Director of Public Prosecutions v SJW (No 3)

[2023] VSC 408

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0050

DIRECTOR OF PUBLIC PROSECUTIONS

v

SJW

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2023
DATE OF JUDGMENT:	14 July 2023
CASE MAY BE CITED AS:	DPP v SJW (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 408

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CRIMINAL LAW – Contested hearing on charges of using a drug of dependence, contravening a condition of a supervision order (‘SO’), and committing an indictable offence whilst on bail – Condition of SO that accused not use prohibited drugs – Urinalysis sample provided by accused at request of officer – Analysis showed presence of methylamphetamine and its metabolite – Concentration consistent with ingestion rather than passive exposure – No dispute about continuity of urine sample or correctness of analysis – Innocent hypothesis advanced of accused having inadvertently ingested MA while visiting unit of another resident of residential treatment facility at which accused resided – Hypothesis not a reasonable one – Accused found guilty of all three charges - Serious Offenders Act 2018 s 169, Drugs, Poisons and Controlled Substances Act 1981 s 75, Bail Act 1977 s 30B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Locke	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr T McCulloch	Victoria Legal Aid

HIS HONOUR:

Introduction

1. The Director of Public Prosecutions brings a prosecution against the accused for one charge of contravening a condition of a supervision order (‘SO’) pursuant to the Serious Offenders Act 2018 (‘the Act’) (charge 1), one charge of using a drug of dependence namely methylamphetamine (‘MA’) (charge 2) and one charge of committing an indictable offence whilst on bail (charge 3).

2. The prosecution of charge 1 came before this Court by virtue of s 173(2) of the Act, having been transferred here by order of the Magistrates’ Court. The case on this charge was able to be heard and determined summarily by me pursuant to s 174 of the Act, the accused having consented to this course and the prosecution not having opposed it. A plea of not guilty was entered on his behalf to this charge. The other charges were both related offences, transferred to this Court at the same time as the indictable charge. Pleas of not guilty were entered in respect of these charges as well. In compliance with s 174(3) of the Act, the hearing was conducted in accordance with Part 3.3 of the Criminal Procedure Act 2009.

   Background

1. The accused was convicted of murder in 2001. He was made subject to a SO under the Act on 13 August 2020.[1] The order permitted the applicant to reside in the community. On a review of that SO on 9 April 2021, the order was modified to contain an intensive treatment and supervision condition requiring him to reside at Rivergum Residential Treatment Centre (‘Rivergum’). The accused commenced residing at Rivergum in April 2021. At the time of the alleged offending, the accused was transitioning from Rivergum to premises in Hoppers Crossing.

   [1]Secretary to the Department of Justice and Community Safety v SJW [2020] VSC 503.

1. One of the conditions of the SO to which the accused was subject at the time of the alleged offending, condition 7.2, provided, in part, that he must not use or possess prohibited drugs. Another condition required him to submit to urinalysis or other testing procedures at the direction of an officer who had reasonable grounds to suspect he had breached condition 7.2.

1. Charge 2 concerns the alleged use by the accused of MA. The other two charges flow from that alleged offence.

The alleged offending

1. On 11 March 2023, the accused complied with a direction given to him to provide a saliva sample for drug screening. The screen was negative for illicit drugs.

1. On 14 March 2023, MA was discovered inside the unit of a fellow resident at Rivergum. The accused frequented this unit on several occasions in the week prior to 14 March 2023.

1. On 15 March 2023 at 2.36pm, the accused complied with a direction pursuant to s 213 of the Act to undergo urinalysis. On that same date, the accused’s unit was searched and nothing untoward was located.

1. On 16 March 2023 at 9.20am, the accused again complied with a direction given to him to provide a saliva sample for drug screening. The screen was negative for illicit drugs.

1. The urine sample provided by the accused on 15 March 2023 was received at Dorevitch Pathology (‘Dorevitch’) on 17 March 2023, and analysed on the same date. As revealed by the evidence of Dr Dimitri Gerostamoulos, Chief Toxicologist from the Victorian Institute of Forensic Medicine, who was the first prosecution witness, the urine sample provided by the accused was subject to extensive testing both at Dorevitch and at the Racing Analytical Service (‘RAS’). On 17 March 2023, a screening test at Dorevitch described as an immunoassay, pointed to the requirement of further testing in respect of amphetamine-type substances. A subsequent more detailed test known as LC/MSMS, a combination of the use of liquid chromatography with tandem mass spectrometry, carried out on the same day, indicated the presence of amphetamine at a concentration of 203 micrograms per litre and MA at 1501 micrograms per litre.

1. Three days later, further testing was done at Dorevitch, no doubt in response to the accused’s denials in his interview of having used MA, and his request that another test be carried out. The screening immunoassay carried out on 20 March 2023 again indicated the presence of amphetamine-type substances.

1. In still further detailed testing carried out at RAS, this time with the use of that laboratory’s own version of the LCMS technique, it was again confirmed that both amphetamine and MA were present in the sample.

1. These results of testing were relied upon by the prosecution in proof of all three charges faced by the accused. The correctness of the results was not challenged before me.

1. I note, also,  that in the Notice of Agreed Facts which was tendered as exhibit A before me, it was indicated that ‘Continuity of the urine sample collected from [SJW] on 15 March 2023 at 2.36pm is not in issue’.

The evidence

1. Two witnesses were called in the hearing. Dr Gerostamoulos, a very experienced and eminent toxicologist, explained the contents of the pathologist report from Dorevitch, which became exhibit B in the hearing. Amongst other evidence, he attested to the fact that amphetamine is a by-product of the breakdown or metabolisation of MA, so the presence of both drugs in the sample is consistent with MA use. He went further to state that in his view, the findings were consistent with MA use within the last one to three days. Furthermore, the concentrations found were consistent with ingestion as opposed to any other mode of passive exposure, such as being in a room where MA was smoked by another. He indicated that it is not possible from the urine concentration to determine the amount consumed or how it was consumed.

1. In cross-examination by Mr McCulloch for the accused, Dr Gerostamoulos confirmed that whilst the most common means of using MA nowadays is by smoking it, it can enter the body by being taken orally by drinking it dissolved in water, or by it being snorted. Those other means of ingestion would be capable of producing a detectable result in urine. Furthermore, it would not be possible on the basis of a urine concentration to say what the outward effects of the drug may be on a person. Also, even the consumption of a very small quantity of MA may result in a pharmacological effect.

1. In further examination-in-chief by Ms Locke, for the prosecution, Dr Gerostamoulos gave evidence which on the face of it, may explain the apparent inconsistency between the negative results of oral swab testing of the accused and the positive urinalysis result. The presence of MA in an oral test, which would be a screening test only, would be a shorter-lived thing than its presence in urine. It would be conceivable that there could be MA found in the urine sample taken on 15 March 2023 and yet by the time of the mouth swab on 16 March 2023, the MA could have fallen to a level below the limits of the testing process.

1. The informant, Acting Sergeant Lyndahl Adonis, gave evidence of having spoken to, and then arrested and interviewed the accused on 20 March 2023 as a result of the positive test. The interview of the accused in which the results were put to him was played to the Court. He denied having used MA, claiming that he was a heroin addict and did not use MA. He said that during his whole stay at Rivergum, he had never tested positive for drugs. Indeed, during his 19-year sentence of imprisonment, he had never tested positive to MA. He said that he could not explain the positive result on this occasion, and asked that a second sample be tested. When asked if he wished to say anything in answer to the charges, he said, ‘I’m innocent’.[2]

   [2]Interview Q 119.

1. Acting Sergeant Adonis confirmed in her evidence that a negative oral fluid test was conducted on the accused on 11 March 2023, and a further negative test at 9.20am on 16 March 2023.

Submissions

1. Ms Locke submitted that the issue for determination, which would determine the result of all charges, was whether the accused used MA. He denied any such use in his interview. The sample taken from him was tested at least three times and each time, MA was detected. It was detected at a level which exceeded that which may be expected in connection with passive inhalation or passive absorption. Ms Locke submitted that there is no reasonable explanation for the presence of MA in the urine of the accused other than his having voluntarily, consciously ingested the drug. She submitted that the negative results of oral swabs on 11 and 16 March 2023 were entirely explainable by the evidence of Dr Gerostamoulos. There was the clear window of opportunity for the accused to have used MA at some time between those dates in circumstances where it showed up in his urine but not in the mouth swabs. Ms Locke invited me to find the accused guilty of all three charges.

1. Mr McCulloch submitted that there is a reasonable hypothesis consistent with innocence in this case. He pointed out that very small quantities of MA are required to create a pharmacological effect. The testing carried out provides no evidence as to the method, quantity or timeframe of ingestion, or even as to whether the quantity ingested would be expected to produce an outwardly observable effect. He submitted that in the context of this case, there is no other evidence to fortify what is otherwise a circumstantial case that the accused deliberately used MA. There is no evidence of his having been found in possession of the drug, of drug paraphernalia having being found, or of the accused communicating with a person from whom the drug had been sourced. True it is that he had the opportunity to use the drug, in one of his visits to the unit of the person in whose unit MA was found on 14 March 2023, but this evidence cuts in both directions. The accused had been present in this other resident’s unit, and vice versa, leaving open the possibility of the accused having been accidentally exposed to MA. Mr McCulloch raised as a reasonable possibility that MA may have been on a plate, in a cup, in a bottle, or on a surface, and in some way by being touched by the accused or otherwise, having ended up in his mouth and entered his system inadvertently, in an amount sufficient to lead to a positive result. He submitted that in the context of this case, the clear, forthright, and reasoned denials of the accused in the interview of having consumed MA assume great significance. It is a reasonable hypothesis consistent with innocence that MA ended up in the system of the accused inadvertently, without any deliberate step by him. That hypothesis, he submitted, has not been excluded. For that reason, the charges should be dismissed.

Analysis

1. To state the obvious, acknowledging the fact that I have had substantial experience with the accused in recent years, by virtue of having made and reviewed his SO and dealt with him for a number of breaches of the order, I make it clear that I have had no regard whatsoever to any information concerning the accused outside that revealed by the evidence in this case.

1. In this, as in all criminal prosecutions, the burden of proof is on the prosecution, and the standard of proof is beyond reasonable doubt. That, of course, is the highest standard of proof known to our law.

1. As a corollary of having to prove its case beyond reasonable doubt, the prosecution, in order to secure a conviction, must exclude all reasonable hypotheses consistent with innocence.

1. In this case, Mr McCulloch has advanced as a reasonable hypothesis, the prospect of SJW having somehow ingested, in some entirely inadvertent and innocent way, sufficient MA to lead to the positive findings in the analysis of the urine sample he provided.

1. There is no doubt that such a hypothesis would be consistent with innocence. The accused could not be found guilty of using MA or of either of the other charges he faces unless I am satisfied beyond reasonable doubt that he deliberately consumed or in some way used the drug.

1. The real question, however, is whether the hypothesis advanced by Mr McCulloch is a reasonable one. Having considered that hypothesis in the context of all of the evidence in this case, I have decided that it is not.

1. In the explanation now required to be given to jurors in criminal trials, it is made clear that a reasonable doubt ‘is not an imaginary or fanciful doubt or an unrealistic possibility’.[3]

   [3]Jury Directions Act 2015, s 64(1)(e).

1. In my view, the possibility of the accused having ended up with MA in his system in any of the ways posited by Mr McCulloch, or in any other way that is open on the evidence, without his having deliberately ingested the drug, cannot be considered to be realistic. It is a prospect which would stretch credulity beyond the limit.

1. Notwithstanding the accused’s strong and clear denials of having used MA, and the fact that, as Mr McCulloch submitted, they were ‘reasoned’ denials, underscored by the accused’s admission of being a heroin addict, and protestation of having no interest in MA, I am moved inexorably to the conclusion that he must, on some occasion prior to providing the urine sample on 15 March 2023, have used MA.

1. That conclusion is powerfully supported and justified by the fact of the urine sample being tested several times and found to contain MA, and is in no way weakened by the negative results of the oral swabs which were taken from him before and after the urine sample was collected. Furthermore, there is evidence which shows that he repeatedly visited the unit of the fellow resident in which MA was found by the authorities on 14 March 2023. He therefore had the clear opportunity to consume MA at that location, not that I would need to reach any definitive conclusion on that aspect.

1. In all of the circumstances, I consider that the innocent hypothesis advanced on behalf of the accused is far from being a reasonable one. It is in fact quite an implausible explanation for the damning fact of MA having been found in the sample of urine provided by the accused on 15 March 2023. Proof of guilt in a criminal prosecution does not require that guilt be established as a matter of certainty. Proof beyond reasonable doubt is what is required. In this case, such doubt as could be said to exist is of such a magnitude as to be infinitesimal. It is certainly not a reasonable one to my mind.

1. I am satisfied beyond reasonable doubt that the accused used MA on or shortly before 15 March 2023. As a result, I am satisfied beyond reasonable doubt of his guilt of all three charges which he faces.

Conclusion

1. For the reasons I have stated, I find the accused guilty of all three charges.