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.
