Owen Ballard (a pseudonym) v The King - [2025] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0031

OWEN BALLARD (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	EMERTON P, KIDD and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2025
DATE OF JUDGMENT:	29 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 120
JUDGMENT APPEALED FROM:	DPP v Ballard (a pseudonym) (County Court of Victoria, Judge Dempsey, 19 October 2023) (Conviction)

---

CRIMINAL LAW – Appeal – Conviction – Rape – Applicant charged on indictment with two charges of rape of wife – Jury returned verdict of guilty on Charge 1 and not guilty on Charge 2 – Whether verdict on Charge 1 inconsistent with verdict on Charge 2 – Whether verdict on Charge 1 a compromise verdict – Whether reasonable and rational basis for jury to distinguish between Charge 1 and Charge 2 – Where complainant’s evidence in relation to Charge 1 not able to be distinguished from evidence in relation to Charge 2 – Complainant’s evidence not capable of rationally explaining different verdicts – Verdicts explicable only as compromise – Appeal allowed.

MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) CLR 606, considered.

---

Counsel
Applicant:		Mr C Oldham
Respondent:		Mr L McAuliffe
Solicitors
Applicants:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KIDD JA
KAYE JA:

Introduction

On 19 October 2023, the applicant was found guilty by a jury in the County Court of Victoria of one charge of raping the complainant in 2013 (Charge 1),[1] but not guilty of a further charge of raping the complainant in 2017 (Charge 2).[2] The complainant was the applicant’s wife.
[1]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
[2]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
Charge 1 involved a digital rape that was alleged to have taken place shortly after the birth of the couple’s second child in June or July 2013; Charge 2 involved a penile rape that was alleged to have taken place not long before the couple separated in 2017.
The applicant and complainant met in late 2005. They moved in together in either 2005 or 2006 and married in November 2009. They had two children, the eldest of whom (Jasper)[3] was born in October 2010 and the youngest (Isabel)[4] in June 2013. Their marriage ended in about December 2017.
[3]A pseudonym.
[4]A pseudonym.
In May 2020, while applying for a Family Violence Intervention Order against the applicant, the complainant told police that she had been sexually assaulted by the applicant while they were married. Some time after the alleged incident that was the subject of Charge 2, the complainant had also told her childhood friend, Ms Amy Wittner,[5] that the applicant had sexually assaulted her.
[5]A pseudonym.
Ms Wittner gave evidence of the complaint at trial. Apart from the…

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.

Keep reading for free

Create a free CaseChat account to read Owen Ballard (a pseudonym) v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] VSCA 120
Decision Date: 29 May 2025

CaseChat Overview and Summary

The applicant, Owen Ballard, appealed his conviction on one count of rape of his wife, while the jury acquitted him on a second count of rape. The High Court of Australia heard the appeal, which raised significant legal issues regarding the consistency and rationality of the jury's verdicts. The court had to determine whether the verdict on the first charge of rape was inconsistent with the not guilty verdict on the second charge. Additionally, the court considered whether the guilty verdict on the first charge could be seen as a compromise verdict, given the complainant's evidence was not distinguishable between the two charges.

The court examined the nature of the evidence presented and the jury's ability to rationally distinguish between the two charges. The complainant's testimony did not allow for a clear differentiation between the two counts, and the evidence was not capable of rationally explaining the differing verdicts. The court concluded that the only reasonable explanation for the inconsistent verdicts was that the jury had reached a compromise on the first charge. This finding led the court to determine that the verdict on the first charge lacked a reasonable and rational basis, as it was not supported by the evidence.

In light of the above reasoning, the court allowed the appeal and quashed the conviction on the first charge of rape. The High Court held that the verdict on the first charge was not supported by a reasonable and rational basis and was explicable only as a compromise verdict. The decision underscores the importance of ensuring that jury verdicts are based on the evidence and are both consistent and rational. The court's findings reinforce the need for careful consideration of the evidence and the reasoning behind jury verdicts to maintain the integrity of the criminal justice system.

Orders