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Thursday, 31 July 2008

Australia: Michael Neal not guilty of deliberate HIV transmission

It took three and half days, but following a six-week trial, the case against Michael Neal – which created a political scandal and huge media attention (see below) – has ended with a mixed verdict.

The jury found 49 year-old Neal not guilty of the two counts of deliberately infecting a person with HIV, primarily because they believed his defence that he did not think that he could transmit HIV with an undetectable viral load, but rather engaged in "sick fantasies" about it.

The newspaper reports don't mention it, but it may have also had something to do with phylogenetic analysis not being able to prove that it was Neal, and Neal alone, who could have infected the two complainants who were HIV-positive.

He was, however, found guilty on 15 further counts, including nine of attempting to infect a person with HIV, two of rape, three of reckless conduct endangering a person and one of procuring sex by fraud.

He now faces 25 years or more in prison and will be sentenced in October.

Update: He was sentenced to 18 years and nine months jail with a non-parole period of 13 years (Source: NAPWA).

I have been keeping a file of reports about the trial, but since there have been so many I haven't published them in full. Click on the headlines to read the reports.

I have however, republished today's article from The Age, which summarises the case, and breaks the story of the verdict.

HIV-positive man guilty of attempting to infect partners
Sarah-Jane Collins
August 1, 2008
WHEN Michael John Neal picked up his lover from the doctor on December 9, 2002, he comforted him. The man had been told he was HIV positive, and he was shocked.

"I said, 'I can't understand how I could have returned a positive result', because (Neal) was the only one I'd bare-backed with," the man told the County Court in June.

He claimed that Neal had then said: "It's better to get it from someone you know out of love than a stranger and to not know."

After a police investigation, Neal was arrested and charged with numerous crimes including two counts of intentionally infecting a person with HIV.

The case shone a spotlight on the State Government's approach to monitoring and containing the spread of the HIV virus and ultimately led to the sacking of Victoria's chief health officer.

Yesterday, after a six-week trial, a jury delivered a mixed verdict. It found Neal, 49, of Coburg, not guilty of the two counts of deliberately infecting a person with HIV, but guilty of 15 further counts, including nine of attempting to infect a person with HIV, two of rape, three of reckless conduct endangering a person and one of procuring sex by fraud.

He has also pleaded guilty to 12 additional counts, including producing child pornography, possessing child pornography, indecent acts with a child under 16, trafficking in a drug of dependence and possess a drug of dependence.

During the trial, prosecutor Mark Rochford said Neal had set out to infect as many people as possible with HIV to serve his own needs and fulfil his desire to have unprotected sex.

He said that Neal also told a number of his sexual partners that he wanted to make others HIV positive so that he could increase the amount of people he could have unsafe sex with.

Some of the people he told made complaints to the Department of Health and a file on Neal was opened in 2001.

But by then Neal had already begun attempting to infect his victims with HIV, and visits from State Government officials warning him to practise safe sex made little impression on him.

A series of written warnings from the health department also failed to curb his behaviour.

Between November 2001 and April 7, 2006, the department served Neal with three letters and four orders issued under section 121 of the Health Act. But Neal continued to have unprotected sex.

Incredibly, restrictions the health department had placed on Neal's movements were relaxed after he wrote to the chief health officer, Robert Hall, in 2005 telling him that his viral loads were undetectable and he was not able to pass on HIV.

Then health minister Bronwyn Pike stood down Dr Hall after it emerged he had not acted despite knowing Neal posed a serious risk to public health, and had ignored advice from an expert advisory panel that Neal should be detained under the Health Act.

At the time, Ms Pike said: "It's a lack of judgement that has been displayed over the past 12 months … that has led me to take this action."

But Neal's counsel, George Georgiou, maintained throughout the trial that Neal genuinely did not believe he was able to pass on the HIV virus because of his undetectable viral load — the amount of HIV in the bloodstream.

He said that Neal had not really wanted to infect others and was simply engaging in a "sick fantasy" when he spoke of his "pos pigs" or made comments to sexual partners such as "I've made 75 people pos".

After 3½ days of deliberations the jury returned a mixed verdict, seemingly accepting the defence argument that Neal believed he was no longer infectious.

As the verdict was read out, Neal was impassive, making no comment.

Outside court, Detective Sergeant Eric Harbis said: "There would be a degree of disappointment to some extent, but overall we are very happy with the result. It was a team effort.

"I commend the many victims and witnesses that came forward who had to recount some very private parts of their lives, which they did in the public arena, and should be commended."

Neal, who faces up to 25 years in jail on some counts and was remanded in custody, will appear for a pre-sentence hearing before Judge David Parsons on October 29.

June 19: Court told man bragged about infecting people with HIV (ABC News)
A Melbourne jury has been told it will hear of some bizarre sexual practices, in the trial of a man charged with infecting people with HIV.

June 19: Man accused of spreading HIV 'arranged "conversion" parties' (Herald Sun)

Prosecutor Mark Rochford said Neal arranged "conversion'' parties where some people were not aware they risked being infected. "It was the aim of Neal to infect people with HIV in order to have more people come into the grip of HIV-infected people (and) to engage in unprotected ... sex,'' Mr Rochford said. He said the case involved some bizarre and graphic details but told jurors they would have to put aside their prejudices.

June 23: HIV positive man had unsafe sex at gay romp: court (The Age)

The court heard in May 2003 that Victoria's then chief health officer issued a warning letter to Neal accusing him of knowingly and recklessly spreading HIV. The letter recommended he undertake education and counselling. It also warned he may face further restrictions if his behaviour did not change...

The court heard that in August 2004 Neal was served with an order from the DHS acting chief health officer. The letter stated Neal was likely to transmit HIV, posed a serious risk to public health and had not been successful in acting more responsibly. The order required him to always have safe sex, regardless of whether his partners knew of his HIV status. He was also barred from going to venues where gay men attend for sex and he was ordered to maintain regular contact with DHS staff.

However, Neal became increasingly angry and distressed at the restrictions placed on him, the court was told. In October 2004, he emailed the DHS and withdrew permission for his doctor to discuss his file with the partner notification unit. The next year the DHS amended its order to require Neal to also report daily to staff. Neal then wrote a letter to the DHS telling them to stop interfering in his life and to report their concerns about him to police.

June 24: HIV man 'wanted free Viagra' (Herald Sun)

Michael Neal also told health authorities the conditions they placed on him made him feel like a "prisoner in his own house", the Victorian County Court heard today. Victorian laws required Mr Neal to wear a condom or tell partners of his HIV status. But Mr Neal told Department of Human Services (DHS) workers he could not enjoy sex with condoms and the DHS should pay for him to take Viagra if they wanted him to wear one.

"The client stated he was having trouble maintaining an erection with the use of condoms and if we wanted him to continue having safe sex, then the department should pay for Viagra," DHS nurse Elizabeth Hatch told the court.

June 24: HIV man 'ignored warnings' (The Age)

DESPITE warnings from health officials, an HIV-positive man allegedly continued to engage in unsafe sex, a Melbourne court has been told. The court heard that Michael John Neal had told State Government officers to go to the police if they had complaints about his sexual conduct.

June 24: To Disclose Or Not To Disclose? (

Although prosecutor Mark Rochford claimed the evidence to follow in court today would prove Neal set out to deliberately infect others and not disclose his HIV status, the case raises questions about the responsibility of sexual partners to be responsible for their own sexual health and engage in safe sexual practice, regardless of a person’s ‘status’.
June 25: Ex health boss: HIV man said he was ok (The Australian)

Former Department of Human Services (DHS) chief health officer Robert Hall told the trial of Michael Neal four orders were placed on him from 2004 to 2006 in a bid to control the spread of HIV.

The jury was told an order served on Mr Neal at the end of 2004 stated he was likely to transmit HIV, was a significant risk to public health and had been counselled without success. It banned him from having unsafe sex, attending sex venues and required him to report daily to DHS staff.

But Dr Hall said the condition he report daily was removed after Mr Neal told the DHS he was on HIV medication and the amount of virus in his system was undetectable. Dr Hall agreed with Mr Neal's defence team this amounted to a relaxation of his conditions.
"In terms of his obligation to report, yes," Dr Hall said. "I considered he was engaging in the process."

June 25: Men tells court accused gave him HIV (sic) (The Australian)

One of the men he allegedly infected told the court today he had unprotected sex with Mr Neal twice after meeting him on dating website Gaydar in 2002. In giving evidence, the man, who cannot be named, said he met Mr Neal online using his profile name "Little Mr Dangerous" and they agreed to meet a fortnight later at Mr Neal's Port Melbourne home.

The man said they had unprotected sex and there was no talk about condoms or Mr Neal's HIV status. The man said Mr Neal then politely asked him to leave because his partner was coming home.

He said the pair had unprotected sex a second time after Mr Neal invited him to a party at a nightclub. The man said Mr Neal called him a fortnight later to say he had chlamydia and told him he too should get checked out. The man had some tests which later revealed he was HIV positive and he called Mr Neal and questioned him.

"I was pretty confused," the man said. "I questioned him. I said I can't understand how I returned a positive result because he was the only one I barebacked (had sex without a condom) with. Surely he couldn't be HIV positive - and that's when he said he was."

The man said he asked Mr Neal why he did not tell him he had HIV. "He replied that he thought I knew and that he thought that I was too. That's when he put his hand on my shoulder and said it's better to get it from someone you know and love than from a stranger you do not know," he said.
July 2: Man 'boasted of spreading HIV' (The Australian)

A witness, who cannot be named, told the Victorian County Court today Mr Neal spoke to him about using gay beats to spread HIV. "He said he liked going to beats because he liked to go out and spread the virus to people," he said. The witness said Mr Neal invited him to a sex party he was hosting so he too could have sex with a man he had infected. The witness said he engaged in sexual activity with Neal after they met in 2005 but neither disclosed they were HIV positive.

A second witness who gave evidence today said Mr Neal spoke to him about arranging a "conversion" party. "He told me he was planning to organise a conversion party where the person would have his HIV status changed," he said. He said Mr Neal also told him he had chatted online to a man from Sweden who wanted to come to Australia to be deliberately infected. The witness - who is HIV positive - said he had unprotected sex with Mr Neal after meeting him on gay internet chat site in 2000. He said he assumed Mr Neal was also positive because they did not discuss condoms.

A third witness told the court he had unprotected sex with Mr Neal a number of times but would not have consented if he knew he was HIV positive. The man said at one stage Mr Neal asked him whether he wanted to "be one of his pos pigs". He said he did not know what he meant and on another occasion he questioned Mr Neal about his HIV status following health concerns. He said Mr Neal told him: "You don't need to worry about me mate, you'll never catch anything off me."

The witness said he took Mr Neal at his word and did not seek medical advice. "I was quite relieved, he put my mind at ease," he said.


Paul said...

I haven't heard anything about phylogenetic analysis being a factor in the Neal verdict. My guess is (and, not being a member of the jury it's only a guess) that the prosecution proved that Neal was the source of the infection for the two men who were infected but was unable to prove intent.

That certainly has been the reason that earlier cases in Australia have failed to prove "deliberate transmission" (as against "knowing and reckless transmission") of HIV, so I assume it's the same in this case.

danielreeders said...

Hi Edwin,

Juries in Australia don't give reasons for their decision, so I'm just wondering what's your source for the claim they believed his defence? It is an interesting result, however, because it's hard to imagine a case where the evidence would better support a conviction on that charge - making it seem as though it's unprovable.


Edwin J Bernard said...

The Age article notes that: "After 3½ days of deliberations the jury returned a mixed verdict, seemingly accepting the defence argument that Neal believed he was no longer infectious." That's the source, and it is speculation.

As Paul notes in his comment, proving intent requires a very high burden of proof. I agree, Daniel, that if intent could not be proven in this case, then I'm not sure what kind of evidence would be required to prove intent in any future case.

Daniel said...

To find him guilty of attempt on the deliberate infection charge, the jury must have believed he thought he could infect others. Impossibility defeats a charge of attempt if it's unknown to the accused; if he knows it's impossible he doesn't have the required mens rea. I guess we just have to wait and hope there's an appeal to elicit some more details on the verdict.

kivvygosh said...

He was found guilty of attempting to infect, but not guilty of infecting. The jury believed that he had the intent but they had no scientific way of determining whether it was through his actions that the other men became infection. In other words, they may have been infected coincidentally through some other means.

Doug Pollard said...

It's my understanding (from police sources) that it was impossible to prove that only Neal could have infected the men in question, because they all belonged to a small group of men who frequently had sex with one another in group sex situations, so it was impossible to track the exact source or occasion of any particular infection.

danielreeders said...

@Doug - yes, I understand that was Chris Birch from VIDRL's testimony during the trial.

@kivvygosh - you can't start any sentence with "the jury believed", because juries don't give reasons and thus we have no idea what they believed, and the evidentiary basis is legal, not scientific.

GingerMan said...

Thank you for post all the content on this case. I had read segments elsewhere with gaps in details... the comment pages were wild with speculation and ego-driven.
It helps having all the details... this way it's not about biased against gays, but rather the story of a psychopath. There were SO many ways this guy could have stayed out of trouble, but he basically begged authorities to chase this story.
You can't run around town screaming "fire" and not expect consequence.
If he wasn't jailed, he should have least been committed.

Anonymous said...

Doug Pollard pretty much has it right. The group sex issue made the phylogenetic argument somewhat redundant.
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