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. 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.
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.
Close to overdosing
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 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.
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.
Gda 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.
Gda 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.
Gda 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 per cent of known cases in Ireland and ten to 12 per cent 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.