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 an additional term of 18 months.

4 The appellants appeal from their conviction.

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.

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.

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.

Tracker dog evidence

29 The evidence given by Senior Constable Wright on the voir dire held on 13 November 2006 was usefully and fairly summarised as follows by the Crown prosecutor on this appeal:

Wright’s Experience

1. Wright gave evidence that he'd been attached to the dog unit for 11 years. He first undertook a 16 week novice dog training course in 1996; in 2002 he undertook a 10 week training course with his current police dog (Haas, who he used on 21 October) (t 1, 6).

2. Wright was also an operational trainer, involved in setting up operational scenarios for handlers once per week (t 7).

3. Wright gave evidence that the type of dog deemed suitable to become a police dog was one which had a high prey drive -" the want to chase and play with an article and have tug of wars and bring it back to you " (t 2).

Training

4. Wright gave evidence that during the novice training course, dogs are taught all aspects of police work (obedience, tracking, searching, agility, and criminal apprehension); the emphasis is on tracking - teaching a dog to follow a trail of human scent that has been laid down (t 2).

5. Wright's evidence was that for a number of weeks dogs are trained 5-6 times a day in the early morning. The dog being trained is taken into a sterile paddock (one not subject to pollution or game or foot traffic) so there are not too many other scents. A track is laid (in the initial stages of the training only, this is done by the handler of the dog being trained), which means that the handler ‘walks' along the leg of a track. An article is left at the end of it and the dog is shown this. The handler walks back along the track without the article. The dog is then encouraged to place his nose on the ground and search for the track; this is done through the use of a repetitive command, which is given throughout this type of exercise. When the dog reaches the end of the track it is rewarded with the article (t 2). The sterile environment, as well as the double laying of the track, means that the only scent in front of the dog is human scent, which is what the dogs are trained to detect (t 5).

6. Wright gave evidence that dogs are kept on a 10 metre tracking lead. The line is released and allowed to move through the handler's hands when the dog is on the track. The dog is only allowed to move forwards. If the dog stops, or if it lifts its head or goes off the track, pressure is applied to the line to stop the dog from moving, and it is not allowed to move until it indicates the true track and puts its nose back down (t 2, 4). This imprints in the dog that the only way it will find its reward (the article) is by following the trail of human scent (t 5).

7. After the first 4 weeks of training, the dog no longer needs to see the track being laid (t 3). The training starts to involve longer tracks, the addition of comers, the use of different legs, and increases in time between the laying of a track and the dog walking the track (t 3).

8. Wright gave evidence that a dog does not pass the novice training course until a track of 4 legs is successfully completed. Each leg must be at least 250 metres in length. The track must be at least one hour old. Each leg must also have one article placed there by the handler who has laid the track, and the dog must indicate this or pick it up (t 3). This forms part of a dog's annual accreditation (t 3).

9. Another aspect of the annual accreditation is the use of operational tracks, which involves laying a track through peoples front yards and across a variety of surfaces including hard ones. In order to remain operational, a dog must complete 3 legs of an operational track. Each leg must be 250 metres in length and be placed 30 minutes before the dog commences tracking, with one article on each leg (t 3). These were the minimum requirements; however, operationally much more difficult tracks were laid, for instance, going over fences, through creeks, with a total distance exceeding 1 km, and the time delay being over one hour (t 4).

10. Wright gave evidence that other advanced training methods included laying tracks in areas of animal pollution and where there are cross-tracks (where other people walk across the track being laid). Dogs are trained to follow the initial track and are not allowed to track anything other than the initial track, though Wright agreed that dogs (as well as handlers) could make mistakes, though this was less likely when not on a hard surface or on an area with numerous cross-tracks (t 5, 18-19, 23). Wright's evidence was that where a dog encounters cross-tracks it may falter for a short time and might become confused, but Wright said that dogs will work hard and will soon work out which is the individual scent that they initially started to follow, and which they were initially encouraged and commanded to track, and they will continue with the original track and overcome the cross-tracks (t 5-6, 18). This was a matter of skill (and training) of both the dog and the handler (t 24).

11. In cross-examination Wright was questioned about situations where there was more than one scent on a track. He said it could be difficult but the dog would indicate the presence of two trails if they had been laid side by side by putting his nose to the ground and moving across to indicate another track (t 15-16). He agreed that where more than one person was walking single file then it could be difficult to know how many persons were being tracked (t 16).

12. Wright gave evidence that in addition to the above training, ongoing training blocks (using paddock and operational tracks) were also conducted, on average 3 consecutive days per month. Once a week operational scenarios were also also set up for the handlers (t 7).

Body Language when Tracking

13. Wright explained that during the initial stages of training the handler knows where a track has been laid. As dogs are being taught they are watched and the handlers learn the intricacies of their dog's body language and the way they indicate when they are tracking. He said, 'you very quickly learn how your dog tracks and you become very familiar with his body language "; in particular, he said that dogs develop a "tracking gait", similar to a bunny hop (t 4). Dogs indicate by putting their nose on the ground and pulling forwards, low down in their tracking harness which " tells you when the dog is on the true track " (t 4).

Backtracking

14. Wright gave evidence that although dogs have the ability to backtrack, they do not backtrack. They were able to distinguish the direction of travel and track in the direction of travel; he guaranteed this 100% and said that this was consistent with what he'd observed in his training, and he had never had a dog track the other way. He said that a dog does not backtrack on a trail with any intensity and he believed it came down to the age of the footsteps (t 15,26).

Dissipation of Human Scent

15. Wright gave evidence that the majority of the scent which comes off a freshly laid track is not human scent but rather ground scent (e.g., crushed vegetation). Each individual also has a scent which falls down. This combines with the ground scent (t 4). Concrete and hard surfaces do not contain much scent other than that of the person laying the track, and the scent will dissipate depending on the weather conditions especially if it is hot (t 6). With grass or scrubland there is a lot more vegetation to contain and hold human scent, so the track will stay available for the dog to track for a lot longer; lush grass was ideal for tracking (t 6).

16. Wind can blow an individual scent a few metres off the true track, depending on its strength. It is up to the handler to stop the dog if the dog moves towards the individual scent (t 4). The handler needs to get an indication of the location of the true track. This is done by putting pressure on the lead. The dog then comes back and indicates the track along the ground again (t 5). Wright explained that there was a change in body language when a dog was not following the true track; a handler must consider factors such as wind direction and the lay of the land and use pressure on the tracking line to gauge the dog's intent and bring the dog back to the true track (t 22-23).

17. In cross-examination Wright said that it was possible that a dog would indicate the presence of other people nearby, though experienced operational dogs would be well aware of the differences in scents when compared with the scent they were initially encouraged to follow (t 18). He added that humans smelt differently but agreed that he had no qualifications in biochemistry or in animal behaviour other than his operational experience and the courses he'd undertaken (t 18).

Haas' Training

18. Wright gave evidence that Haas undertook all of the training noted above. He said that Haas was proficient in tracking and had never failed an accreditation (t 7). As at 21 October 2005 he had 2 accreditations. Haas had reached a satisfactory level in tracking, searching, agility, criminal apprehension, man work and obedience (t 7). In cross-examination Wright agreed that Haas had some remedial training within the previous 12 months for " gaming issues " -picking up the scent of animals (kangaroos and deer) and becoming distracted (t 19).

Conditions for Tracking on 21 October

19. Wright gave evidence that 21 October was a warm (though not hot) sunny day, with minimum wind (t 7). The conditions were ideal for tracking. There was lush soft grass at the start of the track, no hard or concrete surface, and movement into shrub which held a scent well (t 25, 28). The conditions were unlikely to lead to problems with deviations caused by cross-tracks (t 24).

Haas's Tracking on 21 October

20. Wright gave evidence that on 21 October Haas was taken to an area of lush grass, approximately 15 cm high (t 8). Haas was placed on a tracking harness with a tracking lead attached; this was a silent command, indicating that Haas was about to commence a tracking exercise. The dog was then commanded to search for a track. It moved across the area with its nose right on the ground in an arcing-type pattern at a fairly quick pace. Wright gave evidence that Haas indicated a trail of human scent. He described what Haas did when he hit a trail of human scent -he jerked down very suddenly, lowered his body and pulled extremely hard into the tracking harness, went into a tracking gait (the bunny hop) and started following the trail (t 8). Wright's evidence was that dogs pulled harder and more intensely when following a trail of more recent scent. In his opinion, as soon as Haas indicated and pulled hard on 21 October, he was tracking a very recent trail of human scent (t 12). In cross-examination he said that he could tell the difference between a 30 minute track and a 5-10 minute track (t 15). Wright was also certain that Haas was tracking in the direction which the person being tracked had walked, as opposed to a backtrack (t 15).

21. Wright agreed in cross-examination that he had not been to 146 Waples Rd, nor had he given Haas any item that the offenders may have touched. He said that that was not a method he used to locate a track (t 14).

22. Wright gave evidence that Haas stopped 100 metres on the worn pathway alongside the fence line. Haas lifted its head. The dog's body language changed. It took the pressure off the harness and looked up. Wright looked up and saw a long-sleeved t-shirt and black track pants in a tree (t 8-9).

23. Wright made a mental note of the location and encouraged Haas to put its nose back down, commanding him to continue searching for the track. He said that the dog " didn't need much encouragement " and it moved forward, again in the tracking gait (t 9).

24. The track continued 50 metres along the fence line (6 or 7 metres to the left of the fence line) and the dog veered off into dense, thicker scrub, down a decline into a gully. He was still indicating the presence of human scent (t 9).

25. In cross-examination Wright said that it was at this point that he left the worn pathway (t 16). In cross-examination he agreed that this bordered the back of 20 or so houses and that there was a large rock further up (t 13). He did not recall other paths to the left along the pathway (t 14). The pathway was about a metre wide (t 16). He agreed that it was a possible shortcut to the houses and was obviously worn; however, he said that he could not see the area to the left as being a very practical shortcut (t 17). He agreed with the possibility that on the pathway there may have been another track parallel to the track which Haas was following (t 17). He also agreed that he did not know how many people had traversed that trail within the previous half an hour. He said it was fairly remote and that it was a weekday, but he agreed that even one other person on the trail could pose difficulties (t 25).

26. Wright gave evidence that after Haas had veered off the pathway it stopped pulling again and lifted its head up and looked in a westerly direction. The change in body language meant that Haas was searching for something close by. The only explanation according to Wright (based on his experience with Haas and other dogs) was that Haas was indicating an item with human scent. Wright gave evidence that after one or two seconds Haas wanted to continue tracking and indicated that the track continued. From Wright's operational experience, he said that this indicated to him that property had possibly been dumped (t 9-10). Wright said that if Haas had been indicating the actual person being tracked then he would have pulled him into the location and started barking (t 9). Wright did not see anything at this stage but he made a mental note of the location (t 10). He subsequently returned there and found two bags (t 11).

27. 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)

58. In 2006, the dog scored an overall 75%, insufficient to achieve level 1 status (which required 80%), so he reverted to a novice level; he achieved the following results:

Soft Surface Tracking: 118 (out of 240)
Operational Tracking: 115 (out of 160)
Searching: 275 (out of 300)
Obedience: 87 (out of 200)
Agility: 79 (outof100)
Manwork: 300 (out of 300)


59. Wright said in cross-examination that for a dog to remain operational it needed to reach 70% each year (t 106). However, the dog cannot fail on the discreet " cease attack " test (following the capture of a suspect) nor on the " manwork " component. If there is failure in these areas, the dog would be removed from duties until the issues are remedied. Failure in other individual components would be addressed individually, though the dog would remain operational as long as the overall score remained at least 70% (t 145).

60. Wright outlined the various categories as follows:


a. Soft surface meant lush, soft open-paddock grass, and it also included "dirt paths" like the one he and the dog walked on during 21 October 2005 (t 108,141). Soft surface tracking was affected by weather conditions, but no handicap was allowed for weather changes on the day of testing (t 145). Wright could not recall the conditions on the day of the accreditation testing (t 161).

b. Hard surface was either gravel or bitumen (t 108. 141). In 2006 this changed to " operational tracking " which meant a track laid in a residential area with pollution, cross tracks and distractions (t 144-145).

c. Searching was made up of three categories, open, building and property; the first two involved searching for a secreted person either in an open area of bushland (at least 100 metres away), or within a building, and the third involved searching for small items of property dropped in an area of 30 square metres (t 142).

d. Obedience related to exercises dealing with the dog's response to its handler and its response to signal commands (t 143).

e. Agility related to negotiating obstacles (t 144).

f. Manwork related to criminal apprehension, and there was greater importance attached to that rather than to obedience (t 107).

61. Wright gave evidence that in February 2006 his dog was subject to remedial training as a result of gaming issues -a tendency to become distracted by scenting animals (t 147-148). When Stephen Muir was cross-examined he agreed that he'd heard some lizards and birdlife in the bush when he entered the bush land on 22 October to searching for the remainder of his property which had not been recovered, and there were also deer further up in the cleared area (t 50). Wright explained in re-examination that the gaming issues generally related to when the dog was away from him at a distance. Scenarios were set up and these showed that the dog was definitely prioritising what was being searched for (t 161). There was never an issue with tracking whilst the dog was on a lead where he was affected by game (t 162).

31 Mr Haesler submitted on behalf of both appellants that Senior Constable Wright’s evidence concerning the activities of the police tracker-dog were not admissible, as the prosecution failed to establish the reliability of the police dog; and that in the alternative, the evidence should have been excluded pursuant to s 137 of the Evidence Act 1995, which provides as follows:

137 Exclusion of prejudicial evidence in criminal proceedings

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.

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.

CONCLUSION

48 For those reasons, in my opinion the appeals of the appellants against their conviction should be dismissed.

49 JAMES J: I agree with Hodgson JA.

50 PRICE J: I agree with Hodgson JA.

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