The Queen v Di Bella[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

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 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, he tried to force her legs open and she told him to stop.  He started to undress; she tried to move towards the kitchen, but she was pulled back to the bedroom (which was not her bedroom, but that of the person Ord) and kept saying, "Stop it" and threatened him with court proceedings if he continued.

She then said, according to the Crown case, "If you are going to do this, please put on a condom" and that seemed to pacify him, but he did in fact rape her and then suggested anal intercourse, a suggestion which she rejected.  It should also be mentioned that at one stage, according to the Crown case, the complainant suggested to the appellant that he ejaculate between her breasts, which was apparently, in her view, a way of avoiding rape.

What happened, according to the Crown case, almost immediately after this, was that she went to the bathroom and swallowed three contraceptive pills.  She was visibly upset.  Ord came home to the residence which he shared with the complainant and said to her, "You have been playing up in my bedroom.  Who is in the shower?"  The appellant was in fact in the shower.  She complained of rape to Ord and he said in evidence that she appeared to be distressed.  There was a conversation between Ord and the appellant, during which the appellant was told to go and he went; but he then returned and said to Ord, according to Ord, that he was to tell the complainant that he was sorry, that he did not mean to do what he did, did not mean to hurt her, did not want to do anything to hurt her, and apologised.  Ord said, "I think you had better go, mate.  I am going to call the cops."  Now, the contact with Ord, if accepted by the jury, provided strong and indeed overwhelming support in favour of the proposition that there was a rape rather than consensual intercourse.  It is plain, as it seems to me, that the jury must have accepted what Ord said. 

In addition to that, there were a number of other circumstances which are relied on by the respondent in support of the proposition that the Crown case was strong and I should mention some of them.  One is that the appellant's evidence was that he had been given the complainant's telephone number after their first meeting and had left telephone messages on her answering service, but after that time, had not tried to telephone the complainant, not even in the period after, according to his case, he first had consensual sex with her.  (That was on a day earlier than the date of the alleged rape.)

Another point relied on by the Crown is that when the appellant went to the complainant's residence and entered it uninvited on the day of the offences, he left as soon as Ord turned up, notwithstanding that the applicant had had consensual sex with the complainant two days earlier and he had no particular reason to leave.  This, again, as suggested on behalf of the Crown, points to something untoward having occurred.  The most significant point, according to the Crown argument, which tends to support the version of Ord and the complainant, is that the sexual intercourse, which it is conceded occurred, took place on Ord's bed; it is suggested by the Crown that the jury might have found it hard to believe that the consensual sex would have taken place in a bedroom which, as the complainant must have known, could have been entered by her flatmate at any time.

The Crown outline also deals with the question of mistake of fact, which was left to the jury, but it seems to me unnecessary to say anything about that.  I turn now to the Crown's major point, which is not a point taken in its own favour, but one which it is suggested we should look at.  That is that questions asked in the course of cross-examination of the appellant, Mr Henry suggests, might need scrutiny in the light of the decision in Palmer which I have mentioned.  What happened was that the prosecutor started to ask the appellant a question, in response to which the appellant said in effect that the complainant had told Ord she had been raped because: "It was probably the first fucking thing that came to her mind, the best thing she could think of straight away so that he was not upset with her for having sex in his room".  That answer was not particularly responsive to the prosecutor's question, which was incomplete.  A little later the prosecutor said to the appellant: "You have just offered us a reason why she would tell these dreadful lies about you" and the appellant said in effect that the reason was Duncan Ord.  The prosecutor then said that the appellant had said that: "She made this up because Duncan Ord came back and had seen that sex had taken place in his bedroom between you and her, true?"  The answer the appellant gave was: "He never saw us having sex in his room; she told him".  In response to further questions the appellant insisted the complainant was lying. 

A second, similar, incident occurred a little later in cross-examination of the appellant, when the prosecutor inquired as to Ord's motive to lie and the appellant said he did not know. 

The Crown has drawn these matters to our attention and raised the possibility that what occurred conflicted with the views that the High Court expressed in Palmer (1998) 72 ALR 254.  There the complainant was cross-examined by counsel for the accused in a case in which there was an allegation of sexual offences.  In the course of that cross-examination, a motive, which it was suggested might have induced the complainant to lie, was put forward. 

When the appellant Palmer gave evidence, he was cross-examined by the prosecutor in an endeavour to show that the appellant could not suggest a reason why the complainant should have made up the allegations against him.  The High Court said that that cross-examination should not have been allowed.  A difference between this case and Palmer was that there the question of the complainant's motive to lie was raised in cross-examination by the prosecutor, when he asked the appellant, in effect, whether he was "at an absolute loss to think as to why she should make up the allegations".  In Palmer, the Crown Prosecutor mentioned a possible motive which had been put to the complainant by the appellant's counsel and, on a number of occasions, put it to the appellant that he could think of no reason why the complainant should lie. 

Here, as I have pointed out, what happened was that it was the appellant who first directly raised the question of motive to lie, when in answer to an incomplete question, he made the remark quoted beginning, "It was probably the first fucking thing ..."  Up to that point there was no possible objection to the prosecutor's conduct.  From that point the questions were, however, more dubious.  What the prosecutor did, in effect, was repeatedly put to the appellant, for him to affirm or deny, the motive which the appellant had just suggested.  No doubt the prosecutor did this hoping that the jury would think the appellant's suggestion to be implausible. 

The essential point in Palmer, so far as cross-examination of this sort is concerned, is that it is impermissible to cross-examine the complainant to show that he "cannot prove any ground for imputing a motive to lie to the complainant" (257D).  Here, where the appellant himself has asserted a particular motive to lie, the matter appears to me to be different.  In Palmer, the Court quoted with apparent approval a dictum from a New South Wales case, Uhrig (Unreported, Court of Criminal Appeal (NSW), 24 October 1996), to the effect that arguments may be put to the jury "by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case".  If argument can be put to the jury on that basis, then cross-examination on the same basis cannot be necessarily improper.  What the prosecutor was trying to do here was not, as was done in Palmer, to suggest that the appellant could think of no reason why the complainant might lie; the prosecutor was merely attempting to point out, what he was no doubt going to argue, the improbability of the motive which the appellant had suggested. 

As was pointed out in the passage from Palmer just referred to, in such cases it may well be appropriate for the judge to give a special direction consequent upon such cross-examination, a direction to the effect that if the jury reject the motive to lie put forward by the accused, that does not necessarily mean the complainant is telling the truth.  In the circumstances of the present case, however, it does not appear to me that such a direction was essential. 

There remains to be considered a question asked of the appellant about the witness Ord.  Palmer was concerned with cross-examination about the complainant's motive to lie, not about that of any other witness, and it does not appear to me that what was said by the High Court there made the question about Ord's motive improper.

The High Court has, as I understand it, not forbidden arguments being put to the jury about motives to lie and  Palmer should not be extended so as to prevent altogether arguments or questions on that subject.  It seems to me concerned with the particular subject matter there dealt with, which was cross-examination of the accused suggesting that the accused can think of no reason why the complainant might lie.

It appears to me that there is no other ground which needs attention, on the question of the conviction.  The argument which was advanced orally by Mr Di Bella before us was simply to the effect that there were lies told about him.  It is not possible to say anything useful about that, other than to say that the jury had before them, as it seems to me, ample evidence, which if they accepted it, would justify convictions; they did accept it.

I turn now to the question of sentence.  There were, as I mentioned, three convictions, common assault, house-breaking with a circumstance of aggravation and rape.  The rape was the most important matter and, of course, attracted the major sentence, one of seven years.  An argument which may be advanced in favour of the appellant on the question of conviction is, perhaps (although this was not specifically mentioned) that the complainant suffered no serious injury.  There was a medical examination on the evening of the rape and she did not appear to have any very significant injuries, although there were some minor injuries.  On the other hand there is the impact statement which is in the record and which I have read; it appears to suggest that there were serious adverse consequences for the complainant. It seems unnecessary to go into detail, other than to say that they are consequences of the kind with which one has, regrettably, become rather familiar in this sort of case.

The sentence of seven years must be considered against the background that the applicant is a young man born in September 1977, who was 20 years of age when he committed the offence and also against the background that he has some criminal record, although not one for offences of great seriousness.

In 1996 he was convicted of entering a dwelling-house with intent, stealing and false pretences.  He was not imprisoned for that. There are also some drug offences in 1996 and 1997 and in 1998 other offences of a relatively minor character; wilful damage, stealing and attempt to defraud.  So one has a young man with only a modest criminal record, a rape consequent upon what is commonly called home invasion with some degree of violence, although not great violence.

The argument which Mr Henry has put forward against the applicant for leave to appeal against sentence suggests that the sentence of seven years imprisonment might have been thought low.  In view of the age of the offender that does not seem to me to be right.  Mr Henry also argued, in the alternative, that the sentence was well within the appropriate range; having regard to the previous cases which we have had before us of a similar character, that seems to be correct.

There is no justification, in my view, for interfering with the judge's sentence of seven years imprisonment.  All the sentences, of course, were made concurrent.  In short, it is my opinion that the appeal against conviction should fail and that the application for leave to appeal against sentence should be refused.

MACKENZIE J:  I agree.

THE PRESIDENT:  I agree.  The orders are the appeal is dismissed.  The application for leave to appeal against sentence is refused.