R v Parenzee - [2007] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Permission to Appeal)
R v PARENZEE
[2007] SASC 143
Reasons for Decision of The Honourable Justice Sulan
27 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS
APPLICATION FOR PERMISSION TO APPEAL - ENDANGERING LIFE
Applicant had been convicted of three counts of endangering life - basis of convictions was that applicant had unprotected sexual intercourse with three women at a time when he knew he was infected with the virus HIV and had been advised not to have unprotected sexual intercourse with his sexual partners - applicant sought permission to appeal on the ground that there should be a retrial to enable fresh expert evidence to be led - evidence sought to be led was heard during application for permission - whether evidence sought to be led was expert evidence - whether witnesses sought to be called were experts - whether fresh evidence could be led - held, witnesses were not experts - held, evidence was not such that it might have led a jury to acquit - held, there was therefore no basis for a retrial - application for permission to appeal refused.
R v Bonython (1984) 38 SASR 45; R v Reci (1997) 70 SASR 78; Winslett v The Queen (1992) 60 SASR 1, applied.
Commissioner for Government Transport v Adamcik (1961) CLR 292; Frye v United States (1923) 293 F 1013; Gallagher v The Queen (1986) 160 CLR 392; J (1994) 75 A Crim R 522; Mickleberg v The Queen (1989) 167 CLR 259; R v Barker (1988) 34 A Crim R 141; R v McIntee (1985) 38 SASR 432; R v Runjanjic and Kontinnen (1991) 56 SASR 114; Weal v Bottom (1966) 40 ALJR 436, discussed.
Re Petition by Van Beelen (1974) 9 SASR 163, considered.

R v PARENZEE
[2007] SASC 143
Court of Criminal Appeal

SULAN J: On 31 January 2006, Andre Chad Parenzee was convicted of three counts of endangering life. The basis of the convictions was that he had unprotected vaginal sexual intercourse with three women. The prosecution case was that he engaged in unprotected sexual intercourse during a time when he knew that he had the Human Immunodeficiency Virus (“HIV”), the virus that causes AIDS, and had been advised of the risk that the virus could be transmitted if he were to engage in unprotected sexual intercourse. It was the prosecution case that Mr Parenzee knew that the act or acts were likely to endanger the life of each of the women and that he was recklessly indifferent as to whether their lives were endangered.
On 17 February 2006, Mr…

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.

Continue reading R v Parenzee

Details

AGLC: R v Parenzee [2007] SASC 143
Case: [2007] SASC 143
Decision Date: 27 April 2007

CaseChat Overview and Summary

In the case of R v Parenzee, the applicant was convicted of three counts of endangering life after having unprotected sexual intercourse with three women while knowing he was infected with HIV and had been advised against unprotected sexual intercourse. The applicant sought permission to appeal on the ground that there should be a retrial to enable fresh expert evidence to be led. The expert evidence in question pertained to the existence of the HIV virus, the reliability of tests that diagnose HIV, whether HIV causes AIDS, and whether HIV is sexually transmissible. The court was tasked with determining whether the fresh evidence could be led and, if so, whether it could have led a jury to acquit, thereby warranting a retrial.

The court considered the qualifications of the proposed expert witnesses, Ms Papadopulos-Eleopulos and Dr Turner, and concluded that they were not qualified to give expert opinions on the existence of HIV, the reliability of diagnostic tests, or the transmission of HIV. The court held that their evidence was not such that it might have led a jury to acquit, and therefore, there was no basis for a retrial. The applicant’s application for permission to appeal was refused.

The court emphasised that the primary purpose of rules relating to fresh evidence is to prevent miscarriages of justice. However, the court found that the proposed evidence lacked cogency and plausibility, and did not indicate that a miscarriage of justice had occurred. The court also noted that the evidence proposed to be called was not adduced at trial, and therefore, the probative value of this evidence was minimal. The court concluded that no miscarriage of justice had taken place, and the fresh evidence did not meet the threshold for a retrial.

In summary, the court found that the proposed expert witnesses were not qualified to give expert opinions on the matters in question, and their evidence would not have led to an acquittal. The application for permission to appeal was refused, and no retrial was granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At a directions hearing on 5 September 2006, I was advised that reports of Professors French, Kaldor, McDonald and Gordon had been provided to the applicant. The DPP indicated that a report of Professor Cooper would also be provided. I was informed that the witnesses for the applicant would be Dr Turner and Ms Papadopulos-Eleopulos. The hearing was listed to commence on 23 October 2006. As the hearing progressed, I was advised by counsel for the DPP that additional evidence would be led from Associate Professor Dax, Dr Dwyer and Professor Gallo.Fresh evidence generally The case for the applicant is that, at the time of the trial, there existed a genuine scientific controversy regarding the existence of a virus HIV, the reliability of the tests that purport to diagnose HIV, whether HIV causes AIDS and whether HIV was sexually transmissible, and that the applicant and his advisers were not aware of these areas of controversy. I will address the nature of the fresh evidence sought to be admitted later in these reasons. The ultimate purpose of the rules relating to the admission of fresh evidence by appellate courts is the prevention of miscarriages of justice. In R v McIntee,[1] King CJ made the following observations:The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.[2][1] (1985) 38 SASR 432. [2] R v McIntee (1985) 38 SASR 432, 435. Similarly, Gibbs CJ in Gallagherv The Queen,[3] stated:No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.[4] [3] (1986) 160 CLR 392.[4] Gallagher v The Queen (1986) 160 CLR 392, 399. These passages were cited with approval by Duggan J (with whom Legoe and Mohr JJ agreed) in Winslett v The Queen.[5] Similarly, in R v Reci,[6] Doyle CJ cited with approval a passage of the judgment of Gibbs CJ in Gallagher to the same effect, and referred also to the view of the Court in Re Petition by Van Beelen,[7] stating: ‘the decided cases provide “working rules developed for use in the ordinary and general run of cases”, but the ultimate question is whether there has been a miscarriage of justice.’[8] [5] (1992) 60 SASR 1.[6] (1997) 70 SASR 78.[7] (1974) 9 SASR 163, 183.[8] R v Reci (1997) 70 SASR 78, 92.

Decision

Reasons for decision

As the matter presently stands, there has been no application to amend the notice of appeal. If such application were to be made, based upon the material contained in the document, I would refuse leave to amend. My reasons for so doing are that the document is simply a short briefing paper. There is nothing in the document which would suggest that the evidence of Professor Higgins is unreliable. No evidence has been sought to be tendered which might throw doubt upon Professor Higgins’ evidence. This is simply a document which counsel submits it might wish to use if Professor Higgins was further cross-examined. In effect, Mr Borick QC submits that he should be entitled to re-open the case to embark on a form of fishing expedition to investigate the methodology used by Professor Higgins in arriving at his conclusions. That is not a basis to justify re-opening the case. The document can only lead to speculation. It has no evidential weight. No evidence has been provided to support the application. There is no evidence to doubt the accuracy of Professor Higgins’ conclusions.Conclusion – summary I reject the evidence of Ms Papadopulos-Eleopulos and Dr Turner. I conclude, for the reasons expressed, that they are not qualified to give expert opinions about whether it has been proved that a virus HIV exists. They are not qualified to express opinions on the tests that have been developed to diagnose the virus in humans. They are not qualified to express opinions about whether the virus is sexually transmitted. The opinion evidence of these two witnesses is therefore inadmissible. I find that the respondent’s witnesses are all qualified to give expert opinion evidence in their respective fields. I find that the evidence that HIV exists is compelling. Even assuming that Ms Papadopulos-Eleopulos’ and Dr Turner’s evidence was admissible in a trial, I am satisfied that no jury would conclude that there is any doubt that the virus HIV exists. I consider no jury would be left in any doubt that HIV is the cause of AIDS or that it is sexually transmissible. In my view, the probative value of the evidence proposed to be called by the applicant is minimal. The proposed evidence lacks cogency. I am satisfied that no miscarriage of justice has taken place because the evidence now proposed to be adduced was not so adduced at trial. For the reasons I have given, I reject the submission of Mr Borick QC that I should apply the test according to how the case might have been different at trial.The question to be answered is whether the failure of the jury to have heard the evidence might have led to an unjust conviction. For the reasons I have given, I do not consider that the evidence proposed to be called is plausible or cogent. There has been no miscarriage of justice. At the trial, the three complainants gave detailed evidence of their sexual contact with the applicant. Ms C, who has been diagnosed with the virus, gave evidence that her only sexual contact during the relevant time before she was diagnosed as HIV positive, was with the applicant.

Ratio Decidendi

Legal Principle Established

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