Elrick v The Queen

Case [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…

Continue reading Elrick v The Queen

Sign in free to access the full text

Details
AGLC
Elrick v The Queen [2021] SASCA 13
Case
[2021] SASCA 13
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, Elrick, against a conviction for drug trafficking. The appeal raised several grounds, including allegations of a miscarriage of justice due to the trial judge's failure to provide a specific direction to the jury regarding circumstantial evidence.

The central legal issue before the appellate court was whether the trial judge's omission to give what is commonly known as a "Peacock direction" constituted a miscarriage of justice. The appellant argued that because the prosecution's case relied substantially on circumstantial evidence, the jury should have been directed that guilt must be the only rational inference to be drawn from the circumstances, requiring the exclusion of any reasonable hypothesis consistent with innocence.

The court, referencing its previous decision in *BNM v The Queen*, explained that while a Peacock direction is often helpful in cases based on circumstantial evidence to encourage a detailed examination of the evidence and avoid leaps to conclusions, it is not a mandatory rule of law. The necessity and impact of failing to give such a direction depend on the specific circumstances of the case and the summing up as a whole. In this instance, the court found that although the customary Peacock direction was not given, the trial judge had adequately identified and explained the defence's case, particularly the hypothesis that another person may have been responsible for the drugs. The judge's specific directions to the jury, which effectively required them to consider and exclude this innocent explanation to be satisfied beyond reasonable doubt, were deemed to be tantamount to a Peacock direction tailored to the facts. Therefore, the court concluded that no miscarriage of justice had occurred.

The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.