Cook v Jursik - [1994] QCA 221

IN THE COURT OF APPEAL [1994] QCA 221

SUPREME COURT OF QUEENSLAND
C.A. No. 124 of 1994

Brisbane

[Cook v. Jursik]

BETWEEN:

S. COOK
v.

PETER CHRISTOPHER JURSIK
Appellant

Fitzgerald P.

McPherson JA.

Demack J.

Judgment delivered 21/06/94

Judgment of the Court

APPEAL ALLOWED. CONVICTIONS QUASHED.

CATCHWORDS: CRIMINAL LAW - identification - possession and supply of a dangerous drug - difficulties with in-court identification - reliance upon identification by undercover police officer who met the appellant only once 10 months previously - whether evidence of identification so attendant with risk as to make convictions unsafe and unsatisfactory

Counsel:Mr. T. Rafter for the appellant

Mr. P. Rutledge for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:17/06/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/06/94

This is an appeal by the appellant against his conviction in the Magistrates Court at Southport on 3 March 1994 on two counts, one of supply and one of possession of a dangerous drug, cannabis sativa, on 4 May 1993. The appellant has also applied for leave to appeal against the sentence imposed, a fine of $2,000.00 but, in view of the decision which has been reached on his appeal against conviction, that application does not need to be considered.
     The only evidence which implicated the appellant in the offences was that of an undercover police agent who gave evidence that, on the night of Tuesday, 4 May, 1993, he purchased a comparatively small quantity of the drug from the appellant at premises described as Unit 1, 14 Macaw Street, Miami, and while he was there noticed the appellant in possession of a larger quantity of the drug.
     The undercover police officer had not met the appellant previously and had gone to the unit looking for another person who was absent at the time. By arrangement, according to the undercover police officer, he returned later that night and made the purchase of the drug the subject of the first count and saw the drug the subject of the second count. There was no suggestion that the undercover police officer knew the appellant's name or anything about him.
     There is no indication of any further contact between the appellant and any police officer until the appellant was arrested and charged by a different police officer on 11 November 1993. There is no suggestion that the undercover police officer was involved in, or even knew of, this operation. Nor is there any explanation of how the appellant was selected as the person with whom the undercover police officer had dealt on 4 May, 1993.
     The only evidence that the appellant was that person was evidence of the undercover police officer at the appellant's trial on 3 March 1994 that he recognised the appellant, who was present in court as the accused person.
     The appellant gave evidence, which the magistrate rejected, denying that he had supplied marijuana to the undercover police or that he had ever resided, or even attended at,…

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 Cook v Jursik

Details

AGLC: Cook v Jursik [1994] QCA 221
Case: [1994] QCA 221
Decision Date: 21 June 1994

CaseChat Overview and Summary

In the appeal of Cook v Jursik, the appellant, S. Cook, contested his conviction by the Magistrates Court at Southport on two counts: one of supply and one of possession of a dangerous drug, cannabis sativa, on 4 May 1993. The conviction was based on the evidence of an undercover police officer who claimed to have purchased a small quantity of the drug from the appellant and observed a larger quantity in his possession on the night in question. The appellant argued that the identification evidence was fraught with risk and thus unreliable. The court was tasked with determining whether the evidence of identification was so unreliable that the convictions were unsafe and unsatisfactory.

The legal issues revolved around the reliability of the identification evidence provided by the undercover police officer, who had only met the appellant once, 10 months prior to the trial. The court had to assess whether the identification evidence was so fraught with risk that it made the convictions unsafe and unsatisfactory. This involved examining the circumstances under which the identification was made and whether there were any factors that could have influenced the officer's recognition of the appellant.

The Court of Appeal found that the identification evidence was indeed so fraught with risk of mistake that the appellant's convictions were unsafe and unsatisfactory. The court noted that the officer's recognition of the appellant in court, after such a long period and with no prior contact, was highly problematic. The court concluded that the risk of mistaken identification was significant enough to undermine the entire case against the appellant. Consequently, the appeal was allowed, and the convictions were quashed. The court did not order a new trial but left it to the prosecution's discretion to decide whether to proceed against the appellant again.

Orders