Summing up and directing the jury

The summing up in this, as in any criminal case, was critical. It is at this point that the judge explained the law, drew together the evidence that had been presented, indicated the weight that the jury might wish to give to that evidence, suggested the credibility to which they should give the testimony of particular witnesses and explained the relevance and significance of Konzani's failure to testify. The fact that this case explored a relatively new area of legal liability, had provoked significant media interest, and involved issues both of sexual ethics and serious disease meant that the way in which the recorder directed the jury was especially important and had to be handled very carefully. There is no question that he took pains to explain that they needed to reach verdicts on the three counts with which Konzani was charged using their innate common sense and reason, and not influenced by moral sentiment:

Can I just say this, and it is an important matter? In drawing any inference be reasonable, be fair, be logical, use your common sense and your knowledge of the world. The subject matter of this case is a very human matter, isn't it? You will need to get to grips with people as they were behaving and as they were thinking - and that is an important element - some years ago now, so draw inferences that you think to be right and fair and proper but be fair in doing so ...

You twelve people come from different walks of life, different life experiences and most importantly in a case like this you can apply your accumulated wisdom - if you will forgive the word, it is a bit of a pompous one - but do you see what I mean? You apply your experience of life to the questions that arise in this case. Do not shrink from drawing such inference as you might think right to draw but be careful not to jump to conclusions, illogical and unfair ones.

I have said, 'Use your common sense and your knowledge of the world and of people'. Make sure that emotion does not enter into your judgment in this exercise that you must embark upon. There is an old saying that, 'When emotion comes in, sense moves out'. Emotion has its place, of course, but it can mislead judgment. (R:SU p. 5)

There is some irony, perhaps, in the warning that emotion may impact inappropriately on the jury's evaluation of the facts, when - critically - they are being requested to determine in a dispassionate way the impact of emotion on the complainants' judgment. Put another way, their obligation was objectively to determine the presence or otherwise of consent, the existence of which depended on rational thought and whose non-existence could be explained by the effects of irrational passion. This complex contradiction led the recorder to take care when explaining the legal and evidential burden on the prosecution:

the Prosecution must make you sure that at the time of being so infected with the virus the young woman in question, whichever it was, did not willingly consent to the risk of suffering that infection. Note that I use the phrase 'to the risk of suffering that infection' and not merely just to suffering it. That is an important point which [defence counsel] rightly drew to your attention in his speech to you this morning. He put it this way, it is whether she consented to that risk, not consented to being given the disease which is, as he put it graphically, a mile away from the former.

That is right, but note that I use the word 'willingly' in the phrase 'willingly consent' and I did that to highlight that the sort of consent I am talking about means consciously, that is to say thinking about the matter at the time as opposed to either not giving it any thought at all or having a theoretical or general awareness of life's risks. (R:SU pp. 9-10)

It is arguable that, notwithstanding both the painstaking review both of the complainants' evidence and their credibility and the clear and accurate direction as to the inferences the jury were entitled to draw from Konzani's decision not to give evidence, that a conviction was assured. The recorder was especially keen to squash defence counsel's suggestion that the ignorance of the complainants about Konzani's HIV status had no bearing on whether there was consent:

One very significant matter ... would be whether or not the young woman in question knew Mr Konzani was HIV positive at the time and here [defence counsel] was wrong to tell you that 'it is utterly irrelevant' - that is his phrase - that such a young woman would not have had sex with Mr Konzani if she had known he was HIV positive; it is relevant, for if she did know of his infection and in that knowledge had unprotected intercourse with him, one may well think she would have been prepared to run the risk.

Of course, the uncontradicted evidence here in each case is that she did not know he was HIV positive, so although the two things, knowledge on the one hand and consent on the other, are inevitably linked in the way I have just demonstrated, the ultimate question for you is not any knowledge on her part of his infection or the lack of such knowledge on her part but her consent to running the risk of being infected with the HIV virus.

I would add only that although it is a matter entirely for you, you may think that unless she was consciously prepared to take whatever risk of sexually transmitted infection there may be, in other words have deliberately and completely abandoned care for her own safety, it is unlikely she would have consented to a risk of major consequent illness if she was ignorant of his having the virus, but I stress that is a matter for you. (R:SU pp. 10-11)

The defence had sought to argue that the central issue in the case was consent to risk, not to sex, and that such consent could exist in the absence of knowledge about the defendant's HIV status. Although a jury could have concluded, had they been given a more general direction, that there was such consent, it was to all intents and purposes impossible for them to do so after receiving the direction the recorder did give. And it is, I suggest with respect, a confusing and somewhat contradictory direction. Note that the recorder emphasizes that the central question to which the jury must address themselves is consent to the risk of infection (which could, theoretically and in fact exist despite knowing a particular sexual partner's HIV positive status). At the same time there is the suggestion that the complainants' knowledge is both relevant and irrelevant: relevant because its presence might lead one to conclude that there had been consent (even though these are not the facts before the jury), and irrelevant because knowledge is not a necessary precondition for the availability of the defence. Drawing on the reasoning of the Court of Appeal in R v Dica, the recorder, advising properly that it is a matter for the jury to decide, suggests how one might reasonably doubt consent to the risk of infection unless the complainants had deliberately chosen to behave incautiously and if they were ignorant of Konzani's status. The use of two conditionals ('if' and 'unless'), which if met may lead to a particular conclusion will - one suspects - have caused the jury at least some pause for thought. The recorder too appears to recognize the potential difficulty and, having referred back to defence counsel's arguments about consent to risk during health scares and in the context of contact sports, provides further assistance:

You give these arguments such weight as you think appropriate, but I am going to give you this one which is the best help that I can give you. Note the very clear and important distinction between running a risk on the one hand and consenting to run that risk on the other.

You may not be willing to run the risk of falling through the ice on a frozen pond and drowning, you may believe it will support your weight, you may be wrong and go through because it may not be as thick as you believe or even hope. You are running that risk, but you have not consented to it just because everyone knows that such accidents happen.

If, on the other hand, the farmer has put up a sign, 'Danger - thin ice' which you read but think you know better or at least are a good enough skater to whiz across unscathed, then that would be an example of your consenting to run the risk of falling through thin ice. Why? Because it has been drawn to your attention by the farmer's sign. (R:SU pp. 12-13)

One might question the extent to which this clarifies matters. The jury has already been advised that their verdict turns on the presence or absence of consent, not on knowledge per se. The recorder affirms and emphasizes this using the thin ice analogy, but this - it is suggested - adds further complication. First, he suggests that our general understanding of the risks associated with certain activities does not necessarily imply consent to run those risks. Second, he contrasts such situations with those where one actively, consciously and willingly consents to risk because, in advance of taking it, the person with relevant knowledge has warned one about that particular risk. Put another way, the recorder would seem to be indicating that it is only the existence of a warning from the person in a position to give that warning that distinguishes consensual risk-taking (where a defence will be available) from the running of risks (where it will not be). Put bluntly, there is the strongest possible indication that there can be no legally recognized consent without knowledge of risk gained as a consequence of disclosure - the very position he had earlier sought to explain was not the case.

That the jury were somewhat confused is evidenced by a note from one of their number and which was read in court:

My teenage children regularly accept lifts in other people's cars from friends or taxi drivers. They willingly or knowingly consent to the very low risk of being involved in a serious accident.

If the driver was obviously drunk, smelling of alcohol, slurred speech, et cetera, the likelihood of accident would be very much higher and I would expect my children to refuse the lift. If they accepted the lift and were okay I would say they were foolish and lucky; if they regularly accepted such lifts I would say they were irresponsible and very lucky. They were consenting to increased risk of injury or death.

What if the driver was high risk but did not show any outward signs of being so, for example he might be a recreational drug user or an epileptic who has been told by his doctor not to drive or he may have been banned from driving? I could not reasonably expect my children to ask the driver to take a drugs test and to show his driving licence and his medical records. Unless the driver volunteers the information my children are not willingly and knowingly consenting to any increased risks.

In any of the above situations if an accident did lead to serious injury or death I would expect the law to take action but maybe the seriousness of the punishment would reflect the specific circumstances.

In summary, I suggest the HIV positive person who engages in unsafe sex is analogous to the persistently drunken and/or dangerous driver. He might get away with this behaviour many times but eventually he will cause serious harm to some innocent party. The law needs to punish this behaviour as a deterrent to others. (R:SU pp. 48-9)

This note illustrates clearly the confusion provoked by the application of legal principle on these particular facts. In it we can see how complicated the exact relationship between knowledge and common sense is to lay people, and how a common-sense understanding of the world leads to the conclusion that people who consciously take risks may be thought to have consented to them. However, the person with HIV is at the same time identified as deserving a guilty verdict, essentially on the basis of unjustifiable risk-taking. It is a note that provides an excellent example of the way the distinction between liability (Are all the offence elements present? Is there a valid defence?) and culpability (Is the defendant morally blameworthy?) is capable of easy elision in the trier of fact, and - significantly - how the finding of guilt on the evidence presented is capable of being influenced by normative considerations.

No doubt conscious of the significance of the misunderstandings manifest in the note, the recorder reminded the jury that there was in English law no positive obligation for a person to disclose his diagnosed HIV to a sexual partner, that their function was simply to apply the law as he had directed, not on the basis of what they believed the law ought to be. He also refers back to the thin-ice analogy, noting that they 'kindly nod' when reminded of the distinction between running risks and consenting to them. Before concluding, he provides one further image which he hopes will assist them in their deliberations:

I leave you with this acid test which you may find of practical use. If a little bird had whispered in [the particular complainant's] ear as she was about to have unprotected sexual intercourse with Feston Konzani, 'Would you be doing this if you knew he was HIV infected?' and that little bird had gone on to describe what that meant ... would she reply, 'No, I wouldn't' or would she reply,

'It doesn't matter, I'll be all right'?

If you are sure she would say, 'No, I wouldn't', then that would lead you to a guilty verdict. If it is your judgment that she would have said or may have said, 'It doesn't matter', then he is not guilty. (R:SU p. 53)

An acid test indeed, one might think. The jury decided that with such knowledge (which the complainants did not possess, and which seems to be described as determinative of the presence or absence of their consent) there would have been no agreement on their part to unprotected sex with the defendant. The trial lasted two weeks and involved testimony of 16 witnesses. Despite this, and a direction that they should reflect on all the evidence they had heard, the jury returned a unanimous guilty verdict on all counts in less than four hours.

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