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R v Parenzee

R v Parenzee

Case [2008] SASC 245 16 September 2008

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Parenzee [2008] SASC 245
Case: [2008] SASC 245
Decision Date: 16 September 2008

CaseChat Overview and Summary

The case of R v Parenzee involved the applicant, who had been convicted of engaging in unprotected sexual intercourse with three women while knowingly carrying the HIV/AIDS virus. The applicant was found guilty of acts that were likely to endanger the life of another. The appeal focused on the legal sufficiency of the evidence and the procedural aspects of the application for an extension of time to appeal and for permission to appeal the conviction. The appeal was heard in the Supreme Court of South Australia.

The primary legal issues in the case were whether the application for an extension of time to appeal and for permission to appeal was competent, particularly in light of a previous application that had been refused. The court also had to consider the merits of the appeal on the basis of the new application. A key issue was whether the prosecution needed to prove that the act of unprotected sexual intercourse had a consequence that it was more likely than not to endanger the life of the complainant, or whether this was a matter for the fact-finder to assess.

The majority of the court held that the appeal was incompetent because the previous application for permission to appeal on different grounds had already been considered and refused. The majority also concluded that the merits of the appeal had already been assessed in the context of the previous application. Consequently, the application for an extension of time to appeal and for permission to appeal was dismissed. However, Doyle CJ dissented, holding that the appeal was competent and that permission to appeal should be granted, but ultimately the appeal should be dismissed on the merits.

The court's final order was that the application for an extension of time to appeal and for permission to appeal was dismissed. This decision effectively closed the procedural avenues available to the applicant, affirming the original conviction.

Orders