R v Angel[2017] QCA 287

SUPREME COURT OF QUEENSLAND

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 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 person.
5. On 8 September 2017, this Court ordered that the appeal be allowed, set aside both convictions and ordered the appellant be retried on both counts.
6. These are my reasons for agreeing to the making of those orders.

Background

7. 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.
8. 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.
9. 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

10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. Apart from items 1, 2 and 3, police also located some glass pipes which had burn or residue marks on them, indicating they had been used previously.  Those pipes were found on a beam above the outdoor patio area.  The glass pipes were located near a soft sunglass case containing a Chux.
18. Detective Sergeant Dylan Brooke, a police officer with significant experience in investigating drug-related matters, gave evidence that the quantity of methylamphetamine found at the residence were among the largest amount he had found in his career.  That drug could be consumed by smoking in a pipe or in a Tally-ho paper, or by injection.  In undertaking drug searches you may therefore find a syringe, pipes and Tally-ho papers.  It was more common to locate pipes and syringes.
19. Brooke agreed he had been told by drug users that they consumed the drug in lots of a ‘point’ or 0.1 grams.  It was quite normal to find a user in possession of a point.  That is usually the smallest quantity traded to consumers.  Brooke agreed a user’s consumption varied greatly depending on the habit, the individual and access to money.  However, the quantity equivalent to more 200 than points found at the appellant’s residence was more than one person was likely to consume in a day.
20. Brooke agreed that in the course of a search for drugs police look “in every nook and cranny”.^[1]  It is usual to look for implements that are used to consume drugs and for items such as scales.  No scales were found in this search.  The only clipseal bags found were those containing the drugs and a small clipseal bag found in a bedside table in the front bedroom.  That bedroom was occupied by the child at the time of the search.  When Brooke first entered the child’s bedroom she was asleep in her bed.
21. Brooke said there was not a lot of property in the room.  It contained a single bed and a small chest of drawers.  As the child was female and only partially clothed Brooke first arranged for a female, Detective Worthington, to speak to the child.  Brooke then located a small clipseal bag in the bedside table.  It appeared to contain very minute traces of a crystal substance which looked like methylamphetamine.  It looked like it had contained methylamphetamine at some point.
22. Brooke could not recall whether any other items were found with the clipseal bag located in the child’s bedroom.  He agreed that if other items, such as driver’s licence, were found nearby that would be relevant.  He could not recall if Tallyho papers were located in that bedroom.  Brooke did not know whether the clipseal bag was subsequently tested by police.
23. Brooke agreed that the statement he prepared for the Court proceedings did not mention finding the clipseal bag in the room of the child.  Brooke did not deem it relevant as it did not relate to the appellant.  Whilst Brooke did not know who had the bag, no-one was charged in relation to it.  Brooke did not know what happened to that clipseal bag.
24. Brooke agreed the appellant was present during the search.  The appellant behaved appropriately throughout the search.  He did not see her try to dispose of any items.  He could not recall seeing the child try to drop something off the veranda or being told by police that she had tried to drop something from the veranda.  He did not recall whether the child’s telephone was seized by police.
25. Brooke said the package containing the cannabis was not completely enclosed in silver foil.  He was able to see through the wrapping that it contained cannabis.  Brooke did not ever see the package unwrapped.
26. Brooke said that police generally would fingerprint items such as pipes that were found in a search.  He agreed that a pipe by definition is something that would have been put in a person’s mouth and that there could be DNA on the mouth part of a pipe.  It is not, however, general procedure to DNA test such items.
27. Senior Constable Wood also took part in the search of the appellant’s residence.  His job that morning was to systematically search the residence.  In undertaking that task he left no stone unturned when looking for drugs, including looking in very small spaces and toys.  He did not find any scales during that search.  He agreed it was not uncommon to find scales.  He did not find a tick book recording debts owed for the supply of drugs.  He also did not find a large quantity of empty clipseal bags.
28. Wood located the Blistex container in the front living room near blankets.  When he opened the Blistex container, he saw one or more clipseal bags.  One clipseal bag contained a rock substance.  He did not open it.  He gave it to Detective Worthington.  Wood agreed police did not obtain any property suspected of being stolen during the search.  There was, however, a quantity of cash found in a metal tin.
29. Senior Constable Bugden also participated in the search of the appellant’s residence.  The search of the residence was carried out in a methodical and systematic way.  The search conducted of the appellant’s bedroom was thorough, including searching bedside drawers and bathroom cabinets.
30. Bugden located the football-sized package of cannabis adjacent to a mango tree.  He also found in the garden bed a black plastic glasses case, containing what appeared to be a pipe used for smoking methylamphetamine.
31. Constable David Shanahan located the sunscreen container in the leaves adjacent to the mango tree in the back garden.  It contained a number of clipseal plastic bags.  He did not find anything else during the search.
32. Shanahan was present in the child’s bedroom when Brookes found the clipseal bag in the drawer of the bedside table.  Brookes told him he had found a clipseal bag.  He described it as a clipseal bag with some crystal in it.  Shanahan did not look any further.
33. Senior Constable Jonathan Kleinhans was the scenes-of-crime officer for the search of the appellant’s residence.  He photographed the items discovered by police.  He also conducted a fingerprinting process of the packaging of the bag of cannabis, the Blistex container and the sunscreen container.  That investigation did not reveal any fingerprints on the Blistex container or the sunscreen container.  There was a fingerprint on the packaging of the cannabis.
34. The process of fingerprint examination of the cannabis packaging involved pulling apart the silver duct tape and the brown tape.  Both were sticky.  He believed he cut the tape once from one side to the other and pulled that side around.  Once he had undertaken that task the items were put together and put in a bag.  No piece of paper was inserted to keep them separate from one another.  The pieces had the ability to stick back together.
35. Kleinhans located a fingerprint on the cannabis packaging.  The fingerprint was found on the non‑adhesive side of the tape.  When Kleinhans peeled the layer of duct tape off the print was located underneath on the top of the brown tape.  He located only one fingerprint.
36. Kleinhans sent the fingerprint to police for comparison.  Kleinhans also undertook a fingerprint examination of the glass pipes seized by police.  He did not swab them for DNA.  He agreed he could have swabbed the mouth part of a pipe but said it was not usual procedure.
37. Detective Senior Constable Fay Worthington was the executing officer for the search warrant and the arresting officer on the day in question.  Her role was to gather evidence whether it was in favour of or against the appellant.  She spoke to the child, who was born on 23 April 2001.  She did not obtain a statement from the child as there was nothing to indicate the child was associated with anything found by police during the search.  Worthington understood the child had lived in the house for at least 10 days prior to the search.
38. Worthington recorded the process of the search of the appellant’s residence on the morning of 10 March 2016.  She also examined the appellant’s telephone.  Nothing of interest was found on that telephone other than ordinary text messages.  Her experience would allow her to detect text messages relevant to any drug transactions.
39. Worthington agreed that during the search, a clipseal bag containing traces of a crystal-like substance was found in the drawer of a bedside table in the bedroom occupied by the child.  Worthington did not know why the finding of that bag was not captured in any of the videos recording the search.  No photographs were taken of the drawer or of any items contained in that drawer.  Worthington placed that clipseal bag in a large bag with other items seized during the search.  That clipseal bag was not subsequently tested by police.
40. Worthington agreed the Blistex container located by police had only two clipseal bags in it.  The register of the search incorrectly recorded that it contained three clipseal bags.  The recording of the search noted that the clipseal bag found in the drawer in the child’s room was placed in the same evidence bag.
41. Worthington agreed that one of the items found in the drawer in the child’s bedroom were some Tally-ho papers.  She could not recall whether she saw the papers in the draw, but accepted that the recording of the search mentions locating Tally-ho papers.  She did not ask for the glass pipes located during the search to be tested for DNA.
42. Worthington agreed that the child told police that day that she used the appellant’s telephone.  She also said that police at the Gold Coast had the child’s telephone.  Worthington did not make any enquiries about that telephone.
43. Worthington agreed the appellant gave police information as to how the child happened to be in the house.  The child flew up and down with Qantas.  The appellant also said the child had been getting into trouble.  Worthington did not undertake any investigation into that information.
44. Worthington agreed the recording of the search recorded the appellant telling her that the child had come up from the Gold Coast, that the child had been getting into trouble and the appellant had been away for about four days to collect the child about 10 days before the search.  Her trip to the Gold Coast was with Qantas and paid for by the child’s father.
45. Whilst the appellant was away, others were staying in the residence to mind her dog.  The appellant did not want to say the names of those people.
46. The appellant denied any knowledge of the clipseal bag found in the child’s bedside table.  Worthington agreed that the clipseal bag looked like it was a used packet of speed.  During the search, the appellant also told police she could say nothing about the Blistex container.  The appellant doubted her prints would be on the container.  When asked if she recognised the Blistex container, the appellant said she usually does not use the blue one, she uses the white Blistex.  When the items were found in the garden, the appellant was asked what she could tell police about them and she replied “nothing.”  The appellant later said “no, I don’t know anything about it.”
47. Worthington agreed police did not locate a tick list or scales in the vicinity of the location of the drugs.  Police also did not locate any bulk packets of clipseal bags.  There were no text messages on the appellant’s telephone.  Worthington agreed that the 20 odd grams of speed located in the course of the search was more than one human being was going to use over a short space of time in her experience.

Appellant’s submissions

48. The appellant submitted the trial Judge erred in allowing evidence to be led by the Crown as to a statement made by the appellant during the search to the effect “I use drugs now and again but I’m not a dealer.”  That comment was made by the appellant after police advised the appellant they were taking her mobile phone because they believed she was supplying dangerous drugs.
49. The appellant objected to the receipt of that evidence at trial on the grounds the evidence was not relevant and too vague.  The particular drug being referred to was not identified by the appellant.  There was no evidence as to the frequency or degree of the use of the drug, or as to the timing of that use.  In context, the appellant’s statement did not prove or tend to prove a fact in issue.
50. The only possible basis for admission was as propensity evidence.  However, the trial Judge had ruled that the relevant test for the admission of propensity evidence^[2] was not satisfied in the present case.  That being so, the admission of the evidence invited propensity reasoning by the jury, despite a warning to the contrary.
51. The appellant submitted the trial Judge also erred in ruling inadmissible evidence of the child’s criminal history.  Whilst that history did not contain any convictions for drug related offences, the existence of other criminal convictions was relevant.
52. A clipseal plastic bag containing what appeared to be trace amounts of methylamphetamine was found in the draw of the bedside table in the bedroom in which the child was asleep when police executed the search warrant.  That bag was the only evidence of illegal drugs found in an area of the house that was not a common area.  An issue at trial was whether someone else other than the appellant place the drugs where they were found in the common areas.
53. The child had lived in the house for 10 days prior to the search and had opportunity to place the drugs in those locations.  The child’s criminal history established the child was dishonest generally and inclined to break the law.  That history supported the truthfulness of the appellant’s assertions to police as to the circumstances of the child’s presence in the house.  As the child was not a co-accused, there was no question of unfairness to her or the Crown in the admission of that evidence.
54. The appellant submitted the trial Judge’s conclusion the evidence was not relevant was unreasonable having regard to the decision to allow into evidence the appellant’s admission of drug use, and a direction to the jury that they could reason towards a conviction based on the trace amount of substance found in the clipseal bag in the child’s bedroom, in the context of a Crown argument to the jury that the drugs located during the search may have been being held by the appellant on behalf of someone else.  No argument of that kind was opened by the Crown.  The Crown case was that the appellant had placed the drugs where they were found and the possession of such a large quantity of methylamphetamine must have been for a commercial purpose.
55. In that context, evidence of the child’s general character and inclination to criminality was highly relevant.  Further, the fact the child was not being called as a witness by the Crown was significant.  There was no explanation for that failure and the failure of the police to even have the child provide a statement.  The Crown in its address, repeated by the trial Judge in summing up, contrasted the fact that the appellant was the only adult in the residence against the child being only 14 years of age and the unlikelihood that such a child would have the necessary cash to purchase the drugs in the first place.
56. The appellant submitted the trial Judge erred in failing to direct the jury to consider occupation of the child’s room separately, notwithstanding the appellant’s concession that she was the occupier of the house.  The only drugs found in an area of the house that was not common area were those in the clipseal bag located in the bedside table in the child’s bedroom.  The jury were invited by the trial Judge to consider whether the appellant might also be convicted on the basis of her knowledge of that residue in the clipseal bag, despite there being evidence that the child was the sole occupant of that room which was sparsely furnished with no evidence of regular use and evidence that the child had stayed in the residence for 10 days prior to the police search.  A distinction should have been drawn between the common areas of the house over which the appellant was the admitted occupier and the child’s bedroom.

Respondent’s submissions

57. The respondent submitted that the trial Judge correctly admitted into evidence the appellant’s confession she used drugs now and again.  The quantity of drugs found on the police search was indicative of a commercial purpose but did not preclude the personal use of part of those drugs.  Further, the statement was indicative of the appellant being a current user of drugs.  In that context, it went to the probability that the appellant possessed the drugs found in her residence.  This was particularly so as three glass pipes, believed to have been used for smoking methylamphetamine, were found on a fluro light in the outdoor patio area.  No objection was taken to the appellant’s response that she did not use pipes when police asked her about those glass pipes.
58. Having regard to the issues in dispute at the trial, the appellant’s confession to the use of drugs now and again was probative.  The trial Judge specifically directed the jury that material could not be used by them to say because she may have committed offences before, she must be guilty of the present offences.  The trial Judge drew attention to the fact that the drugs used were unknown and the jury ought not to assume because the appellant had used drugs before she must have committed this offence.  Those directions addressed the danger the jury used the evidence improperly.
59. The respondent submitted the trial Judge properly excluded from evidence the child’s criminal convictions.  The child’s criminal history was irrelevant.  Those convictions related to offences of dishonesty and violence.  The child had no previous convictions for drugs.  During the search the appellant was recorded as telling police the child did not use drugs.  The history did not evidence a propensity to commit drug offences.  In any event, it was inadmissible in the absence of the child being called as a witness.
60. The respondent submitted the trial Judge also correctly did not direct the jury to consider separately the occupation or management and control of the child’s bedroom.  No charge arose from the possible drugs found in the child’s bedroom.  The issue for the jury at trial was whether the appellant was the occupier or concerned in the management and control of the house and garden area where drugs were located by police.  Relevant matters for the jury to consider in determining that issue were that the appellant had lived in the house for 12 months, that the appellant had gone away for four days about 10 days previously when other unnamed people had stayed to mind her dog and that the appellant’s fingerprint was found on brown tape used to wrap the cannabis.  That fingerprint was underneath duct tape.
61. 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.

Consideration

Ground 1

62. 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]
63. 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.
64. 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.”

65. 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.
66. 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.
67. The prejudicial effect of such a submission was exacerbated by the trial Judge directing the jury in the following terms in respect of the admission made by the appellant that she used drugs:

“Now, in the course of the questioning at the home during the search, as you have heard from the barristers a number of times, the defendant said that she had used drugs now and then in the past.  She made no statement as to what drugs that she used.  Obviously one possible meaning in the context is that she was referring to illegal drugs.

As well, there is evidence that pipes were found that had been used by somebody.  There is no evidence that they had been used by the defendant.  I want to say something about that evidence and its relevance.  Those facts must not be used by you to say that because she may have committed offences before, therefore she must be guilty of the present offences.  That is not how our system works.  The evidence is only relevant insofar as it assists you in deciding the principal issue in the case: did the defendant possess the drugs found on the premises at the relevant time.

The prosecution argues that the drug – that drug users are known to possess drugs and so it adds to the probabilities.  The defence says the drugs found far exceed in quantity the amount that a drug user would ever need, at least in the shorter term, and so this fact has very little relevance – relevance.

The defence says that existence of the pipes is irrelevant or neutral on the issue before you unless connected to the defendant, and there is no evidence to connect her to the pipes and no doubt you will recall that she said she did not use pipes.  The point that I wish to make to you is that you do not – do not assume that because she has used drugs before, then she must have committed this offence which you are now – which you are now trying.”^[6]

68. The evidence of the appellant’s admission had a substantial prejudicial effect over and above its effect in proving the offence.  It amounted to propensity evidence.  Notwithstanding the trial Judge’s directions to the jury as to its use, there was a real and substantial risk that the admission of that evidence led to the jury improperly using that evidence to convict the appellant on the basis she had not discharged her onus under s 129 of the Act.  That evidence could logically add nothing to a determination of whether the appellant knew of the presence of the drugs the subject of the counts or had reason to believe they were present.
69. As a consequence of its admission, a miscarriage of justice occurred in that the appellant was denied the fair chance of an acquittal of the offences.

Ground 2

70. The trial Judge ruled the criminal history of the child inadmissible as it was irrelevant.  Whilst it is correct that criminal history contained no previous convictions for drug offences, it did not follow that evidence of the existence of criminal behaviour by that child was irrelevant to the facts to be determined by the jury.
71. A plastic bag containing trace amounts of what was said to be methylamphetamine had been found in the child’s room.  Those were the only drugs found in a non common area of the house.  That fact was of substantial significance in the context of a Crown case dependent upon inferences as to the appellant’s knowledge of the existence of the drugs or as to whether the appellant discharged the onus of establishing that she, as the occupier of the residence, did not know and did not have reason to believe that the drugs were in the residence.
72. The significance of the existence of a criminal history containing offences of dishonesty assumed particular significance having regard to the Crown’s address to the jury in relation to a contention that the drugs may have been hidden by the child.  The Crown said in relation to the child:

“Mr Mac Giolla Ri might say to you that ‘well, you heard, pardon me, on the recording, on the search tape that [child’s] phone is in police custody and that she’s had some troubles down south’ inferentially a reference to the Gold Coast.  Well, you don’t know anything more than that.  We don’t know anything more than that.

So trying to leap from that to ‘well, she must be responsible for them’ is so long a bow to draw you just wouldn’t engage in it.  You know nothing about it and you are not entitled to speculate because speculation is unfair, so you are not entitled to speculate about what – about any significance that might or might have.  The simple fact is those are the only two things that you know, other than, of course, that she is a 14 year old girl who has had some trouble that way, difficulties with her parents and she is stopping at [the appellant’s] place.  So she’s a 14 year old child.  ‘Some trouble’ is probably putting it mildly.

Importantly – importantly, and this is part of the recording that I replayed to you before the lunch break, [the appellant] herself says that [the child] doesn’t use drugs.  So if you were after some firm evidence of that fact, why not trust it out of her mouth.  So she says herself that [the child] doesn’t do drugs, and objectively speaking, you might consider who is more likely to have thousands of dollars of drugs buried in the backyard.  The drug using homeowner or the sober 14 year old child.”^[7]

73. To invite the jury to determine who was more likely to have had drugs buried in the backyard, the “drug using home owner” or the “sober 14 year old child” inaccurately conveyed to the jury that the child did not engage in criminal conduct.  In that context the ruling that the child’s criminal history was inadmissible deprived the appellant of the opportunity for the jury to consider, as a real possibility, a conclusion that someone other than the appellant had concealed the drugs in the residence.
74. That history was relevant as it could rationally show that the character and personality of the child is such that she, rather than the appellant, may have hidden the drugs the subject of the counts.^[8]  As a consequence the appellant was deprived of the real possibility of an acquittal of the counts on the indictment.
75. That conclusion is not affected by the failure of the Crown to call the child as a witness.  The Crown has an obligation to call all relevant witnesses.  Had the evidence been ruled relevant and therefore admissible, the Crown may well have called the child to give evidence at trial.

Ground 3

76. The issue to be determined by the jury was whether the appellant, as the occupier of the residence or the person concerned in the management and control of the areas in which the drugs the subject of the counts were found, knew of the existence of those drugs or had discharged the onus upon her of showing that she did not know and did not have reason to believe the drugs were in the residence.
77. In that context, the jury were correctly directed as to the issues to be considered by them in the determination of those issues.  As the clipseal bag found in the child’s bedroom did not form part of the Crown case in respect of those counts, there was no requirement on the trial Judge to direct the jury to consider separately whether the appellant was an occupier or concerned in the management or control of the child’s bedroom.  Significantly, no such direction was sought by the appellant counsel at trial.
78. 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

79. 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.
80. For the abovementioned reasons, the appeal was allowed, the verdicts of guilty set aside and a retrial ordered in respect of each count.