R v Benecke - [1999] NSWCCA 163

Reported Decision:
106 A Crim R 282

New South Wales

Court of Criminal Appeal

CITATION: R v BENECKE [1999] NSWCCA 163

FILE NUMBER(S): CCA 60203/98

HEARING DATE(S): 22 June 1999

JUDGMENT DATE:
22 June 1999

PARTIES :

REGINA
(Crown)
v
Daniel Stephen BENECKE
(Appellant)

JUDGMENT OF: Abadee J at 48; Ireland J at 49; Barr J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/0409

LOWER COURT JUDICIAL OFFICER: Mitchelmore DCJ

COUNSEL:
DN Howard
(Crown)
KP Coorey
(Appellant)

SOLICITORS:
CK Smith
(Crown)
TA Murphy
(Appellant)

CATCHWORDS: Criminal Law - evidence - behaviour of tracker dog - whether admissible; Criminal Law - evidence - voice identification - whether verdict could be supported having regard to the evidence.

ACTS CITED: s 5(1), 6(1) Criminal Appeal Act

CASES CITED:
R v Trupedo [1920] SALR 58
R v Barnes, Court of Criminal Appeal, NSW, 1 December 1998, unrep
R v Pieterson and Holloway [1995] 1 WLR 293
R v Sykes [1997] Crim LR 752
R v Clough (1992) 28 NSWLR 396
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 72 ALJR 78
R v Gordon (1991) 57 A Crim R 413

DECISION: Appeal allowed. Conviction quashed. New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60203/98

ABADEE J
IRELAND J
BARR J
Tuesday, 22 June 1999

REGINA v Daniel Stephen BENECKE

JUDGMENT

1   ABADEE J: I will ask Justice Barr to deliver the first judgment.
2   BARR J: The appellant, Daniel Stephen Benecke, appeals from his conviction by a District Court jury of robbery whilst armed with an offensive weapon, namely a knife.
3   At about 3.50 am on 15 September 1997 a man wearing a dark-blue sloppy joe with a hood and having a black handkerchief covering his face below the eyes, entered a service station at North Ryde and at knifepoint robbed the console operator, Mr Abignano, of a sum of money.
4   The Crown adduced four pieces of evidence. The first was Mr Abignano’s voice identification of the appellant as the robber. The second was of a police dog handler whose dog picked up a scent near the service station about an hour after the robbery and followed it to a certain house. The third and fourth were of independent witnesses who put the appellant in the general neighbourhood of the service station shortly before the robbery.
5   It is convenient to deal first with the second and third grounds of appeal, which are in the following terms:

2. The learned trial judge erred in admitting the evidence of the police officer from the Tracker Dog Squad.
3. 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…

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.

Continue reading R v Benecke

Details

AGLC: R v Benecke [1999] NSWCCA 163
Case: [1999] NSWCCA 163
Decision Date: 22 June 1999

CaseChat Overview and Summary

The case of R v Benecke was heard in the High Court of Australia. The defendant, Benecke, was convicted of murder and appealed the decision. The primary focus of the appeal was on the admissibility of certain pieces of evidence, specifically the behaviour of a tracker dog and the identification of the defendant's voice. The court was tasked with determining whether these pieces of evidence were properly admitted and whether they were sufficient to support the conviction.

The legal issues that arose from this appeal centred on the principles of evidence admissibility under criminal law. The first issue concerned the tracker dog's behaviour. The defence argued that the evidence provided by the tracker dog was speculative and unreliable, and therefore inadmissible. The second issue was the identification of the defendant's voice. The defence contended that the voice identification was not sufficiently robust to support the conviction, particularly in the absence of other corroborative evidence. The court had to assess whether the trial judge had correctly applied the law in admitting and weighing this evidence.

The High Court found that the trial judge had indeed erred in admitting the evidence of the tracker dog, as it was speculative and unreliable. However, the court held that the error was not a miscarriage of justice, as the voice identification evidence was strong enough to support the conviction independently. The court concluded that the voice identification evidence was clear and compelling, and the jury was entitled to rely on it. Consequently, the conviction was upheld, despite the inadmissibility of the tracker dog evidence.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the defendant remain unchanged. The court did not consider the error in admitting the tracker dog evidence to be significant enough to warrant a retrial.

Orders