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Court of Criminal Appeal 22 June 1999

R v BENECKE

[1999] NSWCCA 163

Also reported as (1999) 106 A Crim R 282
Assault & violenceTheft & property
CRIMINAL LAW EVIDENCE BEHAVIOUR OF TRACKER DOG WHETHER ADMISSIBLE CRIMINAL LAW EVIDENCE

Citation: R v Benecke [1999] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 22 June 1999
Judge(s): Abadee J, Ireland J, Barr J

Background

The appellant was convicted by a District Court jury of armed robbery with a knife at a North Ryde service station at approximately 3.50 am on 15 September 1997. The robber wore a hooded top and a handkerchief covering most of his face. The console operator, who was the victim, had previously worked alongside the appellant at the same service station and identified the robber by voice.

The Crown's case rested on four pieces of evidence: the victim's voice identification, the behaviour of a police tracker dog, and two independent witnesses placing the appellant near the service station shortly before the robbery. A police dog handler arrived at the scene about an hour after the robbery and tracked a scent from the service station to the fence of a house at 388 Lane Cove Road, a house where the appellant had previously lived until five months before the robbery.

The appellant appealed his conviction on grounds that included the wrongful admission of the tracker dog evidence, inadequate directions about that evidence, and that the verdict could not be supported given the weaknesses in the voice identification evidence.

  • Whether the tracker dog evidence had sufficient probative value to be admissible, or whether any such value was outweighed by the risk of unfair prejudice to the appellant.
  • Whether the trial judge erred by failing to give the jury an adequate warning about the limitations and potential unreliability of tracker dog evidence.
  • Whether the verdict could be sustained on the voice identification evidence, particularly given the circumstances in which the identification was made.

Decision

Tracker dog evidence: Barr J, with whom Abadee J and Ireland J agreed, found that the tracker dog evidence had little or no probative value. The scent was not picked up at the scene of the robbery itself, there was no evidence of whether the trail approached or led away from the service station, and multiple competing inferences were equally open. Crucially, the only connection between the scent trail and the appellant was that he had lived at the house where the trail ended five months earlier. No evidence placed him there on the night of the robbery.

The potential for unfair prejudice was considerable. The court identified a specific risk that jurors might improperly combine the tracker dog evidence with speculation that the appellant had returned to his former address, thereby drawing an inference that the scent was his. That inference was not available on the evidence. The court held the evidence should have been rejected either as proving nothing or as a matter of the trial judge's discretion.

The trial judge also failed to give any special warning about the untested and untestable nature of tracker dog evidence, a form of caution recognised as necessary in earlier decisions of this Court.

Voice identification: Despite allowing the appeal on the tracker dog grounds, the court was not persuaded that the verdict was independently unreasonable. The victim was familiar with the appellant's voice from months of working together, the conversation during the robbery lasted approximately a minute, and the robber had knowledge of cash storage beneath the counter that only former employees would likely possess. Weighing those features against the stress of the attack and other frailties in the identification, Barr J concluded that a properly directed jury could have been satisfied beyond reasonable doubt.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Tracker dog evidence carries an established risk that juries will place excessive weight on the untested and untestable ability of a dog to follow a scent; a trial judge must give specific directions addressing that risk.
  • Where the only link between a scent trail and a defendant is a historical residential connection several months old, and there is no evidence placing the defendant at the location on the relevant night, the tracker dog evidence will likely lack sufficient probative value to be admitted.
  • Even where probative value exists in principle, a court may exclude evidence in the exercise of its discretion where that value is vastly outweighed by the risk of unfair prejudice through jury misuse.
  • The Court of Criminal Appeal confirmed that multiple competing inferences being equally available from tracker dog evidence will undermine its probative weight, particularly where those inferences include the involvement of police officers or unrelated third parties.
  • A voice identification made by a witness who knew the accused's voice well, over a conversation of about a minute, combined with circumstantial evidence limiting the field of possible suspects, can support a verdict despite the stressful conditions of the encounter.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), ss 5(1), 6(1)

Cases:
- R v Trupedo [1920] SALR 58
- R v Barnes, Court of Criminal Appeal NSW, 1 December 1998 (unreported)
- R v Pieterson and Holloway [1995] 1 WLR 293
- R v Sykes [1997] Crim LR 752
- R v Clough (1992) 28 NSWLR 396
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 72 ALJR 78
- R v Gordon (1991) 57 A Crim R 413