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, Unit 1, 14 Macaw Street, Miami. The magistrate's rejection of the appellant's evidence was obviously related to his acceptance of the undercover police officer as a credible witness.
     However, this glosses over the problem associated with the undercover police officer's testimony, namely, the possibility that, although honest, he was mistaken.
     There are obvious difficulties in in-court identification evidence: see, e.g., Grbic v. Pitkethly (1992) 38 FCR 95. It is unnecessary in this case to discuss those difficulties or any general limits on the probative value of such evidence.  We are concerned only with the worth of the identification evidence in this case. 
     When the undercover police officer saw the appellant in the Magistrates Court it was apparent to him that he was the person  charged and against whom he was to give evidence of events in which the undercover police officer, and if he was correct the appellant, had been involved in 10 months earlier.  While the undercover police officer might have been prepared to say that he did not recognize the appellant or was not sure, if that was the case, the circumstances were such as to have been likely to influence him to say, and be convinced, that the appellant was the person with whom he had dealt.  It is sufficient for us to say that the evidence of identification which the police officer gave was so attended with risk of mistake that the appellant's convictions, which are wholly dependent on that evidence, are unsafe and unsatisfactory in the administration of justice.
     Counsel for the appellant submitted that, in these circumstances, the Court should order that there be no new trial, while counsel for the prosecution argued that the appellant's acquittal was not justified when there might be other evidence of identification available.  Particularly because the point on which the appellant has succeeded seems to have played a lesser role in the Magistrates Court than in this Court, we consider that it ought be left to the discretion of the prosecution to determine whether to proceed again against the appellant.
     The only orders which we make are that the appeal be allowed and the convictions quashed.