Walker v Dyer

[1992] QCA 286

COURT OF APPEAL [1992] QCA 286

MACROSSAN CJ McPHERSON JA AMBROSE J

CA No 167 of 1992

MICHAEL ROBERT WALKER
v.

HILTON EDWARD JOHN DYER

BRISBANE
..DATE 18/08/92

ORDER conviction and sentence. The principal matter argued before us related to the conviction itself. The appellant was convicted on 22 May of this year and sentenced to two months imprisonment for possession of heroin on 1 February of this year. The two months in question have been served. The appellant appeared in person to argue the appeal.

Looking at the record and having the advantage of listening to the matters adverted to in argument, we can commence an outline of the facts by saying that certain events brought police to a service station in the Gold Coast area. The appellant was there present with one other male and a female. They had gone to the service station in a taxi and the taxi was there too. The evidence was accepted and not challenged before us that when the police arrived the appellant’s male companion was in the driver’s side front seat of the taxi in an apparently unconscious condition and the appellant was on the passenger side in the rear behind him. The female was in the rear on the driver’s side of the taxi.

The evidence from the police then was that the appellant emerged from his position in the rear of the taxi after the police arrived, went to the front passenger side and commenced to shake his unconscious companion. Two police officers said they saw what happened and in their own words described their observations. The strongest and most detailed evidence of what happened came from the female police officer. She said in words that varied at different times as she gave her evidence that she saw two syringes fall from around the waist of the appellant and she saw him also kick them under the taxi. At one point in her evidence she said she saw him take the syringes from his waist or from his pants and throw them on the ground but her predominant evidence seemed to be that she saw them fall. There was some variation too in whether she saw him actually kick the two syringes under the taxi. The female police officer was at the relevant times that I am now describing standing on the far side of the taxi but she said that the doors were open and she had a view of the significant features which I have described.

The male police officer said that he saw the two syringes to which I have referred fall from the appellant. He, that is the male police officer, was standing to the rear of the appellant and it would seem on the same side of the taxi as he was.

The police said that they then questioned the appellant about these two syringes and they said that at the scene he admitted they were his after making an initial denial. The police took the appellant or arranged for him to be taken to the police station where an interview occurred. The male companion who had been comatose or unconscious was taken off to the hospital.

In the recorded interview, the appellant makes no admission that the syringes were his and indeed says little; says that he cannot tell the police anything about the needles that were found but agrees however, that the police picked up the needles from the ground at the service station. By about the third page of an interview, we see it recorded that the appellant really declined to add anything more. He did not, it is noticed, speak at all of an alleged admission that he made at the service station. The interview, as recorded, does not show that the police asked him about this earlier alleged admission. However, this might be explicable by the fact that the interview did not indeed progress very far.

Now there were four syringes that we have to concern ourselves with. There were the two that the police said came from the appellant or the vicinity of his person. There was another one found under the back seat of the taxi or in the rear interior of the taxi in any event where the female companion had been, and there was one, we were told, found in the toilet, inside the service station where the trio had been at some point before the police arrived. We were told that the one in the toilet of the service station was not retrieved, but that leaves three that were taken possession of by the police. The police said that one of the two which fell from the appellant and went under the taxi had a clear gel in it, and the other two, that is the companion of the one with gel in it and the further one found inside the taxi were described as being either empty or used, or words to that effect.

The Crown clearly had to rely upon the Certificate of Analysis, Exhibit 3. The form of this certificate is deficient. It refers to the possession of three syringes with needles and orange plastic sheaves affixed. The certificate says that one syringe contained clear fluid and the relevant entry then is this single and as it appears to me ambiguous comment: "Heroin, monoacetyl morphine and acetyl codeine were detected in the syringes." It does not say the drugs were detected in all the syringes or were detected in each of the syringes or use any such more precise phrase, if that is what the certificate is meant to proclaim.

Looking at the form of the charge which was one of possession of heroin on the occasion in question, the Crown had to prove that the two syringes which they say fell from or came from the appellant contained heroin. One of the two which came from the vicinity of the appellant, as he stood outside the taxi, contained a clear gel, the other not. It does not seem to me to be asking too much for certificates, if they are to be relied upon, to say in tolerably unambiguous language what they are meant to convey, and to say so if in this present case, for example, it is meant that each of the three syringes which were taken possession of contained heroin. To me the certificate does not say that.

It can, of course, on one view be interpreted as saying that, but bearing in mind where the onus of proof lay it cannot safely be relied upon as saying that. To be fair to the Magistrate who heard this case, it does not appear that the point was taken below, but then again it seems that the representation of the appellant before the Magistrate might have been a matter where there were difficulties, both for the appellant and his representative. He seems, on his own account, to have had very little contact with the person who represented him until immediately before the hearing started. He claims that he asked his representative to request an adjournment. Whether that is so or not, the situation looks as though, from the defence point of view, there may not have been a great opportunity to examine the Crown proof and the strength of it. Certainly, as I say, the Magistrate may be excused in this case for not having detected the ambiguity to which I refer, but the point being clearly argued now before us and the ambiguity being there, and, in my view, in any event insurmountable I see no alternative but to allow the appeal and quash the conviction.

McPHERSON JA: I agree. The analyst's certificate is expressed in terms that are by no means unambiguous. In saying as it does that the three drugs were found in the syringes it does not make it clear whether what is meant is that all three drugs were found in all three syringes, or that one or more of the drugs identified were found in one or more of the syringes, without precisely identifying which drug or drugs and which syringes are the ones referred to. The certificates could have been and should have been more specific. There is no reason why the Court should be left to speculate about what is meant where it could

so easily have been told in clear terms. I would in the result be prepared to upset the conviction on this ground, but not on any other. To that extent, I agree with the order proposed.

AMBROSE J: In this case, I regret being unable to agree with my brothers. The evidence is clear that there were three syringes sent for analysis in a plastic bag. The certificate discloses that one of the syringes contained clear fluid .3 millilitres in volume. The evidence disclosed that of the three syringes sent for analysis, two of them, including the one with .3 millilitres of fluid in it, were in the possession of the appellant. The three syringes were sent for analysis, and according to the certificate the analyst analysed the three syringes and the results of the analysis were that, among other things, heroin was detected in the syringes. In my view, on the ordinary meaning of the words, heroin and other drugs were detected in all the syringes rather than in some of the syringes. In my view, the ordinary use of language requires syringes to refer to each of the ones examined. I regret to say therefore, in my view, the evidence was sufficient to support the conviction and I would dismiss the appeal.

THE CHIEF JUSTICE: The order of the Court then is that the appeal is allowed and the conviction is set aside.

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