R v Parenzee

Case [2007] SASC 316

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PARENZEE

[2007] SASC 316

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)

24 August 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY - PARTICULAR CASES - MATERIALITY AND COGENCY

Application for permission to appeal to the Court of Criminal Appeal and extension of time - fresh evidence - whether evidence not put before jury at trial admissible and sufficiently cogent to create possibility of miscarriage of justice.

Held: evidence relied on by applicant does not meet fresh evidence test, lacks cogency and probative force - application for extension of time refused - permission to appeal refused.

Criminal Law Consolidation Act 1935 (SA) s 29, s 352, s 359, s 367; Supreme Court Criminal Appeal Rules 1996 r 15, referred to.
Mickelberg v The Queen (1989) 167 CLR 259; Gallagher v The Queen (1986) 160 CLR 392, applied.
R v Parenzee (2007) 248 LSJS 99; R v Reci (1997) 70 SASR 78, discussed.

R v PARENZEE
[2007] SASC 316

Court of Criminal Appeal:  Doyle CJ, Anderson and Kelly JJ

  1. DOYLE CJ:          This application for permission to appeal against conviction raises the question of whether certain evidence, not put before the jury at trial, is admissible and is of sufficient cogency to warrant a decision that permission to appeal should be granted, the ground of appeal being that there has been a miscarriage of justice because the evidence was not led at trial.

    Background

  2. After a trial before a judge and jury in the Supreme Court Mr Parenzee was convicted on three counts of endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).

  3. The prosecution case was that Mr Parenzee had “unprotected sexual intercourse” with three different women, “knowing that he had the HIV/AIDS virus”, and knowing that acts of unprotected sexual intercourse were likely to endanger the life of the woman in question, Mr Parenzee being recklessly indifferent as to whether the woman’s life was endangered.  The acts of intercourse were said to endanger life because Mr Parenzee was infected with the human immunodeficiency virus (“HIV”), because that virus could be transmitted through unprotected sexual intercourse, and because infection with the virus could cause the women to suffer from AIDS.

  4. The prosecution case included evidence that before the acts of intercourse Mr Parenzee had been diagnosed as HIV positive (that is, that he was infected with HIV), and that he had been told by medical practitioners that the virus could be transmitted by sexual intercourse.

  5. Mr Parenzee applied for permission to appeal against the conviction on the ground that there had been a miscarriage of justice.

  6. At trial he did not dispute that at the relevant times he was infected with the HIV…

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R v Parenzee [2007] SASC 316
Case
[2007] SASC 316
Decision Date

CaseChat Overview and Summary

In the case of R v Parenzee, the applicant sought permission to appeal to the Court of Criminal Appeal and an extension of time, citing fresh evidence that was not presented at the original trial. The dispute centred on whether this new evidence was admissible and whether it was sufficiently cogent to potentially cause a miscarriage of justice. The Court of Criminal Appeal was tasked with determining the admissibility and impact of the fresh evidence.

The primary legal issue before the Court was whether the fresh evidence could be considered by the appellate court, and if so, whether it was sufficiently cogent and material to warrant a new trial. The Court had to assess whether the evidence was available at the time of the trial, and if it could have been discovered through reasonable diligence, and then determine whether the fresh evidence had the potential to influence the jury's decision if it had been presented. The Court needed to ensure that the fresh evidence was not only available but also had the necessary cogency and probative force to create a real possibility of a miscarriage of justice.

The Court of Criminal Appeal found that the evidence proposed by the applicant did not meet the criteria for fresh evidence. The evidence was deemed to lack cogency and probative force. Consequently, the application for permission to appeal was denied, and the extension of time was also refused. The Court held that the fresh evidence was not relevant to the grounds of appeal and did not have the potential to influence the jury's decision. The Court concluded that the evidence was not sufficiently cogent to create a real possibility of a miscarriage of justice.

The final orders of the Court of Criminal Appeal were to refuse permission to appeal and to deny the extension of time. The Court determined that the fresh evidence presented by the applicant did not meet the necessary standards and was therefore inadmissible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Subject to one qualification, Mr Borick did not tender any further evidence in support of the application for permission to appeal. He relied on the transcript of evidence before the single Judge. During the course of the hearing he tendered a paper “The Use of Phylogenetic Analysis as Evidence in Criminal Investigation of HIV Transmission”. The paper had been tendered before the Judge and admitted for the purpose of hearing argument. It was said to throw light on evidence given by Professor Higgins, one of the witnesses called by the DPP. Although the Judge admitted the document, he appears to have accepted a submission that the paper was not relevant to the ground of appeal being advanced before him, and that its admission would require an application to amend the Notice of Appeal, which application was not made. In any event, the Judge took the view that the paper had no evidential weight: Parenzee at [364]-[370]. On the hearing of the appeal the CCA reserved its decision on the tender of the paper. I would refuse to receive the paper, for the reason given by the Judge.Fresh evidence on appeal It is well established that an appellate court can receive evidence not led at trial (commonly referred to as fresh evidence), with a view to an appellant satisfying the Court that the failure of the trial court to receive that evidence means that a miscarriage of justice has occurred. In such a case it is necessary for the appeal court to consider why the evidence was not led at trial. Before the single Judge Mr Borick argued that at trial Mr Parenzee’s legal representatives were unaware of the existence of what he called the scientific debate about the existence of HIV and whether it caused AIDS. He said that none of the witnesses called by the DPP at trial, some of whom had relevant expertise, had referred to this issue. The Judge appears to have accepted this submission, because he remarked that the views expressed by Ms Papadopulos-Eleopulos and by Dr Turner were “outside the scientific mainstream”, and he accepted that it would have been very difficult for counsel to find out about their views at trial: Parenzee at [34]. The DPP submits that exercising reasonable diligence, the usual test applied on this point, this evidence could have been found by the Defence. For present purposes it is convenient to proceed on the basis that it is arguable that the relevant evidence could not have been found, exercising reasonable diligence, and that to that extent a case for its admission is made out. When an appeal is based on fresh evidence it is also necessary for the appellate court to consider the likely impact of the evidence on the jury, if the evidence had been led at trial. The appropriate test has been expressed in slightly different ways by members of the High Court. I considered the issue, and the different formulations, in R v Reci (1997) 70 SASR 78 at 92-95. Any differences in the formulations of the approach to be taken in such a case are not material for present purposes.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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