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 2016DIVISION:
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 2017DELIVERED 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, appliedCOUNSEL:
E Mac Giolla Ri for the appellant (pro bono)
D C Boyle for the respondentSOLICITORS:
Anne Murray & Co for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Boddice J.
McMURDO JA: I agree with Boddice J.
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.
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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- AGLC
- R v Angel [2017] QCA 287
- Case
- [2017] QCA 287
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.