R v Parenzee

[2007] SASC 316
Download Judgment: English
Country: Australia
Year: 2007
Court: Supreme Court South Australia (Court of Criminal Appeal)
Tags: HIV/AIDS, Right of Access to Information, Right to Due Process/Fair Trial, Right to Life, Sexual and reproductive health

The appellant, Mr. Parenzee, had filed an application seeking permission to appeal against the decision of the trial Judge before the Full Bench of the Supreme Court of South Australia. The ground for the appeal as put by the appellant was a miscarriage of justice caused by the absence of a piece of evidence at the trial stage. The appellant was convicted by the trial judge as well as the Single Judge of the Supreme Court for engaging in “unprotected sexual intercourse” with three different women despite being aware of his HIV positive status. His action has put the life of the three women at risk which amounted to endangering life or creating a risk of serious harm as per s.29(1) of the Criminal Law Consolidation Act 1935 (the “CLCA”).
The appellant in the appeal application alleged that, at the stage of the trial, he and his legal representatives had not been aware of certain facts and scientific opinions which proved that engaging in non-protected sexual intercourse in the presence of HIV did not amount to endangering life. This assertion was based on three propositions that were unquestioned in the trial: first, whether it had been proved that HIV existed as a distinct or separate virus, second whether the virus was transmitted by sexual intercourse, and third whether the HIV virus was the cause of AIDS.
In accordance with general practice under s.367 of the CLCA and r 15 of the Supreme Court Criminal Appeal Rules 1996, the appeal was first heard by a single Judge. The Single Judge found that the appellant’s witnesses were not qualified to express an opinion as an expert as they lacked cogency and their evidence had minimal probative value as opposed to the witnesses brought in by the Director of Public Prosecutions (“DPP”), who were all qualified experts in their field and produced compelling evidence before the Court. The Judge, therefore, found that the appellant’s application lacked any merit and he refused to extend the time for making the application for permission to appeal.
The appellant then relied on s.367 of the CLCA and r 15(4) of the Supreme Court Criminal Appeal Rules (the “Rules”), requesting for the Full Court, which is the Court of Criminal Appeal (the “CCA”) to reconsider his request for permission to appeal and extension of the time within which to make the application

The Court took note of the questions which were coming in the backdrop of the permission to appeal against conviction. The question was whether certain evidence, not put before the jury at trial, was admissible and was of sufficient cogency that would warrant a decision on permission to appeal. The ground pleaded by the appellant was that there has been a miscarriage of justice against him because the evidence substantial for his case was not available at trial. The Court held that the test for the acknowledgment of fresh evidence was whether a jury would have found the evidence credible and true. The permission to appeal cannot be granted if the ground of appeal lacks substance or has no reasonable prospect of success.

The appellant had presented a report by a nuclear physicist and an emergency physician, who were of the view that HIV has not been proven to be infectious or transmissible. The Court held that the evidence brought by the applicant had no reasonable prospect of success and, therefore, dismissed his leave for appeal. The Court agreed with the observation of the single judge bench that the two experts presented by the appellant were not qualified to give judgments on the transferability of the HIV virus, in the case of unprotected sex. Lastly, based on expert witnesses report put forward by DPP, there was overwhelming support for the conclusion that HIV virus existed, was identifiable, the virus could be transmitted by sexual intercourse, and that it could cause AIDS unlike the challenge put forward by the appellant's counsel. Therefore, the Court refused to grant an extension of time to make an application to appeal and also refused to grant permission to appeal.

“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.” [Para 19]

“[I]t 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.” [Para 28]

“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.” [Para 56]

• Criminal Law Consolidation Act 1935 (SA): s. 29—"Acts endangering life or creating risk of serious harm (1) Where a person, without lawful excuse, does an act or makes an omission— (a) knowing that the act or omission is likely to endanger the life of another; and (b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered, that person is guilty of an offence.” s. 352—"Right of appeal in criminal cases (1) Appeals lie to the Full Court as follows: (a) if a person is convicted on information— (i) the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone; (ii) the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal; (iii) subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court; … (c) if a court makes a decision on an issue antecedent to trial that is adverse to the defendant—the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial); (ii) the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.” s.359—"Supplemental powers of Court For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing connected with the proceedings,the production of which appears to it necessary for the determination of the case; and (b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and (c) … (d) where any question arising on the appeal involves prolonged examination of documents oraccounts or any scientific or local investigation which cannot, in the opinion of the Full Court, conveniently be conducted before the Court, order the reference of the question in the manner provided by rules of court for inquiry and report to a special commissioner appointed by the Court and act on the report of any such commissioner so far as it thinks fit to adopt it.” • Supreme Court Criminal Appeal Rules 1996 r 15. “15. Hearing by Single Judge: (1) Subject to the remaining provisions of this Rule, applications which may be heard by a Judge of the Supreme Court pursuant to Section 367 of the Act, shall in all cases be heard and determined by a Judge sitting in court or in such manner as the Judge may direct, as such Judge may direct. (2) Notwithstanding the provisions of Rule 15(1) and subject to Rule 15A – (a) if in any particular case to which this Rule applies the Judge considers that the matter should be dealt with by the Full Court the Judge may, without otherwise disposing of the same, make an order accordingly. (b) no order refusing an application for permission to appeal or any other application by an appellant shall be made without the Judge hearing the same affording an opportunity to the appellant to present oral argument in open Court in support of the application.”