R v Gebert

Case [2019] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GEBERT

[2019] SASCFC 37

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

12 April 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - DIRECTIONS TO JURY

Appeal against a conviction of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

In 2012, police conducted a search of a shed on premises in which the appellant, Mr Gebert, was residing. The appellant was lying partially on a mattress in that shed, with his arms under a desk. After removing the appellant from the shed, police found a sunglasses bag wedged between a desk and a wall. Inside that bag was a quantity of pyrrolidinopentiophenone (alpha-PVP). These drugs were the subject of the offending for which the appellant was convicted at trial by a jury.

The appellant appeals on the following grounds:

1.       The Judge erred in failing to adequately direct the jury in that his Honour failed to address, or sufficiently address, certain evidence given by the appellant.

2.       The Judge erred in failing to adequately direct the jury in relation to the circumstantial evidence presented by the Crown.

3.       The Judge erred in failing to adequately direct the jury as to the expert evidence given by Detective Sergeant Hunt.

Held by Kourakis CJ (Kelly and Hinton JJ agreeing), allowing the appeal on grounds 1 and 2 and dismissing ground 3 of the appeal:

1.       The appellant’s presence on the mattress on the floor supported his innocent explanation. The judge did not refer to the appellant’s innocent explanation in the summing up. The only reasonable explanation direction was necessary to ensure that the jury moved past the initial impression left by the evidence to a closer analysis of it.

2.       The appellant gave innocent explanations as to the indicium of trafficking, and the prosecution case in rebuttal was circumstantial. This Judge’s failure to give the only reasonable explanation direction in this respect means that there can be no confidence that the jury moved past the general impression of the combined effect of the incriminating circumstances to consider the appellant’s innocent explanations.

3.       In the circumstances of this case, the insufficiency of the Judge’s directions has resulted in a miscarriage of justice.

4.       The evidence given by Detective Sergeant Hunt was general in nature and established a broad context in which incriminating circumstances could be viewed. The Judge warned the jury against giving the evidence much weight.

Controlled Substances Act 1984 (SA) s 32(3), referred to.
Peacock v The King (1911) 13 CLR 619; R v Baden-Clay (2016) 258 CLR 308; Plomp v The Queen (1963) 110 CLR 234; Barca v The…

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R v Gebert [2019] SASCFC 37
Case
[2019] SASCFC 37
Decision Date

CaseChat Overview and Summary

In R v Gebert, the Court of Criminal Appeal of South Australia considered an appeal by Mr Gebert against his conviction for possession of a commercial quantity of alpha-PVP. The prosecution's case relied on circumstantial evidence, including the discovery of a significant quantity of alpha-PVP in a sunglasses bag within a shed where Mr Gebert was found, along with syringes containing the drug. Mr Gebert provided innocent explanations for his presence and the circumstances surrounding the discovery of the drugs.

The central legal issue before the court was whether the trial judge's directions to the jury adequately explained the application of the onus of proof to the circumstantial evidence presented by the prosecution. Specifically, the court had to determine if the jury was properly instructed that the prosecution bore the burden of excluding any reasonable hypothesis consistent with Mr Gebert's innocence before they could convict him based on the circumstantial evidence.

The court found that the trial judge's directions were insufficient. While the judge referred to the circumstantial evidence, they failed to adequately explain that the prosecution could only prove possession and trafficking if the evidence excluded any innocent explanation for the combined circumstances. Mr Gebert had given evidence of alternative, innocent explanations for the incriminating circumstances, and the judge did not direct the jury that the prosecution had to disprove these innocent explanations beyond a reasonable doubt. This failure to properly instruct the jury on the standard of proof in relation to circumstantial evidence amounted to a miscarriage of justice.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would allow the appeal on the first two grounds treating them together as a complaint that the directions failed to sufficiently explain the circumstantial use of the items of evidence mentioned and the application of the onus of proof to that reasoning. Circumstantial evidence was a substantial part of the prosecution case. Mr Gebert gave evidence of alternative, innocent, explanations for the incriminating circumstances on which the prosecution relied. The Judge never directed the jury that the prosecution could not prove that Mr Gebert possessed or trafficked in the alpha-PVP unless the evidence excluded any innocent explanation for the combined circumstances on which it relied. In the circumstances of this case, the insufficiency of the Judge’s directions has resulted in a miscarriage of justice. I would direct that there be a new trial. My reasons follow.The prosecution case and evidence The prosecution’s case was that the accused was in possession of the alpha-PVP and was trafficking in it by engaging in any of the following: ·storing the drug;·guarding or concealing the drug;·preparing the drug or separating it into discrete units; or ·allowing the use of premises or jointly occupying premises where the drug was located. On 28 September 2012 at 8:45am, police attended and searched a shed which was used as both a workshop and a residence (the shed). When the police arrived, a young woman was standing at the entrance of the shed. The front gate to the shed was padlocked. The police used bolt cutters to cut through the chain securing the gate to the shed before entering it. Mr Gebert was found in a room, lying partially on top of a mattress with his arms under a desk. His hands were not visible but he appeared to the police to be handling something. The police officers directed Mr Gebert to stop what he was doing and to reveal his hands but Mr Gebert ignored them. He was restrained and taken outside. After Mr Gebert was removed from the shed, the police conducted a search of the premises. They found a black sunglasses bag wedged between the desk and a wall. Inside the sunglasses bag were two plastic bags containing white powder. On analysis, the white powder was shown to weigh 51.87 grams and contained alpha-PVP. This was the subject of the count on which Mr Gebert was convicted. The police also found five syringes filled with small amounts of alpha-PVP in liquid form but no charge was laid for possession of that drug. The prosecution called Detective Sergeant David Paul Hunt (Detective Sergeant Hunt) to give expert evidence in relation to drug trafficking in South Australia. He testified that he was familiar with alpha-PVP even though it was not commonly found in South Australia. He gave evidence that alpha-PVP can have varying effects, depending on the dose rate. He explained that it can ‘give a sense of euphoria and can also have other negative effects, more negative effects if taken in larger doses which can range from delusions to loss of bodily mobile control’. Alpha-PVP can be consumed ‘by intravenously injecting, … eating orally or … through smoking’. Detective Sergeant Hunt gave evidence that alpha-PVP is ‘almost exclusively … imported into Australia’ and that he did not have knowledge of any clandestine laboratories in any mainland Australian State.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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