R v Parenzee - [2007] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Permission to Appeal)
R v PARENZEE
[2007] SASC 143
Reasons for Decision of The Honourable Justice Sulan
27 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS
APPLICATION FOR PERMISSION TO APPEAL - ENDANGERING LIFE
Applicant had been convicted of three counts of endangering life - basis of convictions was that applicant had unprotected sexual intercourse with three women at a time when he knew he was infected with the virus HIV and had been advised not to have unprotected sexual intercourse with his sexual partners - applicant sought permission to appeal on the ground that there should be a retrial to enable fresh expert evidence to be led - evidence sought to be led was heard during application for permission - whether evidence sought to be led was expert evidence - whether witnesses sought to be called were experts - whether fresh evidence could be led - held, witnesses were not experts - held, evidence was not such that it might have led a jury to acquit - held, there was therefore no basis for a retrial - application for permission to appeal refused.
R v Bonython (1984) 38 SASR 45; R v Reci (1997) 70 SASR 78; Winslett v The Queen (1992) 60 SASR 1, applied.
Commissioner for Government Transport v Adamcik (1961) CLR 292; Frye v United States (1923) 293 F 1013; Gallagher v The Queen (1986) 160 CLR 392; J (1994) 75 A Crim R 522; Mickleberg v The Queen (1989) 167 CLR 259; R v Barker (1988) 34 A Crim R 141; R v McIntee (1985) 38 SASR 432; R v Runjanjic and Kontinnen (1991) 56 SASR 114; Weal v Bottom (1966) 40 ALJR 436, discussed.
Re Petition by Van Beelen (1974) 9 SASR 163, considered.

R v PARENZEE
[2007] SASC 143
Court of Criminal Appeal

SULAN J: On 31 January 2006, Andre Chad Parenzee was convicted of three counts of endangering life. The basis of the convictions was that he had unprotected vaginal sexual intercourse with three women. The prosecution case was that he engaged in unprotected sexual intercourse during a time when he knew that he had the Human Immunodeficiency Virus (“HIV”), the virus that causes AIDS, and had been advised of the risk that the virus could be transmitted if he were to engage in unprotected sexual intercourse. It was the prosecution case that Mr Parenzee knew that the act or acts were likely to endanger the life of each of the women and that he was recklessly indifferent as to whether their lives were endangered.
On 17 February 2006, Mr Parenzee applied for permission to appeal. The Notice of Appeal did not disclose any grounds of appeal and was rejected. A further Notice of Appeal, dated 9 March 2006, was filed; it discloses one ground of appeal, which is that there has been a miscarriage of justice. The Notice of Appeal states:
Grounds of Appeal
There has been a miscarriage of justice.
Particulars
1.     Prior to the trial the defence were not informed of the existence of reputable scientific opinion demonstrating the following facts:
(1)     At present there are cogent scientific arguments that the set of laboratory procedures known as HIV isolation are non specific and thus the existence of HIV has not been proven.
(2)     There is no scientific evidence that AIDS is caused by a unique infectious agent.
(3)     Cross-reactions between HIV-I antigens and antibodies formed against other antigens, may lead to false positive reactions.
(4)     Testing procedures used to diagnose HIV (ELISA and WB) are manifestly unreliable.
(5)     Viral load tests do not measure the number of viral particles and no HIV researcher has been able to correlate the “viral load” with the number of viral particles in plasma.
(6)     There is no proof that CD4 cells are killed by HIV.
(7)     There is no proof that HIV, if it exists, is sexually transmitted.
(8)     If HIV does exist, the risk of it being sexually transmitted is extremely low.
2.     The fact that this information was not before the jury (irrespective of any contrary opinions) means that the accused unfairly lost the opportunity for an acquittal.
3.     If the new information is cogent, the jury would have had to acquit.
4.     The defence was not advised of the existence of the material by the prosecuting authority, if it was aware of it or by any of the prosecution experts, if they were aware of it, or by any of the experts consulted by the defence, if they were aware of it.
In relation to particular 8 above the defence specifically requested any information relevant to this issue but were not informed of the PADIAN research results (see outline of argument Para 28).
I will deal with the question whether to grant an extension of time in due course.
At a directions hearing on 10 March 2006, counsel for the applicant submitted that I should not proceed to sentence the applicant because the material the applicant intended to put before the Court relating to the risks of transmission in heterosexual contact would be relevant to sentencing.
At a further directions hearing on 12 April 2006, the report of Dr Valendar Francis Turner had been received and the prosecution informed that there may be another report upon which the applicant would seek to rely. At that stage, counsel for the Director of Public Prosecutions (“the DPP”) submitted that if the material was to be treated as fresh evidence, the DPP would request that fresh evidence be called. Counsel for the DPP submitted that the statistical material upon which the applicant sought to rely regarding the issue of the risk of contracting HIV from sexual contact was meaningless. However, given that evidence was to be called on the topic counsel agreed that sentencing be held over until evidence had been heard and the application determined. I agreed sentencing should await the outcome of the application, after the evidence had been considered.
By the next directions hearing on 18 May 2006, the prosecution had been provided with the affidavit of Dr Turner, to which I referred earlier, a half-page affidavit of Ms Eleni Papadopulos-Eleopulos and an affidavit of Mr Helman Sabdi Alfonso Parada. The prosecution submitted that this material was wholly inadequate and challenged the expertise of the witnesses proposed to be relied upon by the applicant.
On 9 June 2006, I was advised that further particulars had been sought from the applicant’s legal advisers and that the DPP was in the process of obtaining statements from a number of expert witnesses. At a directions hearing on 19 July 2006, counsel for the DPP advised that various experts’ reports were being obtained.
At a directions hearing on 5 September 2006, I was advised that reports of Professors French, Kaldor, McDonald and Gordon had been provided to the applicant. The DPP indicated that a report of Professor Cooper would also be provided. I was informed that the witnesses for the applicant would be Dr Turner and Ms Papadopulos-Eleopulos. The hearing was listed to commence on 23 October 2006. As the hearing progressed, I was advised by counsel for the DPP that additional evidence would be led from Associate Professor Dax, Dr Dwyer and Professor Gallo.
Fresh evidence generally
The case for the applicant is that, at the time of the trial, there existed a genuine scientific controversy regarding the existence of a virus HIV, the reliability of the tests that purport to diagnose HIV, whether HIV causes AIDS and whether HIV was sexually transmissible, and that the applicant and his advisers were not aware of these areas of controversy.
I will address the nature of the fresh evidence sought to be admitted later in these reasons.
The ultimate purpose of the rules relating to the admission of fresh evidence by appellate courts is the prevention of miscarriages of justice. In R v McIntee,[1] King CJ made the following observations:
The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.[2]
[1] (1985) 38 SASR 432.
[2] R v McIntee (1985) 38 SASR 432, 435.
Similarly, Gibbs CJ in Gallagherv The Queen,[3] stated:
No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.[4]
[3] (1986) 160 CLR 392.
[4] Gallagher v The Queen (1986) 160 CLR 392, 399.
These passages were cited with approval by Duggan J (with whom Legoe and Mohr JJ agreed) in Winslett v The Queen.[5] Similarly, in R v Reci,[6] Doyle CJ cited with approval a passage of the judgment of Gibbs CJ in Gallagher to the same effect, and referred also to the view of the Court in Re Petition by Van Beelen,[7] stating: ‘the decided cases provide “working rules developed for use in the ordinary and general run of cases”, but the ultimate question is whether there has been a miscarriage of justice.’[8]
[5] (1992) 60 SASR 1.
[6] (1997) 70 SASR 78.
[7] (1974) 9 SASR 163, 183.
[8] R v Reci (1997) 70 SASR 78, 92.
Nevertheless, there are principles by which an appellate court is guided in determining whether fresh evidence should be admitted in a particular case. In Winslett,[9] Duggan J set out the principles applicable to the receipt of fresh evidence by an appellate court. These principles have been expressed in different terms in other cases.[10] Duggan J summarised the principles as follows:
1. The appellate court has a responsibility to examine the probative value of the fresh evidence.
2. The principal function of the appellate court is to decide whether a miscarriage of justice has taken place because evidence now available was not led at the trial.
3. The conviction will not usually be set aside if the evidence relied upon could, with reasonable diligence, have been produced by the appellant at the trial. However, this is not a universal and inflexible requirement: the evidence may be so significant in some cases that interference with the verdict will be appropriate in any event.
4. The evidence must have cogency and plausibility as well as relevancy. [Citations omitted].[11]
[9] (1992) 60 SASR 1.
[10] See, eg, Gallagher v The Queen (1986) 160 CLR 392, 395-6 (Gibbs CJ).
[11] Winslett v The Queen (1992) 60 SASR 1, 4.
Duggan J also observed that differing approaches had been taken by members of the High Court in Mickelberg v The Queen[12] and Gallagher as to the test to be applied in deciding whether to set aside a conviction, which Duggan J characterised as the fifth principle. In Mickelberg, Mason CJ stated that the proper question for the appellate court (and the view of four of the five Justices in Gallagher) is:
… whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial[13]
[12] (1989) 167 CLR 259.
[13] (1989) 167 CLR 259, 274.
Deane J also preferred this test. Conversely, Brennan J stated in Mickelberg that:
The formulation which, in my respectful opinion, was settled by this Court in Ratten v The Queen and in Lawless v The Queen, is whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. That was the formulation to which I adhered in Gallagher. The test has sometimes been expressed not in terms of ‘likely’ but in terms of ‘might’ or in terms of ‘significant possibility’. Although I agree with Toohey and Gaudron JJ that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the ‘likely’ formula remains.[14]
[14] (1989) 167 CLR 259, 275.
In Winslett, Duggan J did not expressly prefer one formulation to another, instead emphasising the fundamental principles expressed by King CJ in McIntee and Gibbs CJ in Gallagher. In analysing the facts of that case, however, Duggan J referred to the likely effects of the evidence in question and considered that it would have been likely to have given rise to a reasonable doubt.
In Reci, Doyle CJ considered the test for the introduction of fresh evidence.[15] Doyle CJ preferred the approach of Mason and Deane JJ in Gallagher – the significant possibility test – without deciding whether there was a real difference in that case between the views of Brennan J and Gibbs CJ, Mason and Deane JJ. Doyle CJ also considered that:
… the court is required to consider the impact of the evidence upon the jury at the trial, had it been given, although to do so the court must make a limited assessment of the credibility of the evidence, in the sense explained by Toohey J and Gaudron J.[16]
[15] R v Reci (1997) 70 SASR 78, 93-5.
[16] R v Reci (1997) 70 SASR 78, 94.
In other words, the approach of Doyle CJ was that the appellate court, in determining whether there has been a miscarriage of justice, must consider the effect of the evidence upon the trial jury. In that assessment, it is relevant to consider the credibility of the evidence. The “sense explained by Toohey J and Gaudron J” is:
… that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but not necessary that the court should think it likely that a reasonable jury would believe it [citations omitted].[17]
[17] Mickelberg v The Queen (1989) 167 CLR 259, 301-2.
In accordance with the formulation of Doyle CJ, the five principles expressed by Duggan J in Winslett are not to be regarded as separate considerations; rather, they are interrelated. I consider that the approach of Doyle CJ in Reci is the correct approach to adopt: namely, that the ultimate question is whether there has been a miscarriage of justice and that in determining this question it is necessary to have regard to its effect on the trial jury. In my following reasons, I have applied the test of whether, if the fresh evidence had been given at trial, the jury might have entertained a reasonable doubt about the guilt of the applicant. For the reasons which follow, if the test I have applied is incorrect and the correct test is the ‘likelihood’ or ‘significant possibility’ that the jury would have arrived at a different verdict, that would not lead to a different result. In assessing the effect on the trial jury, it will be necessary in turn to determine whether the evidence is credible, in the sense that a reasonable jury could accept it. This will depend on factors including its relevance, plausibility, cogency and probative value, as set out by Duggan J in Winslett. The availability of the evidence at the original trial is also a matter for consideration in determining whether there has been a miscarriage of justice.
Submissions on fresh evidence
At the commencement of the hearings in the application for permission to appeal, Mr Borick QC, counsel for the applicant, set out the scope of the three propositions he sought to make during the course of the application:
1. “firstly, that viruses are proven to exhibit by a procedure virologists refer to as virus isolation. The presently available evidence does not prove a virus known as HIV has been isolated.”[18]
2.“that the tests used to in effect diagnose HIV do not do that. What they do is that they measure not the virus itself but antibodies.”[19]
3. “no evidence for sexual transmission of HIV can be found even in the best conducted studies published from the United Kingdom, Europe, United States of America and Africa.”[20]
[18] T 2.
[19] T 3.
[20] T 3.
He went on to say:
The defence has not introduced and nor are we concerned with the issue of whether or not HIV causes AIDS. HIV and AIDS, although generally linked in the public mind, are two separate and distinct issues. In this case, what is important is whether there is any scientific evidence whether Mr Parenzee is infected with the unique virus HIV.[21]
[21] T 4.
In closing, Mr Borick QC made the following submissions on the admissibility of fresh evidence:
MR BORICK: I hope I've correctly identified the issue where the jury, in the light of the new material, might have a reasonable doubt about proof of the element of the crime charged.
I think basically when I read my friend's outline overnight and this morning that's the issue for your Honour.
HIS HONOUR: I'm sorry, the issue for me?
MR BORICK: Is whether a jury, in the light of the new material, may have a reasonable doubt about the proof of the elements of the crime charged.
And the second major proposition we have advanced is that the issue of expertise is to be decided according to the relevant legal principles which are well-known to all of us, and that that does not depend on the resolution of the scientific controversy. In other words, I'm submitting to your Honour that you can't go through a process of resolving the scientific controversy and then go to the legal principles. You go to whether they have achieved that by their training study and experience.
That's all I really want to say about that because the principles are clear, and your Honour knows what the issues are. My friend is arguing that they are not experts and we say they are.[22]
[22] T 1422.
He went on to say:
Going back to the first point, it would then be a matter that could be put to a jury.
I think, your Honour, probably we are just looking from a practical point of view as lawyers. If there were to be a retrial then the prosecution would be put on notice that they have to prove that HIV exists and it causes AIDS. Professor McDonald would be called to give his evidence and Professor Gordon would have to be called. Professor McDonald would be cross-examined in much the way he was this morning and that would be before the jury. And if defence counsel were addressing the jury they would say 'Ladies and gentlemen, on the question of HIV causing AIDS that's our case and it's for you, not for his Honour or anybody else, you the jury will decide this'.
Obviously it would have to be put to Professor McDonald in cross-examination what the views of the Perth group were. Depending upon his answers, but I would envisage then that the defence would call the Perth group, they may call others like Duesberg or Mullis, it's hard to look ahead, but at the end of the day in the jury trial the jury would have been made very well aware that there is a controversy, they would be made very well aware of other experts, the prosecution witnesses would say they shouldn't take any notice of the Perth group. Fundamentally that's an issue for the jury not for your Honour. That's why my starting point is whether it could make a difference, the jury deliberating is an important one.[23]
[23] T 1423 – 4.

Mr Borick QC identified some of the points which he would wish to make to the jury in a retrial.[24] In his written outline of argument, he stated: “The issue is whether a jury, in light of the new material may have had a reasonable doubt about proof of the elements of the crime charged.” I have noted above the authorities on the necessary effect of fresh evidence before it can be received by an appellate court.
[24] T 1430.
Two issues arise from the submissions of Mr Borick QC. The first of these is the appropriate test to be applied by the appellate court. For the purpose of clarity, I note that, insofar as counsel’s oral submissions could be taken to imply that the appellate court is to consider how the case might have been presented differently, or how the jury’s deliberations may have differed, in the light of the fresh evidence, I reject that implication. I consider it is not to the point to consider how the trial might have been differently conducted, except insofar as is relevant to the principal issues of the effect on the verdict of the jury and whether there has been a miscarriage of justice.
The second issue is the scope of the applicant’s propositions. Counsel for the DPP, Ms McDonald, submitted that the scope of the evidence proposed to be called at a retrial by counsel for the applicant had changed during the course of the permission to appeal hearings:
My learned friend, at the beginning of this whole hearing, expressly disavowed any reliance upon the proposition that HIV does not cause AIDS. Your Honour might recall that occurred at the time that the respondent's expert reports had started to come in and they spent some time on the issue between the relationship of HIV and AIDS. My learned friend indicated to the court that wasn't a plank of their argument. It surfaced its head during the hearing. It is just not a useful exercise to speculate about what other evidence there might be out there that might be called - witnesses who might be prepared to say that they don't accept that HIV has been proved to cause AIDS.
The evidence before your Honour is, of course, that there are two experts who hold the view that HIV has not been proved to exist and they stand, if you like, on an island of their own, in amongst the other dissidents. I raise that in response to my learned friend's submission this morning, that there might be other evidence presented at another trial. In terms of this hearing, your Honour has heard what the fresh evidence is and it is limited to those two witnesses.
HIS HONOUR: Do they go on to say that if they're wrong about that, then it has not been proved that it causes AIDS?
MS MCDONALD: Yes.
HIS HONOUR: They do?
MS MCDONALD: Eventually they do. There was confusion when Mrs Papadopulos-Eleopulos wouldn't accept as an assumption -
HIS HONOUR: She had some difficulty working from an assumption where she didn't accept the basis.
MS MCDONALD: I took the end product of her evidence to be that that is another prong of their argument and that is one of the points that is raised on the home page of the website.[25]
[25] T 1440 – 1.
I accept the submission of counsel for the DPP that the scope of the applicant’s propositions altered between the opening and closing submissions. In particular, the issue of whether HIV causes AIDS emerged during the hearing, despite having been initially disavowed as an issue by counsel for the applicant.
Ms Papadopulos-Eleopulos’s position was that she would not enter into the debate as to whether HIV caused AIDS because she could not accept the assumption that HIV existed, which was necessary to respond to the question.[26] Although her evidence was confused on this topic, her position appeared to be that the first step to proving that HIV caused AIDS was to prove that HIV exists, and, given she was of the view that HIV had not been proven to exist, it could not be proven to cause AIDS, nor to be sexually transmitted.[27] She did, however, go on to say that even if HIV did exist, there was no evidence that it causes AIDS.[28] Dr Turner did not address the question directly, however, the issue of whether he accepted the “HIV theory of AIDS” did arise indirectly during the course of his evidence.[29]
[26] T 280.
[27] T 280 – 1.
[28] T 282.
[29] T 731 – 2.
Several of the witnesses for the prosecution – in particular, Professor Gallo and Professor McDonald – gave evidence that HIV causes AIDS. Professor McDonald stated that there was, however, some controversy as to the mechanism by which HIV leads to AIDS.[30] Much of Professor McDonald’s evidence in this regard arose when he was recalled to be cross-examined on correspondence between him and Dr Mullis, who was later cited by counsel for the applicant as a potential witness in the event of a retrial. I will deal with the evidence in more detail later in these reasons.
[30] T 1412 – 16.
In determining whether the question whether fresh evidence is to be admissible, it is necessary for the appellate court to apprehend the scope and nature of the evidence sought to be admitted. The change in position of the applicant had the potential to confuse this issue.
The evidence heard during the course of the application was highly technical. In determining the credibility of the evidence and its potential effect on a trial jury, it has been necessary for me to hear the evidence sought to be led at a retrial. These reasons will therefore be limited to an analysis of the evidence which was led during the course of the application and will not extend to speculation about unspecified further evidence which could be led from additional witnesses.
In his closing submissions, counsel for the applicant addressed the question of whether the applicant should have led the evidence in question at trial. He submitted:
On the question of diligence, whether we should have found out about this, I submit it is impossible for anyone to have known that this scientific debate, which has been tucked away in the journals - it is never published anywhere, so far as I'm aware, where the general public could know about it. Everybody knew that HIV existed, that HIV caused AIDS and that was it. There is no way that any lawyer could have known about this, unless they were told by the experts that were giving assistance to the court or giving assistance to the defence. Those that I spoke to didn't tell me anything about the controversy and, certainly none of the witnesses - Professor Gordon or Professor McDonald - didn't mention it to the court. They didn't mention it to the court because they, presumably, took the view that it was so way out, they didn't believe it. There is perhaps an argument that they should have. There is no way that any lawyer, in these circumstances, could have found out about the argument that is now raised. In my submission, your Honour should grant leave.[31]
[31] T 1439 – 40.
The question of whether the fresh evidence sought to be led could have been obtained, with reasonable diligence, at trial, is but one consideration that is relevant. I accept that, given the fact that the views expressed by Dr Turner and Ms Papadopulos-Eleopulos are outside the scientific mainstream and given that their views have not been widely expressed in either mainstream or scientific publications, it would have been extremely difficult for counsel to be aware of the existence of the opinions of Dr Turner and Ms Papadopulos-Eleopulos at the time of trial. Of far greater significance in the present case is the question of the effect of the admission of the fresh evidence on the verdict of the jury and the associated consideration of its credibility. I will address these questions as I consider the evidence led.
What is HIV/AIDS - terminology
HIV is an acronym for human immunodeficiency virus (HTLV-III).
According to mainstream scientific opinion, HIV is a retrovirus. In the most general terms, a virus is a particle (minute infectious agent) characterised by the ability to replicate only within living host cells. The general principle of viral replication is that the virus binds to its target cell, either killing the cell, causing disease inside the cell or taking over the cell machinery to produce the virus that leaves that cell to infect other cells. Dr Dwyer, the Senior Medical Virologist at Westmead Hospital in Sydney, explained:
… With a virus such as HIV there are unique features and HIV has got some very elegant virologic features.
…
All viruses use receptors to hit the target. The genetic material of the virus goes into the host cell. In the case of HIV it’s an RNA virus. It undergoes an interesting mechanism where it is reverse transcribed to DNA which is the opposite of what we are all taught in sort of high school biology where you go from DNA to RNA to protein so here you have this reverse step. That DNA is then transported into the nucleus of the cell and that DNA then integrates into the host cell genetic material or the genome of the host cell where it then sits. There’s some little bits and pieces that might hang outside the genome but, for all intents and purposes, that’s what happens. So that virus is an integrated part of the cellular genetic material Then when that cell is sort of stimulated, for whatever reason – it is exposed to another infection or something like that – it can turn on virus production from the genetic material. You then get the process of transcription to RNA, which then goes out into the cytoplasm of the cell. The RNA produces proteins and those proteins are gathered together underneath the cell membrane and eventually bud out to go off as a free virus to go and infect other cells. All of this is typical of viral infections. It is just that retroviruses and HIV have few very interesting unique features and because they are reasonably unique they become drug targets. If you have targets that target the reverse transcriptase, that is very good because that then works on the HIV, not other viruses that might be present or ordinary cells that might be okay. Similarly, the integration, where the virus inserts itself into the host genetic material, is also a target. There are numerous targets in the life cycle for anti-viral drugs, or even vaccines for that matter, that’s why you need to understand the sort of picture. This is not unique to HIV. The other retroviruses, which HIV is one, and there are plenty of others – animal and human – have similar but slightly different replicative cycles.[32]
[32] T 950 – 1.
Viruses are able to reproduce with genetic continuity and the possibility of mutation. The particle, or virion, consists of nucleic acid (the nucleoid), DNA or RNA (but not both) and a protein shell containing the nucleic acid, which may be multi-layered.
For many years scientific researchers held the view that human cells contain DNA (deoxyribonucleic acid) which can form RNA (ribonucleic acid). That is, genetic information flowed from DNA to RNA.
In 1970, two scientists, Howard Tenin and David Baltimore, discovered an enzyme (catalyst), referred to as reverse transcriptase, by which genetic information could flow in the reverse direction from RNA to DNA. This occurs in viruses referred to as retroviruses.[33]
[33] Exhibit P90, David O White and Frank J Fenner, Medical Virology (4^th ed, 1994); Dorland’s Illustrated Medical Dictionary (30^th ed, 2003).
The genome is the full set of genes contained in a nucleic acid molecule (DNA or RNA). The gene is a segment of the nucleic acid that contains all the information required for synthesis of a protein product. It includes both coding and non-coding sequences.
In 1980, Professor Robert Gallo, a researcher in the United States of America, and his colleagues described the first human retrovirus, the cause of a form of adult T-cell leukaemia. I will return to the work of Professor Gallo later in these reasons.
According to mainstream scientific opinion, acquired immuno deficiency syndrome (AIDS) is a condition which is caused by HIV. Those persons who have been diagnosed as being infected with HIV, if untreated, will eventually develop certain conditions which are considered as AIDS-defining diseases from which they will eventually, if untreated, die. The effect of HIV, according to mainstream medical scientists throughout the world, including those who were called by the respondent, is that a person who is infected with the virus HIV will eventually contract one or other of these AIDS-defining diseases as a consequence of their immune system becoming depleted to the point that they have inadequate resistance to fight the disease.
HIV is said to attack the body’s immune system, with the result that the patient contracts diseases which, in non-HIV patients, would not normally occur. If such diseases do occur in non-HIV patients, the immune system in most instances is able to resist the development of the condition, such that it would not usually be fatal.
The Witnesses
During the application, the witnesses called on behalf of the applicant were Eleni Papadopulos-Eleopulos and Valendar Francis Turner. The witnesses called on behalf of the respondent were David Albert Cooper, Martyn Andrew Haydon French, Elizabeth Mara Dax, Dominic Edmund Dwyer, David Llewellyn Gordon, John Martin Kaldor, Robert Charles Gallo, and Peter James McDonald.
Witnesses called as experts by the applicant
In his opening submissions, counsel for the applicant explained Dr Turner’s and Ms Papadopulos-Eleopulos’ qualifications and proposed subject areas of evidence as follows:
The two witnesses to be called by the defence are Eleni Papadopulos-Eleopulos - we will refer to her as Mrs Eleopulos - and Dr Valendar Turner.
Mrs Eleopulos is a physicist. She is trained in the most basic of physical sciences. In round terms, that is physics, science, and the most important of all, mathematics. That science underpins biology. In turn, biology underpins virology. It follows that manner and way in which the prosecution witnesses claim expertise is the same manner and way in which the defence witnesses claim expertise - that is, an understanding of the basic science involved and an understanding of the basic principles, research and experience.
Both the defence witnesses have been involved in the study of this issue since 1983, virtually 25 years. Your Honour has seen the fact that they have had a number of papers published but also the fact that a number of their papers were not published for reasons which will be explained to you.[34]
[34] T 4.
Counsel went on to say:
Just briefly, Montagnier, in 1983, discovered HIV. Our witnesses will be viewing evidence, in this case through Mrs Eleopulos, explaining to you the experiments that he conducted and then to tell you what is wrong with it or the problems with it.
Our case will be that Montagnier probably conducted the best experiments that have yet taken place and we will challenge the type of testing which now takes place, but in the end result, it is obviously necessary for the court to understand what Montagnier did before we can move forward to the issue of isolation. You will see from the 1997 interview that Montagnier himself said 'We did not purify', meaning 'We did not isolate the virus'.[35]
[35] T 7.
Each witness called by the DPP purported to have expertise only in a limited field – for example, epidemiology, or molecular virology – and gave evidence only in that area. Several of the respondent’s witnesses gave answers during the course of their testimony in which they stated that a particular question was outside their area of expertise, and stated which of the respondent’s other witnesses would be best qualified to answer. I will address the evidence of the respondent’s witnesses in greater detail later in these reasons.
In contrast, counsel for the applicant identified no particular areas of knowledge on which Ms Papadopulos-Eleopulos and Dr Turner purported to be experts. Counsel for the applicant described the evidence to be given by the applicant’s witnesses in his opening submissions:
My first witness will be Mrs Eleopulos. Your Honour has read her qualifications and I won't go through them now. She will expand upon that a little in her evidence and in particular she will tell you of how her interest first started, which is when she was doing work in cancer research in about the time of Montagnier's discovery. She has done a huge amount of work, as your Honour has seen, since then on this issue. She will tell you of a meeting that she had with Luc Montagnier in Amsterdam in - I think it was the 1980s, late 1980s, and her description of that interview is a little important because it encapsulates what is the central issue in this case. I have explained to your Honour she will be dealing with the question of proof of existence of a retrovirus and isolation with the Montagnier test and some other technical matters which your Honour has seen referred to.
Dr Valender Turner will then deal with the antibody test, and his evidence will conclude with the proposition that the tests have not been successfully proven to be capable of determining HIV infection or transmission, and it is impossible to say how many of any people who are said to be HIV-positive are infected with and HIV retrovirus.
Mrs Eleopulos will then deal with the question of sexual transmission and she will review the various studies, the studies of a group of prostitutes in 1985, an Australian study known as Philpot over in Sydney, three European study groups, and from 1989 to 1994 one of which involved a large number of United States servicemen who had been serving in Germany and arrived back and then testing occurred with their partners in the United States, and that is a significant one in understanding the way in which these tests have been done.[36]
[36] T 8 – 9.
The evidence of the two witnesses for the applicant, as is apparent from the statements of counsel in his opening, covered only a limited number of “topics”; namely, the existence of the virus, the accuracy of antibody testing and the question of sexual transmission. However, within these “topics”, the witnesses gave evidence pertaining to a wide range of scientific disciplines. One significant feature of the evidence of the applicant’s witnesses was that neither Ms Papadopulos-Eleopulos nor Dr Turner claimed to have practical experience or qualifications in any of the particular scientific disciplines to which their evidence pertained. I will say more about this later in my reasons.
Another significant feature of the evidence led from the applicant’s witnesses was their failure to provide an alternative theory to explain the observations that led to the discovery of HIV/AIDS. Rather, their evidence sought to demonstrate that the HIV had not been proven to exist by critiquing the work of others. As such, the applicant’s witnesses did not criticise the conduct of HIV research on the basis that it conflicted with their own research, experiences or observations. Instead, their evidence was in the form of a critique, in which they identified perceived flaws in the scientific process and research findings that had led the mainstream scientific community to accept the existence of HIV.
These two features I have identified complicate the question of expertise. The evidence given by the two witnesses for the applicant was essentially a critique of the work of others, based upon what those witnesses considered to be general scientific principles and the necessary scientific approach to research. Before I address in greater detail the question of the expertise of each of the applicant’s witnesses, I will consider the principles to be applied to expert evidence.
Expert evidence generally
The importance of determining whether a witness is an expert in a particular field of knowledge was explained by King CJ in R v Bonython:[37]
The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. But when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinion, however unconvincing it might appear to be, subject always, of course, in a criminal trial to the discretion to exclude evidence whose prejudicial effect is disproportionate to its probative value. The weight to be attached to his opinion is a question for the jury.[38] [Citations omitted]
[37] (1984) 38 SASR 45.
[38] R v Bonython (1984) 38 SASR 45, 46.

King CJ therefore explained the process by which the opinion evidence of an expert may be admitted:
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.[39]
[39] R v Bonython (1984) 38 SASR 45, 46 – 7.
The five principles governing the admission of expert evidence have been expressed slightly differently by Freckleton and Selby in the text Expert Evidence: Law, Practice, Procedure and Advocacy:[40]
1.The “expertise rule”: does the witness have knowledge and experience sufficient to entitle him or her to be held out as an expert who can assist the court?
2. The “common knowledge rule”: is the information sought to be elicited from the expert really something upon which the tribunal needs the help of any third party or can the tribunal rely upon its general knowledge and common sense?
3.The “area of expertise rule”: is the claimed knowledge and expertise sufficiently recognised as credible by others capable of evaluating its theoretical and experiential foundations?
4. The “ultimate issue rule”: is the expert’s contribution going to have the effect of supplanting the function of the tribunal to decide the issue before the court? If so, it is likely to be rejected.
5.The “basis rule”: to what extent can an expert’s opinion be based upon matters not directly within the expert’s own observations? Such reliance on material that cannot be directly evaluated by the court falls foul of a fundamental principle of evidence.[41]
[40] 2^nd ed, 2002.
[41] Freckleton and Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2^nd ed, 2002) 2.
Rule 1 corresponds to the second part of King CJ’s test and rules 2 and 3 correspond to the first part of King CJ’s test. The final two rules are, as Freckleton and Selby imply in rule 5, rules that in substance are applicable to all evidence, expressed in terms relevant to expert evidence.
Is the evidence of the applicant’s witnesses opinion evidence?
The first step in assessing the admissibility of the evidence of the witnesses heard during the course of the application, therefore, is to consider whether the evidence is the opinion of the witness, or matters of observation to those witness. It is only if the evidence sought to be admitted is the witnesses’ opinion that it is necessary to consider the test identified by King CJ in the second passage recounted above. I note that in this section, I will address only the evidence of the witnesses for the applicant. I will address the admissibility of the evidence of the respondent’s witnesses later in these reasons.
Barwick CJ in Weal v Bottom[42] emphasised that evidence given by a witness as to their own experience and observations, perhaps acquired over a long period of time, “is not the expression of an opinion nor is he strictly within the category of an expert, though there is a tendency to refer to such evidence compendiously as expert evidence”.[43] An example of the distinction that must be drawn may be seen in the case of R v Barker.[44] In that case, the question for determination was whether evidence given by a police officer as to the use of certain appliances in the consumption of Indian hemp should have been admitted. The evidence was treated by the trial Judge as opinion evidence given by an expert. However, King CJ, with whom the other members of the Court agreed, did not regard the evidence as opinion evidence, as it pertained to the officer’s “actual observations and experiences”. King CJ stated that this evidence was not opinion evidence, but factual evidence. He considered that the trial Judge’s reference to the evidence as opinion evidence given by an expert was an example of the tendency described by Barwick CJ.[45]
[42] (1966) 40 ALJR 436.
[43] Weal v Bottom (1966) 40 ALJR 436, 438-9.
[44] (1988) 34 A Crim R 141.
[45] R v Barker (1988) 34 A Crim R 141, 142-3.
I have noted above the features of the evidence of the applicant’s witnesses which complicate the assessment of its admissibility. However, I consider that it is clear that the evidence led from the applicant’s witnesses is opinion evidence. The witnesses were asked about their practical experiences and observations only briefly, and predominantly for the purpose of leading evidence relevant to the question whether they had the necessary credentials to qualify as experts. On the contrary, the evidence led from the applicant’s witnesses was their views on the techniques used in research conducted by others and the validity of conclusions drawn by others. They explained the literature on HIV by reference to their own understanding of scientific principles and the scientific process.
I consider that this is clearly opinion evidence. Consequently, this evidence is inadmissible unless it is admissible as expert evidence. It is therefore necessary to consider the other aspects of the test expounded by King CJ in Bonython to determine whether the evidence can be admitted as an exception to the general rule.
Is the subject matter of the opinion within the class of subjects upon which expert testimony is permissible?
This part of the test has two aspects, described by Freckleton and Selby as the “common knowledge” and “area of expertise” aspects.
I turn first to the question of whether the subject matter is such that the court requires the assistance of an expert in order to form a sound judgment. The issues arising during this application were all of a scientific or technical nature. The issues gave rise to complex questions of immunology, micro virology and epidemiology, to name but three of the relevant disciplines. I consider that the subject matter is of a nature that expert testimony is of assistance to the Court and therefore permissible.
The second question that must be asked is whether the evidence sought to be led is credible, in the sense that it is accepted by those who are able to evaluate its basis, or that it is “sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience”.[46]
[46] R v Bonython (1984) 38 SASR 45, 47.
This second aspect has been the subject of differing judicial opinion. One often-cited explanation of the test is that contained in Frye v United States:[47]
Just when a principle crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
[47] (1923) 293 F 1013, 1014.
The test proposed in Frye therefore includes the concept that not only must there be an organised body of knowledge, but that it must be reliable. Further, it also necessitates the consideration of whether the particular opinion of the witness whose evidence is sought to be led is sufficiently related to the general body of knowledge in the field. This is in accordance with King CJ’s posing of the question in Bonython: “whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience”[48] (emphasis added).
[48] R v Bonython (1984) 38 SASR 45, 47.
King CJ further developed this notion in R v Runjanjic and Kontinnen,[49] a case dealing with the admissibility of psychological evidence relating to battered women’s syndrome:
An essential prerequisite to the admission of expert evidence as to the battered woman syndrome is that it be accepted by experts competent in the field of psychology or psychiatry as a scientifically established facet of psychology. This must be established by appropriate evidence.
[49] (1991) 56 SASR 114.
King CJ cited in support of his approach several cases from the United States in which the general recognition and acceptance of battered women’s syndrome had been a factor in admitting evidence of the syndrome.
Conversely, the Victorian Court of Criminal Appeal in J[50] took a different approach:
Provided that the judge is satisfied that there is a field of expert knowledge to which recourse may be had, it is no objection to the reception of the evidence of an expert within that field that the views which he puts forward do not command general acceptance by other experts in the field [citations omitted].
[50] (1994) 75 A Crim R 522, 535.
It is common ground between the applicant and the respondent that the opinions proffered by the applicant’s witnesses are well outside the scientific mainstream and are not accepted by the general scientific community. The test to be adopted is therefore critical: if acceptance of a point of view by the general community of experts competent in the field is necessary, as indicated by King CJ, then the evidence is inadmissible.
However, the divergent opinions developed in the context of battered women’s syndrome are not completely analogous with the dispute between the witnesses in this application. In those cases, the subject of the evidence in question was an emerging field of knowledge, and so the question was not, as it is here, whether to accept a dissident opinion, but whether to accept an emerging theory. The dispute was whether the knowledge had passed the theoretical stage to be established in the field.
I note at this point the approach of the High Court in Commissioner for Government Transport v Adamcik.[51] In that case, a tram conductor suffered an injury as a result of an accident between a lorry and a tram. Soon after, he developed leukaemia and ultimately died. His widow brought an action for compensation, claiming that the accident had caused the leukaemia. During the course of the trial, a doctor was called to give evidence pertaining to his theory that leukaemia could be caused by emotional disturbance. The doctor conceded that at that time, he was the only proponent of that view.
[51] (1961) 106 CLR 292.
Windeyer J (with whom Kitto J agreed) drew attention to the “improbable” nature of the witness’ assertions (Menzies J drew attention in his judgment to the deficiencies in the theory exposed during cross-examination) before going on to say:
But, however far-fetched some of his statements may seem, however much his theory may be criticized as unproved, however much it is out of line with orthodox opinion, it would be a bold court that could say that he was not qualified to express an opinion on medical matters and that the jury should have been told that, as a matter of law, they must disregard his opinion. The learned trial judge did in effect advise them to treat it with scepticism.
…
The case is not one in which a witness, posing as an expert, made assertions that are contrary to proved scientific facts or to the known phenomena of nature, thus exposing his ignorance of the learning he professed. To liken the doctor’s statements, as counsel did, to the assertion of an eccentric person that the earth is flat is, even for argumentative purposes, mistaken. If there were any value at all in such a comparison – and there really is not – Doctor Haines would, no doubt, answer that he should be likened rather to those who first denied that the earth is flat.[52]
[52] Commission for Government Transport v Adamcik (1961) 106 CLR 292, 306.
Menzies J drew attention to the fact that the witness was a “practising specialist physician with high qualifications and a hospital appointment”, and went on to say:
Had this witness said that in his opinion there was no relation between the deceased’s injuries and the leukaemia which brought about his death – as did other doctors who qualified as experts by giving evidence of the same kind of qualifications as those Dr Haines possessed – there could hardly have been a challenge to the admissibility of his evidence. It is only because his opinion was one that medical science seemingly does not accept as reliable that it is contended he lacked the qualifications necessary for expressing it; but the giving of correct expert evidence cannot be treated as a qualification necessary for giving expert evidence.[53]
[53] Commission for Government Transport v Adamcik (1961) 106 CLR 292, 302 – 3.
I do not consider the case of Adamcik is perfectly analogous with the present case. It is clear from the reasons that understanding of leukaemia was at that time limited, and the witness was proposing a theory which was, whilst not accepted, not contrary to a well-developed body of knowledge. Conversely, there was evidence during the course of this application that HIV is an extremely well understood virus, and that the issues raised by the applicant’s witnesses were not the subjects of legitimate scientific controversy. Further, whereas the witness in Adamcik was proposing a new theory, the applicant’s witnesses in this case are seeking to discredit a well-established theory. The reasoning of Windeyer J in particular makes these distinctions and their effect clear. One might also argue that the extent and depth of knowledge of HIV is such that the applicant’s witnesses are in the position of the person who claims the earth is flat in the analogy drawn by Windeyer J, and have exposed their ignorance of the subject on which they propose to be experts.
However, I find persuasive the line of reasoning adopted by the High Court in Adamcik that ultimately, the level of acceptance of a witness’ evidence should not be determinative of the question whether that witness is qualified to give expert evidence. This is so even where, as in Adamcik, the evidence is far-fetched or implausible. However, those considerations are highly relevant to the weight to be given to the evidence.
I note that the level of acceptance of a witness’ testimony, and its plausibility, do have further significance in the appellate context. If a witness’ testimony is implausible, or if it is contrary to the accepted understanding of the community of experts in the relevant field, this will bear on the appellate court’s assessment of the likely effect of that evidence on a jury. This is, therefore, of very great significance to considering whether that expert evidence can be admitted as fresh evidence.
In my view, the most significant aspect of the admissibility of the evidence of the applicant’s witnesses is whether they are qualified to give expert evidence. I turn now to that question.
Purported field of expertise of Ms Papadopulos-Eleopulos
Counsel for the applicant sought to establish the expertise of Ms Papadopulos-Eleopulos by first leading evidence of her study and work experience:
Q. You have a degree in nuclear physics from the University of Buchuresti in Romania.
A. Yes.
Q. Were you born in Romania.
A. No, I was born in Greece.
Q. And what took you to the Bucharest.
A. I went to study there because in Greece there was no faculty of nuclear physics.
Q. Could you outline what is involved in obtaining a degree in nuclear physics. What is nuclear physics.
A. Nuclear physics is studying the most basic composition of matter and it involves the then explanation of how matter is not only the composition but what is the fraction of matter. And it is the most basic of sciences. It tries to explain physics and 'physician' originates from the same Greek word and they are really - they are the scientists who study nature. 'Physics' in Greek is 'nature'. So, that is what physics does, it studies nature.
Q. I obtained the degree in 1960.
Q. And following graduation, you migrated to Australia.
A. Yes.
Q. And in 1996 or thereabouts, you worked as a laboratory attendant in the Department of Public Health and during this time you studied English.
A. Yes, I didn't know any English. I studied other languages in Romania but not English. So when I came to Australia I studied English.
Q. So since the early 1970s you have engaged in early biological research.
A. Yes.
Q. Would you in your own words explain to his Honour what research projects you were involved in.
A. Really when I start working, I initially as I said I was working as a laboratory attendant and then after a few years after I learn English I was in the position of as a physicist and initially it involved to do a lot of routine work in the Royal Perth Hospital, then, the department of medical physics where we were studying and treating patients with cancer and other diseases. So, I was coming in contact with patients and I was doing a number of routine works of routine tests with patients. In about mid 1970s, a Dr Holt in Perth with the then premier, they bought a machine which was made by a physicist in Germany to treat cancer and I was asked to evaluate the physics part of the machine. But since the machine involved treating cancer patients and I knew nothing about cancer at that stage or biology for that matter, I thought if I studied two system and I know nothing about one and no matter how much I know about the other I wouldn't be able to come to any conclusion. So then I taught myself biology and that's how my interest in biology started and by the end of 1970 I put forward a theory of cancer and which was published in a small journal, an abstract of it, and then in 1982 was published in one of the most prestigious journals in biological research called the Journal of Theoretical Biology with good reviews.[54]
[54] T 13 – 14.
She said:
And then I come with a theory when doing this, I came with a theory of normal biological function. So, it was cell – a theory of cellar function but the course was – it was not cancer it involved the theory, make prediction about not only about cancer but other basic or other diseases, chronic diseases for example like cardio vascular diseases, diabetes and made prediction about it. The prediction about cardiovascular diseases was proven in other departments with the help with the professor of neurosurgery and these papers were published, again, in the journal but at that time AIDS appeared ...[55]
[55] T 15.
Ms Papadopulos-Eleopulos referred to a period in about 1983 when two scientists, Professor Luc Montagnier and Professor Robert Gallo, claimed to have discovered the virus HIV. She said the two were conducting cancer research. It became known that young men on the west coast of America and, in particular, in San Francisco, were becoming ill. She said that the two main diseases at that time with which these men were diagnosed were Pneumocystis carinii (a lung disease) and Kaposi’s sarcoma (a malignancy of the skin). She said that she was involved at the same time with cancer research. It is not clear what research she was conducting at the time.

Montagnier and Gallo developed the theory that the illnesses observed in these men were common to those who were infected with the HIV virus. Ms Papadopulos-Eleopulos doubted that the diseases were caused by a virus.
Ms Papadopulos-Eleopulos gave evidence about a brief conversation she had with Montagnier in Amsterdam in 1992, and stated that prior to that conversation she had sent him some of her papers.[56] Counsel for the DPP objected to the evidence regarding the conversation on the basis that it was hearsay; however, counsel for the applicant stated that the evidence was led merely to establish that Ms Papadopulos-Eleopulos had a peer relationship with Montagnier.[57]
[56] T 16 – 19.
[57] T 18.
Ms Papadopulos-Eleopulos has promoted her view that it has not been proved that the HIV virus exists or that it is linked to Acquired Immunodeficiency Syndrome (AIDS). Nor does the research establish that the virus is sexually transmissible.
Ms Papadopulos-Eleopulos questions the “HIV theory of AIDS”, which is the view that HIV causes AIDS. She questions whether it has been proved that HIV exists as a unique virus. She questions the view that the HIV genome originates in a unique exogenously acquired infectious retroviral particle. Her view is that it has not been proved that HIV is infectious, either in blood, blood products or by sexual intercourse. Her opinion is that mother to child transmission of the HIV virus has not been established. She questions whether antiretroviral drugs have any effect in controlling or suppressing the progression of AIDS.
Ms Papadopulos-Eleopulos has no formal qualifications in medicine, biology, virology, immunology, epidemiology or any other medical disciplines. She has never treated or been directly involved in clinical trials of any kind relating to any disease. Her duties at the Royal Perth Hospital are to test people for sensitivity to ultraviolet radiation.
Ms Papadopulos-Eleopulos professes to have expertise because she has studied HIV and AIDS for 25 years and she has published papers on the subject. Counsel for the applicant submits that her degree in nuclear physics enables her to give expert opinion on the subject of the discovery of a virus and on the various tests that have been developed to diagnose HIV. The submission is that she is trained in physics, science and mathematics. Counsel submits that her qualifications underpin biology which underpins virology.
There is no evidence that the propositions advanced are valid. I consider that her qualifications do not provide her with the academic study required to give opinions on medical and scientific matters unrelated to nuclear physics.
Ms Papadopulos-Eleopulos claims that she conducts research in the area of HIV/AIDS in her private time. It became clear that, when she spoke about research, she meant reading various medical papers about the research of others. Her experience with the HIV virus and with AIDS is limited to reading and critiquing the work of researchers involved in various studies. She purports to have expertise to speak on the subject of virology, epidemiology, electron microscopy, biology and immunology. She has no practical experience in any of these areas. She has no formal qualifications in these disciplines.
It became clear during her evidence that much of her criticisms related to research in the 1980s and to papers published up to about the mid-1990s. She has not read or she has chosen to ignore an enormous volume of recently published material on the diagnosis and treatment of HIV/AIDS. She has been selective in the material upon which she relies. I will deal with that in more detail and by example later in these reasons.
Ms Papadopulos-Eleopulos states that she has been the author or co-author of a number of papers which purport to support her theories. A significant number of publications to which Ms Papadopulos-Eleopulos has been a contributor have been rejected by reputable scientific journals. In response to the suggestion that her articles have not been accepted, she claims that the editors were required to reject her articles because those who peer review the articles are members of the mainstream scientific community who support the mainstream view that HIV is a virus which is the cause of AIDS. I reject that explanation. Reputable journals will only publish material which has been peer reviewed and from which it can be demonstrated that recognised scientific techniques have been followed. Opinions which question scientific conclusions, if adequately researched and peer reviewed, will be accepted for publication.
Ms Papadopulos-Eleopulos holds strong views about the phenomena of HIV which has been the subject of much research and writings. She believes that the HIV virus has never been isolated. She believes that those who are diagnosed with the HIV virus have not been proved to suffer from a virus. She also holds the view that the diseases from which HIV positive persons suffer are not due to the virus. She has expressed the opinion that the virus has not been proved to be sexually transmissible or transmissible through blood transfusions or from a mother to a child.
Ms Papadopulos-Eleopulos’ evidence-in-chief was presented in an unusual way. She gave her evidence with the assistance of a slide presentation. The slide presentation consisted predominantly of quotations or her interpretation of research papers of others. The evidence was not presented as opinion evidence in the traditional manner. During her evidence-in-chief much of the evidence was disjointed and difficult to understand. The research papers upon which she relied were not tendered. Rather, she referred to parts of the papers. Many of the research papers were put to her in cross-examination.
In cross-examination, she was often non-responsive to questions. She gave lengthy answers which did not address the questions. On the occasions when she did answer the question, it was often difficult to understand her responses. On some occasions, she simply responded by refusing to accept the validity of work published by reputable scientists.
Examples of the way in which Ms Papadopulos-Eleopulos responded to the suggestion that she had misused research follows.
During her evidence dealing with sexual transmission of HIV, Ms Papadopulos-Eleopulos relied upon the studies of Professor Nancy Padian.[58] In her evidence-in-chief, Ms Papadopulos-Eleopulos referred to a number of slides which were prepared from papers authored by Professor Padian and published in 1987, 1988, 1991 and 1997.[59] Ms Papadopulos-Eleopulos also relied upon a Ugandan study of RH Gray et al from the Rakai district, published in the Lancet in 2001.[60] Ms Papadopulos-Eleopulos sought to demonstrate that the probability of transmission of HIV in the United States of America and Uganda, assuming sexual contact once every three days, was so low as to conclude that there was no proof from these studies that HIV was transmissible by heterosexual contact, that is, vaginal sexual intercourse. She concluded from the Ugandan study that there is no more heterosexual transmission of HIV in Africa than anywhere else, including Britain, the United States of America, Australia and Europe. She stated that there is no proof that HIV is sexually transmissible by vaginal sexual intercourse from male to female and vice versa.
[58] Exhibits P40, P41 and P42.
[59] Exhibit A8, slides 37, 39, 40, 40, 42 and 49.
[60] Exhibit A8, slide 45.
In cross-examination, she was asked the following questions:
Q.In your PowerPoint presentation, in slides 37, 38, 40, 41, 42, 43 and 44, you rely on three Padian studies.
A.Three publications.
Q.One in 1987, one in 1991, and one in 1997; correct.
A.Yes
Q.And we have another slide in there relating to a slide in 1988. Is it the case, though, that is one you have withdrawn because you can’t find what that is based on.
A.I could find out, but unfortunately I forgot. I have it, but I forgot.
Q.You didn’t find it, because on the last occasion you were asked to produce it.
A.No, we were here. When you ask, we were here and I ask somebody from my office, a friend in fact, to look in my filing and finding that paper. She could not find it. But when I went back, I just omitted to look. That’s all.
Q.Whatever the reason, slide No. 39 has been withdrawn, so we are left with the ’87, ’91 and ’97 references.
A.But I think I delivered that paper.
Q.You’re aware, aren’t you, that 1997 study was published and commented upon, that Nancy Padian, the author of the studies, has attempted to clarify what the results of the studies mean.
A.Yes.
Q.You’re aware of that, aren’t you.
A.Where?
Q.I’m asking you a question. Are you aware of the fact that since the time the 1997 study was completed, that Nancy Padian has written and clarified what those studies meant. Are you aware of that fact. That’s a simple question.
A.Nancy Padian wrote a commentary on a website called ‘AIDS Truth’, the owner of which says that only they have the truth about HIV and AIDS and nobody else. Yes, I’m aware of that.
Q.And we will take it one step further: you were aware of that before you gave your evidence in this court, weren’t you. You knew about that further clarification from Nancy Padian before you even stepped into this courtroom.
A.No, I did not know that. I did not know that. And if I knew, it wouldn’t make any difference. Even if I knew, and I may have said it, I know, it does not make any difference. I cannot remember if then I have it or did not have it, but it wouldn’t make any difference. These are the studies – and let’s go to the commentary. I will be very happy to discuss her commentary, or her clarification.
Q.I’m a little confused. Did you or didn’t you know before you gave evidence that subsequent to the 1997 study, Nancy Padian had written a clarification of her interpretation of these studies.
A.Let’s assume that I had –
Q.Did you know. It is a direct question. Did you know.
A.Let’s say that I had it, I not question, let’s say that I had, I forgot, but let’s say that I had it, I knew that, it wouldn’t make any difference to the interpretation. No difference at all.
Q.Did you know before you gave your evidence about the further clarification by Nancy Padian. It is a simple question.
A.There is no clarification there. There is no clarification. I cannot say there is a clarification there. In fact, in that piece of writing, if anything, she complicates things.
HIS HONOUR
Q.Can I ask the question perhaps this way: did you know about the piece of writing.
A.Yes, I know that.
Q.Yes, but did you know about it at the time you gave your evidence, I think the question is.
A.When I gave the evidence?
Q.When you gave the evidence and presented these slides, did you know about the piece of writing by Nancy Padian.
A.I cannot recall. I just can’t recall, because even if I knew and I did mention it here, I would not have done it because that would have to admit something, to admit interpretation. It would not have changed.
Q.I understand that you say now that you have read it and know about it, it wouldn’t have changed your views, but is your answer that you can’t now recall whether you knew about it or not.
A.I can’t. And even if I knew, I read it and I know only things which are changing, which are important. That didn’t change anything.
Q.Is it fair to say that if you had read it, you don’t now recall having read it because it wouldn’t change anything.
A.It wouldn’t change anything. I may have read it, but it wouldn’t have changed anything.
XXN
Q.We might go straight to what she had to say, because when we look at what she says in that article, I suggest to you there is no way you wouldn’t have a memory one way or the other of having read this article. She is damning of your interpretation of her studies.
A.No, she had not. Please read me, please read me.[61]
[61] T 559 – 62.
In a document written by Professor Padian, who is the Professor of Obstetrics, Gynaecology and Reproductive Sciences at the University of Canada and a researcher who has worked on the heterosexual transmission of HIV since 1984, Professor Padian states:[62]
HIV is unquestionably transmitted through heterosexual intercourse. Indeed, heterosexual intercourse is now responsible for 70-80% of all HIV transmissions worldwide. The current likelihood of male to female infection after a single exposure to HIV is 0.01-0.32%, and the current likelihood of female to male infection after a single exposure is 0.01-0.1%. These estimates are mostly derived from studies in the developed world. However, a man or a woman can become HIV-positive after just one sexual contact. (Endnotes omitted).
[62] Exhibit P39.
She then considers the issue in sub-Saharan Africa. As a result of a variety of factors, the risk of heterosexual transmission is increased to 20 per cent or even higher. In her paper, she refers to a number of studies. She states:
In short, the evidence for the sexual transmission of HIV is well documented, conclusive and based on the standard, uncontroversial methods and practices of medical science. Individuals who cite the 1997 Padian et al. publication or data from other studies by our research group in an attempt to substantiate the myth that HIV is not transmitted sexually are ill informed, at best. Their misuse of these results is misleading, irresponsible, and potentially injurious to the public. (Endnotes omitted)
She then discusses some of the common practices in which her research is misquoted. She criticises the misuse of her 1997 paper and comments:
Anyone who takes the trouble to read and understand the paper should appreciate that it reports on a study of behavioural interventions such as those mentioned above: specifically discordant couples were strongly counseled to use condoms and practise safe sex.
…
Any attempt to refer to this or other of our publications and studies to bolster the fallacy that HIV is not transmitted heterosexually or homosexually is a gross misrepresentation of the facts and the travesty of the research that I have been in for more than a decade.
…
But many people misunderstand probability: they think that if the chance of misfortune is one in six that they can take five chances without the likelihood of injury. This “Russian Roulette” misapprehension is dangerous to themselves and to others. Furthermore, complicating factors are not evident or obvious in a relationship, so their perceived absence should not be counted on as an excuse not to practise safe sex. (Endnotes omitted)
In her paper, Professor Padian refers to a number of studies to support her conclusion. The very misuse of mathematical probabilities which she criticises is the methodology used by Ms Papadopulos-Eleopulos. In response to the document, Ms Papadopulos-Eleopulos makes it clear that she does not accept Professor Padian’s criticism that the mathematical models that Ms Papadopulos-Eleopulos uses are invalid and she does not accept Professor Padian’s models.
When it was put to Ms Papadopulos-Eleopulos that she had not informed the Court of Professor Padian’s views about the misuse of the Padian papers, at first Ms Papadopulos-Eleopulos was evasive. When she acknowledged that she had read Professor Padian’s document, she stated that she disagreed with it. She was asked:
Q.Are you telling this court that you now have no memory when you came in to give your evidence about whether you read what Nancy Padian had to say about your sort of use of her studies.
A.I’m not interested in what she says. I’m not interested her data. And her evidence does not prove heterosexual transmission, no matter how you take it. It is not what she says in AIDS Truth. It is not what she says in published scientific work, and for published scientific work let me tell you in her prospective studies she has over 170, or 173 I think, or five, individuals, men who are positive and their negative partners, and women who are positive and their negative partners. In the average, they live up to 60 years, and even at the end of the study, when the study started, the one I think, only 33% of people who are using condoms. And at the end of the study, 25% who were still not using consistently condoms, and no-one, no-one of these couples become positive. How can I say that the Padian paper proves heterosexual transmission? How she can say that her studies prove heterosexual transmission, more importantly?
HIS HONOUR
Q.Can I ask you this: in your role as an expert witness, did you not think it might be important to inform the court that people upon whose studies you rely have a different view as to the interpretation of them than you.
A.I don’t know. If it is important, yes, I will accept, but, your Honour, she has no evidence for transmission.
Q.I understand your criticism of her, I understand that. The question really wasn’t related to that.
HIS HONOUR: You go on, Ms McDonald.
XXN
Q.Do you have a view that you have a greater level of expertise about what these studies meant than the doctor who actually conducted them.
A.I’m saying what they’re publishing. They’re not publishing – you cannot say they say one thing and they’re publishing another thing. Unless they do that, then I cannot see how she can say, how she can say that her study proves heterosexual transmission. It’s beyond me.
Q.Let’s go to look at –
A.Unless they mean totally different things.
Q.Let’s look at what Dr Padian says is the misuse of her studies and then we will look to see what you told the court to see if it is similar. She goes on after that passage I have just read to you to say ‘A common practice is to quote out of context a sentence from the Abstract of the 1997 paper: “Infectivity for HIV through heterosexual transmission is low”. Anyone who takes the trouble to read and understand the paper should appreciate that it reports on a study of behavioural interventions such as those mentioned above. Specifically, discordant couples were strongly counselled to use condoms and practise safe sex That we witnessed no HIV transmission after the intervention documents the success of the interventions in preventing the sexual transmission of HIV. The sentence in the Abstract reflects this success – nothing more, nothing less. Any attempt to refer to this or other of our publications and studies to bolster the fallacy that HIV is not transmitted heterosexually or homosexually is a gross misrepresentation of the facts and a travesty of the research that I have been involved in for more than a decade’. You don’t remember whether you had read that before you gave evidence in court and relied on your PowerPoint.
A.I cannot agree with that, that is a commentary by her and her data shows a totally different thing. I repeat, her evidence does not prove heterosexual transmission. In fact, I remember now, last year we have wrote to Dr Padian –[63]
[63] T 564 – 6.
She then said that one of the Perth group had written to Professor Padian, who did not respond. Ms Papadopulos-Eleopulos inferred from that that Professor Padian had no answer to their criticism. That was a theme of Ms Papadopulos-Eleopulos’ evidence.
The approach to the Professor Padian papers demonstrates that Ms Papadopulos-Eleopulos misunderstands her role as an expert. She used Professor Padian’s papers to support her evidence that there was insufficient evidence to establish that HIV is sexually transmissible by heterosexual contact. Knowing that Professor Padian held diametrically opposite views, Ms Papadopulos-Eleopulos did not disclose that to the Court, nor was she frank with the Court when she was confronted with the document from Professor Padian. It was only after extensive cross-examination that she eventually conceded that she knew about the document. She admitted that she knew that there had been correspondence to Professor Padian by a member of her group as a consequence of that document. Her evidence on this topic demonstrated her inability to bring a balanced approach to the subject matter.

Professor Kaldor explained that the next level of evidence comes from prospective or longitudinal studies where groups are observed and conclusions drawn therefrom. For example, in Tasmania there was a study which observed that children who slept on their back had a lesser incidence of death from Sudden Infant Death Syndrome than those who slept on their front. The epidemiological research established that front sleepers had a higher risk of death than back sleepers.
Professor Kaldor explained that the third type of study is a cross‑sectional study in which a target group of people are considered: one group which has a disease and the other group which has not, and then the risk factors in those two groups are compared. The final level of study is an ecological study, where populations as a whole are compared.
Professor Kaldor has worked in HIV epidemiology since the 1980s. He has been involved in a number of studies, and he is familiar with studies which have been conducted throughout the world.
He described an ecological study which determined that countries where circumcision was widely practised happened to be countries where there was less HIV. When that observation was made, there was a prospective study performed with a group of men who were regularly engaging in sex with sex workers in Nairobi. It was observed that men who were circumcised became infected with HIV at a much lower rate than those who were not circumcised. Further studies in Kenya and Uganda demonstrated that there was a 60 per cent reduction in transmission risk in the case of circumcised men.
Professor Kaldor expressed the opinion that it has been proved absolutely that HIV is sexually transmissible. He said there were a number of cross‑sectional studies which started to create a picture of what looked like a sexually transmissible disease. He said that over time several key prospective studies were completed which confirmed the earlier findings and put beyond any reasonable doubt that HIV was a sexually transmissible infection. He referred to a study published in the New England Journal of Medicine on 11 August 1994 titled “A Longitudinal Study of Human Immuno Deficiency Virus Transmission by Heterosexual Partners” authored by Isabelle De Vincenzi, which he interpreted as showing “pretty conclusively” that couples who used condoms all the time never transmitted; couples who used condoms more than half the time transmitted to some degree; and couples who used condoms less than half the time transmitted more of the virus.[140]
[140] Exhibit P37.
Ms Papadopulos-Eleopulos criticised that study on the grounds that it is not possible to verify the information that was provided by those who are the subject of the study. She expressed the view that it is impossible to verify whether people involved in the study were having anal sexual intercourse or homosexual contact; that people lie about their use of condoms, and that they misrepresent facts. She went on to quote from an exchange between Dr De Vincenzi and a Dr Brodie from which Ms Papadopulos-Eleopulos concluded that Dr De Vincenzi admitted that in Europe they did not have proof that a positive HIV antibody test, or what is known as HIV, is acquired through heterosexual contact.
Professor Kaldor strongly disagreed with the proposition that the De Vincenzi study does not provide evidence that HIV is heterosexually transmissible. Professor Kaldor accepted that prospective studies are difficult undertakings, and they are not watertight evidence. He said that any of these kinds of studies have their limitations. They rely upon what people tell the epidemiologists about their sexual behaviour. However, he said that the studies are performed by experienced professional people who work through different methods. They gain their subject’s trust and the risk of misinformation is minimised. He considered that it was “remotely possible but highly unlikely that these distortions [meaning distortions caused by participants in the studies failing to describe their sexual behaviour accurately and honestly] would have had any serious effect on the conclusions”.[141]
[141] T 1116 – 17.
Professor Kaldor then referred to work being done in the Rakai region of Uganda which concluded that the risks of becoming infected if a person has an HIV positive partner increased dramatically if the partner was highly infected with the virus. He said the study showed a very strong relationship between the amount of virus in the HIV positive partner and the chance of transmission.
He observed that the Rakai study or project resulted in a comprehensive series of reports. He said that a paper by Quinn and others on viral load and heterosexual transmission of human immuno deficiency virus type 1,[142] showed effectively that the more virus, the more transmission. Ms Papadopulos-Eleopulos’ evidence was to the effect that one could draw very little by way of conclusion from these studies because of the nature of the studies and the reliance upon information provided to those conducting the study. She was asked:
Q.Do you accept the epidemiology has an important and valid role to play in science.
A.Epidemiology cannot prove or disprove anything. Epidemiology can only prove correlation but cannot give you scientific proof.
Q.Isn’t it the case that as a scientist, you look at all the available evidence, you look at scientific studies, you look at epidemiology, you look at biology, virology, immunology and then, from the combined effect of all the information, you draw your conclusions.
A.You cannot have an epidemiological study of HIV if you have not got virological evidence for its existence. Professor Gallo would be the first one to tell you that you cannot prove the relationship between HIV and AIDS and claim scientific evidence or proof by epidemiological study. I think that is what it is in his statement.
Q.It is your evidence that studies that show that HIV strains have been traced between sexual partners, or found clustered together in a group who live together or have sexual contact, isn’t valid legitimate information relevant to this issue.
A.No, no, that is not scientific proof. I am sorry, it is not. You can beg to differ. It is not proof. You can’t have scientific proof for HIV unless you have virological evidence for its existence. You can’t have proof of this transmission, unless you have it first. It is as plain as that. Epidemiology cannot prove it. It can change you once you have HIV, it can give you an association, yes, I totally agree with you. You can start from there but, first, before you have to have the virus and epidemiological studies can be so biased that evidence from epidemiological depends how you design them, what answers you are going to get. That is why – and again Professor Gallo will agree on this – unless you have prospective studies, you can forget all the cross-sectional studies. You can’t have retrospective – you cannot have cross-section – you have to have prospective studies.[143]
[142] Exhibit P78.
[143] T 512 – 13.
Even though epidemiology is a recognised speciality and a recognised discipline from which conclusions can be drawn about disease and how diseases affect populations, Ms Papadopulos-Eleopulos appears to take the view that epidemiology cannot provide proof.
Professor Kaldor demonstrated that epidemiology has been at the forefront of the discovery of causes of death and disease. If there is sufficient epidemiological evidence it is possible to draw conclusions from those studies. He observed that epidemiologists do not make conclusions about the cause of disease simply from epidemiological studies alone. There needs to be other evidence of cause, in addition to the statistical evidence. For example, although there is epidemiological evidence that there is a strong correlation between smoking and lung cancer, causation is only established in the presence of other evidence such as the carcinogenic properties of tobacco.
Professor Kaldor gave further examples. He referred to a study in Thailand amongst young military recruits which addressed sexual transmission. The army had a policy of 100 per cent condom use, and it was noted that the proportion of young men becoming infected with HIV dropped significantly by enforcing condom use.
Professor Kaldor expressed the opinion that epidemiological studies can prove causation beyond reasonable doubt. This evidence was in stark contrast to that of Ms Papadopulos-Eleopulos, who expressed a contrary view.
Professor Gordon gave evidence of an epidemiological study conducted in California amongst people who worked in the pornographic film industry. The study considered the extent of HIV infection amongst exposed workers to an adult film worker who had contracted the virus. Regular HIV tests were conducted which enabled those conducting the tests to trace the transmission after a male participant has tested positive. With one HIV positive participant who had thirteen sexual partners, three became HIV positive.[144]
[144] Exhibit P74.
I consider that there is clear evidence that epidemiological research in studies can establish causation. There have been numerous studies of HIV infection which establish that it is sexually transmissible via heterosexual sex.
Professor Gordon gave evidence about the presence of the virus in genital secretions. Dr Dwyer also gave evidence that HIV can be found in saliva, vaginal secretions, seminal fluid and semen.[145]
[145] T 971 – 2.
There is overwhelming evidence that HIV can be and is transmitted by sexual intercourse, including heterosexual contact.
There was a considerable body of evidence about the transmission of HIV through blood transfusions. The evidence of a number of the witnesses, including Professor Cooper, Professor Gallo, Professor Kaldor and Professor McDonald was that infection via blood transfusion has been eliminated in the western world. Evidence was also given about the Sydney surgeon case in which infection was transmitted as a consequence of a Sydney surgeon failing to sterilise instruments. The instruments were unknowingly used in respect of an HIV positive patient and the infection was transmitted to other patients through the use of those unsterilised instruments.[146]
[146] T 712; T 714 – 15.
Ms Papadopulos-Eleopulos was unable to afford a meaningful explanation as to the conclusions that can be drawn from those various studies and tests.
Does HIV cause AIDS?
Professor Cooper explained that AIDS is a state of the immune system in which a person is susceptible to various opportunistic infections. The infections are a result of the parlous state of the immune system. He said that those opportunistic infections occur after people had been diagnosed with HIV. If untreated, those with the HIV infection will develop these opportunistic infections from which ultimately they will die.
One of the opportunistic diseases which was discussed in some detail by the witnesses is tuberculosis. Professor Cooper said that in the case of someone who is HIV positive, the opportunistic disease or infection is pulmonary tuberculosis. He accepted that there are individuals who can develop tuberculosis without being infected with HIV. In those cases they are not suffering from AIDS. In order to be diagnosed with AIDS it is necessary to have contracted HIV. He said that there are many people who contract infections that might be due to other causes of immune impairment but, in those cases, they would not be regarded as suffering from AIDS.
Ms Papadopulos-Eleopulos explained her understanding of the purpose of the HIV theory of AIDS. She said:
According to the HIV theory of AIDS, HIV infection itself or CD4 cell leads to the decrease of CD4 cells. HIV infection kills CD4 cells. The decrease in CD4 cells leads to the clinical syndrome that is AIDS. Now, if this is the case then the more HIV you have the more killing of CD4 cells you will have and the higher the rate of death from AIDS and the higher the rate of AIDS. But this is not what all the evidence shows.[147]
[147] T 72.
She then referred to a study by M T May and others published in the Lancet in 2006 in which 22,217 patients who commenced highly active antiretroviral therapy (HAART) were reviewed. The review found that those who had commenced HAART had shown improvement in their virological response. The study also concluded that there was no corresponding decrease in the rate of AIDS or death in the following year. From that study, Ms Papadopulos-Eleopulos concluded that it has not been established that there is a connection between HIV and AIDS.
Professor Cooper rejected the conclusion and explained that the continued death rate was due to migrating populations into Europe from Africa. [148] He said that even with antiretroviral treatment people continue to die from HIV/AIDS.
[148] T 682 – 3; T 694.
Dr Turner, in discussing the studies relating to antiretroviral treatment, accepted that antiretroviral drugs seem to be beneficial. He observed, however, that he did not know how often they are beneficial and what other actions they may have. He did not concede that the studies that demonstrate that antiretroviral drugs do have an effect on people suffering from HIV/AIDS establishes that HIV causes AIDS.
The prosecution case that there is proof that HIV causes AIDS relied on the evidence of Professor Gallo, Professor Cooper, Professor French and Dr Dwyer. In support of the proposition that HIV is the cause of AIDS, the DPP relied upon the Durban Declaration, which was a document signed by 5000 scientists and research institutions acknowledging that HIV causes AIDS.[149] Additionally, the DPP relied upon a United Nations and World Health Organisation document referred to by Professor Cooper.
[149] Exhibit P6.
Further evidence relied upon by the respondent was the evidence of Dr Dwyer, Professor French and Professor Gallo that antiretroviral therapy has had a major effect in the treatment of AIDS.
Additionally, antiretroviral treatment has had a significant effect upon reducing and, in western countries, eliminating infection through blood transfusions. Professor Cooper was involved in a study in 2006 on the effect of antiretroviral treatment. He said that it was extraordinary and resounding in the fact that if a person who was on antiretroviral therapy had that therapy interrupted, they became sick and died at a rate two and a half times greater than if they stayed on the treatment. This study was conducted in about thirty countries.
Professor French confirmed that, in his experience, antiretroviral treatment was very specific and had the effect of interacting with the structure of HIV and not any other virus.
A number of the clinicians observed that since antiretroviral treatment had developed, there was a distinct reduction in the people who were admitted to hospital and who were dying from AIDS.
I consider that the evidence adduced both from studies which have been conducted and from the evidence of the witnesses overwhelmingly establishes that HIV causes AIDS. I do not regard Ms Papadopulos-Eleopulos’ evidence and conclusions as credible. Her evidence on this subject demonstrated that when confronted with specific evidence of studies she simply responded by stating that she did not accept those opinions as evidence.
Professor McDonald
Professor McDonald confirmed in his evidence that the overwhelming view of governments throughout the world, the United Nations General Assembly, and of the medical scientific community is that there is both scientific and public health evidence that HIV is sexually transmissible and a threat to the welfare of populations. Further, it is preventable in the sense that if populations can be educated to avoid taking risks in their sexual practices and to avoid taking risks in their drug use practices, that will reduce the spread of HIV.
On the question of whether HIV is sexually transmissible, he referred to the epidemiological evidence based on numerous studies that indicate that populations who embark on high-risk sexual behaviour have a high incidence of HIV. He also referred to the fact that specific strains of HIV have been tracked and been demonstrated by molecular techniques to be passed from one person to another by way of sexual intercourse.
As to the evidence that diagnostic tests are capable of providing false positive results, he accepted that all laboratory tests have a level of false positives. However, in the case of HIV he said that there are initiatives and systems in place to confirm the accuracy of test results. The National Laboratory in Australia headed by Associate Professor Dax ensured that HIV testing was done in appropriately certified laboratories. He was of the opinion that the chances of a false positive test arising in Australia was very low.
On the issue of whether HIV actually causes AIDS, he said:
The condition of AIDS [Acquired Immune Deficiency Syndrome] was originally identified as a symptom complex of life threatening infections and cancers that were associated with reduced immune function resulting from loss of crucial defense white blood cells [CD4 lymphocytes].[150]
[150] Exhibit P88.
He observed that numerous and extensive studies have confirmed that HIV is capable of infecting and destroying the CD4 cells that are essential protection against infections and cancers in humans.
He referred to the evidence that blood donors infected with HIV do transmit infection resulting in AIDS. There is evidence that antiretroviral drug treatment of people with the infection has reduced the progression of their infection to AIDS and death.
He commented on Ms Papadopulos-Eleopulos’ views and observed that, although she raises some valid questions about transmission, diagnosis and pathogenesis of HIV infection in the 1990s, those views have not been supported by international peer review. Her propositions have not been confirmed with epidemiological clinical or laboratory studies. He observed, as did other witnesses, that events and information have moved on since the 1980s and 1990s. In his view, her opinions are based on outdated scientific evidence. He said:
In 2006, which is 25 years after the initial reports of AIDS there has been an enormous international initiative that has progressively explicated the epidemiology and approaches for control of an infection that is a threat to the welfare of whole countries especially in the developing world.[151]
[151] Exhibit P88.
He considered that Ms Papadopulos-Eleopulos’ views and her writings are not credible views in terms of public health, epidemiology or virology.
Professor McDonald was present throughout the evidence of both Ms Papadopulos-Eleopulos and Dr Turner and provided expert assistance to counsel for the respondent. He explained in his report[152] that whenever a new infection becomes apparent through epidemiological observation, there is a period of technical development where methods of identification of pathogenesis, that is, the process of causing disease, are refined. It is not unusual that in the early days there is genuine scientific debate. This happened with HIV.
[152] Exhibit P89.
However, he observed that the evidence of Ms Papadopulos-Eleopulos and Dr Turner and their criticisms were based on early experiments and findings. They do not acknowledge the progress that has been made in the various techniques, including molecular methods, which are now predominant in the diagnosis of HIV.
As I have observed, the molecular detection systems have revolutionised the detection and treatment of HIV. Professor McDonald observed that the suggestion that HIV has not been isolated ignores the developments that have occurred in testing. He said that the whole genome of HIV has been identified and sequenced on many occasions. This was confirmed by Professor Gordon. The genes are unique to HIV and the antibody tests and viral load tests are highly specific for detection of HIV.

As to the claims that the diagnostic tests are erroneous and have a high rate of false positives, he observed that the HIV tests have been the subject of vigorous assessment and validation. He confirmed the evidence of Associate Professor Dax that the tests are highly specific and sensitive in diagnosing HIV and antibodies.
As to the claims by Ms Papadopulos-Eleopulos and Dr Turner that, firstly, antibodies are not entirely specific; secondly, that antigens (proteins) and the test kits designed to detect HIV antibodies in patients’ serum are not unique to HIV; and, thirdly, that the testing methodology is intrinsically inaccurate and produces a high number of false results, it was Professor McDonald’s opinion that the notion of non-specific antibodies and potential cross reactions has been well recognised in the design, regulatory approval, implementation and quality control of testing methodology. He is of the opinion that HIV antibody tests today and the diagnosis of HIV are probably the most accurate of all tests in medical diagnosis. As to the second proposition, he is of the opinion that test kits that have been developed are unique and specific for HIV antibodies. As to the third proposition, he is of the view that the quality and accuracy of HIV testing systems in Australia has been well established. He is of the opinion that there is no basis in fact to support the contentions of Ms Papadopulos-Eleopulos and Dr Turner.
As to the question of whether HIV is sexually transmitted by heterosexual sex, Professor McDonald observed that the epidemiological studies which have been conducted confirm that HIV is sexually transmissible through heterosexual sexual intercourse.
Professor McDonald had made contact with Professor Mullis. Professor Mullis is recognised as the person who invented the PCR (polymerase chain reaction) technique, which is used in the process of identifying the gene sequence of DNA. He explained that the ability to amplify small amounts of genetic material to manipulate them and sequence them was as a result of PCR technology.[153] He said that PCR was founded by a person whose name Professor Cooper could not recall but has now been identified as Professor Kary Mullis. Professor Cooper acknowledged that Professor Mullis is an AIDS denialist.
[153] T 689 – 90.
Dr Dwyer was cross-examined about nucleic acid testing. He was asked:
Q.You have spoken about the nucleic acid test or the NAT, which is now being used, the genomic sequence. In effect we are talking about the viral load, aren’t we.
A.No, the viral load is a type of nucleic acid test but a nucleic acid test is not just the viral load. The first nucleic acid test – well, nucleic acid tests aren’t designed to pick up either DNA or RNA. It so happens that you can quantify them to give a viral load.
Q.What sort of testing is nucleic acid testing; is that known as PCR.
A.PCR is one of the NAT technologies.
Q.Can you isolate it for quantitative assessment.
A.You can.
Q.You realise that the man that discovered it, Malla, said you can’t.
A.I have never heard him say that you can’t quantify material using PCR.
Q.If you do quantify you would expect to be getting pretty good results which are mathematically sensible.
A.Well, I’m not quite sure what you mean by that question.
Q.I’ll show you what I mean. Look at annexure 5 to Dr Turner’s affidavit. Have you got that.
A.Yes.
Q.It will save time if you read it because I want you to comment on it.
A.Yes.
Q.Obviously you need to look at the figures.
A.Yes, I know this paper.
Q.Do you agree with Dr Turner’s conclusion about it that it in effect demonstrates the concept of using HIV viral load is just, on those figures it’s incomprehensible.
A.I think he has completely misinterpreted the data in this. What this data is telling me is that there are three different laboratory types of quantitation that are being used, all of those assays need to detect the specific part of the HIV genome. Some of the original material that was produced by companies only actually picked up the North American strain of HIV and completely missed the African strains of HIV. So some, and in fact the company that produced the RTPCR assay, which is Roche, in fact had to re-alter their product to make sure that it picked up all genetic variations of HIV and they now do and those assays are now used. Our own lab has done exactly, and published, the same sorts of experiments and it’s quite well recognised that unless your PCR primers, which are what start the reaction, are to highly conserve parts of the genome you will miss certain strains of HIV. That is quite well-known and understood.[154]
[154] T 1004 – 5.
Ms Papadopulos-Eleopulos had said that the inventor of PCR was purported to have expressed a lack of confidence in PCR. Professor Mullis received a Nobel Prize in Chemistry for having invented the PCR technique. As a consequence of the reference to Professor Mullis, Professor McDonald made contact with him.
Professor McDonald said the effect of Professor Mullis’ answer was to express confidence in the PCR system. Professor McDonald said that the controversy around HIV is not a controversy around whether PCR is a valid technology or technique. Professor Mullis had stated in a paper titled “A hypothetical disease of the immune system that may bear some relation to the Acquired Immunodeficiency Syndrome”[155] that there was a controversy as to whether and how HIV caused AIDS.
[155] Exhibit A19.
In his paper, Professor Mullis observed:
The cells of an individual immune system could be so highly infected with latent viruses that were immunicologically distinct from one another as to result in an immune dysfunction resembling the acquired deficiency syndrome.
That was a theory propounded by Professor Mullis some ten years ago. Professor McDonald commented that the paper and the hypothesis postulated by Professor Mullis has not had any support from experts in the field of HIV/AIDS research.
Mr Borick QC contended that there is a continuing controversy in respect of whether HIV causes AIDS. He sought to support that contention by reference to the paper of Professor Mullis.
I consider that Professor Mullis’ views, as expressed in the paper ten years ago, are not supported by research. Over the past ten years since the paper was written, there is no evidence in any of the research that has been conducted in respect of the HIV/AIDS virus that the hypothesis of Professor Mullis has any scientific basis. The fact that a scientist who does not work or research specifically in the area of HIV/AIDS publishes an hypothesis does not establish that there is a genuine scientific debate about whether HIV causes AIDS.
Another basis upon which Mr Borick QC contends that there is a genuine debate that HIV causes AIDS resulted from the views expressed by Professor French, Professor Cooper, Professor McDonald and Dr Dwyer, that there is still a great deal of knowledge to be gained in respect of the mechanism by which a person infected with the virus then develops a disease and the progress of that disease.
Professor McDonald was cross-examined about what he meant by the distinction between cause and mechanism. He was asked:
Q.When you use the word ‘mechanism’ do you mean the process as to why or how HIV manages to caused AIDS as distinct from the fact that, in your opinion, it does not cause AIDS.
A.Sorry, I didn’t fully understand that.
Q.When you used the word ‘mechanism’ did you mean the process as to why or how HIV manages to cause AIDS as distinct from the fact that in your opinion it does cause AIDS.
A.My reason for believing that HIV causes AIDS is all to do with my clinical observations, my association with research. I suppose because, I’ve been closely associated with vaccine development, I recognise that there are some remaining factors about the interaction between HIV and the host immune system that we need to understand more fully so that we can make a vaccine properly.
Q.As you sit here in the courtroom today do you accept that there are a lot of unknowns that you have described as ‘tiny but important details’ as to why or how HIV manages to cause AIDS, meaning, in your terms, mechanism.
A.Yes.
Q.Would you accept that it is critical to acknowledge the unknown areas of the science. Critical to acknowledge that fact.
A.It’s important to know what is not known but the factors that are not known reside in detailed host response immunology and possibly some of the mechanisms whereby the virus provokes a dominant antibiotic response as distinct from a T cell response.
Q.In the passage that I read out to you from your earlier evidence at p.1356 lines 17-19, and I’ll just read it again ‘There is still a lot of unknowns into the tiny but important detail as to why or how HIV manages to cause AIDS or reduction in CD4 or other cells’. Do you accept that it is, in your view, unknown as to how HIV kills CD4 cells.
A.There are a lot of factors known about how HIV infects CD4 cells. It’s known that they reduce in numbers with time. There are however factors other than the infection in the CD4 cell with the virus that modulate the extent to which CD4 cells die off.
Q.Do you yourself have doubts about the mechanism by which HIV could result in the death of CD4 cells faster than the body could replace them.
A.I can only reply that in a sense there are details to do with the immune handling of the virus that remain uncertain. There is no uncertainty about the fact that there is a progressive loss of CD4 cells.
Q.Just to return to the question. Do you yourself have some doubts about the mechanism by which HIV could result in the death of CD4 cells faster than the body could replace them.
A.I don’t – do I have doubts? I’m a true believer in the fact that CD4 cells deteriorate and reduce in number with time. And –
HIS HONOUR
Q.As a result of HIV infection.
A.As a result of HIV infection.
XXN
Q.Do scientific experts agree that it is an open question as to how HIV kills CD4 cells.
A.As to the exact mechanisms. I don’t think there is any doubt about the fact that all experts would accept that with HIV infection there is a progressive loss of CD4 cells.[156]
[156] T 1395 – 7.
Mr Borick QC seeks to draw from that evidence and evidence of Professor French and Professor Gallo the conclusion that there is a genuine debate about whether it has been established that HIV causes AIDS. In my view, that is a misinterpretation of the evidence of the witnesses. What the witnesses conceded was that there are still a great deal of unknowns as to the mechanisms by which the CD4T cells are diminished.
The witnesses for the respondent, however, are uniformly in agreement that HIV causes the depletion of CD4 cells and causes the break down of the immune system, resulting in the various diseases which are defined as AIDS-related diseases.
A paper titled “The Use of Phylogenetic Analysis as Evidence in Criminal Investigation of HIV Transmission”
After submissions had been concluded, I was requested by counsel for the applicant to consider a further argument which Mr Borick QC submitted had recently come to light. He produced a document titled “The Use of Phylogenetic Analysis as Evidence in Criminal Investigation of HIV Transmission”. It was a document prepared as a briefing paper aimed at professionals working in the criminal justice system, and HIV professionals who may be called as expert witnesses in criminal HIV transmission cases. The document purports to explain how phylogenetic analysis should and should not be used in criminal trials for the reckless transmission of HIV. It is a document dated February 2007. I admitted the document for the purpose of hearing the argument.[157]
[157] Exhibit A20.
At the trial, Professor Higgins, who is the Deputy Head of Infectious Diseases at the Institute of Medical and Veterinary Science in Adelaide explained that the profile of a virus in two people with whom it is common would be very similar. He said that in South Australia there is a database of 550 patients and approximately 850 sequences of persons infected with HIV. In the case of the applicant, the virus had been sequenced. He concluded that there was a 1 per cent variance between the virus contracted by one of the complainants with whom the applicant had had sexual intercourse and that contracted by the applicant.
Mr Borick QC submitted that the document[158] throws doubt upon the methodology that might have been used by Professor Higgins. He submits that if the defence had been aware of the commentary contained in the document he may well have cross-examined Professor Higgins differently. The methodology adopted by Professor Higgins may well have been the subject of some conjecture. Thus, the document did not directly relate to any of the propositions the applicant had sought to make during the application.
[158] Exhibit A20.
I indicated to Mr Borick QC that he would have to make an application to amend the grounds of appeal. No such application was made.
Ms McDonald opposed the receipt of the document. She submitted that very little was known about its provenance or about the qualifications of those who had prepared it. She submitted that the document was no more than a document designed to assist counsel about matters to which counsel should have regard when this kind of evidence is led. She submitted that Professor Higgins’ evidence was led in a particular way because there had been an agreement between counsel as to the manner in which it would be led and, therefore, she led next to no evidence about methodology controls processes that were followed by Professor Higgins in his analysis. She submitted that if this material were to justify an application to lead fresh evidence or to conduct the defence in a different way, then these kinds of applications would be never-ending. Developments in every area of science will necessarily result in greater knowledge and more sophisticated methodologies in undertaking scientific testing. She submitted that in relation to HIV there is constant further work being done. The fact that there have been further scientific developments is not a basis to permit the case to be re‑opened.
In any event, Ms McDonald submits that the evidence of Ms C, one of the complainants, that she became infected after her sexual relationship with the applicant must have been accepted by the jury. The material does not amount to fresh evidence nor should it lead to a further investigation into the evidence at trial.
As the matter presently stands, there has been no application to amend the notice of appeal. If such application were to be made, based upon the material contained in the document, I would refuse leave to amend. My reasons for so doing are that the document is simply a short briefing paper. There is nothing in the document which would suggest that the evidence of Professor Higgins is unreliable. No evidence has been sought to be tendered which might throw doubt upon Professor Higgins’ evidence. This is simply a document which counsel submits it might wish to use if Professor Higgins was further cross-examined. In effect, Mr Borick QC submits that he should be entitled to re-open the case to embark on a form of fishing expedition to investigate the methodology used by Professor Higgins in arriving at his conclusions. That is not a basis to justify re-opening the case. The document can only lead to speculation. It has no evidential weight. No evidence has been provided to support the application. There is no evidence to doubt the accuracy of Professor Higgins’ conclusions.
Conclusion – summary
I 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.
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.
In my view, the probative value of the evidence proposed to be called by the applicant is minimal. The proposed evidence lacks cogency.
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.
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.
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.
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.
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%.
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.
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.