R v Parenzee - [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

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
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”).
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.
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.
Mr Parenzee applied for permission to appeal against the conviction on the ground that there had been a miscarriage of justice.
At trial he did not dispute that at the relevant times he was infected with the HIV virus, or that by engaging in unprotected sexual intercourse he could transmit the virus, or that if the women became infected the virus might cause them to suffer from AIDS and so endanger their lives.
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.
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”.
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.
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.
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.
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.
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].
The Judge refused to extend the time for the making of the application for permission to appeal, because the application lacked any merit.
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.
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.
I proceed on the basis that the issue for the CCA, were permission to appeal to be granted, would be that stated by Mason CJ in Mickelberg v The Queen (1989) 167 CLR 259 at 273, where his Honour said:
… It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen (1986) 160 CLR 392 Deane J and I considered that the test was best expressed in those terms. Gibbs CJ expressed his substantial agreement with the statement, although his Honour emphasized that "no form of words should be regarded as an incantation that will resolve the difficulties of every case". Dawson J said that the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant". His Honour went on to say that in his view the use of the expression "significant possibility" did not involve a different standard. I am in agreement with those statements. We were not asked to reconsider the correctness of the decision in Gallagher. (footnotes omitted)
In considering that question the Court will have regard to the credibility and cogency of the fresh evidence, or whether the evidence is credible in the sense that a reasonable jury might accept it as true: see Gallagher v The Queen (1986) 160 CLR 392 at 399 Gibbs CJ; at 402 Mason and Deane JJ; at 409-410 Brennan J; at 421 Dawson J. In Mickelberg Toohey and Gaudron JJ at 302 said that:
… it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it …
Permission to appeal
The Court has power to grant permission to appeal under s 352(1)(a)(ii) of the CLCA, when an appeal does not lie of right because it is on a ground “that involves a question of law alone”: s 352(1)(a)(i).
The long standing practice of the CCA is to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable. Permission to appeal is usually refused if the ground is not reasonably arguable, or is found to lack any substance, or to have no reasonable prospect of success. Once again, each of these formulations is only a slightly different way of identifying the central issue of whether the proposed ground of appeal has a sufficient prospect of success to warrant the grant of permission to appeal. In other than exceptional cases permission to appeal should not be granted to enable an appellant to pursue grounds of appeal that have no prospect of success.
Deciding this question will usually require the CCA to consider, in a preliminary manner, the merits of the grounds to be argued, both as matters of fact and as matter of law. This is so because the need for permission to appeal will arise because the ground to be raised is not one that “involves a question of law alone”.
In the present case the issue is whether, having regard to the evidence relied upon before the CCA, it is reasonably arguable that if permission to appeal is granted, and the appeal is argued in full, the CCA would decide that there had been a miscarriage of justice as a result of the evidence in question not being put before the jury at trial.
In the context of this application for permission to appeal, the single Judge had to consider the submission by the DPP that the evidence proposed to be tendered by Mr Borick was not admissible. If that evidence was not admissible, there was no basis for a grant of permission to appeal. The admissibility of the evidence turned on the qualifications of the proposed witnesses to give the proposed evidence.
To that extent the application for permission to appeal required the single Judge, and this Court, to examine the same issue as would be examined on appeal, if permission would be granted. There might be some cases in which the admissibility of fresh evidence would turn on a close examination of the evidence at trial, and of the proposed fresh evidence, making it appropriate to do no more than consider whether it is reasonably arguable that the fresh evidence is admissible. But in the present case the issue is whether the proposed witnesses were qualified to express the opinions that they were to be asked to express, and accordingly it was appropriate for the single Judge, and it is appropriate for this Court, to consider the question of the qualification of the witnesses directly.
It was also appropriate for the single Judge to consider whether it was arguable, if the witnesses were qualified, that their evidence might have the cogency and plausibility required for the evidence to be left to the jury as providing a basis for an acquittal. But in considering this issue the Court is not considering the same question as would be considered if permission to appeal would be granted. The Court considers only if it is reasonably arguable that the evidence has the required cogency and plausibility.
In light of that, it is necessary for this Court to consider whether the witnesses were qualified to express the opinions that they gave before the single Judge. It is also appropriate to consider the cogency and plausibility of the evidence of the two witnesses in question. Finally, having regard to the manner in which Mr Borick put his submissions, it is necessary to consider the relevance and effect of certain lines of cross-examination that Mr Borick pursued with witnesses called by the DPP.
The Judge’s reasons
The Judge provided detailed written reasons for his decision, extending over 87 pages.
This Court must make its own decision whether to grant permission to appeal. It is not hearing an appeal against the decision of the single Judge. Nevertheless, bearing in mind that Mr Borick argued the application on the basis of the transcript taken before the Judge, and by reference to the reasons that the Judge gave (and he did so for sensible reasons) this Court can have regard to the conclusions of the single Judge, particularly when those conclusions reflect the advantage enjoyed by a Judge who has seen the witnesses testify.
It is also convenient, having regard to the amount of material (about 1,400 pages of evidence, and over 100 documentary exhibits, many of them detailed scientific papers) to deal with the issues by reference to the Judge’s reasons. However, I emphasise that I do so for convenience, and not on the basis that the Judge’s findings must stand unless demonstrated to be wrong.
I do not propose to summarise all of the relevant material, because the Judge has already done so. I will confine my attention to what I regard as the decisive issues.
The background to the application for permission to appeal is conveniently summarised by the Judge as follows:
[35] HIV is an acronym for human immunodeficiency virus (HTLV-III).
[36]According to mainstream scientific opinion, HIV is a retrovirus. In the most general terms, a virus is a particle (minute infectious agent) characterised by the ability to replicate only within living host cells. The general principle of viral replication is that the virus binds to its target cell, either killing the cell, causing disease inside the cell or taking over the cell machinery to produce the virus that leaves that cell to infect other cells. …
…
[37]Viruses are able to reproduce with genetic continuity and the possibility of mutation. The particle, or virion, consists of nucleic acid (the nucleoid), DNA or RNA (but not both) and a protein shell containing the nucleic acid, which may be multi-layered.
[38]For many years scientific researchers held the view that human cells contain DNA (deoxyribonucleic acid) which can form RNA (ribonucleic acid). That is, genetic information flowed from DNA to RNA.
…
[42]According to mainstream scientific opinion, acquired immuno deficiency syndrome (AIDS) is a condition which is caused by HIV. Those persons who have been diagnosed as being infected with HIV, if untreated, will eventually develop certain conditions which are considered as AIDS-defining diseases from which they will eventually, if untreated, die. The effect of HIV, according to mainstream medical scientists throughout the world, including those who were called by the respondent, is that a person who is infected with the virus HIV will eventually contract one or other of these AIDS-defining diseases as a consequence of their immune system becoming depleted to the point that they have inadequate resistance to fight the disease.
[43]HIV is said to attack the body’s immune system, with the result that the patient contracts diseases which, in non-HIV patients, would not normally occur. If such diseases do occur in non-HIV patients, the immune system in most instances is able to resist the development of the condition, such that it would not usually be fatal.
It was against that background, anticipated by Mr Borick and relied upon by the DPP, that the Judge considered three broad issues. First, whether the HIV virus has been proved to exist, in particular by the process of virus isolation. Mr Borick submitted that it had not been proven to exist. Second, whether the HIV virus could be transmitted by sexual intercourse. Mr Borick submitted that it was at least an open question whether the HIV virus could be transmitted in this way. Third, whether infection with the HIV virus causes AIDS.

The Judge noted that at the outset of the application Mr Borick disavowed reliance on the third matter, but at the end of the application he raised this as well: at [21]-[28].
The expert witnesses called by Mr Parenzee
There is no doubt that the issues canvassed before the Judges are, as he said, “highly technical”: [32]. There is no doubt that the matters canvassed were matters appropriate for expert opinion from qualified experts. A number of different areas of expertise were relevant. As the Judge noted:
[47]Each witness called by the DPP purported to have expertise only in a limited field – for example, epidemiology, or molecular virology – and gave evidence only in that area. Several of the respondent’s witnesses gave answers during the course of their testimony in which they stated that a particular question was outside their area of expertise, and stated which of the respondent’s other witnesses would be best qualified to answer. I will address the evidence of the respondent’s witnesses in greater detail later in these reasons.
…
[61]I turn first to the question of whether the subject matter is such that the court requires the assistance of an expert in order to form a sound judgment. The issues arising during this application were all of a scientific or technical nature. The issues gave rise to complex questions of immunology, micro virology and epidemiology, to name but three of the relevant disciplines. I consider that the subject matter is of a nature that expert testimony is of assistance to the Court and therefore permissible.
Ms Papadopulos-Eleopulos has a degree in nuclear physics from the University of Bucharest in Romania. She obtained a degree in 1960 and subsequently migrated to Australia. She said that she worked as a laboratory attendant in the Department of Public Health in Western Australia, and subsequently as a physicist in the Department of Medical Physics, in which department persons suffering with cancer and other diseases were treated. The Judge summarised her relevant study and experience as follows:
[84]Ms Papadopulos-Eleopulos has no formal qualifications in medicine, biology, virology, immunology, epidemiology or any other medical disciplines. She has never treated or been directly involved in clinical trials of any kind relating to any disease. Her duties at the Royal Perth Hospital are to test people for sensitivity to ultraviolet radiation.
[85]Ms Papadopulos-Eleopulos professes to have expertise because she has studied HIV and AIDS for 25 years and she has published papers on the subject. Counsel for the applicant submits that her degree in nuclear physics enables her to give expert opinion on the subject of the discovery of a virus and on the various tests that have been developed to diagnose HIV. The submission is that she is trained in physics, science and mathematics. Counsel submits that her qualifications underpin biology which underpins virology.
…
[87]Ms Papadopulos-Eleopulos claims that she conducts research in the area of HIV/AIDS in her private time. It became clear that, when she spoke about research, she meant reading various medical papers about the research of others. Her experience with the HIV virus and with AIDS is limited to reading and critiquing the work of researchers involved in various studies. She purports to have expertise to speak on the subject of virology, epidemiology, electron microscopy, biology and immunology. She has no practical experience in any of these areas. She has no formal qualifications in these disciplines.
[88]It became clear during her evidence that much of her criticisms related to research in the 1980s and to papers published up to about the mid-1990s. She has not read or she has chosen to ignore an enormous volume of recently published material on the diagnosis and treatment of HIV/AIDS. She has been selective in the material upon which she relies. I will deal with that in more detail and by example later in these reasons.
[89]Ms Papadopulos-Eleopulos states that she has been the author or co-author of a number of papers which purport to support her theories. A significant number of publications to which Ms Papadopulos-Eleopulos has been a contributor have been rejected by reputable scientific journals. In response to the suggestion that her articles have not been accepted, she claims that the editors were required to reject her articles because those who peer review the articles are members of the mainstream scientific community who support the mainstream view that HIV is a virus which is the cause of AIDS. I reject that explanation. Reputable journals will only publish material which has been peer reviewed and from which it can be demonstrated that recognised scientific techniques have been followed. Opinions which question scientific conclusions, if adequately researched and peer reviewed, will be accepted for publication.
The Judge summarised her opinions as follows:
[83]Ms Papadopulos-Eleopulos questions the “HIV theory of AIDS”, which is the view that HIV causes AIDS. She questions whether it has been proved that HIV exists as a unique virus. She questions the view that the HIV genome originates in a unique exogenously acquired infectious retroviral particle. Her view is that it has not been proved that HIV is infectious, either in blood, blood products or by sexual intercourse. Her opinion is that mother to child transmission of the HIV virus has not been established. She questions whether antiretroviral drugs have any effect in controlling or suppressing the progression of AIDS.
…
[90]Ms Papadopulos-Eleopulos holds strong views about the phenomena of HIV which has been the subject of much research and writings. She believes that the HIV virus has never been isolated. She believes that those who are diagnosed with the HIV virus have not been proved to suffer from a virus. She also holds the view that the diseases from which HIV positive persons suffer are not due to the virus. She has expressed the opinion that the virus has not been proved to be sexually transmissible or transmissible through blood transfusions or from a mother to a child.
In his reasons the Judge is critical of the manner in which she gave her evidence. He said she was often non-responsive, and failed to address questions put to her: [92]. He says that her approach to the topic demonstrated a lack of balance: [102], [120], [137]. He said that she misunderstood matters that she should have understood: [122].
Not surprisingly, the Judge found that she was not qualified in the different disciplines across which her opinions ranged: [135]. She was not qualified to express expert opinion on the three central issues before the Judge.
These general conclusions about Ms Papadopulos-Eleopulos were not attacked by Mr Borick. On the basis of the material referred to by the Judge, they appear to be amply justified.
Mr Borick put submissions supporting some of the criticisms made by Ms Papadopulos-Eleopulos of two scientific papers that were the subject of considerable debate before the Judge, papers by Professor Padian and by [Dr] Rodriguez. However, the significance of these papers lay not in their intrinsic merit, but in the use made of them in cross-examination of Ms Papadopulos-Eleopulos to expose flaws in her understanding and approach.
I agree with the Judge that Ms Papadopulos-Eleopulos was demonstrated not to be qualified to express the opinions that she gave. Mr Borick did not make any real answer to the telling criticisms that the Judge made.
Dr Turner has the degrees of Bachelor of Medicine and Bachelor of Surgery, and is a Fellow of the Royal Australasian College of Surgery and of the Royal Australasian College for Emergency Medicine. He is an experienced emergency physician. He has a long standing interest in the issues that arose before the Judge. Of him the Judge said:
[142]Dr Turner’s knowledge of the subject matter is limited to reading. He has no formal qualifications to give expert opinions about the virus. He has no practical experience in the treatment of viral diseases. He has no practical experience in the disciplines of virology, immunology or epidemiology.
[143]His opinions are based on reading scientific literature, studying of scientific literature, and spending a considerable amount of time thinking.
Dr Turner had not published any papers or conducted any research of significance in the relevant areas: [149]. The Judge concluded:
[144] I conclude that Dr Turner is not qualified to advance expert opinion about virus isolation, antibody tests, viral load tests, or sexual transmission of the virus. His knowledge of these subjects is limited to having read a number of publications. He relies entirely on his interpretation of various studies in the specialised disciplines of virology, epidemiology, microbiology, immunology, pathology or infectious diseases, in none of which he has qualifications beyond his medical degree. He has no practical experience, and has performed no research which has been published.
This conclusion also was not attacked by Mr Borick.
I agree with the Judge. The matters before the Judge, and on which Dr Turner gave evidence, are clearly matters that require particular expert qualifications that Dr Turner lacked.
It follows from this that the application for permission to appeal is based on evidence given by persons who lacked the expert qualifications required to give that evidence. That is a sufficient basis to refuse permission to appeal. It is the basis on which the Judge refused permission: at [206] and [371].
This conclusion is supported by the evidence led by the DPP. As to that evidence, the Judge said at [155]:
[155]The DPP called a number of witnesses, each of whom had qualifications in different areas of medicine and science. In each case, the witnesses had studied a field of knowledge which could not be understood by the Court without explanation and assistance. Each of the witnesses had extensive practical experience in the subject matter. Each taught their subject at a high level. I will refer to each witness and summarise their qualifications and experience.
The Judge has helpfully summarised the qualifications and evidence of each of the experts called by the DPP. They are clearly highly qualified in their relevant areas. Their evidence confirms that Ms Papadopulos-Eleopulos and Dr Turner lack the required expertise.
The evidence called by the DPP also demonstrates that the evidence relied on by Mr Borick lacks cogency and probative force. It does so because the answering evidence demonstrates that their views are not based on sound principle. They hold to a point of view rejected by a substantial body of experts with appropriate qualifications. It is not just that they hold a different point of view on a matter that is accepted to be contentious or open to debate. Their views, on the evidence before the Court, are regarded as untenable by experts with appropriate qualifications and experience.
A further reason for refusing permission to appeal is that it is not reasonably arguable that the evidence relied upon has the quality or cogency or plausibility that would lead to a conclusion that had it been given at trial, the jury might reasonably have reached a different verdict.
Submissions on appeal
Mr Borick submits that even if the evidence of Ms Papadopulos-Eleopulos and Dr Turner is put to one side, the evidence of the witnesses called by the DPP, and in particular their cross-examination, exposes a genuine scientific controversy on the three key matters – the existence of the HIV virus, its transmission and its role as the cause of AIDS. He submits that the issue for the Court is whether the controversy exists. He argues that if it does then it cannot be demonstrated beyond reasonable doubt that Mr Parenzee had the HIV virus, that the virus is sexually transmitted, or that its presence can lead to the development of AIDS.
Mr Borick said that for the purposes of this argument he relied on the cross-examination of the experts called by the DPP, and not on the evidence of Ms Papadopulos-Eleopulos and Dr Turner.
Indeed, he argued that there were other qualified and reputable scientists who would support the factual basis of his submissions on the three central issues identified by me. Although he told the single Judge that his client proposed to call no evidence in rebuttal, Mr Borick invited this Court to exercise the power conferred by s 359(d) of the CLCA and to appoint a “special commissioner” to enquire into the scientific issues. He suggested that the Court should do this because Mr Parenzee lacked the resources to call the witnesses.
That submission and invitation must be rejected. There is no basis demonstrated for the Court to embark on what appears to be an open-ended enquiry, at the request of Mr Parenzee. The power to which Mr Borick refers could be exercised only if a proper matter for enquiry had been identified, and in my opinion no such matter has been identified.
I return to the topic of Mr Borick’s cross-examination of the experts called by the DPP. Each of those experts firmly disagreed with the propositions of scientific fact that Mr Borick put forward, to the extent that Mr Borick’s propositions lay within their field of expertise. Each of them said, to the extent that their expertise was relevant, that the view espoused by Mr Borick was wrong, was contrary to accepted scientific opinion, and, to a considerable degree, was based on an examination of early study and research which had been overtaken by later developments in the field in any event.
In cross-examination Mr Borick was able to show that Professor Gallo, a world expert in his field, had been unduly dogmatic in some respects, and had been too dismissive of some challenges to aspects of papers written by him some years ago. But I cannot agree that this undermined in any significant way the overall effect of Professor Gallo’s evidence. I do not agree that Mr Borick raised any real doubt on the question of whether electron micrograph photographs of the HIV virus existed. This was one of the matters relied upon by Mr Borick to support an argument that the virus did not exist. The expert evidence on this point was firmly to the contrary: Parenzee at [257]. Mr Borick attempted to mute some of the criticism of his witnesses by criticising papers written by Dr Padian and [Dr] Rodriguez, papers that Mr Borick’s witnesses had themselves attacked. But this established nothing of an affirmative nature. The cross-examination of Ms Papadopulos-Eleopulos in particular used these papers to demonstrate that she lacked appropriate expertise and was unbalanced in her approach. At best, Mr Borick might have lessened the force of some of the criticisms that the Judge made of Mr Borick’s witnesses. If he did, he did so only to a minor degree. But these papers were not important in establishing the conclusions supported by the witnesses called by the DPP. Their use was to attack the evidence of the witnesses called by Mr Borick. In any event, at the end of the day none of the points made by Mr Borick undermine the conclusion that there is overwhelming expert opinion to support the view that the HIV virus exists, that it is transmissible by sexual intercourse, and that it is the cause or a cause of AIDS.
Mr Borick’s approach seemed to be that if he could open up a few chinks in the wall of adverse scientific evidence, that was enough.
It is not enough. The material before the Judge, and before this Court, is overwhelming in its force.
I do not agree that it is now open to Mr Borick to mount in substance a new application for permission to appeal, based on the evidence of the expert witnesses called by the DPP. That evidence was freely available. It appears to me to be what might be called “mainstream” scientific opinion. In substance Mr Borick’s submission amounts to a proposition that there has been a miscarriage of justice because, at trial, Mr Parenzee’s legal representatives did not have the opportunity to call experts, opposed to the argument that Mr Borick wishes to advance, with a view to cross-examining them to show that their rejection of his argument can, in some limited respects, be challenged.
One need only state the position to appreciate how unrealistic it is.
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].
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.
ANDERSON J: I agree with the reasons of Doyle CJ and I would not grant permission to appeal.
KELLY J: I agree that the application for permission to appeal should be refused for the reasons given by the Chief Justice.