R v Cahill - [1999] VSCA 84

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 135 of 1998

THE QUEEN

ERIC GEOFFREY CAHILL

---

JUDGES:

WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

26 May 1999

DATE OF JUDGMENT:

27 May 1999

MEDIA NEUTRAL CITATION:

[1999] VSCA 84

1st revision 13 July 1999

---

Criminal Law - Aggravated burglary - Assault with intent to rape - Admission of prior
convictions as proof of intent to rape - Test applied to prosecution case as a whole -
Improper “propensity” direction - Meaning of “building” - Question of fact not left to
jury - Adequate direction on prior inconsistent statements - New trial ordered.

Pfennig v. R. (1995) 182 C.L.R. 461.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. R. Bourke	Kenna Croxford

WINNEKE, P.:

I will invite Buchanan, J.A. to deliver the first judgment in this application.

BUCHANAN, J.A.:

On 9 February 1998 the applicant pleaded not guilty to a presentment in the County Court alleging one count of aggravated burglary and one count of assault with intent to rape. On 18 February 1998 the jury found the applicant guilty of both counts and on 22 May the judge sentenced him to a term of seven years' imprisonment on the first count and to a term of eight years' imprisonment on the second count. His Honour ordered that three years of the sentence on count 1 be served cumulatively upon the sentence on count 2, making a total effective sentence of eleven years' imprisonment. The judge fixed a period of nine years before the applicant was to be eligible for parole.
The victim of the crimes was a nurse who lived alone in a detached weatherboard house in Brunswick. The front door of the house is on the left side of the building. It is reached by a path which crosses in front of the house and continues down the side of the building, past the door, and leads through a wire mesh gate into the back yard. The door is located in a recess or porch. The porch is within the building and roof lines of the house.
According to her evidence, on 30 November 1995 the complainant went out during the day, leaving the house locked. She returned home shortly before midnight, parking in the street outside her house. Taking two bags of shopping from the car, she entered her property through the front gate and walked along the path to her front door. She opened the door and carried inside the load of shopping. She had not left any lights on and the house was in darkness. She turned on the hall light, walked through to the dining room, and turned on that light, and then entered the kitchen where she turned on the rear verandah light and the kitchen light. She then returned to the front door for the purpose of collecting a second load of shopping from her car.
The complainant went out the front door through the screen door, and before stepping off the porch checked down the pathway towards the rear of the house. She saw nothing there, and turned and looked towards the left up the pathway towards the street. She had not stepped off the porch when she saw a male figure running towards her from the front of the house down the path. When she first saw him he was level with the front of the house. He was running at such a pace that she did not have an opportunity to retreat inside her house. He had one hand outstretched in front of him, palm facing outwards. It looked as if he was dressed in dark clothing. She froze and then started screaming. The man had a handkerchief tied over his face covering his nose and mouth. He came running at her. She said, "He pushed me on to the floor of the porch and ground so that part of my body was inside my doorway. My upper torso, my shoulders and head and upper part of my body was two to three feet inside my front door". She expanded on this, saying her body was inside the front door to just beneath her hips. The man pushed her down on both her arms. He was fully inside the doorway leaning over her as she was half lying on the floor with the upper torso of her body wedged against the open main door. She said, "He was standing, leaning over me holding me in that position on the ground", and his body had gone into the house beyond the entry mat. She said that by "ground" she meant floor. As he held her down she was screaming.
The complainant was wearing black denim overalls with a T-shirt. Where the straps joined the top of the bodice on her overalls, the man pulled them outwards and also tried to pull the bodice down, both in a vigorous motion. She was screaming, and he covered her mouth with his hand. She then bit the man several times in the fleshy web part of the hand between the thumb and forefinger, all the while kicking and screaming. She managed to curl up her legs against her chest and kicked out as hard as she could, striking the man in the abdominal area. He careered backwards through the front door onto the porch. The complainant could see nothing to prevent him from running away.
The complainant did not attempt to move back into the house and close the door, as she thought she would not be able to exclude the man, and was afraid of being trapped inside the house with him. Instead, she tried to get up to crawl past the man to get out of the house and to move towards the front of the house to alert people to her plight. The man was still on the porch. He picked her up by the hair, and threw her on to the ground just outside the porch, and against the fence. She ended up on her back, and again tried to get up so that she could run towards the front of the house. However, he grabbed her again by the hair, and vigorously dragged her backwards a short distance towards the rear of the house. The man then pinned the complainant to the ground, putting one knee across her throat, the other across her chest. He had his back to the street. She was on her back still screaming, trying to kick the fence to draw attention to herself. By this time she was getting tired and she stopped resisting so hard. The man then rummaged in his pockets and produced a knife. He moved the knife towards her neck, and she moved her arms out trying to protect herself. She ended up with a cut on her hand, which required six stitches. He then changed his body position, laying the length of his body on top of her, with his head pressed against her chest. She grabbed a handful of the hair on top of his head and ripped it out. She was still screaming and she then heard people's voices in the street yelling out to call the police. The man shifted his body position again slightly, and the complainant managed to tuck her legs up against her chest into a ball and kick him forcefully in the groin. She did that repeatedly and he staggered backwards against the side of the house, and limped off towards the front of the house and out into the street. She followed him, screaming and crying, and saw him limp off down the street. After police arrived the complainant found the knife half-buried in dead leaves at the side of the path next to the fence directly opposite the front porch. The blade was open.
About six weeks prior to the assault, the accused visited the complainant carrying out market research. In the course of that visit the applicant spent 30 to 40 minutes inside the complainant's home, interviewing her in her dining room.
The applicant did not give evidence at the trial. His version of the events of that night was contained in a record of interview conducted by the police.
The applicant said that he had been drinking at a hotel and had then looked at cars to see if he could steal articles from them. He said that as he went down the street in which the complainant lived he saw lights on in the house and said:
"I thought it might have been a likely place to do a burglary and I went in through the front gate and went down a path which led me down the side of the house. I noticed the light on through a window and I walked towards it and I passed an open doorway. As I - I looked in through the window, I saw a woman of Asian appearance walking towards the door. I looked around to see if there was a way to avoid being seen. I couldn't proceed in to the backyard and - and out that way, because the - the gate, there was a gate behind me which would've required too long to open. There was a - a wheelie bin there. I considered hiding behind it to escape detection and I ducked down and she came to the porch and somehow she must've sensed that I was there and I panicked, 'cause I thought I'd been - I - I would've been seen and so I took my handkerchief from - from my pocket and I had the - that pocket knife came out with my hanky and I opened that and thought I could use it to bluff my way past, scare - scare my way past and she sensed I was there and - and turned around to confront me at where I was standing and I rushed forward. I had the - the knife ahead of me and she screamed and clawed at me and I - we - a bit of a melee or something ensued. We both fell down. She bit - I - she was screaming. I tried to put my hand over her mouth. She bit me. Somehow or other I dropped the knife and I panicked when I dropped the knife and I was looking for it because I thought my fingerprints may have been on it. I lifted her up to look for - see if it had fallen underneath her. I searched around on the ground at all the time trying to hold the handkerchief over my face, trying to prevent her from screaming and - and trying to get away and eventually I realised I'd allowed too much time to elapse with the amount of noise that she was making and decided to lose the knife and proceeded out. I went out the front gate."
The applicant seeks leave to appeal against both his conviction and sentence.
The first ground of appeal is that "The learned Trial Judge erred in law in admitting into evidence the evidence of the applicant's prior attacks on women in 1981."
The evidence was said by the Crown to go to the issue of the intent of the applicant when he entered the complainant's house and when he assaulted her.
The first count charged the applicant with entering the complainant's house as a trespasser "with intent to rape a person therein and at the time had with him an offensive weapon, namely a knife". The second count charged the applicant with assaulting the complainant "with intent to rape her in that he intended to intentionally sexually penetrate her by introducing his penis into her vagina without her consent while being aware that she was not consenting". It will be apparent from the account of the complainant's evidence and the applicant's record of interview that there was a great deal of common ground between them. The major dispute was as to whether the applicant was endeavouring to escape from the complainant or sexually assault her.
The 1981 attacks resulted in the applicant being convicted of a number of offences including rape, burglary and indecent assault arising from events that occurred on four dates in January and April 1981. In records of interview held in May 1981 the applicant admitted the crimes. According to the judge in the present case there were a number of similarities between the 1981 crimes and the crimes with which the applicant was currently charged. His Honour said:
"Each of the 1981 crimes took place at night, a private dwelling was invaded, each invasion took place at night, being at a late hour. Each crime was preceded by the accused walking around the streets looking for a likely house. Each was preceded by the accused looking first through a window of the house to see, if he could, the occupant. ... In each of the 1981 crimes the victim was a woman on her own in her home, and force was used by the accused against her. In each of those crimes he put a hand over the mouth of his victim, presumably to stifle any scream should any have been emitted by her. In the course of one of these crimes the accused put a knife to the throat of the victim."
One of the so-called similarities ought not to have been included, in my view, for it assumed that in 1995 the applicant was interested in the female occupant of the house rather than with any object which he could steal from it. The applicant did say that he saw the complainant, but there was no evidence at all that he looked through the window "to see, if he could, the occupant". In my opinion the only relevant similarities were between the circumstances of the 1981 offences and the circumstances attending the 1995 offences which were admitted.
The admission of the evidence of the records of interview relating to the 1981 convictions was to be determined according to the common law. Section 398A of the Crimes Act did not apply because the applicant was arraigned before 1 January 1998. See s.588 of the Act.
The evidence is that which the majority of the Court in Pfennig v. R. (1995) 182 C.L.R.461 described as propensity evidence: see pp.464-5. The ratio decidendi of that case is that evidence which discloses the commission of offences other than those with which the accused is charged is inadmissible "if there is a rational view of the evidence that is consistent with the innocence of the accused". See pp.483- 4,485 per Mason,C.J., Deane and Dawson,JJ., and pp.586-7 per Toohey,J. See also Hoch v. R. (1998) 165 C.L.R.292 at p.296 per Mason,C.J., Wilson and Gaudron,JJ.
The evidence in respect of which the rational view is to be formed cannot be the propensity evidence itself where that evidence is undisputed. That is the case here, as it was in Pfennig. Accordingly, the propensity evidence is to be considered with the other prosecution evidence to determine whether there is a rational view of the prosecution case, including the propensity evidence, which is consistent with innocence.
In the present case "innocence" cannot mean free of any guilt of a criminal offence, but only innocence of the intention to rape the complainant. The defence put forward an explanation that was consistent with the applicant's innocence understood in that sense. The explanation was that the applicant had entered the curtilage of the complainant's house with the intention of determining whether to break into the house for the purpose of stealing property. The explanation was advanced by the applicant in his record of interview which was before the trial judge. The explanation was bolstered by the commission by the applicant in December 1995, a month after the attack on the complainant, of offences of entering and attempting to enter buildings with intent to steal.
The trial judge quoted extensively from the majority judgment in Pfennig
and said:
"I am of opinion in the present case that although the evidence sought to be led by the Crown may well have considerable prejudicial effect, that evidence does have a high degree of cogency in the circumstances of this trial. The primary issue in this trial is as to the state of mind of the accused man at the relevant time; that is, did he have an intent to rape. In my opinion, the only reasonable inference to be drawn from the evidence is that he did have such intent."
His Honour also said that he did not think that the convictions of entering and attempting to enter buildings to steal in any way diminished the cogency of the evidence of the 1981 events.
I think that the "evidence" to which his Honour referred in the passage I have quoted was not simply the propensity evidence, but the whole of the evidence led during the prosecution case, including the propensity evidence, for the judge did say that he had not overlooked the burglary convictions.
In my opinion it is clear that there is an explanation consistent with innocence provided only that one does not prefer the evidence of the complainant to that of the applicant. If, in those areas where their evidence is in conflict, one accepts the complainant's evidence, the burglary with intent to steal hypothesis does not appear rational. The complainant said that the applicant ran at her from the street and tried to tear off her clothes. The applicant said he ran from the back of the house towards the street and was trying to escape from the complainant, not sexually assault her. In Pfennig it was not necessary to resolve such a conflict, for all the evidence was circumstantial. However, I do not see how a judge determining the admissibility of evidence can base his decision on a finding as to the ultimate facts which the jury must determine. In my view he must accept at the least the possibility of the truth of the applicant's account in determining whether there is a rational explanation of all the evidence consistent with innocence, and if one does accept that possibility, the rational explanation of innocence is clearly open in the present case.
Counsel for the Crown did not shrink from saying that the trial judge was entitled to proceed on the basis of preferring the complainant's account to that of the applicant. However, it follows that, once the complainant's evidence is accepted, the propensity evidence thereby becomes admissible. And that would always be so where there is direct, albeit contested, evidence of the commission of an offence which is accepted, for then there can be no explanation consistent with the innocence of the accused.
In my opinion the prejudicial effect of the evidence was very great indeed, and yet its probative value was relatively slight as long as the applicant's explanation remained open to be considered, and, for the reasons I have expressed, I consider that it was. The evidence to establish intent in 1995 was 15 years old and more recently the applicant had displayed a penchant for entering buildings to steal, not rape. Each of the similarities relied on by the judge, save one, was consistent with an attempt to escape from premises entered for the purpose of stealing property in the course of which a woman occupant was encountered. The exception is the circumstance that the accused was said to have looked through a window for the purpose of seeing the occupant. As I have said, I do not regard that as a circumstance the judge ought to have considered as one attending the 1995 crimes.
The second ground of appeal is that the trial judge failed to adequately direct the jury as to the use they could make of the propensity evidence.
The trial judge was careful to direct the jury that they must not reason that because of his conduct in 1981, the applicant was the kind of person who was likely to have committed the 1995 offences, and to tell them that the 1981 evidence did not prove the commission of the later offences. He then said:
"Apart from or perhaps in addition to the mere fact of the commission by the accused man of those four rapes in 1981, you may think and it is entirely a matter for you, that there are certain similarities in the manner in which he committed those crimes and the events as you find them to be of 30 November 1995."
His Honour proceeded to list the similarities between the 1981 and 1995 crimes which I have earlier quoted.
It is unfortunate that his Honour said that the jury could take similarities into account in addition to the mere fact of the commission of the 1981 crimes. Perhaps the statement did no harm in the light of his Honour's clear direction that the jury was not to reason from the commission of those rapes the guilt of the applicant in respect of the 1995 offences. Be that as it may, in my opinion there was a failure to instruct the jury precisely how they could treat the propensity evidence.
The judge said only that if the jury thought the similarities were significant, that could assist them in determining the charges. I think the jury should not have been left at large in this area. They should have been told that the propensity evidence was admitted only for the purpose of rebutting the applicant's explanation of his conduct and it was for this purpose that they should consider the similarities. Only if the jury thought the similarities so striking as to render untenable, or at least cast doubt upon, the applicant's explanation should they take them into account. I also think the jury should have been told to look for dissimilarities. The judge mentioned none, but they existed. For example, in respect of none of the 1981 crimes was there any prior association between the applicant and the victims, and in committing none of those crimes did the applicant attempt to disguise himself. Nor was the difficulty of inferring motive in 1995 from events 15 years earlier brought to the attention of the jury.

The third ground of appeal is that the trial judge erred in directing the jury that "as a matter of law ... if the accused man did enter upon that porch, he did enter that building".
It was an element of the offence of burglary that the accused entered a building. Section 76 of the Crimes Act provides that "A person is guilty of burglary if he enters any building or part of a building as a trespasser" with a particular intent.
The porch was within the roof and building lines of the house. A person entering the house stepped up on to raised boards which constituted the floor of the porch. The door was set back at least a metre from the side of the house.
Whether the applicant entered the building was a question of fact to be determined by the jury. There was no dispute at the trial as to the primary facts relating to the porch. Its construction and the relationship it bore to the house were common ground. However, that was not the end of the fact-finding task. It remained to appraise all the facts to determine whether the porch could fairly be regarded as part of the building or whether it was a space remaining outside the building. In my opinion a crucial fact was withdrawn from the jury. See R. v. King (1978) 19 S.A.S.R.118, especially at p.123.
Counsel for the Crown contended that although it was a question of fact, the direction could not prejudice the applicant because the porch was so obviously part of the building. I do not agree that it was so obvious. The question was one of the ordinary meaning of words. The jury may have thought that a person who intended to visit the house and who was standing on the porch outside the front door with his finger on the bell had not yet entered the building.
The fourth ground of appeal is that the trial judge erred in failing to adequately direct the jury as to the significance of and the use to be made of the prior statements of the complainant.
The complainant had made a statement to the police and to a doctor and had given evidence at committal proceedings. There were inconsistencies between each of those accounts. Counsel for the applicant at the trial drew the jury's attention to the inconsistencies. In the course of his charge the trial judge reminded the jury of three of them and told the jury that they could use the inconsistencies in evaluating the truthfulness and reliability of the complainant as a witness.
Counsel before us submitted that it was incumbent upon the trial judge to remind the jury of each of the inconsistencies and instruct them as to the use they could make of the inconsistencies in evaluating the complainant's evidence. Counsel said that was particularly necessary in view of the importance of the complainant's evidence.
I do not consider that the jury required such detailed instructions in order to make proper use of the prior inconsistent statements of the complainant. No special knowledge was required to evaluate the effect of the inconsistencies, and in my view the jury could reasonably be expected to have had them in mind without a complete rehearsal of them by the trial judge. Counsel took no exception to this aspect of the judge's charge, and I think this case is one in which it is appropriate to apply the general rule that "an applicant for leave to appeal against conviction is not allowed to rely in this Court on a criticism of the judge's charge which had not been taken by way of exception at the trial". R. v. Smart [1983] 1 V.R.265 at p.297.
For the reasons I have stated I consider that the applicant should be granted leave to appeal against conviction, the appeal should be granted and a new trial ordered. If the other members of the Court are of like mind, it will not be necessary to deal with the application for leave to appeal against sentence.

WINNEKE, P.:

I agree, for the reasons assigned by Buchanan, J.A., that the application for leave to appeal against conviction should be allowed and a new trial ordered.

CHARLES, J.A.:

I also agree.

WINNEKE, P.:

The formal order of the Court will be that the application for leave to appeal against conviction be allowed, that the convictions recorded against the applicant be quashed, and that there be a new trial on the various counts upon which he was convicted.