R v Baltensperger - [2005] SASC 465

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BALTENSPERGER
Reasons for Rulings of The Honourable Justice Nyland
1 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
Application for leave to appeal against conviction - five counts of rape - various grounds of appeal including refusal of judge to grant a mistrial after a sympathy card given to prosecutor following death of his father - steps taken by trial judge to ensure jury understood need to consider evidence in objective manner - lack of particulars to support other grounds - leave refused.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal against sentence - re-trial - judge at second trial substantially increased sentence imposed at first trial - arguable that in so doing second judge erred - leave granted.
Summary Offences Act (SA) 1953 ss 79A and 79D, referred to.
Webb and Hay v The Queen (1994) 181 CLR 41; R v Garrett (1978) 80 SASR 308; R v Martin (No 6) (1999-2000) 106 LSJS 187; RHMcL v The Queen (2000) CLR 452, discussed.

R v BALTENSPERGER
[2005] SASC 465
APPLICATION FOR LEAVE TO APPEAL
Appeal against conviction:

The applicant was tried in the District Court on five counts of rape, all of which related to one victim. The applicant had earlier been tried with respect to the same charges in the District Court but on 4 November 2004 the Court of Criminal Appeal allowed the appeal against the convictions recorded at the earlier trial, and ordered a re-trial.
On 11 April 2005, following the re-trial, the applicant was found guilty by the jury of all charges against him. Although the applicant was represented by counsel during his trial, he appeared in person on the hearing of the application for leave. Mr Pearce appeared for the Director of Public Prosecutions on the leave application. As the applicant was unrepresented throughout the hearing of the leave application, I adjourned the hearing on several occasions to ensure that the applicant had proper opportunity to put all relevant submissions to the court in support of his proposed appeal. On each occasion that the matter came on for hearing I emphasized the need for the applicant to provide proper particulars with respect to each of his grounds of appeal. The applicant has in the course of these hearings provided copious notes relating to this appeal but those notes have primarily been directed to Ground 1. On 27 October 2005 I informed the applicant that I was not prepared to delay the matter any further and that I proposed to finalise the application by 1 December 2005. I indicated that any further submissions should be made by that date.
When the matter came on for hearing on 1 December 2005, the applicant provided me with further handwritten submissions all of which related to Ground 1. In my opinion, there was nothing…

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 Baltensperger

Details

AGLC: R v Baltensperger [2005] SASC 465
Case: [2005] SASC 465
Decision Date: 1 December 2005

CaseChat Overview and Summary

The case of R v Baltensperger involved the applicant appealing against both his conviction and sentence. The applicant was convicted on five counts of rape and the appeal related to both the conviction and the subsequent re-trial and sentence. The applicant argued that the trial judge should have granted a mistrial after a sympathy card was given to the prosecutor following the death of his father, among other grounds. Additionally, the applicant contested the increased sentence imposed during the re-trial.

The primary legal issues before the court were whether the trial judge erred in not granting a mistrial and whether the judge at the second trial erred in increasing the sentence imposed at the first trial. The court also considered the applicant's contention that the trial judge failed to provide adequate particulars to support other grounds of appeal.

In evaluating the grounds of appeal, the court found that there was no basis to grant leave to appeal against the conviction. The court held that the trial judge had taken sufficient steps to ensure that the jury understood the need to consider the evidence objectively. Furthermore, the applicant's claim regarding the sympathy card did not warrant a mistrial. The court found that the lack of particulars supporting other grounds of appeal meant that these arguments could not be considered further. Consequently, leave to appeal against the conviction was refused.

However, the court granted leave to appeal against the sentence. It was considered arguable that the judge at the second trial erred in increasing the sentence imposed at the first trial. The court found that this contention warranted further examination, and thus, leave to appeal against the sentence was granted.

Orders

Orders of the court

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Background

Background to the litigation

When the matter came on for hearing on 1 December 2005, the applicant provided me with further handwritten submissions all of which related to Ground 1. In my opinion, there was nothing in that material which added to any of the earlier submissions with respect to that ground. The applicant had not prepared any written submissions relating to any other ground and sought a further adjournment to enable him to attend to those matters and to seek legal advice. He complained that he had suffered prejudice in finalising these matters as he had been moved to Port Augusta gaol on 17 November 2005. I was not, however, prepared to adjourn the matter any further as I considered that the applicant had been provided with ample opportunity to attend to all of these matters as the application for leave had first come on for hearing on 30 May 2005.Background: 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 (S), was that on 20 April 2002, she had been out drinking with friends at various night spots. She became intoxicated in the course of the evening and was eventually picked up in Hindmarsh Square by the applicant who was driving a panel van. The applicant then drove her to somewhere near Murray Bridge. S said that she woke up in the back of the van and the applicant 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 applicant and told him to let her out but she was unable to escape. Her underwear came off. The applicant then had vaginal sexual intercourse with her against her will. This represents Count 1 on the information. S 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 applicant said but the man left. She kept telling the applicant to shut up and leave her alone. The applicant kept saying it was okay and he would take her home. He then moved the panel van up a little side track and parked in a group of trees. S 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 applicant 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. S 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”. S said that she then freaked out because the applicant 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 applicant 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 applicant 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

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Ratio Decidendi

Legal Principle Established

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