QRA3HAK9 J.—KanapathipiUai v- The Queen
[Cotjbx of Criminal Appeal]
1954 Present: Gratlaen 3. (President), Weerasooriya J.and Sansonl J.KANAPATHIPILLAI, Appellant, and THE QUEEN, RespondentAppeal No. 63 of 1954, with Application No. 123S. C. 3—M. O. Batticaloa, 15,926
Evidence—Dog trained in criminal investigation—Its behaviour and reactions at scene■of crime—Relevancy as evidence—Evidence Ordinance, s. 11 (l>).
'Very convincing expert evidence should be placed before a Court which isinvited to conclado that the mere behaviour of a Police dog by itself rendersthe existence of any relevant fact in a criminal trial no “ highly probable orimprobable ” as. to»justify the application of Section 11(6) of the
ApPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
O.E. Chitty, with O. L. L. de Silva, J. C. Thurairatnam, A. S. Vani-gasooriyar and Daya Perera, for the accused appellant.
* Ananda Pereira, Crown Counsel, for the Attorney-General.
'Cur. adv. vult.
January 31, 1955. Gkatiaen J.—
This was an appeal against a conviction for murder. At the conclusionof the argument we quashed the conviction and ordered a fresh trial.The reasons for our decision must now be stated.
Hie case against the appellant was based on circumstantial evidence,and there was a large-body of relevant and admissible evidence which,if believed by the jury, would doubtless have been sufficient to supportthe conviction. The prosecution, however, was permitted to lead certainother items of evidence which should not have been admitted, andunfortunately the learned Commissioner of Assize specially directed thejury to take these matters into consideration as being of sufficient weight(if true) to strengthen the case against the appellant. I refer to theevidence of Mr. V. K. Kandiah, Sub-Inspector of Police, concerningthe behaviour and reactions of a dog named “ Tarzan ” at the sceneof .the crime on the following day.
“ Tarzan ”, described by Sub-Inspector Kandiah as a Police dog ”,had been accompanied to the scene by a Sub-Inspector who was statedto be “ a specially trained Police dog handler ” (whatever that may mean).According to the evidence, certain experiments were then carried out
GRATIAEN J.—Kanapathipillaiv. The Queen
to which “ Tarzan ” reacted by “ running about the locality ” and“ proceeding ” in certain directions. The precise significance of thesereactions was entirely a matter for speculation and conjecture because,in the very nature of things, “ Tarzan ” himself was not in a position toexplain them to the jury. Nor did any witness professing to be an expertinterpreter of the behaviour of dogs offer any theory (reliable or otherwise)for the-consideration of the Court. All that we do know is that, afterhaving sniffed a muzzle-loader (with which the murder is alleged to havebeen committed) “ Tarzan ” first ran up to a certain bush and laterhalted at the foot of a mango tree. At neither of these places was any-thing found which remotely incriminated the appellant.
Ijet us assume (although it was not proved at the trial) that “ Tarzan ”has been specially trained to assist Police officers in the detection of crime.We do not for a moment discount the usefulness of trained thoroughbreddogs in the field of criminal investigation. For instance, an importantclue may be discovered by an animal which would point to the identityof the offender ; but in such a case, it is the positive evidence brought tolight rather than the manner of its discovery that constitutes relevantand admissible evidence of the offender’s guilt. But we have not yetreached that state of knowledge which would enable us to place relianceon the apparent susjneions of an animal as to the identity of theperpetrator of a crime. At present, therefore, very Convincing expertevidence should be placed before a court which is invited to conclude that themere behaviour of a Police dog by itself renders the existence of anyrelevant fact in a criminal trial so “ highly probable or improbable ”as to justify the application of Section 11 (6) of the Evidence Ordinance.
In some countries, apparently, evidence of the tracking of a suspectedoffender by a well-trained and well-tested bloodhound of good breed liasbeen cautiously admitted by judges as furnishing some evidence of aman’s guilt. But, Wigmore on Evidence (Vol : 1 page-s G35—6 Section 177)warns us that in actual usage, this kind of evidence is “ apt to be highlymisleading to the danger of innocent men, and, amidst the popularexcitement attendant upon a murder and the' chase of the suspect, all thefacts upon which the trustworthiness of the inference rests are apt to bedistorted in the testimony. Moreover, the very limited nature of theinference possible is apt to be overestimated ”. These observationsare in complete accord with the rule of prudence (which is not strictlya proposition of law) that evidence ought not to be admitted if its receptionwould probably cause prejudice which is quite disproportionate to itstrue evidential value. In this country, it may perhaps be safer for thepresent to leave such evidence (even if it can be proved by expert testi-mony to possess some limited relevancy) completely out of considerationby jurors or even by a Judge sitting alone to exercise criminal jurisdiction.
The evidence of Sub-Inspector Kandiah regarding the behaviour andreactions of “ Tarzan ” should for several reasons have been ruled outat the trial, and we are far from satisfied that the jury’s verdict was notunduly influenced by these extraneous considerations.
Fre-sh trial ordered.
KANAPATHIPILLAI, Appellant, and THE QUEEN , Respondent
QRA3HAK9 J.—KanapathipiUai v- The Queen