Daniels v Freer - [2017] WASC 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DANIELS -v- FREER [2017] WASC 247

CORAM: MCGRATH J

HEARD :23 AUGUST 2017

DELIVERED : 25 AUGUST 2017

FILE NO/S: SJA 1095 of 2015

BETWEEN: GHIELMIE DANIELS
Appellant
AND
DANIEL MARK FREER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P G MALONE
File No  :PE 16395 of 2015

Catchwords:

Criminal law and procedure - Failure to comply with reporting obligation contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) - Appeal against conviction - Whether reasonable excuse for failure to report - Whether the learned magistrate erred in fact - No error found

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 63
Criminal Appeals Act 2004 (WA), pt 2

Result:

Extension of time in which to appeal granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms G Beggs

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594
Ganin v NSW Crime Commission (1993) 32 NSWLR 423
Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
Hodder v Skamp [No 2] [2009] WASC 53
Knott v Roberts [2010] WASC 267
R v Chairman of Parole Board (NT); Ex parte Patterson (1986) 32 A Crim R 266
R v Edwards [1975] QB 27; [1974] 2 All ER 1085
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Taikato v The Queen (1996) 186 CLR 454
Woolmington v Director of Public Prosecutions [1935] AC 462

MCGRATH J:

Introduction

The appellant seeks leave to appeal against a conviction for being a reportable offender who, without reasonable excuse, failed to comply with his reporting obligation contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (CP Act).
The appeal was filed out of time and, therefore, an extension is required. Whilst there has been delay in bringing this appeal, the appellant is self‑represented. I will grant an extension of time in which to appeal. However, for the following reasons, leave to appeal is not granted and therefore, the appeal is taken as dismissed.

Legislative framework

The CP Act outlines a framework requiring certain offenders who commit sexual or other designated serious offences to keep the police informed about specified personal details and their location in the community. Relevantly, a person becomes a reportable offender when sentenced by a court for a reportable offence.[1] Alternatively, an application may be made in respect to other offenders, who would not otherwise be subject to the CP Act, if the court is satisfied the offender poses a risk.[2] A reportable offender must be given written notice of his reporting obligations and the consequences that may arise if he fails to comply with those obligations.[3]
[1] Community Protection (Offender Reporting) Act 2004, s 3, s 6.
[2] Community Protection (Offender Reporting) Act 2004, s 3, s 13.
[3] Community Protection (Offender Reporting) Act 2004, s 3, s 67.
Part 3 of the CP Act provides for reporting obligations.[4] The obligations include the initial reporting obligation by the reportable offender[5] and subsequently, the obligation to report annually and as required by the Commissioner of Police.[6] A reportable offender must report changes to relevant personal details to the Commissioner[7] and of any intended absence from Western Australia and then must report upon returning.[8] The length of the period of reporting is either for 8 years or 15 years depending upon the class of offence in respect to which the offender was convicted.[9]
[4] Community Protection (Offender Reporting) Act 2004, s 3.
[5] Community Protection (Offender Reporting) Act 2004, s 24, s 26.
[6] Community Protection (Offender Reporting) Act 2004, s 28.
[7] Community Protection (Offender Reporting) Act 2004, s 29.
[8] Community Protection (Offender Reporting) Act 2004, s 30, s 31, s 32.
[9] Community Protection (Offender Reporting) Act 2004, s 46.
Section 63 of the CP Act provides that it is an offence for a reportable offender to fail to comply with reporting obligations and is in the following terms:
(1)A reportable offender who, without reasonable excuse, fails to comply with any of his or her reporting obligations commits a crime.
Penalty: imprisonment for 5 years.
Summary conviction penalty: a fine of $12 000 and imprisonment for 2 years.
(2)In determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations, a court must have regard to the following matters -
(a)the person's age;
(b)whether the person has a disability that affects the person's ability to understand, or to comply with, those obligations;
(c)whether the form of notification given to the reportable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender's circumstances;
(d)any matter specified by the regulations for the purposes of this section; (e) any other matter the court considers appropriate.
(3)It is a defence to proceedings for an offence of failing to comply with a reporting obligation if it is established that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the obligation.

Magistrates Court proceedings

On 13 August 2015, the appellant appeared before the magistrate for a summary hearing in respect to a charge on a Prosecution Notice alleging that the appellant, being a reportable offender, without reasonable excuse, failed to comply with his reporting obligations contrary to s 63(1) of the CP Act.
A number of facts were not in dispute at the hearing. The appellant accepted that he was a reportable offender.[10] On 15 December 2011, the appellant became a reportable offender under s 6 of the CP Act.[11]
[10] ts 2 (13/08/15).
[11] Exhibit P2.
Accordingly, the appellant was required to report in person once a year to the nominated officer at the nominated police station. It was not disputed that on 12 November 2014, at the Meekatharra Police Station, the appellant had been served with a Notice of Reporting Obligations (the Notice) and that he signed the Notice.[12]
[12] ts 12 (13/08/15); Exhibit P2.
Further, it was accepted that the Notice required the appellant to report, in person, to Senior Constable Chamings at the Meekatharra Police Station at 10.00 am on Thursday, 12 February 2015.[13] The Notice provided that should Senior Constable Chamings not be available then, in the alternative, the appellant could report to either Sergeant Fogarty, Police Constable Dodd or Detective Sergeant Gill.
[13] Exhibit P2.
On 12 February 2015, the appellant failed to appear as required by the Notice. That the appellant did not attend on that date was also not in dispute at the hearing before his Honour.
The failure of the appellant to attend the meeting as required by the Notice, resulted in the police being notified by an automated computer system.[14] An investigation was commenced by WA Police. On 25 February 2015, Senior Constable Freer met with the appellant.[15] At that time the appellant provided to Senior Constable Freer two emails that he maintained had been sent to the police advising them that he had moved back to Perth.[16] The first email was a print out of emails exchanged between the appellant and [email protected] on 23 and 24 September 2014 respectively. The email dated 23 September 2014 was a notification to the police that the appellant had moved temporarily to Meekatharra and was in the following terms.
dear soms
just letting you know that I'm doing some work at Meekatharra and might be here
for the next month depending how long the job will take
I'm living at the Meekatharra Hotel
Thanks
Ghielmie Daniels
[14] ts 21 ‑ 23 (13/08/15).
[15] ts 23 (13/08/15).
[16] ts 23 - 25 (13/08/15); Exhibit P3.
The email, dated 24 September 2014, being a reply from the police was in the following terms:
Dear Ghielmie,
Thank you for notifying us of your change of details. We have accepted your change and updated our records and provide the following unique reference number for your records and retention by you.
Receipt: 240914 1030 12566
Please notify SOMS (via email is fine) of your return to Perth so we can update our records.
The second of the two emails provided to the police, being the email that the appellant contends was sent on 22 November 2014 (the disputed email), was in the following terms.[17]
[17] Exhibit P3.
dear mark saunders
I have moved back to 20 ripplewood ave, thornlie, perth
I still haven't received a reply from u to the question I asked in my last email to u
my reporting period was changed from 8 years to 15 years some time ago
could u please inform me of
1-the exalt [sic] date my reporting duties were changed from 8 yrs to 15 yrs---
2-the reasons it was changed
3-the court order stating that I have to report
thankin u
ghielimie daniels
During the hearing before the magistrate, a printout of the email exchanges during the relevant period was relied upon by the respondent.[18] I will provide a summary of those emails. On Friday, 26 September 2014 the appellant informed the police that he had changed his address in Meekatharra. By email sent on 29 September 2014, the police requested further information regarding the appellant's employment in Meekatharra and his place of residence. On Tuesday, 4 November 2014 the appellant informed the police that he was employed painting and that he intended to stay in Meekatharra until the employment ceased. The appellant asked for confirmation of the date on which he was required to report to the police. By email sent on 7 November 2014, the police informed the appellant that his next scheduled reporting date was at the Meekatharra Police Station on Wednesday, 12 November 2014 at 3.00 pm. Within that email the police requested that the appellant confirm receipt with the warning that a failure to attend this appointment may result in a criminal charge. The appellant did attend on 12 November 2014.
[18] Exhibit P1.
On Friday, 28 November 2014 the appellant confirmed that he attended the police station as required on 12 November 2014 and asked who provided the interviewing officer with information regarding tattoos and an issue about a female being present on his premises. The police replied by way of email sent on 5 December 2014, that the questions should be directed to the Officer in Charge of the Meekatharra Police Station who is the designated officer.
The issue at the hearing was whether the disputed email had been sent by the appellant and, if it had been sent, did the content of that disputed email constitute a 'reasonable excuse' for the appellant failing to report under s 63 of the CP Act.
His Honour found that the appellant did not send the disputed email.[19] Further, his Honour found that even if the appellant had sent the disputed email, the explanation did not constitute a reasonable excuse. Accordingly, the magistrate convicted the appellant and imposed a fine in the amount of $750.
[19] ts 46 (13/08/15).

Appeal

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.
An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[20] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[21]
[20] Criminal Appeals Act 2004 (WA), s 8(1).
[21] Criminal Appeals Act 2004 (WA), s 14.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[22]
[22] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
The Appellant's Case filed on 27 April 2017 pleads four grounds of appeal as follows:
1.the learned magistrate erred in fact in finding that the Perth Police had no authority in asking the appellant to report via email of his return from Meekatharra to Perth. The learned magistrate erred in fact in finding that the appellant had notified the Perth Police by email that he had moved from Meekatharra to Perth as the email sent by the appellant was produced as evidence before the learned magistrate
2.the learned magistrate erred in fact in finding that the appellant had notified the Perth Police by email that he had moved from Meekatharra to Perth and that would constitute a 'Reasonable Excuse' for failing to comply with his reporting duties
3.the learned magistrate erred in fact in finding that the appellant did not 'Beyond Reasonable Doubt' inform Perth Police that he had moved from Meekatharra to Perth as the appellant had produced an email as evidence of his return to Perth
4.the learned magistrate erred in fact in finding that the appellant had without 'Reasonable Excuse' failed to comply with his reporting duties as the appellant had produced an email he believed he had sent to Peth Police informing them of his return from Meekatharra to Perth
During the hearing of the appeal the appellant confirmed that the four grounds of appeal that are pleaded in the Appellant's Case should be received as the grounds relied upon. During the hearing of the appeal, the contentions made by the appellant were distilled into two separate grounds of appeal. The grounds of appeal are as follows:
1.The learned magistrate erred in fact in finding that the appellant had not notified the Perth police by email that he had moved from Meekatharra to Perth.
2.The learned magistrate erred in law in finding that even if the appellant had notified the Perth police by email that he had moved from Meekatharra to Perth that would not constitute a reasonable excuse for failing to comply with his reporting obligations.
The appellant agreed during the hearing of the appeal that the two grounds state the appellant's case in this appeal. I will now consider the merits of the two grounds.

Ground 1

By ground 1 the appellant contends that his Honour erred in finding that the disputed email was not sent. His Honour determined that the disputed email was not sent for three reasons.[23] First, the records of the Western Australia Police did not record that the disputed email was received. Second, the document purporting to be the disputed email did not appear to be a sent email but rather was an unsent draft. Thirdly, his Honour relied upon the fact that the text of the disputed email and the contention of the appellant did not 'sit comfortably' with the text of the other emails that were sent by the appellant.[24] An examination of the evidence fully supports his Honour's findings.
[23] ts 44 (13/08/15).
[24] ts 46 (13/08/15); Exhibit P1.
The prosecution's case relied upon the evidence of Senior Constable Saunders[25] and Senior Constable Freer.[26] The appellant elected not to give evidence.[27]
[25] ts 4 - 18 (13/08/15).
[26] ts 18 - 35 (13/08/15).
[27] ts 35 (13/08/15).
Senior Constable Saunders confirmed that if a reportable offender communicates a 'reportable change' via email then the police send a return email confirming the change and provide a receipt number.[28] Senior Constable Freer gave evidence that if an email is received then a hardcopy is stored on the police system.[29] Senior Constable Saunders gave evidence that a search of the police electronic record database determined that there was no record of the disputed email having been received by the police.[30] Further, Senior Constable Saunders stated that the standard procedure of the police, at the relevant time, was that if an email is received seeking to change the meeting time then the police would contact the reportable offender personally.[31]
[28] ts 9 (13/08/15).
[29] ts 30 (13/08/15).
[30] ts 9 (13/08/15).
[31] ts 10 (13/08/15).
His Honour found that the disputed email appeared as a draft and not a sent email.[32] There was an evidentiary basis for that finding. The disputed email did not have a transmission date.[33] The disputed email displayed options to 'send', 'save as draft' or 'cancel' which was inconsistent with an email that had been actually sent.[34] Further, the purported email document had on the face of the document an option to add further email addresses in the 'to', 'cc' and 'bcc' fields.[35] A comparison of the disputed email with the other emails that the appellant had sent showed that the fields are not present on the emails sent and received.[36]
[32] ts 46 (13/08/15).
[33] ts 26 (13/08/15); Exhibit P3.
[34] ts 27 (13/08/15); Exhibit P3.
[35] ts 27 (13/08/15). Exhibit P3.
[36] ts 27 (13/08/15); Exhibit P2 and Exhibit P3.
Senior Constable Freer gave evidence that the appellant was offered the opportunity to use a police computer to log into his email account and thereby show the police his sent emails folder. The appellant declined to do so.[37]
[37] ts 24 - 25 (13/08/15).
His Honour also relied upon the fact that the text of the disputed email and the contention of the appellant did not 'sit comfortably' with the text of the other emails that were sent by the appellant.[38] His Honour did not consider this finding in any detail. It appears that his Honour was referring to the email exchanges made on 7 November 2014, 12 November 2014, 28 November 2014 and 5 December 2014 respectively. On 7 November 2014, the police sent an email to the appellant confirming the next reporting date was 12 November 2014 at the Meekatharra Police Station.[39] Interestingly, the disputed email appears to be an unsent response to that email of the police. The email of 7 November 2014, which is a reply to the appellant's email of 4 November 2014, is also supportive of the proposition that the police did promptly answer any email correspondence from the appellant regarding reporting obligations.
[38] ts 46 (13/08/15); Exhibit P1.
[39] Exhibit P1, p 2 - 3.
Subsequently, on 12 November 2014 the appellant attended at the Meekatharra Police Station. On 28 November 2014 the appellant sent an email to the police questioning aspects of his attendance for reporting that had taken place on 12 November 2014.[40] On 5 December 2014 the police responded by email.[41] The police confirmed that interviews for reportable offenders in regional Western Australia are conducted by the respective local police station.[42] The email exchanges demonstrate that the police, upon receipt of email communications, did provide prompt replies. The sequence of emails supports his Honour's finding that that the disputed email was never sent.
[40] Exhibit P1, 1.
[41] Exhibit P1, 1.
[42] Exhibit P1, 1.
After carefully considering all the evidence at the hearing, I do not consider the magistrate erred in finding that the disputed email was not sent by the appellant. Accordingly, ground 1 must fail.

Ground 2

By the second ground the appellant contends that the reason for his non‑reporting, as stated in the disputed email, constitutes a reasonable excuse. His Honour, though finding that the disputed email was not sent, proceeded to consider whether the disputed email, if sent, afforded the appellant a reasonable excuse. It was unnecessary to do so given the finding that the appellant had not sent the disputed email. However, given that his Honour did make that finding, I will consider whether that finding was made in error.

His Honour determined that the disputed email did not outline any basis that amounted to a reasonable excuse. His Honour considered that the 'best that can be said by Mr Daniels is that he sent, supposedly, the email on 22 November and then just waited to hear' the response from the police.[43] For the magistrate the email was no more than the appellant signing up to attend the reporting obligation at the police station and then asking the police to call him.[44]
[43] ts 46 (13/08/15).
[44] ts 47 (13/08/15).
The email does no more than state that the appellant had moved back to an address in Thornlie and then request information regarding the length of his 15 year reporting obligation. I reiterate that the evidence shows that the appellant's claim that the disputed email was sent is not to be accepted. Moreover, other than the disputed email, there was no other evidence before his Honour to support the contention that at the date of the reporting obligation the appellant had moved addresses.
In a provision that imposes a criminal sanction for its breach the words 'reasonable excuse' should not be given a narrow meaning.[45] In Taikato v The Queen, the High Court made the following observation regarding the expression 'reasonable excuse':[46]
The term 'reasonable excuse' has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception.
[45] Ganin v NSW Crime Commission (1993) 32 NSWLR 423.
[46] Taikato v The Queen (1996) 186 CLR 454, 464.
It is necessary to consider the purpose of the reporting obligation. The long title of the CP Act expresses the purpose of the act as follows:
An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable information to be published about certain offenders, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.
In the second reading speech of the Community Protection (Offender Reporting) Bill 2004 (WA), the Minister stated the purpose of the proposed enactment was to extend protection to the children and the broader community:[47]
This Bill will require convicted paedophiles and other serious sex offenders to report routinely to police and advise them of relevant personal information. Western Australian police will be empowered to share this information with other policing jurisdictions to better control the predatory migration of these offenders. Through a system of registration and monitoring, the Bill aims to reduce the likelihood of reoffending and assist in the investigation and prosecution future offences.
[47] Western Australia, Parliamentary Debates, Legislative Assembly 22 September 2004, 6279 (Mrs M.H Roberts, Minister for Police and Emergency Services).
It is clear that underlying the reporting obligation is a significant community protection issue.[48] Given the nature of the community protection requirement it is necessary that the obligations on reportable offenders be strictly observed. The seriousness of the offence of failing to comply with an obligation imposed under the CP Act, whether a prohibition order or a reporting obligation, is understood by having regard to the fact that such an order or requirement is directed towards governing the behaviour of the reportable offender to reduce the risk posed by the subject of the order or obligation to persons in the community by reducing the likelihood of reoffending.[49]
[48] Hodder v Skamp [No 2] [2009] WASC 53 [38].
[49] Knott v Roberts [2010] WASC 267 [44].
It is necessary that I consider s 63(2) of the CP Act which states specific factors that a court must have regard to when considering whether a person has a 'reasonable excuse'. The appellant does not have a disability that affects his ability to understand or comply with the obligation to report.[50] The form of the notification given was adequate and made clear the obligation to report.[51] I do not consider that age is a factor that bears on my assessment of what constitutes a 'reasonable excuse' in this case.[52]
[50] Community Protection (Offender Reporting) Act 2004, s 63(2)(b).
[51] Community Protection (Offender Reporting) Act 2004, s 63(2)(c).
[52] Community Protection (Offender Reporting) Act 2004, s 63(2)(a).
An issue raised by the respondent was whether the prosecution had to prove under s 63(1) of the CP Act that the appellant had no reasonable excuse for failing to comply with his reporting obligation or whether the appellant carried the onus of establishing that there was a reasonable excuse for the contravention.
The fundamental principle is that the prosecution must prove every element of an offence subject to any statutory exception.[53] Whether there is a statutory exception concerns the proper construction of s 63 of the CP Act and particularly, whether there is an implied exception to the fundamental principle. In Director of Public Prosecutions v United Telecasters Sydney Ltd, Brennan, Dawson and Gaudron JJ stated [54]:
It is made clear in Reg v Edwards [1975] QB 27 and Reg v Hunt [1987] AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused…but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.
[53] Woolmington v Director of Public Prosecutions [1935] AC 462, 482.
[54] Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594, 601.
Ultimately, it is a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (as therefore, to be proved, beyond a reasonable doubt by the prosecution), or whether it is intended to be a ground by which criminal liability may be avoided (and therefore, to be proved, on the balance of probabilities, by the defendant). There are a number of examples where courts have considered the words 'reasonable excuse' in the context of an offence provision and have held that the subject matter implied that the accused carried the onus.[55]
[55] See: Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449; R v Chairman of Parole Board (NT); Ex parte Patterson(1986) 32 A Crim R 266; R v Edwards [1975] QB 27; [1974] 2 All ER 1085.
I consider that I need not determine the question of onus. I find that the appellant did not have a reasonable excuse for failing to report, regardless on whom the onus was reposed. Should the onus be on the respondent, then I find that the prosecution has proven beyond a reasonable doubt that the appellant did not have a reasonable excuse. Clearly, should the onus be on the appellant then he has not proven on the balance of probabilities that he had a reasonable excuse.
His Honour did not err in finding that the appellant did not have a reasonable excuse for his failure to meet his obligation to report and therefore, ground 2 must fail.

Conclusion

Accordingly, whilst I will grant an extension of time in which to appeal, leave to appeal is not granted and the appeal is thereby taken as dismissed.