R v Konzani (Feston)

JurisdictionEngland & Wales
JudgeLord Justice Judge
Judgment Date17 March 2005
Neutral Citation[2005] EWCA Crim 706
Docket NumberCase No:200303166 D4
CourtCourt of Appeal (Criminal Division)
Date17 March 2005
Between:
R
and
Feston Konzani

[2005] EWCA Crim 706

Before:

Lord Justice Judge Deputy Chief Justice of England and Wales

Mr Justice Grigson and His Honour Judge Radford

Case No:200303166 D4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT AT TEESSIDE

His Honour Judge Fox QC and a Jury

T.D. Roberts QC for the appellant

F. Muller QC and I. Skelt for the Crown

Lord Justice Judge

Lord Justice Judge:

1

This is an appeal by Feston Konzani against his conviction on 14th May 2004 in the Crown Court at Teesside, before His Honour Judge Fox QC and a jury, on three counts of inflicting grievous bodily harm on three different women, contrary to s 20 of the Offences Against the Person Act 186On the judge's direction he was acquitted of a further such count involving a fourth woman.

2

He was sentenced to a total of 10 years' imprisonment on count 2, 4 years' imprisonment on count 3, 3 years' imprisonment, and on count 4, 3 years' imprisonment, all the sentences to run consecutively. His application for leave to appeal against sentence was referred to the Full Court.

3

The appellant was born in February 1976. In November 2000, the appellant was informed that he was HIV positive. On that occasion, and on subsequent occasions, he was specifically informed of the risks of passing the infection on to any sexual partners, and its dire consequences. Thereafter he had sexual relationships the three complainants. He did not tell any of them that he was HIV positive, and he repeatedly had unprotected sexual intercourse with them, knowing, that by doing so, he might pass the infection on to them. In consequence, each contracted the HIV virus.

4

The appellant did not give evidence at trial. He called no witnesses. There was no evidence to contradict the clear statements by each complainant that he had not told them of his condition. It was however formally admitted on his behalf that he acted recklessly by having a sexual relationship with the complainants without using a condom every time he had sexual intercourse with them. It was also admitted that he infected them with the HIV virus, thus inflicting grievous bodily harm on them.

5

Notwithstanding their evidence that he withheld vital information about his condition from them, and that each complainant expressly denied that she consented to the risk of catching the HIV virus from him, counsel on his behalf addressed the jury on the basis that by consenting to unprotected sexual intercourse with him, they were impliedly consenting to all the risks associated with sexual intercourse. He argued that as infection with the HIV virus may be one possible consequence of unprotected sexual intercourse, the complainants had consented to the risk of contracting the HIV virus from him. Accordingly he should be acquitted. By their verdicts, the jury found that none of the complainants consented to the risk of contracting the HIV virus.

6

The significant aspect of the appeal relates to the accuracy in law of the judge's direction to the jury on the issue of consent. We must, however, examine the essential facts in a little more detail.

DH

7

The first complainant was DH. She met the appellant in 2001, when she was 15 years old, when she bumped into him as she was walking down the street. He invited her and two friends, aged 14 years, to a party given by his sister. At the party, the appellant told her that he liked her because she was the eldest of the 3 girls.

8

She saw him a week later, and he asked her to become his girlfriend. She was a virgin. She had sexual intercourse with him. She moved into a house with him. Sexual intercourse took place regularly. She did not have sexual intercourse with anyone else. When they had sexual intercourse he did not use a condom, and ejaculated inside her.

9

There was no discussion about the potential risks, and to begin with she was not even worried about the danger of pregnancy. After two or four weeks, she returned home to her mother. She climbed out of a kitchen window and did not return.

10

After her relationship with the appellant, she had two sexual partners. Both were later tested for HIV, and both tested negative. Thereafter she saw the appellant on a couple of occasions, but ran away from him when she did. At Christmas 2001, she had a blood test, and discovered that she was HIV positive. The appellant had never told her that he was HIV positive. When she found out about her condition, she started crying. She wanted to die.

11

She said that at the time of the relationship she knew about the risks of pregnancy, and indeed of contracting a disease, but the risk of catching HIV never entered her mind.

12

We must refer to the transcript of her evidence. She was asked:

"Q. At any time when you were with Feston or after you were with Feston, did he tell you that he was HIV positive?

A. No.

A. Then my doctor came round and told me I was HIV positive.

Q. How did that make you feel?

A. I wanted to die."

13

When cross-examined the following exchanges occurred:

"Q. Did they tell you anything about HIV? Did you know anything about Aids?

A. No.

Q. Either from those lessons at school or from what you have heard on the news?

A. Erm well, they told us about it at school but I didn't really get to grips with what it was about

Q. And were you aware that there is an Aids problem in Africa?

A. Not really, no. …

Q. What did you know about him before you agreed to have sex with him?

A. Not much …

Q. Did you realise you were taking a risk of becoming pregnant.

A. Yeah.

Q. Were you prepared to take that risk?

A. Yeah.

Q. Did you realise you were taking a risk of catching a disease?

A. Yeah.

Q. And were you prepared to take that risk?

A. Yes, I was, yeah."

14

In re-examination she was asked:

"Q. When you were having sex with Feston did you think at any time there was a risk of you catching a serious sexually transmitted disease?

A. No. If I'd have known that I wouldn't have went with him.

Q. You said a little bit about how you feel, having found out that you have HIV.

A. Yeah.

Q. Have you done anything as a result of it?

A. I was self-harming.

Q. You were self-harming. What do you mean by that?

A. I was cutting my arms.

Q. Do you know why you did that?

A. Because it took the anger and pain. I couldn't exactly go down the road and punch Feston."

RW

15

The second complainant was RW. She gave evidence that she was from Kenya. She first met the appellant in December 2002, in church. He told her that he was from Malawi. They talked about the Bible. They planned to meet for a prayer meeting. They became friends. She eventually moved in to live with the appellant, and they became lovers.

16

Sexual intercourse occurred on many occasions, sometimes protected, sometimes not. She said that she was not concerned about having unprotected sex with the appellant because she trusted him. He did not tell her he was HIV positive.

17

Gradually the relationship deteriorated. She became pregnant. They separated. When she went to see the doctor to confirm the positive result of her own home pregnancy test, she was told that she was both pregnant and HIV positive. She was devastated.

18

She was 27 years old, and aware of the Aids problem in Kenya and Malawi. She and the appellant never discussed contraception. Later she gave birth to their child who was HIV negative. She agreed in evidence that she realised that she had taken the risk of catching an infection, including HIV, but said that she had not thought about the risk of having unprotected sex with him at the time. She was not concerned because she trusted him. He did not tell her that he was HIV positive.

19

Again, we must refer to some passages in the transcript of RW's evidence.

"Q. When Feston didn't wear condoms were you concerned about any risks?

A. No.

Q. Why weren't you concerned?

A. I trusted him.

Q. Did Feston tell you he was HIV positive?

A. No."

20

Cross-examined it was put to her that:

"Q. You also realise that by having unprotected sex you risk catching an infection?

A. Yes …

Q. … That too is a risk that you took.

A. Yes.

Q. That risk included the risk of contracting HIV didn't it?

A. Yes, but I didn't think about it at the moment.

Q. That means at the time you had unprotected sex?

A. Yes. …

Q. But there was no discussion about HIV or tests or anything before you had sex?

A. Yes.

Q. You agree that there was no discussion?

A. Yes."

LH

21

The third complainant was LH. She was a voluntary worker who did community work related to Africa. She had a 4 year old son, who suffered a life-threatening condition which was countered by very high levels of hygiene. Before she met the appellant, she and her child's father had both had blood tests. They were HIV negative.

22

She met the appellant through her work in January 2003. She was attracted to him. She told him about her ambition to help orphans in Africa. He told her that HIV was not very common in the part of Africa from which he came. He did not tell her that he was HIV positive. Their friendship developed into a sexual relationship. The first time they had sexual intercourse he used a condom. Afterwards she joked, "I hope you haven't got any disease", to which he replied, "Don't be stupid". She said that she trusted him.

23

As the relationship developed, he stopped using condoms. She said that she did not think that she had a responsibility to ask the appellant whether he had an Aids test. She thought it was his responsibility to tell her. When the relationship came to an end, she took an HIV test which was positive. She was devastated,...

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31 books & journal articles
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    • Journal of Criminal Law, The No. 71-6, December 2007
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    • Journal of Criminal Law, The No. 71-2, April 2007
    • 1 April 2007
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