Muldoon v R; Carter v R

Muldoon v R; Carter v R - [2008] NSWCCA 315 - NSWCCA 2008 case summary — Zoe

[14]

Some history 5 The trial in August 2007 was the third trial of the appellants in respect of this charge commenced before Conlon DCJ. 6 The first trial commenced on 13 November 2006. There was a voir dire concerning the admissibility of evidence concerning tracking by a police dog; and on 14 November 2006, the trial judge gave a judgment in which he ruled the evidence to be admissible. On the fourth day of that trial, after two jurors had to be discharged owing to illness and personal matters, the trial was aborted. 7 The second trial commenced on 19 March 2007. On 20 March 2007, counsel for the appellant Muldoon renewed her application to have the evidence of dog-tracking excluded, and the trial judge came to the same decision as before. That trial also was subsequently aborted, because of a problem with a juror. 8 As noted earlier, the third trial commenced on 6 August 2007. Counsel for Mr Muldoon again applied to have evidence of dog-tracking excluded. The trial judge had regard to the transcript of the voire dire evidence taken in November 2006, and also to accreditation certificates concerning the particular police dog. On 7 August 2007, the trial judge gave a further judgment giving reasons for admitting the evidence. 9 On 8 August 2007, counsel for Mr Muldoon applied to have the trial judge disqualify himself, on the ground that in 1999, as a Crown prosecutor, the trial judge had prosecuted Mr Muldoon in respect of another offence. The trial judge gave judgment on that day refusing that application. 10 This history has some relevance, because a ground of appeal relied on by Mr Muldoon is that the trial miscarried because the trial judge erred in failing to disqualify himself; and a ground of appeal relied on by both appellants is that there was a miscarriage of justice because the trial judge erred in admitting the evidence of the tracker dog. 11 The only other ground of appeal, relied upon by both appellants, is that the verdict cannot be supported having regard to the evidence.

[15]

Crown case 12 The Crown case was that Mrs Muir arrived at her home in Waples Road, Farnborough Heights, at about 1.40 pm. She saw three men near her house, one wearing a red tee-shirt and another with a flannelette shirt tied around his waist. After pulling into her driveway, she saw them go downhill behind her car, and noted that one was carrying a bag that looked like a bag of hers. 13 On entering her house, Mrs Muir discovered it had been broken into. She returned to her car, backed into the street, and turned it to face east (downhill). At about this time, she called her husband and asked him to phone the police. She saw a man entering a bush area (which was to the left of the road at the bottom of the hill, about 300 metres away). 14 Mrs Muir drove to where she believed the man entered the bush area, and wound down her window. She heard voices in the bush for a few minutes, that gradually moved away, sounding as though they were going up towards a fence-line at the back of houses facing an intersecting street Murrogun Crescent. 15 A neighbour Mr Mannix was looking from his home opposite this bush area in Waples Road. He saw three men come down the street and enter the bushland, and crouch behind a clump of trees at a point he identified as being near bulrushes (these being around a creek at the bottom of the hill). He said one man was wearing black tracksuit pants and a dark red maroon long-sleeved tee-shirt, another was wearing track pants with a white long-sleeved tee-shirt with stripes going down the sleeves, and another was wearing dark clothing. 16 About 60-90 seconds later, he saw two of the men go further into the bush, in a direction that would lead them to the fence-line; while the third, who was in dark clothing, came back out of the bush and crossed Waples Road into bush on the south side of that road. He saw Mrs Muir's car pull up near where the men had entered the bush. 17 An off duty police officer, Senior Constable Wright, who was exercising his police dog, responded to a radio call and arrived to where Mrs Muir was stopped at around 2 pm. Other police officers, Constables Barlow and Berringer, arrived just afterwards. Mrs Muir indicated a point of entry into the bush, and Senior Constable Wright placed a tracking harness onto his dog, and "cast" the dog in an arch to locate a track. 18 According to Senior Constable Wright, the dog indicated a trail of human scent, and by its movements indicated it was fresh (within 15 minutes). The dog moved along a cleared area along the fence-line. After about 100 metres, the dog stopped tracking, and raised its head. Senior Constable Wright saw black track pants and a white tee-shirt hanging in a tree above him. The dog then continued tracking, and after another 50 metres or so veered to the left away from the fence-line down a decline into thick scrubland. The dog then tracked another 100 metres, before stopping momentarily, indicated more human scent to the west. The dog then resumed tracking. At this point, there was no worn pathway. After another 100 metres or so into thick scrub and lantana, Senior Constable Wright then heard a person or persons running a short distance ahead. He then saw two men running about 50 metres in front of him. 19 Senior Constable Wright called out to the men to stop, informing them that if they did not stop he would set the dog on them. They did not stop, and Senior Constable Wright released the dog with a command to apprehend. He heard a male voice yell, "OK I've stopped. He's got me. Can you get him off?". 20 Senior Constable Wright (and also Constable Barlow, who had followed him) found the dog holding Mr Muldoon, and also found Mr Carter standing nearby with his hands in the air. Mr Muldoon was wearing blue jeans and a black tee-shirt, and Mr Carter was wearing a white tee-shirt and black trousers. 21 Senior Constable Wright later returned to the location where the dog had earlier indicated more human scent to the west. The dog pulled hard into thicker lantana and indicated a black nylon carry bag very similar to a laptop bag and a maroon luggage bag, each containing property taken from the Muirs' house. 22 The appellants did not give evidence. Certain photographs were tendered in the defence case, and the accreditation certificates concerning the police dog were also tendered.

[16]

Failure to disqualify 23 On 1 March 1999 in Wollongong District Court, Mr Muldoon had been prosecuted by the trial judge, then a Crown prosecutor, for an offence of robbery in company at Puckey's Estate Reserve, in 1997. The appellant's two co-accused in that matter pleaded guilty to more serious charges involving a vicious attack on a man. The case had some publicity at the time. The appellant was convicted. As noted earlier, an application was made that the trial judge disqualify himself, this application having been made on the third day of the present trial after the trial judge's involvement in the previous trial had been brought to the attention of the appellant's counsel. 24 Mr Haesler SC for Mr Muldoon submitted that a judge should be disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. The principle applies in relation to judges sitting with a jury: R v Kearns [2003] NSWCCA 367. 25 Mr Haesler submitted that a fair-minded observer might reasonably apprehend that the trial judge's prior prosecution of Mr Muldoon for a very serious offence would interfere with the apparent fairness of the trial. 26 In my opinion, the following matters are important in relation to this question: (1) The ultimate question is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide: Ebner at [6], Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]. (2) This principle applies to judges sitting with a jury: Kearns. (In the present case, the trial judge's rulings on admissibility of evidence were particularly important.) (3) As regards the characteristics of the relevant lay observer, this observer, being reasonable and fair-minded, would "ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant issues": Johnson at [53] per Kirby J. (4) Amongst such considerations would be that the person being observed is a professional judge whose training, tradition and judicial oath and/or affirmation require [the judge] to disregard the irrelevant, the immaterial and the prejudicial: Johnson at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, quoting from Vakauta v Kelly (1988) 13 NSWLR 502 at 507 per McHugh JA. (5) In the case of the suggestion of appearance of bias because of previous role as a prosecutor, one relevant consideration would be that, although a Crown prosecutor adopts an adversarial role in a criminal prosecution, it is the prosecutor's responsibility to act fairly and honestly and not to struggle for a conviction: McCreed v The Queen [2003] WASCA 275 at [33] (per Steytler J with whom Malcolm CJ agreed). There was no suggestion in the present case that the trial judge acted otherwise than in accordance with that responsibility. (6) Judges should not accede too readily to suggestions of an appearance of bias lest parties be encouraged to seek such disqualification without justification: Johnson at [45] per Kirby J, Re JRL (1986) 161 CLR 342 at 352. (In the present case, the circumstance that disqualification would cause a third trial to be aborted was not itself relevant to the issue to be determined, but is illustrative of the necessity to apply the test for apprehended bias realistically.) (7) There was in this case a lapse of time of over eight years; and it did not occur to Mr Muldoon that it was the trial judge who had prosecuted him unless well into the third trial. Also, it did not occur to the judge, and the judge had no recollection of the circumstances of the earlier prosecution. 27 I note that in McCreed, Steytler J (Malcolm CJ agreeing) expressed the view that the fact that a defendant to a criminal proceeding had previously been prosecuted for a serious criminal offence by a judge who was to preside at his trial would often be sufficient to result in the judge's disqualification, and that the prudent course would ordinarily be one of self-disqualification. However, in that case, even though the previous prosecution had been for murder, all three judges of the Court of Criminal Appeal in Western Australia were not satisfied that it was a case in which the trial judge was required to disqualify himself, particularly having regard to the lapse of time (in that case, eleven and a half years). 28 In my opinion, having regard to all the considerations I have set out, and having regard particularly to the lapse of time, this too was not a case in which the trial judge was required to disqualify himself.

[44]

Wright let Haas resume the track in the same direction and they moved into thicker scrub. Wright found it hard to move through the vegetation. His forearms were getting lacerated from the lantana and blackberry bushes (t 9). Wright kept his pace with the dog, but at one point he fell and became entangled in thick scrub. At that point he became aware of 2 males ahead of him and he yelled at them to stop, warning them that he was from the police dog squad and that he would send his dog if they did not stop (t 10). The males continued running, and Wright released Haas from the tracking line and commanded him to apprehend. Wright freed himself, ran after the dog and saw Haas seconds later with a hold of Muldoon (t 11). In cross-examination Wright said that dogs were trained to bark only if they were sent off-lead to locate an offender, particularly during an open search of an area; Haas, in particular, did not bark whilst tracking (t 27). The reason why Haas did not bark when the dog caught up with the applicants was because it was given a command to apprehend them as no perimeter had been set up to prevent any escape (t 27). 30 Senior Constable Wright gave similar evidence at the trial before the jury. The appellants relied on two annual accreditation results of the tracker dog as shown in accreditation certificates. Senior Constable Wright was cross-examined about the results from the accreditations on 23 June 2005 and 22 June 2006, and he agreed that these were the only accreditations evaluated by someone other than himself. The effect of these accreditations and Senior Constable Wright's evidence in relation to them were usefully and fairly summarised as follows in the Crown prosecutor's submissions: 57. In 2005, the dog scored an overall 80% and was assessed one level up from novice to a level 1; he achieved the following results: Soft Surface Tracking: 166 (out of 240) Hard Surface Tracking: 122 (out of 160) Searching: 265 (out of 300) Obedience: 166 (out of 200) Agility: 95 (out of 100) Manwork: 270 (out of 300)

[54]

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 32 In order for that evidence to be admissible, Mr Haesler submitted, it was necessary that the prosecution demonstrate that the dog's training and experience and any testing of that training and experience justify the reception of the evidence: R v Joe Saccu (unreported, Victorian Court of Criminal Appeal, 13 February 1980). 33 Mr Haesler also referred to Pieterson and Holloway v R [1995] 2 Cr App Rep 11 at 16 and 17. 34 Mr Haesler submitted that the evidence on the voir dire failed to establish that the police dog was properly qualified to track on soft surfaces. The certificates showed that both before and after October 2005, the dog had problems tracking on soft surfaces. Senior Constable Wright's assessment of his dog's and his own abilities were insufficient to justify the admission of the evidence. 35 Mr Haesler submitted that opinions expressed must be shown to be wholly or substantially based on the expert's specialised knowledge, and the reasoning process of the expert must be sufficiently exposed to establish how his or her conclusions were based on this specialised knowledge: R v Keller [2006] NSWCCA 204 at [24]; R v Nguyen [2007] NSWCCA 249; Makita (Australia) Pty Limited v Sproules [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]. 36 Mr Haesler submitted that the evidence should in any event have been excluded under s 137 of the Evidence Act. There was a real risk that the jury would not make its own assessment of the evidence and rely instead on what Senior Constable Wright said the dog was indicating. Such exclusion was a result reached in similar circumstances in R v Benecke [1999] NSWCCA 163; (1999) 106 A Crim R 282. There was a substantial risk that the scent the dog was tracking was laid down by someone other than the appellants, possibly the real burglars or possibly someone who had recently used the track along the fence-line; and it remained possible that the dog was not following a scent at all. 37 Mr Haesler also submitted that the evidence of a dog-handler should not go beyond a description of the dog's behaviour and surrounding circumstances: explicit opinions about the thoughts or intent of the dog or the drawing of inferences from the dog's behaviour should be excluded, particularly because of their potential to result in unfair prejudice to the accused: cf Benecke at [18]. 38 In my opinion, the detailed evidence given by Senior Constable Wright on the voir dire, and repeated at the trial before the jury, did establish that he had specialised knowledge, based on his training and experience, and that the opinions he expressed were wholly or substantially based on that knowledge, satisfying the requirements of s 79 of the Evidence Act 1995. 39 In my opinion also, his training and experience did qualify him to interpret the behaviour of the tracker-dog in terms of indications that it was following human scent, and the recency of that scent, and that its behaviour indicated human scent off the track that it was tracking. His ability to draw these inferences was sufficiently established by his evidence about his training and experience, and his extensive experience with the particular dog. It is true that the evidence did not make wholly transparent the process of reasoning giving rise to these interpretations; but in my opinion inferences of that kind are not such as could reasonably be expected to be supported wholly by explicit inferential steps. 40 The mark that the dog received for soft surface tracking in 2005 and 2006 did not make the evidence inadmissible. Senior Constable Wright gave evidence as to his experience of the reliability of the dog and of certain limitations in the dog's performance. This evidence was not shown to be in any way unsatisfactory, by any detailed exploration of deficiencies that may have been disclosed by the particular marks in question. 41 In my opinion, this was not a case where the probative value of the evidence was outweighed by the danger of unfair prejudice, within s 137 of the Evidence Act. Any unfair prejudice must lie in the danger that the evidence might be misused by the jury and, in my opinion, that danger could be and was adequately addressed by appropriate directions. The criticisms of and potential unreliability of that evidence was agitated in cross-examination and addressed in counsel's addresses, and also in the directions by the trial judge. 42 Accordingly, in my opinion this ground of appeal fails.

[55]

Whether the verdict can be supported by the evidence 43 Mr Haesler submitted that the Crown had to establish that the dog that ultimately led Senior Constable Wright to the appellants was tracking the offenders who left the house: that is, there had to be a direct connection between the people who left the house with the property and the appellants. Mr Haesler submitted that a number of aspects to the evidence showed that the verdict could not be supported: (1) The dog did not commence tracking at a point where either Mrs Muir or Mr Mannix told the jury the burglars entered the bushland: the position where the dog was cast was close to a well worn path obviously used by many people. (2) The assessment that the dog had picked up a fresh scent was based solely on the subjective and untestable opinion of Senior Constable Wright. (3) Senior Constable Wright's subsequent evidence of what he interpreted the dog to be indicating was similarly a subjective, untestable opinion based on no recognised or established field of expertise. (4) The dog did not track to the appellants. Rather, Senior Constable Wright heard and saw them and gave the command to apprehend. (5) Neither accused wore clothing similar to that described by Mrs Muir or Mr Mannix, nor was any clothing matching that described found to be discarded in the area. (6) As the dog did not track directly to the stolen goods, it cannot be presumed that the track it was following was in fact that of the burglars. 44 Mr Haesler submitted that, applying the test in M v The Queen (1994) 181 CLR 487, an independent assessment of the evidence leads to the conclusion that the verdict cannot be supported by the evidence. This was not an exercise that required assessment of witnesses' credibility. 45 In my opinion, the jury could in this case reasonably give substantial weight to the evidence concerning tracking by the police dog: (1) Although the evidence of Mrs Muir and Mr Mannix suggests that the men who entered the bush after leaving Mrs Muir's house did so near the bulrushes, this evidence also suggests that they moved behind the trees to the cleared area along the fence-line; so although Senior Constable Wright cast the dog near the commencement of the cleared area rather than near the bulrushes, the dog could well have picked up their scent on that cleared area. (2) No other person entered that cleared area along the fence-line from Waples Road in the 15-20 minutes before the dog started tracking. (3) The dog pulled strongly, indicating fresh human scent, according to Senior Constable Wright. (4) The dog left the cleared area taking a route that went to the location where the stolen property was found, indicating a very high probability that the dog had in fact followed the trail of the persons who had broken into Mrs Muir's house. (5) From that point, the dog took Senior Constable Wright through thick scrub for a further 100 metres, indicating a very high probability that it was still following the fresh trail of persons who had broken into Mrs Muir's house. (6) At that point, Senior Constable Wright saw two men running 50 metres away; and although the dog did not track from that point up to these men, there was a very high probability that these were the men who had left the trail that the dog had been following, especially in circumstances where no one else was in the vicinity, these men were running away, and they did not stop when the police called out to them to do so. 46 The absence of the red tee-shirt and the shirt with stripes down the arms could be taken into account; but in my opinion the failure to locate those items did not mean that the jury could not be satisfied beyond reasonable doubt of the guilt of the appellants. 47 In my opinion, on the basis of that material, there was evidence capable of satisfying the jury beyond reasonable doubt of the guilt of the appellants.

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