R v Konzani

Factual and Procedural Background

An appeal was brought by the Appellant against his conviction on three counts of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. The Appellant was convicted in the Crown Court before a judge and jury and sentenced to a total of 20 years’ imprisonment, with sentences running consecutively. The Appellant was informed in 2000 that he was HIV positive and was aware of the risks of transmission. He engaged in unprotected sexual intercourse with three complainants without disclosing his HIV status, resulting in each contracting the virus. The Appellant did not give evidence or call witnesses at trial but admitted recklessness and the transmission of HIV. The central legal issue concerned the judge’s directions to the jury on the issue of consent to the risk of infection. The Appellant’s appeal also raised complaints about the judge’s directions on adverse inferences from silence and the exclusion of the issue of honest belief in consent.

Legal Issues Presented

1. Whether the judge’s direction to the jury on the issue of consent to the risk of contracting HIV was legally accurate.
2. Whether the judge erred in declining to leave to the jury the issue of the Appellant’s honest belief in the complainants’ consent to the risk of infection.
3. Whether the judge’s direction allowing adverse inferences to be drawn from the Appellant’s failure to give evidence was appropriate.
4. Whether the sentences imposed were manifestly excessive or wrong in principle.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the complainants, by consenting to unprotected sexual intercourse, impliedly consented to all associated risks, including the risk of HIV infection.
• He contended that the jury should have been allowed to consider whether he had an honest, albeit unreasonable, belief that the complainants consented to the risk of infection.
• The Appellant challenged the judge’s direction on consent as legally incorrect and contended that the issue of mens rea was effectively removed from jury consideration.
• A complaint was made regarding the judge’s directions on adverse inferences from the Appellant’s silence, though this ground was later abandoned.

Prosecution's Arguments

• The prosecution maintained that the complainants did not give informed or willing consent to the risk of contracting HIV as the Appellant concealed his condition.
• It was submitted that consent to sexual intercourse did not equate to consent to the risk of HIV infection without disclosure.
• The prosecution relied on established case law to assert that recklessness was admitted and sufficient for mens rea under section 20 of the 1861 Act.
• They argued that the Appellant’s silence and concealment negated any claim of honest belief in informed consent.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the factual circumstances and legal principles surrounding consent in the context of HIV transmission. It emphasized the distinction between consenting to sexual intercourse and consenting to the risk of contracting HIV, requiring the latter to be informed and conscious. The court held that the Appellant’s concealment of his HIV status deprived the complainants of the ability to give informed consent to the risk of infection. It accepted that recklessness, as admitted by the Appellant, satisfied the mens rea element for s 20 offences. The court rejected the Appellant’s argument that the jury should have been allowed to consider an honest belief in consent, noting the absence of any evidence to support such a belief and that silence or concealment is inconsistent with honesty. The court referenced leading authorities, particularly R v Dica, to underscore that informed consent is a necessary defence and that the Appellant’s conduct fell outside this defence. The judge’s directions to the jury were found to be legally sound and sufficiently clear on the issue of consent and recklessness. The court also upheld the judge’s directions on adverse inferences from the Appellant’s failure to give evidence.

Holding and Implications

The appeal against conviction was DISMISSED. The court confirmed that the Appellant’s concealment of his HIV positive status negated any informed consent by the complainants to the risk of infection, and recklessness was properly admitted and found. The judge’s directions to the jury were accurate and appropriate. The sentences imposed were neither manifestly excessive nor incorrect in principle. The decision reaffirms the legal principle that informed consent to the risk of serious infection is required to provide a defence under s 20 of the Offences Against the Person Act 1861 in cases involving HIV transmission. No new precedent was established beyond the application of existing case law to the facts.