371I reject the evidence of Ms Papadopulos-Eleopulos and Dr Turner. I conclude, for the reasons expressed, that they are not qualified to give expert opinions about whether it has been proved that a virus HIV exists. They are not qualified to express opinions on the tests that have been developed to diagnose the virus in humans. They are not qualified to express opinions about whether the virus is sexually transmitted. The opinion evidence of these two witnesses is therefore inadmissible.
372 I find that the respondent’s witnesses are all qualified to give expert opinion evidence in their respective fields. I find that the evidence that HIV exists is compelling. Even assuming that Ms Papadopulos-Eleopulos’ and Dr Turner’s evidence was admissible in a trial, I am satisfied that no jury would conclude that there is any doubt that the virus HIV exists. I consider no jury would be left in any doubt that HIV is the cause of AIDS or that it is sexually transmissible.
373In my view, the probative value of the evidence proposed to be called by the applicant is minimal. The proposed evidence lacks cogency.
374 I am satisfied that no miscarriage of justice has taken place because the evidence now proposed to be adduced was not so adduced at trial.
375 For the reasons I have given, I reject the submission of Mr Borick QC that I should apply the test according to how the case might have been different at trial. The question to be answered is whether the failure of the jury to have heard the evidence might have led to an unjust conviction.
376 For the reasons I have given, I do not consider that the evidence proposed to be called is plausible or cogent. There has been no miscarriage of justice.
377 At the trial, the three complainants gave detailed evidence of their sexual contact with the applicant. Ms C, who has been diagnosed with the virus, gave evidence that her only sexual contact during the relevant time before she was diagnosed as HIV positive, was with the applicant.
378 When the strain of HIV, for which she had tested positive, was compared with the tests from the applicant, the genetic sequence of her HIV positive test had a variance of about 1% from the sequence of the applicant. There was evidence at trial that of all the virus profiles on the database of the SA Institute of Medical and Veterinary Science, the closest profile to that of the applicant was that of Ms C. The closest unrelated sequence to either the applicant or Ms C had a variance of about 4%.
379 The applicant presented with AIDS symptoms. His CD4 count was extremely low and his viral load count was very high. After he was prescribed antiviral medication, his CD4 count increased and his viral load decreased. He exhibited the symptoms that might be seen in a person who has contracted HIV/AIDS. He responded to antiretroviral medication in a manner that is expected and is predictable, according to mainstream experts.
380 For these reasons, I refuse an extension of time in which to grant permission to appeal. If an extension of time for permission to appeal were to be granted, I would refuse permission to appeal.