Golding v REGINA

Factual and Procedural Background

This opinion concerns an application referred to the Full Court by the Registrar for an extension of time and leave to appeal against conviction and sentence. The appellant pleaded guilty on re-arraignment at the Crown Court to inflicting grievous bodily harm contrary to Section 20 of the Offences Against the Person Act 1861, and was sentenced to 14 months imprisonment. The appellant, a man of previous good character, had a sexual relationship with the complainant, who was diagnosed with genital herpes simplex virus type 2 (HSV-2) during their relationship. The appellant admitted infecting the complainant but initially denied responsibility. The Crown's case was that the appellant recklessly caused the complainant to become infected without her consent to the risk. The appellant later lodged grounds of appeal and an application for bail. The appeal involved consideration of fresh medical evidence, expert reports, and witness testimony, including from the appellant, the complainant, and the appellant's trial advocate. The court also considered whether the appellant's guilty plea was informed and voluntary and whether the conviction was safe in light of the evidence presented.

Legal Issues Presented

1. Whether the appellant’s guilty plea to a Section 20 offence was informed and voluntary.
2. Whether the Crown failed to comply with the Crown Prosecution Service (CPS) Guidelines on Intentional or Reckless Sexual Transmission of Infection.
3. Whether the medical and factual evidence was sufficient to prove that HSV-2 infection amounts to really serious bodily harm under Section 20.
4. Whether there was sufficient evidence to show that the appellant recklessly infected the complainant or infected her at all.
5. Whether failings by the appellant’s legal representative undermined the safety of the conviction.
6. The impact of fresh evidence on the safety of the conviction and the appropriateness of the sentence.

Arguments of the Parties

Appellant's Arguments

• The Crown failed to follow the CPS Guidelines, including not notifying the Director of Public Prosecutions’ principal legal adviser and not providing sufficient scientific and medical evidence before trial.
• The appellant’s legal representative was at fault for failing to challenge the CPS’s failure, failing to obtain an expert report on HSV, and failing to obtain full medical records.
• The guilty plea to a Section 20 offence was not informed or voluntary due to inadequate advice and understanding.
• The medical evidence was insufficient to show HSV infection amounts to really serious bodily harm.
• There was insufficient evidence to prove the appellant infected the complainant recklessly or at all.
• The appellant challenged the reliability and credibility of his own evidence and the plea process, alleging he pleaded guilty out of fear and confusion.
• The appellant raised alternative possibilities for the complainant’s infection, including infection from another person.
• The appellant contended that insufficient credit was given for the guilty plea and that the sentence was excessive given the nature and extent of the injury.

Crown's Arguments

• The Crown contended there was sufficient evidence to sustain a Section 20 charge, including admissions by the appellant and medical evidence linking the appellant to the complainant’s infection.
• The Crown maintained that the appellant’s plea was informed and voluntary, supported by detailed discussions and advice from his solicitor and the judge’s clear directions.
• The Crown relied on expert evidence demonstrating the complainant’s first infection occurred during the sexual relationship with the appellant and that the harm amounted to grievous bodily harm.
• The Crown argued that failings in CPS internal procedures did not undermine the safety of the conviction.
• The Crown submitted that fresh evidence reinforced the case against the appellant rather than undermining it.
• The Crown disputed that the sentence was excessive in light of the harm suffered and the appellant’s conduct.

Appellant's Trial Advocate's Arguments

• The trial advocate acknowledged not being aware of CPS guidance prior to sentence and not obtaining an expert report, but considered the Crown’s evidence sufficient to argue the appellant was not guilty.
• The advocate admitted that obtaining the appellant’s Genito-urinary Clinic records might have been beneficial but would not have materially advanced the defence case.
• The advocate described the plea discussions on the trial day, including the appellant’s change of position and the judge’s indication that Section 20 was the appropriate charge.
• The advocate stated that the appellant was given advice and that the choice of plea was his.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the CPS guidance and found that although the Crown failed to notify the principal legal adviser and did not fully comply with the guidance by failing to obtain detailed scientific evidence before trial, sufficient medical and factual evidence was gathered to raise a prima facie case. The court noted that shortcomings could be addressed during trial and that the appeal process allowed for examination of fresh evidence.

Regarding the evidence at plea, the court found that the complainant’s statements, medical evidence, and the appellant’s admissions were sufficient for a properly directed jury to conclude that the appellant caused the complainant’s infection and that the infection amounted to really serious bodily harm. The court distinguished psychological distress from bodily harm, relying on precedent to define grievous bodily harm as serious but not necessarily permanent or dangerous harm, with assessment contextualized to the victim.

In relation to recklessness, the court found that the appellant’s admitted knowledge of his infection and failure to disclose it supported an inference of recklessness. The court accepted that a defendant could be guilty of recklessly inflicting grievous bodily harm by knowingly engaging in sexual intercourse without informing the partner.

The court assessed the appellant’s legal representative’s conduct and found no material failure that undermined the safety of the conviction. The solicitor was considered conscientious, and although some expert evidence was lacking pre-trial, the fresh evidence would not have materially advanced the defence.

On the central issue of the guilty plea, the court rejected the appellant’s account and accepted the solicitor’s evidence that the plea was informed and voluntary after detailed discussions, including advice on the strengths and weaknesses of the case and possible sentences. The judge’s indication that Section 20 was the appropriate charge was lawful and did not coerce the appellant. The appellant understood the options and made a free choice to plead guilty.

The fresh evidence, including expert reports and witness testimony, reinforced the Crown’s case rather than undermining it. It confirmed the complainant’s primary infection during the relationship, the absence of other partners, and the seriousness of the harm. Differences between experts on the degree of harm were deemed matters for the jury, not the court. The appellant’s admissions and pre-sentence report supported the recklessness element.

On sentence, the court noted the appellant’s good character, the delay in proceedings, and the detrimental impact of the delay on his life. While the original sentence was appropriate, the court exercised discretion to reduce the sentence to time already served due to the exceptional delay and its effects.

Holding and Implications

The court GRANTED the applications for extension of time and leave to appeal and DISMISSED the appeal against conviction, holding that the conviction was safe and the guilty plea was informed and voluntary. The appeal against sentence was ALLOWED in part by reducing the sentence from 14 months imprisonment to 3 months imprisonment, equivalent to time served, due to exceptional delay in the proceedings.

The direct effect is that the appellant’s conviction stands, affirming the legal principles that reckless transmission of a serious sexual infection can constitute grievous bodily harm under Section 20. No new precedent was established. The sentence reduction reflects judicial recognition of the impact of procedural delay on a defendant’s life and the exercise of discretion to mitigate that impact.