R v Baltensperger

Case [2004] SASC 392

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BALTENSPERGER

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)

2 December 2004

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT

Appeal against conviction - appellant found guilty by jury of five counts of rape.

Discussion of section 74D and section 74E of the Summary Offences Act 1953 (SA) - consideration of admissibility of police interview - consideration of intoxication direction - consideration of direction regarding recent complaint and distress - consideration of direction regarding inconsistent statements - discussion of section 48 of the Criminal Law (Consolidation) Act 1935 (SA) and mental element of the offence of rape - consideration of direction concerning appellant's attitude towards women.

Held - breach of section 74D of the Summary Offences Act - trial Judge erred in admitting conversation into evidence - erred in failing to direct as to ambiguity in defendant's answers - failed to adequately direct as to intoxication of complainant - failed to adequately direct as to distress - element of propensity reasoning implicit in the comment of the trial Judge as to appellant’s attitude towards women - risk of miscarriage of justice - appeal allowed - retrial ordered.

Summary Offences Act 1953 (SA) s 74D, s 74E, s 79A; Criminal Law (Consolidation) Act 1935 (SA), referred to.
R v Karger (2003) 83 SASR 135; R v Bueti (1997) 70 SASR 370; R v Day (2002) SASR 85; R v Mekic (2004) 88 SASR 387; R v Flanigan (1997) 190 LSJS 499; R v Harris (1995) 64 SASR 85; Bedi v The Queen (1993-1994) 61 SASR 269; R v Lillyman [1896] 2 QB 167; Kilby v R (1973) CLR 460; Crofts v R (1996) 186 CLR 427; R v Corkin (No 2) (1989) 50 SASR 580; R v Green [2001] SASC 25; R v Osborne [1905] NB 551; R v Peake (1974) 9 SASR 458; R v Corkin (No 2) (1989) 50 SASR 580; R v Papakosmas (1999) 196 CLR 297; R v Pahuja (No 2) (1989) 50 SASR 551; R v Zorad [1979] 2 NSWLR 764; R v Knight (1966) 50 Cr App R 122; R v Wozniak (1977) 16 SASR 67; R v Neiterink (1999) 76 SASR 56; R v Davies & Hyland (1995) 183 LSJS 186; Driscoll v R (1997) 137 CLR 517, considered.

R v BALTENSPERGER
[2004] SASC 392

Court of Criminal Appeal:       Doyle CJ, Bleby and Gray JJ

  1. DOYLE CJ           I have read the reasons of Gray J.  I agree that the Judge erred in admitting…

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AGLC
R v Baltensperger [2004] SASC 392
Case
[2004] SASC 392
Decision Date

CaseChat Overview and Summary

The appeal before the court was from a decision made in the District Court, where the appellant, Anthony Baltensperger, was found guilty by jury verdict of five counts of rape. The conviction and sentence were set aside by the appellate court, and a retrial was ordered. The court was tasked with reviewing the legal issues that arose from the trial and determining whether the errors identified warranted a new trial.

The primary legal issue was whether the trial judge's directions to the jury on the mental element of the crime of rape, particularly in relation to the term "knowledge" instead of "belief," were sufficiently clear and whether this confusion had the capacity to have caused prejudice. Additionally, the court examined whether the trial judge erred in admitting evidence of the appellant's attitude towards his mother and Detective Bee, which the defence argued was irrelevant and prejudicial. The court also assessed whether the trial judge misdirected the jury on the issue of intoxication and whether the jury was adequately directed on the forensic evidence.

The court found that while the trial judge's oral directions on the mental element of the crime of rape contained some confusion, the overall direction was adequate. However, the court identified that the admission of certain evidence regarding the appellant's attitude towards his mother and Detective Bee was not relevant to proving the charges and thus constituted an error. Furthermore, the court held that the trial judge misdirected the jury on the issue of intoxication, which had the capacity to have caused prejudice. The court concluded that the combination of these errors, along with the wrongful admission of forensic evidence, had the potential to result in a miscarriage of justice.

The court ordered a new trial for the appellant. The errors identified in the trial process, particularly the misdirection on intoxication and the irrelevant evidence regarding the appellant's attitude, warranted a fresh determination of the case to ensure a fair trial. The court's decision highlighted the importance of clear and accurate jury directions and the exclusion of irrelevant and potentially prejudicial evidence.

Orders

Orders of the court

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Background

Background to the litigation

Following a trial in the District Court the appellant, Anthony Baltensperger, was found guilty by jury verdict of five counts of rape. On 4 November 2004 the appeal was allowed, the convictions set aside and a retrial ordered. My reasons for joining in the order of the court follow.Background It was alleged that the rapes occurred on 21 April 2002 at Murray Bridge or another place. Four counts alleged vaginal sexual intercourse and one alleged oral sexual intercourse with the female complainant. The prosecution case was that the complainant had become intoxicated whilst attending nightclubs in Adelaide on the night of 20 April 2002 and the early morning of 21 April 2002. She was “picked up” from a city street by the appellant who was driving past in his panel van. The appellant and the complainant had not previously met. The appellant then drove toward Murray Bridge. It was the complainant’s evidence that she had no recollection of events between leaving a city nightclub and waking some time later in the rear of the appellant’s panel van with the appellant touching her. She became aware that the panel van was in a country location. It was the prosecution case that at about 7.30 am on 21 April 2002 at that location the appellant raped the complainant vaginally once. Following the alleged rape a passing motorist offered assistance. The complainant did not take up the offer. The prosecution alleged that the appellant then drove to another location about 500-600 metres from where he had first stopped. The prosecution also said that the appellant threatened the complainant with a .22 rifle and at this location raped her orally once and vaginally on three occasions. The prosecution case was that the appellant then drove with the complainant to his home at Murray Bridge where he went inside whilst the complainant remained in the vehicle. The appellant returned to the vehicle and drove with the complainant to Adelaide. He left her at a suburban intersection at about 1.00 pm. The complainant telephoned her mother and complained that she had been threatened with a gun. She also complained to her brother. They both described the complainant as being distressed. The complainant’s mother then telephoned the police who attended and observed the complainant to be distressed. She complained of rape to the police at about 1.10 pm on 21 April 2002. Police inquiries led to the appellant who was arrested at about 7.40 am on 22 April 2002 at his home at Murray Bridge. The prosecution called the complainant, who gave evidence with respect to each count of rape. She said that each act was without her consent. The complainant said that at one stage the appellant dragged her back into the van and threatened to break her arm. A little later he produced a rifle without its stock. He loaded the rifle in front of her and threatened to shoot her. Any compliance by the complainant with the appellant’s demands was due to fear for her safety resulting from the threats that had been made. Constables Elliot and Brain, who attended to the complainant following the mother’s telephone report, gave evidence of the complainant’s distress and upset. The appellant was subsequently arrested.

Evidence

Evidence Before The Court

When a trial Judge provides a written memorandum detailing the elements of the offence, it is important when giving additional oral directions that care is taken not to use terminology departing to any material degree from the terms of the written memorandum. The use of different language may create confusion. In this case, the oral direction of the Judge on the issue of the mental element of the crime of rape differed to some degree from the written memorandum. The use of the word ‘knowledge’ instead of ‘belief’ when addressing section 48(b) is one example. This difference had a tendency to confuse. However, when the totality of the direction on the mental element is considered the direction was adequate.Evidence of Complainant in Re-examination Dr Jones, a medical practitioner, examined the complainant between 4.00 pm and 4.55 pm on 21 April 2002. This was some three to four hours after her initial complaint to her family and then the police. Dr Jones conducted a physical examination and took a history from the complainant. At the time of trial Dr Jones was not available to give evidence. However, Dr Young gave secondary evidence of the examination conducted by Dr Jones from Dr Jones’ contemporaneous notes. This was done with the consent of the appellant. Prior to Dr Young giving evidence, the complainant had been cross-examined about her conversation with Dr Jones. Counsel for the appellant suggested that the complainant had told Dr Jones that there had been three acts of vaginal intercourse and one act of oral intercourse. This account of the complainant was then contrasted by counsel to the complainant’s evidence in court that there had been four acts of vaginal intercourse and one act of oral intercourse. The complainant had answered that she did not remember what she had said to Dr Jones. The evidence-in-chief of Dr Young was confined to a description of the physical examination conducted by Dr Jones, together with an expert medical interpretation of the observation that had been made. Counsel cross-examined Dr Young and elicited that Dr Jones had recorded the following history from the complainant:… [the complainant] said that he forced her to have oral sex, penis in mouth, kept swearing at her and then put his penis in her vagina, pulled out and ejaculated on her pants. She said he had his penis in her vagina, intercourse with her three times, and kissed her neck.The point of the cross-examination of Dr Young was to confirm that an inconsistent account had been given to Dr Jones about the number of vaginal rapes. Over the objection of defence counsel, the prosecutor was permitted to re-examine Dr Young about the further history taken by Dr Jones. That further history included the following:-That the complainant had no memory of anything prior to waking up in the van;-That she had “come around” in the middle of the bush with an unknown male;-That she had tried to get away but that the man had dragged her back into the back of the car and had said he would break her arm;-That the assailant had asked the complainant if he could have sex again, taken out a gun and been very aggressive and that she had thought he would shoot her. She then said that the man had forced her to have oral sex;-That the man had washed her with water that he had in his car.

Decision

Reasons for decision

DOYLE CJ BLEBY J
The appellant’s attitude to his mother and Detective Bee was not probative or relevant to proving the charges. This was not a case where this evidence was relevant to an assessment of any relationship with the complainant. There was an element of propensity reasoning implicit in the comment of the trial Judge. The trial Judge misdirected the jury in this respect. Conclusion The wrongful admission of statements made in the course of the forensic procedure process and the misdirection as to intoxication, had the capacity to have caused considerable prejudice. There is a risk that a miscarriage of justice occurred. The other errors discussed in these reasons add to that risk.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, BLEBY J

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