R v Parenzee - [2006] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PARENZEE
Reasons for Ruling of The Honourable Justice Sulan
2 May 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - OTHER MATTERS
Defendant charged with three counts of endangering life - application for separation of count 1 from counts 2 and 3 - defendant diagnosed as HIV positive - defendant allegedly had unprotected sexual intercourse with each complainant knowing that he had HIV - nature of relationship with complainant in count 1 different from relationships with complainants in counts 2 and 3 - whether there is a risk of prejudice that the accused will not obtain a fair trial - whether there is a real risk that the jury might impermissibly apply propensity reasoning - whether prejudicial effect outweighs probative value of the evidence - whether issues with evidence in count 1 will unnecessarily lengthen trial of counts 2 and 3 - application refused.
Criminal Law Consolidation Act 1935 s 29(1), s 278, referred to.
R v McDonald (1979) 21 SASR 198, considered.

R v PARENZEE
[2006] SASC 127
Criminal

SULAN J: Andre Chad Parenzee is charged with three counts of endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935 as amended (“the Act”).
Particulars of each count are as follows:
First Count
Statement of Offence
Endangering Life. (Section 29(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Andre Chad Parenzee between the 22^nd day of September, 1998 and the 21^st day of July 2003 at Salisbury North and other places, without lawful excuse, did an act or acts, namely had unprotected sexual intercourse with [KC], whilst knowing that he had the HIV/AIDS virus, knowing that that act or 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.
Second Count
Statement of Offence
Endangering Life. (Ibid).
Particulars of Offence
Andre Chad Parenzee between the 1^st day of August, 2000 and the 15^th day of July, 2001 at [CB] and other places, without lawful excuse, did an act or acts, namely had unprotected vaginal sexual intercourse with [SMC], whilst knowing that he had the HIV/AIDS virus, knowing that that act or 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.
Third Count
Statement of Offence
Endangering Life. (Ibid).
Particulars of Offence
Andre Chad Parenzee between the 8^th day of August, 2004 and the 15^th day of October, 2004 at Payneham and other places, without lawful excuse, did an act or acts, namely had unprotected vaginal sexual intercourse with [JB] whilst knowing that he had the HIV/AIDS virus, knowing that that act or 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.
The accused pleaded not guilty to all counts. By notice dated 13 January 2006, he sought separate trials for each count.
On 16 January 2006 I heard argument. At the commencement of his submissions counsel for the accused indicated that his instructions in relation to the third count had significantly changed. Up to that point, the accused had maintained that he had never had sexual intercourse with Ms JB. Throughout a number of applications for bail, the accused had maintained that position. Counsel for the accused advised that as a consequence of the change of his instructions there was no substantial dispute with Ms JB’s version of events. He indicated that, as a consequence of the accused’s change of instructions, the accused did not seek a separate trial in respect of counts 2 and 3. He did seek a separate trial of the first count.
I refused the application for severance and ordered that all counts be tried together. I indicated that I would provide reasons in due course. I now provide those reasons.
Summary of the facts – the prosecution case
The alleged facts giving rise to the charges relate to the accused’s conduct with the three complainants, Ms KC, Ms SMC and Ms JB. It is alleged that over a period of years he had unprotected sexual intercourse with each of the complainants when he was aware that he had been diagnosed as human immunodeficiency virus (“HIV”) positive and he had been advised that he should inform his partners about the diagnosis and that it could be sexually transmitted. It is alleged that having been so advised the accused continued to have sexual intercourse with Ms KC and had sexual intercourse with Ms SMC on numerous occasions and later with Ms JB on occasions without informing each of the women about his condition. It is alleged that he lied to Ms KC and Ms SMC about his ill health. It is alleged that he told them that he was suffering from, or had suffered from cancer. It is alleged that he also lied to Ms JB when she confronted him after their relationship had ceased, and after she had been informed by Ms KC of his condition. Initially, he told Ms JB he did not have the virus. It was in a later conversation that he admitted it.
As a consequence of his conduct it is alleged that the accused exposed each of the women to the risk of contracting the virus, thereby endangering their lives and he did so deliberately knowing that the act or acts were likely to endanger their lives and with the intention to do so or being recklessly indifferent as to whether their lives were endangered.
It is the prosecution case that in July 1988 the accused met Ms KC. They commenced a relationship which was an on and off relationship over a number of years. Between 1988 and September 1998 they lived together from time to time.
On 18 September 1998 the accused attended at the Flinders Medical Centre. At the time he and Ms KC were separated. He was living alone. By that stage Ms KC had borne two children. The first was born on 11 September 1990 and the second on 20 March 1994. The accused was the father of both children. After the couple had separated they maintained contact for the welfare of the children.
About one week prior to 18 September 1998, Ms KC received a telephone call from the accused’s mother who told her that the accused was dying and that he had cancer. She ascertained that he was at Flinders Medical Centre. She visited him there.
On 21 September 1998 tests revealed that the accused had contracted HIV. He was advised by a medical practitioner to discuss the diagnosis with his wife. The Crown case is that the accused told nursing staff to keep his diagnosis confidential. He was also advised that the virus may be sexually transmitted.
When he was released from hospital Ms KC visited him. She saw him on a number of occasions. She decided that he should move back into her home, as she believed that living as a family with their children would help him. At the time she believed he was suffering from cancer. The accused had not informed her of his diagnosis.
On 7 November 1998 the accused and Ms KC married. Between 1998 and 2000 the accused attended at the Flinders Medical Centre from time to time. He always arranged his appointments so that Ms KC could not accompany him. During the period after they resumed cohabitation they engaged in sexual intercourse on numerous occasions. On every occasion the accused did not wear a condom. In many instances full vaginal intercourse took place including the accused ejaculating into Ms KC’s vagina.
The two separated in the middle of the year 2000. Leading up to the separation Ms KC suspected that the accused was having an affair. It was shortly after their separation that he met the complainant Ms SMC and commenced a relationship with her. He also continued to have sexual intercourse with Ms KC after they had separated. This occurred on several occasions.
Ms SMC was residing at CB. In December 2000 the accused moved to a country town to live with her. While they were living together, he attended at Adelaide and visited Ms KC and had sexual intercourse with her.
During the time that he was in the relationship with Ms SMC he told her that he had suffered from cancer. On 6 July 2001 the accused became ill. Ms SMC took him to the Flinders Medical Centre. About one week later the accused’s sister, who was aware that he was suffering from HIV, told Ms SMC that he was HIV positive. She spoke to the accused about it. He was very annoyed that his sister had told Ms SMC. He was somewhat vague about the details of how and when he had contracted the virus.
She was with the accused when he consulted a doctor at the Flinders Medical Centre. She spoke to the doctor who arranged for her to have a blood test. On 20 July 2001, she was told that she had contracted HIV. She and the accused terminated their relationship in about October/November 2001.
On 27 October 2002 the accused was charged with the offence relating to Ms SMC. The accused maintained contact with Ms KC. There was a dispute about access to the children. On 21 July 2003 there was a mediation at the Family Court. It was at that time that Ms KC found out that the accused was HIV positive. She spoke to the accused and during the conversation the fact that he had been conducting a sexual relationship with Ms SMC was discussed. It is alleged that the accused told Ms KC that he could not “give a shit” if he had made Ms SMC sick.
The accused met Ms JB in about July 2004. In about September 2004 they first had sexual relations. Their relationship ceased in about October 2004. She discovered that the accused was infected with HIV on 19 November 2004 when she received a phone call from Ms KC. Ms JB then contacted the accused who denied that he was HIV positive. She then contacted the accused’s mother who confirmed that he was HIV positive.
On 22 November 2004, Ms KC left an envelope at Ms JB’s work, which contained a doctor’s letter confirming that the accused was HIV positive.
Defence submissions
Counsel for the accused accepted that the charges on the indictment are of the same character. Section 278 of the Act provides:
(1)     Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)     Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(3)     This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.
Two separate questions arise when counts are joined on the same information. The first question is whether they are properly joined pursuant to s 278 of the Act. The second question is whether as a matter of discretion there should be separate trials. In that regard the question is whether there will be impermissible prejudice to the accused if the charges are tried together. The test is whether there is a risk of prejudice that the accused will not obtain a fair trial.
Counsel for the accused submitted that by permitting the counts to be heard together, there is a risk of prejudice that the accused will not obtain a fair trial. He submitted that the nature of the relationships between the accused and the complainants, particularly his relationship with Ms KC, are very different. He submitted that Ms KC complained very late in the piece and did so at a time when there were Family Court proceedings between her and the accused. He submitted that although the accused had the means of transmitting the virus and the risk to which he exposed each of the women is a live issue in respect of each count, it does not follow that it will arise in the same way because of the different nature of the relationships. He submitted that in respect of the prosecution’s submission that there was a pattern of deceit, there is a real issue in respect of Ms KC’s account as to what she was told and when she was told. He further submitted that if the count in relation to Ms KC remained joined, it would lengthen the trial considerably as there were many issues in respect of her evidence which would not be issues in respect of the other two complainants.
If the KC count was heard together with the SMC and JB counts, he submitted that there would be a real risk that the jury would reason impermissibly that because he had acted in a particular way in respect of one complainant, he must have acted that way with other complainants. Further, the jury may reason impermissibly that, because the accused may have been recklessly indifferent in respect of one complainant, he would be assumed to have been recklessly indifferent in respect of the other complainants. That submission has less force in this case because of the concession by counsel for the accused that counts 2 and 3 can be heard together. In those circumstances, it is necessary to give a direction to the jury that it is impermissible to apply propensity reasoning when considering the evidence in respect of each count. Counsel submitted that in all the circumstances the risk of prejudice to the accused was so great that if the charges were heard together he would not be able to obtain a fair trial.
Prosecution submissions
Counsel for the Director of Public Prosecutions (“the DPP”) submitted that there were two main issues in the trial. The first is the factual question of whether the accused withdrew his penis before ejaculating. That issue was a live issue in respect of each of the alleged victims. The second issue relates to the accused’s state of mind and the question of whether he acted with reckless indifference.
Counsel submitted that there was an underlying unity or pattern in respect of the offending. She submitted that there was no real difference in the manner in which the relationships developed. She submitted that even in the case of Ms KC, the Crown case was that they had not cohabited for about two years when he resumed a sexual relationship with her. That sexual relationship continued after their marriage had failed and after he became involved in a de facto relationship with Ms SMC. In the case of each woman, he had unprotected sexual intercourse with them. Each woman denies that on every occasion he withdrew his penis prior to ejaculating.
In the case of the third complainant, Ms JB, it is alleged that he had unprotected sexual intercourse with her and there was an occasion when he did not withdraw prior to ejaculation. The conduct with Ms JB took place after Ms SMC had made a complaint and after the accused had been charged with offences relating to his relationship with Ms SMC. Counsel submitted that in respect of each of the alleged victims the accused kept his diagnosis secret, and he did not engage in safe sexual practices.
When Ms KC questioned the accused about whether he informed Ms SMC of his diagnosis, he told Ms KC that “he did not give a shit about making Ms SMC ill”. When questioned by Ms SMC about his relationship with Ms KC, he told Ms SMC that he used condoms. In the case of both Ms SMC and Ms KC, he told them that his illness was cancer and he did not inform them of the true diagnosis. Counsel submitted that there was a pattern of deceit from the time the accused was initially diagnosed and a pattern whereby he kept his diagnosis secret from his sexual partners. In that regard his conduct was such that there is a connection and an underlying common thread running through the allegations in respect of each alleged offence. It is submitted that the facts are so intertwined that a joint trial of all counts is thereby justified.
Counsel submitted that the accused lied to all three alleged victims. The evidence of his conduct in respect of Ms SMC is highly probative in relation to the JB count. If the jury accept that he had unprotected sexual intercourse with Ms JB after he had been charged with the count relating to Ms SMC, it undermines any defence that the accused did not believe that he was endangering the life of Ms JB because he was withdrawing his penis before ejaculation. He was aware, by the time he had a sexual relationship with Ms JB, that Ms SMC had contracted the virus. The evidence is relevant to his knowledge and understanding of the risk that he was placing each of the complainants in.
It was submitted therefore that there are strong policy reasons why the counts should be heard together.
Conclusion
In R v McDonald,[1] the appellant was charged with ten counts of rape and three counts of attempted rape. The court discussed the application of s 278 of the Act. After discussing whether the offences were part of a series of offences of the same or similar character King CJ and Sangster J said:
The question of desirability of joinder, or separation, of counts involves, in our opinion, both a different approach, and the consideration of different material, from the question whether there is sufficient nexus to constitute a “series of offences”.
(1) The approach is “that it is the interests of justice as a whole that must be the governing factor and that amongst those interests are those of the accused”. (Reg. v. Assim, per Curiam at p. 262 (a case of joinder of two accused, each on a separate count, in the one indictment, but the passage quoted is equally applicable to joinder of counts in an information against one accused – see at pp. 258 and 261; Reg. v. Palmer, (where Assim’s case is cited at length).
(2) The material available extends not merely to what are the alleged facts but also to what evidence is proposed to be called to establish those facts. See, for example, Reg. v. Palmer, at p.196. (It is of interest to note also that in that case the Court adopted the dictum of Herron J. in Reg. v. Beavan; “If separate trials were had, very often only one half of the picture could be presented to the jury.”); Reg. v. Davis. (It is of interest to note also that in that case the Court pointed out possible advantages to the appellant as well as to the prosecutor in relation to credibility of Crown witnesses in having the evidence on all counts before the jury).[2] [Footnotes omitted]
[1] (1979) 21 SASR 198
[2] (1979) 21 SASR 198 at 200
I consider that there is force in the submissions of counsel for the prosecution. Each of the complainants gives evidence which is relevant not only to the count involving the witness but also in respect of the other counts. The evidence in respect of the JB count is probative evidence in respect of the KC and SMC counts, in particular on the issue of the accused’s state of knowledge and state of mind. In my view there is evidence of an underlying unity or system in misleading Ms SMC and Ms KC about his condition, and later when confronted by Ms JB, denying that he suffered from HIV. In my view the evidence is capable of negativing a contention that the accused believed that his conduct in withdrawing prior to ejaculation would not endanger the lives of the complainants. Furthermore, his denial that he ever ejaculated inside each of the alleged victims, if not accepted by the jury, is evidence from which the jury could infer that he intended to endanger their lives or at the very least was recklessly indifferent as to whether their lives were endangered.

I have not dealt with every item of evidence which may be relevant to more than one count, but in order for the jury to obtain a complete picture of the accused’s conduct from which they might draw conclusions about the accused’s knowledge and whether he acted with reckless indifference, the evidence in respect of each count is relevant to the other counts.
I do not consider that there is a sufficient risk of prejudice to require separate trials. I do not accept the submission that the evidence is no more than evidence that demonstrates criminal propensity and that its prejudicial effect outweighs its probative value.
I therefore declined to order that count 1 be tried separately from counts 2 and 3.