A jury has convicted an African national of causing serious harm to two former partners by infecting them with HIV.
It was the State’s case that the 28-year-old man was aware of his diagnosis when he infected the women and that this amounted to serious harm. The court has heard it is the first case of its kind in the country.
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.
The maximum penalty for the offence is life. Judge Martin Nolan remanded the accused in custody pending an application for bail. He said he would sentence the man before the end of July.
Judge Nolan thanked the jury for the carrying out its duty. He said this was a pretty difficult case 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.
Mr McGinn suggested that the complainants had “remarkably similar” accounts and said they used condoms with previous partners.
Counsel reminded the jury that it had heard condoms “if used correctly effectively stops transmission” and that oral sex doesn’t lead to infection. He said there was no evidence that any of the complainants’ previous partners were HIV positive.
He told the jury that 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 antiviral medication and he didn’t take it,” Mr McGinn submitted to the jury.
Mr McGinn suggested 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.”
The man’s former wife told the trial that the defendant “didn’t like” condoms. She told Dominic McGinn SC, prosecuting, that the man had agreed to use a condom the first time they had sex in early 2010, but after intercourse she noticed he wasn’t wearing one.
She said he “wasn’t shocked” by her diagnosis, which she received following routine hospital tests after discovering she was pregnant.
Under cross-examination, she told defence counsel Paul Greene SC that she had gone out with two men prior to the defendant. She said she had used condoms with the man she had been seeing directly before her former husband and did not have oral sex with him.
This woman’s mother said she had tried to get the man to admit he had given her daughter the virus but “he kept denying it”. She said the man told her that her daughter had given him HIV.
The second woman gave evidence that she started a relationship with the man in 2009 and that he told her he had removed a condom the first time they had sex.
“Contraception wasn’t used, he wouldn’t use any”, the woman told the court.
She said she went to a doctor in 2010 with abdominal pains and as a result got tested for infectious diseases. She said when she found out she had HIV she was “in shock”.
This woman agreed under cross-examination that she had had casual sexual relationships with other African men before she began going out with the defendant. She said that she had used protection during sex in those casual relationships.
Dr Killian McGrogan read notes from a March 2008 medical consultation which stated the defendant was “not surprised” by his HIV diagnosis.
The GP said he informed the man that he would have to see a hospital specialist about his treatment. The doctor said a few days later he wrote a letter of referral to a St James’s Hospital consultant outlining that the man was confirmed as having HIV.
Dr John Lambert, a specialist in infectious diseases, testified that he diagnosed both complainants and the man with HIV in 2010. He said he later received information from St James’s to confirm the man had previously been tested for HIV.
He said this was after the man denied he had any testing done in Ireland and had stated that an earlier screening in Africa had come back negative for the virus.
Dr Lambert said when he spoke to the defendant about the previous diagnosis in Ireland the patient left the clinic and didn’t show for any follow-up consultations. Dr Lambert said the man continued his HIV treatment at another hospital.
Mr Greene asked him under cross-examination if he was aware of the sexual histories the complainants gave in evidence. Dr Lambert responded that he only had a record of what the complainants told him in the 2010 consultations.
Dr Lambert told the court that he believed the complainants in this case had sustained serious harm as the virus had been “devastating” for them.
The man told gardaí after his arrest that he sought asylum in Ireland and as part of this application he was tested for HIV. He confirmed being informed in 2008 that he had tested positive for the virus.
The defendant said he then attended St James’s Hospital for check-ups every three months. Asked if he was told about the risk of spreading the virus and safe sex practice, he replied “my brain was all over the place”.
He told gardaí he didn’t remember telling his ex-wife about his illness, but had thought he did. He added that he couldn’t recall if he told her before she became pregnant.
The man also said he had no recollection of denying his HIV status to Dr Lambert.
He stated “I remember nothing” when gardaí put it to him that Dr Lambert said the defendant had a clear understanding of his disease, the risk factor and safe sex guidelines.
The man told gardaí he couldn’t remember if he told the second woman he had HIV before December 2009. He said he “felt bad” about her positive diagnosis.
When asked if he realised he had passed the virus on to her, he replied “I thought so”.
Gardaí asked him why he continued having unprotected sex with the two women in 2010, to which he replied: “I didn’t really do it intentionally but when we were drunk it ended up happening”.
Dr Cillian De Gascun from the National Virus Reference Laboratory told Mr McGinn that the viruses in all three parties were of the B-type strain. He said this strain was in 12pc of cases globally and half of Irish cases.
Dr De Gascun said comparisons between the viruses detected could not confirm transmission from one person to another but meant it could not be excluded.
Andrew Leigh-Browne, a professor of evolutionary genetics from the University of Edinburgh, told Mr Greene that this was the first criminal trial at which he has given expert advice, where phylogenetic analysis was not carried out.
Prof Leigh-Browne said such an analysis was effective at excluding potential sources of infection.
He agreed with Mr McGinn under cross-examination that “it can never actually establish that one person gave it to another”.
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