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 was stationary and in a location in the country. The prosecution case was that the applicant raped the complainant vaginally at that location. The applicant then drove to another location, where he threatened the complainant with a .22 rifle, minus the wooden stock, and raped her orally once and vaginally on three occasions.
The applicant then drove the complainant to his home at 57 Guerin Road, Murray Bridge. The complainant remained in the vehicle while the applicant went inside. The applicant returned to the vehicle and drove the complainant to Adelaide, where he dropped her off near the intersection of Fullarton Road and Cross Road. The complainant spoke to members of her family and the police and she complained of having been raped by the applicant. It is unnecessary to set out the details of the complaint.
The applicant was arrested by the police on 22^nd April 2002 at the premises at 57 Guerin Road, Murray Bridge.
The applicant gave evidence at trial. He said that the complainant entered his vehicle willingly and that the acts of sexual intercourse which took place were carried out with the consent of the complainant. The applicant gave evidence that throughout the time he was with the complainant he believed that she was consenting and he denied threatening her with a rifle. The applicant said that he drove to his house at Murray Bridge to obtain some money to enable him to drive the complainant to Adelaide.
Ground 1
The applicant seeks leave to appeal with respect to the following ground of appeal:
“The trial miscarried by reason of a juror having attended a scene relevantly connected to the alleged offences and there having conducted an unauthorised view of that scene.”
The applicant was cross-examined on Friday 8^th August 2003. The cross-examination was not completed on that day. On Monday, 11^th August 2003, the Judge was given a note from the jury. The note read:
“Judge, I had occasion to drive through the roads that have been indicated in this case and have made my own observations. Am I able to share this with the jury, or do we consider only what has been presented?”
The Judge discussed the contents of the note with counsel for the prosecution and counsel for the applicant. Counsel for the applicant did not ask the Judge to make further inquiries of the relevant juror. He asked the Judge to tell the jury that they must act only on the evidence given in court. The Judge did this. He told the jury that they could not draw on “any of your own private knowledge of the area, or share it with the other members of the jury. You must act on the evidence as adduced in court”.
I do not think that this ground of appeal is arguable. The precise locations where the relevant offences occurred were not crucial matters at the trial. A plan or map was put in evidence, but neither counsel asked for a view of the area. Counsel for the applicant did not ask the Judge to make further inquiries of the relevant juror. For example, counsel did not ask the Judge to inquire of the relevant juror whether he or she had made a special trip to the location, or had passed through the area in the course of a normal journey. Counsel for the applicant sought no mistrial and he made no complaint about the direction given by the Judge.
This case is distinguishable from R v Bilal Skaf [2004] NSWCCA 37, where two jurors took a view of the relevant scene and formed certain impressions as to the lighting at the scene. This was an irregularity and the Court of Criminal Appeal could not be satisfied that it had not affected the verdict. In this case, it was not established that the relevant juror had not viewed the roads when otherwise involved in a normal journey in the course of his or her day-to-day business and, as I have said, counsel for the applicant did not ask the Judge to make further inquiries. The Judge gave an appropriate direction to the jury.
Grounds 2, 3, 7, 9 and 10
It is convenient to deal with these grounds together.
We heard brief submissions from Mr Schapel in support of these grounds this morning. There is nothing in the arguments that he presented this morning that convinces me that any of these grounds of appeal are arguable.
I would not grant leave in relation to these grounds.
Ground 8
The applicant applies for leave to appeal in relation to the following ground of appeal:
“The learned trial judge erred in admitting in evidence the conversation between the applicant and the witness, Alison Bee, that occurred between 11.54 am and midday on 22^nd April 2002.”
The applicant was arrested on 22^nd April 2002 and he was taken to the Murray Bridge Police Station. At 10.29 am he was interviewed by Detective Alison Bee. A videotape of the interview was taken. The applicant indicated that he did not wish to answer any questions and Ms Bee told him that she would not be asking any further questions. Ms Bee told the applicant that he would be formally charged with four counts of rape and unlawful detention. The applicant was charged and fingerprinted.
A short time thereafter, Ms Bee had a conversation with the applicant about a forensic procedure and, in the course of that conversation, the applicant said certain things. Ms Bee did not initiate the relevant part of the conversation. She explained to the applicant the forensic procedure and the applicant said: “Why? I’ve been charged, haven’t I?” Ms Bee said, “You’ve been accused of those offences. We now have to prove it beyond reasonable doubt.” The applicant said: “I will just go to court and plead guilty or not guilty.” Ms Bee said, “Well, that’s up to you. Are you suggesting you will plead guilty?” The applicant then said, ‘Well, I did it, so, yeah, and I’ve never raped anyone in my life, but now I have. Some of it wasn’t even like that”.
Ms Bee then conducted a further interview with the applicant at 11.45 am, which was videotaped and, during that interview, she sought to confirm the conversation she had had with the applicant at the time she was explaining the forensic procedure to him.
The applicant submits that the earlier conversation between Ms Bee and himself should have been recorded and, in the alternative, he submits that it was unfair to admit the videotape of the interview at 11.45 am and then have Ms Bee confirm, in her evidence, that the conversation took place in the terms she indicated on the videotape. It is true that the relevant conversation was not initiated by Ms Bee and only lasted for a very short time. Nevertheless, I think it is arguable that the conversation should have been excluded. I would grant leave to appeal in relation to this ground.
Ground 11
The applicant seeks leave to appeal in relation to the following ground of appeal:
“The learned trial judge misdirected the jury in repeating without criticism or disapproval an argument of the prosecutor that the jury could have regard to the applicant’s attitude towards his mother and the prosecution witness, Detective Bee, as being insightful whereas any evidence of the applicant’s attitude towards those women was irrelevant and prejudicial.”
The applicant wrote a letter to Ms Bee after he had been arrested and, in the letter, he suggested that she had gone wrong in her investigation and that her first mistake was “being a bitch” and making him out to be guilty and that her second mistake had consisted of “pissing me off”. The prosecution also led evidence of a monitored telephone conversation between the applicant and his mother, in which he expressed anger with his mother at having destroyed documentation that he had obtained from the complainant and which he believed would advance his case. The applicant was cross-examined by the prosecution about his letter to Ms Bee and his telephone conversation to his mother and it was suggested to him that when people did things which he did not like he became angry, as he had with the complainant when she had tried to get out of his car. In his final address the prosecutor suggested that the applicant’s anger towards Detective Bee and his mother provided “a very good insight as to how he was talking to the complainant when things were not going exactly as he wanted”.
In giving his directions to the jury the Judge said:
“Mr White suggested to you that you should have regard to his attitude to the two other women in this case”. He said somewhat insightfully, they too, namely his mother and Detective Bee, were mean to the accused, and were the objects of his wrath.
Mr White drew your attention to the medical evidence, in particular the bruises to the complainant’s left eye. He drew your attention to the fact that the accused agreed that he twisted her arm when she tried to get out of the car.
He then drew your attention to the fact that the accused became angry when she pushed the redial button on the phone, and then presented the rifle.”
As I understand the argument, the applicant does not submit that the letter he wrote to Detective Bee or the monitored telephone conversation he had with his mother, should not have been admitted in evidence. Rather, the argument was that the prosecutor’s submission which was repeated by the Judge, was an inappropriate one, in that he suggested that the applicant’s propensity to become angry, especially to women, was relevant to a consideration of his guilt. The applicant submits that the Judge should have told the jury to ignore the prosecutor’s submission.
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.