Citation: Muldoon v R; Carter v R [2008] NSWCCA 315
Court: New South Wales Court of Criminal Appeal
Date: 18 December 2008
Judge(s): Hodgson JA; James J; Price J
Background
The two appellants were convicted in the District Court of aggravated break-and-enter and larceny at a residential property in Farmborough Heights in October 2005. The householder returned home to find three men near her property and her house broken into, with items missing. Eyewitnesses saw the men enter nearby bushland.
An off-duty police officer with a trained tracker dog responded to the scene. The dog located a trail of human scent along a cleared fence-line, tracked through dense scrub, passed a location where stolen property was later found, and ultimately led the officer to the two appellants, who were discovered running through the bush and apprehended.
The trial before Conlon DCJ was the third attempt to try the appellants on this charge, the first two trials having been aborted due to juror issues. The appellants were convicted on 13 August 2007 and each sentenced to a non-parole period of 18 months and an additional term of 18 months.
Legal Issues
- Whether the evidence of the police dog handler concerning the dog's tracking was admissible as expert evidence under s 79 of the Evidence Act 1995 (NSW)
- Whether the evidence should have been excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that the danger of unfair prejudice outweighed its probative value
- Whether the trial judge should have disqualified himself on apprehended bias grounds, given that he had previously prosecuted one of the appellants as a Crown prosecutor in 1999
- Whether the jury's verdict of guilty was unreasonable or could not be supported by the evidence
Decision
Admissibility of tracker-dog evidence: The Court upheld the trial judge's ruling that the handler's evidence was admissible as expert evidence under s 79 of the Evidence Act. The handler's specialised knowledge of tracking-dog behaviour, together with the dog's accreditation records, provided a sufficient foundation for the evidence to be received. The Court also rejected the argument that s 137 required its exclusion, finding that its probative value was not outweighed by the danger of unfair prejudice.
Apprehended bias: The Court dismissed the disqualification ground. The trial judge had prosecuted the appellant Muldoon approximately eight years earlier in a different matter. Applying the test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the proceeding, the Court found that the circumstances did not give rise to any such apprehension. Prior professional contact of that nature, at that remove in time, was insufficient to require disqualification.
Reasonableness of the verdict: The Court found the verdict was open to the jury on the evidence. Several factors supported the conclusion that the dog had genuinely followed the trail of the persons who had committed the break-and-enter: no other person had entered the relevant area in the preceding 15 to 20 minutes; the dog indicated fresh scent; the trail passed through the location where stolen property was discovered; and at the end of the trail, the two appellants were found running through thick scrub with no one else in the vicinity. Their flight when police called out to them was also relevant.
The Court acknowledged that descriptions of clothing worn by the men seen entering the bush did not perfectly match what the appellants were wearing when apprehended, noting that clothing items were found in a tree along the tracked route. This discrepancy did not, in the Court's view, prevent the jury from being satisfied of guilt beyond reasonable doubt.
Orders Made
- The appeals of both appellants against conviction were dismissed.
Key Takeaways
- Evidence from a police dog handler concerning tracking behaviour is capable of constituting admissible expert evidence under s 79 of the Evidence Act 1995 (NSW), provided the handler possesses the requisite specialised knowledge and an adequate foundation for the evidence is established.
- Under s 137 of the Evidence Act 1995 (NSW), tracker-dog evidence is not automatically excluded as unfairly prejudicial; the probative value must be weighed against the actual danger of prejudice in the circumstances of the particular case.
- A trial judge's prior role as Crown prosecutor in an unrelated matter involving the same accused, some eight years before the current proceeding, did not satisfy the apprehended bias test as articulated by the High Court: a fair-minded lay observer would not reasonably apprehend a lack of impartiality in those circumstances.
- In assessing whether a verdict is unreasonable, the Court of Criminal Appeal examined the full evidential picture, including the route taken by the dog, the absence of other persons in the area, and the conduct of the accused at apprehension, rather than treating any single item of evidence in isolation.
- Discrepancies in clothing descriptions between eyewitness accounts and what the accused were wearing on arrest did not necessarily render a guilty verdict unreasonable, particularly where there was evidence of clothing items discarded along the tracked route.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 79, 137
Cases
- R v Benecke [1999] NSWCCA 163; (1999) 106 A Crim R 282
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Re JRL (1986) 161 CLR 342
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
- R v Kearns [2003] NSWCCA 367
- R v Keller [2006] NSWCCA 204
- R v Nguyen [2007] NSWCCA 249
- M v The Queen (1994) 181 CLR 487
- McCreed v The Queen [2003] WASCA 275
- Makita (Australia) Pty Limited v Sproules [2001] NSWCA 305; (2001) 52 NSWLR 705
- R v Joe Saccu (unreported, Victorian Court of Criminal Appeal, 13 February 1980)
- Pieterson and Holloway v R [1995] 2 Cr App Rep 11
- Vakauta v Kelly (1988) 13 NSWLR 502