A Nigerian man who is married to a Maltese woman has been cleared of knowingly transmitting the HIV virus to three women because the law which made this illegal had not yet come into effect.

He was, however, jailed for four years and six months after he was found guilty of defiling one of the women who was infected with the virus after having sexual relations with him when she was still 17 years old.

In the judgement, the Court of Criminal Appeal, presided by Mr Justice Joseph Galea Debono, heavily criticised the first judgement handed down by the Magistrates’ Court which had found the Nigerian guilty of two charges although these were alternative to each other and although the law had not yet come into effect. He had been jailed for five years.

Moreover, the Court of Criminal Appeal said the judgement contained “unwarranted and absolutely unnecessary errors” … “which are in breach of section 382 of the Criminal Code which spells out the requirements of the judgement of the Court of Magistrates”.

The Appeals Court said that these mistakes – mentioning the wrong sections or regulations of the law – bring about the nullity of the judgement. It therefore declared the judgement null and void but went on to pass its own judgement in terms of another article of the laws.

In his appeal, the Nigerian man, whose name is not being published in order to protect the identity of his wife – who is also infected with HIV – listed seven grounds in his appeal. He complained that in its judgement, the first court had not mentioned the sections of the law for which he was being found guilty, that the offence was not continuous since you can only infect someone once and that the women could have been infected by someone else, among other reasons.

The Court of Criminal Appeal said that the man could not have been found guilty of alternative charges. “In the circumstances, this court has no option left but to declare the judgement of the First Court null,” it said.

The Nigerian man came to Malta to work for a local company and while he was here he had a brief sexual relationship with a middle-aged Maltese woman in summer 2004. Later, the woman felt unwell and medical tests revealed that she was HIV positive. The health authorities managed to trace the man and, after he was subjected to medical tests, was informed that he was HIV positive.

At the end of December that year, the Nigerian started a relationship with a 17-year-old girl. She booked a room at a hotel with a friend and she had sexual encounters with the man. The relationship continued until the minor realised that the Nigerian had been two-timing her with the friend who was present in the hotel room. The man continued his relationship with the latter girl and eventually married her.

In February 2005, the minor girl realised that she was suffering from a condition in her genital area and following medical tests, she was diagnosed as being HIV positive. The medical authorities once again tracked down the man and tested his sexual partner – the minor’s girlfriend – who was also HIV positive.

The Court of Criminal Appeal considered that the sexual encounters took place in the summer of 2004, in December 2004 and in January 2005 when the Legal Notice which specifically mentioned HIV and AIDS was published on 17 May 2005.

With regard to the charge of defilement of the minor girl, the Court of Criminal Appeal said that, as the man himself admits, he had full sexual relations with her during December 2004 and in January 2005 when the girl was still 17 years old. Referring to the Nigerian man’s argument that he did not know she was underage, the court commented: “Clearly, he was more interested in finding an outlet for his sexual appetite that in getting to know his partner before indulging in lewd acts with her.”

The court therefore declared the judgement of the first court null and acquitted him of the charges. It sentenced him to four years and six months in jail for defilement of minor.