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

REGINA (Crown)

PARTIES : 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

DN Howard (Crown) COUNSEL : KP Coorey (Appellant) CK Smith (Crown) SOLICITORS : 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 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 CASES CITED: 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: