R v Cahill

[2000] QCA 444

[2000] QCA 444

COURT OF APPEAL

McMURDO P

DAVIES JA

BYRNE J

CA No 127 of 2000

THE QUEEN

v.

BRENDON CAHILL Appellant

BRISBANE

..DATE 25/10/2000

JUDGMENT

THE PRESIDENT:  Justice Davies will deliver his reasons first.

DAVIES JA:The appellant appeals against his conviction, and by his notice of appeal he also seeks leave to appeal against his sentence.  He has informed us today, however, that he does not pursue separately an appeal against sentence and, accordingly, I would dismiss the application for leave to appeal against sentence.

The alleged offences occurred on 26 March last year.  They were deprivation of liberty, assault with content to commit rape, rape and two counts of sexual assault with circumstances of aggravation.  The appellant was convicted on all counts and was sentenced to terms of imprisonment of two years, four years, seven years eight months, four years and three years respectively on those counts.

The appeal by the appellant was originally on two grounds: one was that the evidence of four witnesses called in the Crown case, Pearcy, Faulkner, Scaroulis and

Ladell-Quagliata, was prejudicial and should have been excluded; and the second was that counsel for the appellant at trial failed to follow his instructions and was incompetent. 

The second of these grounds was not pursued before this Court by the appellant who appears on his own behalf in this appeal.

What he now seeks to argue is that the identification evidence was so unsatisfactory that the jury's verdicts on each of the counts were unsafe.  He does not contend that any directions given by the learned trial judge in respect of any matter were inadequate and, indeed, those directions were not in my opinion inadequate in any way.

It is perhaps unnecessary to go in great detail to the actual circumstances of these offences because the appellant's case was throughout, not that the offences were not committed, but that he was not the offender.  It was at the trial, he said, a case of mistaken identity and, indeed, the possibility was raised on his behalf at trial that it was another named person who had committed these offences.

The offences occurred in this way.  The complainant was a prostitute going about her business in Fortitude Valley soliciting clients.  He approached her and she agreed to accompany him on a large, black motorcycle to his home with a view to paid sex.  The offender supplied the complainant with a motorcycle helmet which she described and which she donned for the purpose of that journey.

At the house there was some initial conversation in which, amongst other things, he asked in effect for a discount on the basis that he was a police officer and produced in his wallet what seemed to be a card identifying him as a police officer.  The offender identified himself as Rick.

At the house he, shortly after this conversation, attacked her severely.  He struck her a number of times about the face, bit her nose, forced her onto a bed, straddled her body with his and attacked her.   He bit her on the arms, he ripped her blouse, bra and panties with a great deal of violence cutting her skin.  She was crying and attempting to scream.  He threatened to harm her and told her that he would drown her in a swimming pool.  He referred to kick-boxing friends he had.  He reinforced his threats by saying that he had recently broken a person's legs with a baseball bat at Unique Cars dealership, Brisbane.

He forced her over and had vaginal intercourse with her; he bit her on the back during the rape; he inserted his thumb in her anus at one stage; he forced her to perform oral sex on him and ejaculated into her mouth; at one stage he prevented her from leaving the unit.  Finally, when these despicable acts were completed, he offered to drive her home, insisting on her providing her address and telephone number.  He drove her home on the motorcycle.

She complained immediately to her male companion and a short time after that the appellant was apprehended.

The case against the appellant consisted in part of identification evidence of the complainant and in part of circumstantial evidence. 

The circumstantial evidence which I will refer to first was, in my view, quite compelling.  The evidence showed that in fact at the relevant time he had a room in the house at which the offence occurred.  A document in his wallet, a receipt, identifying him as Rick, and that was a name by which he told her he was called.  His wallet also had contained in it a police card of the kind which she said he had shown her.  Two motorcycle helmets of the kind and colour identified by her were found in his possession.

The complaint made about the evidence of Ladell-Quagliata and Scaroulis was to the effect that he had threatened to break the legs of one or other or both of these people, they being the proprietors or workers at a place called Unique Cars at Buranda and that he had produced and wielded a baseball bat.  In fact, the offender threatened the complainant that he would attack her with a baseball bat and that he had in fact attacked people with a baseball bat at Unique Cars at Buranda.  Also, a baseball bat was found in a car which he had been driving.

He gave false details to police of a number of matters which included his place of residence.

The evidence of the other two witnesses, Pearcy and Faulkner, linked him with a motorcycle of the kind described by the complainant, that is, a large, black motorcycle.  He said that he had never driven a motorcycle of that kind at any relevant time. 

In fact, Pearcy gave evidence that he owned a motorcycle of that kind, that the appellant had resided with him for some months, that the appellant had a set of door keys to the garage door, that he owned a 750 cubic centimetre black Honda motorcycle, and that he had left the motorcycle in his locked garage shortly before the commission of these offences and had gone away.

The other witness, Mr Faulkner, who had known the appellant for a number of years said that around the last week in March the appellant had ridden Pearcy's damaged motorcycle to Faulkner's place and said he had had an accident and saw injuries consistent with the appellant having had such an accident.   He had seen the appellant on that motorcycle on two previous occasions although he was unsure of the dates on which they were.

Those facts, in my view, indicate without the identification evidence a very strong case against the appellant.  The identification evidence was evidence which the complainant gave of having seen her attacker reasonably clearly at the Valley at the relevant time and later, of course, in the premises when she was attacked.

The appellant below and in this Court raises some criticisms of the identification evidence, sufficient he says to require a conclusion that a verdict of guilty based on that identification evidence was unsafe. 

One of these, it seems to be the major one, on which he relies is that the complainant said he had a gap in his teeth, in the middle of his teeth, whereas in fact he has none; that the complainant said that he had hazel eyes whereas in fact he asserted below that he had blue eyes; that the complainant said that he had tattoos on his body but in fact he has none; and that the complainant who claims to have seen him nude did not refer to large scars which he has on one of his arms.

He also points to some apparent uncertainty on the complainant's behalf when confronted with a photoboard.  She identifies her offender as photograph 5, which was in fact the appellant, but then said it was possibly 7 and that 5 and 7 are similar, but her evidence was in the end that it was more probably 5 than 7.

The difficulties in identification and the defects in identification evidence were pointed out by the learned trial Judge to the jury, that is, all of those to which I have already referred.  Mr Clark, for the respondent before this Court, has pointed out, however, that in the complainant's first description to police of the characteristics of her assailant she did not mention any gap in teeth and, indeed, that in a considerable number of respects the first description which she gave to the police closely matches a description of the appellant. 

She described her assailant as very muscular, which the appellant accepts he is; she described him as about six feet, and apparently he is close to six feet; she described him as, in effect, having combed-back hair which was brown, and that seems an accurate description; she described him as having an olive complexion, and that's undoubtedly correct; she described him as having a shaved body, and he did admit that being a body builder as he was he occasionally shaved his body although he could not say whether in fact it was shaved at the relevant time; and she described him as being in his early 30s, and in fact he is about 37 years of age with a fairly smooth complexion.

As to the concern that the appellant raises about tattoos, there was no mention of tattoos in the original description and this seems to have arisen in cross-examination about distinguishing marks, and in the end it appears that her evidence was that she thought there were some marks somewhere on his body and she thought they were probably tattoos but she could not identify where they were.  So, one way or another, the evidence about tattoos was not strong evidence.

More importantly it seems to me, the first description of the assailant to police accurately describes the appellant here.

When the identification evidence is taken together with the circumstantial evidence to which I have referred the case against the appellant was, in my view, an overwhelming one and for those reasons, in my opinion, the appeal must fail.

THE PRESIDENT:  I agree.

BYRNE J:I agree.

THE PRESIDENT:  The order is the appeal is refused; the application for leave to appeal against sentence is dismissed.

MR CLARK:Your Honours, if I might, during the reading of his Honour's reasons, he was misled by my outline and referred to threats to the children.  Perhaps in editing they might be‑‑‑‑‑

DAVIES JA:Did I?  I didn't intend to leave that in.  I'll take that out.

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