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R v Konzani [2005] 2 Cr. App. R. 14

By Oxbridge Law TeamUpdated 04/01/2024 07:02

Judgement for the case R v Konzani

KEY POINTS

  • Assault involves intentional actions that cause harm or the apprehension of harm to another person. It is a legal concept encompassing various degrees of physical harm or the threat of harm.

  • Inflicting grievous bodily harm refers to causing severe physical harm intentionally, constituting a serious criminal offence. This charge is often applied in cases where the injuries inflicted are significant.

  • In situations where individuals engaging in sexual activity are unaware of the Defendant's HIV-positive status, ethical and legal considerations arise regarding disclosure and informed consent.

  • If the Complainants contract HIV as a result of sexual activity, it introduces a significant legal and health dimension, raising questions about responsibility and potential criminal liability. The concept of consenting to risk involves examining whether the Complainants were aware of the risk of contracting HIV through unprotected intercourse and if they willingly accepted or consented to such a risk.

FACTS

  • Feston Konzani (‘Appellant’), being aware of his HIV-positive status, engaged in repeated unprotected sexual intercourse with three Complainants without disclosing his condition to them. Subsequently, each Complainant contracted HIV as a consequence of their sexual interactions with the Appellant. Under section 20 of the Offences against the Person Act 1861, the Appellant faced charges for inflicting grievous bodily harm.

  • During the trial, the Appellant argued that since infection with HIV could be a potential consequence of unprotected sexual intercourse, the Complainants had implicitly consented to the risk.

  • Alternatively, the Appellant asserted that he held an honest, albeit unreasonable, belief that the Complainants had consented to the risk. The judge, in instructing the jury, emphasised upon the fact that for the Complainants' consent to serve as a defense, it had to be informed and willing to consent to the risk of contracting HIV. Notably, the judge opted not to present the issue of reasonable belief to the jury.

  • Despite the Appellant's submissions, he was convicted. On appeal, the accuracy in the law of the judge's direction to the jury regarding the issue of consent was criticised, prompting a review of the legal aspects surrounding the informed and willing consent required for the Appellant's defense.

JUDGEMENT

  • The appeal was rejected. The Appellant could not be convicted if there was informed consent or the possibility of it regarding the risk of transmitting HIV. Concealing HIV-positive status from a sexual partner rendered informed consent impossible. Taking various risks during intercourse did not imply informed consent to the risk of a fatal disease.

  • A Defendant's honest belief in the victim's consent was a defense contingent on valid consent. If consent didn't defend, an honest belief was irrelevant. When a Defendant hid their HIV status, silence contradicted honesty or genuine belief in informed consent. Consequently, in such cases, issues of informed consent and honest belief rarely arose.

  • The judge's instructions had clarified the implications of consensual participation. On the issue of honest belief, no evidence suggested the appellant believed the Complainants consented to the specific risk. The judge's ruling was correct, and the conviction was deemed secure.

COMMENTARY

  • The Appellant knowingly exposed three complainants to HIV through unprotected intercourse without disclosing his HIV-positive status. Charged under section 20 of the Offences against the Person Act 1861, the Appellant claimed the Complainants implicitly consented to the HIV risk or that he held an honest but unreasonable belief in their consent.

  • During the trial, the judge emphasised the need for informed and willing consent, excluding the consideration of reasonable belief. Despite the Appellant's arguments, he was convicted, prompting a review of the judge's guidance on consent during the appeal.

  • The appeal was rejected based on the premise that the Appellant couldn't be convicted if there was informed consent or its potential regarding HIV transmission risk. Concealing HIV status negated informed consent, emphasising the intricate intersection of legal and moral considerations. The discussion highlighted that engaging in various risks during intercourse didn't imply informed consent to a fatal disease risk.

  • The significance of a Defendant's honest belief in the victim's consent as a defense, contingent on valid consent, was explored. Critiques of the judge's direction underscored the importance of accurately conveying legal standards. The judgment affirmed the correctness of the trial judge's rulings, deeming the conviction secure. The case underscores legal challenges in situations involving HIV transmission and consent issues.

ORIGINAL ANALYSIS

  • A man had unprotected sex with three women and didn’t tell them that he was HIV positive. He had infected all of them, but submitted that in agreeing to unprotected sex, they had consented to the risk.

  • Judge ruled that there could be no consent unless it was “informed and willing” and he was convicted.

  • CA supported trial judge and dismissed the appeal. Judge LJ agreed with prosecution that there was a difference between “running a risk” (as in this case) and “consenting to that risk” (as expounded by CA in Dica).

    • Simply because one runs a risk does not mean the person who harms them shouldn’t be punished e.g. if I walk down the street waving wads of cash in the air there is a high probability that someone will steal them, but this does not mean that a crime has not occurred.

    • The distinction is correct: a risk taken with consent is one where the decision is informed and the person understands to what they are agreeing.

    • Simply taking a risk is not informed - they may have believed, as said in court by the plaintiffs, that they had no reason to believe he was HIV positive and, had they been informed, they would not have had unprotected sex with him.

    • It is like dueling: one runs the risk of being killed but this will not stop the killer being convicted of murder.

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Criminal Law Notes
1,072 total pages
662 purchased

Criminal Law notes fully updated for recent exams at Oxford and Cambrid...