DAT v Police

D A T v POLICE
[2002] SASC 219
Youth Court Appeal

DOYLE CJ. The appellant is a youth as defined by the Young Offenders Act 1993 (SA) (“the YOA”).
On 16 May 2001 the appellant pleaded guilty before a Magistrate in the Youth Court to a charge of an offence. The Magistrate recorded a conviction. Exercising her power under s 26 of the YOA, the Magistrate imposed an obligation on the appellant. I will explain the nature of an obligation shortly. The obligation was of six months’ duration. The conditions of the obligation included a condition to be of good behaviour for the duration of the obligation.
During the period of the obligation the appellant committed two offences to which the appellant pleaded guilty in the Youth Court. One of the offences was being in possession of equipment for use in connection with the smoking of cannabis, contrary to s 31(1)(c) of the Controlled Substances Act 1984 (SA) (“the CSA”). The other offence was being in possession of a bicycle reasonably suspected of having been stolen, contrary to s 41(1) of the Summary Offences Act 1953 (SA) (“the SOA”).
The appellant was also charged with failing to comply with the obligation imposed on him, in that he had not been of good behaviour for the duration of the obligation. The conduct constituting the offences against the CSA and the SOA respectively was relied upon as constituting the failure to comply with the obligation. This further offence is created by s 26(2) of the YOA. To this further offence the appellant pleaded not guilty.
The sequence of events in the Youth Court is not completely clear. I gather that the prosecutor proved the obligation imposed on the appellant and that the parties treated the pleas of guilty referred to, and the convictions referred to, as proved, and that the parties treated the facts on which each plea of guilty was made as proved in relation to the offence under the YOA. The prosecutor led no other evidence. The appellant gave no evidence.
Counsel for the appellant advanced two submissions before the Youth Court. The first was that the appellant could not be convicted of the offence under the YOA, because the conduct that constituted the offences under the CSA and the SOA was relied upon in proof of the offence under the YOA, and to convict the appellant under the YOA would be to convict him twice for the same conduct, namely the acts or omissions that constituted the offences under the CSA and the SOA. The second submission was that the appellant was guilty of the offence under the YOA only if it was proved that he knew that the conduct relied on was a breach of the obligation, and if it was proved that he intended to breach the obligation. It was submitted that there was no evidence proving such knowledge and intention.
I gather that the Magistrate rejected the first of these submissions in reasons that have not been recorded. Later the Magistrate gave written reasons for rejecting the second submission. She then found the charge proved and convicted the appellant without penalty.
Each of the above points was argued on appeal.
The YOA provisions
Subject to the provisions of Division 3 of Part 4 of the YOA, the Youth Court has the same powers to sentence a youth as a court dealing with an adult. But s 26(1) of the YOA provides that the Court may not require a youth to enter into a bond. However, s 26(2) provides:
“The Court may, however, by order of the Court, impose an obligation of the kind that might otherwise have been imposed under a bond.”
The Court is given power to impose obligations similar to the conditions of a bond. There is no reason to doubt that the Court has power to impose an obligation to be of good behaviour. The critical provision is s 26(4), which provides as follows:
“A person who fails to comply with an obligation imposed under this section is guilty of an offence.”
The maximum penalty is a fine of $2,500 or detention for six months or both.
Breach of an obligation to be of good behaviour
It is established by authority in this State that a condition of a bond or an obligation to be of good behaviour will usually be breached by the commission of an offence, but that an offence may be committed that is not a breach of such an obligation or condition. That point was made by Zelling J in Maple v Kerrison (1978) 18 SASR 513 at 524 and is confirmed by Higgins v Goldfinch (1981) 26 SASR 364 at 367, King CJ and at 385, Legoe J.
Are the convictions for the CSA and SOA offences a bar to a conviction for the offence against the YOA?
The consideration of this issue takes me to the difficult terrain surveyed by this Court at length in R v O’Loughlin ex parte Ralphs (1971) 1 SASR 219, by the House of Lords in Connolly v Director of Public Prosecutions [1964] AC 1254, and by other courts in a number of cases. The terrain is that of double jeopardy.
The submissions put to me on appeal were relatively short, with only passing reference to a few of the main cases.
In the present case I am concerned with that part of the terrain that lies outside the area of the plea of autrefois convict and in the area of a suggested principle identified by Bray CJ in O’Loughlin (at 225) as follows:
“The principle I gather from Wemyss v Hopkins is that, irrespective of the legal connection between the charges, and in particular irrespective of whether or not one charge is an aggravated form of the other or one of the legal ingredients of the other, a man shall not be convicted of two different offences in respect of the same or substantially the same set of facts. But it may often be a difficult task to ascertain whether or not this will happen.”
As may be immediately seen, in the present case it could be said that conviction for the offence under the YOA relies upon proof of “substantially the same set of facts” as are relied upon in proof of the offences against the CSA and the SOA. The issue is whether there is a principle as general as that stated by Bray CJ.
It is convenient to record here that my ultimate conclusion is that there is no principle as general as this, or at least that authority that binds me requires me to so conclude. It is clear enough that Bray CJ thought there was such a principle, because in O’Loughlin he went on to say (at 227) that “a previous conviction is a bar to a subsequent prosecution” in a number of situations that he identified, and relevantly:
“(4) where in cases not falling within (3) the evidence or the facts necessary to support the second charge would have been sufficient to procure a legal conviction on the first (the Vandercomb test as formulated in the fourth proposition of Lord Morris of Borth-y-Gest in Connolly’s Case, at p. 1305, but adjusted so as to accommodate cases like Morris’ Case and Worland’s Case); (5) whenever he is being prosecuted for some act or omission arising out of the same set of facts in respect of which he was previously convicted so that it can be said that he has previously been punished in respect of that act or omission, but it may be necessary in many cases to define sharply and precisely the facts constituting the act or omission in respect of which he was previously convicted in order to ascertain whether the second prosecution is really in relation to the same set of facts.” (Citations omitted.)
Extracting a binding principle from O’Loughlin would be a difficult task. There is some divergence of views as between Bray CJ and Wells J. Sangster J appeared to agree generally with the reasoning of each of them. To say that is not to imply a criticism. The principles which appear in the reasons of Bray CJ and Wells J cannot be stated with precision. The application of the principles is as important as their formulation.
The present case appears to lie within propositions (4) and (5) stated by Bray CJ. Proof of the offence against the YOA involves proof of the acts or omissions relied upon in proof of the offences against the CSA and the SOA, and proof of the convictions for those offences. It involves more than that. It also involves proof of the obligation and persuading the Court that it should conclude, consistently with Higgins v Goldfinch, that the facts establish that the offences do involve a breach of the obligation to be of good behaviour (and some offences will not).
The judgments of Bray CJ and Wells J in O’Loughlin are examples of the common law method of reasoning. Each judge was identifying principles by reference to which a number of decided cases could be grouped and organised, even though some of the cases did not identify the principle upon which they rested. Such a process of reasoning rarely yields precise rules. As will appear shortly, the application of these principles in the later case of Maple v Kerrison led to distinct divergences of opinion within this Court.
Another point to bear in mind is that the views expressed in O’Loughlin have not been supported to the full in other States.
In Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502, Gleeson CJ (at 507) identified the problem area when he said:
“Both the proposition that a person cannot be punished twice for the same offence, and the related proposition that where one offence is an element of a more serious offence (or, to put it another way, where the second offence charged is merely an aggravated form of the first offence) a person cannot be convicted of both, are well‑established. R v Dodd (1991) 56 A Crim R 451 provides a recent example, in this jurisdiction, of the latter. As was pointed out in that case however (at 457), it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last‑mentioned proposition itself requires elucidation.”
The critical point is the distinction between being put in jeopardy twice for the same offence, and being put in jeopardy twice for the same conduct.
As he says, it is the notion that a person may not be put in jeopardy or punished twice for the same conduct that gives rise to particular problems. He went on (at 508) to refer to the decision of this Court in O’Loughlin as having “taken what some would regard as an expansive view of the rule against double jeopardy” in its application to a second charge relating to the same facts as those in respect of which there has been an earlier conviction. My understanding of the reasons of Gleeson CJ is that he was inclined to take a narrower view of the application of the rule against double jeopardy in that situation. A number of the Australian cases in this area were helpfully reviewed by Abadee J in State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517.
I am bound by the decision of this Court in O’Loughlin, but in considering the application of that decision it is relevant to bear in mind that the principles are not precise, and that in the interests of consistency in the common law of Australia one should be cautious about stretching those principles any further.
With that background I return to the decision in Maple v Kerrison, which appears to me to determine the outcome of the present case. If it does then I must apply it, even though there may be some tension between the principle determined by that case and the general principles identified in O’Loughlin.
The now repealed s 20 of the Crimes Act 1914 (Cth) empowered a court to release a convicted person without passing any sentence, upon that person giving security to be of good behaviour and to comply with other conditions imposed by the Court. This is in substance a power to release upon the person entering into a bond. Section 20(2) provides as follows:
“If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence.”
The maximum penalty was imprisonment for the period provided by law in respect of the offence for which the bond was given. As well, the recognizance of the person could be estreated, and any security given could be enforced.
The provision is similar to s 26 of the YOA, except that it depends upon the convicted person agreeing to give security, whereas an obligation is imposed by the Court. The provision differs from the statutory provisions relating to bonds, at least in this State, in that it did not permit the Court to require the person to appear before the Court for sentence if the person failed to comply with a condition of the bond: Maple v Kerrison at 516 ‑ 517, Bray CJ and at 522, Zelling J.
In Maple v Kerrison questions of law were reserved for the consideration of the Court. One of those questions was whether a person charged with an offence against s 20(2) could plead in bar a conviction for an offence against Commonwealth or State law, if that conviction was relied on as a failure to comply with a condition of good behaviour, which in turn was relied on as a breach of s 20(2).
The Court had to consider the impact of s 11 of the Crimes Act 1914 (Cth) and s 30 of the Acts Interpretation Act 1901 (Cth). Each of these provisions has now been repealed. Each of them dealt with aspects of double jeopardy, but by no means covered the whole field. Section 11 and s 30(1) dealt with, and protected against, punishment twice for the same offence. Section 30(2) reached more widely. It dealt with the situation where “an act or omission constitutes an offence” under a Commonwealth Act on the one hand and a State Act or Territory Ordinance on the other hand, and an offender had been punished for the offence under the State Act or Territory Ordinance. It provided that the person, in that event, “shall not be liable to be punished for the offence under” the Commonwealth Act. Thus, this provision focused not on punishment twice for the same offence, but on an “act or omission” which had been punished under State or Territory legislation, and provided in that event that the act or omission was not to result in punishment under a Commonwealth Act.
Bray CJ and Zelling J held that if a person released on giving security to be of good behaviour commits an offence against a State Act or Territory Ordinance, and is punished for that offence, section 30(2) prevented the “act or omission” relied upon as the breach of the State Act or Territory Ordinance also being punished under s 20(2) of the Crimes Act as a failure to comply with a condition to be of good behaviour upon which the person was released: Bray CJ at 516 ‑ 517, Zelling J at 522. King J (as he then was) dissented on this point. He took the view that the act or omission that constituted the offence against a State Act or Territory Ordinance did not constitute the offence under s 20(2) of the Crimes Act, because the offence against s 20(2) included as an element non‑compliance with the condition on which the person was released. Breach of the State Act or Territory Ordinance was merely the manner in which the breach of s 20(2) was proved: King J at 527 ‑ 528.
Each member of the Court also considered the position that would arise if an offender was released on giving security under s 20(1) of the Crimes Act, was convicted of an offence against a Commonwealth Act, and was then charged with a breach of s 20(2) of the Crimes Act, relying upon the conduct that gave rise to the breach of the Commonwealth Act. Curiously, that situation was not covered by s 30(2) of the Acts Interpretation Act, which dealt only with the relevance of an offence under a Commonwealth Act on the one hand and an offence under a State Act or Territory Ordinance on the other hand. All members of the Court in Maple v Kerrison agreed that the situation now under consideration was regulated by common law principles.
Zelling J and King J held that in this situation there could be a prosecution under s 20(2) for breach of a condition to be of good behaviour. Bray CJ dissented.
Both Zelling J and King J made the point that an essential element of an offence against s 20(2) included proof of the release upon giving security, proof of the conditions of the security, and proof that the offence in question was a breach of the condition to be of good behaviour, bearing in mind that not all offences would involve breaches of a condition of good behaviour. Proof of what might be called the breaching offence, whatever it was, would not of itself cover any of these elements.
That was sufficient for Zelling J. He said (at 525):
“These elements are in my opinion quite different and distinct from the elements in an offence of forgery or whatever the offence is which causes the breach of the bond. Accordingly, as Lord Reading pointed out in Barron’s case, there is no general principle of law that a man cannot be placed twice in jeopardy upon the same facts if the offences are different, by which I understand the Lord Chief Justice to mean if the constituent elements of the offences are different. There is no bar to convictions for two different offences when the essential elements of the one are not wholly comprehended in the other: see the judgment of Wilson J. in Christchurch City v. Smith.” (Citations omitted).
King J said (at 526):
“The gist of the charge under s. 20(2) is the non‑compliance with a condition of the security given by the defendant to the Court. The essence of the wrongdoing is the non‑compliance with that condition. The fact that the conduct in which the non‑compliance consists is itself a criminal offence does not make the gist of the two offences the same. The offence against s. 20(2) is different in character from the criminal offence in which the non‑compliance consists not only because the legal elements are different (as pointed out by Zelling J.) but because the nature of the wrongdoing constituting the offences is essentially different. Section 20(2) does not seek to punish the conduct amounting to the non‑compliance but the failure to observe a condition of the security given to the Court.”
King J went on to deal with the submission that there was a bar to prosecution in the situation under consideration, because proof of the charge under s 20(2) would involve proving facts which would secure a conviction for what I have called the breaching offence. He said (at 526):
“I am mindful, of course, that the facts necessary to establish a charge under s. 20(2) of a non‑compliance consisting of an offence against the law would, of necessity, be sufficient to procure a legal conviction for that offence, and that this is the test propounded in the High Court in Ex parte Spencer; Chia Gee v. Martin and Li Wan Quai v. Christie.” (Citations omitted)
He went on to say that although this had been accepted as a test in a number of cases, other cases recognised that the principle he stated was not a universal test. He made the point that the cases showed that the principle stated by him was used when the Court was determining whether the charges were substantially the same or not. The principle had to be applied bearing in mind the purpose behind it. The fact that the principle applied in the situation under consideration by him did not mean that the conviction for the breaching offence was a bar to a charge under s 20(2). The reason was (at 527):
“The offence under s. 20(2) is not substantially the same as the hypothetical offence and the wrongdoing sought to be punished is essentially different.”
As I mentioned earlier, Bray CJ dissented on this point. He applied the principle identified by King J, but did not accept that the principle should be treated only as a means of determining whether the charges were substantially the same: at 518 ‑ 520.
My view is that the reasoning of Zelling J and King J in Maple v Kerrison is that there is no common law bar to a prosecution for an offence of failing to comply with a condition or obligation to be of good behaviour, the proof of that offence being proof of a crime which is, to put it compendiously, part of the ordinary criminal law. It is no answer to a charge for an offence of breaching a condition or obligation to be of good behaviour that proof of that offence involves proof of facts which would be necessary and sufficient to procure a conviction for the offence under the ordinary criminal law. The reason for the conclusion is that the offence of breaching a condition or obligation to be of good behaviour is an offence different and distinct from a crime under the ordinary criminal law, and there is no common law principle against a person being convicted of different offences arising out of the same facts.

I now return to the case at hand. The offence under s 26(4) of the YOA of failing to comply with an obligation to be of good behaviour, is an offence different from the offences under the CSA and SOA for which the appellant had been convicted. The fact that proving the offence against s 26(4) of the YOA involves proof of conduct which constitutes the offences in question under the CSA and the SOA does not provide a basis upon which to identify a bar to a conviction of the offence under the YOA.
I turn finally to s 50 of the Acts Interpretation Act 1915 (SA). That section provides as follows:
“50. Where any act or omission constitutes an offence under two or more Acts, or both under an Act or Acts and at common law, the offender will, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but is not liable to be punished twice for the same offence.”
That provision has its analogue in the repealed s 30(1) of the Acts Interpretation Act 1901 (Cth) and in the repealed s 11 of the Crimes Act 1914 (Cth). In all three provisions the reference is to an “act or omission” which is an offence under more than one law, but the prohibition is a prohibition against being “punished twice for the same offence”. It cannot be said in this case that the appellant has been punished twice for the same offence. The reasoning of Zelling J and King J, outlined above, explains why that is so. Nor is it suggested by any member of the Court in Maple v Kerrison that the analogous Commonwealth provisions would provide a bar in the circumstances now under consideration. In that respect the Court was unanimous. Accordingly, s 50 can be put to one side.
For those reasons I conclude that there is no bar to the appellant being convicted of an offence against s 26(4) of the YOA.
The mental element of the offence
There is a presumption that proof of an offence created by statute includes as an essential element proof of a guilty or blameworthy state of mind, often referred to as the mental element of the offence: He Kaw Teh v The Queen (1985) 157 CLR 523. In any particular case it is necessary to identify the content of the mental element, or the particular state of mind that must be proved, and then to consider whether the presumption that that state of mind must be proved is displaced. I canvassed some of these matters in Police v Pfeifer (1997) 68 SASR 285 and in Question of Law Reserved (No 2 of 1998) (1998) 70 SASR 502.
I consider that the relevant mental element for an offence against s 26(4) of the YOA would be knowledge on the part of the offender that the conduct relied on (the breaching offence) amounts to, or might be, a breach of the obligation to be of good behaviour, or at least recklessness as to that matter. When the criminality lies in the character or quality of the conduct (the breaching offence) it is consistent with principle to look to knowledge or awareness of that character or quality, rather than to an intent or wish to achieve a result.
In the circumstances, is the presumption in favour of requiring proof of that mental element displaced? The failure to allude to any mental element in s 26(4) is neutral. Parliament itself often relies on the presumption. The subject matter of s 26(4) suggests to me that Parliament did not contemplate that the offence would include a mental element. The obligation to be of good behaviour is an obligation to avoid or to refrain from a certain kind of conduct. The offence focuses on the character or quality of the conduct, not on the person’s awareness that a breach of the obligation will result. That is, the thrust of the obligation is on the avoidance of a certain kind of behaviour, not on an awareness that that behaviour would also be a breach of the obligation. The person who commits the breaching offence, if that is what is relied on, will always be aware that the conduct is conduct disapproved of by society. It is not easy to see why Parliament should be concerned that the offender is also aware that the conduct is a breach of the obligation. As well, to convict and to punish without proof of a mental element makes good sense. There can be no question of convicting a person for a luckless or inadvertent or accidental breach of s 26(4). If the suggested breaching offence can be described in this way, then it may be that it will not amount to a breach of the obligation. But if the suggested breaching offence does amount to a failure to be of good behaviour, there is nothing offensive to our notions of criminal responsibility to impose a punishment for that reason, even if the offender did not realise that a breach of the obligation was involved. Parliament’s concern is surely that the obligor has behaved in the relevant manner and its concern is also the implications of that behaviour, rather than the obligor’s awareness that the behaviour is a breach of the obligation. There is also a preventative aspect to the imposition of an obligation to be of good behaviour. The purpose of the obligation is to encourage the obligor to avoid certain kinds of conduct. The obligor knows that. The gist of the offence under s 26(4) is the failure to avoid that sort of conduct. This consideration also puts the emphasis on the failure, rather than on the awareness that the failure is a breach of the obligation. Finally, it must not be overlooked that a breach of the law is not necessarily a breach of an obligation to be of good behaviour: Higgins v Goldfinch. It seems to me that to require proof that the obligor knew that the conduct in question was a breach of the obligation or was reckless as to that, would be to engage in a speculative inquiry about the obligor’s understanding of the legal assessment of the character of the conduct in question.
For those reasons I consider that Parliament must have intended that the presumption in favour of a mental element be displaced, and that an offence under s 26(4) of the YOA is made out by proving the relevant conduct, and by persuading the Court that the conduct has the relevant character or quality.
I have no doubt that the offence against the CSA and the offence against the SOA were breaches of the obligation to be of good behaviour.
In any event, it was open to the Magistrate to conclude beyond reasonable doubt that the appellant knew that his behaviour amounted to a breach of the obligation. The offences were committed only one month after the obligation was imposed. The obligation was signed by the appellant. The obligation to be of good behaviour is a simple one, readily understandable. The appellant could not have forgotten that the obligation had been imposed. His conduct was such that it would be easy to infer that he knew that it was a breach of the obligation, without any evidence other than that tendered before the Magistrate. I mention that the appellant was 16 years of age. I would have been prepared to make a finding beyond reasonable doubt that the appellant knew that his conduct was a breach of the obligation. There was nothing in the material before the Magistrate to give her any reason to hesitate in reaching that conclusion. However, it is not necessary for me to resolve the matter on this basis.
Conclusion
For those reasons I reject the submissions put in support of the grounds of appeal. I dismiss the appeal against conviction.

[2002] SASC 219

12 July 2002