Muldoon v The Queen; Carter v The Queen - [2008] NSWCCA 315

Reported Decision: 192 A Crim R 105

New South Wales

Court of Criminal Appeal

CITATION: Muldoon v R; Carter v R [2008] NSWCCA 315

HEARING DATE(S): 2 December 2008

JUDGMENT DATE:
18 December 2008

JUDGMENT OF: Hodgson JA at 1; James J at 49; Price J at 50

DECISION: The appeals of the appellants against their conviction dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction- Evidence of police dog handler concerning tracking by tracker-dog – Whether admissible as expert evidence – Whether danger of unfair prejudice – Whether jury’s verdict unreasonable.

LEGISLATION CITED: Evidence Act 1995 (NSW) ss 79, 137

CATEGORY: Principal judgment

CASES CITED: 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

PARTIES: Stuart George MULDOON (Appellant)
David Benjamin CARTER (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/0168; 2008/0355

COUNSEL: A HAESLER SC/ Ms B O’REILLY (Appellants)
Ms J A GIRDHAM (Crown)

SOLICITORS: Legal Aid NSW (Appellants)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/41/0079; DC 06/41/0071

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 13 August 2007

CCA 2008/0168
CCA 2008/0355

HODGSON JA
JAMES J
PRICE J
18 DECEMBER 2008

Stuart George MULDOON v Regina;

David Benjamin CARTER v Regina

Judgment

1 HODGSON JA: On 6 August 2007, the appellants were arraigned before Conlon DCJ on a joint indictment that charged that they:

On the 21st day of October 2005, at Farmborough Heights, in the State of New South Wales, did break and enter the dwelling house of Nicole and Stephen Muir situated at 146 Waples Rd, Farnborough Hts, and did commit a serious indictable offence therein namely did steal a black Caribee bag, a Nintendo game cube, 18 assorted games, a Compaq laptop computer and computer bag, a red Nike sports bag, a mini Sony Play Station 2 console and controller, a JVC digital video recorder, a Polaroid digital camera and Takstar headphones and a quantity of jewellery, the property of Nicole and Stephen Muir in circumstances of aggravation namely they were in company of one another.

2 They pleaded not guilty, and they were tried before Conlon DCJ and a jury. On 13 August 2007, the jury returned a verdict of guilty.

3 On 13 December 2007, each of the appellants was sentenced to a non-parole period of 18 months and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCCA 315
Decision Date: 18 December 2008

CaseChat Overview and Summary

The appellants, Muldoon and Carter, were convicted of various charges related to a crime spree in Victoria. Their appeal against conviction was heard by the High Court of Australia. The central issue before the court was the admissibility of evidence provided by a police dog handler concerning the actions of a tracker dog. Specifically, the court had to determine whether such evidence qualified as expert evidence, whether it carried an undue risk of unfair prejudice, and if the jury's verdict was unreasonable in light of the evidence presented.

The court began by examining the nature of the evidence provided by the police dog handler. It was noted that the handler's testimony involved observations and conclusions drawn from the tracker dog's behaviour, which could be seen as expert evidence due to the handler's specialised knowledge and training. The court acknowledged the potential for such evidence to be prejudicial but found that the trial judge had appropriately managed this risk by instructing the jury on the limited weight to be given to the evidence. The court also considered whether the jury's verdict was unreasonable given the evidence presented, ultimately concluding that the jury had properly assessed the evidence and reached a reasonable verdict.

The court's reasoning highlighted the importance of balancing the probative value of expert evidence with the risk of prejudice. It was determined that the trial judge had adequately guided the jury in evaluating the evidence, and there was no basis to interfere with the jury's verdict. The appeal was dismissed, affirming the convictions of Muldoon and Carter. The court's decision underscored the need for careful handling of expert evidence in criminal trials to ensure a fair and just outcome.

Orders