Attorney General for the State of Queensland v Bridson

[2010] QSC 411

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney General for the State of Queensland v Bridson [2010] QSC 411

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
WALTER FRANK BIDSON
(respondent)

FILE NO/S:

BS 5452 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2010

JUDGE:

Applegarth J

ORDER:

The application is dismissed

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY- where respondent subject to a supervision order – whether respondent contravened the conditions of the order which required the respondent to abstain from illicit drugs and to take prescribed drugs as directed by a medical practitioner

Dangerous Prisoner (Sexual Offender) Act 2003 (Qld), s 22

Briginshaw v Briginshaw (1938) 60 CLR 336

Rejfek v McElroy (1965) 112 CLR 517

COUNSEL:

B Mumford for the applicant

DC Shepherd for the respondent 

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

HIS HONOUR:  The applicant Attorney-General alleges the
respondent contravened conditions of a supervision order made
on 13 November 2008.  The applicant alleges that on 12 August
2009 the respondent contravened conditions (xxiii) and (xxiv).  Those conditions were, firstly, that he abstain from illicit drugs, and, secondly, that he take prescribed drugs as directed by a medical practitioner.

The essence of the allegation is that on 12 August 2009, the
respondent took a prescription drug commonly known as Serepax.
The drug which it is contended the respondent ingested is a
benzodiazepine drug, Oxazepam.  It is commonly prescribed as a
short-term aid to sleep. It is only available as a prescription drug.  It can be a drug of dependence when abused in our community.  There is no evidence the respondent was prescribed such a sedative.

The respondent denies having consumed any such drug.  He
denies that he contravened the supervision order.  If I find
that the respondent contravened the supervision order, then
unless he satisfies me on the balance of probabilities that
adequate protection of the community can be ensured by the
existing order as amended under ss 22(7) of the Dangerous Prisoners (Sexual Offences) Act (“the Act”), I must rescind the supervision order and make a continuing detention order.

The applicant accepts in the light of the evidence, including
the evidence of two Court-appointed, examining psychiatrists,
that if a contravention is proven, the risk of reoffending can
be managed within the community by the continuation of the
supervision order.

Accordingly, the principal issue for my determination is
whether the respondent contravened the supervision order in
the respects alleged.

Section 22 of the Act relevantly provides that the section
applies if the Court is satisfied “on the balance of
probabilities that the released prisoner is likely to
contravene, is contravening, or has contravened a requirement
of the supervision order”.  As the statute makes clear, the
degree of proof is on the balance of probabilities.

In Briginshaw v. Briginshaw (1938) 60 CLR 336 at 350, Rich J
stated that:

"The nature of the allegation requires as a matter of
     common sense and worldly wisdom the careful weighing

of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion."

The better known passage from that case is that of
Dixon J at 362:

"… [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature

and consequence of the fact or facts to be proved."

His Honour said:

"The seriousness of an allegation made, the inherent
     unlikelihood of an occurrence of the given description,
     or the gravity of the consequences flowing from a
     particular finding are considerations which must affect
     the answer to the question whether the issue has been
     proved to the reasonable satisfaction of the tribunal."

His Honour emphasised that it is not a matter of some
intermediate standard between the satisfaction beyond
reasonable doubt required upon a criminal inquest, and
reasonable satisfaction in a civil case.  His Honour said, "It
means the nature of the issue necessarily affects the process
by which reasonable satisfaction is attained."

Later, in Rejfek v. McElroy (1965) 112 CLR 517 at 521, it was
emphasised that there remains two distinct standards:

"But the standard of proof to be applied in a case and
     the relationship between the degree of persuasion of the
     mind according to the balance of probabilities and the
     gravity or otherwise of the fact of whose existence the
     mind is to be persuaded are not to be confused. The
     difference between the criminal standard of proof and the
     civil standard of proof is no mere matter of words: It is
     a matter of critical substance. No matter how grave the
     fact which is to be found in any civil case, the mind has
     only to be reasonably satisfied and has not with respect

to any matter in issue in such a proceeding to attain      that degree of certainty which is indispensable to the

support of a conviction upon a criminal charge ..."

Against that background, I apply the standard set by the
statute. The matter to be proved is to be proved on the balance of probabilities.  I apply that standard in the context of proof of what is, by its nature, a serious allegation, namely contravention of a supervision order. I also do so in circumstances in which the consequence of
proving contravention of a supervision order is to place the
onus upon a respondent of satisfying the Court of certain
matters, failing which the supervision order is rescinded, and
the respondent is required to be detained in custody for the
period stated in the order.  One only needs to say that to
recognise the gravity of the consequences, or the potential
gravity of the consequences, of a finding of contravention.

The fact that in this case, as matters have transpired, the
applicant accepts that the consequence of a finding of a
contravention in this case should not be a return to custody
under a continuing detention order, does not, to my mind,
substantially affect the proposition that proof of a contravention that in law exposes a respondent to such consequences is a serious matter requiring appropriate proof on the balance of probabilities.

Facts

The applicant was released pursuant to the supervision order made by Mullins J on 13 November 2008.  His progress was uneventful and is documented in the material before me.  He was subjected to many random breath and urine tests, as might be expected of someone with his past difficulties with alcohol.  All of those tests were clear.

As at August 2009, the respondent was in accommodation in the
community.  He had in the past experienced difficulties,
particularly the distress of his mother's passing and the
sadness and frustration that attended the fact that he was
unable, because of the terms of his supervision order, to
travel to Cairns to see her.  However, he seemed to recover
from that sadness and was living in conformity with the
supervision order in the suburbs.

He generally kept to himself.  He had a few church friends.
He had little money to spend and he spent it on groceries,
transport and taking care of his dog.

The department's records for 8 August 2009 record a random
home visit conducted that morning.  It records that there were
nil issues and nil concerns.  That visit was by a Mr Kevin
Hallam.

On 9 August the respondent went to an Alcoholics Anonymous
meeting.  That was the only notable event for that day.  On
10 August he reported to the Correctional Service Office by
telephone.  He disclosed to them that he was going to go to
the Exhibition with a friend.  He identified the friend by
name.  He was warned by an officer about behaviour.  The
records indicate that he was reminded that he had to abide by
his conditions, especially not attending licensed premises.

He went to the Exhibition on 11 August 2010 with a friend.
That female friend was simply a friend.  Theirs was a platonic
relationship and she was a supportive friend.  He met his
friend.  They went to the Exhibition.  At one stage they
bought coffees.  He finished his coffee.  His friend did not
finish hers and she asked him if he wanted to drink the
remainder of her coffee.  He finished her coffee.  He consumed
other items at the Exhibition.

He particularly recalled drinking the cup of coffee because,
as he says, he does not usually drink unsealed drinks in the
area in which he lives.  He did not trust the people who
lived there.  He said that there were a lot of junkies in the
area and it was his habit only to drink from sealed
containers.

He denies being under any particular stress.  It was a happy
outing for him with a friend and he never had any idea that his friend would become a partner.

He received a telephone call on the morning of 12 August.  He
was informed that a urine test would be conducted later that
day, as it was around lunchtime by Mr Hallam who arrived with another officer at the respondent's residence.

The process by which the test was taken, helpfully described
by Mr Hallam in his affidavit and in his oral evidence,
involved taking a sample and then returning with the sample to the office.

I will deal later with what happened upon Mr Hallam's return to the place described in the evidence as the reporting office.

Importantly, the respondent says that prior to and during the
test he felt well.  He did not feel sluggish or tired.
Mr Hallam in his evidence indicated that there was nothing
abnormal about the visit or the respondent when the urine test
was taken.  He did not notice anything untoward in the
respondent's behaviour.

In fact, after the test was taken, the respondent, who was minded to go to the Exhibition again, asked Mr Hallam and his associate if they would mind giving him a lift to the nearby station, and they agreed and dropped him off, and he went off to the Exhibition.

I refer to these matters because if the respondent had consumed Serepax tablets in the quantity that is possibly suggested by the test, the evidence is that one would have expected him to be exhibiting significant signs.  However, he did not do so.

Mr Hallam returned with the sample and undertook, at the Wacol
reporting house, a presumptive test on part of the sample
which was put in a separate bottle.  Mr Hallam split the urine sample that had been received and tested one bottle of it.  The other bottle was sealed with evidence tape.

Mr Hallam conducted a presumptive test for certain drugs.  All the drug tests were clear, but the test for benzodiazepine indicated that it was positive.  As a result, Mr Hallam says he placed the other specimen jar that had been sealed in a clip-seal bag, in the refrigerator.  The remaining waste materials were put in a biohazard waste bin.

The fact of a positive test as a result of the basic
presumptive test that was administered by Mr Hallam is
consistent with that being a false positive.  There is no
dispute about evidence filed on 6 October 2010 on behalf of the respondent that in a similar urine sample testing
exercise he has had the experience of the test being a false
positive.  He was assured and satisfied relatively recently
that a urine sample that had been given returned a false
positive but the more accurate test that was then conducted on
the other sample showed that there were no such
benzodiazepines in the urine sample.

Because that indicative test is simply that, it is understandable that the sample was sealed up and placed in the
refrigerator by Mr Hallam, to be sent for testing by the
Forensic Toxicology Section of Queensland Health Forensic and
Scientific Services.

Before I deal with the analysis undertaken there, it is important to note something about the records of the Queensland Corrective Services in relation to the respondent's urine and drug testing record, in respect of the sample taken on 12 August 2009, which are said to have been BZO positive. They record that the sample was taken by Heidi Bird at the Wacol District Office.  No explanation was given as to why the department's records would record the test as having been undertaken there instead of, as was the case, the sample having been taken by Mr Hallam and another officer, who was not Ms Bird, at the respondent's residence.

That unexplained entry raises a serious question as to whether
there was some inadvertent mixing of samples that were taken,
and that it was not the sample that was sealed up by Mr Hallam, but a sample like it, that was sent to the forensic centre for testing. This raises the possibility that what was in fact sent to the centre and identified as the sample taken from the respondent was a sample taken from someone else, possibly a sample taken by Ms Bird from someone at the Wacol office that same day.

I should note that there are possibilities that the sampling
undertaken by Mr Hallam was inexact and there was some
unfortunate contamination.  Although those possibilities cannot be excluded, the suggested source of contamination, such as the thermometer, does not explain the presence of the level of drugs detected. Mr Hallam wore gloves. I do not
place much store on the possibility of contamination as explaining the test results.

I turn to consider the evidence relating to the testing
of the sample that was received by the forensic toxicology
section.  A sample was received and analysed by a laboratory
technician there using a device that is described as
immunoassay.  That recorded a positive reading for benzodiazepines.
However, that was not the end of the matter and that test is
not as certain as the further test that was undertaken, which
Ms Hadley explained is a mass spectometry test.  That further test, described in the confirmation report, was undertaken by another analyst and reported the existence of benzodiazepine in a quantity greater than 4,000.  A later test was undertaken and it recorded that the actual level was 11,000 ng per mil.

Pausing there, the possibilities are that the sample that was
tested and produced a recording of 11,000 was the sample taken
from the respondent.  Another possibility is that it was a
sample taken from someone else that came to be wrongly labelled and identified as the respondent's sample because of some mishap at the Wacol office.

I next consider the significance of an analysis of 11,000 ng / mL, which is addressed in the report of Dr Hoskins, and in his
oral evidence.  He explained, very helpfully, that such a
level is very difficult to explain from a single dose.

In his written report dated 25 November 2009, and on the
stated assumptions and information upon which that report is
based, he thought it conceivable but quite unlikely that the
result reflected consumption of a single dose.  He said if it
were for a single dose, the specimen would have to have been
collected no more than a few hours after ingestion, and even
then it would be unusual.  He thought it more likely that the
result reflected multiple doses, but he could not say
anything more, nor could anything more be said about the
quantity, frequency or duration of the use.

He added that Oxazepam is insoluble in water but soluble in
alcohol.  He says that when attempts are made to dissolve it
in alcoholic beverages, or soft drinks, or coffee, the
resulting mix is distinctly unpleasant to taste and very
obvious.

Importantly, at paragraph 18 of his report he said:

"Assuming they were not taking it regularly, a person who had consumed enough Oxazepam to achieve the urine results in this case would be noticeably sedated, noticeably to themselves and probably others."

He mentioned the possibility of undertaking hair specimen

tests but the evidence before me indicates that those tests

are not particularly conclusive.

Dr Hoskins gave informative oral evidence concerning the

test result of 11,000 nanograms per millilitre and he

explained that one could not convert that into a dosage.

The reason he gave was that two individuals could consume the

same quantity of the drug and both would provide a different

urine specimen.  He said that there can be a difference of

more than a factor of 10 between the results, even if both

individual's urines are -similarly concentrated.

He noted that when you add variability in urine concentration

it is even more unpredictable and he emphasised that the

variability by a factor of 10 can be based on interpersonal

differences between individuals, including their metabolism.
A reading of the 11,000 milligrams per litre would not arise

from a very small intake but he thought it might exist from a

not necessarily high quantity.

He explained that such a level is much higher than one would

ordinarily expect from a normal dose, but it could be a

statistical outlier.  The reading is well above what one would normally be looking for and above the level that is normally tested for in the laboratory. He said a possibility is that you have an individual who is an outlier. That possibility cannot be ruled out.

Another possibility was that the drug was consumed very

recently and therefore the levels in the blood which

contributed to the levels in the urine were very high.

Turning to Dr Hoskins' report and his important observation at

paragraph 18 of his report that I earlier quoted concerning

persons who were not taking the drug regularly, here there is

no history of the respondent taking the drug.  There is no

history of him taking sedatives earlier in his life and there

is certainly no history of him taking them in the weeks and

months prior to this testing.

He did not present as someone who would have taken such a

dose. 

There was no suggestion that he was noticeably sedated.  That

said, the possibility exists as an alternative that he was

something of a statistical outlier and that he gave the urine

sample that was tested as having 11,000 nanograms

but was not as affected as one might expect for someone

without a tolerance to this drug to be.

The possibility exists that he may have taken a relatively

small amount the day before, but for the reasons given

concerning interpersonal variations, gave a sample that still

produced a notably high reading.

That evidence requires consideration of two possibilities.  The first is that he self-administered the drug either shortly before or the day before the test was taken.  Another possibility is that he did not voluntarily ingest it, that it was taken up when he drank coffee or somehow otherwise ingested it.

The possibility of having consumed it in coffee was mentioned

by the respondent when he first became aware of this test

result.  He did not put it forward then or now as a high

probability.  This scenario was not particularly pressed by

counsel on his behalf.

The lady who he went to the Exhibition with was not called as

a witness.  There is a recording of what she said in an

interview.  Leaving aside the admissibility of that as proof

or lack of proof of matters in that interview, she denied

having, as it were, spiked the coffee with any such drug.  She

was not called as a witness.  One might say if she had done

anything of the kind, one would have expected her to deny it.

But apart from her denial when interviewed and the absence of

any evidence from her admitting that she did put a drug in the

coffee, there are other factors that tell against this as a

real possibility.

The first is the taste and the lack of any detection of the

drug in the coffee remnants that the respondent consumed.  The second is the question of why this friend would put the drug in her coffee to start with rather than ingest the tablet in the normal way.  If she intended to spike the respondent's coffee, then why would she want to do this?

The evidence of the respondent does not suggest that he was

out of this lady's presence such that she had an opportunity to take the top off the lid of the coffee (if it had a lid on it) and put a Serepax tablet in the coffee prior to his return

where he drank the balance of it.

It is possible that the coffee did have a Serepax tablet in

it, but I regard that matter as highly improbable.

I then come to the question of the probability that the

respondent self-administered this drug, which I accept is an

illicit drug within the meaning of the supervision order

because it is capable of being abused if not taken in

accordance with prescriptions.

In assessing probabilities, one has to first consider the

inherent probability or improbability of the respondent having

self-administered this drug.

One consideration is to pose the question of why he would do

such a thing.  There is nothing in the records or in the

evidence at all to suggest that he was in an agitated state

such that he would administer a sleeping tablet to himself or

other kind of sedative.  There is nothing noted in his record

indicating that he needed sedation.  On the contrary, as I've

already noted, there were no concerns reported.

He had not resorted to sedatives or prescription drugs leading

up to or immediately following the death of his mother.

Within the limits of the supervision order he appeared to be

coping well.

It might be said, or speculated, that going to the Exhibition

was inherently stressful and that he may have wished to sedate

himself from what would otherwise be an anxious experience.

As against that it is submitted, and I accept, that such a

course is improbable in circumstances in which the respondent

might expect to be drug-tested and expect any drug consumption

to be detected.

The record indicates that he was warned about the dangers of consuming alcohol.  He was warned of the presence of police.  It would be odd for him to self-medicate and, in fact, overmedicate and bring himself to the attention of the authorities at the Exhibition.

It would be equally ill-advisable for him to take a drug

without a doctor's prescription in circumstances in which he would have fully expected to be tested in circumstances in which the supervising authorities knew he was going to the Exhibition.

It would be improbable for him to do so in circumstances in

which he may expect a call the next day as, in fact, happened.

There does not appear to be any particular trigger for the

respondent to self-medicate.  In other cases the Court

encounters individuals who breach conditions requiring them to

abstain from illicit drugs notwithstanding the grave

consequences that can be associated with a contravention of a

supervision order.  But often in those cases it is apparent

from the evidence that there is some trigger for the

consumption, some particular event, or some particular state

of affairs that prompts resort to self-medication, with

cannabis or some other drug.

Here one does not have such a thing.  The respondent was

compliant with the orders and coping reasonably well with

them.

In short, it seems inherently improbable that the respondent

would self-medicate.  He had no particular reason to do so, so

far as I can see, and the chance of detection was a very real

one.

The second matter which tells against a finding of a

contravention is that the respondent did not present as one

would expect him to present if he had the kind of levels of

drug detected in the sample that was tested. He simply did not present in the way that Dr Hoskins said someone with that level of drug would be expected to present.

On the contrary, he presented as being alert and of his normal

character. This was not simply a case in which he was passive

and in which some sedation might have gone undetected by Mr Hallam and his associate.  The respondent was keen to go out, and went out, accompanied by Mr Hallam and his associate. 

It is, of course, possible that the respondent consumed the drug, but had some extreme tolerance to it such that, notwithstanding the levels that were found in his urine, he did not present with any of the symptoms of sedation or behaviour akin to drunkenness.  That must be a possibility in the sense that anything is possible. But it seems on any assessment of possibilities, an extremely unlikely scenario.

Next, there is the respondent's denial.  It might be said,

“Well, of course, he would deny it”. But he has denied it on

oath and he was not cross-examined.

I accept that no one can say what was going on in the respondent's mind on or about 12 August 2009 and what matters in his life might have prompted him to resort to such a drug.  However, in circumstances in which there is no evidence
indicating any trigger to take drugs, and in circumstances in which the evidence indicates that the respondent was not expressing any concerns, it would be a significant thing to simply reject the respondent's denial in circumstances in which he was not tested under cross-examination to explore matters that could explain his self-medicating, and to test him concerning matters that he relies upon in support of the proposition that he simply would not have risked the matter in the circumstance.

I readily accept that it is not every assertion in an

affidavit that should be accepted.  The absence of cross-

examination does not require me to accept the respondent's denial.  The absence of cross-examination does not require me to accept his denial where there is contradictory evidence, and here there is the evidence in the form of the drug testing which, if accepted, would require me to not accept the respondent's denial.

However, this is not simply a matter in which there is the

evidence concerning the drug testing and the respondent's

denial.

Overall I have to balance the probative value of the test

result against a number of other matters.

On one side of the balance is the inherent improbability that

he would take the drug knowing that he was likely to be

detected.  On the same side of the balance is the absence of

any identified reason for him to do so.  On the same side of

the balance is his sworn denial which was not tested in

cross-examination.

As against that is the fact of the drug analysis.  However,

the probative value of that evidence is diminished somewhat by

questions raised concerning the continuity of the sample taken

by Mr Hallam with the sample that was ultimately tested at the

Queensland Health Clinical Forensic Medicine Unit.

That question mark concerning the possibility of samples being

mixed or wrongly labelled is a real one coupled with the

record that I've earlier identified concerning the entry in

the department's books as to the sample that was taken on the

day and by whom it was taken.

I have, since the matter was heard, considered the transcript of the evidence given by the different witnesses concerning the process of sealing and whether much could be placed upon the fact that the photograph of the sample that was tested at the forensic medicine unit does not show any signs of the type of tape that Mr Hallam says he placed over this sample.  I do not think any great store should be placed upon the fact that those photographs do not reveal remnants of tape.

However, there is at least a doubt concerning the possibility

that the collecting of samples at the Wacol office and their

being placed in the refrigerator may have permitted some

mixing of the samples and that the sample that was

subsequently tested by the forensic medicine unit was not, in

fact, the sample taken from the respondent.

Ultimately, then, it is a matter of the reliance that can be

placed upon those test results as against the other matters.

This is a serious allegation and, in all the circumstances, I

do not have the satisfaction referred to by Dixon J in

Briginshaw v Briginshaw that the contravention has been

proved.

Accordingly, I decline to find that the applicant contravened

his supervision order as alleged.

Had I reached the conclusion that the respondent did

contravene the order as alleged, then I would have proceeded

to consider whether he discharged the onus of proving that the

protection of the community could be adequately served by a

supervision order.

I would have found that the respondent had discharged that

onus on the balance of probabilities.  As I said at the

outset, the applicant fairly acknowledged that the respondent

had done so.

Because it is unnecessary for me to reach a finding in

relation to this aspect, my comments can be relatively brief.

For the reasons that I have already given, the respondent

does not have a history of contravening the supervision order.

If he did take a Serepax tablet as alleged, it would have been

an unfortunate lapse but not a relapse.

The evidence given by Dr Beech and Dr Sundin well satisfies me

that any such contravention was not indicative of an increase

in the risk posed by the respondent.

What is more, since that time, the respondent has progressed.

He has been subject to many more urine and breath tests and

they have all been clear.  The respondent has continued with

appropriate relationships with psychologists and with

Alcoholics Anonymous.  He would have well and truly satisfied

me on the balance of probability that the adequate protection

of the community would be served by a continuation of his

supervision order, and in those circumstances, I would have

made an order that the supervision order continue.

However, in circumstances in which I have declined to find

that there was a contravention, the supervision order

continues in its existing terms.  Anything else?

MR MUMFORD:  Nothing, thank you, your Honour.

MR SHEPHERD:  Thank you, your Honour.

HIS HONOUR:  Thank you for your assistance.

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