In what can only be described as one of the most outrageous and improper exercises of prosecutorial discretion, our client was charged with grievous bodily harm after a complaint to police by a former sexual partner that she had contracted genital herpes from him.
Without seeking expert medical evidence, State Prosecutors filed an indictment and listed the matter for trial, in circumstances where the defence had to secure its own medical evidence which left no doubt that the prosecution could not prove, amongst other elements of the offence, that our client caused the transmission of the STD to the complainant. Considering the defence expert medical evidence, State Prosecutors rather than discontinue the charge sought to file a substitute indictment, alleging multiple counts of sexual penetration without consent as charges in the alternative to the charge of grievous bodily harm. Without disclosing any supplementary statement from the complainant, State Prosecutors alleged that our client had induced the complainant to have sexual relations with him by failing to inform her about his genital herpes, despite there being no duty to so inform her. Furthermore, the complainant never asked our client about whether he had any STD and chose not to take precautions in relation to her own sexual health. Our submission outlining the deficiencies in the prosecution case fell on deaf ears.
It was not until the morning of first day of the 4-day listed trial, that the State presented a discontinuance of the grievous bodily harm charge after conceding, finally, that there was no prima facie case having regard to the expert medical report secured by our firm. The State also withdrew its application to add the alternative sexual offences. The learned trial judge echoed our strongly expressed sentiments about the way this hopeless prosecution had come to existence and the failure of the prosecution to undertake basic and preliminary enquiries as to the transmissibility of genital herpes was such that the prosecution was “doomed to fail”.