R v BALTENSPERGER - [2004] SASC 250

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v BALTENSPERGER
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
19 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Application for leave to appeal against conviction - applicant found guilty of five counts of rape after a trial before a judge and jury in the District Court - leave to appeal refused with respect to a ground alleging that the trial miscarried by reason of a juror having attended a scene connected to the alleged offences - leave to appeal granted with respect to a ground alleging that the trial judge erred in admitting into evidence a conversation between the applicant and a police detective - leave to appeal granted with respect to a ground alleging that the trial judge misdirected the jury in referring to an argument put by the prosecutor that the jury could have regard to the applicant's behaviour towards his mother and a prosecution witness as being insightful
R v Bilal Skaf [2004] NSWCCA 37, discussed.

R v BALTENSPERGER
[2004] SASC 250
Criminal Court of Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: I agree with the orders proposed by Besanko J and with his reasons.
BESANKO J: The applicant was found guilty of five counts of rape after a trial before a Judge and jury in the District Court. The applicant has applied for leave to appeal from the verdicts in relation to 14 proposed grounds of appeal. The application for leave was heard by a Judge of this Court. The Judge granted leave to appeal in relation to grounds 4, 5, 6, 12 and 13. The Judge considered that ground 14 raised a question of law and she referred that ground to this Court. The Judge refused leave in relation to the other grounds.
The applicant seeks leave to appeal from this Court in relation to grounds 1, 2, 3, 7, 8, 9, 10 and 11 and the court has ordered, under r15(8)(b) of the Supreme Court Criminal Appeal Rules 1996, that the application be listed for oral argument.
We have now heard submissions on the application.
The prosecution case is that the female complainant had become intoxicated at various nightclubs during the night of the 20th and the early morning of the 21st April 2002 and that she had been picked up by the applicant, who had been driving his panel van. The applicant and the complainant were not previously known to each other. The applicant drove the complainant in the direction of his home at Murray Bridge.
The complainant gave evidence that she had no recollection of events between leaving The Church nightclub in the city and waking up sometime later in the rear of the applicant’s panel van, with the applicant touching her. At that time, the panel van…

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 [2004] SASC 250
Case: [2004] SASC 250
Decision Date: 19 August 2004

CaseChat Overview and Summary

The case of R v Baltensperger involved an appeal against conviction where the applicant was found guilty of five counts of rape following a trial before a judge and jury in the District Court. The applicant sought leave to appeal on multiple grounds, including allegations that the trial miscarried due to a juror's attendance at a scene related to the alleged offences, that the trial judge erred in admitting a conversation between the applicant and a police detective, and that the trial judge misdirected the jury in relation to an argument made by the prosecutor.

The legal issues for the court to decide included whether the trial miscarried due to the juror's attendance at a scene connected to the alleged offences, whether the trial judge correctly admitted a conversation between the applicant and a police detective, and whether the trial judge misdirected the jury in relation to the prosecutor's argument concerning the applicant's behaviour towards his mother and a prosecution witness. The court was required to evaluate each of these grounds for appeal to determine whether leave to appeal should be granted.

The court found that it was reasonably arguable that the trial judge erred by referring to the prosecutor’s argument and suggesting it was a legitimate process of reasoning. It was also arguable that the trial judge should have warned the jury against considering the applicant's behaviour towards his mother and a prosecution witness as evidence of a propensity to become angry towards women. Consequently, the court granted leave to appeal with respect to these grounds. Conversely, the court found that the other grounds for appeal did not provide a reasonable arguability of error and therefore refused leave to appeal on those grounds.

The final orders of the court were to grant leave to appeal in relation to grounds 8 and 11, which pertained to the alleged errors in the admission of evidence and the misdirection of the jury, respectively. Leave to appeal was refused in relation to the remaining grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, I think it is reasonably arguable that the Judge erred in referring to the prosecutor’s argument, and thereby suggested that it was a legitimate process of reasoning. I think it is arguable that in view of the prosecutor’s submission, the Judge should have warned the jury not to reason that the applicant had a propensity to become angry towards women, as evidenced by the letter to Ms Bee and his comments to his mother, and that that was a relevant consideration of his guilt. I would grant leave to appeal in relation to this ground. Conclusion I would grant leave to appeal in relation to grounds 8 and 11. I would refuse leave to appeal in relation to grounds 1, 2, 3, 7, 9 and 10. WHITE J: I agree with the orders proposed by Besanko J and with his reasons for those orders.

Ratio Decidendi

Legal Principle Established

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