Youngberry v Hucker

[1993] QCA 458

IN THE COURT OF APPEAL [1993] QCA 458

SUPREME COURT OF QUEENSLAND

CA No. 325 of 1993

Brisbane

[Re: Youngberry v Hucker]

MICHAEL JOHN YOUNGBERRY

v.

KYM ELIZABETH HUCKER

(Appellant)

The President
Mr Justice McPherson

Mr Justice Mackenzie

Judgment delivered 12/11/1993

Judgment of the Court

APPEAL AGAINST CONVICTION ALLOWED. SET ASIDE THE CONVICTION.

CATCHWORDS:	CRIMINAL LAW - Conviction - Possession of cannabis sativa - Question of credibility
Counsel:	Mr P Alcorn for Appellant Mr J Hunter for Respondent
Solicitors:	Legal Aid Office for Appellant Director of Prosecutions for Respondent
Hearing Date:	3 November 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No. 325 of 1993

Brisbane
Before The President

McPherson JA

Mackenzie J

[Re: Youngberry v Hucker]

MICHAEL JOHN YOUNGBERRY

v.

KYM ELIZABETH HUCKER

(Appellant)

JUDGMENT OF THE COURT

This is an appeal against conviction for an offence of possession of a dangerous drug namely cannabis sativa. The police case was that a small quantity of cannabis had been found in a crayon box in the room of a house in which the appellant resided. The appellant gave evidence that the room was not hers, but one occupied by a man named Simon Wynyard who resided at the house. One of the police officers gave evidence that upon being shown the cannabis by him the appellant said, "It's mine." When he had finished searching the room he took her downstairs into the presence of another detective where he said, "I found this on the dressing table in Kym's room, she has told me it's hers." The other detective said, "Is that correct, Kym, is this cannabis yours?" She said, "Yes, that's right." The detective said, "What can you tell me about the cannabis?" She said, "I don't want to say anything." The conversation was not recorded in the form of notes which the appellant might have verified. When taken to the police station she declined to take part in a record of interview. The appellant's evidence was that she had not made the admissions alleged. There had been only an argumentative discussion between the police officer and her in which she denied that the cannabis was hers, and at the end of which she invited him to charge her as occupier of the premises. She also gave evidence that the cannabis must have been left there by someone after a party the previous night. She said that the argumentative discussion had occurred in the presence of Simon Wynyard, and that he participated in the discussion and denied that it was his. He was not called to give evidence. The police evidence was inconclusive as to whether he was present at the time when the admissions were made. The matter turned on credibility. The defence relied on the principle in McKinney v The Queen (1991) 171 CLR 468 and also on Ekert v Deal (CA No 177/1991, CCA, 8th November, 1991, unreported). The Stipendiary Magistrate correctly directed himself in terms of McKinney but was prepared to find "beyond doubt" that the admissions alleged were made for reasons given in his decision. The Stipendiary Magistrate said at first blush the defendant appeared to be a credible and reliable witness. She gave a coherent story as to the happenings of the previous evening but when the events of the day in question were attested to, her version in his view fell down. Two aspects of his approach to the question of credibility call for comment. The first is that he made the observation that on the occasion when the appellant was charged, two other persons were charged with drug misuse and those persons subsequently pleaded guilty. The other is that he said that he was given cause to doubt the appellant's account by her allegations that the police officers permitted discussion and argument to ensue between her, the co-tenant and them as to the possession of drugs and that she was only charged on the basis that her name was on the lease. He went on to say, "The question might be posed as to why police would allow that discussion if, indeed, it took place. It would not impede the course of the prosecution and, in fact, if no admissions were made, might lead to the charging of both the appellant and the co-tenant."	Judgment delivered 12/11/1993 persons were charged and subsequently pleaded guilty to similar offences is irrelevant to the question of credibility of the police officers' account of the disputed conversation.
The proposition implicit in the Magistrate's second observation, that the credibility of the police evidence was fortified because, on the appellant's version, she may have rendered herself liable to prosecution as an occupier and that they would therefore be unlikely to deny that the conversation had occurred, is not compelling in a case where the question was whether direct incriminatory statements had been made. We observe that, as the Magistrate indicated in his reasons, a case based on occupier's liability had its difficulties on the evidence.
The issue of credibility was crucial in this case. The apparent reliance by the Magistrate on matters that lacked cogency in resolving the issue in our view vitiates his conclusion. As it is impossible to predict that he would have reached the same conclusion if he had not taken them into account, the conviction cannot stand. The appeal against conviction is allowed.