R v Angel

Case [2017] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

R v Angel [2017] QCA 287

PARTIES:

R
v
ANGEL, Jodie Louise
(appellant)

FILE NO/S:

CA No 58 of 2017
SC No 98 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Conviction: 3 March 2017 (McMeekin J)

DELIVERED ON:

Orders delivered ex tempore 8 September 2017
Reasons delivered 22 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2017

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

Orders delivered 8 September 2017:

1.   Appeal allowed.

2.   Set aside the convictions on counts 1 and 2 on the indictment.

3.   The appellant be retried on those counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where on 3 March 2017 the appellant was convicted by a jury of two counts of possessing dangerous drugs – where the appellant was sentenced to an effective three year head sentence – where the appellant contends that the trial judge erred in admitting into evidence her admission of past drug use – where the appellant contends that the trial judge erred by excluding evidence of criminal convictions of another occupant of the appellant’s residence – where the appellant contends the judge erred in failing to direct the jury that they had to consider separately whether the appellant was an occupier or concerned in the management or control of the bedroom used by that other occupant – whether the appeal should be allowed

Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, considered
R v CBL; R v BCT [2014] 2 Qd R 331; [2014] QCA 93, cited
R v Roughan & Jones (2007) 179 A Crim R 389; [2007] QCA 443, applied

COUNSEL:

E Mac Giolla Ri for the appellant (pro bono)
D C Boyle for the respondent

SOLICITORS:

Anne Murray & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Boddice J.

  2. McMURDO JA:  I agree with Boddice J.

  3. BODDICE J:  On 3 March 2017 a jury found the appellant guilty of two counts of possession of a dangerous drug.  The appellant was convicted and sentenced to three years imprisonment on the first count and six months imprisonment on the second count.  Those sentences were to be served concurrently.  The appellant was ordered to be released on parole after serving 18 months of imprisonment.

  4. The appellant appealed those convictions, relying on three grounds of appeal.  First, that the learned trial judge erred in admitting into evidence her confession that she used drugs from time to time.  Second, that the learned trial judge erred in excluding evidence of criminal convictions of an occupant of the appellant’s residence at the time of the offences.  Third, the learned trial judge erred…

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Details
AGLC
R v Angel [2017] QCA 287
Case
[2017] QCA 287
Decision Date

CaseChat Overview and Summary

The appeal against the appellant's conviction and sentence was heard by the court. The appellant was convicted by a jury of two counts of possessing dangerous drugs, namely methylamphetamine and cannabis, on 3 March 2017. The appellant was sentenced to an effective three-year head sentence. The appellant's appeal contended that the trial judge erred in admitting her admission of past drug use, excluding evidence of criminal convictions of another occupant of the appellant's residence, and failing to direct the jury to consider separately whether the appellant was an occupier or concerned in the management or control of the bedroom used by that other occupant. The court needed to determine whether these errors deprived the appellant of a fair trial and warranted a retrial.

The court considered the grounds of appeal and concluded that the trial judge erred in admitting the appellant's admission of past drug use. The admission had slight probative value in connecting the appellant to the drugs but had significant prejudicial effect by inviting the jury to conclude that the appellant's drug use increased the probability of her knowledge of the drugs. The court also found that the trial judge erred in excluding evidence of the other occupant's criminal history, which could have supported the appellant's case that she did not know of the drugs. Finally, the court found that the trial judge should have directed the jury to consider separately whether the appellant was an occupier or concerned in the management or control of the bedroom used by the other occupant. These errors deprived the appellant of a fair chance of acquittal and warranted a retrial.

The appeal was allowed, the verdicts of guilty were set aside, and a retrial was ordered in respect of each count. The court held that the prejudicial effect of the admission of past drug use outweighed its slight probative value. The exclusion of evidence of the other occupant's criminal history deprived the appellant of a fair chance of acquittal. The failure to direct the jury to consider separately whether the appellant was an occupier or concerned in the management or control of the bedroom used by the other occupant also warranted a retrial. The court ordered that the appellant be retried on counts 1 and 2 of the indictment.

Orders

Orders of the court

Orders delivered 8 September 2017:

1. Appeal allowed.

2. Set aside the convictions on counts 1 and 2 on the indictment.

3. The appellant be retried on those counts.

Background

Background to the litigation

These are my reasons for agreeing to the making of those orders.Background The appellant was born on 16 August 1970. At the time of the offences she was living in a residence in Emerald. A female child aged 14 years 10 months was also residing at that residence. The appellant had been living at the residence for some months. The offences arose out of a search by police of the residence occupied by the appellant on the morning of 10 March 2016. Police located a quantity of methylamphetamine in a blanket box in the lounge-room towards the front of the house (Item 1), a quantity of cannabis under leaves in the garden bed (Item 2) and a further quantity of methylamphetamine under leaves in the same garden bed (Item 3). The appellant denied any knowledge of the items found by police. Analysis of these items revealed that Item 1 contained 2.036 grams of pure methylamphetamine, Item 2 contained 201 grams of cannabis and Item 3 contained 18.053 grams of pure methylamphetamine. Count 1 on the indictment related to the possession of Items 1 and 3. Count 2 related to the possession of Item 2.Trial The Crown case at trial was that either the appellant had actual possession of each of the items found in the police search or she had deemed possession of those items as the occupier of the residence or the persons concerned in its management or control. That latter bases relied upon s 129(1)(c) of the Drugs Misuse Act 1986. Pursuant to that section, the appellant was deemed to be in possession of each of the items unless the appellant showed she neither knew nor had reason to suspect the drug was in or on that place. The appellant did not give or call evidence at trial. Her case at trial was that she did not have knowledge of any of the items and that the other occupant of the house, the child, could have secreted the items into the blanket box and garden area. At the commencement of the trial, the appellant’s counsel made a number of admissions. First, that in a storage place containing blankets in the lounge area of the house police located a small Blistex container containing clipseal plastic bags which held a total of 2.74 grams of a crystalline substance, of which 2.036 grams was pure methylamphetamine. Second, that police located in the garden area beneath two mango trees, a ball-shaped object partially wrapped with brown packing tape and silver duct tape within which was a clipseal plastic bag, containing 201 grams of cannabis. Third, that between the silver duct tape and the brown packing tape was located a fingerprint that matched a fingerprint from the appellant. Fourth, that in the same location near the mango trees police located a Banana Boat sunscreen roll-on applicator, containing three clipseal plastic bags. One bag contained 2.114 grams of crystalline substance of which 1.487 grams was pure methylamphetamine. Another bag contained 26.203 grams of a crystalline substance which contained 18.058 grams of pure methylamphetamine. Evidence was called from a number of police witnesses present at the search. That evidence established that the search of the appellant’s residence occurred between 6.45 and 8.00 am on the morning of 10 March 2016. The appellant and the child were present in the house during the search.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In those circumstances there is no basis to conclude that a failure to direct the jury in respect of that issue gives rise to a miscarriage of justice. This ground fails.Conclusion The trial Judge erred in admitting the contents of the defendant’s admission and in refusing to admit evidence of the child’s criminal history. Those errors deprived the appellant of a fair chance of acquittal of the counts. For the abovementioned reasons, the appeal was allowed, the verdicts of guilty set aside and a retrial ordered in respect of each count.

Ratio Decidendi

Legal Principle Established

The jury was expressly instructed they would not convict the appellant merely because of the presence of that clipseal bag in the drawer. That bag meant the jury might accept that someone in the house was a user of methylamphetamine. However, the jury still needed to be satisfied the appellant knew of the presence of that clipseal bag in the drawer. Even if the jury was so satisfied, they had to then determine whether that knowledge would reasonably give rise to a suspicion on the part of the appellant of the presence of the other drugs found in the house and garden. The trial Judge specifically pointed out the weakness of the evidence in relation to the bag in the drawer.ConsiderationGround 1 In ruling the defendant’s admission that she used drugs now and again admissible, the trial Judge found the appellant’s statement was “plainly relevant evidence. It provides support for the prosecution case that it is this person who is the one who has concealed the drugs. … [I]t adds to the proof that the prosecution can legitimately put forward that this person is more likely to have been the one to conceal the drug because she uses it or uses drugs.”[3][3]AB 28/35-45. In so ruling, the trial Judge rejected a defence contention that the test in Pfennig had application. The trial Judge found the admission was probative to establish a fact that was relevant, namely that the appellant was a user of drugs. The evidence was not prejudicial other than in its effect to connect the defendant. The trial Judge said he would tell the jury they should not draw an inference that because someone is a drug user they must be guilty of drug offences but that the evidence was proof connecting the person with a wish or need to conceal drugs. Whilst evidence of slight probative value is admissible, a court has a discretion to exclude such evidence where the evidence has a substantial prejudicial effect other than its effect in proving the offence.[4] In Festa v The Queen[5] Gleeson CJ said:“If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is ‘weak’, and … whether it is weak might depend on what use is made of it.”[4]R v CBL; R v BCT [2014] QCA 3 at [53].[5](2001) 208 CLR 593 at [14]. Whilst a finding that the admission had some probative value rendered the evidence admissible, the trial Judge erred in concluding that evidence was not prejudicial, other than its effect to connect the defendant. The statement made by the appellant was in response to an assertion by police that they suspected the appellant was a drug dealer. In that context, an assertion by the appellant that she used drugs now and again could not properly be considered an admission supportive of a conclusion that drug users are known to possess drugs in commercial quantities. Any probative value of that statement to the issue in question, namely the appellant’s knowledge of the existence of the drugs the subject of each count, was slight. By contrast the prejudicial effect of the admission of that evidence was significant, particularly having regard to the Crown’s address to the jury. In that address the Crown specifically invited the jury to conclude that the probability that the defendant knew of the presence of the drugs was enhanced by the fact that the appellant was a user of drugs now and then.