[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pieterson, R. v [1994] EWCA Crim 5 (08 November 1994) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1994/5.html Cite as: [1994] EWCA Crim 5

[New search] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		8 November 1994

THE LORD CHIEF JUSTICE:

On 3 November 1993, in the Crown Court at Oxford, the two appellants were convicted of robbery. Sentence was postponed for the preparation of reports. On 26 November the appellant, Pieterson, was sentenced to five years imprisonment and the appellant, MH, to five years detention in a Young Offender Institution. They now appeal against conviction by leave of the single judge.

The robbery took place shortly before 11.30 p.m. on Monday 31 May 1993 at the premises of the British Legion Club at Marston, Oxford. There were two members of the staff on duty at the time, Miss Platt and Mr Nutt. They were cashing up, when three men entered, one armed with a gun and two with sticks. The men demanded money, saying that if the staff handed it over, they would not be hurt. Miss Platt handed over the keys to the safe, from which the men took over £5,800. That was put into a dark blue holdall with a shoulder strap. They also put into the holdall a 1.5 litre bottle of Hennessey brandy. It was the sort of bottle used in bars where such bottles are inverted and have optics in their necks so as to exert portion control. The label therefore was upside down on the bottle. Mr Nutt said that money had also been taken from a glass on the shelf. The description of the men by the two members of staff was, to all intents and purposes, consistent. They wore dark clothing and scarves or balaclavas over their faces. Miss Platt said that two were about five feet eight inches and the third was about six feet; all were of medium build. Mr Nutt said that two were five feet eight inches to five feet nine inches and the third was a couple of inches taller; they were slim and in their mid-twenties.

When the robbers left, they locked Mr Nutt and Miss Platt in the walkway, but both managed to escape after about five minutes.

They raised the alarm. The police attended swiftly. One of the officers was Woman Police Constable Whittaker, who was a dog handler. The dog she handled was called Ben. Her statement was ultimately read to the jury. She conducted a search of the surrounding area immediately after arrival. The dog picked up a track along an alleyway and pursued it to the point where a strap was found. The officer took possession of the strap, which was shown to Miss Platt within about a quarter of an hour of the robbery having taken place. In her evidence before the jury, Miss Platt said: "Subsequently, the police showed me a strap to a holdall. recognised the strap", which was then produced. "That was the one used with the bag. It had been connected to the bag. It was shown to me about 15 minutes after the police arrived."

The glass which had contained money had been handled by the robbers. It was tested for fingerprints. Four were found; they were not those of either appellant or those of the bar staff.

Within three days, on Thursday 3 June, police officers went to the addresses of the two appellants. Pieterson lived in Cowley, and MH with his grandmother, in Marston. At Pieterson's address the police found a blue holdall with MH's name on it.

The holdall contained rings, which were clearly designed to have a shoulder strap attached. There was no shoulder strap. The shoulder strap which had been found near the British Legion Club matched the material forming the holdall. The holdall was shown to Miss Plat and she said that it looked similar to the one carried by the robbers.

At Mr Pieterson's address the holdall was under a table. Adjacent to it was a large optic bottle of Hennessey brandy, identical to the bottle of brandy stolen from the club with the upside-down label. Miss Platt looked at that and said it was exactly similar to the one taken from the club. Finally, at Pieterson's flat, there was found the sum of £100 and a pair of expensive new shoes. He was unemployed at the time. Reliance was placed upon the money and the expensive shoes being found in his possession, although it was said that his mother had given him some money to buy the shoes.

At MH's address a larger sum was found, £605, £245 in a wallet and £360 hidden under the mattress. He too was unemployed.

Also found at his premises were three keys which fitted the doors of the British Legion Club. His grandmother, Mrs MH, with whom he lived, was called as a prosecution witness. She said that the keys which were found, which fitted the door of the club, had been in the house for some 18 months or more. Consequently, they were not relied on as being connected with the robbery.

Both the appellants were arrested. Pieterson was interviewed. He denied being involved in the robbery. He said that the holdall and the bottle of brandy had been brought to his flat by MH on the Monday or Tuesday and that they had drunk some of the brandy together. The holdall could not have been brought on the Monday, if it was the holdall used in the robbery, because the robbery had not then taken place. Of the £100, he said that that was his girlfriend (Rebecca's) rent money. She was called on his behalf to support that. He said that his mother had given him money for the new shoes.

MH, when he was interviewed, said nothing. Neither of the appellants gave evidence at their trial. Pieterson's girlfriend, Rebecca, was called. She said that she had a part-time job and that both she and the appellant were on income support. She remembered the day in question. She had been at home all evening and the appellant, Pieterson, had gone to bed at about 1.30 a.m. Two friends were there as well, from midday until 1.00 a.m. Of all those, only she was called.

MH was of previous good character. Pieterson had previous convictions. MH's grandmother said that MH had previously been employed at the British Legion Club. He had been in good, well-paid employment until May of the relevant year. That was relied upon by the defence as some explanation for the amount of money found at his premises. She described what had happened on the evening in question. According to her, MH had gone out at about 7.30 a.m. and had not returned until the following morning, when he claimed he had been to London to see a friend called Joe Tan. Joe Tan was called. He said that MH had been to see him on 31 May. He had met him off the bus. They had been to the pub together and had spent most of the evening in Leicester Square.

A number of submissions were made to the trial judge. The appeals of the two appellants are substantially based upon the contention that the learned judge was wrong in his rulings in each case. It is convenient to deal with matters in the order in which they arose at the trial.

We deal, first, with a ground of appeal on behalf of Pieterson, which relates to the evidence about the tracker dog, Ben.

The learned trial judge heard a submission from Mr Pardoe, on behalf of the appellant, that the evidence regarding the tracker dog following a trail and arriving at the strap in the alleyway should not be admitted. It was submitted that evidence with regard to what a tracker dog had done was analogous to hearsay evidence. That was because there was only the handler's evidence of the actions or reactions of the dog, which could not be cross-examined. Alternatively, it was submitted that evidence with regard to such a tracker dog was unreliable; that a dog has a will of its own; that it may act mischievously, or, even without that, it may act in a way which was not consistent with the Pavlovian reaction sought to be induced in the dog by its training.

There is no authority hitherto in English law as to the admissibility of evidence concerning a tracker dog. But Mr Pardoe, for whose industry we are grateful, drew the learned judge's attention, and has drawn our attention, to a number of authorities from others jurisdictions. He relies upon Rex v Trupedo (1920) App Div 58 (S Africa), where it was held that the evidence concerning the activity of a tracker dog was not admissible. The judgment of Innes CJ contains this statement:

"We have no scientific or accurate knowledge as to the faculty by which dogs of certain breeds are said to be able to follow the scent of one human being, rejecting the scent of all others....

.... there is too much uncertainty as to the constancy of his behaviour and as to the extent of the factor of error involved to justify us in drawing legal inferences therefrom."

That was in 1920. It may be that the sum total of knowledge about tracker dogs has advanced somewhat since then. However, Mr Pardoe assures us that he has not been able to find any South African case which overrules Trupedo.

He then referred us to a British Columbian case, Rex v White (1926) 5 DLR 2, where again the evidence regarding a tracker dog was held inadmissible for similar reasons. However, that case was overruled by the Court of Appeal of British Columbia in R v Haas 35 DLR 172, a decision of a court of five judges. The headnote

reads:

"Once the qualifications of a tracking dog to follow a scent and that of his trainer to handle the dog have been established (in the instant case it was admitted at trial that both the dog and its handler were as good as they could be) evidence of tracking the accused by scent from the scene of a crime by such a dog is admissible on the trial of the accused and the only question concerns the weight to be given to such evidence."

We were also referred to decisions of courts in New Zealand. In R v Lindsay [1970] NZLR 1002, the court held that evidence concerning the activities of a tracker dog were admissible, providing that there were suitable safeguards. At page 1005, Turner

J said:

".... once the dog-handler has properly qualified himself and his dog (and this should be done with scrupulous thoroughness before the evidence can be thought acceptable), his evidence as to what the dog did in following a scent is material and relevant evidence, much more likely to lead to a true than to an erroneous conclusion, though, as we have said, some limitations and safeguards should be prescribed. We are of opinion that the Chief Justice rightly admitted it in the present case.

The weight of the evidence should always be carefully examined by the trial judge in his direction to the jury."

That case was followed by R v McCartney [1976] 1 NZLR 472. At page 478, McCarthy P said:

"Although we appreciate that Lindsay acknowledges that the extent to which a judge must deal with the weight of the tracker dog evidence in each particular case must vary according to the extent that the reliability of the dog's tracking ability is supported by other evidence, nevertheless we cannot interpret the judgment otherwise than as laying down a rule that in every case where such evidence is relied on by the Crown the judge must at least draw the attention of the jury to (a) the nature of the conclusion to which they are asked to come on the tracker dog evidence and (b) the risks of arriving at that conclusion 'from evidentiary material which has yet to pass the acid test of cross-examination'."

Moving further round the globe, in Northern Ireland, evidence of tracking by a dog has been held admissible in R v Montgomery (1966) NILR 120. In Maryland the holding was similar in Roberts v State 469 Atlantic Reporter 2nd Series 442.

In the present case the learned judge held that providing the proper foundation was laid for the reliability of the dog in question to be able to follow a scent by reason of its training and experience, the evidence should be admitted. As a matter of principle, we agree with the ruling of the trial judge and we follow the approach which has been adopted in the cases already cited from jurisdictions other than that of South Africa. In our judgment, if a dog handler can establish that a dog has been properly trained and that over a period of time the dog's reactions indicate that it is a reliable pointer to the existence of a scent from a particular individual, then that evidence should properly be admitted.

However, it is important to emphasise two safeguards. First, the proper foundation must be laid by detailed evidence establishing the reliability of the dog in question. Secondly, the learned judge must, in giving his directions to the jury, alert them to the care that they need to take and to look with circumspection at the evidence of tracker dogs, having regard to the fact that the dog may not always be reliable and cannot be cross-examined.

In the present case Mr Pardoe has made two submissions as to what happened at the trial, apart from the general principle, which he challenged, of the admissibility of tracker dog evidence. First, he submits that the learned judge gave an inadequate warning to the jury. We do not agree with that. We consider that, although the learned judge dealt with the matter succinctly, he gave a sufficient warning to the jury as to the care they were to take in examining the evidence of the tracker dog, in a paragraph at page 45 B-D of the transcript, which we need not lengthen this judgment by quoting.

The other point, however, taken by Mr Pardoe, concerns the evidence establishing the dog's 'credentials'. The learned judge, when he gave his ruling on the point of principle, said that he would require to have, from the prosecution, evidence to show that the dog was of sufficient reliability for its activities to be led in evidence. The prosecution produced a supplementary statement, which is only a few lines long, from the dog handler. The question which we have had to consider is whether that statement is a sufficient account of the training and reliability of the dog, Ben, to have rendered the evidence concerning the dog admissible before the jury. The statement reads:

"I have been a dog handler in the Thames Valley Police since June 1985. I have worked with police dog, Ben, for 18 months following the departure of Ben's previous handler and the death of my previous police dog. Ben is a German Shepherd and will be eight years old in December 1993. He commenced his training at one year old in the Thames Valley Police Force and had six-and-a-half years experience of the work required from him in May 1993."

In our judgment, that statement is insufficient. It recites the length of time that the dog has "been on the books". It does not give any account of the nature of the training that the dog had been given, or of the reliability of the dog on any tests that have been carried out in controlled conditions to see whether the training has produced a reliable response. Accordingly, bearing in mind the scrupulous care which has been said, in the cases we have cited, to be necessary before such evidence can properly be adduced, we do not think that the foundation was properly laid in the present case. For that reason we consider this evidence ought not to have been before the jury.

Was it a material irregularity? In our view, it was a peripheral matter in the present case. The evidence concerning the dog sought to establish that the strap which was found only a matter of yards away from the scene of the crime, was a strap from the bag used at the crime. That was a matter which was already proved in evidence by the witness, Miss Platt, who was shown the strap within a quarter of an hour of the occurrence and who did not merely say, "that looks like or is similar to the strap I saw"; she positively identified it as being the strap. It may be that her evidence on that was open to challenge in cross-examination, but it was positive evidence identifying the strap as having been involved, with its bag, in the robbery. Accordingly, the dog merely supported that, and was not crucial to that issue. We do not consider that the lack of the proper foundation laid for the evidence and its admission without it amounted to a material irregularity. If it did, we would consider that, looking at the rest of the evidence, this would be a case in which to apply the proviso. Accordingly, that ground of appeal fails. We turn to the next point which was raised by both counsel. At the end of the prosecution case submissions were made to the learned judge that the evidence was too tenuous to be allowed to go to the jury. On behalf of Mr Pieterson, it was submitted that the evidence relied upon by the Crown consisted only of the finding at Pieterson's premises of the holdall, the optic bottle and the £100 within three days of the robbery. Mr Pardoe submits that that evidence was insufficient. Furthermore, he submits that if it was sufficient to support anything at all, it was only sufficient to support a charge of handling and not a charge of robbery. There was no handling charge laid by the Crown. The prosecution had nailed their colours to the mast; it was robbery or nothing so far as the appellants were concerned.

The Crown relied upon the well-known doctrine of recent possession. Within three days of the robbery, there were to be found at the home of Mr Pieterson, not merely the holdall, not merely an optic bottle identical to the one stolen, but those two items side by side under a table as a joint assembly of items which, taken together, were more significant than they would have been, even if both had been present, but apart. Furthermore, there was the subsidiary matter of £100 in the possession of a man who was unemployed. We consider that the learned judge was right to hold that there was sufficient evidence for the jury to consider. If the jury took the view, as was open to them, that whilst the evidence did implicate the appellant in some respect, it did not convince them that he was the robber, then the prosecution, by having failed to lay a fall-back charge of handling, would be faced with a verdict of not guilty. We do not consider the learned judge was in error in allowing the case, so far as Mr Pieterson was concerned, to go to the jury, on that evidence.

On behalf of MH, Mr Morley has submitted that the evidence was inadequate to justify his case being left to the jury. It will be recalled that at his home, where he lived with his grandmother, more than £600 was found, divided between a wallet and under a mattress. He also was unemployed. It is true that his grandmother had given evidence for the Crown that he had been in work until recently. It is also true, as Mr Morley pointed out, that the sum in question did not relate in any significant way to the amount of money which had been stolen from the club. Nevertheless, that was a factor relied upon by the Crown. More significantly, there was the finding of the bag at Pieterson's address with Mr MH's name on it. Mr Morley conceded that there may well have been evidence sufficient for the jury to infer that that bag was the bag which had been used in the robbery; but the mere finding of it at Mr Pieterson's premises with Mr MH's name on it was insufficient to raise a prima facie case that Mr MH was himself involved.

We accept that the evidence in this case was sparse. But we do not consider that the learned judge was bound on that evidence to rule that the jury could not draw a proper inference of guilt, should they feel that that was proper on all the evidence they had heard.

They had also heard evidence that the appellant, MH, had previously worked at the premises which were the scene of the robbery; that he had been absent from his home overnight on the night in question. Although his grandmother cleared him so far as the keys were concerned, she expressed surprise at the finding of the amount of money which was present. In all the circumstances, we take the view that the learned judge was justified in allowing the case in respect of Mr MH to go to the jury, as in the case of Pieterson. Criticism is made, on behalf of Mr MH, of the conduct of the case by the prosecution. The case was opened to the jury by reference to the evidence that was expected to be called, including that of the appellant, MH's, grandmother. It was suggested that the grandmother would confirm that the keys, which had properly been at the house because another member of the family had previously worked at the club, had been returned, and therefore there was no ground for keys belonging to the club being at the house. When the grandmother gave evidence, she said that the keys in question had been in the house for 18 months. Therefore, that contention by the Crown was no longer able to be pursued.

Mrs MH, the grandmother, had given a second statement shortly before the trial began, in which she had expressed a disinclination to give evidence against her grandson. She had already indicated that the evidence she had originally given about the keys was not the whole story. Mr Morley submits that, although the prosecution had knowledge of that second statement, they nevertheless chose to open the grandmother's evidence "very high" and that that was prejudicial to Mr MH. The jury may have thought that what prosecuting counsel said in opening was what Mrs MH truly should have said and that she changed her story to help her grandson when she attended court.

In our experience, when prosecution counsel opens a case high and the evidence does not support it, that is usually a matter which is to the advantage of the defence. It enables the defence to indicate that the prosecution evidence has failed to come up to that which the jury were promised. We do not consider that the way in which the case was opened affords the appellant, MH, any valid ground of appeal, although we think it was unwise of the prosecution, with the knowledge they had at the commencement of the case, to have opened it in the way they did.

We turn to the final ground of appeal, which was raised for different reasons by each defence counsel. When it emerged that MH was not going to give evidence, an application was made to the learned judge to abort the trial, so as to allow fresh separate trials of each of the appellants. On behalf of Mr Pieterson, the application was made on the basis that Mr Pardoe had been led to believe that in all probability MH would give evidence. If he had given evidence, Mr Pardoe hoped that he would support what was said in the interview with Pieterson, namely that he, MH, had brought the bag and the brandy bottle to Pieterson's house a day or so before the police arrived. Because MH had not given that evidence, Mr Pieterson was disadvantaged. Mr Pardoe went so far as to say to this court that Mr MH was "the most vital witness in the world" so far as Pieterson's case was concerned, and that the inability of Pieterson to call MH, the co-defendant, when MH had been disinclined to give evidence on his own behalf, was so unfair that, notwithstanding the stage which had been reached in the trial, the judge ought to have discharged the jury and allowed separate trials afresh. Mr Pardoe accepts that the general rule is that where there is alleged to have been a joint enterprise, not only is it proper to join those alleged to have been involved in one indictment, but it is also the general rule that they should be tried together. The reason for that is not simply for the saving of time and the convenience of the administration, although that is a consideration, it is also so as to avoid the unsatisfactory possibility of different verdicts being given by different juries. If a single transaction is said to have been one in which a number of men have participated, it is desirable that one jury should hear the whole of the matter and give its verdicts as to who was involved and, when the charges give scope, the extent of their involvement. If authority is needed for those propositions, it is to be found in cases of some antiquity: R v Gibbins and Proctor (1918) Cr App R 134 and R v Grondkowski and Malinowski 31 Cr App R 116.

However, in some circumstances, where the interests of justice require it, the judge has a discretion to order separate trials. Normally, such an application for separate trials would be made at the beginning of the case because it would be evident at that stage that there might be evidence prejudicial to one defendant, but inadmissible as against him, which was admissible against another defendant. In the present case, no application for separate trials was made at the start of the case, although Mr Pardoe did, as a matter of courtesy, indicate to the learned judge that there might come a time and there might develop a situation in which he might require to make such an application. The judge, however, was faced with having to make a decision at the stage of the case where all the prosecution evidence had been given, where Mr Pieterson had declined to give evidence but had called a witness on his own behalf, and where Mr MH declined to give evidence.

The interests of justice include not only the interests of a particular defendant, but also the interest which the public has in seeing criminal justice properly administered. We have considered Mr Pardoe's submission that, because of the absence of Mr MH from the witness box, the trial should have been aborted so that the appellant, Pieterson, could have a chance of having MH called on his behalf on a later occasion. There is no guarantee that he would have been able to have Mr MH give evidence on his behalf on a future occasion. Whether Mr MH would have wanted to give evidence was speculative. He had indicated he did not wish to give evidence in his trial. It is true that in a trial only of Pieterson there might have been other considerations which might have persuaded him that he should give evidence. Even if he had been called to give evidence, willingly or by compulsion, there is no indication that he would necessarily have supported what Pieterson said in his interviews. We consider that the position was entirely speculative at the stage when the learned judge had to rule. It is not an unfamiliar situation that, in the middle of a trial, one defendant would prefer to wipe the slate clean and start all over again on a different basis. We do not consider in the present case that the learned judge's exercise of his discretion was anything other than judicial or proper. Accordingly, although Mr Pardoe has emphasised that it was a short trial, and that aborting it and ordering fresh trials would not have involved great expenditure and court time, we do not consider that the learned judge is shown to have exercised his discretion wrongly, so far as the application was concerned.

It was backed up by MH. His counsel complained of the way in which the learned judge handled the difficult problem of character, where one defendant has previous convictions and the other defendant does not. The position in the present case was that Pieterson did have previous convictions and MH did not. It was before the jury that, so far as MH was concerned, he had no previous convictions. The learned judge, as was required of him by the case of Vye (1993) 97 134, gave the jury a direction as to character, so far as MH was concerned, which was in accordance with the law. He indicated to the jury that good character was a matter they could take into account in two respects: first, on credibility (though there was not much credibility in issue so far as MH was concerned, because he had not given evidence and had said practically nothing to the police); secondly, on propensity, because if a defendant has no previous convictions, the jury are entitled to consider whether a man who has led a conviction-free life up to the trial is likely to have gone astray on this occasion.

There was drawn up a document which referred to MH's age and to the fact that he had no previous convictions. That was not put before the jury, although admissions with regard to Pieterson were put before the jury. Mr Morley complains that that was unfair and that the document showing that MH had no previous convictions should have been put before the jury. The judge's reason for not doing so is clear. He was having to steer a middle course between being fair to MH and giving him the benefit of his good character, and not "rubbing it in" with regard to Pieterson, who did not have a good character, which was a matter the jury might have inferred, had he been too insistent about MH's good character. Therefore, he did not think it right to have constantly before the jury, in written form, the fact that MH had no previous convictions.

Mr Morley submits that if that was the situation, then MH was at a disadvantage in being tried jointly with Pieterson and that the learned judge ought, therefore, in regard to the matter of character, as well as the matter of MH not giving evidence, to have ordered the trial to be aborted and for there to be separate trials, when the problems would not have arisen. We are not persuaded by that argument. We think the judge, in a difficult situation and one which was contemplated in Vye, did the best he could in the circumstances to be fair to both appellants.

These grounds of appeal fail and the appeals must be dismissed.