(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABDEL RAHIM SHARAF EDDIN ABDALLA

& ANOTHER

AC-CP.621.1967

Principles

Evidence—police dog’s evidence—Not original evidence—it is hearsay and inadmissible

Obiter dictum: What a handler says about the conduct of a dog is not original evidence. It is hearsay and inadmissible—_Such evidence should be considered as part of the material action taken by the investigator in trying to find out the culprit and in narrowing the circle of his suspicion.

Judgment

Galal Ali Lutfi J. December 7,1968:—This case was well tried and ably argued by the President of the Major Court (Salah Shibieka— Province Judge).

The facts as believed by the court are as follows:

On September 7, 1967, at about 10 p.m. deceased El Sid El Fil, Governor of the Bank of Sudan was sitting on one of the seats (kanabas) near the bank of the river on the western side of the Palace. At his request P.W.3. Yousif Kor El Jack a labourer of no abode came and sat beside him. He gave him a cigarette and they were talking to each other when Acc. 1 Abdel Rahim Sharaf El Din Abdalla and Acc. 2 Ibrahim Miskeen came and stood in front of them. Acc. 1 asked deceased to give him some money. The deceased refused and offered to give them a cigarette each. Acc. 1 hit him with his fist and put his hand into his pocket in an attempt to take by force the money he asked for. The deceased stood up and caught Acc. 1 by his shirt and vest. The latter tried to free himself from the deceased’s grip but he failed. Deceased insisted on taking him to the police and Acc.1 refused to go with him. Then  Acc. 1 asked Acc. 2 to give him a knife and Acc. 2 took out of his pocket an unsheathed knife and gave it to him with which he stabbed the deceased in the upper left abdomen. Acc. 1 then delivered the knife to Acc. 2. But in spite of the fatal injury which deceased had suffered, he kept holding Acc.1. Acc. 1 asked Acc. 2 to return the knife to him to stab the deceased again in order to release himself. But Acc. 2 refused to do so and he went away. Acc. 1 took off his shirt and vest and left them in the hands of deceased. He ran towards the river and jumped into the water.

Deceased went to hospital at about 11 p.m. and he was operated on. Later on he developed chest complications and died from bronchopneumonia.

Acc. 1 was found guilty of murder under Sudan Penal Code, s. 251, and sentenced to death. Acc. 2 was found guilty of abetment of murder under Sudan Penal Code, s. 84/251, and was sentenced to imprisonment for life.

The finding in the case of both accused was established by sufficient evidence. The sentences passed are appropriate and in my view both finding and sentences must be confirmed.

Dog’s Evidence:

In his reasons for finding the learned President of the court commented on the evidence of the handler of the dog “Rumh” which helped in identifying Acc. 1 as follows:

“First accused admits that the vest and shirt (EXB) are his clothes and that he was wearing the same on September 7, 1967, at the scene of the offence (see pages 45—47 of the trial record). The vest and shirt are according to the analyst’s report stained with human blood (D.P.C.). The presumption of fact is that first accused was fighting closely -with deceased and that consequently his clothes were stained with deceased’s blood. We need not comment at length on the identification of first accused by a police dog (see evidence of P.W.10), because the other evidence against first accused is overwhelming. It suffices to state that in our opinion this piece of evidence is by analogy in the nature of an identification parade or evidence of trackers and that a police dog is used by the police as one of the methods of detection of crime. It is worth while mentioning that the police dog identified the first accused in an amazing way and without hesitation. Hence the sole value of such identification should be given serious consideration when the occasion arises in future.”

As the independent evidence against Acc. 1 was sufficient to warrant a conviction under Sudan Penal Code, s. 251, the court did not discuss the nature of evidence obtained by the help of the police dog. But in my

opinion it ought to have commented on the admissibility of such testimony. And whereas we have no laws or rules governing the matter in question, I think it is the duty of this court to express its opinion on the subject as guidance for the magistrates and the police in the future.

When trying to examine the legal sides of this matter the following questions pose themselves for an answer:

First:

Do we accept such testimony as admissible evidence on which a conviction can be obtained without corroboration? or

Do we accept it as admissible evidence on which no conviction can be obtained without corroboration by other evidence? And if it is so accepted, what sort of corroboration is needed to establish the offender’s guilt?

Secondly:

Do we accept such evidence as means of detection only? And if it is so accepted, do we allow it to be proved by the handler of the dog and consider his statement as admissible evidence? or

Do we reject his statement on the ground that it is hearsay and only allow the investigator to mention it together with other steps taken by him in the course of his investigation?

The training of police dogs was recently introduced into this country and this is the first time a case has been brought before this court where a police dog was used to identify an accused. Our laws are silent as to the admissibility and reliability of such testimony and so in dealing with this question we have to consult the laws of other countries especially in the common law jurisdiction and see how far we can apply it here.

On reading some of the decided cases dealing with this subject, I have discovered that the position is still unsettled in many countries. While some of them have accepted it as admissible evidence, others have rejected it, and each of them has his own arguments to offer. I shall state briefly the opinion of each group starting with those who have admitted it and in the end I shall try to find out what suits us here.

In 1960 the conduct of a tracker dog was accepted in Scotland as admissible evidence in the case of Patterson v. Nixon, 1960 S.C. (J) 49. The facts of this case as summarised in The Criminal Law Review (1960) p. 634, are as follows:

“The appellant was charged with breaking into a house with intent to steal therefrom. At his trial evidence of the conduct of a tracker dog was given by its handler and by police officers. The police also gave evidence of statements made to them by the appellant. Neither the appellant, nor anyone on his behalf, gave evidence. The

       court accepted the evidence of the dog handler and the police officers about the conduct of the tracker dog as reliable and sufficient in itself to warrant a conviction.

Held, refusing an appeal against conviction (1) that where evidence was led about the conduct of a tracker dog, its value and significance depended on the circumstances in each case; and (2) that the evidence of the conduct of the tracker dog together with the evidence of the statements made by the accused was sufficient to justify the conviction.”

In 1962 the matter was brought out again in the Canadian case of R. v. Haas (1962) 35 D.L.R. (2d) 1972. It is a case of breaking and entering. The Judge ruled that he was bound by the decision of the Court of Appeal in R. v. White (1926) 3 D.L.R. (1) 45, and so he rejected the testimony of the trainer and handler of the tracking dog as inadmissible evidence. The prosecution appealed asking for a new trial and the British Columbia Court of Appeal overruling R. v. White and approving the Scottish case Patterson v. Nixon held that the evidence was admissible. O’Halloran

J. A. who delivered the main judgment said:

“After listening to argument of counsel I am satisfied with respect that any objections to the testimony in question must relate to weight of that evidence and not to its admissibility.” (35 D.L.R. 2d, p. 172).

Since Haas case, this type of evidence has been considered in two cases in common law jurisdiction. The first case is R. V. Te Whiu v. Bucton (1964) N.Z.L.R. 748, which has taken place in New Zealand. In this case the evidence was held to be admissible, but two conditions were laid down on the form which this kind of evidence should take in future. The first condition is that the handler and dog should be qualified as experts and the handler should be shown to be well experienced in regard to the particular dog in question. The second condition is that the handler should not say “what the dog was thinking or intending” nor to translate what he observes. He could only give evidence as to the training of the particular dog or dogs generally. He must confine himself to what has happened.

The second case was before the Criminal Court of Appeal in Northern Ireland. It is the case of R. v. Montgomery and Others (1966) N.I. 120. A police constable had seen men stealing wire near a railway line. He went towards them but on observing him they ran away. A short time afterwards they were picked out by a police car on the road not far from the scene where they were seen stealing the wire. About an hour-and-a- half later a police tracker dog was taken to the place where they were first observed and the dog was able to follow the scent to the point where they were picked out by the police car. The other evidence to prove that the men had stolen the wire was inconclusive and they were convicted on the evidence of the dog’s behaviour.

From the above survey we notice that the evidence of the handler of tracker dogs was admitted in Scotland, Canada, New Zealand and Northern Ireland. But its admission was not without qualifications. It was not considered as ordinary evidence, and so though it was accepted, the court.s were very cautious in doing that.

In Vol.20  of The American Jurisprudence, p. 332, these qualifications and restrictions were clearly set out as follows:

“The uncertainty and conflict of opinion as to the reliability of bloodhound evidence and the feeling that juries are inclined to give it too much weight have led the courts, in jurisdictions adhering to the view that evidence may be introduced in criminal cases as to the trailing of the accused by dogs, to be rather strict in requiring a proper foundation to be laid before receiving such evidence. It should appear that the dogs in question were able at the time and under the circumstances, to follow the scent or track of a person. In the absence of preliminary proof as to their reliability and experience, evidence of their conduct in tracing a defendant should not be permitted.”

It goes on to say (at page 1078):

“Courts adhering to the view that bloodhound evidence is admissible concede that such evidence is to be accepted with caution and is not, under any circumstances, to be regarded as conclusive evidence of guilt. It is generally held that this class of evidence is cumulative or corroborative only. Such evidence is at best a circumstance to be considered by the jury in connection with all the other proof in the case, in determining the guilt or innocence of the accused. It is not conclusive evidence of guilt, and standing alone, is not sufficient to sustain a conviction; there must be other and human testimony to convict. Statements are frequently found in the cases, to the effect that bloodhound evidence is of little probative value and is not looked upon with favour. It also seems that a conviction resting in part upon bloodhound evidence cannot be supported where the other evidence tending to show guilt is fragmentary and unsubstantial.”

In England there are very judicial dicta on the subject. This form of evidence is not admissible in an English court. In the courts of South Africa it was also rejected. In some of the States it is not yet admitted. See I. Wigmore, Evidence (3rd ed.( 1940 p. 635. Different arguments and different reasons were given for its inadmissibility and rejection, but I will try to give a brief summary of that.

a. The principal objections to the use of such evidence are enumerated in Vol. 20 of The American Jurisprudence, p. 332, as follows:

"(1)That the variable factors involved, such as the training and experience of the dogs, the manner in which they are handled, the circumstances surrounding the trailing, etc. as well as the inability of the court to check up on the dogs and tell why they acted as they did, make such evidence too uncertain and unreliable to warrant its admission in the trial of a criminal case; (2) that the jury due to the superstitious awe with which people regard the actions of animals, are likely to give more weight to such evidence than it is entitled to, particularly where it is introduced in connection with some heinous crime about which there has been much public indignation and excitement; (3) that the life and liberty of the free citizen ought not to be put in jeopardy on the testimony of dogs; (4) that the defendant cannot cross-examine the dogs; (5) that the evidence is hearsay; and (6) that the defendant is deprived of his constitutional right of confronting the witnesses against him.”

b. After citing a large number of American cases in which bloodhound testimony was admitted I. Wigmore, Evidence (3rd ed. 1940), p. 635, expressed grave doubts as to its value and reliability. He states:

“Nevertheless in actual usage this evidence is apt to be highly misleading, to the danger of innocent men. Amidst the popular excite ment attendant upon a murder and the chase of a suspect, all the facts upon which the trustworthiness of the inference rests are apt to be distorted in the tesimony. Moreover, the very limited nature of the inference possible is apt to be overestimated—a consequence dangerous when the jurors are moved by local prejudice

c. F. H. Hudson in his article entitled “What the Dog Said,” 82 L.Q.R. (1966) p. 311, criticised the admission of such evidence and expressed his doubts as to its reliability. He wrote:

“The danger in relying on canine evidence is this. First, though we know something of the thought processes of dogs we do not know all. Secondly a dog has no way of indicating that his actions on a particular occasion are the result of deviations from the normal. Human beings can indicate that their statements are ironical or by way of jest, or that a statement is no more than a hypothesis. A dog has no way of qualifying his evidence. He cannot tell us where he is acting on a balance of probabilities or on a preponderance of prob abilities, still less whether he is merely playing a joke—and dogs

may well have a sense of fun. Suppose a dog following a human scent found that scent crossed by the infinitel more alluring scent of a hare, he cannot let his guardian know that he has decided to abandon his duty for the pleasure of a chase…

A Witness who testified in court that he had tracked a man by footprints or bloodstains, or even by sight at a distance, would expect to have the reliability of his evidence severely tested in cross- examination, but there is no way in which the weaknesses of the dog’s evidence can be probed.”

He also criticised the court in Montgomery in admitting the testimony of the tracker dog on the force of the argument of the counsel for the Crown who stated that it could be likened to the type of evidence given by scientific experts e.g. in describing chemical reactions. He said:

"…This analogy is not sound. The behaviour of the chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought processes similar to the thought processes of human beings, and wherever you have thought processes there is always the risk of error, deception or even self-deception. That dogs have memories and also have emotional preferences has long been recognized…"

d. Even in those countries where it is admitted the courts were not certain as to the very crucial points involved, e.g. the question whether different people have different scents. Davy J. A. in Haas case cited the following passage from Patterson v. Nixon which reads:

“It was said and said with some force, that there was nothing to show that different people have different scents. There is certainly no evidence to that effect, but I suppose it is common knowledge that people do have different scents and that dogs are able to dis criminate between one person’s scent and that of another.”

A. H. Hudson in his article entitled “Bloodhound Testimony Again “, The Criminal Law Review (1967) p. 110, when commenting on this passage said:

“This does seem to touch on, and perhaps to gloss over, the fundamental difficulty that the uniqueness of scent appears to be by no means clearly established, as for instance, that of fingerprints. Again the reliability and aptitude of dogs for this sort of work varies. In both Patterson v. Nixon and Montgomery the handlers, whilst testifying to the general ability of their dogs, were prepared to admit that they could make mistakes.”

e. Curran L. J. who delivered the judgment of the court in Montgomery cited with approval a passage from Patterson v. Nixon which makes the legal position of this type of evidence uncertain. The passage reads:

"I do not think that any general rule can be laid down as to such evidence. Its value and significance is bound to be a question of circumstances in each particular case, and the evidence given as to what the dog did, and as to its skill and reliability, has to be weighed just like any other evidence.”

f. The majority in R. v. White (1926) 3 D.L.R. 1, has rejected this type of evidence on the ground that it infringed the hearsay rule and that there is no opportunity to cross-examine a dog. Macdonald C. J. A. said that this evidence is similar to that of the Indians who were known to possess wonderful power and skill in tracking; and if, after an Indian had tracked down a criminal, he died, his evidence would not be accepted because he could not be cross-examined.

These are briefly some of the arguments concerning the admissibility and inadmissibility of the testimony of dogs. From the reasons put forward the uncertainty and unreliability of such evidence can be clearly seen. Even in those countries where it was admitted the judges have expressed their opinion that it should be handled with caution.

Courts are not yet able to check up the behaviour and conduct of dogs. They do not possess the means to explain why a dog acted in a certain manner. What a trainer says about its behaviour is usually based on mere guessing and deduction and what depends on guessing and deduction may always be misleading.

The cross-examination of a witness is very essential to elicit his means of knowledge, reasons for recollection or belief; opportunities of observation and any other circumstances showing any errors, omissions, inconsistencies and improbabilities in what he says. A dog cannot be cross-examined and so what is said by its handler will be accepted without questioning. By accepting the testimony of the handler of a dog, the accused will be deprived of his right to cross-examine the actual witness whose condemning conduct is translated to court and he will also be deprived of the right of confronting the witnesses against him.

What a handler says about the conduct of a dog is not original evidence. It is hearsay evidence. The dog which follows the scent and tracks down the accused will not be produced before court because it cannot give a statement on oath as to what it has observed. It is true that there are certain exceptions to the rule of hearsay but this type of evidence is not one of them. It is therefore inadmissible. The learned Presiding Magistrate stated in his reasons for finding that this kind of evidence is in the nature of an identification parade or evidence of a tracker. In my opinion this analogy may be correct in so far as the identification parade is concerned, where the person who made the identification is not brought before court. It is usually proved by the investigator who made the parade. But in the case of the evidence of a tracker the analogy is not correct, because a tracker is usually brought before court. The evidence he gives is original evidence and he will be cross-examined by the accused. In the course of such cross-examination his disinterestedness, integrity and veracity will be thoroughly checked.

This evidence is not only unreliable and uncertain but it is inadmissible and so there is no question of weight here.

The protection of the life and liberty of an individual is one of the fundamental duties of the State. It is a constitutional right which is specifically provided for. A citizen therefore must not be deprived of this right by such frail, uncertain and unreliable evidence of a dog.

Till now as expressed in the cases cited above, the difference of scents of different people is not yet scientifically established. The courts which accepted the evidence of a tracker dog have just taken judicial notice of such difference as being a matter of common knowledge. For this reason dogs may make mistakes with regard to the different scents as mentioned by the handlers in the case of R. v. Montgomery and Others (1966) N.I. 120 and Patterson v. Nixon, 1960 S.C. (J) 49.

   It is clear from the cases where this matter was considered that no hard and fast rules could be made for the admission of such evidence. In spite of the conditions laid down regarding the qualifications of the dog and its handler, the matter is still left very much at large. It is said that the value and significance of such evidence depend on the circum stances of each case, which shows that the legal position is really uncertain.

I do not agree with the opinion that a dog can be likened to an instrument; because they are not similar to each other in at least the question which we are discussing here. An instrument has no senses and has no emotions and by mechanical means it produces certain definite results. But a dog is an animal with senses and emotions. It has also thought processes similar to that of a human being. These senses, emotions and thought processes vary according to circumstances and conditions, and consequently the behaviour of the dog varies with these changes. This is why we cannot say with certainty that a result reached by a dog is the only one which can be arrived at, because the same dog or a different dog may arrive at different results in one particular case.

For these reasons, I am of opinion that this type of testimony must not be accepted as admissible evidence. It should be considered as part of the material action taken by the investigator in the course of his investigation in trying to find out the culprit and in narrowing the circle of his suspicion. There is no legal objection that the court listens to the investigator in showing the results reached by him in this connection and how he used the police dog and its handler; but never allow the handler to come before court and give evidence which is known beforehand to be inadmissible. If the dog’s testimony is the only piece of evidence available to connect the accused with the crime, he must be acquitted.

The police of course will not be prevented from using their dogs to help them in their investigations, but they must never be allowed to use such animals’ behaviour as part of their evidence in court.

Hashim Mohamed Abul Gasim J. December 7, 1968 : —I agree.

S. M. A. Attig J. December 16, 1968 :—I agree.

ORDER: Galal Ali Lutfi J. December 17, 1968:—We confirm both finding and sentences on both accused.