R v Parenzee - [2008] SASC 245

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PARENZEE
[2008] SASC 245
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
16 September 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - PROCEDURE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for extension of time within which to appeal against conviction and extension of time within which to seek permission to appeal – whether applications are competent – previous application for permission to appeal on different grounds refused – merits of appeal considered in previous application – whether second application competent – (per majority) appeal incompetent – (per Doyle CJ) appeal is competent and permission to appeal should be granted but appeal should be dismissed.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM - OTHER OFFENCES
Applicant had unprotected sexual intercourse with three women knowing that he had the HIV/AIDS virus – applicant convicted of doing an act knowing that the act was likely to endanger the life of another – consideration of when an act is likely to endanger life – where danger to life depends on the likelihood of a chain of events occurring – whether prosecution required to prove that an act of unprotected sexual intercourse had the consequence that it was more likely than not that the life of the complainant was endangered – likelihood of life being endangered is a matter for the assessment of the fact-finder – whether there was evidence upon which the jury could find the appellant guilty – if competent, application for permission to appeal and for extension of time should be dismissed.
Criminal Law Consolidation Act 1935 (SA) s 29, s 352, s 353; Supreme Court Criminal Appeal Rules 1996 (SA) r 4A, r 15, r 20, r 21; Crimes Act 1958 (Vic) s 567, s 568, referred to.
R v Edwards (No 2) [1931] SASR 376; Grierson v The King (1938) 60 CLR 431; Stone (1989) 42 A Crim R 189; R v Keogh (2007) 249 LSJS 315; R v McNamara (No 2) [1997] 1 VR 257; R v GAM (No 2) (2004) 9 VR 640; R v Spiero (2001) 78 SASR 531, applied.
R v Gibbings [1936] SASR 204; Postiglione v The Queen (1997) 189 CLR 295; R v Brain (1999) 74 SASR 92; Bailey v Director of Public Prosecutions (1988) 62 ALJR 319; The Queen v Moore [1954] NZLR 893; Boughey v The Queen (1986) 161 CLR 10, discussed.
Pantorno v The Queen (1989) 166 CLR ; Elliott v The Queen (2002) 82 ALJR 82; Burrell v The Queen [2008] HCA 34; Coulter v The Queen (1988) 164 CLR 350; Collins v The Queen (1975) 133 CLR 120; Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194; Carson v John Fairfax & Sons Ltd (1991) 173 CLR 194; Australian Telecommunications Commission v Krieg Enterprises Ltd (1976) 14 SASR 303, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"likely", "endanger"

R v PARENZEE
[2008] SASC 245
Court of Criminal Appeal: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ: Mr Parenzee applies for an extension of time within which to appeal against convictions recorded by the District Court after a trial by jury, and for an extension of time within which to seek permission to appeal against those convictions.
The application raises the following issues. First, whether the Court has jurisdiction to hear the application, having regard to an earlier application by Mr Parenzee for permission to appeal. Second, whether an extension of time should be granted. Third, if an extension is granted, whether the evidence before the jury was such that it was not open to the jury, as a matter of law, to find that Mr Parenzee’s conduct was likely to endanger the life of the person whose life he is alleged to have endangered. Fourth, if an extension is granted and permission to appeal is granted, whether the guilty verdict should be set aside on the ground that the jury should have had a reasonable doubt on the question of whether Mr Parenzee’s conduct was likely to endanger the life of the relevant person, and on the question of whether he knew that his conduct was likely to endanger the life of that person.
The issue underlying the applications is whether the evidence before the jury was sufficient to support a finding that by engaging in sexual intercourse with each of three women when he knew that he was infected with HIV, Mr Parenzee did an act that was likely to endanger the life of each of them (by transmitting HIV to them), and that he knew that the act of intercourse was likely to endanger the life of each woman.
Because of the procedural issues that arise, it is necessary to set out some of the history of these proceedings.
The trial
Section 29(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) provides:
29 Acts endangering life or creating risk of serious harm
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to endanger the life of another; and
(b)intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
…
Mr Parenzee stood trial on an Information charging him with three counts under s 29(1) of the CLCA. Each count related to a different woman. In each case the particulars allege that during a specified period Mr Parenzee had “unprotected sexual intercourse” with the woman in question, while “knowing that he had the HIV/AIDS virus”, and knowing that acts of unprotected sexual intercourse were likely to endanger her life, and intending to endanger her life or being recklessly indifferent as to whether her life was endangered. “Unprotected sexual intercourse” is a reference to vaginal sexual intercourse without Mr Parenzee using a condom or other protective device. The trial proceeded on the basis that the issue was whether he was recklessly indifferent as to whether he endangered the life of the woman in question. There was no suggestion that he did so intentionally.
Evidence was led at trial from a number of medical experts and from doctors who had treated Mr Parenzee. That evidence was readily able to support a number of conclusions. Much of the evidence seems not to have been contentious (at least at the trial). I will summarise the conclusions which, in my opinion, were readily open to the jury on the evidence, before I come to the contentious issues. For these purposes I refer in particular to the evidence given at trial by Dr La Brooy.
There is a virus known as Human Immunodeficiency Virus (“HIV”).
HIV is transmissible from one person to another. Sexual intercourse, including anal and vaginal sexual intercourse, is known to be one of the principal means by which HIV can be transmitted. Anal intercourse gives rise to a higher risk of transmission than does vaginal intercourse. There are other methods by which HIV can be transmitted, but transmission as a result of sexual intercourse is a well known method of transmission. Semen is one of the more infectious bodily fluids. The risk that transmission will occur on a particular occasion when intercourse takes place depends on a variety of factors pertaining both to the infected person (for example, the higher the “viral load” the greater the risk of transmission), and to the uninfected person (for example, if that person is a woman, the presence of vaginal ulcerations or abrasions can increase the risk of transmission). Although the level of risk of transmission of HIV can vary from occasion to occasion, the risk is present each time intercourse occurs.
The risk of transmission of HIV on a particular occasion cannot be calculated or quantified precisely. The calculation of the risk of transmission on a particular occasion is influenced by factors that will be unknown, at least in all but exceptional circumstances.
A person infected with HIV is always contagious. The risk of transmission is always present when intercourse occurs between a person infected with HIV and a person who is not so infected. There is no form of safe sexual intercourse. Precautions, such as using a condom, can significantly reduce the risk of transmission of HIV. Withdrawal before ejaculation will reduce the risk of transmission, but is by no means safe.
The tenor of the evidence from the doctors was that the risk of infection is a serious medical issue, and because of that should be explained to a patient.
At the relevant times Mr Parenzee was infected with HIV. He was also “HIV positive”. There was evidence that the doctors involved in his treatment had told him that if he engaged in intercourse he would expose the woman with whom he had intercourse to the risk of infection with HIV.
Mr Parenzee had vaginal sexual intercourse with each of the women in question during the relevant period. He was involved in a sexual relationship with each of them. Sexual intercourse occurred on a number of occasions. Each woman gave evidence that Mr Parenzee did not use a condom, and that he ejaculated within each of them on a number of occasions.
If a person becomes infected with HIV, that person can become HIV positive and can then contract Acquired Immunity Deficiency Syndrome (“AIDS”). The evidence was that there is no cure for HIV or for AIDS. AIDS was and is often fatal.
The evidence established that one of the three women was infected with HIV, and that Mr Parenzee was the source of the infection. The other two women were not infected.
Early in the summing up the Judge told the jury:
[51]The accused told you that he was informed that the virus can be sexually transmitted and he was aware that HIV is potentially fatal. On his own evidence, therefore, you might have little difficulty in concluding that the accused knew that by having unprotected sexual intercourse with each of the complainants, that he was performing an act which was likely to endanger their lives. The question you might think in this case is; did he do that act, that is with the knowledge that the act was likely to endanger their lives and being recklessly indifferent to the probability that their lives might be endangered? …
The Judge also said to the jury:
[48]You will recall the medical evidence that even if he did not ejaculate inside, the act of having sexual intercourse without using a condom created a risk that the woman concerned would contract the HIV virus. If you are satisfied beyond reasonable doubt that contracting the HIV virus was likely to endanger the life of each of the women, then you have to consider whether you are satisfied beyond reasonable doubt that the accused knew that his act was likely to endanger life.
[49]The accused told you that he did not ejaculate inside any of the complainants after he had been made aware of the diagnosis and that he believed that if he did not ejaculate inside their vagina, then there was no risk of them contracting the virus. The accused told you that he did not ejaculate inside [the complainant on each count] on any occasion after he had been diagnosed and told he had the HIV virus. That is denied by each of the women. I will come to their evidence in due course.
The Judge directed the jury on numerous occasions in terms that reflected the language of s 29(1) of the CLCA. For example, the Judge said:
[41]The following elements must be proved beyond reasonable doubt. Firstly, the accused did an act or acts, namely, that he had unprotected sexual intercourse. Secondly, the accused performed the act or acts whilst knowing that he had the HIV AIDS virus. Thirdly, the accused knew that the act or acts were likely to endanger the life of the complainant, the person he was having sexual contact with. Fourthly, that he was recklessly indifferent as to whether the complainant’s life was endangered; that is he had a reckless indifference about endangering her life. Fifthly, that the acts were done without lawful excuse.
…
[45]As to the third and fourth elements, the prosecution must prove that the accused consciously and deliberately performed an act which, in fact, was likely to endanger the life of another person. An unconscious or unknowing act would not be sufficient. It is the accused’s knowledge that the act is likely to endanger the life of another that must be proved to your satisfaction. It must be proved that at the time that the act that endangered the life of the victim took place, not only did the accused know his act was likely to endanger life, but he did the act or acts with reckless indifference as to whether the life of the person was endangered.
[46]In this case you might concentrate on reckless indifference. The prosecution does not, as I said, put their case on the basis that the accused intended to endanger the life of any of his sexual partners.
[47]If you accept the evidence of the medical practitioners you may have little difficulty in concluding that in doing that act, that is having vaginal sexual intercourse with each of the complainants, if you conclude that that was an unprotected act, that it was likely to endanger the life of each of the complainants. If you are not satisfied beyond reasonable doubt that on occasions when he was infected the accused ejaculated inside the complainants, then you will have to ask yourselves: are you satisfied beyond reasonable doubt that if he did not ejaculate inside them his act was likely to endanger life.
The jury found Mr Parenzee guilty on each count.
Previous applications to the Court
On 17 February 2006 Mr Parenzee lodged a Notice of Appeal that was apparently rejected as defective. I treat it as irrelevant, see R v Parenzee [2007] SASC 143 (“Parenzee (No 1)”) at [2].
On 9 March 2006 Mr Parenzee filed a Notice of Appeal. He applied for an extension of time within which to apply for permission to appeal against conviction. By r 4A of the Supreme Court Criminal Appeal Rules 1996 (SA) (“the Appeal Rules”) he had 21 days from the verdict (31 January 2006) to appeal or to apply for permission to appeal. By r 21 of the Appeal Rules a single judge or the Full Court can extend that time.
In my reasons in R v Parenzee [2007] SASC 316 (“Parenzee (No 2)”) I summarised the grounds on which permission to appeal was sought as follows:
[7]The application for permission to appeal was based on an argument not advanced at trial. The notice of appeal states that Mr Parenzee’s legal representatives at trial were unaware of significant matters of fact and significant matters of scientific opinion. As I understand it, those matters may be summarised as follows. First, that the HIV virus has never been isolated and has not been proved to exist. Second, that it could not be demonstrated that the HIV virus was transmitted by sexual intercourse, even if it existed. Third, that there was no evidence that AIDS was “caused by a unique infectious agent”, namely, by the HIV virus. In short, Mr Parenzee now wishes to challenge the factual basis upon which it was said that by engaging in unprotected sexual intercourse he had endangered the life of the women in question.
[8]The fact that this material was not before the jury was said to mean that Mr Parenzee had “unfairly lost the opportunity for an acquittal”.
However, the last ground was:
If HIV does exist, the risk of it being sexually transmitted is extremely low.
As far as I am aware that ground was not argued before the single Judge, nor before the Full Court sitting as a Court of Criminal Appeal (the “CCA”).
I summarised the hearing of this application by a single Judge in my reasons in Parenzee (No 2) as follows:
[9]The application for permission to appeal was heard by a single Judge, in accordance with usual practice: see s 367 of the CLCA and r 15 of the Supreme Court Criminal Appeal Rules 1996.
[10]Mr Borick QC, counsel for Mr Parenzee relied on evidence given by two witnesses, Ms Papadopulos-Eleopulos and Dr Turner. He foreshadowed that he would rely on these witnesses ahead of the hearing. Ms McDonald, counsel for the Director of Public Prosecutions (“DPP”) had indicated that the DPP denied that the witnesses were qualified to express the opinions that Mr Borick proposed to lead from them. If correct, that meant that their evidence on the central issues was not admissible on the application for permission to appeal. Ms McDonald also indicated that the DPP would contend that their evidence was, in any event, lacking in any probative force, and should not be admitted for that reason also. The DPP wished to cross-examine Mr Borick’s witnesses, and to call answering evidence on the issue of their expertise and on the probative force of their evidence.
[11]That led to a situation in which the Judge heard evidence and submissions over some 17 days. The DPP called a number of witnesses whose expertise was not challenged, as I understand the position.
[12]The Judge found that Ms Papadopulos-Eleopulos and Dr Turner were not qualified to express an opinion, as an expert, on the question of whether it had been proved that HIV existed as a distinct or separate virus, on the question of whether the virus was transmitted by sexual intercourse nor on the question of whether the HIV virus was the or a cause of AIDS. He rejected their evidence: R v Parenzee [2007] SASC 143; (2007) 248 LSJS 99 at [371]. He found that their evidence was, in any event, of minimal probative value, and that it lacked cogency: Parenzee at [373]. The effect of his finding is that the evidence was completely lacking in any substance.
[13]The Judge accepted the evidence of the witnesses called by the DPP, all of whom he found to be qualified as experts in their respective fields: Parenzee at [372]. He found that the evidence that HIV exists was compelling, that no jury hearing the evidence before him would be in any doubt that it existed, nor in any doubt that HIV is sexually transmissible and is the cause of AIDS: Parenzee at [372].
[14]The Judge refused to extend the time for the making of the application for permission to appeal, because the application lacked any merit.
[15]Exercising the right conferred by s 367 of the CLCA, and by r 15(4) of the Rules, Mr Parenzee requested that his applications be determined by the Full Court. When exercising jurisdiction under the CLCA, the Full Court is usually referred to as the Court of Criminal Appeal (“the CCA”) for convenience, and I will refer to it as the CCA.
[16]Subject to one qualification, Mr Borick did not tender any further evidence in support of the application for permission to appeal. …
There is no need to refer to the qualification last referred to.
When the application for an extension of time within which to apply for permission to be heard was dealt with by the CCA, I came to the following conclusion:
[61]Like the single Judge, this Court can do no more than act on the material now before it. That material overwhelmingly supports the conclusion that the HIV virus exists and is identifiable, that the HIV virus can be transmitted by sexual intercourse, and that it causes AIDS: Parenzee at [250], at [323] and at [337].
[62]This is not a proper case for a grant of permission to appeal. Accordingly, it is appropriate to refuse the application for an extension of time within which to make the application. Were the extension of time to be granted, the appropriate order in any event would be to refuse permission to appeal.
The other members of the Court agreed with my reasons.

An affidavit sworn by Mr Gleeson, the Criminal Appeals Coordinator, was tendered in the present proceedings. It establishes that the order of the CCA has been recorded and served in accordance with the requirements of the Appeal Rules, leading to the conclusion that the application then before the CCA has been finally disposed of.
However, it should be noted that although the single Judge and the CCA heard extensive argument, in each case the order made was an order refusing to extend the time within which Mr Parenzee might apply for permission to appeal against conviction.
Mr Parenzee filed an application on 19 March 2008 by which he applied to “reopen” the previous application heard and disposed of by the CCA. Then on 18 April 2008 he filed another application applying for leave to amend the application filed on 9 March 2006. These applications came before the CCA on 19 June 2008, on which occasion the Court outlined the history of the proceedings, and made some observations about the applications just referred to and the course that might need to be followed by Mr Parenzee were he to pursue the matters which he wished to pursue.
That led to the filing of the applications now before the Court. When the application now before the CCA came on for hearing, Mr Tokley, counsel for Mr Parenzee, applied for leave to withdraw the two applications just referred to. To the extent that permission to do so was required, the Court granted permission to withdraw the applications.
I add that the Court exercised the power conferred by r 21 of the Appeal Rules to dispense with the requirement under r 15 that the applications be first considered by a single judge, and directed that they be heard by the CCA.
Is the application competent?
This Court has decided on several occasions that once it has heard and determined an appeal against conviction under s 352(1) of the CLCA, and once the order disposing of the appeal has been entered in the court records as required by the Appeal Rules, the Court has no jurisdiction to hear a further appeal against the same conviction, and the Court has held that the barrier to it hearing a further appeal is not avoided by asking the Court to “reopen” the hearing of the appeal.
The last occasion on which this Court so decided was in R v Keogh [2007] SASC 226; (2007) 175 A Crim R 153. I will not repeat the reasons that I gave on that occasion for so deciding. I adhere to the decision that I made on that occasion.
But the CCA has not yet heard or disposed of an appeal against Mr Parenzee’s conviction. By refusing to extend the time within which to apply for permission to appeal the CCA decision prevented Mr Parenzee from appealing against his conviction. Even if the Court had granted an extension of time, there would not have been an appeal against the conviction on foot unless and until the Court also granted permission to appeal, acting under s 352(1)(a)(ii) of the CLCA. When the Court decided Parenzee (No 2) Mr Parenzee did not claim that he had an appeal “as of right” because it involved “a question of law alone”: see s 352(1)(a)(i). The consequence was that Mr Parenzee had to obtain not only an extension of time within which to make his application, but he also had to obtain an order granting permission to appeal. Until each of those orders was obtained, no appeal could be on foot.
In R v Spiero [2001] SASC 19, (2001) 78 SASR 531 Mr Spiero had applied for permission to appeal against sentence. After making that application, he escaped from custody. The application for permission to appeal was “summarily dismissed” in his absence, the Court acting under r 20 of the Appeal Rules. Later Mr Spiero made an application for an extension of time within which to seek permission to appeal against his sentence. The order of the Court disposing of the appeal under r 20 had been properly recorded: Spiero at [11]. Ultimately the Court refused to extend the time within which Mr Spiero might apply for permission to appeal against his sentence. But Duggan J, with whom the other members of the Court agreed, said that as the Court had not dealt with an appeal against sentence, but only with an application for permission to appeal, there could be a further application for permission to appeal and, if that were to succeed, an appeal against sentence: Spiero at [13]. His Honour relied in part on observations made by Dawson and Gaudron JJ in Postiglione v The Queen (1996-1997) 189 CLR 295 at 305 where their Honours drew a distinction between dismissal of an appeal and dismissal of an application for permission to appeal. They said:
Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed.
Footnotes omitted
The same distinction was adverted to by Mason CJ, Wilson and Brennan JJ in Coulter v The Queen (1987-1988) 164 CLR 350 at 356 where their Honours said:
The jurisdiction which the Court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation: Collins v The Queen (1975) 133 CLR 120, at p 122. It is a preliminary procedure recognized by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention.
There is a significant difference between the hearing and disposition of an appeal against conviction, and the hearing and disposition of an application for permission to appeal, or for an order extending the time within which to appeal or to apply for permission to appeal. In the latter circumstances, the Court does not entertain or exercise jurisdiction over an appeal until permission is given to appeal, or until an order has been made extending the time within which to appeal and, if permission to appeal is required as well, an order granting permission to appeal is made.
Mr Hinton QC for the Director of Public Prosecutions submits that the distinction that I draw is not decisive. He submits that when the Court considers an application for permission to appeal it often considers the merits of the proposed ground of appeal. He points out that the practice of the CCA, when considering an application for permission to appeal, the application having been refused by a single judge or referred to the CCA, is to treat the hearing of the application for permission to appeal as the hearing of the appeal, in the event that the CCA decides to grant permission to appeal: see Practice Direction 16 of the Criminal Practice Directions 2007. He submits that if the merits of the proposed ground or grounds of appeal have been considered, then even if the order of the Court as a matter of form is that permission to appeal be refused, the power of the Court under s 352(1) of the CLCA to hear and decide an appeal has been exercised, and cannot be exercised a second time. Accordingly, a second application for permission to appeal is not competent. He applies the same reasoning, even if, as here, the earlier application to the Court was for an extension of time within which to apply for permission to appeal.
Mr Hinton submits that this is what Dawson and Gaudron JJ had in mind when in Postiglione v The Queen they said at 305:
Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed.
He relies also on observations made by Mason CJ, Brennan, Deane and Toohey JJ in Bailey v Director of Public Prosecutions (1988) 78 ALR 116 at 117; (1988) 62 ALJR 319; (1988) 34 A Crim R 154. Their Honours said:
When the Court of Criminal Appeal is satisfied that an application for leave to appeal against sentence is without merits, it may rightly refuse leave to appeal rather than grant leave and dismiss the appeal. The grounds of refusal of leave should be stated, though they need not be elaborated. But where there is a sufficiently arguable case, the more appropriate course is to grant leave to appeal, deal with the merits of the argument and then reach a decision allowing or dismissing the appeal. The form of the order will ordinarily be a matter of indifference when the reasons given by the court for disposing of an application show that the case which he has raised has been duly considered, but the form of the order and the statement of the court’s reasons for disposing of the application are both material to an understanding of the way in which the court apprehended the questions for its determination and the way in which it approached the answering of those questions.
Emphasis added
He argues that the passage set out from Postiglione v The Queen, and the passage emphasised in Bailey v Director of Public Prosecutions, make the point that the form of the order is not significant. What is important is whether the Court has considered the merits of the argument, and if it has, then whatever the form of the order the power to hear and decide an appeal against conviction has been exercised and cannot be exercised again.
I disagree. I consider that the observations relied upon by Mr Hinton reflect the distinction that I draw. The reference to the distinction between dismissing an application for leave to appeal and dismissing an appeal being “of no consequence”, and to the form of the order being “a matter of indifference” in my opinion refers to the fact that from a practical point of view, and in particular from the point of view of the parties, the form of the order will ordinarily not matter. The significant thing is that the application has been disposed of. I do not agree that in either case their Honours meant that the form of order made does not matter when considering whether or not the power to hear and decide an appeal has been exercised.
There is a practical reason for not accepting Mr Hinton’s submission. On his approach, if there has been an earlier application for permission to appeal that has been refused, and then there is another such application, the Court hearing the second application will have to examine the transcript of the previous hearing, as well as the reasons given, and decide whether or not the Court considered the merits of the argument, or confined itself strictly (whatever that might mean) to the question of whether permission to appeal should be granted. This is a line that is not easy to draw. When considering whether to grant permission to appeal, the court must give some consideration to the merits of the point that is raised. There are some points that can be stated quite shortly, and sometimes there is nothing more to be said on the point if permission to appeal is granted. Mr Hinton’s submission, in my opinion, would send the Court in pursuit of elusive distinctions in future cases. I recognise that whichever approach is taken to the point now at issue, there may be anomalous results.
I would maintain the distinction that I have drawn.
Mr Hinton supported his submission by a reference to a passage in the reasons of this Court in R v Edwards (No 2) [1931] SASR 376. In that case Mr Edwards appealed against his conviction on matters of law and applied for leave to appeal against conviction on matters of fact. The Court dismissed the appeal against conviction, and refused leave to appeal: at 376. Some months later Mr Edwards applied for an extension of time within which to appeal against his conviction, and for leave to appeal against the conviction. These further applications were based on a claim that new evidence had come to light. The Court refused the application for an extension of time, on the grounds that it had no jurisdiction to grant leave to appeal: at 380.
It was in that context that the Court said at 378:
This Court in its criminal appellate jurisdiction is a statutory Court. An appeal lies to it on any of the grounds mentioned in sec. 5 above quoted. The right of the appellant, under this section, to appeal, has been exercised. There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the Court has power to entertain a second application for leave to appeal, at any rate, where it has not heard the merits of the application. …
Mr Hinton submits that in this passage the Court drew no distinction between a second appeal and a second application for leave to appeal, and makes the point that it was a case in which the Court had previously considered the merits of an appeal against conviction and an application for leave to appeal against conviction.
I am satisfied that when the passage is understood in its context, it does not support Mr Hinton’s submission that there is no material distinction between an appeal and an application for permission to appeal, provided that in the case of an application for permission to appeal the Court has considered the merits of the matter.
In the passage that I have set out, the Court was making the point that as it had previously dismissed an appeal against conviction, it could not entertain a second appeal. Nor could it entertain a second application for leave to appeal because, an appeal against conviction having previously been dismissed, the Court could not grant an application for leave to appeal. In other words, in the particular circumstances of the case, the later application for leave to appeal was incompetent, because it was an application that the Court had no power to grant. Once the context is understood, this passage does not support an argument that the refusal of an application for permission to appeal is a bar to a later application for permission to appeal.
Accordingly, the application before the Court is competent. The application would not be competent, and the Court would have to dismiss it, if the Court had previously dismissed an appeal by Mr Parenzee against his conviction. But the Court has not done so. Its jurisdiction to decide an appeal against conviction has not been invoked.
The fact that in Parenzee (No 1) and in Parenzee (No 2) the single Judge and the CCA respectively heard detailed submissions on the merits is not decisive. It remains the case that there has been no appeal as yet. The course of the earlier applications can be relevant to the question of whether to grant an extension of time, and to the question of whether to grant permission to appeal. The Court is unlikely to make either of these orders if the issues being raised have already been canvassed on an earlier application. In the present case, subject to the one ground referred to above in [22] the matters now raised have not been raised before. The ground that was raised previously, and that appears to introduce issues that Mr Parenzee now wishes to raise, was not argued before the single Judge or before the CCA.
Since preparing my reasons I have had the benefit of considering the reasons prepared by Bleby J.
I acknowledge the force of the argument that he advances in support of a conclusion that the refusal of an application for permission to appeal, if the application has been heard and determined on the merits, is a bar to a later application for permission to appeal. His argument is, in brief, that the statutory jurisdiction vested in the Court is exercised and exhausted by an order dismissing an appeal, or by an order refusing permission to appeal (after a hearing on the merits) and that the difference in form between those orders is, for those purposes, of no significance.
Nevertheless, I remain of the opinion that there is a valid and relevant distinction to be drawn between the dismissal of an appeal, and the refusal of permission to appeal.
I do not consider that the reasons of Rich J and Starke J in Grierson v The King (1938) 60 CLR 431 deny the existence of the distinction on which I rely, although I acknowledge that the reference by Dixon J to an application for leave to appeal (see the reasons of Bleby J at [120]-[121]) supports the argument of Bleby J. I agree with Bleby J that the decision of the Court of Appeal of the Supreme Court of Victoria in R v McNamara (No 2) [1997] 1 VR 257 supports the approach taken by his Honour. So does the decision by that same Court in R v GAM (No 2) [2004] VSCA 117; (2004) 9 VR 640.
The two decisions in question deal with s 567 of the Crimes Act 1958 (Vic). In relevant respects the provisions of s 567 of that Act are indistinguishable from s 352 of the CLCA. That being so, the interests of consistency of approach could be said to support this Court following the decisions of the Court of Appeal of the Supreme Court of Victoria.
The difference of approach between me and Bleby J is of some practical significance, although cases in which the issue will arise are likely to be infrequent. On my approach the refusal of permission to appeal would not ordinarily be a bar to the grant of a later application for permission to appeal, whereas on the approach taken by Bleby J the refusal of permission to appeal would ordinarily be a bar to the grant of a later application for permission to appeal.
Because of the practical significance of the point, and because Bleby J and I each agree that in the end result Mr Parenzee’s application is unsuccessful (although the formal orders that each of us would make differ), I prefer not to come to a final conclusion on the point on which Bleby J and I differ. In my opinion it would be appropriate to leave the point to be settled by a Court constituted of five Judges, in a case in which it is necessary to decide the point.
For those reasons I would not dismiss the applications now made to the Court on the ground that the CCA lacks jurisdiction to entertain an appeal against conviction.
Should the Court grant an extension of time?
I have found the question of whether to grant an extension of time a difficult one. More than two and a half years have passed since the jury returned its verdict. The reason for the delay is that the points now to be argued were not identified as warranting argument until counsel was preparing an application to the High Court for special leave to appeal against the decision in Parenzee (No 2).
There is a definite public interest in insistence upon time limits for appealing against a conviction or a sentence. There is a strong public interest in certainty and finality in the exercise of the criminal jurisdiction. The prospect of a conviction being questioned, and of a retrial, long after the conviction recorded, is unsettling. It is unsettling for persons affected by the circumstances giving rise to the charge, and for those who are witnesses called to give evidence. The prospect of a retrial of a charge, years after the event, and years after a trial, is not a good one. There is a risk that if a charge has to be retried, the passage of time will have had an effect on the quality of the evidence that cannot be anticipated until the retrial is under way. There is always a risk that memories will have faded, or that some evidence will be lost. In the present case Mr Hinton does not point to any particular prejudice to the prosecution case. But until the trial begins, one cannot be sure. So, as I have said, there is a definite public interest in insistence upon time limits.

Also, in the present case the points to be argued, if the procedural obstacles are overcome, were raised at trial, although perhaps not as clearly as they are now. The central point was raised in the application filed on Mr Parenzee’s behalf on 9 March 2006, but was not argued before the single Judge or before the CCA: see above at [22].
Mr Tokley submits in response that if the points to be argued are sound, the conviction is erroneous, but if an extension of time is not granted, Mr Parenzee will continue to serve what is a lengthy term of imprisonment. He submits that this will amount to a miscarriage of justice. That is true. But that will always be the case when an application for an extension of time within which to appeal is made by a convicted person serving a substantial sentence of imprisonment, assuming that the applicant wishes to argue a point that, if right, will lead to an acquittal.
I agree with Mr Hinton’s submission that the Court must consider the length of the delay; the reasons for the delay; the impact upon the public interest of a reopening of the verdict after the time that has expired, and also the merits of the proposed grounds. It is certainly not enough that the proposed grounds are arguable. Indeed, if they are not arguable then that will be sufficient reason for refusing to grant an extension of time. I agree with Mr Hinton that the Court should not grant an extension of time unless, taking all of those factors into account, it is satisfied that there is a real possibility of a miscarriage of justice if an extension of time is not granted. That approach inevitably directs attention to the strength of the grounds of appeal, particularly in a case like this when the explanations for the delay are not particularly satisfactory.
As will appear in due course, I consider that the proposed grounds of appeal are arguable, but that ultimately they fail. As the matter should be disposed of, I would grant an extension of time within which to apply for permission to appeal and within which to appeal, extending the time to 30 June 2008. As I am of the opinion that the appeal should be dismissed, the public interest is not adversely affected by the grant of the extension of time. If I thought that the grounds of appeal succeeded, I would probably have granted an extension of time within which to appeal, because success on the proposed grounds would lead to a verdict of acquittal, in my opinion, and not merely to a retrial. Under those circumstances, allowing the verdict to stand would give rise to a miscarriage of justice. But it is not necessary for me to decide that point.
The grounds of appeal
Two grounds of appeal are put forward. The first of them is in the following terms:
The convictions should be set aside on the grounds that they cannot be supported having regard to the evidence put to the Court at trial and cannot be supported in law for the reasons set out below.
(1)that as a matter of law such evidence as was given by the medical or scientific witnesses as to the transmissibility of HIV could not support a finding by the jury that the accused’s actions in having unprotected sex were “likely” to endanger life within the meaning of s 29 of the Criminal Law Consolidation Act (SA) 1935.
(2)The word “likely” in section 29 of the Criminal Law Consolidation Act (SA) 1935 is to be understood as meaning more probable than not.
This ground is said to raise a question of law alone, and accordingly is said not to require permission to appeal.
The second ground is in the following terms:
The convictions should be set aside on the grounds that they cannot be supported having regard to the evidence put to the Court at trial as:
(1)there was no evidence given, or alternatively, insufficient evidence given, by any of the medical or scientific witnesses called by the prosecution as to the transmissibility of HIV which could justify a finding by the jury that the accused knew his actions were “likely” to endanger life within the meaning of s29 of the Criminal Law Consolidation Act (SA) 1935.
As argued, this ground was said to be, in effect, a complaint that the jury should have had a reasonable doubt as to whether Mr Parenzee knew that his actions were likely to endanger life. On that basis it raises a question of law and fact, and requires a grant of permission to appeal.
Mr Tokley submits that the first ground raises “a question of law alone” for the purposes of s 352(1)(a)(i) of the CLCA. Accordingly, he submits, permission to appeal on this ground is not required.
If ground one raises a question of law alone then, in my opinion, the complaint must be that the evidence before the jury was not as a matter of law capable of supporting a finding beyond reasonable doubt that an act of unprotected sexual intercourse between Mr Parenzee and the relevant complainant was likely to endanger the life of the complainant. If the submission is that the evidence was such that the jury should have had a reasonable doubt on that matter, then the ground raises a mixed question of law and fact, and permission to appeal is required. In argument before the Court Mr Tokley made it clear that ground one is intended to raise a question of law alone.
So understood, I agree that ground one probably does raise a question of law alone. I would, in any event, grant permission to appeal on this ground, because it raises a question of principle and a point that is arguable. It is not necessary for me to decide whether or not the ground does raise a question of law alone.
Underlying Mr Tokley’s submission is an assumption that the prosecution had to satisfy the jury beyond reasonable doubt that acts of unprotected sexual intercourse between Mr Parenzee and each complainant did in fact endanger the life of each complainant. The prosecution case was that the danger lay in the risk of transmission of HIV from Mr Parenzee to the relevant complainant, followed by the risk of the complainant developing AIDS with life threatening consequences. Mr Tokley does not challenge that second step in the prosecution case. His focus is on the evidence before the jury as to the risk of the transmission of HIV as a result of an act of unprotected sexual intercourse.
It may be that the prosecution does not have to prove that an act of unprotected sexual intercourse in fact endangered the life of a complainant. Section 29(1) of the CLCA (set out above at [5]) directs attention to the knowledge or belief of Mr Parenzee. It is possible that the offence in question is committed if Mr Parenzee is proved to have the required knowledge or belief, even if that knowledge or belief is mistaken. But that question can be put to one side. The case was conducted before the jury on the basis that Mr Tokley’s assumption is correct. The passages from the Judge’s summing up, set out above at [17-]-[18], make that plain. Nor was Mr Tokley’s assumption challenged by Mr Hinton. Accordingly, I proceed on the basis that Mr Tokley’s assumption is correct.
Mr Tokley submits that in s 29(1) “likely” means probable, and to be more precise, more probable than not, or better than a 50/50 chance. That is the meaning given to “likely” in Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 309 and at 312, where Bray CJ treated “likely” as synonymous with “probable”. That case was concerned with a statutory provision imposing liability on a person who did work in circumstances in which the person had a reasonable cause to believe that the doing of the work was likely to interfere with or damage property of the Postmaster-General.
The Macquarie Dictionary (4^th ed, 2005) gives the following relevant meanings for “likely”:
1 probably or apparently going or destined (to do, be, etc): likely to happen.
2seeming like truth, fact, or certainty, or reasonably to be believed or expected; probable: a likely story …
That meaning provides some support for Mr Tokley’s submission.
Mr Tokley then submits that the prosecution had to prove at trial that an act of unprotected sexual intercourse had the consequence that the life of the relevant complainant was probably endangered. He submits that the expert medical evidence before the jury was capable of establishing no more than that there was a risk that the life of each complainant was endangered. He submits that the evidence was not capable of supporting a finding that it was more likely than not that the life of each complainant was endangered.
In response, Mr Hinton relies on the decision in Boughey v The Queen (1986) 161 CLR 10, dealing with the provision of the Criminal Code (Tas) that provided that “culpable homicide” was murder if committed “… by means of an unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances …”. In that case the majority (Mason, Wilson and Deane JJ) said that the meaning of the words “probable” and “likely” will vary according to the context in which they are used: at 20. They went on to say at 21:
… In our view, the word "likely" is used in both ss 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial — a "real and not remote" — chance regardless of whether it is less or more than 50 per cent …
Relying on this passage, Mr Hinton submits that it is and was sufficient to establish that the risk of death was a substantial chance, a real and not remote chance.
I consider that the resolution of these submissions lies in the language of the statutory provision. Section 29(1)(a) deals with knowledge that an act “… is likely to endanger the life of another …”. The central concept is that of an act which is likely to endanger life. The Macquarie Dictionary defines endanger as meaning:
To expose to danger; imperil.
It defines “imperil” as meaning:
To put in peril; endanger.
When one focuses on the question of whether an act endangers life, or puts life in peril or in danger, I consider it clear that what is referred to is an act or omission that endangers life in the sense of creating a real or substantial risk to life, or an act that exposes life to a real or substantial risk. It does not make sense to speak, in this context, of whether a risk is probable, or more probable than not. Whatever meaning one gives to “likely” in isolation, I consider that an act is likely to endanger life if the act gives rise to a real or substantial risk to life or threat to life.
I turn then to the expert medical evidence before the jury. I summarised that evidence above at [8]–[12], [15]. That evidence, which was unchallenged, was capable of supporting a conclusion that an act of unprotected sexual intercourse between Mr Parenzee and each of the complainants gave rise to a risk or threat to the life of the relevant complainant that was a real risk or threat, or a substantial risk or threat. The risk could not be described as insignificant or trifling.
The evidence was to the effect that a person infected with HIV is always contagious. The risk of transmission of HIV is always present when intercourse occurs. There is no form of safe sexual intercourse. Vaginal sexual intercourse is one of the principal means by which HIV can be transmitted. The tenor of the expert evidence was that a person infected with HIV should take careful precautions to avoid exposing a sexual partner to infection with HIV.
As the expert said, it was not possible to quantify the risk of transmission of HIV on a particular occasion. Quantification would require detailed knowledge of factors that must remain unknown. But the tenor of all of the evidence was that unprotected sexual intercourse was something that should be avoided, because of the risk of transmission of HIV.
In addition to the expert medical evidence about the transmission of HIV, the jury also were told that the complainant the subject of count two became infected with HIV, and that Mr Parenzee was the source of that infection. That was not disputed. That provided some further evidence of the risk attaching to unprotected sexual intercourse.
The tenor of all of the expert evidence was that a person infected with HIV should not engage in unprotected sexual intercourse because of the risk of transmission of HIV, which risk was clearly treated as a significant risk.
I have no doubt that the evidence before the jury was capable of supporting the required finding. To the extent that the submission was that the jury should have had a reasonable doubt on this question, I would reject that submission also. It was open to the jury to be satisfied beyond reasonable doubt that acts of unprotected sexual intercourse endangered the life of the relevant complainant.
I turn to the second ground of appeal which is directed to Mr Parenzee’s knowledge that unprotected sexual intercourse was likely to endanger the life of each of the complainants. I begin with a brief chronology. I will refer to the complainants respectively as C1 (the complainant in respect of the first count), C2 (the complainant in respect of the second count) and C3 (the complainant in respect of the third count).
Each count is based on alleged acts of unprotected sexual intercourse. The first count relates to a period between 22 September 1998 and 21 July 2003. The second count relates to a period between 1 August 2000 and 15 July 2001. The third count relates to a period between 8 August 2004 and 15 October 2004.
Mr Parenzee had a relationship with C1 over a number of years, and children were born to them in 1990 and 1994. In 1998 Mr Parenzee and C1 were living apart. Their relationship appears to have had a number of ups and downs.
In September 1998 Mr Parenzee was admitted to hospital. C1 visited him while he was in hospital, and they discussed resuming their relationship, and talked about marriage.
Mr Parenzee was diagnosed as infected with HIV on 21 September 1998. At about that time he received advice from a number of doctors about the implications of being infected with HIV. I will return to that topic. On 21 October 1998, after the diagnosis, a “family conference” was held involving Mr Parenzee, members of his family and doctors involved in his treatment. The purpose was to explain to members of the family the risk of infection, the approach to treatment and so on. Mr Parenzee did not invite C1 to this conference.
Mr Parenzee and C1 began to live together not long after he was discharged from hospital. He claimed that he had told her that he was infected with the HIV virus, even though he did not invite C1 to the family conference. She denied that. They were married on 7 November 1998.
Mr Parenzee and C1 separated in about June or July 2000.
Mr Parenzee met C2 in about August 2000. The sexual relationship developed quite quickly. They were soon living together. Mr Parenzee agrees that he did not tell C2 that he was HIV positive. His explanation for this was that he feared that he would lose her if he did so, that he could not find a way of telling her, and that he thought that because (as he claimed) he did not ejaculate inside her during intercourse, intercourse was “safe”.
C2 discovered that Mr Parenzee was infected with HIV in July 2001. In the same month she learned that she was infected with HIV. There was strong evidence that Mr Parenzee soon knew that he was the source of C2’s infection.
Mr Parenzee was questioned by police in October 2002 in relation to intercourse with C2, and in relation to endangering her life. He was charged with endangering the life of C2 in April 2003.
Mr Parenzee met C3 in August 2004. A sexual relationship began quite quickly. Mr Parenzee did not tell C3 that he was HIV positive. The reasons he gave were much the same as the reasons for not telling C2.
C3 learned that Mr Parenzee was HIV positive in November 2004.
Mr Parenzee’s answer to the charges was, in effect, that he never ejaculated inside the vagina of C1, C2 or C3. He always believed that unprotected sexual intercourse with each of them was safe, because, as he claimed, he withdrew his penis from the vagina of the relevant complainant before ejaculating. He did not claim that he used condoms or other protective devices. When cross-examined about the evidence given by various doctors of advice given to him at about the time he was diagnosed as infected with HIV, including the occasion of the family conference, Mr Parenzee said that he was not aware of the risk of transmission of HIV by sexual intercourse at that time (late 1998). His response to cross-examination was along the lines that he was told very little about the risks of transmission, and understood very little. Nevertheless, he maintained that he thought that because he withdrew before ejaculating, unprotected sexual intercourse was safe. He claimed that it was only in about March 2003, when he went to a clinic (the O’Brien Street Clinic) that treats a lot of people who are HIV positive, that he was told about the risk of infection as a result of unprotected sexual intercourse.
Evidence relevant to the question of whether Mr Parenzee knew that unprotected sexual intercourse with C1, C2 and C3 was likely to endanger the life of each of them came mainly from two sources. First, the doctors who treated Mr Parenzee. Second, Mr Parenzee himself.
To the extent that the second ground of appeal is expressed in a way that implies that the prosecution case depended entirely on expert medical evidence, that suggestion is false. Evidence from Mr Parenzee, or indeed from other sources, is relevant to this issue.
When the doctors who treated Mr Parenzee in 1998 gave evidence, they relied on contemporaneous notes made in medical records. Not surprisingly, the medical witnesses had a limited memory of Mr Parenzee in particular, and a limited memory of what they had told him. However, they were able to give evidence of what they would have told him, having regard to the diagnosis that Mr Parenzee was infected with HIV.
Dr Read, Dr Gieroba and Dr Peh each had dealings with Mr Parenzee when he was in hospital in September 1998 and was diagnosed as infected with HIV. Each of them saw him between 21 September 1998 (the day of the diagnosis) and 24 September 1998, when Mr Parenzee was discharged from hospital.
The tenor of the evidence of each of them is that, having regard to the diagnosis, the risk of transmission of HIV was a matter that would have been explained with some care to Mr Parenzee, at that time. Their evidence is that other matters, such as the effects of the infection and approaches to treatment, would also have been discussed. Dr Peh made the point that the risk of transmission of HIV was “a serious health matter” and that accordingly this topic would have been discussed in some detail. Dr Read said that he would have made sure that a patient in Mr Parenzee’s situation understood how HIV was transmitted. It would have been important to tell Mr Parenzee that he should discuss the risk of transmission with his current sexual partner. The tenor of their evidence is that they would have told Mr Parenzee that HIV could be transmitted by sexual intercourse. Each of them said that he would not have told Mr Parenzee that it was “safe” to have unprotected sexual intercourse, nor that it was safe to have unprotected sexual intercourse if Mr Parenzee withdrew before ejaculation.
There seems to be no doubt that Mr Parenzee participated in a family conference on 21 October 1998. The purpose of this conference was to explain to family members the significance of the diagnosis of HIV, and to inform them about treatment and risks of infection. Mr Parenzee admitted that he did not invite C1 to this conference. Although the evidence about the family conference is not particularly clear, the inference could be drawn that at the family conference the same matters were canvassed as were canvassed by the doctors when dealing only with Mr Parenzee.

Despite the limited memory that the doctors had of their conversations with Mr Parenzee, it was open to the jury to conclude that the three doctors referred to canvassed with Mr Parenzee the issue of transmission of HIV, with some care and in some detail, because of the importance of the topic, and for the very reason that there was an established risk of transmission of HIV through intercourse, and because of the risk to life that that entailed. (This evidence provides further support for the prosecution case on the first ground of appeal.)
Indeed, it would be surprising if these matters were not explained with care to Mr Parenzee, once the diagnosis was made on 21 September 1998. Mr Parenzee’s evidence on this topic is of some significance.
Early in his examination-in-chief Mr Parenzee’s counsel asked him about his understanding, in the first few weeks after he was diagnosed as infected with HIV, as to how HIV could be transmitted from one person to another. Mr Parenzee’s answer was that HIV could be transmitted “through fluids” and “through sex”, which he said meant through semen. The following passage of evidence summarises what he said (transcript 392):
QAnd in particular what was your understanding of the way in which the virus could be transmitted by way of semen.
AThat if the semen went, if it went inside of the person that you were having sex with, that it will actually infect the person.
QWere you given any advice about the use of condoms.
AI was told to use condoms.
QAnd did you use condoms in your relationship with [C1].
AYes, I did.
QFor how long.
ANot very long at all. We tried it, and [C1] said she didn’t like the sensation of it and also the fact that she said – I said to her that it was restricting me as well, and she preferred it without.
QWhat precautions did you take, if any, to ensure she did not get the virus.
AI made sure that every time we did have sex that I ejaculated either, depending on the sexual position we were having at the time, to ejaculate outside of her on her stomach or on her leg or on her back or somewhere where it doesn’t go in her vagina or inside of her.
When cross-examined Mr Parenzee maintained that he knew and understood little about HIV and the risk of transmission until he attended the O’Brien Street Clinic, and that in the evidence that I have summarised above he was referring to the knowledge that he had at this later time.
Mr Parenzee said that he had no memory of the doctors who treated him in September 1998, and that he was not told that unprotected sexual intercourse was not safe, and was not aware of the risk of transmission of HIV as a result of unprotected sexual intercourse.
It was for the jury to decide whether or not it accepted what Mr Parenzee said. It was open to the jury to conclude that the answers he gave in examination-in-chief were truthful, and that the qualification that came in his cross-examination was not truthful.
Later in his evidence, and particularly when he was cross-examined, Mr Parenzee maintained that he believed that unprotected sexual intercourse was safe if he withdrew before he ejaculated. Each of the relevant doctors denied telling Mr Parenzee that that practice was safe. The medical evidence demonstrated that it was not safe. It was open to the jury, if it saw fit, to reject Mr Parenzee’s evidence that he believed that unprotected sexual intercourse was safe.
Mr Parenzee claimed that he told C1 that he was infected with HIV. If that evidence was true, it is strange that he did not invite her to the family conference on 21 October 1998. In her evidence C1 denied that Mr Parenzee ever told her that he was infected with HIV, until much later in the piece when she learned of this from another source. It was open to the jury to infer that Mr Parenzee did not want C1 to know that he was infected with HIV, because he was aware of the risk of transmission of HIV, and wanted to engage in unprotected sexual intercourse with C1 despite the risk.
More significant is the fact that Mr Parenzee admitted not telling C2 or C3 that he was infected with HIV. It was open to the jury to reject his explanations as unconvincing. It was open to the jury to come to a conclusion that Mr Parenzee concealed the fact that he was infected with HIV because he wanted to engage in unprotected sexual intercourse with C2 and C3 despite the risk.
A striking circumstance of the case is that Mr Parenzee had been charged with endangering the life of C2, by having intercourse with her, before he met C3. There was strong evidence that Mr Parenzee knew that he had infected C2 with HIV before he met C3. The fact that he did not inform C3 that he was infected with HIV, despite all this, could lead the jury to conclude that his explanation for not informing C3 of the true position was, not that he was unaware of the risk to life through engaging in unprotected intercourse, but was attributable to a wish to continue to have unprotected sexual intercourse despite the risk.
In my opinion the evidence from the doctors who dealt with Mr Parenzee at the time of his diagnosis, standing alone, provided a solid basis for the jury to find, if it saw fit, that by late September 1998 he knew that by having unprotected sexual intercourse with a woman he would create a real or significant risk of infecting the woman with HIV. The evidence that Mr Parenzee gave about his state of knowledge and belief was, on my own assessment, unconvincing. In any event, it was certainly open to the jury to reject much of his evidence.
In my opinion there was ample evidence upon which the jury could arrive at a verdict of guilty on each of the three counts. I reject the submission that the jury should have had a reasonable doubt, based on Mr Parenzee’s claim that he did not know that unprotected sexual intercourse created a risk of infecting C1, C2 and C3 with HIV.
Orders
I would extend the time for the filing of a Notice of Appeal and a Notice applying for permission to appeal, to 30 June 2008. To the extent necessary I would grant permission to appeal on each of the grounds of appeal. I would dismiss the appeal against conviction.
BLEBY J: I will not repeat the facts and circumstances giving rise to this appeal. I am content to rely on the description of those facts and circumstances given by the Chief Justice.
Competency of the present applications for extension of time
In the light of the decision of this Court in R v Parenzee[1] (“Parenzee (No 2)”) I would dismiss these applications for extension of time as being incompetent. In Parenzee (No 2) the Court refused an extension of time within which to make an application for permission to appeal against conviction. The Court indicated that, if an extension were granted, the appropriate order would be to refuse permission to appeal. In doing so, the Court considered and rejected the intended ground of appeal, and considered that it was not a proper case for a grant of permission to appeal. It was on that ground alone that the extension of time was refused.
[1] [2007] SASC 316.
In my opinion it does not matter, in those circumstances, that the formal order of the Court was a refusal to extend time rather than a refusal to grant permission to appeal. The refusal of the extension of time was because there was not an arguable case for granting permission to appeal. There was no case for granting permission to appeal because there was no prospect of the intended appeal succeeding.
The grounds on which the appellant then relied were not the same as the grounds now relied on. However, in my opinion, that makes no difference.
There is no doubt that once this Court has determined an appeal against conviction under s 352(1) of the Criminal Law Consolidation Act 1935 (SA) and the order has been perfected, the Court has no jurisdiction to hear a further appeal on the same or any other grounds against the same conviction, either by way of bringing a fresh application or by way of application to re-open the earlier appeal.[2]
[2] See Grierson v The King (1938) 60 CLR 431; Stone (1989) 42 A Crim R 189 at 191; R v Keogh (2007) 249 LSJS 315; [2007] SASC 226 at [45] – [81].
In R v Edwards(No 2)[3] the applicant applied for an extension of time within which to file notice of an appeal against conviction and to apply for leave to appeal against his conviction on the ground that fresh evidence had come to light which, with reasonable diligence, could not have been known prior to his trial or prior to other applications which he had previously made. Those previous applications included an appeal against conviction on matters of law, an application for leave to appeal against his conviction on matters of fact and an application for leave to appeal against his sentence. The earlier appeal had been dismissed and the applications for leave had been refused. With the possible exception of a notice of abandonment of an appeal by the appellant, this Court held that it had no jurisdiction to entertain a subsequent application for leave to appeal. In their joint judgment[4] the Court said:
This Court in its criminal appellate jurisdiction is a statutory Court. An appeal lies to it on any of the grounds mentioned in sec. 5 [of the Criminal Appeals Act 1924 (SA)]. The right of the appellant, under this section, to appeal, has been exercised. There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the Court has power to entertain a second application for leave to appeal, at any rate, where it has not heard the merits of the application.[5] [Emphasis added]
[3] [1931] SASR 376.
[4] Angas Parsons, Napier and Piper JJ.
[5] [1931] SASR 376 at 378.
On its face the decision of the Court applied to both a second appeal and to a second application for leave to appeal.
In R v Gibbings[6] a Full Court of five Judges of the Court[7] confirmed the decision in Edwards (No 2) but held that a failed application for leave to appeal against sentence did not prevent a subsequent application for leave to appeal against a conviction. Of the decision in Edwards (No 2) the Court said:
It is clear also from the decision … that all grounds for attacking the conviction must be included in the appeal against conviction.[8]
[6] [1936] SASR 204.
[7] Murray CJ, Angas Parsons, Richards and Cleland JJ and Reed AJ.
[8] [1936] SASR 204 at 205.
The decision of the High Court in Grierson v The King[9] has been applied by this Court as recently as last year in R v Keogh.[10] In Grierson there had been an appeal by the applicant against his conviction and sentence which had been dismissed by the New South Wales Court of Criminal Appeal. He later applied for leave to appeal against his conviction and sentence. The Court of Criminal Appeal dismissed the application on the ground that an appeal had already been maintained to the Court and dismissed after the merits had been determined. In the course of his judgment, with which Davidson and Halse Rogers JJ concurred, Jordan CJ said:
The point which has been raised is exactly covered by the decision … in R v Edwards [No 2], and I am of opinion that this Court should follow that decision. When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light. This does not mean that injustice must necessarily occur when new substantial evidence pointing to a prisoner’s innocence is discovered after his appeal has been finally disposed of. In such a case recourse may be had to sec. 26 of the Criminal Appeal Act, 1912, or to sec. 475 of the Crimes Act 1900. There is no reason to suppose that the procedure provided by those sections is not adequate for the consideration of any matter which it may now be sought to raise on behalf of the prisoner. For these reasons I am of the opinion that the preliminary objection taken on behalf of the Crown must be sustained, and that we must decline to entertain the present application.[11]
[9] (1938) 60 CLR 431.
[10] (2007) 249 LSJS 315; [2007] SASC 226.
[11] See Grierson v The King (1938) 60 CLR 431 at 432-433.
In dismissing his subsequent appeal to the High Court,[12] Rich J considered that “when the Court has heard an appeal on its merits and given its decision the appeal cannot be re-opened”.[13] Starke J agreed “entirely” with the reasons given by Jordan CJ[14]. Dixon J said:
The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R v Edwards [No 2]), that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.
In my opinion this conclusion is correct. The jurisdiction is statutory, and the Court has no further authority to set aside a conviction upon indictment than the statute confers.[15] [Emphasis added]
[12] Grierson v The King (1938) 60 CLR 431.
[13] Ibid 434.
[14] Ibid 435.
[15] Ibid.
Dixon J concluded:
If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal (Halsbury’s Laws of England, 2^nd ed., vol. 9, p. 273, and the cases cited in note o). But in such a case there has been no determination by the Court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.[16]
[16] Ibid 436-437.
McTiernan J agreed with the reasons of Rich and Dixon JJ.
It should be noted that the emphasis in both Edwards (No 2) and Grierson was on whether the earlier appeal or application had been dealt with on the merits. It should also be noted that the decision in Edwards (No 2) has been accepted, without qualification, not only by later decisions of this Court but by the High Court. It has also been followed by the Victorian Court of Appeal.
In R v McNamara (No 2)[17] an earlier application for leave to appeal against conviction had been dismissed. One of the intended grounds of appeal in that application was that the trial judge had erred in refusing to allow the applicant to give unsworn evidence. However, that ground had not been argued by counsel. There was a subsequent application to re-open the earlier application and to argue the ground not previously argued. That application was dismissed by the Victorian Court of Appeal. The question for determination was stated in the joint judgment of Winneke P, Charles JA and Southwell AJA as follows:
The question which first falls for consideration is whether this Court has jurisdiction to accede to an application, however made, to re-open an appeal or an application for leave to appeal (no distinction should be drawn for present purposes) which has been heard and determined on its merits.[18]
[17] [1997] 1 VR 257.
[18] Ibid 260.
The Court discussed a number of cases, including R v Edwards (No 2), where Courts had held that there was jurisdiction to re-open an earlier appeal where notice of abandonment had been given by the appellant, but only in very restricted circumstances which are not relevant here, and where the notice of abandonment was to be considered as a nullity.
The Court referred to the observations of Jordan CJ in the New South Wales Court of Criminal Appeal as reported in Grierson v The Queen,[19] and concluded:
Even without further authority, we would respectfully have agreed with those observations, which are here apt. In the present case, the application was “fully heard and disposed of”, notwithstanding the fact that not all grounds of appeal were argued. When counsel has been heard to argue all grounds he wishes to argue, the application has been “fully heard”.[20]
[19] (1938) 60 CLR 431 at 432-433.
[20] Ibid 264.
The Court then referred to the several judgments in Grierson, to which reference has already been made, and turned to what was said to be the “distinguishing factor” in the instant case:
The distinguishing factor, it was said, was that, here, there has been no determination on the merits, since ground 9 has not been argued. We are quite unable to accept that submission as correct. It is to interpret the expression “on the merits” as excluding such of the merits as counsel at the time did not regard as worthy of argument, with the result that an applicant can “continue to appeal from time to time … whenever a new point occurs to him or to his legal advisers …” (to quote again some of Jordan CJ’s words in Grierson).
As the Court said in Edwards at 380:
The consequences of holding that this Court has jurisdiction to entertain further appeals from time to time after the dismissal of an appeal, would lead to manifest inconvenience and, possibly, great absurdity.[21]
[21] Ibid 264.
The Court then considered whether there was anything in Pantorno v The Queen[22] which would qualify or cast doubt upon the authority of the decision in Grierson and decided there was not.
[22] (1989) 166 CLR 466.
The Court’s conclusion is summarised in the following passage:
What has been set out above compels us to conclude that, at least in the absence of fraud or some fundamental procedural mistake, where an order of this court (or its predecessor) dismissing an appeal on the merits has been perfected, the court is functus officio.
This restriction on the power of the court has not been shown in the past to have prevented the correction of any established miscarriage of justice. If it be shown that such a miscarriage of justice continues to have effect – for example, if irrefutable evidence shows that an imprisoned person is or may very well be innocent, then the present availability of a petition for mercy will correct that injustice.[23]
[23] [1992] 1 VR 257 at 268.
The right of appeal conferred by ss 567 and 568 of the Crimes Act 1958 (Vic) are not materially different from those conferred in this State by ss 352 and 353 of the Criminal Law Consolidation Act 1935 (SA).
The reasons in Edwards (No 2), now followed or approved in a number of jurisdictions, would appear to apply whether the earlier proceeding was an appeal or an application for leave to appeal which had been dismissed. It may, however, be possible to distinguish Edwards (No 2) from this case because there was, in that case, an appeal as well as an application for leave to appeal, which had been dismissed. However, it is difficult to distinguish R v McNamara (No 2) from this case, where all that had previously occurred was an application for leave to appeal which had been dismissed. Once again, the emphasis was on whether the application had been “fully heard” on the merits and that included an opportunity, whether taken or not, to argue any ground of appeal.
It remains to be seen whether any decisions subsequent to R v McNamara (No 2) affect the position. Reliance was placed on the dictum of Dawson and Gaundron JJ in Postiglione v The Queen.[24] That case was decided by the High Court a little less than one month after the decision of the Victorian Court of Appeal in R v McNamara (No 2). In Postiglione the appellant was tried separately from his co-offender. He was granted leave to appeal against his sentence. The appeal was dismissed. All that took place before the trial of his co-offender, as he was to give evidence for the prosecution at his co-offender’s trial. In the High Court it was not clear whether the order on appeal had been perfected. After the trial and sentencing of his co-offender, Postiglione was granted leave by the New South Wales Court of Criminal Appeal to appeal against the severity of his own sentence on the fresh ground of disparity between the time he was required to serve as a result of the conviction and the time his co-offender was required to serve. His appeal to the Court of Criminal Appeal was dismissed. He appealed to the High Court. He succeeded in his argument on parity but, because of the uncertainty as to whether the earlier order had been perfected, the matter was remitted to the New South Wales Court of Criminal Appeal, the High Court recognising that if the order had been perfected, he would have to rely on a petition for mercy. If it had not been perfected, the Court of Criminal Appeal could make an order in conformity with the decision of the High Court.
[24] (1997) 189 CLR 295 at 305.

All judges who referred to it affirmed the correctness of the decision in Grierson v The King.[25] It was in those circumstances that Dawson and Gaudron JJ said:
Some of the procedural difficulties involved in this case are referable to the fact that Postiglione was sentenced and his application for leave to appeal determined before his co-offender, Savvas, was brought to trial. That is the course usually taken in cases where an accused has agreed to give evidence against a fellow criminal. And there are good reasons why that course should be followed. However, it involves the difficulty, if leave to appeal against sentence is granted and the subsequent appeal dismissed, that a person in Postiglione’s position is denied an opportunity to complain of sentence disparity.
Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed.[26] However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed.[27] An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed.[28]
[25] (1938) 60 CLR 431. See Postiglione v The Queen (1997) 189 CLR 295, 300 Dawson and Gaudron JJ, 315 McHugh J and 326 Gummow J. The correctness of Grierson has not subsequently been questioned in the High Court: See Elliott v The Queen (2002) 82 ALJR 82, 85; (2007) 239 ALR 651, 654; [2007] HCA 51, [7]; Burrell v The Queen [2008] HCA 4, [25].
[26] See Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 at 319-320; 78 ALR 116 at 117, per Mason CJ, Brennan, Dawson and Toohey JJ.
[27] As to the special features which distinguish an application for leave or special leave to appeal from other legal proceedings, see Coulter v The Queen (1988) 164 CLR 350. See also Collins v The Queen (1975) 133 CLR 120 at 122, per Barwick CJ, Stephen, Mason and Jacobs JJ; Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102 at 105; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 and Carson v John Fairfax & Sons Ltd (1991) 173 CLR 194. See also R v Gibbings [1936] SASR 204 where an application for leave to appeal against conviction was entertained notwithstanding that an earlier application for leave to appeal against sentence had been dismissed, it being held that there may be separate appeals against sentence and conviction.
[28] (1997) 189 CLR 295, 304-305.
Several observations should be made about that passage. In the first place, the remarks do not form part of the ratio decidendi of Postiglione. They were made obiter, and were not necessary for the decision. Secondly, the observations in the second paragraph quoted above must be read in the light of the concern expressed at the end of the first paragraph, namely a concern that an appellant might be denied a right of appeal as a result of subsequent action taken by the Court. Thirdly, the remarks are prefaced by the observation that, ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal is dismissed. Fourthly, the observation that “there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed” appears to be supported by authorities which suggest that there is no proceeding before the court until an application for leave has been given, and this in turn would appear to relate to the fact that, historically, applications for leave to appeal were brought orally on motion before the Court, albeit on notice. That is not the practice of this Court. An application for permission to appeal is made by written application and almost invariably involves some argument as to the merits of the appeal. It is akin to a filtering process. The application is dismissed if the Court is of the view there is no arguable case, and is granted if there is. The application is heard in open Court and often involves full argument on the appeal.[29] Finally, the purpose of the passage seems to be to suggest a procedure for adoption where an accused person appeals unsuccessfully against his sentence before the trial and sentencing of a co-accused takes place. In my opinion, the dictum is to be read as having application to the rather peculiar circumstances then before the Court. It was not a suggestion adverted to by any of the other three judges of the Court.
[29] See Criminal Practice Direction 16.
Notwithstanding the observations of Dawson and Gaudron JJ in Postiglione v The Queen[30], the Victorian Court of Appeal has since confirmed the position taken by that Court in R v McNamara (No 2).[31] In R v GAM (No 2)[32] the accused was convicted of a number of sexual offences against his step-daughter. He applied for leave to appeal against his convictions and sentence. The application for leave to appeal against the convictions was refused. The application in respect of the sentence was successful. The appeal was allowed and the sentence reduced. The Court’s determinations had been perfected. He later applied for an extension of time within which to file a further application for leave to appeal against the convictions on the ground that the complainant had given false evidence at the trial. The Court held that it had no power to reopen either an application for leave to appeal or an appeal which had been determined on the merits, even where fresh evidence was sought to be adduced.
[30] (1997) 189 CLR 295 at 305.
[31] [1997] 1 VR 257.
[32] (2004) 9 VR 640.
Winneke P wrote the principal judgment. He conducted an exhaustive analysis of the position in the UK and of the Australian cases, including whether there was any exception to the principle established by Grierson.[33] Of the passage quoted above from the joint judgment of Dawson and Gaudron JJ, Winneke P said:
These observations suggest that their Honours are drawing a distinction between the refusal of an application for leave to appeal, and the formal dismissal of an appeal. Their Honours appear to conclude that a refusal of an application for leave, even after the merits have been considered, is of an interlocutory nature, and will not prevent the re-opening of that application and the appeal in the event that it becomes necessary when further relevant facts are known. Whether their Honours were intending to confine their remarks to applications for leave to appeal against sentence in circumstances where co-accused were to be sentenced at a later time (and were, in essence, suggesting that the orders should not be perfected until the co-offenders fate is known), or whether their Honours were intending their remarks to apply generally to all applications for leave to appeal, be they against conviction or sentence, is not entirely clear to me. Their Honours referred to a number of decisions which discuss special features distinguishing applications for leave or special leave to appeal from other legal proceedings, both criminal and civil in nature. Each of those decisions involves circumstances which are quite different in their nature from those which apply to criminal appellate procedures which derive from the Criminal Appeals Act 1907 (UK).[34] (Footnotes omitted)
[33] (1938) 60 CLR 431.
[34] (2004) 9 VR 640, 656; [2004] VSCA 117, [31].
His Honour concluded:
In the light of the review which I have made of the authorities in England and in this country, I do not accept the submission of counsel for the applicant that such authorities bind this court to draw a distinction between the power of an appellate court to re-open a criminal appeal which has been dismissed on the merits and an application for leave which has been refused after argument upon the merits. Counsel has relied, for the existence of such a distinction, upon the various judgments delivered in Postiglione , above, particularly the joint judgment of Dawson and Gaudron JJ where their Honours state that there is “no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed”. However, neither McHugh J nor Gummow J expressed any view supporting the validity of such a distinction; and Kirby J expressed the view that, in circumstances where the sentencing of the co-offender remains outstanding, it may “well be sensible to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons”. (Emphasis added.) However, his Honour further stated that he was prepared to assume that there was, in the case at hand, “no jurisdictional barrier to the appellant's second application”. His Honour did not find it necessary to refer to Grierson v R.
In the light of the peculiar circumstances which existed in Postiglione, and the various reasons given by the judges to resolve them, I cannot accept the submission of the applicant's counsel that the decision binds this court to conclude (contrary to Grierson v R) that an application for leave to appeal against conviction which has been dismissed or refused on its merits can be re-opened on the basis of “fresh evidence”; but that an appeal against conviction, which has been dismissed on the merits, cannot. That would truly be “an expedient” because it would wholly depend upon the words used by the appellate court in disposing of the application.[35]
[35] Ibid 657-658, [34]-[35].
I respectfully agree with those observations. Callaway JA delivered a short concurring judgment and Eames JA agreed with Winneke P. Although not binding on this Court, given the similarity of the legislation, the decisions of the Victorian Court of Appeal in R v McNamara (No 2)[36] and R v GAM (No 2)[37] are highly persuasive and should be followed. There is nothing in any other decisions of this Court which would suggest otherwise.
[36] [1997] 1 VR 257.
[37] (2004) 9 VR 640; [2004] VSCA 117.
In R v Brain[38] the appellant had sought and obtained leave to appeal against his sentence of imprisonment. Pending the hearing of the appeal he was released on bail. When his appeal came on for hearing he failed to attend Court in breach of his bail conditions. The appeal was struck out because of his continuing failure to attend at Court. He later voluntarily surrendered himself to the police and was taken into custody. He subsequently filed an application seeking an order that the dismissal of his original appeal be set aside and for leave to appeal against his sentence. One of the issues to be decided was whether the earlier dismissal of the appeal could be set aside. In reasons with which Wicks J and I concurred, the Chief Justice noted:
It is well established that the legislation is to be read as permitting only one appeal against conviction and only one appeal against sentence. There are powerful legal and practical reasons for so deciding. It suffices to refer to the following decisions binding this Court: R v Edwards (No 2) [1931] SASR 376; Grierson v The King (1938) 60 CLR 431; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; Postiglione v The Queen (1997) 189 CLR 295. The same view has been taken of similar legislation in other States: Saxon (1998) 101 A Crim R 71 (Court of Criminal Appeal, New South Wales); Stone (1989) 42 A Crim R 189 (Court of Criminal Appeal, Western Australia); R v McNamara (No 2) [1997] 1 VR 257 (Court of Appeal, Victoria).
A number of decisions suggest that if the order of the Court disposing of an appeal has not been entered in the formal record, or has not been perfected, the Court may re-open the appeal and, if necessary, recall an order disposing of the appeal: R v Caruso at 477-478 White J, at 487 Legoe J and at 487-488 von Doussa J; Stephens (1990) 48 A Crim R 323 at 326-337; Lapa (No 2) (1995) 80 A Crim R 398 at 403-405; McNamara at 267-278; Postiglione at 299-300 Dawson and Gaudron JJ, at 315 McHugh J cf at 343 Kirby J.
A similar approach has been taken by the High Court in relation to decisions of a court exercising civil jurisdiction: see Smith v NSW Bar Association (1992) 176 CLR 256 and Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300.[39]
[38] (1999) 74 SASR 92; [1999] SASC 358.
[39] Ibid 99; [46] – [48].
The Chief Justice then considered whether the earlier order had been perfected and decided that it had. He then considered two limited exceptions where an appeal, finally disposed of, may be re-opened, namely the narrow exception of withdrawal, in certain cases, of a notice of abandonment discussed in R v McNamara (No 2) and the possible exception identified in Pantorno v The Queen[40] where there may have been an inadvertent denial of procedural fairness.[41] Those exceptions did not apply to Mr Brain. The Chief Justice noted that this was a case in which the merits of the earlier appeal had not been considered at all and continued:
In a number of cases in which the point has been made that there can be no second appeal, and no reopening of an appeal that has been finally disposed of, reference is made to the fact of the appeal having already been disposed of on its merits: instances of this are to be found in R v Edwards (No 2) [1931] SASR 376 at 378; in Grierson v The King (1938) 60 CLR 431 at 434 and 435; in Stone (1989) 42 A Crim R 189 at 191; in Postiglione v The Queen (1997) 189 CLR 295 at 300 and at 315. Similar references can be found in other cases.
This suggests to me, although it is by no means conclusive, that in the cases to which I have referred the Court has been directing its mind to an appeal that has been determined on the merits, in the sense that submissions in support of the substance of the appeal have been put to the Court and considered and dealt with. None of the cases to which I have referred is a case in which the appeal was dismissed, without any hearing on the merits, on the grounds that the appellant had absented himself from the appeal in breach of his conditions of bail.[42]
His Honour concluded:
I have come to the conclusion that as the merits of Mr Brain's appeal were not considered at all, and as the order dismissing the appeal is an order for summary dismissal, this Court has an inherent power to revoke that order and to resume the hearing of the appeal. It has power to do that even though the appeal by Mr Brain was finally disposed of. I consider that to recognise this limited exception is not inconsistent with the line of authority to which I have referred. As I have mentioned, I have not found any case dealing with the circumstances now before the Court. I consider that it is consistent with the interests of justice to conclude that the Court has an inherent power of the type identified by me. The power is available for exercise in very limited circumstances. I do not consider that to hold that such a power exists is likely to have consequences that are adverse to the public interest in the due administration of justice.[43]
[40] (1989) 166 CLR 466.
[41] Whether such an exception to Grierson exists was expressly reserved in Burrell v The Queen [2008] HCA 34, [25]-[26], Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.
[42] (1999) 74 SASR 92, 102; [69] – [70].
[43] Ibid 103; [76].
Although that case did not involve dismissal of the application for permission to appeal but dismissal of the appeal itself, it will be noted that the emphasis at all times was on the question whether the merits of the appeal had been considered. I made observations to similar effect in some brief concurring remarks:
[T]his decision should not be seen as allowing the re-opening of an appeal whenever some new point is sought to be raised which was not argued on the hearing of the appeal. We are only here dealing with the unusual situation where there has been no consideration of the merits of the appeal at all. It is not every application to revoke such an order in those circumstances that will necessarily succeed. There must be good reason for the Court to exercise its discretion to set aside the order. The facts placed before this Court showing the reasons for Mr Brain not appearing on the hearing of his appeal were not disputed and were not the subject of argument as to their admissibility on the hearing of the appeal. Mr Brain voluntarily surrendered himself to the police early in 1998. It was that surrender which gave rise to the chain of events that has occurred since then. In all those circumstances the interests of justice require that his original appeal should be heard on the merits, and I agree that the order dismissing the appeal should be set aside.[44]
[44] Ibid 108; [103].
Once again the emphasis was on whether or not there had been an earlier consideration of the merits of an appeal. I should add that that case concerned an application to set aside the earlier order dismissing the appeal. I see no difference in substance between that and a subsequent application for permission to appeal, perhaps accompanied by an application for an extension of time, where, in an earlier appeal or application for permission to appeal, the merits of the appeal have not been considered. It was not necessary in that case for the Court to consider the passage from the judgment of Dawson and Gaudron JJ in Postiglione[45] set forth above and the Court did not do so.
[45] (1997) 189 CLR 295 at 305.
Finally, in R vSpiero[46] the applicant had earlier filed an application for leave to appeal against conviction and sentence, the latter on the grounds that the sentence was manifestly excessive. Shortly before the application was to be determined he escaped from custody. The applications for leave were summarily dismissed in his absence. Following his recapture a further application for leave to appeal was filed which included additional grounds of appeal. Duggan J, with whom the Chief Justice and Williams J agreed, considered that the earlier order dismissing the application for leave to appeal had been perfected. He noted:
… If leave to appeal had been granted and the appeal itself had been dismissed after a hearing on the merits there could not be a second appeal: Grierson v The King (1938) 60 CLR 431 and the other cases referred to in Brain’s case at [69]. If leave to appeal had been granted, but the appeal dismissed pursuant to r 20 because of a failure to prosecute it and the order of the court had been perfected in the manner referred to above, the question would arise as to whether the dismissal could be set aside. This was the situation which arose in Brain’s case where it was held that the Court had an inherent power to revoke the order and resume the hearing of the appeal (at [72]–[76]). It is apparent from the reasons of the Court in Brain’s case that, although there is power to set aside an order for dismissal made in circumstances in which the appeal was not considered on its merits, the power is to be used cautiously and only when the interests of justice require it. The present case is to be distinguished from Brain’s case in that here the matter did not go beyond an application for leave to appeal which was not heard on the merits, but was summarily dismissed for want of prosecution.[47]
[46] (2001) 78 SASR 531; [2001] SASC 19.
[47] Ibid 534; [13].
Duggan J then considered the dictum of Dawson and Gaudron JJ in Postiglione to which reference has already been made. He concluded:
It is apparent that their Honours were of the view that there will be some cases in which a further application for leave to appeal may be brought after the dismissal of an earlier application. Nevertheless the circumstances of the previous application for leave to appeal will often have an important bearing on whether the Court should grant leave to appeal on the subsequent application. Their Honours pointed out that it would be inappropriate to permit a subsequent application based on matters which were agitated on an earlier application. It is my view that it would also be inappropriate to grant leave on an application in which the grounds which were sought to be argued were available and could have been argued at the time of the earlier application.[48] (Emphasis added.)
[48] Ibid 535; [17].

The application was dismissed partly for that reason and because the fresh application lacked merit.
In my opinion similar considerations apply to this case. The grounds now sought to be argued by Mr Parenzee were always open to be argued. The merits of the appeal were considered in great detail in the previous application for permission to appeal. It is not even a case like Spiero where none of the grounds of appeal were considered on the merits. In my opinion, it should make no difference whether that consideration took place or an opportunity to do so took place on the hearing of the application for permission to appeal or on the hearing of the appeal itself.
It is to be noted that, in the passage of the judgment of Dawson and Gaundron JJ in Postiglione quoted above, their Honours cited Bailey v Director of Public Prosecutions[49] as authority for the proposition that ordinarily it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal is dismissed. In Bailey, in their joint judgment, Mason CJ, Brennan, Dawson and Toohey JJ said:
When the Court of Criminal Appeal is satisfied that an application for leave to appeal against sentence is without merits, it may rightly refuse leave to appeal rather than grant leave and dismiss the appeal. The grounds of refusal of leave should be stated, though they need not be elaborated. But where there is a sufficiently arguable case, the more appropriate course is to grant leave to appeal, deal with the merits of the argument and then reach a decision allowing or dismissing the appeal. The form of the order will ordinarily be a matter of indifference when the reasons given by the Court for disposing of an application show that the case which he has raised has been duly considered, but the form of the order and the statement of the Court’s reasons for disposing of the application are both material to an understanding of the way in which the Court apprehended the questions for its determination and the way in which it approached the answering of those questions.[50]
[49] (1988) 62 ALJR 319 at 319-320; 78 ALR 116 at 117.
[50] Ibid.
In a case where, as usually occurs in this jurisdiction,[51] an application to the Full Court for permission to appeal involves an assessment of the strength of the applicant’s grounds of appeal, it would be strange if the right to bring a further application for permission to appeal turned on the form of the order, namely whether permission to appeal had been refused or whether permission had been granted and the appeal had been dismissed. In my view, that would be to allow form to triumph over substance. While it does require some analysis of the circumstances and reasons for dismissing an application for permission to appeal, or some inquiry to ensure that an opportunity to argue merit was given, that is not a particularly onerous inquiry. In this case it must result in dismissal of any further application for permission to appeal for Mr Parenzee, and hence the refusal of the two applications before us to extend the time within which to bring an application for permission to appeal or to commence an appeal as of right.
[51] A similar practice prevails in Victoria: R v GAM (No 2) (2004) 9 VR 640, 663; [2004] VSCA 117, [46] Callaway J.
What I have said relates only to the situation where an application for permission to appeal has been heard and dismissed by the Full Court. It does not follow that the same position will apply where an application for permission has been heard and dismissed by a single Judge and no further application has been made to the Full Court.
The merits of the appeal
In the event that my view on the competency of Mr Parenzee’s present application does not prevail, I agree with the orders proposed by the Chief Justice and with his reasons. I merely add some brief observations of my own as to the first ground of appeal and the argument of the applicant based on the word “likely” in s 29(1)(a) of the Criminal Law Consolidation Act.
In my opinion, the concentration of the argument on the word “likely” and whether or not it means, in this case, on the balance of probabilities, is misconceived. One cannot ignore the object of the likelihood: endangering life. It is not causing death nor is it, in this case, the likelihood of the victims contracting HIV.
The section turns on proof (in this case) that the accused knew that the act of unprotected sexual intercourse was likely to endanger the life of another – that it was likely expose that person’s life to danger or to imperil that person’s life.
In the circumstances of this case there were many steps and events which needed to occur before death, all of which were possibilities only. Death would only occur if all the possibilities in fact occurred. One starts with the known fact that the accused is HIV Positive. The possible events were the possible transmission of HIV by unprotected sexual intercourse, the possibility of the victim becoming HIV Positive, the possibility of the victim contracting AIDS and the possibility of the victim dying from AIDS. A person’s life will be endangered or put at risk or imperilled once the chain of possible events is begun. The endangering of the life or the exposing to this risk of death does not require proof on the balance of probabilities that the first possible event will occur. However, that was the applicant’s argument.
In The Queen v Moore[52] the New Zealand Court of Appeal[53] had to consider the three elements of a statutory charge of manslaughter, namely that the accused was in charge of a deceased child, that he neglected the duty to supply medical aid without lawful excuse, and that the child’s life was endangered by the neglect. In relation to the third element it was argued that it could not be shown and that the child’s life was endangered by a grossly swollen haematoma on the child’s head. Hutchinson J, delivering the judgment of the Court, said:
Where death results from the gradual development of a disease, it must frequently be the case that the disease progresses through a series of stages until the stage is reached after which death immediately occurs. Can it be said, then, that the life is endangered only during the ultimate stage and that it is not endangered during the penultimate or any of the preceding stages? To answer that question in the affirmative would be, we think, to take an unrealistic view. In many diseases there may be a real danger to life long before the final stage is reached. We think that there is evidence to go to the jury, in a case such as this, that the life is endangered within the meaning of that expression in s. 166 of the Crimes Act, 1908, as soon as the disease has reached the stage at which it can be said that there exists a reasonable possibility that death will ensue if medical attention is not obtained. There may be cases where the possibility that death would ensue is so remote that there would be no case to go to the jury. If, however, there is evidence of a reasonable possibility of death from the omission to call in medical aid, then the question as to whether that omission endangered the life is a question of fact and of degree and one for the jury to determine in the light of the evidence.
… We think that there was sufficient in this evidence to require the case to go to the jury and that it was a question for the jury as to whether immediately before the time of the child’s death his life was endangered by the inattention to the haematoma.[54]
[52] [1954] NZLR 893.
[53] Barrowclough CJ, Fair and Hutchinson JJ.
[54] [1954] NZLR 893, 899-900.
I respectfully agree with those observations. Translated to this case it means that where a woman has unprotected sexual intercourse with an HIV positive man her life is endangered if it can be said that it is a reasonable possibility that death will ensue as a result of that unprotected act of sexual intercourse.
Some acts or omissions, although theoretically possible of endangering life, may be regarded as so unlikely to have that effect that they can be dismissed as being unlikely to endanger life. A pedestrian wearing dark clothing crossing a poorly lit multi-lane arterial road at night in wet conditions when traffic volume is high may be said to be likely to endanger his or her life by doing so. In other conditions, crossing the same road at the same point may be quite unlikely to endanger his or her life. The likelihood of the life being endangered is not a question of the probability of a fatal event occurring. It is a matter of an assessment by the fact-finder, in this case, the jury, of the extent to which the act or omission will endanger life or place the life at risk.
That was the task of the jury in this case. As the Chief Justice has demonstrated, there was ample evidence, including that of the appellant himself, on which the jury could find that the appellant knew that having unprotected sexual intercourse with the complainants was likely to endanger their lives.
ANDERSON J:
Competency of the application
After reading the Chief Justice’s reasons, I have now had the advantage of reading the draft reasons of Bleby J, and in particular his reference to the decision of the Court of Appeal of the Supreme Court of Victoria in R v McNamara (No 2) (1997) 1 VR 257. I have also read the decision of the same court in R v GAM (No 2) (2004) 9 VR 640. Those decisions are based on a section of the Crimes Act 1958 (VIC) which in all respects is the same as s 352 of the Criminal Law Consolidation Act 1935 (SA).
Both Doyle CJ and Bleby J have summarised and commented on the relevant decisions. It is my view that the decisions of the Court of Appeal in Victoria are persuasive. The question is whether those decisions should be followed, or whether the High Court decision of Postiglione v The Queen (1997) 189 CLR 295 is contrary to those authorities. Postiglione was decided shortly after McNamara was decided in Victoria.
The relevant comments in Postiglione come from Dawson and Gaudron JJ at 305. These comments are set out in the reasons of Bleby J.
The decision in Postiglione was some years after the earlier decision of the High Court in Grierson v The King (1938) 60 CLR 431 which, in turn, had followed R v Edwards (No 2) [1931] SASR 376. Again, the relevant passages are set out in the reasons of both Doyle CJ and Bleby J.
In Postiglione the decision in Grierson appears to have been endorsed. Prior to the passage referred to in the reasons of Dawson and Gaudron JJ their Honours at 300 affirmed that Grierson was correct. So also did McHugh J at 315 and Gummow J at 326.
Winneke P in R v GAM (No 2) at [33] says:
One things appears to be clear from the various judgments given in the case of Postiglione; and that is that the authority of the decision in Grierson has not been disturbed.
I am persuaded by the draft reasons of Bleby J that the Victorian cases should be followed to the effect that there is no distinction between the refusal of an application for permission to appeal which has been heard on its merits or the dismissal of an appeal.
Whilst I accept the practical difficulties raised by Doyle CJ as to deciding whether an application for permission to appeal has been heard on its merits, I think that such a dilemma should not stand in the way of the court’s decision in this matter.
Accordingly I agree with conclusions reached by Bleby J.
Merits of the appeal
It seems quite clear to me that the jury, having the chance to assess Mr Parenzee’s credit, found that Mr Parenzee’s evidence was unreliable as to his knowledge of how HIV could be transmitted by sexual intercourse. The jury question was whether Mr Parenzee’s suggestion, namely, that he thought he could indulge in safe sex without protection, should be rejected beyond reasonable doubt. Clearly the jury, as it was entitled to do, rejected his evidence.
I agree with the Chief Justice that there was ample evidence for the jury to bring in a verdict of guilty on all counts. I agree with his reasons on that point.