Dr. John Richard Middleton Smith

The appellant appealed convictions for aggravated sexual assault arising from sexual intercourse with multiple complainants without disclosure of HIV-positive status.

He argued, through reopening and fresh evidence, that condom use alone should negate the realistic possibility of HIV transmission notwithstanding the absence of a low viral load.

The Court of Appeal held that the proposed evidence was not sufficiently cogent under the fresh evidence framework because it attacked the legal foundations of the governing Supreme Court authority rather than demonstrating a material change in the factual underpinnings relevant to condom effectiveness.

Applying stare decisis and the governing fraud-and-consent analysis in HIV non-disclosure cases, the court declined to alter the existing rule requiring both condom use and a low viral load to negate a realistic possibility of transmission.

The fresh evidence application and the appeal were dismissed, subject to a minor amendment to one count on consent.

Nicholas Goodchild, previously convicted of aggravated sexual assault for non-disclosure of HIV status, applied to reopen his conviction before sentencing to introduce fresh expert evidence.

The proposed evidence from Dr. John Richard Middleton Smith concerned the effectiveness of condoms in preventing HIV transmission, aiming to challenge the trial's finding of a realistic possibility of transmission.

The court applied the fresh evidence test from R. v. Palmer, as amplified by R. v. Reeve, which requires the evidence to be sufficiently cogent to reasonably affect the verdict.

The court found that Dr. Smith's evidence was not substantially new or different from the expert testimony already presented at trial by Dr. Wendy Lee Wobeser, particularly regarding the distinction between population-level effectiveness and individual efficacy of condom use.

Consequently, the court determined the proposed evidence did not meet the high cogency threshold required to reopen the conviction, and the application was dismissed.