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

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

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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.

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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.

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