R v Gebert - [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 Queen (1975) 133 CLR 72; Shepherd v The Queen (1990) 170 CLR 573, discussed.

R v GEBERT
[2019] SASCFC 37
Court of Criminal Appeal: Kourakis CJ, Kelly and Hinton JJ

KOURAKIS CJ: This is an appeal against a conviction for an offence of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the Controlled Substances Act). The appellant, Mr Gebert, was convicted following a trial by jury of possession of 51.87 grams of alpha‑pyrrolidinopentiophenone (alpha-PVP), an analogue of 3,4 methylendioxypyrovalerone, which police found concealed in a sunglasses bag. Mr Gebert was acquitted of a second count of trafficking 15.78 grams of alpha-PVP, which was found in the refrigerator of the same premises. Mr Gebert was sentenced to three years of imprisonment with a non-parole period of 21 months.
Mr Gebert appeals against his conviction on the following grounds:
1.   The Learned Trial Judge erred in failing to adequately direct the jury as to the case for the defence in that his Honour failed to address, or address sufficiently, the evidence given by the appellant, in particular:
1.1The evidence given in relation to the imitation firearm;
1.2The evidence given in relation to the notebook;
1.3The evidence given in relation to the CCTV cameras;
1.4The evidence given of other persons occupying or being associated with the residence; and
1.5The evidence given as to the cash.
2.   The Learned Trial Judge erred in failing to adequately direct the jury in relation to the circumstantial evidence presented by the Crown, in that:
2.1There was no proper direction on the nature of circumstantial evidence; and
2.2That there was no direction as to the reasoning that needed to be applied to the following pieces of circumstantial evidence:
2.2.1The imitation firearm;
2.2.2.The text messages;
2.2.3The CCTV cameras;
2.2.4The cash; and
2.2.5The notebook.
3.   The Learned Trial Judge erred in failing to adequately direct on the expert evidence given by Detective Sergeant Hunt, in that:
3.1His Honour failed to direct the jury as to the role of expert evidence in a trial;
3.2His Honour failed to direct the jury as to the frailties attendant to the interpretation of the text messages; and
3.3His Honour failed to direct in relation to the frailties attendant to the notebook evidence.
[Ground 4 was abandoned]
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.
In cross-examination Detective Sergeant Hunt accepted that alpha-PVP was a relatively new drug, only encountered in South Australia since 2012 and that there is little knowledge or data available on it.
Detective Sergeant Hunt gave evidence that ‘[a]lmost all drugs that are in powder or crystal form [are] sold in point amounts’. A ‘point’ is one tenth of a gram. He testified that the next level up is 3.5 grams, which quantity can be described as ‘a game, an eight ball, or a ball’. The next largest quantity in which alpha-PVP is sold is an ounce. Detective Sergeant Hunt stated, however, that some dealers sell in measures of half of those standard measures. Detective Sergeant Hunt gave evidence that a ‘point’ sells for $50; a gram sells for between $250 and $300; and ‘a game’ or ‘a ball’ sells for $800. When asked about these market values in cross-examination, Detective Sergeant Hunt disclosed that he had gleaned that information in 2012 when speaking to a previous user of alpha-PVP. He accepted that the information had been gleaned from one person only.
Detective Sergeant Hunt conceded that it is not unheard of for drug users to consume four ‘points’ in a 24 hour period. He also accepted that it is possible that drug users could consume six ‘points’ in a matter of days.
During the course of the search of 28 September 2012, police found two imitation handguns on top of a chest of drawers inside the shed. One of the imitation handguns was made of metal and was only capable of firing caps. The other imitation handgun was made of plastic. Detective Sergeant Hunt gave evidence that firearms, including fake firearms, can be found where drugs are stored because dealing drugs, by virtue of its illegality, ‘has a number of risks attached to it’ and dealers use firearms to ‘ensure their protection’.
The prosecution asked the jury to infer that Mr Gebert had the metal cap gun to deter would-be thieves of the drug or for protection should a buyer try to – ‘rip him off’ during a drug deal. The shed itself was protected by a CCTV system which had a display screen set up in the lounge room of the premises. The prosecution argued that the explanation for the CCTV and other security around the premises was that Mr Gebert was holding the alpha-PVP for the purpose of sale.
The police officers seized $1,680 in cash inside a wallet under a mattress in the residential headquarters of the shed. The wallet also contained cards belonging to Mr Gebert. Detective Sergeant Hunt testified that large amounts of money are often found in proximity to illegal drugs because dealers do not deposit funds into a bank account but instead ‘tend to hide it and store it, or spend it’. The prosecution alleged that the cash was the proceeds of previous drug sales.
The police officers found a notebook on the premises. The prosecution relied upon the notebook as evidence of Mr Gebert’s participation in the sale of drugs. It was the prosecution’s case that the figures recorded in the notebook were a record of debts owed from previous sales of drugs. Detective Sergeant Hunt testified that drug transactions generally operate on a ‘cash on delivery’ basis but that in recent times drug dealers have been willing to extend credit. He explained that the tick list allows the drug dealer to keep track of how much money is owed and a list or record of the stock on hand. Detective Sergeant Hunt was taken to a photograph of a page of the notebook but he could not say that the column of figures displayed on that page amounted to a tick list.
Detective Sergeant Hunt was then taken to another photograph of a page of the notebook, which contained a reference to ‘Got one, oz’. Detective Sergeant Hunt explained that ‘oz’ is an abbreviation for ounce; that an ounce ‘is a reasonably large amount of a powdered drug’ and ‘is a very common weight to be used’. Detective Sergeant Hunt was then taken to another line on the page, which referred to ‘5,500 C’ or ‘GUS’. Detective Sergeant Hunt gave evidence that the 5,500 could be a reference to a monetary amount and that ‘GUS’ would be a nickname or name of someone. He confirmed that the amounts displayed could be owed to, or owed by, the persons named. Despite Detective Sergeant Hunt’s equivocal evidence, the prosecutor maintained in his closing address that the figures recorded in the notebook recorded debts owed to Mr Gebert for the sale of drugs.
On top of the mattress in the shed was a Sony mobile phone from which received text messages were extracted. The text messages were transcribed, organised into rows and admitted as Exhibit P7. Detective Sergeant Hunt gave evidence of an interpretation of those messages which was consistent with the prosecution case. He gave evidence that drug dealers commonly communicate with their client base via ‘communication devices’, including mobile phones. They use ‘certain codes and phrase words’. Detective Sergeant Hunt was taken to Exhibit P7. He gave evidence that ‘2 p’s’ displayed in row 7 of the first page of Exhibit P7, was a reference to a ‘point’, which was the most common amount consumed or sold in powder or liquid form at street level. Detective Sergeant Hunt gave evidence that the reference to ‘g’ and ‘soccer ball’ in another text message to which he was taken could be references to a ‘gram’ and ‘3.5 grams’ of substance respectively. He testified that a reference to a ‘whole soccer ball’ meant 3.5 grams. He also gave evidence that a reference to a ‘half g’ was a reference to half a gram. Detective Sergeant Hunt acknowledged that, from the context, the reference to a ‘half g’ immediately after the reference to a ‘whole soccer ball’, found in row 20 of Exhibit P7, might indicate that the particular drug dealer used a different code to that used by other drug dealers. In relation to another text message, he interpreted a reference to a ‘half’ to be a reference to ‘a half of the standard measure, whether it be a gram or 8-ball’. In relation to a text message which contained the words ‘That lot wasn’t to good [sic]’, Detective Sergeant Hunt explained that customers sometimes purchase drugs they are not satisfied with and seek to return them.
In cross-examination, Detective Sergeant Hunt conceded that his efforts in interpreting the text messages involved ‘educated guesswork’. Detective Sergeant Hunt testified that there were no sent messages possibly related to drug trafficking retained on the telephone. He conceded that some of the text messages could have been from a dealer to a customer.
Detective Sergeant Hunt was taken to a text message from a person whose name was shown as Pink, found on row 37 of Exhibit P7. It contained the words ‘Had a lot of returns’, Detective Sergeant Hunt gave evidence that Pink is likely a dealer, ‘sending a message back to the person that she is sourcing her drugs from’. The same message also contained the words: ‘I only had 1 taste’, and Detective Sergeant Hunt gave evidence that she was likely a user. Detective Sergeant Hunt was taken back to the message about the ‘whole soccer ball’, which was immediately followed by the reference to half a gram, and he acknowledged that Pink could be ‘using a different language’ to that he had ordinarily encountered in his experience of drug dealers in South Australia.
The prosecution asked the jury to find that the texts were indicative of Mr Gebert’s involvement in the sale of illicit drugs for ‘around three or four weeks’ prior to the search.
Cumulatively, the prosecution relied on all of the abovementioned items as evidence indicating that Mr Gebert was involved in the ongoing business of dealing illicit drugs.
The defence case
Mr Gebert’s case was that he did not have possession of the drugs that were the subject of count one. Mr Gebert testified that he had recently taken up residence in the shed after living in Port Pirie at the address shown on his driver’s licence. He explained that the shed belonged to a Mr Thomas for whom he worked from time to time. He gave evidence that Rebecca Jacobs, with whom he was romantically involved, also stayed in the premises. In respect of count two, on which Mr Gebert was acquitted, he admitted that he possessed the alpha-PVP in the refrigerator and testified that it was for his personal use.
In his evidence-in-chief, Mr Gebert explained that his hands were under the desk when police arrived in the shed because he was undressed and was searching for a pair of trousers to put on. He denied that he knew that the drugs were under the desk and that he was attempting to hide them.
Mr Gebert claimed in his evidence that because of his recent arrival in Murray Bridge, it would have been difficult for him to sell drugs. In this respect defence counsel relied upon evidence located in the shed which showed Mr Gebert’s place of residence in the period prior to his arrest. The evidence included an envelope, a Centrelink document and Mr Gebert’s driver’s licence. The addresses on the documents indicated that the appellant had resided in Port Pirie and that he had only recently arrived in Murray Bridge.
Mr Gebert’s explanation for the cash in his wallet was that it was the proceeds of the sale of an outboard motor which he had sold to a Mr Hoskins for $2,000. He explained that he had already spent some of the sale proceeds before the police seized his wallet.
The defence case was that the notebook did not constitute a ‘tick list’, because there was only one entry and no list of names recorded.
Mr Gebert testified that the messages on the phone were not sent to him. His counsel argued in his address to the jury that, in any event, they were capable of innocent explanation.
Defence counsel submitted to the jury that CCTV systems are commonplace and could not be taken as conclusive evidence of involvement in the sale of drugs.
Mr Gebert testified that the imitation guns were ‘cap guns’, which belonged to his children who were on the premises when they were searching it. Defence counsel argued that Mr Gebert was more likely to keep a real weapon than a fake one for protection.
Defence counsel also relied on the absence of the indicia of drug trafficking about which Detective Sergeant Hunt had given evidence. Detective Sergeant Hunt accepted that ‘unexplained wealth’ is ordinarily an indicia of involvement in the drug trade. He accepted that police officers search financial records of persons suspected of dealing drugs to determine if there is any unexplained wealth. He accepted that to travel to exotic locations, stay in expensive accommodation, and own luxury vehicles or expensive home appliances might also be indicia of involvement in the drug trade. Detective Sergeant Hunt accepted that sets of scales, press-sealed bags, weighing utensils and tick lists were other indicia. Finally, he accepted that it was ‘very common’ for drug dealers to have ‘one or two or three or four mobile phones’. Detective Sergeant Hunt accepted that there was no such items or circumstances found in the case of Mr Gebert.

The ultimate submission put by the defence was that the alternative explanations left a doubt over Mr Gebert’s connection with the alpha-PVP located under the desk.
The Summing Up
Early in his charge to the jury, the Judge gave directions on the criminal onus in these terms:
In every criminal trial the onus and burden of proving any charge rests on the prosecution. As a general proposition an accused person is not required to prove or disprove anything. A verdict of guilty can only be brought in if the prosecution has proved the charge, and that means each ingredient of the charge to the satisfaction of you, the jury, beyond reasonable doubt.
Another way of putting that same principle is an accused person comes into this court with a presumption of innocence in their favour. The accused is deemed innocent until the prosecution have proved the charge beyond reasonable doubt. If you are left with a reasonable doubt of his guilt on either charge arising from the evidence, you must give him the benefit of that doubt and find him not guilty of that charge.
Those orthodox directions are not impugned but the appellant contends that more was necessary; the Judge should also have given the common directions on how the onus of proof operates in a circumstantial evidence case.
The Judge did address the topic of circumstantial evidence and the drawing of inferences generally, but without reference to the onus of proof, in the following passage:
I also want to say something about the process of drawing inferences, in other words inferring facts from other known facts. There is nothing unusual about that, it is something we do all the time. I also have my own little trivial example. If it is pouring rain outside – which probably is not likely at this time of year but I will run with this example – that is a fact that I could know either because I go out and see it myself from direct observation or someone whose credibility I accept tells me it is raining outside. Alternatively, I could see someone coming into the court building in a raincoat looking very wet and dishevelled, shaking water off their umbrella and dripping water all over the place. I may well infer that it was or just had been raining outside. That is a deliberately trivial example to make the point that we draw inferences all the time.
The example given by the Judge is not as helpful as it might have been. It fails to illustrate the inductive nature of circumstantial reasoning and that its strength, or weakness, lies in the availability, or otherwise, as a matter of common experience, of alternative explanations for the incriminating circumstances. The nature of the reasoning might have been better illustrated by an example of some, but not all, visitors to the court coming in wet, followed by the progressive elimination of alternative explanations until the only remaining reasonable explanation is that it was raining outside.
The Judge elaborated on his directions on drawing inferences in the context of how the jury might draw inferences about Mr Gebert’s intention with respect to the alpha‑PVP if he were found to be in possession of it:
Inferences are simply logical conclusions from other proven or accepted facts. If A and B and C are proven or accepted then one can infer or conclude D is also a fact. I am not going to cavil about this but strictly I do not think a car driver using an indicator is drawing an inference, that is making a direct communication by using the indicator, but let us not get bogged down in the law of logic.
The drawing inferences is a common feature of ordinary life and of trials. Jurors are often asked to infer someone’s state of mind at a particular time, and of course people do not walk around with a sign on their forehead stating what their state of mind is. So in cases as this one where the prosecution need to prove knowledge and intent in relation to the drugs, they seek to prove that by drawing inferences from the surrounding facts.
The reference to logical conclusions in that passage suggests that the probative force of circumstantial evidence arises from deduction, and not inductive reasoning. I am not here making an esoteric or semantic point. Circumstantial reasoning relies on life experience and evaluation of competing possibilities. It does not have the certainty of logical deduction. The Judge’s reference to an indicator was probably meant to make the point that an inference could be drawn about a driver’s intention to turn when he or she puts on the indicator. Unfortunately, that meaning may have been lost on the jury because of the reference to ‘a direct communication’ and ‘the law of logic’. Again, drawing attention to alternative explanations for the indicator being on may have been more helpful.
Finally, in the penultimate sentence the Judge fails to advert to the substantial difference between the standard of proof which people apply to everyday decisions and the standards of the criminal law. Nor does the Judge inform the jury that the prosecution case on possession is also circumstantial.
On the legal concept of possession the Judge directed:
On the other hand, if with your knowledge and agreement someone has stored something in your house or in your car for you to look after for them, you are in possession of it. If some person has got you to take some object somewhere in your car, while you are transporting it, you are in possession of it. Knowledge alone is not possession. Possession is knowing of an item and having the power and intention of exercising some sort of control over it. Doing something with it. I get back to that definition that I started with and hopefully those examples give a meaning as to what possession is. So that is a fairly long detour about the second ingredient of trafficking which is possession.
The Judge then returned to the circumstantial nature of the prosecution case on the issue of Mr Gebert’s intention to sell, but primarily in order to warn the jury against using the evidence indicating that Mr Gebert was in the business of selling drugs:
Now those things are not the subject of any charge. That evidence is before you to put the specific charges in a proper context. The permissible use of that evidence is to assist you in determining the accused’s intent on this occasion with respect to the drugs that he is charged with.
The prosecution point to that evidence as evidence pointing to an intention on his part to sell or take part in the sale of these particular drugs. In one respect, defence point to one bit of that evidence supporting his version that he was in possession for personal use in relation to the syringes. Now, it is entirely a matter for you what you make of that evidence, and whether it does or does not assist you in relation to the accused’s intention regarding the specific drug that is the subject of each of the charges. But it is permissible to use it for that purpose as evidence of his intent in relation to these drugs. What is not permissible and that is the important direction that I need to give you is to reason this: ‘Well, it looks like he was selling other drugs on or around this time so we will convict him of count 1 and count 2’. That would be quite an impermissible line of reasoning. I am sure you would not do that. I need to direct you specifically not to do that. To reason: ‘Well, there is evidence he has been selling drugs, so we will convict him of this’. That is an impermissible line of reasoning. The only permissible line of reasoning is to use that evidence in determining his intent in relation to these drugs.
There is no complaint about the adequacy of the discreditable conduct warning, but, relevantly to the first two grounds of appeal, it is to be observed that the Judge did not refer to Mr Gebert’s innocent explanations for the circumstantial evidence on which the prosecution relied. Nor did the Judge direct the jury that it could not return a verdict of guilty on either of the trafficking charges unless the evidence as a whole excluded all alternative innocent explanations.
Counsel for the Director emphasised the direction, in the last sentence of the just cited passage, that the circumstantial evidence was relevant only to the issue of Mr Gebert’s intention. The reliance on that sentence is misplaced. Even if the indicia of the sale are put aside, the prosecution’s case on possession was also circumstantial. That Mr Gebert’s arms were moving around beneath the desk close to where the alpha-PVP was found was strong circumstantial evidence of his possession of it. However, Mr Gebert’s explanation that he was looking for his trousers needed to be excluded. Moreover, the Judge’s direction artificially compartmentalised the evidence. Indicia that Mr Gebert was selling illicit drugs naturally affected the probability that he was in possession of the trafficable quantity of alpha-PVP found in the sunglasses bag, just as evidence of his possession of a trafficable quantity is evidence that he was in the business of selling the drug. It is difficult, therefore, to know what the jury would have made of this direction. Even though the direction is favourable on its face, I am not persuaded that it removed the risk and that the jury would rely on the circumstances indicating sale to reinforce the circumstantial connection of Mr Gebert to the possession of the alpha-PVP. Finally, and in any event, the prosecution’s case on intention relied on both the presumption and the evidence of sale. The Judge failed to give any direction on the need to consider Mr Gebert’s alternative explanations for the latter.
The Judge gave the following direction about the notebook:
Strictly a direction about permissible and impermissible use applies to another item as well, the notebook. If you find it is somehow related to drug trading that same direction applies about permissible and impermissible use. The reason why I have singled out and put the notebook to one side is the prosecution’s expert witness, as I understood him effectively said it was not a tick list. Now there is some other writing on another page but you may not find it pellucidly clear what that other writing means and there is no evidence of whose handwriting it is. There is no evidence it is the accused’s handwriting. So it is a matter for you, but I suggest the notebook may be of limited use to you and that is why I treated that separately.
The Judge’s summing up of the evidence, which was described by counsel for the Director as economical, was as follows:
You have just heard addresses of counsel outlining their respective arguments and directing you to aspects of the evidence. It is not my role to trawl through all of that with you, you will probably be pleased to know. What I propose to do is very briefly paraphrase or encapsulate the essential prosecution and defence cases. To assist you in focussing your attention on the real issues in the trial and I suggest there are really two primary issues: possession and intent.
Firstly, possession. The prosecution case is that he was in possession of both amounts of the drug. Now of course the defendant does not dispute that he was in possession of the drug; he says along with his partner; of the drugs in the fridge, the subject of count 2.
The prosecution say that on the entirety of the evidence you should also find he was in possession of the drugs found on the police evidence, somewhere under the desk, in the bedroom/office.
Now, you have heard all of the evidence and you have heard counsel’s arguments about [it] and it is a matter for you as to whether you find he was in possession of count 1 drug, as well as the count 2 drug that he admits being in possession of. That is the first primary issue in the trial.
The second primary issue in the trial is the accused’s intention in relation to whatever drug you find he was in possession of. So for whatever drugs you find he was in possession of, the prosecution need to prove that fourth element that I have talked about: intention to sell or take part in the sale of some or all.
Irrespective of whether that just relates to the count 2 drugs, if that is all you find he was in possession of; Or whether it relates to both lots of drugs, if that is what you find he was in possession of; Whatever you find he was in possession of, the statutory presumption will come into play because as I have told you earlier, each separate amount of drug is over the amount that triggers the statutory presumption.
So that is the second primary issue and again that is not my role to trawl through the arguments that you have just heard but they can be briefly paraphrased I suggest. The prosecution say that whatever drugs you find he was in possession of you should conclude it was with the intention of selling or taking part in sale. They say you should conclude this from the surrounding evidence, that points to drug trading. The amount of the drug, the value of the drug that you heard from the expert, the cash money that was there, the phone text messages and so forth.
The prosecution say either based on that alone or based on that and/or the statutory presumption, that ingredient four is proved. They say you should reject his version that it was nothing more than for personal use.
On this second primary issue the defence say the surrounding evidence is said to point to drug trading, but when properly scrutinized falls short of this. I am not going to trawl through this either. They say some of the things that have been pointed to relate to the other character who owns the place, the defendant’s partner, children and some of them such as the money have a perfectly innocent explanation the defence say, which the accused was given to. That will be a matter for you.
Here it must first be observed that on the issue of possession, the Judge did not refer to Mr Gebert’s alternative explanation for having his arms under the desk. No trawling was necessary to identify that Mr Gebert’s explanation was a critical part of his case on the issue of possession. Secondly, on the issue of intention, even though the Judge did, albeit briefly, refer to Mr Gebert’s explanations, his Honour did not direct the jury that a guilty verdict could only be returned if the explanations were excluded.
Finally, in those passages the Judge identified the competing contentions, but did not relate those contentions to any evidence. Nor did the Judge refer to the reasoning which might be applied to that evidence, or to the standard of proof.
The following day the Judge gave further directions to the jury in answer to a question received from them on the meaning of possession. The direction did not give any assistance to the jury on the resolution of the competing prosecution and defence cases on the circumstantial evidence of Mr Gebert’s possession of the alpha-PVP under the desk.
The Authorities on the Circumstantial Evidence direction
Discussion in Australia of the proper direction applying the criminal onus to circumstantial evidence commonly commences with the following statement of Griffith CJ in Peacock v The King (Peacock):[1]
I have referred to the rules generally followed in cases of homicide. In the case of R. v. Hodge Alderson B. directed the jury “That the case was made up of circumstances entirely; and that, before they could find the prisoner guilty they must be satisfied, ‘not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.’” He then pointed out to them the proneness of the human mind to look for and often slightly distort the facts, in order to establish such a proposition—forgetting that a single circumstance which is inconsistent with such a conclusion is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. It was a very strong case, but on that summing up the jury acquitted the prisoner.
The rule is sometimes stated that the circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
[emphasis in original; citations omitted]
[1] (1911) 13 CLR 619 at 634.
I will refer to the rule stated in the last sentence of the passage as the only reasonable explanation direction. The rationale for the direction is found in the preceding discussion of circumstantial evidence generally.[2] Quoting from Starkie on Evidence, Griffith CJ stated:[3]
The force of circumstantial evidence being exclusive in its nature, and the mere coincidence of the hypotheses with the circumstance being in the abstract insufficient, unless they exclude every other supposition, it is essential to inquire with the most scrupulous attention what other hypotheses there may be which may agree wholly or partially with the facts in evidence. Those which agree even partially with the circumstances are not unworthy of examination, because they lead to a more minute examination of those facts with which at first they might appear to be inconsistent; and it is possible that upon a more minute investigation of these facts their authenticity may be rendered final, or may be even altogether disproved. In criminal cases the statement made by the accused is in this point of view of the most essential importance. Such is the complexity of human affairs, so infinite the combinations of circumstances, that a true hypothesis which is capable of explaining and reconciling all the apparently conflicting circumstances may escape the acutest penetration; but the prisoner so far as he alone is concerned can always afford a clue to them; … The effect may be on the one hand to suggest a view of the case which consists with the innocence of the accused, and which might otherwise have escaped observation. On the other hand its effect may be to narrow the question to the consideration whether that statement be or be not excluded and falsified by the evidence.[4]
[2] Peacock v The King (1911) 13 CLR 619 at 628-630.
[3] Peacock v The King (1911) 13 CLR 619 at 629.
[4] In R v Baden-Clay (2016) 258 CLR 308 at 324-325 French CJ, Kiefel, Bell, Keane and Gordon JJ explained:
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”.
…
However, where an accused person with knowledge of the facts is silent, then as was said in Weissensteiner v The Queen:
“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”
That passage was quoted with approval in RPS v The Queen. The significance to be attached to what was said in Weissensteiner must be understood in its context, as explained in Azzopardi v The Queen. Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses. It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source.
[emphasis in original; citations omitted]
In Plomp v The Queen[5] Dixon CJ explained that the weight of circumstantial evidence arose out of the effect of that evidence on the probability of the fact in issue based on the common course of human affairs:
… It is said that the ordinary rule relating to circumstantial evidence has been ignored or departed from in convicting the accused, namely the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. In a case of a very different character a good deal of attention was paid to this rule: Martin v. Osborne.
Much difficulty is found in stating the rule, a difficulty which has not been overcome by employing the expression “more consistent” as if there could be degrees of consistency. In the case cited what is said is: “If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
[citations omitted]
[5] (1963) 110 CLR 234 at 243.

In Barca v The Queen[6] Gibbs CJ, Stephen and Mason JJ emphasised the importance of the only reasonable explanation direction in Australia by contrasting the position in England:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v. The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”; Plomp v. The Queen; see also Thomas v. The Queen - FTN.13. However, “an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.” (Peacock v. The King). These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.
[citations omitted]
[6] (1975) 133 CLR 82 at 104-105.
In Shepherd v The Queen[7] Dawson J described the only reasonable explanation direction as an ‘amplification’ of the requirement that the prosecution must prove guilt beyond reasonable doubt:
The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case; Peacock v. The King; Plomp v. The Queen. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick C.J., speaking for the Court, observed in Grant v. The Queen:
“Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed.”
[citations omitted]
[7] (1990) 170 CLR 573 at 578.
The importance of the explanation of an accused, referred to by Griffith CJ in this passage, in assessing a circumstantial prosecution case was developed by the High Court in R v Baden-Clay.[8]
[8] (2016) 258 CLR 308.
The authorities establish that when a substantial part of the prosecution case comprises circumstantial evidence, a failure to give the only reasonable explanation may result in a miscarriage of justice. That is so because of the human tendency to ‘jump to a conclusion’, or, to use another metaphor, to all too quickly think that where there is smoke there is fire. In order to meet the criminal onus that tendency must be checked by, as Griffin CJ explained in Peacock, directing the jury to undertake ‘a more minute investigation’.
The prosecution case against Mr Gebert was, in substantial part, circumstantial. The evidence that his hands were under the desk was strongly incriminating but his presence on the mattress on the floor supported his innocent explanation. 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.
It cannot of course be known whether or not the jury found that Mr Gebert was in possession of the drug on the basis of the police evidence that his hands were under the desk, or whether they relied on the circumstantial evidence that he was trafficking.
Even in a case in which the jury had found Mr Gebert to be in possession of the drug it was necessary for the jury to consider whether or not he was trafficking in it. In that respect Mr Gebert carried the onus. The prosecution case in rebuttal of Mr Gebert’s denial that he was trafficking was circumstantial. In that respect Mr Gebert gave explanations for the indicium of trafficking which required consideration by the jury. Again the failure to give the only reasonable explanation direction 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 whether:
·The texts were received by his romantic partner;
·The imitation guns were toys for his children;
·The money in his wallet was from the sale of the outboard motor;
·The texts were received by Rebecca Jacobs;
·There was an innocent explanation, or a non-drug related explanation, for all or at least some of the texts suggested by his counsel;
·Whether the absence of the other indicium of drug trading negated the inference that might be drawn from the abovementioned circumstances.
I am satisfied that the failure to give an only reasonable explanation direction in a case which was substantially circumstantial and in which the defence met by giving alternative explanations has resulted in a miscarriage of justice particularly having regard to the Judge’s failure to refer to the defence evidence in which that explanation was given.
I would dismiss the other ground of appeal. The evidence given by Detective Sergeant Hunt about drug trafficking was general in nature and established a broad context in which the incriminating circumstances could be viewed. Those matters were not substantially challenged. He was cross-examined about the alternative explanations for the notebook and substantially agreed with the defence proposition. As a result, the Judge warned the jury against giving it much weight. As to the text messages, Mr Gebert’s explanation was that he did not send them.
I would allow the appeal. I would direct a new trial.
KELLY J: I concur with the Chief Justice.
HINTON J: I agree with the Chief Justice for the reasons he gives that the appeal should be allowed. I too would direct that a new trial take place.