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…

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 [2006] SASC 127
Case: [2006] SASC 127
Decision Date: 2 May 2006

CaseChat Overview and Summary

In the matter of R v Parenzee, the defendant faced charges of three counts of endangering life. The crux of the application was to determine whether count 1 should be separated from counts 2 and 3 for trial. The defendant, diagnosed with HIV, was alleged to have had unprotected sexual intercourse with each complainant without disclosing his condition, knowingly exposing them to the risk of contracting HIV. The relationships with each complainant differed, with the first complainant being in a more intimate and long-term relationship compared to the others. The primary legal issues before the court involved whether the risk of prejudice would prevent the defendant from receiving a fair trial and whether there was a real risk that the jury might apply impermissible propensity reasoning. Additionally, the court considered whether the prejudicial effect of the evidence in count 1 outweighed its probative value and if the issues with the evidence in count 1 would unnecessarily lengthen the trial of counts 2 and 3.

The court meticulously examined the evidence and submissions from both the prosecution and the defence. The prosecution argued that the evidence from each complainant was relevant not only to their respective counts but also to the others, particularly concerning the defendant’s state of knowledge and state of mind. They contended that there was an underlying unity in the defendant's conduct of misleading the complainants about his condition. The defence, on the other hand, sought to separate count 1, arguing that the prejudicial effect of the evidence in this count would outweigh its probative value and that the trial would be unnecessarily prolonged. The court held that the interests of justice, including those of the accused, should guide the decision. It found that the evidence from each count was relevant to the others and that the probative value of the evidence outweighed any prejudicial effect. The court also determined that trying the counts together would not unnecessarily lengthen the trial.

After thorough deliberation, the court concluded that the evidence from each count was relevant to the others and necessary for the jury to obtain a complete picture of the defendant's conduct and state of mind. The court found that the probative value of the evidence in count 1 did not outweigh the prejudicial effect and that the interests of justice would be best served by trying all counts together. Consequently, the application for severance was refused, and the court ordered that all counts be tried together. The decision was based on the need for a comprehensive understanding of the defendant’s conduct and the relevance of the evidence across all counts.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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