R v BENECKE - [1999] NSWCCA 163 - NSWCCA 1999 case summary — Zoe

R v BENECKE - [1999] NSWCCA 163 - NSWCCA 1999 case summary — Zoe

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The learned trial judge failed adequately to direct the jury in relation to the tracker dog evidence. 6 Senior Constable Mahony, a police dog handler, arrived at the service station with his dog about an hour after the robbery. The dog indicated human scent on a garden bed at the northern end of the service station. The dog followed the scent into a car park and then through a series of grassed places or garden beds. 7 Senior Constable Mahony explained that human scent is most easily detectable by a dog if it is fresh and if it has been left on a soft surface. Scent is too difficult to detect on a hard surface like bitumen or concrete, especially an hour after a person has passed. A scent which is an hour old is an old one and much less easy to detect than a fresh one. Senior Constable Mahony's dog could detect scent about one hour and forty minutes old. 8 The dog followed the scent intermittently, picking it up on soft surfaces and losing it on hard, until it stopped at a six foot wooden paling fence at the rear of a house at 388 Lane Cove Road. The dog behaved in a way that made Senior Constable Mahony think that the scent continued over the fence, but neither he nor the dog went over the fence. 9 Mr Abignano telephoned police straight away after the robbery and Senior Constable Farat went to the service station at about 4 am and spoke to him. Mr Abignano told him that he thought the robber was like the accused, whom he knew. The accused had worked at the service station for a number of months until 5 August 1997. Senior Constable Farat recorded in his notebook that the accused was possibly the offender. 10 Between November 1996 and April 1997 the appellant had resided in the house at 388 Lane Cove Road. Police had that information and broadcast it over the radio. Officers were present at the house when Senior Constable Mahony was using his dog. They entered the house and woke the occupant, Mr Sularyo. 11 Mr Sularyo was asleep and had been at the time of the robbery. He did not see the appellant there at all on that night. In fact he had had no contact with him since he left the premises in April the same year. There was no evidence that the appellant was at the house on that night. 12 Objection was taken to the tender of the evidence of Senior Constable Mahony and of Mr Sularyo. 13 It was submitted on appeal that the evidence had little or no probative value. In my opinion that submission has been made good. 14 The scent was not picked up at the place of the robbery but in a garden bed at the edge of the service station. There was no evidence whether the trail approached the place of the robbery or emerged from it. Senior Constable Mahony's dog followed the scent only in one direction, and it might be thought that that was the direction in which the person had travelled whose scent it was. Yet there was no evidence of that. There was no evidence that the scent was taken up at its end or at its beginning or at some other point. It might have continued away from the garden bed in the direction opposite to the house at 388 Lane Cove Road, but if it did, the fact never became known because no enquiry was made. Such a conclusion would have been consistent with the evidence of Mr Abignano, who said that the robber fled north-west towards Pymble. 15 The scent might have been of more than one person, and there was no evidence that Senior Constable Mahony would have known if that had been so. 16 The scent or scents began, ended or continued at or through a house premises, yet there was no evidence that the appellant had been at that house within the last five months. 17 The potential for unfair prejudice was great. The evidence of the behaviour of tracker dogs has been regarded as potentially unreliable. (See 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.) 18 The danger has been recognised that juries may place too much weight on the untested and untestable ability of a dog to track a scent. This was evidence which could not be easily tested by cross-examination and which might possibly show that the robber jumped the fence into the house at 388 Lane Cove Road, but other inferences were equally open; for example, that there was more than one scent; that the person whose scent it was did not go into the premises at 388 Lane Cove Road but came out of them; that that person had nothing to do with the robbery, and that the scent or scents had been left by a police officer or police officers. 19 The evidence showed that the first officer to arrive did so about fifty minutes before the dog began to track. There was an historical connection between the house and the appellant because he had resided there for a period of time, yet there was no evidence that he had been there for five months, so there was no contemporary connection between the scent and the appellant. 20 Taken at its highest and putting aside all its weaknesses, the evidence was capable only of showing that a person had been in the vicinity at about the time of the robbery. The evidence that the appellant had lived at the house five months previously had no probative value in my opinion. 21 There was a risk that if the evidence about the behaviour of Senior Constable Mahony's dog were admitted, the jury might misuse it by combining it with a speculation that the appellant had returned to his old residence that night, and falsely concluded that the scent must therefore have been his. That was a conclusion that was unavailable on the evidence. 22 In my opinion the evidence about the behaviour of the dog had little or no probative value. Whatever probative value it had was vastly outweighed by the unfair prejudice to the appellant, constituted by the risk of its misuse by the jury in the manner I have indicated. The evidence ought to have been rejected either because it proved nothing or in the exercise of the discretion of the trial judge. 23 The trial judge gave the jury no special warning or instruction about the approach they should take to this evidence, notwithstanding the difficulty of testing it and the dangers to which I have adverted. In R v Barnes, Gleeson CJ considered appropriate and adequate a warning in relation to tracker dog evidence that the jury should bear in mind that the dog was not able to be cross-examined and that the jury should be careful to avoid over-estimating the reliability of the operation of a dog's senses so as to avoid too rapidly arriving at the conclusion contended for by the Crown from the evidence of the dog's activities. 24 The evidence having been admitted, such a warning was essential in this case. Trial counsel failed to ask for a warning, but proper objection was taken to the tender of the evidence and the matter is of such fundamental importance that I would grant leave to appeal and uphold the appeal on this ground also. 25 Success on the second and third grounds would lead only to an order for a new trial, as would success on the remaining grounds, other than the first and seventh grounds. It is unnecessary, therefore, to consider the remaining grounds, other than the first and seventh grounds which are as follows:

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The verdict is unsafe and unsatisfactory. 26 Although it has been convenient in times past to use a formulation which asserts that a conviction is "unsafe and unsatisfactory" that term is imprecise and it is necessary to have regard to the terms of s 6(1) of the Criminal Appeal Act. By s 6(1) the Court in any appeal under s 5(1) against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law, or that on any other ground whatsoever there was a miscarriage of justice. 27 In the present appeal the attack on the verdict was made in two ways. The first depended upon an accumulation of the matters catalogued in the other grounds of appeal which was said to have resulted in a miscarriage of justice in the sense referred to in R v Clough (1992) 28 NSWLR 396. If the appeal succeeded on that basis it would lead only to an order for a new trial and it is therefore unnecessary to consider it further. 28 The second basis which, if made good, would entitle the appellant to an acquittal, turns upon the test settled in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 72 ALJR 78, namely whether, after making its own independent view of the evidence, this Court concludes that the jury ought to have entertained a reasonable doubt as to the guilt of the appellant. 29 In view of the conclusion I have reached about the second and third grounds of appeal, I have undertaken a review of the evidence excluding the evidence of Senior Constable Mahony and Mr Sularyo. 30 Mr Abignano was working at the service station at about 3.50 am. He was bending down stocking the refrigerator when he heard the sliding doors open. He saw a man having the appearance I have described. The man held a knife and started shouting, "Give me the money". He told Mr Abignano to go to the counter. Mr Abignano opened the cash register and placed the drawer on the counter. The man said, "Give me the notes and give me the tin under the counter". 31 Mr Abignano told him there were no tins under the counter, but when he opened the cupboard he realised that there was a blue tin containing a cash float. He put this on the counter. The man picked up the cash register drawer and the tin and ran away. 32 In his evidence Mr Abignano described the man as solid and about 180 centimetres tall. He was in his early twenties, about twenty to twenty-five years old. He was of Anglo-Saxon appearance. Mr Abignano told the jury that whilst the man was speaking to him he started immediately recognising the voice. He explained that the accused, like himself, had been a casual console operator at the service station. 33 Although operators worked alone, they spent some time together as shifts changed over. It was necessary for reliever and relieved to speak to each other during the changeover process, which might take twenty minutes or so. Such changeovers between Mr Abignano and the accused had taken place about three times a week. He estimated that there had been about thirty such changeovers during the period of a few months, ending when the appellant ceased to work at the service station. 34 Records of the business throw some doubt on Mr Abignano's estimate of the number of times he and the appellant were together at a changeover and suggest that there were eight shifts within the relevant time at which the duties of Mr Abignano and the appellant coincided. 35 In addition Mr Abignano said that the appellant had come to the business as a customer on about ten occasions and Mr Abignano had spoken to him then. He had also spoken to him about five times on the telephone. He thought that he knew his voice quite well. 36 He told the jury that once he had gone around the counter at the robber's order he knew almost immediately that it was the appellant. He was asked why he did not tell the appellant that he had recognised him and he said that he did not do so because he was afraid that if he did the appellant might come after him. 37 He said that there was one distinctive feature about the robber's voice and that was that he spoke in a very broad Australian accent, which he described as "ocker". The appellant did not give evidence but the jury heard a tape recording of a formal interview which took place not long after the robbery between a police officer and the appellant. 38 A number of criticisms were made about Mr Abignano's evidence. First, distinctions were drawn between things he said to a police officer immediately after the robbery and things he said in a more formal interview which took place three days later. Straight after the robbery he said that he thought the robber was "like Mr Benecke". He described the robber as twenty-two to twenty-seven years of age, even though he knew that the appellant was twenty years of age. 39 Three days later he told another police officer that he was "positive" that the robber was the appellant. He estimated the age of the robber as twenty to twenty-five years. Mr Abignano said in cross-examination that when he told the police that he believed the robber was twenty-two to twenty-seven years of age, he honestly believed that to be true. 40 Apart from the strong and distinctive Australian accent of the robber, Mr Abignano noticed nothing distinctive about the sound or appearance of the robber. 41 There were circumstances which might have made it difficult for Mr Abignano to recognise or identify the voice of the robber. The attack on him was unexpected. He was put in great fear and the robber was shouting. Mr Abignano conceded that the accused had never shouted at him before. 42 On the other hand, as the evidence shows, he was familiar with the voice of the appellant. The conversation lasted about a minute, a not inconsiderable time. 43 The criticisms made of Mr Abignano and what is asserted to have been a change or improvement in his evidence, were well able to be weighed by the jury. The robber knew that there was a tin or box under the counter where money was kept. Only someone who had been behind the counter would know that fact. The evidence showed that during the appellant's employment at least one tin was kept in that place. That evidence pointed to a small class of persons as including the robber. The appellant was a member of that class of persons. 44 The appellant did not give evidence and the jury were entitled to take that fact into account in evaluating the strength of the Crown case. R v Gordon (1991) 57 A Crim R 413. 45 Finally, this Court must have regard to the advantage the jury had in comparing Mr Abignano's description of the appellant's accent with the sound of his voice on the tape, which was played to the jury. 46 In my view, a jury weighing all these considerations would be entitled to regard Mr Abignano's identification of the appellant as sufficient to prove beyond reasonable doubt that the appellant was the robber. I am unable to conclude that the jury, hearing the evidence, ought to have entertained a reasonable doubt about the guilt of the appellant. 47 I do not think that the verdict is unreasonable or cannot be supported, having regard to the evidence, or that there was any miscarriage of justice. I would allow the appeal, quash the conviction and order a new trial. 48 ABADEE J: I agree with the reasons and proposed orders of Justice Barr. 49 IRELAND J: I agree. 50 ABADEE J: The orders will be as proposed by his Honour. **********