The prosecution's case against Mr Solomon Mwale, 38, originally from Zambia, hinged on the timing of the alleged transmission
As it was not known when Mr Mwale contracted HIV, Judge Hampel said it was possible the complainant had already contracted the disease by the time he was diagnosed. "It is certainly possible Mr Mwale had HIV for some time earlier, and there is a chance he could have infected the complainant before his diagnosis," she said. "If there is a real possibility he was already HIV positive and infected her before becoming aware of his condition, then he cannot be said to be knowingly exposing her after diagnosis."
Judge Hampel said the Crown failed to prove one of the five necessary elements defining the charge of reckless conduct endangering serious injury, and therefore the evidence before the court did not support a guilty verdict. She told the jury that whatever they thought of Mr Mwale's conduct, it did not constitute the charge before the court. Judge Hampel then directed the jury foreman to return a not guilty verdict and Mr Mwale walked free from the court.
The charge against Mr Mwale of [address] arose when his former partner alleged he had unprotected sex with her between 2000 and November 2004, when she too was diagnosed with HIV. Judge Hampel said Mr Mwale was diagnosed with the disease on December 9, 2003, but did not tell the woman of his diagnosis and allegedly continued to have unprotected sex with her. The judge said that, at the time of his diagnosis, Mr Mwale was advised of his legal responsibilities in regard to safe sex and told that he was not to engage in unprotected sex without first advising his partner.