Director of Public Prosecutions v R.K.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 14 December 2023 |
| Neutral Citation | [2023] IESC 36 |
| Court | Supreme Court |
| Docket Number | Record No.: 2023/34 |
[2023] IESC 36
O'Donnell C.J.
Dunne J.
Charleton J.
O'Malley J.
Baker J.
Woulfe J.
Collins J.
Record No.: 2023/34
AN CHÚIRT UACHTARACH
THE SUPREME COURT
Judgment of Ms. Justice Iseult O'Malley delivered the 14 th of December 2023
The appellant was convicted in July 2018 of causing serious harm to two women, contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997, by knowingly or recklessly infecting them with a serious disease. The prosecution case in the trial was that he infected both complainants with HIV by recklessly engaging in unprotected sexual intercourse with them, while knowing at the time that he himself had the disease. The seriousness of the harm caused by such an infection is not in issue – there can be no doubt that it comes within the statute. Equally, on the facts of the case there could be little dispute about whether or not the appellant acted recklessly. The main question in the case was always whether it had been proven that he in fact transmitted the disease to the complainants.
This appears to have been the first prosecution of its kind in this jurisdiction, involving scientific questions that have not previously been dealt with here by judges, legal practitioners, or juries. On top of that, the sequence in which the expert evidence was called meant that the evidential scenario presented to the judge, legal representatives and jury changed quite significantly over the course of the trial. These factors may need to be borne in mind when assessing the manner in which the trial ran.
In general terms, the appeal is principally based on the contention that the prosecution evidence was inadequate for the purpose of establishing beyond reasonable doubt that the appellant was the source of the complainants' infection. To put the case in context, it may be helpful to state at the outset that there is no scientific test, and no other form of direct evidence, by which it can be proved to the necessary criminal standard that a person with HIV was infected by any other particular person. Given that fact, prosecution evidence from which transmission can be safely inferred beyond reasonable doubt must be such as to rule out any reasonable possibility that the infection came from any other potential source. It is therefore necessary to consider the nature and quality of evidence required.
Initially, the prosecution case was largely based on, firstly, the evidence of each of the complainants as to their previous history of sexual relationships and their relationship with the appellant prior to their respective diagnoses and, secondly, medical evidence from their treating consultant confirming their HIV status and that of the appellant. There was no other expert evidence. In particular, there was no scientific evidence concerned with examining any potential links between the virus carried by the appellant and that carried by either of the complainants.
HIV typically has a lengthy latency period, as short as four years or as long as twenty (although more usually around ten to fifteen), during which the infected person has no symptoms and if untested may be entirely unaware of the infection. Very few patients – in the order of 1% or 2% only – are diagnosed at an early stage of infection. It is also important to note that, although the probability of transmission is low in respect for any single act of sexual intercourse, transmission occurs as a result of such a single act. There is no cumulative effect with repeated intercourse. The use of condoms is a very effective means of reducing the risk of transmission but does not eliminate it entirely – this is mainly because of the possibility that a condom was not used correctly. Compliance with prescribed medication can reduce the viral load of an infected person to the point where transmission of infection does not occur.
In those circumstances, an inquiry into a complainant's sexual history must of necessity be detailed, if it is to be of probative value. Where the complainant is an adult who has been sexually active for any appreciable length of time, the inquiry is likely to be far more intrusive and potentially distressing than would, for example, normally be permissible in a trial for a sexual offence.
It is apparent from the transcript that each of the complainants in this case found the experience of giving evidence and being cross-examined very upsetting. The defence argues in the appeal that the account given in the trial by each of them as to their own sexual history was unreliable. There is no doubt but that aspects of their evidence were problematic and indeed the trial judge gave a form of Lucas warning in that regard. That gives rise to an issue as to the appropriateness of giving such a warning in respect of untruths told in court by prosecution witnesses.
The medical evidence was given by the infectious diseases consultant who treated the complainants, who also had some dealings with the appellant. This witness had been the person who initiated the garda investigation by reporting his concerns to them. He confirmed in evidence that all three were HIV positive. Further, he was in a position to say that the appellant had untruthfully told him that he had not previously tested positive for HIV. He also stated his belief, based on the information that he had at the time regarding the sexual history of the complainants and the analysis of virus samples taken from each of the three, that the appellant had infected the women. It is relevant to note here that the appellant is of African origin, and that the consultant believed that all three were infected with an “African” strain of HIV.
In the application for leave to appeal to this Court, the appellant did not raise any issue as to Dr Lambert's entitlement to give opinion evidence. When the Court considered the application, it was apparent from the transcript extracts furnished that he had reported his concerns about the appellant to the Garda Síochána and that this had been the reason the investigation had commenced. It was not at all clear to the Court that the defence had been aware of this fact, and that the consultant's opinion evidence was given in response to deliberate and direct questions in cross-examination, rather than in evidence in chief or as a spontaneous contribution. In the circumstances known to it, the Court therefore queried whether the witness could, in circumstances where he had in effect initiated the investigation, be considered to be a sufficiently independent expert for the purpose of giving expert evidence on this issue. The appellant has argued in the appeal, albeit as a relatively minor point, that he was not independent and that the opinion was therefore inadmissible despite the circumstances in which it was elicited. More potentially significant in the appeal is the fact that the reliability of the opinion is in issue in circumstances where, as will be seen, both the evidence of the complainants and the subsequent evidence of expert witnesses undermined to at least some extent the grounds for the consultant's belief. In this respect, the adequacy of the trial judge's charge to the jury in relation to the consultant's evidence requires examination.
After late notice of expert evidence was served by the defence, the prosecution sought further scientific analysis of the results found in relation to the original samples. On foot of that analysis, evidence was adduced from the director of the National Virus Reference Laboratory (“the NVRL” or “the laboratory”) that the three parties had the same subtype of HIV (one which was not prevalent in Africa). It should be noted here that the type of analysis routinely carried out in the NVRL was designed for the purpose of assisting in the choice of appropriate treatment for HIV patients, rather than for the purpose of tracing the source of an infection. Significantly, this witness agreed with the defence expert that the data and the results of the analysis did not assist in answering the question whether the appellant had infected the complainants, and that at best it went no further than to say that he could not, on the available data, be excluded as a potential source.
The defence expert witness was of the opinion that the medical and scientific evidence was inadequate to sustain the prosecution case. In particular, this witness expressed the view that the tests carried out for diagnostic and therapeutic purposes were insufficiently sophisticated for forensic purposes. He considered that such data as was available could be seen as pointing against the appellant being the source of the complainants' infections. He stated that the subtype in question was unknown, or almost unknown, in the appellant's continent and country of origin. He considered that it would have been necessary, for the purposes of prosecuting an offence of this nature, to carry out a phylogenetic analysis. Such an exercise, it is agreed, is capable of establishing closer links between the viruses carried by different individuals and is also capable of positively excluding a suspect. The witness said that his own experience was that such an analysis was a prerequisite for such prosecutions in other jurisdictions, and he thought that it was a legal requirement. After a voir dire, the trial judge permitted the witness to be called but placed restrictions on the scope of his evidence. That ruling is the subject of dispute in the appeal.
The status of the appellant as having been HIV positive before he met either of the complainants was established by evidence from the medical practice attended by him at the relevant time. He had been tested in 2008, on arrival in the State as an unaccompanied minor asylum seeker....
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