R v Di Bella - [1998] QCA 288

[1998] QCA 288

COURT OF APPEAL

McMURDO P PINCUS JA MACKENZIE J

CA No 193 of 1998
THE QUEEN
v.
BRADLEY CHARLES DI BELLA

(Applicant) Appellant

BRISBANE

..DATE 11/08/98

JUDGMENT
110898 T3/JJD24 M/T COA192/98

PINCUS JA: The appellant was convicted of a number of offences in the District Court at Toowoomba and he has filed a notice of appeal which complains of the convictions and also the sentence. The offences in question were common assault, house breaking with a circumstance of aggravation and rape. The sentences imposed ranged up to seven years, which was the sentence on the last count, rape. The others were 12 months and three years respectively. The notice of appeal which is, as it seems to me, almost certainly one drawn up by the appellant himself, says that the complainant, that is the lady who complained of rape, made up her story and lied repeatedly; it makes specific points about the course of events at the trial. The ground thus expressed appears to me to be in essence a challenge to the safety of the verdict and it is necessary to say something about that. In addition to the grounds which are set out in the notice of appeal, Mr Henry, who appears for the respondent, has helpfully drawn our attention to the possibility that an argument might be available to the appellant, based on the decision of the High Court in the case of Palmer (1998) 72 ALR 254 and it is necessary to discuss that also.

The Crown case was that the complainant had been the subject of a short campaign by the appellant to ingratiate himself with the complainant and that, this not meeting with success, on the day of the offence the appellant entered the locked house which the complainant then occupied through an open window and raped her. It does not seem to be necessary to go into detail with respect to the earlier contacts between the parties, but I should say that the evidence of the complainant

2 JUDGMENT

110898 T3/JJD24 M/T COA192/98

was sharply at variance with that of the appellant relating to the character of those contacts. Even more so, however, their evidence was at variance with respect to the events surrounding the offence. According to the appellant's version of events given at the trial, the intercourse (which then occurred, as he admitted) was entirely consensual. According to the complainant's version, she was subjected to a rape accompanied by some violence. The case was not, however, merely one of word against word, because the Crown was able to rely upon what might properly be called an implicit admission which, according to the evidence of one Duncan Ord, was made by the appellant to him shortly after the rape.

The Crown case was that, as I have mentioned, the appellant came in through a window and invited the complainant to come over to a bed which he was sitting on. She did not respond favourably to this suggestion. Eventually,…

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 Di Bella

Details

AGLC: R v Di Bella [1998] QCA 288
Case: [1998] QCA 288
Decision Date: 11/08/1998

CaseChat Overview and Summary

In the case of R v Di Bella, the appellant, Bradley Charles Di Bella, was convicted in the District Court at Toowoomba of common assault, house breaking with a circumstance of aggravation, and rape. The appellant has appealed against his convictions and the sentences imposed, which ranged up to seven years for the most serious offence, rape. The appeal centred on the challenge to the safety of the verdict and the propriety of certain cross-examination questions posed during the trial.

The legal issues before the court were whether the appellant's convictions were safe and whether the prosecutor's cross-examination during the trial was conducted appropriately, particularly in light of the High Court's decision in Palmer. The court examined the evidence presented, which sharply contrasted between the appellant and the complainant. The complainant alleged that the appellant had raped her, while the appellant claimed the sexual encounter was consensual. The court also considered the impact of the High Court's ruling in Palmer, which dealt with the improper cross-examination of a complainant about their motive to lie.

The court found that the jury had ample evidence to convict the appellant, and thus the appeal against the convictions should fail. Regarding the cross-examination, the court concluded that while the prosecutor's questions were questionable, they did not conflict with the principles laid down in Palmer. The court held that the trial judge was not obligated to give a special direction to the jury concerning the motive to lie, as the appellant himself had raised the issue.

Lastly, the court assessed the sentences imposed. Considering the appellant's age, criminal history, and the nature of the offences, the court found the sentence of seven years imprisonment to be appropriate. The appeal against the convictions was dismissed, and the application for leave to appeal against sentence was refused.

Orders