Elrick v The Queen - [2021] SASCA 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ELRICK v THE QUEEN
[2021] SASCA 13
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
24 March 2021

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY
Permission to appeal against conviction and appeal against conviction.
The appellant was charged with two counts of trafficking in a controlled drug in contravention of s 32(3) of the Controlled Substances Act 1984 (SA) (CSA). The first count related to a substance containing methamphetamine, weighing 2.2 grams and scattered in a fire pit in the appellant’s backyard. The second count related to a substance containing methamphetamine, weighing 14.2 grams and scattered behind a vending machine on the appellant’s back verandah. Following a trial by jury, the appellant was found guilty of the first count, but not guilty of the second count.
The appellant appeals against his conviction on the first count of trafficking, relying upon the following grounds of appeal:
1.      Grounds 1 & 2 challenge the trial judge’s directions in relation to the presumption of an intention to sell under s 32(5) of the CSA. The appellant complains both that the trial judge erred in leaving the application of the presumption in relation to the fire pit methamphetamine to the jury, and that the trial judge’s directions were apt to invite impermissible speculation on the part of the jury as to the extent of any contaminant in the fire pit methamphetamine.
2. Ground 3 challenges the admissibility of the discreditable conduct evidence in the form of CCTV footage showing visitors coming and going from the appellant’s property, on the basis that it did not have the “strong probative value” that was a precondition to its admissibility under s 34P(2)(b) of the Evidence Act 1929 (SA).
3.      Ground 5 complains that the trial judge failed to give an “only reasonable explanation” direction to the jury given the circumstantial nature of the evidence relied upon by the prosecution.
4.      Ground 6 complains of a miscarriage of justice said to have been occasioned by a submission of the prosecutor in closing address, which the appellant contends invited the jury to speculate impermissibly as to the presence of scales at the appellant’s house.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), granting permission to appeal on grounds 1 and 2, and dismissing the appeal:
1.      The application of the presumption under s 32(5) of the CSA was a matter properly left to the jury. The trial judge did not err in not withdrawing from the jury the potential application of the presumption.
2.      The trial judge’s directions in relation to the presumption did not invite impermissible speculation as to the extent of any contaminant in the fire pit methamphetamine. His Honour’s directions accurately identified the precondition to the operation of the presumption, exposed the difficulty that arose by reason of the fire pit methamphetamine containing a small but unquantified amount of other material, and noted that the presumption did not apply if the jury thought it was a reasonable possibility that the total of the substance was less than 2 grams.
3. The CCTV footage did have “strong probative value” for the purposes of s 34P(2)(b) of the Evidence Act. While the evidence led by the prosecution did not squarely address the significance of visitors coming and going from a residential premises, the likelihood of a drug business operated from a residential premises attracting multiple visits from customers of short duration and unusual timing is a matter that a lay person could appropriately assess. Further, the limitations of the CCTV footage identified by the appellant were not sufficient to deprive the evidence of its strong probative capacity in the context of the prosecution case as a whole.
4.      The trial judge’s failure to give an “only reasonable explanation” direction did not occasion any miscarriage of justice. This matter involved a confined and readily understandable body of circumstantial evidence that revealed only one alternative hypothesis, which was addressed squarely by the trial judge in his directions. Given the centrality of this hypothesis to the appellant’s evidence and the defence case, it cannot be said that the jury would not have appreciated that it was necessary for them to exclude this as a reasonable possibility.
5.      No miscarriage of justice arose out of the prosecutor’s submissions in relation to the evidence that scales were not found by the police. The prosecutor exposed the evidential limitation inherent in his submission that it did not necessarily follow from the fact that no scales were found that there were no scales at the appellant’s property, and did not cross the line between making a submission without much merit on the evidence, and making a submission that invited impermissible speculation.
Controlled Substances Act 1984 (SA) ss 32(3), 32(5); Controlled Substances (Controlled Drugs, Precursor and Plants) Regulations 2014 (SA) Schedule 1; Evidence Act 1929 (SA) s 34P, referred to.
Gasmier v The Queen [2020] SASCFC 16; R v Falzon (2018) 264 CLR 361; R v Soteriou (2013) 118 SASR 119; R v Jones (2018) 131 SASR 532; R v Singh [2019] SASCFC 51; BNM v The Queen [2020] SASCFC 10; Kroni v The Queen [2021] SASCFC 15; R v Lang (2002) 137 A Crim R 263; MDM v The Queen [2020] SASCFC 80; Johnson v The Queen (2018) 266 CLR 106; R v Roberts (2019) 134 SASR 483; Anderson v The Queen (1992) 60 SASR 90; R v Firman (1989) 52 SASR 391; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; R v Gebert [2019] SASCFC 37; Shepherd v The Queen (1990) 170 CLR 573, considered.

ELRICK v THE QUEEN
[2021] SASCA 13

Court of Appeal: Kelly P, Doyle and Bleby JJA

KELLY P: I agree with the orders proposed by Doyle JA and with his Honour’s reasons.
DOYLE JA: The appellant was charged with two counts of trafficking in a controlled drug in contravention of s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA).
The first count related to a substance weighing 2.2 grams and containing methamphetamine. The methamphetamine the subject of this count was scattered in a fire pit in the appellant’s backyard. The second count related to a substance weighing 14.2 grams and containing methamphetamine. The methamphetamine the subject of this count was scattered behind a vending machine on the appellant’s back verandah.
Following a trial by jury, the appellant was found guilty of the first count, but not guilty of the second count.
In this appeal against his conviction of the first count of trafficking, the appellant relies upon the following grounds of appeal:[1]
·Grounds 1 & 2 challenge the trial judge’s directions in relation to the presumption of an intention to sell under s 32(5) of the CSA.
·Ground 3 challenges the admissibility of the discreditable conduct evidence in the form of CCTV footage showing visitors coming and going from the appellant’s property.
·Ground 5 complains that the trial judge failed to give “an only reasonable explanation” direction to the jury given the circumstantial nature of the evidence relied upon by the prosecution.
·Ground 6 complains of a miscarriage of justice said to have been occasioned by a submission by the prosecutor in closing address, which the appellant contends invited the jury to speculate impermissibly as to the presence of scales at the appellant’s house.
[1] Ground 4 was abandoned at the hearing of the appeal.
It is convenient to commence by summarising the parties’ cases at trial before turning to address the individual grounds of appeal.
The prosecution case
The prosecution case at trial was that on 21 February 2019, the police attended the appellant’s address in Salisbury North to conduct a search. Brevet Sergeant Turnbull entered a neighbouring property, stood on a ladder, and looked into the backyard of the appellant’s property. Other police officers went to the front door of the appellant’s house, announced themselves and then forced entry.
When the police entered they found four people present, being the appellant, his partner and another male and female. It was an agreed fact that both the appellant and his partner were living as co-tenants at the Salisbury North address. There was also evidence that suggested that the other two individuals were living, or at least staying, at that address at the relevant time.
Brevet Sergeant Turnbull gave evidence that he heard the police announce their presence at the front door, and then shortly later saw the appellant run from the rear of the house and into the backyard, and scatter a substance in a patch of dirt containing a fire pit. Given the acquittal on the second count, it is not necessary to refer to the evidence in relation to the substance located behind the vending machine.
The evidence was that the methamphetamine from the fire pit was collected by a police officer using tweezers, and placed into a resealable plastic bag. It was an agreed fact at the trial that the substance which was the subject of count 1 weighed 2.2 grams and that the “total weight of the substance may have included a small amount of other material such as dirt.”
The prosecution relied on discreditable conduct evidence said to be probative of the appellant’s involvement in the business of selling illicit drugs. The evidence consisted of the following matters:
·Text messages on the appellant’s mobile phone indicating that he was a person who sold drugs.
·A number of press-seal plastic bags found in the appellant’s house by the police.
·Cash in the amount of $1,165 found in the appellant’s wallet.
·CCTV footage that covered the front porch of the appellant’s house and showed people coming and going from the appellant’s property in the seven day period leading up to the police search.
·Evidence that a Mr Chatterton was observed leaving the appellant’s property on 3 February 2019, was stopped by the police, and was found to be in possession of a point of methamphetamine.
The prosecution case was that by reason of the combination of the evidence as to the appellant’s actions in scattering the methamphetamine across the fire pit, and the evidence that he was in the business of selling illicit drugs, the jury could be satisfied beyond reasonable doubt that, immediately prior to the police arriving at his property, the appellant possessed (either on his own, or jointly with his partner) the fire pit methamphetamine and intended to sell some or all of it.
The defence case
The appellant gave evidence at trial. He said that when the police arrived, his partner was sitting at a table on the back verandah of their house. She had a quantity of methamphetamine that was on the table in front of her. The appellant said that when the police arrived, he grabbed the methamphetamine that was on the table in front of his partner, and ran out into the backyard and scattered it across the fire pit. He said that he did so in order to protect his partner, or to prevent her “getting in trouble”. He thus denied that he had possessed that methamphetamine for the purpose of sale.
The appellant gave innocent explanations for various aspects of the discreditable conduct evidence, and otherwise relied upon the presence of three other people at the Salisbury North property, and his evidence that (in contrast to him) each of those three were users of methamphetamine. The defence case was that the jury could not in all of the circumstances be satisfied beyond reasonable doubt that he possessed the fire pit methamphetamine (either alone or jointly), or that he intended to sell any or all of that methamphetamine.
Grounds 1 & 2: The presumption of an intention to sell
The offence of trafficking in a controlled drug in contravention of s 32(3) of the CSA required that the prosecution establish that the appellant possessed the fire pit methamphetamine, and that he intended to sell some or all of it.
Under s 32(5) of the CSA, if it is proved that a defendant is in possession of a trafficable quantity of a controlled drug, then it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence. The legal effect of this section is not to relieve the prosecution of the burden of proving the elements of a trafficking offence beyond reasonable doubt, but rather to provide a presumption, in aid of that proof, which operates unless and until it is rebutted by proof, on the balance of probabilities, to the contrary.[2]
[2] Gasmier v The Queen [2020] SASCFC 16 at [10].
In the case of methamphetamine, a trafficable quantity is 2 grams.[3] Whilst the trafficable quantity may comprise a mixed substance, as opposed to pure methamphetamine, it was agreed that the substance retrieved from the fire pit may have contained some contaminant, such as dirt, that was not part of the substance possessed by the appellant and hence would need to be excluded when determining whether the appellant was in possession of a trafficable quantity. The presumption would thus only operate if the prosecution established beyond reasonable doubt that there was less than 0.2 grams of contaminant, such that there was at least 2 grams of mixed methamphetamine possessed by the appellant prior to him scattering it over the fire pit.
[3] Controlled Substances (Controlled Drugs, Precursor and Plants) Regulations 2014 (SA), schedule 1.
Whilst the presumption clearly had a role to play in relation to the vending machine methamphetamine (which weighed 14.2 grams), that was not so in relation to the fire pit methamphetamine. There was an obvious risk that the process of collecting the methamphetamine from the fire pit, even though undertaken carefully and using tweezers, may have resulted in the collected substance containing some contaminant. There were some photographs of the fire pit methamphetamine in evidence at trial. While they were not particularly good photographs, they might have enabled the jury to make some very rudimentary visual assessment of the approximate extent of any contaminant in the nature of dirt. However, there would have been obvious difficulty in the jury being confident about the level of any contaminant from this photographic evidence, and the evidence did not provide any more precise method for determining the level of any contaminant. The agreed facts were of no assistance in this regard, as they merely recorded an agreement between the parties that the total weight of 2.2 grams “may have included a small amount of other material such as dirt.”
It was in these circumstances that neither the prosecutor nor defence counsel urged the jury to use the presumption in relation to the count involving the fire pit methamphetamine (count 1). Whilst neither counsel submitted that the trial judge should not direct the jury as to the operation of the presumption in respect of count 1, the appellant now complains (in grounds of appeal 1 and 2) that his Honour erred in doing so. In particular, the appellant contends that his Honour’s directions in this regard were apt to invite or allow impermissible speculation on the part of the jury as to the extent of any contaminant in the fire pit methamphetamine.
Before explaining why in my view this challenge to the trial judge’s summing up should be rejected, it is appropriate to identify what each of the prosecutor, defence counsel and the trial judge said to the jury in relation to the presumption, and in particular its use in relation to count 1.
In his closing address, the prosecutor said the following in relation to the use the jury might make of the presumption:
I take you to the individual charges. The first count relates to the methamphetamine that was in the fire pit and that was the 2.2 g of substance. The second count behind the vending machine, 14.2 g of substance. I mentioned in my opening address to you that there is a presumption that if a person possesses 2 g of methamphetamine or more then they are presumed to possess it with the intention to sell it, unless they prove otherwise on the balance of probabilities.
So going then back to count 1, the - and I should say that when I talk about 2 g, the presumption comes into play when the mixed weight of the substance is 2 g or more. So you'll see from the agreed fact that the total substance weighed 2.2 g but it contained less than 2 g of methamphetamine.
The issue with relying on the presumption that he intended to sell it, if you are satisfied that he possessed it, in relation to count 1 is that you heard in the agreed fact that the methamphetamine, that substance included a small amount of other material and that other material may have included dirt and you've heard the evidence from the police as to how they collected it off the ground and you'll see that it was in a dirt patch sort of area. So if you think it's a possibility that the dirt that was in the bag weighed .2 of a gram or possibly even more then the presumption doesn't come into play because that means at the time that he possessed it it weighed less than 2 g. Whilst it is a matter for you I don't urge you to make a finding that at the time he possessed it, it weighed 2 g or more. There is dirt in the bag. So if that's the finding you make that it was less than 2 g then you just go back to the question did he possess it for sale. The presumption that he did doesn't come into play. That issue doesn't, I suggest, arise in relation to the second count because again whilst there was a small amount of other material in that exhibit and it may have included dirt, the total weight of the substance that was weighed was 14.2 g but that contained 10.6 g of methamphetamine so in my submission there is no chance that that weighed less than 2 g before the accused disposed of it, on the prosecution case at least.
Defence counsel only mentioned the presumption in passing, treating the prosecutor’s observations as to the difficulty in relying upon it in respect of count 1 as a “proper concession”. She said:
I turn then to count 1 on the information and also other aspects of the prosecution evidence about an intention to sell. I suggest that Mr Elrick was not in possession of the drugs found at the fire pit intending to sell them. He was intending to dispose of them and that's the only time he was in possession of those drugs.
The prosecutor has said perhaps the presumption does not apply if you find that the amount of drugs found at the fire pit were less than 2 g because there was some dirt in that and that was a proper concession to make, I suggest.
In his summing up, the trial judge said the following in relation to the presumption and its potential operation in respect of the fire pit methamphetamine:
While the prosecution must of course prove the element of trafficking beyond reasonable doubt, the law gives the prosecution some help in proving beyond reasonable doubt that the accused was trafficking in the drug and the law does so in this way. If the prosecution proves beyond reasonable doubt that the accused was in possession of more than 2 g of a substance containing the drug then the law presumes that he intended to sell it unless he, Mr Elrick, can satisfy you that he possessed it for some purpose other than sale. And he does not have to satisfy you of that, that he possessed the drug for a purpose other than sale beyond reasonable doubt; he only has to satisfy you that it was more probable than not - more likely than not - that he possessed the drug, if you find he did possess it, for some purpose other than for sale.
Of course Mr Elrick denies that he possessed either quantity of drug for sale. Indeed he says that he only possessed the fire-pit quantity for the very, very short time between taking it from the verandah table where his partner was sitting and scattering it in the fire-pit area. In those circumstances he did not possess it for sale. And he denies that he was ever even in possession of the vending machine quantity. He did not know that it was there. He knew nothing about that. So before I go on, let me repeat, if the prosecution proves beyond reasonable doubt that Mr Elrick was in possession of more than 2 g of the drug, in the case of each of these charges, considered separately, then the law presumes he intended to sell that quantity of the drug or some of it unless he, Mr Elrick, can satisfy you that he possessed that quantity, namely more than 2 g, for some purpose other than sale and he does not have to satisfy you of that beyond reasonable doubt. He only has to satisfy you that it was more probable than not that he possessed a quantity of the drug for some purpose other than for sale.
Ladies and gentlemen, you will notice in the agreed facts that there are mentions of a quantity of substance which in turn contained a quantity of the drug methylamphetamine. When you are considering whether or not he was in possession of more than 2 g, it is the quantity of total substance that counts. You heard that drugs are cut or mixed. So the 2 g refers to the total quantity of crystalline substance but I am going to say a bit more about total quantities, ladies and gentlemen, and remind you that the fire-pit quantity that is the subject of count 1 weighed a total of 2.20 g but that weight, the 2.20 g, may have included a small amount of other material such as dirt. The small amount of other material is not quantified in grams so, ladies and gentlemen, the presumption that the accused intended to sell some or all of the fire-pit quantity of substance - I'm sorry, I go back - in the circumstance that that 2.20 g total contained a small amount of other material such as dirt, you may think, and it is a matter for you, but you may think it is reasonably possible that the total weight of the crystalline substance found in the fire-pit quantity was a little less than 2 g because there was an unquantified amount of other material, perhaps dirt, in there. If you think that is a reasonable possibility, that there was a bit less than 2 g of crystalline substance in the fire-pit quantity, the presumption that the accused intended to sell some or all of that quantity does not apply and the prosecution would simply have to prove beyond reasonable doubt that he intended to sell some of it, without the assistance which the law gives them by the presumption. So that is a matter for you, ladies and gentlemen. I just alert you to the fact that it may be a reasonable possibility, given the fact that there was an unquantified amount of other material, that there was not as much as 2 g. That is a matter for you, ladies and gentlemen, not for me but you might think that is a bit of a “lineballer”, if I may use that expression.

The appellant contends that in the circumstances, and in particular having regard to the closing addresses of counsel, the trial judge erred in leaving the application of the presumption in relation to count 1 to the jury. In the alternative, the appellant contends that the terms of the direction given (and in particular, his Honour’s concluding reference to the issue being a “lineballer”) were apt to encourage speculation on the part of the jury, and thereby occasioned a miscarriage of justice.
I do not accept that the trial judge erred in not withdrawing from the jury the potential application of the presumption in respect of count 1. Not only did neither counsel request that the judge adopt this course, but also neither counsel made any submissions critical of his Honour’s approach at the conclusion of the summing up.
If the trial had only related to count 1, then it may be that the prudent course, given the attitude of both counsel, would have been to not leave the application of the presumption to the jury. However, even in that scenario, the rationale for taking that approach would, in my view, be so as to minimise any risk of confusion that might arise from the jury having to grapple with the reversal of onus inherent in the operation of the presumption. It would not be because it was not an issue that could properly or appropriately be left to the jury. However, in the present case, the trial judge was required to explain the presumption to the jury in the context of count 2, and so these considerations of prudence and pragmatism carry significantly less weight.
More fundamentally, I consider that the application of the presumption in respect of count 1 was a matter properly left to the jury. Just because the issue was one in relation to which the fact-finder was unlikely to have been satisfied, does not mean that the issue was one that should have been positively taken away from the jury’s consideration. There was evidence that was relevant to the issue, and it was appropriate that the jury be directed to consider that evidence and form their own view about it. Just because, as both counsel submitted, it would have been difficult for the jury to exclude as a reasonable possibility that there was 0.2 grams or more of contaminant, does not mean the issue was not one for the jury.
Further, I do not think the terms of the trial judge’s summing up on this topic invited impermissible speculation. His Honour’s directions accurately identified the precondition to the operation of the presumption, and exposed the issue or difficulty that arose by reason of the fire pit methamphetamine containing a small but unquantified amount of other material. Indeed, his Honour expressly observed that “it is a matter for you, but you may think it is reasonably possible that the total weight of the crystalline substance found in the fire-pit quantity was a little less than 2 grams because there was an unquantified amount of other material, perhaps dirt, in there.” His Honour added that if the jury thought that was a reasonable possibility, then the presumption did not apply.
I do not think the trial judge’s concluding reference on this topic to the issue being a “lineballer” alters the analysis. This did perhaps suggest that the issue might be finely balanced, and hence suggest that there might perhaps be something more in the issue than counsel had suggested. But I do not think it was an impermissible or inappropriate comment for the trial judge to have made.
Whilst the reference to the issue being a “lineballer” might have been better left unsaid, given the approach taken to the issue by counsel in their closing addresses, I do not think it constituted an invitation to speculate. It was coupled with yet another reference to the issue being a matter for the jury, and would have been understood in context as an invitation merely to consider and determine the issue of the application of the presumption for themselves. In my view, that was an appropriate direction.
In summary, when the relevant passage from the trial judge’s summing up is read in its entirety, and in the context of the closing addresses and the trial as a whole, I do not think the appellant has established any miscarriage of justice.
The absence of any submission or complaint on this topic from counsel at the conclusion of the summing up – given their opportunity to hear and understand the impugned passage of the summing up in the overall context of the trial – reinforces the conclusion I have reached in this respect.
While I would grant permission to appeal on grounds 1 and 2, I would nevertheless dismiss the appeal on those grounds.
Ground 3: The CCTV footage of visitors
Ground 3 involves a contention that the trial judge erred in admitting the CCTV footage of people coming and going from the appellant’s property in the seven day period leading up to the police search of that property. The appellant contends that the evidence did not have the “strong probative value” that was a precondition to its admissibility under s 34P(2)(b) of the Evidence Act 1929 (SA).
As mentioned at the outset of these reasons, the prosecution sought to rely upon various items of evidence in support of its case that, as at the date of the police search, the appellant was engaged in the business of trading in illicit drugs.
The evidence was said to be probative of both the appellant’s possession, and intention to sell, the methamphetamine the subject of both counts. In so contending, the prosecution sought to invoke orthodox reasoning of the type considered by the High Court in R v Falzon[4] and in a series of decisions in this Court.[5] In short, the intended relevance and use of the evidence was that it was, if accepted, probative of the appellant’s involvement in a drug trading enterprise, and hence of the appellant having a contemporaneous interest in trading, and willingness and inclination to trade, in illicit drugs. As such, the evidence was circumstantial evidence probative of the appellant having possession of the methamphetamine the subject of counts 1 and 2, and of him having an intention to sell some or all of that methamphetamine.
[4]     R v Falzon (2018) 264 CLR 361 at [1], [40]-[42].
[5]     Such as R v Soteriou (2013) 118 SASR 119 at [27], [32]; R v Jones (2018) 131 SASR 532 at [21]; R v Singh [2019] SASCFC 51 at [73]; BNM v The Queen [2020] SASCFC 10 at [54]; Kroni v The Queen [2021] SASCFC 15 at [3], [25]-[30], [41].
By way of overview, that evidence consisted of the following:
·Text messages on the appellant’s mobile phone suggesting that he was a person who sold drugs. The only messages ultimately relied upon by the prosecution in this respect were a handful of messages from a person, identified on the appellant’s phone as “Nick”, over a period of a couple of hours in the morning of 21 February 2019. While there was some evidence contesting the meaning of one of these messages relied upon by the prosecution, and the appellant only responded to one of the messages, it was apparent that at least a couple of the messages from Nick were directed towards the purchase of 1 gram of an illicit drug from the appellant.
There was also evidence led from the police officer who searched the appellant’s phone that it appeared as though all messages prior to 21 February 2019 had been deleted from the appellant’s phone. While the appellant acknowledged in his evidence that he had deleted all of his messages, he said that he did so because they included communications with women that he did not want his partner to know about.
·A number of press-seal plastic bags found in the appellant’s house by the police.
·Cash in the amount of $1,165 found in the appellant’s wallet. The defence case included a receipt dated 15 February 2019 from a poker machine payout of $1,301 in the name of the appellant, which led to the prosecution not ultimately relying upon this evidence as probative of any involvement by the appellant in a drug trading business.
·Evidence that a Mr Chatterton was observed leaving the appellant’s property on 3 February 2019, was stopped by the police, and was found to be in possession of a point of methamphetamine.
·CCTV footage that covered the front porch of the appellant’s house and showed people coming and going from the appellant’s property in the seven day period leading up to the police search. The evidence consisted of a series of stills taken from that footage. It showed some 33 visitors during the seven day period leading up to the search of the appellant’s property, and was said by the prosecution to show an unusually large number of visitors coming and going from the house, at unusual times, and often staying for very short periods.
The visitors shown on the CCTV footage included Nick (the author of the text messages referred to above), and Mr Chatterton (referred to above).
The appellant gave evidence to the effect that he was not home when some of the people attended, that some were visiting other people at the house, and as to innocent explanations for other visitors.
The prosecution accepted that the evidence it sought to adduce in this respect was discreditable conduct evidence, with the result that its admissibility fell to be determined by reference to s 34P of the Evidence Act. Indeed, the prosecution also accepted (properly in my view[6]) that the use sought to be made of the evidence involved a form of propensity reasoning, with the result that the trial judge needed to be satisfied not only that the probative value of the evidence “substantially outweighs” any prejudicial effect it may have (s 34P(2)(a)), but also that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” (s 34P(2)(b)).[7]
[6] BNM v The Queen [2020] SASCFC 10 at [54]; R v Jones (2018) 131 SASR 532 at [30]; R v Soteriou (2013) 118 SASR 119 at [26]; R v Lang (2002) 137 A Crim R 263 at [35]-[36].
[7] As to the cumulative nature of the conditions in ss 34P(2)(a) and (b), see BNM v The Queen [2020] SASCFC 10 at [55]; MDM v The Queen [2020] SASCFC 80 at [107]-[108]. Further, by reason of s 34P(3), the trial judge was also required to be satisfied that the permissible use of the evidence was able to be kept sufficiently separate and distinct from the impermissible use.
The appellant contends that the trial judge erred in admitting the stills taken from the CCTV footage, and in particular in accepting that that evidence had the requisite “strong probative value” required by s 34P(2)(b).
In assessing the probative value of a particular item of evidence for the purposes of s 34P(2)(b) of the Evidence Act, it is of course necessary to identify the particular issue or issues to which it is said to be relevant, and the use sought to be made of the evidence. I have mentioned earlier the use sought to be made by the prosecution in this case of the CCTV footage; namely, that it was circumstantially probative of the appellant’s involvement in a drug trading business, and hence also of his possession and intention to sell the methamphetamine the subject of counts 1 and 2.
As the High Court observed in Johnson v The Queen,[8] the expression “probative value” is not defined in the Evidence Act, but should be understood as requiring an assessment of the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue.
[8] Johnson v The Queen (2018) 266 CLR 106 at [18]; applied in R v Roberts (2019) 134 SASR 483 at [78].
In assessing the probative value of an item of evidence, and in particular in determining whether it has the “strong probative value” required by s 34P(2)(b) of the Evidence Act, it is important to appreciate that the task is one to be carried out by the trial judge, at the commencement of trial, or at least prior to the receipt of all of the evidence. As such, the task must be understood as one that is distinct from the function of the jury[9] in determining the ultimate weight to be afforded to the particular item of evidence. While the task may permit of some consideration by the trial judge of matters such as the likely or inherent credibility or reliability of the evidence, and the competing inferences that might be available, the focus of the task is upon the probative capacity of the evidence. The task is not one of attempting to predict the ultimate weight of the evidence in light of the evidence that is in fact adduced during the course of the trial. Indeed, the trial judge will often not know, and have no way of reliably predicting, what challenges may be made to the prosecution evidence, and what evidence may be led in the defence case. The prospect that such challenges and evidence may ultimately neutralise certain items of prosecution evidence does not necessarily render that evidence inadmissible as lacking the requisite probative force.
[9] Or, in the case of a trial by judge alone, the judge at the end of the trial.
Further, in carrying out the assessment of the probative value of an item of evidence, particularly where that evidence forms part of a body of circumstantial evidence relied upon by the prosecution, the trial judge must consider that evidence in the context of the prosecution case as a whole. As I recently observed in Kroni v The Queen,[10] particular items said to be indicia of involvement in a drug trading enterprise, when considered individually, may be readily capable of innocent explanation, or otherwise lack any significant probative value. However, when viewed collectively, and in the context of the evidence as a whole, those items may well have the requisite strong probative value.
[10] Kroni v The Queen [2021] SASCFC 15 at [31].
In challenging the probative capacity of the CCTV footage in the present case, the appellant’s counsel first complained that in the absence of expert evidence there was no basis upon which a jury could rationally infer from evidence of a large number of visitors to a premises (even if those visits occurred over a short period of time, at unusual times of the day, and were generally of a short duration) that a drug trading enterprise was being operated from the appellant’s premises.
It is true that the prosecution, as it did in this case, often leads evidence from a relevantly experienced police officer as to various features of, or items often associated with, drug trading enterprises. The admissibility of such evidence has long been accepted,[11] albeit that it is sometimes described as non-opinion expert evidence, or “pseudo-expert evidence”, reflecting the fact that it is typically more in the nature of generalised observations from observed facts within personal experience outside the ordinary lay experience, rather than opinion evidence based upon some formal qualification or course of study.[12]
[11] See, for example, Anderson v The Queen (1992) 60 SASR 90 at 104, 108.
[12] Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017) at [29020]-[29025].
Here, the evidence led from the relevant police officer (Detective Sergeant Nguyen) did not squarely address the manner in which a drug business might be operated from a residential premises, and in particular what this might entail in terms of the number, timing and duration of visits by customers.[13] However, I do not think that the CCTV footage sought to be relied upon by the prosecution in this case required any expert foundation for it to have probative value. In my view, the likelihood of a drug business operated from a residential premises attracting multiple visits from customers, and those visits often being of short duration, and occurring at unusual times, is a matter that a lay person could appropriately assess for themselves. It is really a matter of common sense, and a lay person would be well-placed to consider the extent to which the visits shown by the CCTV footage in this case involved a departure from the number, timing and duration of visits that one might ordinarily expect at a residential premises from which no business was being conducted.
[13] The officer did make passing reference, when discussing the use that might be made of CCTV cameras in such a situation, to the monitoring of “the movements of people who will come and go from the premises”; albeit that the references appear to have been directed to potential threats to the enterprise rather than customers.
However, even accepting that such evidence might have some probative value in the absence of expert evidence, the appellant’s counsel also contended that the evidence here did not have the requisite strong probative force having regard to considerations such as that it was not possible to identify the individual visitors and the purpose of their visits from the CCTV footage; that several of the visitors arrived with objects in their possession, and in the case of one visitor, was accompanied by a child; that some of the visitors stayed for relatively lengthy periods of time; that some of the visitors appear to have attended at times when the appellant may not have been present at the property; and that there were three other people living or staying at the property during the relevant period. In other words, the appellant’s counsel contended that the evidence left open a number of potential explanations for the visitors which did not involve the appellant, or indeed anyone, operating a drug trading enterprise from the appellant’s residence.
I readily accept that the weight ultimately to be attached to the CCTV footage would require consideration of each of these matters, as well as any evidence adduced in the defence case by way of explanation for some or all of the visitors. However, I do not think that these potential limitations upon, or weaknesses in, the CCTV footage were sufficient to deprive the evidence of what I consider to be its strong probative capacity in the context of the prosecution case as a whole.
Not only did the CCTV footage need to be considered in conjunction with the text messages on the appellant’s mobile phone, the cash found in his wallet,[14] and the press-seal bags found at his home, but also the evidence linking two of the visitors seen on that footage (Nick and Mr Chatterton) to other evidence probative of them having engaged in drug transactions with the appellant or while at the appellant’s residence. Considered in this context, I consider that the evidence was strongly probative of a drug trading enterprise being conducted from the appellant’s premises and of the appellant having some involvement in the same, and hence also strongly probative of the appellant’s possession and intention with respect to the methamphetamine the subject of counts 1 and 2.
[14] Even though the cash was ultimately the subject of an ‘innocent’ explanation that the prosecution did not challenge, at the point of considering the issue of admissibility it was part of the prosecution’s circumstantial case as to the appellant’s involvement in a drug trading enterprise.
I consider that the decisions of this Court in relation to the probative value of evidence of the indicia of a drug trading enterprise, to which I have earlier referred, support my conclusion as to the strong probative value and admissibility of the CCTV footage.
For completeness, I note the appellant’s submissions seeking to distinguish R v Firman.[15] In that case, heroin was found in a vehicle in which the two accused were travelling. Items that could be used in the sale and distribution of heroin were also found in the house in which they both lived. During a period of about 1¾ hours while the police were present at that house, the police answered 15 telephone calls to the house, of which 10 were plainly enquiries about purchasing drugs. On the appeal, the Court upheld the admissibility of these telephone calls on the basis that they were plainly the sort of inquiries that one would expect if a drug business were being operated from the premises.
[15] R v Firman (1989) 52 SASR 391.

Whilst there is perhaps a general analogy that can be drawn, I accept the appellant’s submission that the CCTV footage in the present case is distinguishable from the telephone calls in R v Firman. The content and terms of the latter meant that they were more directly, and strongly, probative of the existence of a drug trading enterprise in which the accused in that case were involved. However, despite the CCTV footage in the present case not including any sound, with the result that the purpose of the visits was not as directly and readily ascertainable, it does not follow that the CCTV footage, when considered in conjunction with the balance of the circumstantial evidence, was not strongly probative of the existence of a drug trading business in which the appellant was involved. Indeed, for the reasons set out earlier, I have concluded that it did have this strong probative capacity.
For the reasons given, I would dismiss ground 3.
Ground 5: Circumstantial evidence direction
Ground 5 alleges a miscarriage of justice arising out of the failure of the trial judge to give what is sometimes referred to as a circumstantial evidence direction or Peacock direction.[16] Relying upon the reasons of Kourakis CJ in R v Gebert,[17] the appellant contends that given the circumstantial nature of the prosecution case as to the appellant’s possession and intention to sell the methamphetamine the subject of count 1, the trial judge erred in not directing the jury in terms that it needed to be satisfied that the appellant’s possession of the methamphetamine with an intention to sell was the only rational inference to be drawn from the circumstances, and that it needed to exclude any reasonable hypothesis consistent with innocence.
[16] Named after Peacock v The King (1911) 13 CLR 619 at 634; see also Plomp v The Queen (1963) 110 CLR 234 at 252.
[17] R v Gebert [2019] SASCFC 37 at [53].
I recently had occasion to address an equivalent submission in BNM v The Queen.[18] It is convenient to quote a relatively lengthy passage from my reasons in that case (with which Peek J and David AJ agreed), because I consider that my reasons for rejecting the submission in that case apply with equal force in the present case:[19]
[18] BNM v The Queen [2020] SASCFC 10.
[19] BNM v The Queen [2020] SASCFC 10 at [85]-[94].
It is customary in cases that are wholly or substantially based on circumstantial evidence to direct the jury that guilt must be not only a rational inference, but the only rational inference to be drawn from the circumstances; and that it is a corollary of this that a conclusion of guilt requires the exclusion of any reasonable hypothesis consistent with innocence.[20] This is sometimes referred to as a Peacock direction.
[20] Peacock v The King (1911) 13 CLR 619 at 634; Plomp v The Queen (1963) 110 CLR 234 at 252.
The Peacock direction is generally considered helpful in a circumstantial case in reducing the risk of the jury succumbing to the human tendency to leap to conclusions, or to assume that where there is smoke there is fire. It is intended to encourage the jury to avoid resting on their initial or general impression of the evidence, and to undertake a more minute investigation of the evidence and circumstances.[21]
[21] R v Gebert [2019] SASCFC 37 at [53].
However, such a direction is ultimately no more than an amplification of the general principle that the prosecution must prove its case beyond reasonable doubt. There is no invariable rule of practice, let alone rule of law, that a Peacock direction must be given in every case involving circumstantial evidence. Whether the failure to give such a direction in a particular case has occasioned a miscarriage of justice will depend upon the nature and circumstances of the particular case, and the terms of the summing up considered as a whole.[22]
[22] Shepherd v The Queen (1990) 170 CLR 573 at 578.
In R v Gebert[23] Kourakis CJ (with whom Kelly and Hinton JJ agreed) held that the failure to give a Peacock direction did give rise to a miscarriage of justice. His Honour considered that such a direction was necessary to ensure that the jury moved past the initial impression left by the evidence in that case to a closer analysis of it.
While that case, like the present case, involved allegations of drug trafficking, it is distinguishable from the present case. Not only did that case involve different and more numerous issues, but also the body of circumstantial evidence was more extensive and disparate than in the present case. Further, and importantly for present purposes, the trial judge in that case not only failed to give a Peacock direction, but also did not otherwise advert to the existence of (let alone the need to exclude as a reasonable possibility) the innocent explanations that had been proffered by the defendant.
The present case was essentially a single issue case, with the only realistic possibilities on the issue of possession being possession by the appellant or possession by FR. There was a relatively confined and readily understandable body of circumstantial evidence relied upon by the prosecution in support of the former. The trial judge gave the usual directions to the jury to the effect that it could only find the appellant guilty if satisfied beyond reasonable doubt of the prosecution case.
While the trial judge did not give the customary Peacock direction, his Honour did identify at length the nature of the defence case, and in particular the defence contention that FR may have been responsible for the methylamphetamine and cash located in the hidden compartment above the pantry in the appellant’s Oakden premises. I have earlier set out some of the trial judge’s summary of the defence case. In both the passages that I have set out, and the balance of the trial judge’s summary of the defence case, his Honour made extensive reference to the defence contention that FR was responsible for the methylamphetamine and cash found by the police, and the evidence said to support that hypothesis.
Further, at the end of his summary of the defence case, the trial judge said:
In the event that you agree that another person could have left the drugs there without the accused’s knowledge, it would not have been proved beyond reasonable doubt that the accused possessed the drugs and it would follow that it would not have been proved beyond reasonable doubt that she had them for the purpose of trafficking and in those circumstances she is entitled to an acquittal.
This passage from his Honour’s reasons is significant because it was tantamount to a Peacock direction expressed in terms specific to the particular case (that is, specific to the particular hypothesis consistent with innocence relied upon by the defence), rather than in the general terms in which it is generally expressed.
The only risk of miscarriage identified by the appellant on appeal was the risk that the jury might have lost sight of the need to exclude as a reasonable possibility that FR was responsible for the methylamphetamine and cash, and the need to move beyond an impressionistic consideration of the evidence to a more minute examination of the evidence relevant to that hypothesis. In my view, in a case where there was only one issue in dispute, the circumstantial evidence was relatively narrow in compass, and the only hypothesis consistent with innocence was not only central to the defence case but also the subject of the directions adverted to above, there was no miscarriage of justice occasioned by the trial judge’s failure to give the customary Peacock direction.
[23] R v Gebert [2019] SASCFC 37 at [54].
Here, the prosecution case as to the appellant’s intention in possessing the fire pit methamphetamine was circumstantial. However, as in BNM v The Queen,[24] the present case involved a much more confined and readily understandable body of circumstantial evidence than in R v Gebert.[25] While the evidence in R v Gebert raised multiple alternative hypotheses which were not the subject of any directions by the trial judge, the evidence in the present case only revealed one alternative hypothesis; namely, that the appellant’s possessed the fire pit methamphetamine only for the very limited purpose of attempting to dispose of it so as to keep his partner out of trouble. That hypothesis was squarely addressed by the trial judge in his directions, and given its centrality to the evidence of the appellant and the defence case, I do not think it can sensibly be said that the jury would not have appreciated that it was necessary for them to exclude this as a reasonable possibility.
[24] BNM v The Queen [2020] SASCFC 10
[25] R v Gebert [2019] SASCFC 37.
For these reasons, it has not been established that the trial judge’s failure to give a Peacock direction occasioned any miscarriage of justice. I would thus reject ground 5.
Ground 6: Prosecution submission as to the absence of scales
Ground 6 alleges a miscarriage of justice arising out of what the appellant contends was an invitation to the jury by the prosecutor, in his closing address, to engage in impermissible speculation.
It will be recalled that a significant aspect of the prosecution case was its reliance upon various items of discreditable conduct evidence which it contended established that the appellant was in the business of trading in illicit drugs. In meeting this aspect of the prosecution case, the defence case involved not only suggesting innocent explanations for some of the items relied upon by the prosecution in this context, but also pointing to the fact that the police did not find various other items (such as scales, tick lists and cutting agent) which, on the evidence, were often used in drug trading enterprises.
It was in this context that the prosecutor said the following in relation to scales in his closing address.
Based on those three bodies of evidence, the text message from Nick, CCTV and the press-seal bags, I suggest that you can find that the accused was a person who was dealing in drugs as at 21 February 2019. You have heard a fair bit of cross-examination about the absence of scales from the address, that's an important issue, and that's an issue that you will have to give careful attention to. Before you engage in that sort of reasoning, the reasoning that 'no scales, therefore, not a drug dealer', you'll have to be satisfied that the police didn't miss the scales. Now, I know that the evidence was that police would be looking for them. You might have thought that the search was an extensive search and maybe if they were there they would have been found but you have to think about that, is there a chance that they were missed?
But the absence of scales, whilst the scales are something that might commonly be found, the fact that there are no scales doesn't detract from all the other evidence that I've told you about, those three bodies of evidence. Just because there are no scales, it doesn't necessarily mean he's not in the business of dealing drugs. When you're giving that issue consideration, can I ask you to consider that with the CCTV, with the message from Nick and with the presence of the press-seal bags.
It can be seen from this that the prosecutor made two submissions in relation to the scales. The first was to the effect that it does not necessarily follow from the fact that no scales were found that there were no scales at the appellant’s property. The second was that even if there were no scales at the appellant’s property, it did not necessarily follow that the appellant was not in the business of trading in illicit drugs.
The first submission had little merit in the context of this case, and might have been better not made. But I say that it might have been better not made only because it had little merit; not because it was inaccurate or otherwise problematic. I do not think it was prone to mislead or distract the jury, or to encourage them to engage in impermissible speculation.
The position may have been otherwise had the prosecutor put a submission that the jury could be positively satisfied there were scales at the property. This would have been a submission that simply could not be sustained on the evidence. However, the prosecutor here did not go that far. His submission merely identified the strict limits of the evidence (in effect drawing the distinction between the absence of evidence that something was present and positive evidence that something was not present), and reminded the jury that they would need to be “satisfied that the police didn’t miss the scales” before determining the weight to be attached to defence arguments as to the significance of the absence of scales. Further, in the next two sentences, the prosecutor quite properly made reference to the evidence that might have led the jury to accept that there were in fact no scales; namely, the evidence that the police would be looking for scales, and that they carried out an extensive search such that the jury might accept they would have been found if they were present.
In other words, whilst raising the issue for the jury’s consideration, and indeed ending with a reference to the jury needing to consider “is there a chance that they were missed?”, the prosecutor exposed the evidential limitation inherent in his submission. In my view, given the circumstantial nature of the prosecution case in respect of its contention that the appellant was a drug trader, and intended to sell the methamphetamine the subject of count 1, there was nothing wrong with the prosecutor inviting the jury to focus upon the precise weight it might decide to attach the particular items of evidence when considered in the context of the evidence as a whole. I do not think that the prosecutor crossed the line between making a submission that might not have much merit on the evidence, and making a submission that invited impermissible speculation (for example, by contending for a positive finding which had no evidential basis at all).
For completeness, I observe that neither defence counsel nor the trial judge said anything on the topic of the scales that would have caused the jury to speculate to the effect that they might have been present but not found by the police.
Defence counsel addressed the topic in the following terms at the end of her closing address:
We then come to the evidence of the scales and obviously my learned friend’s picked up on this, that I’ve been asking a few questions about that and you might also have thought I’ve been going on about them for some time. I’ve done that for a good reason because scales are a vital tool in the trade of selling drugs. It’s how the business operates, it’s a fundamental tool for a drug dealer because methylamphetamine is sold by the weight and, as my learned friend said to you, resealable bags are like that for dealers … Well, scales are far more important in that you need to weigh your drugs because if you’re .1 either way you’re going to be losing $30-$50, as you’ve heard, in February of ’19. So there were no scales found at [the Salisbury North property], I don’t say at Mr Elrick’s home because it was a house that was shared by four adults.
The next thing that wasn’t found were cutting agents. None of them were found in the house. You may also recall another tool or item that drug dealers have is a tick list, a list documenting IOUs created by a drug dealer. We don’t have any evidence of a tick list in this case. So you might think the evidence of Mr Elrick being portrayed by the prosecution as a dealer is just not coming together.
And the trial judge said the following towards the end of his summing up:
You will remember that in her address to you [defence counsel] emphasised that no scales or tick lists, items often found at the premises of drug dealers, were found at the accused’s premises.
It is noteworthy that both defence counsel and the trial judge addressed the jury in terms of the evidence being that no scales were found, as opposed to there being evidence that definitively established that they were not there. On the evidence, it was likely only a short step from one to the other, and a step that defence counsel and the trial judge perhaps impliedly assumed the jury would have little hesitation in taking. However, consistently with my earlier observations, both obviously considered it appropriate to leave the matter to the jury. In my view, it was appropriate to do so. It did not involve any invitation or encouragement to engage in impermissible speculation.
For the reasons set out, I do not accept that the appellant has established any miscarriage of justice arising out of the prosecutor’s submissions in relation to the evidence that scales were not found by the police. I would dismiss ground 6.
Conclusion
For the reasons set out, and noting that ground 4 was abandoned, I would grant permission to appeal on grounds 1 and 2, but nevertheless dismiss each of grounds 1, 2, 3, 5 and 6. I would thus dismiss the appeal.
BLEBY JA: For the reasons given by Doyle JA, I would grant permission to appeal on Grounds 1 and 2, but dismiss the appeal.