DPP v R.K.
| Jurisdiction | Ireland |
| Judge | Mr Justice McCarthy |
| Judgment Date | 16 June 2022 |
| Neutral Citation | [2022] IECA 135 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 237/2018 |
[2022] IECA 135
Edwards J
McCarthy J
Kennedy J
Court of Appeal Record No. 237/2018
THE COURT OF APPEAL
JUDGMENT of the Court delivered by Mr Justice McCarthy on the 16th day of June 2022
This is an appeal against the conviction of the appellant at Dublin Circuit Criminal Court on the 20th of July 2018 on two counts of intentionally or recklessly causing serious harm contrary to section 4 of the Non-Fatal Offences Against the Person Act. The serious harm alleged was that the appellant infected S.K. and R.C. with HIV.
It is not in real debate but that both complainants and the appellant are infected with some form of the virus. Each complainant gave evidence as did members of An Garda Síochána (pertaining to their dealings with the appellant, including interviews conducted with him) and a number of medical and scientific experts: Dr John Lambert, a consultant physician in infectious diseases with special expertise in HIV (who treated both complainants and saw the appellant for the purpose of treatment although he did not ultimately do so), Dr Cillian De Gascun, a medical virologist specialising in clinical and diagnostic work who is director of the National Virus Reference Laboratory (“NVRL”) and two general practitioners, Dr Sarah O'Connell and Dr Kilian McGrogan, both of whom had some professional engagement with the appellant. A scientist, Professor Andrew Leigh Brown, specialised in the field of evolutionary genetics, was called by the appellant. No real issue arose as to whether or not, if infection was transmitted, it occurred recklessly having regard to the previous knowledge (which was really undisputed) of the appellant of the fact that he was HIV positive when he engaged in sexual activity with the complainants.
The core of the prosecution case was the evidence of the complainants to the effect that they had unprotected sex with the appellant. The prosecution, primarily on the basis of their evidence, sought to show that they had been infected by him. It will be necessary for us to refer to certain aspects of the evidence in summary form. It might be said at this stage that the complainants were not acquainted with each other. Regrettably it is necessary to enter into the issue of the complainants' sexual activities with third parties having regard to the nature of the prosecution case and the fact that in the ordinary course of diagnosis of HIV and treatment therefor doctors attempt to engage in the process of contact tracing.
We turn first to S.K. who said in evidence that she first met the appellant in October 2009 and began a relationship with him in January 2010; this extended to engagement in intercourse. She met him at weekends, and she became pregnant by him in late January or early February – their child was born on the 31st of October. On the first occasion on which the appellant and S.K. had intercourse he at first wore a condom but told her afterwards that he had removed it saying that he didn't like wearing them and he did not do so, thereafter. They married before the birth of the child but parted thereafter. S.K. was first diagnosed as HIV positive on the 17th of May 2010 and came under Dr Lambert's care. She said that the appellant was not shocked upon learning that she had HIV and he himself was thereafter seeing the same doctor in relation to a test for HIV.
Prior to her relationship with the appellant, she had had boyfriends with whom she had sexual relations. In cross-examination she ultimately accepted that she had two previous casual relationships; she initially rejected that proposition or that she had told the Gardai about them – she said she had no memory of them or indeed of so telling the Gardaí; her acceptance was premised on the fact that if she had told the Gardai that this was so (she had done so). In her evidence in chief, she said that she had only one boyfriend before the appellant – one B.C. However subsequently she agreed in cross-examination that she had had two, explaining that she had forgotten about the second – referred to as E.E; she had told the Gardai about both in her statements. The relationship with B.C. was of approximately six months' duration and extended to some point in 2009. The subsequent relationship with E.E. lasted approximately two months but he emigrated at the end of December 2009.
It was also ascertained in cross-examination that she had told the Gardaí that she had had oral sex with such persons – the core proposition put to her in this context was extracted from one of her statements to the Gardai where she had stated: “I also had casual sexual relations with one or two other males. I didn't also intercourse with these names [sic], but I probably wouldn't had sexual contact with them, that's all sex et cetera. I don't know their names. I would have just met them on nights out at parties”, she explained that this must have been a reference to a so-called “one-night stand”. On enquiry of her as to what she meant by the use of the term oral sex, she said she meant normal sexual intercourse (as it was put); she rejected at another point the proposition that she had had oral sex with persons whom she had met casually. She did not use protection when she had oral sex. Accordingly, if she had sexual intercourse casually there was no unequivocal evidence to the effect that prophylactic contraception, e.g. a condom, had been used. At one point she said that these relationships occurred when she was younger – sixteen or seventeen years of age. Again, later, she, referred to such activities as having occurred “earlier” in 2009.
It was put to her in cross-examination that she had met the appellant and had had sexual intercourse with him in a hotel on the 26th of May 2018 which she initially rejected but, when pressed she accepted that the appellant had maintained records by means of video recordings of his girlfriends. Effectively in explanation for the initial denial she said that (whilst) she had been well for a year prior to the trial, she had been in and out of hospital, had tried to commit suicide and that the appellant had manipulated her. She was asked whether or not she had had sex with him in 2016 or 2017 and said she had not; in particular, she said she had not done so on the dates of the 24th of March 2016 and the 19th of October of 2016 which were in her statement to the Gardaí. When the judge asked her if it was possible that she could not remember, she agreed and further when asked could it in fact be true, she accepted that “it might be”.
R.C. met the appellant in 2009 through an acquaintance called P.J. and sexual intimacy extending to intercourse began approximately a week later. She thought that this had been in early 2009 but later in her evidence she accepted that it had, more than likely, been in November of that year. Again, in her case, he wore a condom but then removed it, telling her that he had done so, and she thought in doing that, his conduct was “very sneaky” as she put it. He refused to use contraception. Thus, the prosecution evidence was to a similar effect in respect of both relationships in this regard.
As a result of medical symptoms, she was found to have chlamydia and subsequent tests revealed that she was HIV positive (the date is not precisely clear, but it was apparently before the 17th of June 2010 and not later than the 22nd of June 2010 when he first saw her as a consequence). She was informed of this fact by Dr Lambert. Her relationship with the appellant was, as she put it, “on and off”. He blamed her for the fact that she was so infected, his mood changed upon learning that she was being tested for HIV and he kept saying that he still loved her but appeared agitated. R.C. and the appellant had a child on the 31st of August 2012, and she described their relationship, again, as similarly being “on and off” thereafter. She asserted in this connection that this was because “he never leaves me alone… he harasses me, calls my phone non-stop”. They had a second child in 2016.
She was herself using contraception before she met the appellant. They lived together at weekends, for what appears to be a relatively brief period, after the second child was born. She accepted that she had some contact with the appellant in 2017 and 2018 but could not remember certain dates to which reference was made to this in evidence. She had had a sexual relationship with a D.D. in 2009 and on one occasion with her acquaintance P.J. She said that such intercourse was “protected as well”. She accepted also, as she informed the Gardaí, that she had had some casual relationships with others subsequent to her sexual relations with D.D. and P.J.
The appellant had been arrested for the purpose of investigation of the offences on the 5th of December 2015. Memoranda of interviews conducted by the Gardaí were before the jury. To a very significant degree the appellant indicated that he could not remember given matters when asked questions. Suffice it to say that in the first interview when asked whether or not he had had unprotected sex with girlfriends (he having identified the complainants here as persons with whom he had had relationships), he said he had not. In the second of the interviews, he said he did not remember for how long he had been HIV positive and that he had first been told in Ireland by a doctor whose name he did not know. He further claimed that he was tested because asylum seekers are tested – he thought this was in 2008 soon after his arrival here. He became aware, he said, of the fact that he was positive at the end of 2008 and said that having been referred to St. James' Hospital and attended there every three months – he said he didn't know how he had contracted HIV....
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Director of Public Prosecutions v R.K.
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