R v Baltensperger

Case [2006] SASC 246

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v BALTENSPERGER

[2006] SASC 246

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice White)

18 August 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

Appellant convicted of 5 counts of rape upon re-trial - Appeal against conviction and application for leave to appeal against conviction - Sympathy card from jury to prosecutor - Whether refusal to discharge jury amounted to miscarriage of justice - Where jury directed to disregard personal views and emotions - No reasonable apprehension of bias or lack of impartiality on part of jury demonstrated - Appeal dismissed.

Webb & Hay v The Queen (1994) 181 CLR 41, referred to.
R v Baltensperger (2004) 90 SASR 129; R v Musolino (2003) 86 SASR 37; Jones v National Coal Board [1957] 2 QB 55; R v Esposito (1998) 45 NSWLR 442; Rowland v Police (2001) 79 SASR 569, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

Appeal against sentence - Sentencing at re-trial - Where appellant previously convicted and sentenced for same offence - Whether, following re-trial, sentencing judge constrained by sentence imposed by first judge on original conviction - Whether sentencing judge erred in imposing heavier sentence than that imposed for original conviction - Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 354(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Appeal Act 1912 (NSW) s 7(1); Crimes Act 1958 (Vic) s 569(1), referred to.
R H McL v The Queen (2000) 203 CLR 452; R v Garrett (1978) 18 SASR 308; R v Gilmore (1979) 1 A Crim R 416; R v Martin (No 6) (2000) 206 LSJS 187; R v MM (2002) 135 A Crim R 216; R v Pahuja (No 2) (1989) 50 SASR 551; Williams v The Queen (No 2) [1982] WAR 281, discussed.
Campbell & Barker (No 2) v The Queen (1996) 70 FCR 1; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; Markarian v The Queen (2005) 215 ALR 213; Markovina v The Queen (1999) 73 ALJR 655; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] 2 VR 139; R v Merritt [2000] NSWCCA 365; R v Mitchell [2002] NSWCCA 380; R v Morse (1979) 23 SASR 98; R v Petersen [1999] 2 Qd R 85; R v Smith (2001) 80 SASR 396; R v Tait (1979) 46 FLR 386, considered.

R v BALTENSPERGER
[2006] SASC 246

Court of Criminal Appeal:       Bleby, Vanstone and White JJ

BLEBY J:

Introduction

  1. Following a trial in the District Court the appellant was found guilty of five counts of rape, all five counts relating to the same victim.  He was…

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AGLC
R v Baltensperger [2006] SASC 246
Case
[2006] SASC 246
Decision Date

CaseChat Overview and Summary

The appellant, Baltensperger, was convicted of five counts of rape following a re-trial. He appealed against his conviction and applied for leave to appeal against the conviction. The appeal raised various grounds, including the trial judge's refusal to discharge the jury due to a sympathy card sent by the jury to the prosecutor. Baltensperger argued that this refusal amounted to a miscarriage of justice. The Court of Criminal Appeal examined whether the refusal to discharge the jury demonstrated a reasonable apprehension of bias or lack of impartiality on the part of the jury.

The Court of Criminal Appeal held that the refusal to discharge the jury did not amount to a miscarriage of justice. The jury had been directed to disregard their personal views and emotions, and there was no evidence to suggest that the jury was biased or lacked impartiality. The Court found that the trial judge had acted within his discretion in refusing to discharge the jury. Furthermore, the Court considered that the evidence presented at the re-trial was sufficient to support Baltensperger's conviction on all counts of rape. Therefore, the appeal against the conviction was dismissed.

The Court also addressed the appeal against the sentence, which Baltensperger argued was manifestly excessive. The Court noted that while it is generally accepted that a sentence imposed after a re-trial should not exceed the original sentence unless the original sentence was manifestly inadequate, the trial judge had exercised his discretion and found the original sentence to be inadequate. The Court upheld the trial judge's decision to impose a higher sentence, considering the evidence and circumstances of the case.

The final orders of the Court were that leave to appeal against conviction on ground 1 should be granted but leave to appeal against conviction should be refused on all other grounds. The appeal on ground 1 was dismissed, and the appeal against sentence was also dismissed. Baltensperger's convictions and sentence were upheld.

Orders

Orders of the court

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Background

Background to the litigation

The appellant then applied for leave to appeal against the conviction to the Court of Criminal Appeal. When that application came before the Court as presently constituted, the appellant abandoned grounds 7 to 13 inclusive and 15. The argument on the remaining grounds included full argument on those grounds. At the same time the Court as presently constituted heard the appeal against sentence.Background facts It is convenient to adopt the single Judge’s description of the background facts in the reasons for refusing leave to appeal. All of the offences were alleged to have occurred on 21 April 2002. Four of the charges relate to vaginal sexual intercourse and one to a charge of oral sexual intercourse. The evidence of the complainant was that on 20 April 2002, she had been out drinking with friends at various night spots in Adelaide. She became intoxicated in the course of the evening and was eventually picked up in Hindmarsh Square by the appellant who was driving a panel van. The appellant then drove her to somewhere near Murray Bridge. The complainant said that she woke up in the back of the van and the appellant was kissing and touching her and when she tried to get out, he grabbed her hand and twisted her arm behind her back. She swore at the appellant and told him to let her out but she was unable to escape. Her underwear came off. The appellant then had vaginal sexual intercourse with her against her will. This represents Count 1 on the information. The complainant said she remembered sitting on the side of the road. A passing motorist stopped and asked her if everything was okay. She was uncertain of what the appellant said but the man left. She kept telling the appellant to shut up and leave her alone. The appellant kept saying it was okay and he would take her home. He then moved the panel van up a little sidetrack and parked in a group of trees. The complainant said that she heard her mobile phone ringing. She did not answer but then got it out of her bag and pressed re-dial. When the appellant saw what she was doing he freaked out. He grabbed a gun from behind the seat. He got out of the car and opened it. The complainant said the gun “wasn’t like the whole gun, it was only like the metal part and he started like taking bullets out and checking if it was loaded”. The complainant said that she then freaked out because the appellant was saying he did not know what to do because if he let her go she would go straight to the police. She then described herself as sitting in the driver’s seat and said that the appellant made her give him a “head job”. She thought she was going to get sick and said “Why don’t you just fuck me instead?”. The appellant wiped himself with her underwear and then told her to get out of the car. She said he still had the gun held at his side when an act of sexual intercourse on the bonnet of the car took place. The act of fellatio represented Count 2 on the information, and the incident on the bonnet Count 3.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the previous administration of the appellant’s rights on two occasions that morning, his reminder of them on another and indeed his exercise of the right to silence immediately before this conversation occurred, it cannot be suggested that the appellant was unfairly dealt with or that Senior Constable Shilton in any way abused his position as police officer to extract any unwanted admission from the appellant. There is no substance in this ground and leave to appeal must be refused.Conclusion Leave to appeal against conviction on ground 1 should be granted but leave to appeal against conviction should be refused on all other grounds. The appeal on ground 1 should be dismissed.The appeal against sentence The appellant complains that the sentence imposed was manifestly excessive and should not have exceeded the sentence imposed for precisely the same charges by the Judge who presided over the first trial. It is convenient to deal with the second point first. In the course of his sentencing remarks the trial Judge said:I accept that, ordinarily, I should not, in this situation, impose a sentence greater than that imposed on the first occasion, notwithstanding my own sentencing discretion. High Court authority, although not binding on me, but is highly persuasive, would suggest that I should not impose more as a matter of policy unless I think that the original sentence was manifestly inadequate. If that is the appropriate test, on my view of the evidence in this case, it is satisfied. I am not bound by the sentence of Judge Smith and exercise my own sentencing discretion. Because there are apparently irreconcilable decisions of this Court and differing views expressed from time to time in other courts, it is necessary to review the various cases dealing with this topic. The first court to consider the effect of an earlier sentence was this Court in R v Garrett.[13] A question was reserved to the Full Court as to whether, upon conviction on a re‑trial, the Judge was “in any way or in any circumstances constrained in his imposition of sentence by the sentence imposed by the Judge on the original conviction”. In their joint judgment, Hogarth ACJ and White AJ said:[14]In our view … the Judge who is called upon to sentence a prisoner after a re‑trial has a duty to do so according to what he regards at that time as proper in all the circumstances. Primarily, he must approach the case as one coming before him de novo. It would be wrong for him to regard himself as in any way bound by what had occurred at the previous trial, or limited in the exercise of what after all is a discretionary power, the determination of what is a proper sentence. Of course, it is proper for him to have regard to the opinion of the trial Judge at the first trial; but the facts which emerged before the courts at the two trials my have varied in some significant respect. Almost certainly they will have varied to some extent. Even if they have not varied to any significant extent, the trial Judge at the second trial must do what he himself thinks proper in all the circumstances; one of those circumstances being that he has the advantage of knowing what another Judge thought of the same or similar facts, that is to say the facts which emerged at the first trial. But in the end it is he, and he alone, who is responsible for deciding what is a proper sentence.[13] (1978) 18 SASR 308.[14] Ibid at 313.

Ratio Decidendi

Legal Principle Established

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