two female victims on dates between November 2009 and June 2010. It was the first trial of its kind in Ireland.

Today, Paul Greene SC, for the appellant, had said that Judge Martin Nolan should have given a direction to the trial jury about the case being one of circumstantial evidence.

At a previous hearing of the Court of Appeal, Mr Justice John Edwards, presiding at the court, asked why the defence team did not explain why they had not raised an “obvious” issue with what the judge told the jury at the end of their client’s trial.

Mr Justice Edwards had said the three judges of the Court of Appeal were “really very concerned” at the way in which the man’s appeal had been presented.

He pointed out that the man is serving a “double-digit” sentence for serious offences, and added: “It is concerning that this issue, which appears obvious to the court as being relevant, was not raised in the court below in requisitions or as the subject matter of any ground of appeal.”

Mr Justice Edwards had said that where a prosecution relies on circumstantial evidence there are specific directions and instructions that a judge must give to the jury.

The judge had asked Mr Greene whether that was adequately dealt with by the judge at trial. Mr Greene had responded that those matters were not adequately dealt with.

Counsel accepted he had not raised the issue but, he said, the court having raised it, it would be an injustice to his client to refuse relief if the court took the view the judge’s charge in relation to circumstantial evidence was insufficient.

Mr Justice Edwards had said the failure of the defence to raise an issue does not bar it from being considered. Mr Greene, however, said the judge, had to explain why the issue was not raised earlier and must show that a “flagrant denial of justice” would follow if the court does not consider it now.

On Tuesday, however, Mr Justice Edwards said that he was apologising for that “strident criticism” that the appellant’s legal team had received on behalf of the Court of Appeal and that the criticism was “not wholly deserved”. He said that an apology was due to the team, which was accepted by Mr Greene.

Mr Greene said that the nature of the appeal was whether or not the case was one of circumstantial evidence, in that a jury did not hear conclusive scientific evidence. He said that Judge Nolan should have given a direction to the jury that what they heard was circumstantial evidence, which needed to be beyond a reasonable doubt.

Mr Greene said that it was the prosecution’s case at trial that it was not circumstantial but that this could not be true because there was no testimony to “primary fact”.

Dominic McGinn SC, for the State, told the three-judge court that the appellant was diagnosed with HIV in 2008 and then had unprotected sex with both women, who became pregnant by him.

Mr McGinn said that the appellant had not told either woman of his HIV status and that he had denied it to medical personnel.

Counsel said that there had been no evidence before the trial that either woman had contracted HIV by another partner.

Mr McGinn said that the sub-type B of HIV which was transmitted was “unknown” in Uganda, and that an “exclusion” test was not brought before a jury.

Counsel said that the case was not a circumstantial one and that HIV continues to mutate in those affected.

Mr McGinn said that a doctor had analysed the same mutation in one of the women as well as in the appellant and that the doctor said that this was “unusual”.

Mr McGinn added, however, that medical science could not prove “one way or the other” the source of the transmission and that the medical evidence was a secondary part in the case.

Mr McGinn said that all the evidence before the jury was there to be judged by them beyond a reasonable doubt and that the case had been a “fair process”.

Counsel said that the case did not call for a circumstantial evidence charge from the judge, that the defence did not ask for one and that the experienced trial judge did not see the need to issue one.

Mr McGinn said that the jury was satisfied on the “high bar” of every aspect of the prosecution’s case and that the conviction was not unsafe in the absence of any circumstantial evidence direction from the judge.

Today, Mr Justice Edwards, sitting with Justice Isobel Kennedy and Justice Patrick McCarthy, said that judgement in the matter before the court would be reserved.

Appeal

Lawyers must explain why they didn’t raise ‘obvious’ issue in appeal

June 25, 2021
Source: Irish Times

Lawyers for a man serving a 10-year prison sentence for infecting two former partners with HIV have been told by the Court of Appeal to explain why they didn’t raise an “obvious” issue with what the judge told the jury at the end of their client’s trial.

Mr Justice John Edwards said the three judges of the Court of Appeal are “really very concerned” at the way in which the man’s appeal had been presented.

He pointed out that the man is serving a double-digit sentence for serious offences, and added: “It is concerning that this issue, which appears obvious to the court as being relevant, was not raised in the court below in requisitions or as the subject matter of any ground of appeal.”

Mr Justice Edwards said that where a prosecution relies on circumstantial evidence there are specific directions and instructions that a judge must give to the jury.

He asked Paul Greene SC, counsel for the appellant, whether that was adequately dealt with by the judge in this trial. Mr Greene responded that those matters were not adequately dealt with.

Must explain why

Counsel accepted he had not raised the issue but, he said, the court having raised it, it would be an injustice to his client to refuse relief if the court took the view the judge’s charge in relation to circumstantial evidence was insufficient.

Mr Justice Edwards said the failure of the defence to raise an issue does not bar it from being considered. Mr Greene, however, must explain why the issue was not raised earlier and must show that a “flagrant denial of justice” would follow if the court does not consider it now.

He gave Mr Greene one week to file affidavits and make submissions to the court. The Director of Public Prosecutions will have a further week to respond before the matter comes before the court again.

The man (30) is an African native who lived in Dublin and can’t be named to protect his victims’ identities. He was convicted following a trial at Dublin Circuit Criminal Court in 2018 of intentionally or recklessly causing serious harm to his two female victims on dates between November 2009 and June 2010. It was the first trial of its kind in Ireland.

Following conviction both women said the man would tell people to stay away from them because they had the virus. One of them revealed that she married him following her diagnosis because he told her repeatedly that nobody would want her.

Attempted suicide

In her victim impact report following the trial, she said he “pestered” her so much that she ended up in hospital and attempted suicide numerous times.

The second victim said she was close to overdosing on her HIV medication and found it hard to get out of bed when she was first diagnosed. She said when she drank, she got drunk and “on a few occasions I tried to walk out in front of cars”.

She said he would ring her, text her and follow her, telling everyone she talked to that she had HIV. He told her he still loved her even though he blamed her for infecting him.

Before passing sentence Judge Martin 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 impacted with regard to their ability to establish future relationships.

The judge accepted the man was remorseful, that he was young at the time and had had a difficult upbringing in his home country.

Garda Colm Kelly told Dominic McGinn SC, prosecuting, that the man commenced relationships with both women about the same time in 2009. The women detailed how the man was “reluctant” to use contraception and had unprotected sex.

Garda Kelly said one woman found out she was pregnant in early 2010 and tested positive for HIV during neonatal screening. The man was approached about getting tested for the virus, agreed and “expressed a degree of surprise” when his results came back positive for the infection.

Garda Kelly told Mr McGinn that about the same time, the second woman decided to get screened and found out she was HIV positive in June 2010.

The court heard Dr John Lambert was treating both women at the time and realised they had named the same man as their partner. The man denied any knowledge of the second woman when the doctor spoke to him about her.

Dr Lambert sought the man’s medical records, which 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 prescribed anti-retroviral medication, which would have eliminated his symptoms and rendered him non-infectious.

Not taking medication prescribed

Garda Kelly told Mr McGinn that the man had a positive viral load when he was screened in 2010, suggesting he had not been taking his medication. The garda said the man’s relationships with the women continued in 2010 to different extents and both victims subsequently had children with him.

Earlier in Friday’s appeal hearing, Mr Greene had argued that his client did not get a fair trial. He said the prosecution called a medical witness who was not a scientist or an expert in HIV and Aids, who incorrectly stated that the variant of the disease present in the two victims was of African origin.

Mr Greene said Professor Andrew Leigh Brown, a world leading expert called by the defence, had corrected the prosecution’s evidence and found that the variant present in both women is present in 50 percent of known cases in Ireland and 10 to 12 percent of cases worldwide.

It is not, he said, prevalent in Africa and is not known to be present in the country from which the accused man hailed.

Prof Leigh Brown had also told the trial that he had never before seen a prosecution of this type in other jurisdictions where phylogenetic analysis was not carried out.

The trial was postponed following Prof Leigh Brown’s evidence to allow the prosecution to carry out phylogenetic testing but the test wasn’t actually carried out, Mr Greene said.

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 McGinn, for the Director of Public Prosecutions, will respond to Mr Greene’s submissions at a later hearing.

Sentencing

Man sentenced to ten years for infecting women with HIV

July 27, 2018
Source: RTE

A man who infected two women with HIV has been sentenced to ten years in prison by Dublin Circuit Criminal Court.

The women had told the court he had destroyed their lives and affected the health of their families.

The man, who cannot be identified in order to protect the identity of the women, was found guilty earlier this month of causing them serious harm by infecting them with HIV.

He had denied the charges but a jury gave a unanimous guilty verdict.

Garda Colm Kelly outlined the facts of the case to Judge Martin Nolan at a sentencing hearing today.

He said the women both started relationships with the man during 2009 and he had unprotected sex with them.

They were both tested and found to be HIV positive in 2010.

They both said he was their partner and it was later established he had been diagnosed as HIV positive in 2008.

At that time he had been advised not to engage in unprotected sex and had been given anti-retro viral drugs. If taken these drugs would have meant he was unlikely to have passed on the infection.

When tested in 2010 he was found to have a high viral load which suggested he had not taken his medication.

The two women when tested were found to be carrying the same sub-type of HIV with the same mutation as the man.

The man’s ex-wife told the court she married him only because he told her no one else would want her now she has HIV and that he would not be there for their daughter if she did not marry him.

She had discovered she was HIV positive when she became pregnant.

She said she repeatedly tried to get away from him but he pestered her so much she had to leave her apartment and move back in with her mother.

She said he had destroyed her soul and while he had not beaten her physically he had done everything else possible to destroy her.

She said she tried to end her life several times by different methods. She said whenever she went out he would turn up and tell people she had HIV and not to go near her and so she stopped going out.

She said she had lost her car and her job and now relies on disability payments. She said her ex-husband has taken everything she used to be.

She said she used to be full of energy always out running and always there for her daughter but most days now she cannot even get out of bed.

The second woman gave her victim impact statement through a letter read out to the court.

She said physically she has been left infected with AIDS.

She said there were also mental effects on her. She said she was very depressed when first diagnosed.

She also said that she repeatedly tried to get away from the man but he pestered her. He would turn up when she was on a night out and tell people she had HIV and she had given it to him.

She said he had told her she gave it to him but she since found out it was the other way around.

She said he isolated her. She has had to repeat college courses and her ability to look after her daughter has been affected. She said feels cannot have a healthy relationship

Both women said their mothers had become ill through the stress of everything he had put them through.

Conviction

Man found guilty of ‘intentionally’ infecting women with HIV

July 13, 2018
Source: Irish Times

Defendant remanded in custody and could be sentenced to life in prison later this month

An African national convicted of causing serious harm to two former partners by infecting them with HIV will be sentenced later this month.

In the first case of its kind here, the State alleged that the 28-year-old man was aware of his diagnosis when he infected the women and that this amounted to serious harm. The man, who lives in Dublin, cannot be named to protect the identities of the complainants in the case. He had pleaded not guilty at Dublin Circuit Criminal Court to intentionally or recklessly causing serious harm to the two women on dates between November 2009 and June 2010.

After an eleven-day trial and just under four and a half hours of deliberations, a jury of nine women and three men returned unanimous guilty verdicts on both charges.

Judge Martin Nolan refused a defence application for bail. He said there was some risk of the man fleeing and that a custodial sentence was quite likely. The maximum penalty for the offence is life. The judge remanded the man in custody to appear again in court on July 26th for a sentence hearing.

He thanked the jury for the carrying out its duty and said the case had been a pretty difficult one with unusual type of evidence.

In his closing speech to the jury on Tuesday, prosecution counsel Dominic McGinn SC submitted that expert witnesses had said that all three parties had the same subtype and mutations of the virus.

‘Remarkably similar accounts’

Mr McGinn said the complainants had “remarkably similar” accounts and said they used condoms with previous partners. He reminded the jury that it had heard condoms, “if used correctly, effectively stop transmission” and that oral sex does not lead to infection.

He said there was no evidence that any of the complainants’ previous partners were HIV positive. He told the jury the man lied to the complainants’ doctor about his positive diagnosis and “went through the charade” of being tested again for the virus in 2010.

“He knew full well he was HIV positive. He was advised about having safe sex. He admitted that to gardaí and he was given anti-viral medication and he didn’t take it,” Mr McGinn said.

Mr McGinn told the jury that the accused was guilty on both charges against him because he acted recklessly and caused serious harm to the complainants. In his closing speech, defence counsel Paul Greene SC 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.

He reminded them that defence expert witness Professor Andrew Leigh Brown’s evidence was that this was the first criminal trial at which he had given expert advice where phylogenetic analysis was not carried out, and that this analysis was effective at excluding potential sources of infection. Prof Leigh Brown agreed with Mr McGinn under cross-examination that this analysis “can never actually establish that one person gave it to another.” During the application for bail Garda Sergeant Mark Waters told Gareth Baker BL that he was objecting to bail on the basis that the man now posed a flight risk.

He said that while he has a number of children here, their mothers have said he does see them. Mr Greene submitted that his client was not a flight risk, was resident here since 2008 and had a real interest in staying here and was still in the process of seeking asylum. He said he was on combination medication therapy here to treat his virus. Counsel said the man, who may also have a child in the UK, had instructed him that his children here were important to him.

Trial

Man denies intentionally infecting women with HIV

June 26, 2018
Source: Irish Times

Court hears accused (27) was diagnosed in 2008 and went on to have babies with two women

A man has gone on trial accused of causing serious harm to two former girlfriends by infecting them with HIV.

The man (27) who cannot be named to protect the identities of the complainants in the case, has pleaded not guilty at Dublin Circuit Criminal Court to intentionally or recklessly causing serious harm to the women on dates between November 2009 and June 2010.

In his opening address, Dominic McGinn SC, prosecuting, told the jury that it is alleged the man was aware of his diagnosis when he infected the women with HIV and that this amounts to serious harm.

He told the jurors that HIV is a life altering virus that can be spread by having unprotected sex and that it can be life threatening if left untreated.

Mr McGinn said the jury would hear that the man was in relationships with both women at the time, but neither complainant knew about the other.

Counsel said there would be evidence that no condoms or barrier protection were used during sex in either relationship.

He said it was the State’s case that in early 2010 one complainant became pregnant and was diagnosed with HIV after a standard screening process. Mr McGinn told the jury it would hear that the man was also tested as a result and that he appeared surprised by a positive diagnosis.

Counsel said the second complainant was tested and diagnosed in June 2010. Mr McGinn told the jury there would be evidence that the man subsequently had babies with both women, but the children did not contract the virus.

Mr McGinn said it was the prosecution’s case that the man had been diagnosed with HIV in March 2008 and was aware of his condition and advised about practicing safe sex.

He said it is alleged the man failed to tell either woman of his diagnosis and therefore caused them serious harm by infecting them with the virus.

Mr McGinn added that the jury would hear from a medical practitioner during the trial about the seriousness of being diagnosed with HIV.

Judge Martin Nolan warned the jury not to look up anyone connected to the trial on the internet or discuss the case with any other parties.

The trial continues.