Director of Public Prosecutions v WA (a pseudonym)

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS

WA (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HINCHEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September and 18 November 2022
DATE OF VERDICT:	16 December 2022
CASE MAY BE CITED AS:	Director of Public Prosecutions v WA (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2242

REASONS FOR VERDICT

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Subject: CRIMINAL LAW – BREACH OF SUPERVISION ORDER

Catchwords: Contravene condition of a supervision order contrary to s169 of the Serious Offenders Act 2019 (three charges) – commit an indictable offence whilst on bail contrary to s30B of the Bail Act 1977
Legislation Cited: Serious Offenders Act 2018, s169, s174(4), s175(2); Bail Act 1977, s30B; Criminal Procedure Act 2009, Part 3.3, s72(1); Sentencing Act 1991, s112A, s113, s113B; Open Courts Act 2013, s17, s20; Evidence Act 2008, s191; Jury Directions Act 2015, s72(1)
CasesCited: Secretary to the Department of Justice & Community Safety v SS (No 2) [2020] VSC 734; Shepherd v The Queen [1990] 170 CLR 573

Verdict: Guilty of Charge 1; Guilty of Charge 2; Guilty of Charge 3.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Kapitaniak	Solicitor for the Office of Public Prosecutions
Department of Justice and Community Safety	Ms S Flynn KC	Russell Kennedy Lawyers
For the Accused	Mr S Ranjit	Papa Hughes Lawyers

COUNTY COURT OF VICTORIA
250 William Street, Melbourne

HER HONOUR:

Introduction

1Mr WA is charged with the following:

(a)one charge of contravening a condition of a Supervision Order (“SO”) contrary to s169 of the Serious Offenders Act 2019 (“the Act”) (Charge 1 ꟷ CR-22-00224);

(b)a further charge of contravening a condition of a SO contrary to s169 of the Act (Charge 2 ꟷ CR-22-00296); and

(c)one charge of committing an indictable offence whilst on bail contrary to s30B of the Bail Act 1977 (“the Bail Act”) (Charge 3 – CR-22-00296).

2The accused pleaded not guilty to all three charges. At the commencement of the trial on 21 October 2022, the accused successfully applied for summary jurisdiction to be granted in respect of Charges 1 and 2. The Prosecution did not oppose this application. Charge 3 had been transferred from the Magistrates’ Court pursuant to s175(2) of the Act, to be heard at the same time as the related offences under the Act.

3The charges arise from two separate incidents where the accused is said to have consumed alcohol, in contravention of a condition of his SO, namely on 14 February 2022 and again, between 26 and 27 February 2022. Charge 3 arises out of the fact that, at the time of the second incident where it is alleged the accused breached his SO (namely between 26 and 27 February 2022), the accused was on bail, having been bailed in respect of the first SO contravention in the County Court of Victoria on 21 February 2022.

4If the accused is found guilty of either of the SO breach offences following a summary hearing, I may impose any sentence in respect of the offence that could

have been imposed by the Magistrates’ Court.1 This means that the maximum term of imprisonment is two years on each of those charges, or a cumulative sentence of imprisonment, not exceeding five years.2 The maximum fine on each of the SO breach charges, following a summary hearing, is 500 penalty units.3 The maximum penalty for the bail breach charge is 30 penalty units or three months’ imprisonment.4
5In respect of all three charges, I must hear and determine the charges in accordance with Part 3.3 of the Criminal Procedure Act 2009 as far as practicable.

Interim Suppression Order

6At the commencement of the hearing, Ms Fynn KC appeared on behalf of the Secretary to the Department of Justice and Community Safety, to pursue the Secretary’s application for a proceeding suppression order under s17 of the Open Courts Act 2013 (“the OCA”).

7Notice of making the application under s10 of the OCA was given by the Secretary on 26 August 2022.

8The order was sought to prohibit from disclosure by publication, information pertaining to the Secure Continuous Remote Alcohol Monitoring (“SCRAM”) device. An affidavit of Mr Karl Steven Johansson on behalf of the Post Sentence Branch of Corrections Victoria affirmed on 19 September 2022, was filed in support of the application.

9It was submitted by the Secretary that in the first instance, the appropriate way to deal with the application was by way of making an Interim Order pursuant to s20 of the OCA. This does not require determination of the merits of the application.

Serious Offenders Act, s174(4)
Sentencing Act 1991, s113 and s113B
Sentencing Act 1991, s112A
Bail Act, s30B

It was proposed that the Interim Order have effect until the substantive application is determined or withdrawn.

10No opposition was taken to the course proposed by the Secretary. Accordingly, on 21 September 2022, I made an Interim Order in the terms proposed by the Secretary.

11On 19 October 2022, having had an opportunity to consider the evidence given during the hearing on 21 September 2022, the Secretary withdrew the application under s17 of the Act. As a result, the Interim Order ceased to have any further effect.

Fundamental Legal Principles, Elements of the Offences and Issues Onus and standard of proof

12In this matter, the prosecution bears the onus of proof. The standard of proof is
beyond reasonable doubt. This is the highest standard of proof known to law. Before I may find the accused guilty of a charge, I must be satisfied that each element of the charge has been proved beyond reasonable doubt.

13The accused is presumed innocent. That is the starting point for the Court. The accused bears no onus of proof. It is not for the accused to prove his innocence, or to prove anything at all. It is for the prosecution to prove their case beyond reasonable doubt.

Charges 1 and 2

14Section 169 of the Act creates an offence of contravening a SO. The elements of s169 of the Act, are as follows:

(a)Element 1: The Accused was subject to a SO containing a particular condition;

(b)Element 2: The Accused contravened the condition by an act or omission;

(c)Element 3: The Accused did not have a reasonable excuse for that contravention.5

15The offence has no fault element.

16Regarding Element 3, there is an evidential burden on the accused to point to evidence suggesting the possibility of a reasonable excuse.6 A reasonable excuse is “an excuse which would be accepted by a reasonable person”.7 The test is an objective one, depending upon the circumstances of the individual case, and on the purpose of the provision.8
17Elements 1 and 3 are not in issue in this trial. There is no dispute that the accused’s SO contained a condition which prohibited him from consuming alcohol except in accordance with the written directions of the Post Sentence Authority (“PSA”). Further, since the accused says that he did not consume alcohol, there can be no dispute that there is no evidence of a reasonable excuse for the contravention, if Element 2 is found proven.

Charge 3

18Section 30B of the Bail Act creates an offence of committing an indictable offence while on bail. The elements of s30B of the Bail Act are as follows:

(a)Element 1: The accused committed an indictable offence;

(b)Element 2: At the time of committing the indictable offence, the accused was on bail.

19Element 1 is the only element in dispute. There is no dispute that if Charge 2 is found proven, then:

Secretary to the Department of Justice & Community Safety v SS (No 2) [2020] VSC 734 (”SS”) at paragraph [57], per Judge Tinney
Criminal Procedure Act 2009, s72(1), which applies to the summary hearing and determination of a charge for an offence against s169 of the Act: s174(3) of the Act; see also SS (ibid) at paragraph [71]
SS (ibid) at paragraph [72]
SS (ibid) at paragraph [72]

(a)the accused was on bail at the time of committing that offence; and

(b)a breach of s169 of the Act is an indictable offence.

Evidence and Inferences

20I must decide this matter on the evidence I heard in Court and on no other basis. It is for me to determine what evidence to accept or reject, what weight to attach to a particular piece of evidence and what inferences to draw from the facts as I find them.

21The drawing of inferences is an important part of this case. I may only convict the accused if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with innocence, then I must acquit the accused.

Agreed facts

22At the commencement of the hearing, the parties tendered a document entitled “Statement of Agreed Facts”.9
23Pursuant to s191(2)(a) of the Evidence Act 2008, evidence is not required to prove the existence of the following agreed facts in this matter:
“The supervision order

1. On 10 May 2021, Her Honour Judge Dalziel made a supervision order with respect to the Accused10.

2. The supervision order referred to in paragraph 1 included the following condition:

a. 6.4 AJAK DUOT WAC must not consume alcohol except in accordance with the written directions of the Post Sentence Authority.

Exhibit “Ex” P1
Exhibit 1 in Police Brief – SO dated 10 May 2021

The SCRAM client number

3.The supervision order referred to in paragraph 1 also required the Accused to comply with electronic alcohol monitoring, and to wear an electronic monitoring device.11

4.The Accused’s Secure Continuous Remote Alcohol Monitoring system client number registered with Corrections Victoria’s Electronic Monitoring Services is 2071.12

Conversations with Specialist Case Manager regarding conditions and directions

5.On 13 May 2021, the Accused met with Specialist Case Manager Hayley McLean over zoom.13

6.During the meeting referred to in paragraph 5, Ms Mclean explained the supervision order made on 10 May 2021, and its conditions, to the Accused.14

7.On 14 May 2021, Ms McLean emailed the schedule of directions regarding the supervision order to the Accused’s email address.15

8.The schedule of directions referred to in paragraph 7 above referred to Condition 6.4.16

Search of the Kurrajong Crescent premises

9.At approximately 8.20-8.25am on 16 February 2022, Detective Leading Senior Constable Lyndahl Adonis, Detective Senior Constable Richard Balkwell, Senior Constable Estelle Gaylor-Eaton and Senior Constable Daniel Lee attended the Kurrajong Crescent premises.17

10.At approximately 8.47am on 16 February 2022, Detective Leading Senior Constable Adonis asked the Accused to furnish a breath sample on a Lion Alcometer SD-400 PBT device.18

11.The result of the breath test referred to in paragraph 10 above was negative.19

12.Detective Leading Senior Constable Adonis commenced a search of the Kurrajong Crescent premises, and located the following items:

a. an empty glass bottle of Yellowtail Rose wine, located at approximately 9.30am in the laundry in a recycling bin;

Exhibit 1 in Police Brief – Supervision Order dated 10 May 2021, condition 6.9
Statement of Jack Vickers, paragraph [5]
Statement of Hayley McLean, paragraph [11]
Statement of Hayley McLean, paragraph [11]
Statement of Hayley McLean, paragraph [11]
Exhibit 3 in Police Brief – Schedule of Directions Regarding Supervision Order Served by SCM McLean
Statement of Lyndahl Adonis, paragraph [11]; Statement of Daniel Lee, paragraph [4]; Statement of Richard Balkwell, paragraph [10]; Statement of Estelle Gaylor-Eaton, paragraph [3]
Statement of Lyndahl Adonis, paragraphs [15]-[16]
Statement of Lyndahl Adonis, paragraph [16]

b. a box containing two empty bottles of Koppaberg Rose, located at approximately 9.35am in the laundry recycling bin;

c. a BWS receipt dated 13 February 2022, located in the laundry recycling bin at approximately 9.36am;

d. a box containing two empty Yellowglen mini bottles and one Cruiser bottle, located in a bin at the front of the house at approximately 9.48am;

e. an empty Wolf Blass bottle and an empty mango sparkling wine bottle located in a bin in the front yard at approximately 9.50am;

f. an empty Yellowglen Brut bottle, an empty Yellowglen soft rose bottle, and an empty sparkling rose bottle, located in a bin in the front yard at approximately 9.58am.20

13.A bottle of Bel Normande sparkling red grape non-alcohol wine was found in the fridge at the Kurrajong Crescent premises.21

14.Fingerprints were taken from bottles located at the scene.22 These were not a match to the Accused.

DNA swab from Yellowtail Rose wine bottle

15.On 17 February 2022, Detective Senior Constable Richard Balkwell attended Melbourne Crime Scene Services at Melbourne West Police Station.23 Detective Senior Constable Balkwell provided Leading Senior Constable Chris Ross with items including the Yellowtail Rose wine bottle referred to in paragraph 12(a) above, and requested that Leading Senior Constable Ross take…a [trace] DNA swab from the open mouth area of the bottle.24

16.Leading Senior Constable Ross took a trace DNA swab from the lip of the Yellowtail Rose wine bottle referred to in paragraph 17(a) above.25 This swab was secured by Leading Senior Constable Ross.26

17.On 3 March 2022, Detective Senior Constable Balkwell submitted a request for the trace DNA swab referred to in paragraph 16 to be analysed.27”

The Prosecution case

24The prosecution called four witnesses in this matter:

Statement of Lyndahl Adonis, paragraph [17]
Exhibit 7 of Police Brief, photographs [10]-[11]; Statement of Daniel Lee, paragraph [6]
Statement of Richard Balkwell, paragraph [25]
Statement of Leading Senior Constable Chris Ross; Statement of Richard Balkwell, paragraphs [24]-[25]
Statement of Leading Senior Constable Chris Ross
Statement of Leading Senior Constable Chris Ross
Statement of Leading Senior Constable Chris Ross
Statement of Richard Balkwell, paragraphs [41]

(a)Ms Hayley McLean, Corrections Victoria specialist case manager;

(b)Ms Tara Seddon, forensics officer and DNA expert;

(c)Mr Daniel William Altvater, director, Asia Pacific, for Secure Continuous Remote Alcohol Monitoring (“SCRAM”) Systems, expert witness; and

(d)Detective Senior Constable Richard Balkwell, informant.

The evidence

Ms Hayley McLean – specialist case manager
25Ms McLean gave evidence that she was the accused’s case manager between January 2021 and May 2021.28 An interim SO was made by the Court on 15 January 2021, which contained a condition that the accused wear a SCRAM device, and also that he not consume alcohol.29 As a result of the making of that Order, Ms McLean had three “pre-release contacts” with the accused: the first on 24 December 2020, the second on 8 January 2021 and the third on 14 January 2021. On each occasion, his Order conditions, and any associated directions, were explained to him. They were further explained to the accused at his induction appointment on the day of his release on 15 January 2021.30 On each occasion of contact which Ms McLean had with the accused, the accused acknowledged that he understood the information that was being given to him.31
26In addition to the information about the conditions on the SO, Ms McLean described to the accused, the use and care of the SCRAM device, such as drying underneath the bracelet, products that the accused should be mindful of, that he must not tamper with the device and that Corrections are the only authorised party to do any maintenance, removals, installation or things of that kind.32

Transcript (“T”) 22, Lines (“L”) 11-16
T22, L17-22
TT22-23
T23, L2-6
T23, L7-18

27A document which contains all of the information which was communicated to the accused was signed both by the accused and Ms McLean on 15 January 2021 and was tendered into evidence.33
28A final SO was made by the Court on 10 May 2021. Ms McLean had an opportunity to take the accused through the conditions of that Order after it was made. She thought that he was already well aware of the conditions of that Order in relation to alcohol monitoring and the SCRAM bracelet, since he had been wearing it for some time. She “went through” the Order electronically with him over Zoom, due to COVID-19 regulations. She also emailed a copy of the Order to him on 14 May 2021, and he confirmed receipt.34
29Under cross-examination, Ms McLean gave the following evidence:

(a)on 19 February 2021, there was an alert generated in relation to a possible tamper with the accused’s SCRAM device. There was no evidence of a physical tamper with the device, but an alert can be generated if the device falls over the top of socks or other types of clothing. There would not necessarily be evidence of physical interference in that circumstance;35
(b)Victoria Police attended on 20 February 2021 and the accused underwent a breath test. That test returned a zero result;36
(c)when questioned by the PSA, the accused denied tampering with the bracelet on that occasion.37 The device was fully examined on 22 February 2021 and no issues were found. No breach of the SO was raised at this time;38
(d)there was a further alert in relation to possible tampering with the device, which took place between 19 and 22 December 2021. Ms McLean explained

Ex P2
TT24-25
TT 26-27
T27, L12-17
T27, L18-29
TT27-28

that when there is a tamper alert, that alert will not usually be received until the tamper has resolved. As a result of this tamper alert, the accused attended at Melton Community Corrections Office, and it was decided that the device needed some tightening. There was no other evidence of the device being damaged. This conduct was not alleged to constitute a breach of his SO.39

Mr Daniel Altvater – expert in relation to operation of SCRAM devices

30Mr Daniel Altvater gave evidence that he is the director of Asia Pacific for “SCRAM Systems”. His expertise in relation to the operation of a SCRAM device was not challenged. Mr Altvater said that he had read, and was familiar with, the Expert Evidence Code of Conduct.40
31The primary objective of a SCRAM device is to test a wearer for alcohol consumption.41 All human beings emit perspiration twenty-four hours per day. An average adult secretes between 1 and 2 litres of perspiration a day through their skin. If ethanol is consumed, approximately 1 per cent of that ethanol will be excreted through the skin. The vapour that comes off the skin is collected by the device in a collections chamber over an approximately 30-minute period. Any ethanol coming from the skin during that time will be collected in the chamber. Once every 30 minutes, the vapour collected is run across a fuel cell, which is similar to a handheld breath tester, in terms of analysing ethanol. At the end of the 30 minutes, the sample is purged out of the bottom of the device and the cycle begins all over again.42
32

The device stores data that it collects from the analysis which is conducted every 30 minutes. The data is stored until it can be downloaded via a wireless base station that is in the client’s home. At times which are predetermined by Corrections Victoria, the device will communicate with the base station. The data

TT28-29
T32, L5-17
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TT33-34

that is collected is then analysed by software which has been developed for that purpose. Any alerts that are detected are notified to Corrections Victoria.43
33An infrared sensor within the device determines whether or not any item is placed between the device and the leg, in an attempt to obstruct the device from reading or measuring ethanol coming off the skin.44
34The device takes approximately forty-eight readings per day and stores the data. When the device comes within range of the base station, or at a predetermined time, the data is collected so that it can be analysed by the appropriate software. If alerts are created, then the data is reviewed by a data analyst. If there is a confirmed event, that data is sent to a peer-review team, which consists of three senior data analysts. If the data analysts are all in agreement that there has been a tamper or confirmed alcohol consumption event, then an alert is passed on to Corrections Victoria, in the form of a noncompliance report.45
35Since 2006, the technology has gone through between thirty and forty peer- reviewed studies. It is generally accepted as a safe and reliable way to determine if alcohol consumption has occurred.46
36A self-diagnostic test is done on the device every eight hours, to ensure that it is functioning properly. Devices are also required to be returned after 365 days of use, so that the fuel cells within them can be recalibrated.47
37In this case, in relation to the two events of alleged alcohol consumption, the accused was wearing a different SCRAM device on each occasion. The SCRAM device he was wearing in relation to the first alleged incident of alcohol consumption on 14 February 2022, was last calibrated on 4 March 2020. The

T34, L21-30
T35, L9-13
T36, L1-23
T37, L8-13
T37, L14-22

device he was wearing on the second alleged incident of alcohol consumption between 26 and 27 February 2022, was last calibrated on 18 January 2022.48
38In relation to the time that had passed between the calibration of the first SCRAM device on 4 March 2020 and the date on which the accused was wearing it on 14 February 2022, Mr Altvater explained that a device could “sit on the shelf … for a while before it’s actually installed on a client”.49
39For a noncompliance report to be generated, the data has to meet all of the strict criteria imposed by SCRAM systems. If it fails to meet even one of those criteria, it will fail to be confirmed as an event of alcohol consumption.50
40There are six consumption criteria as follows:

(a)there must be a blood alcohol reading of 0.0 at the commencement of the reading;51
(b)the detection must reach a peak value;52

(c)the absorption rate must be less than 0.10 Transdermal Alcohol Concentration (“TAC”) per hour. Mr Altvater explained that this is the rate at which human beings can absorb alcohol;53
(d)the event must return to 0.0 TAC at its conclusion;54

(e)the alcohol elimination rate must be lower than 0.035 TAC per hour;55 and

(f)the data must pass the “environmental contaminant test”;56

T38, L1-9
T38, L10-17
T38, L21-28
T41, L15-19
T41, L19
T41, L20-21
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T41, L24-25

41Mr Altvater said that the data must meet all six criteria, or else it will not be confirmed as an event of alcohol consumption.57
42Mr Altvater was shown pages 7 and 8 of exhibit P5, being a SCRAM court report dated 18 March 2022. On page 7, he noted that the client number for the data that was being analysed was client 2071. It was agreed that this was the client number of the accused.58 The device which the accused was wearing on that occasion was identified as device number 138818.59 That device was noted as having been last serviced and calibrated on 4 March 2020.60
43Mr Altvater explained that there are three distinct lines on the graph which forms part of the report: red, blue and black. The black line represents the tests of the samples coming from the client’s skin, measuring the TAC or transdermal alcohol concentration that is being emitted. The blue line represents the operation of the infrared sensor. This would show if anything had been placed between the device and the leg, and also tells those monitoring the device if there is possibly a loose fit, which would be represented by an “erratic IR”.61 The red line represents temperature readings which help to indicate if the device has been removed. Cutting the strap on a device will, in itself, generate an alert, but if a device is able to be slid off a leg, then the temperature would drop, which would be indicative of removal of the device.62

T41, L26-29
T37, L26-29
T42, L21-23
T42, L24-26
T43, L1-10
T43, L12-17

44Having regard to the data in the relevant graph on page 7 of exhibit P5 (see graph reproduced above), Mr Altvater made the following observations:

(a)the report indicated that this was a confirmed event of alcohol consumption;63

(b)the absorption rate in this case was 0.028 TAC per hour, which is less than the 0.10 set for the relevant criteria;64
(c)the elimination rate was 0.010 TAC per hour, which is less than the0 .035 set for the relevant criteria;65 and
(d)the data had passed the environmental contaminant test.66

45Mr Altvater said that environmental contaminants are usually in the form of, for example spraying a bracelet with cologne or spilling alcohol directly onto the

T43, L27-29
T43, L22-24
T43, L24-26

bracelet. In that case, the data would show a “spike”. Human beings cannot absorb alcohol that quickly, so that data would fail that point of the criteria for validating the test. Mr Altvater thought that when it occurs, the presence of environmental alcohol on a graph, is “obvious”. He said, “it would spike the bracelet basically to the top of the chart there, which I think is .40”.67
46Mr Altvater was then taken to the graph which appears on page 8 of Exhibit P5 (see graph reproduced below). He noted that the client number was, again, 2071. He noted that the device was device number 115031, which had been serviced and calibrated on 18 January 2022. He said that the data in the graph, again, met all six of the criteria.

47Mr Alvater noted that the alcohol detection had reached a peak transdermal TAC of 0.039. The absorption rate was 0.004. The elimination rate was below the

0.035, being at 0.015, and the event passed the environmental contaminant test. He said that the conclusion from this data is that this is a “confirmed alcohol consumption event”.68
48Mr Altvater said that the confirmation criteria utilised by SCRAM Systems is such as to “give the client every reasonable benefit of the doubt”.69
49The infrared line on page 8 of Exhibit P5, being a report from 26 and 27 February 2022, shows a fairly horizontal line. That indicates that the device had a good fit during that time period.70
50Tests have been done to see whether or not a person who is wearing a device who has not consumed alcohol would, nevertheless, have a positive reading if they were, for instance, to sleep next to a person who had been drinking alcohol. In the experiments that were conducted, on one occasion a small amount of alcohol could be seen, but it was not enough to generate an alert. The minimum threshold to generate an alert in the SCRAM system is 0.02, similar to a preliminary breath test.71
51Mr Altvater was asked whether or not this might differ if a client is being intimate with somebody who has a very high transdermal alcohol concentration. He said that if ethanol was being secreted by one of the partners, that ethanol would not be able to be ingested by the wearer of the SCRAM device, who was not consuming alcohol. He said that, if any environment alcohol was being generated by the secretion of alcohol by the other partner, then that would be recorded as environmental alcohol and the data would fail the environmental contaminant test.72

T45, L14-31
T46, L4-6
TT48-49
TT49-50

52In 2012, SCRAM Systems released measured false positive rates. The published false positive rate is 0.03 per cent, which translates to a 99.7 per cent accuracy of the device.73
53Under cross-examination, Mr Altvater gave the following evidence:

(a)no assumptions are being made when it comes to measuring the data which is obtained via this SCRAM device;74
(b)all criteria must be met, in order for a confirmed alcohol consumption event report to be generated;75
(c)the readings on the device do not tell the analyst what type of alcohol has been consumed;76
(d)it was suggested to Mr Altvater that a positive alcohol reading could be the result of eating food with an ethanol content in it. Mr Altvater acknowledged that quite commonly, a person will say that they have drunk, for instance, too much cough syrup. He said that he thought that people would need to have consumed a “lethal dose of food” in order for there to be a positive ethanol reading as a result of that consumption;77
(e)he agreed that the graph of the 14 February 2022 event78 did not show any evidence of tampering with the device;79
(f)he said that the same was true for the graph depicting the incident between 26 and 27 February;80

T51, L8-13
T52, L7-11
T52, L12
T52, L16-23
T53, L11-24
Ex P5 at page 7
T54, L3-7
Ex P5 at page 8; T54, L8-10

(g)he agreed that the tests which had been done, where a person wearing a SCRAM device and another person with whom they were in close proximity had consumed alcohol, were not peer reviewed;81
(h)it was put to him that he could not exclude the fact that, if a person was being intimate with their partner who had consumed alcohol, that would result in a positive reading. However, in response, Mr Altvater replied:
“I just don’t know how the alcohol would be transmitted from the person drinking to the bracelet … even if that person was excreting alcohol from their skin … it would be environmental alcohol and have a hard time finding its way into the collection chamber if that makes sense.”82

(i)Mr Altvater agreed that he was not a biologist and therefore is not aware how the exchange of body fluids would affect the SCRAM system;83
(j)when SCRAM Systems receives data from a device, they do not know the client’s name, they just look at the data;84
(k)if a client wearing a SCRAM device was at a bar or restaurant where there was a lot of alcohol, or at an establishment such as a nail salon where there is ethanol in the atmosphere, then the bracelet would pick up environmental alcohol and any test on data would be considered to be a fail. Mr Altvater said that the testing process “gives every benefit of the doubt to the client in those types of atmospheres or environments”;85
(l)he said that the lag which took place between the calibration of the first SCRAM device, being 4 March 2020, to 14 February 2022, when it was being worn by the accused, would not have affected the accuracy of the readings

T55, L3-21
TT55-56
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T57, L13-17
T58, L12-20

given by that device. He said that even if the device had not been used for the whole of the two-year gap, there would be no issues at all with accuracy;86
(m)if some other client had been wearing the device in the meantime, that would not have any bearing on the accuracy of the data analysed in this drinking event;87
(n)as long as the device is under 365 days of worn use, it is considered to be a reliable device;88
(o)he does not know of any recent false reports;89 and

(p)he could never guarantee that the devices are 100 per cent accurate. He agreed that there may be times when the devices produce a false positive.90

54In re-examination, Mr Altvater confirmed that if a client wearing a SCRAM device is in an environment where alcohol is present, that would generate an environmental alert versus a consumption alert. He said that an environmental alert would not meet the criteria around absorption or elimination rate. He said the graph would look very different to the kind of bell curve that a confirmed alcohol events creates, with a definable peak.91
55Both of the graphs which are relied upon in this trial have been automatically reviewed, given that the matter was going to a Court hearing.92
56He said that fuel cells in the SCRAM bracelets naturally degrade with time. He said that any issue with the fuel cell would likely be a degradation and result in a

TT58-59
T59, L20-24
T59, L25-28
T60, L3-4
T60, L7-11
T62, L13-22
T63, L8-10

lower transdermal alcohol concentration reading, similar to the way in which a preliminary breath test works.93
57He is not aware of any false positives or any cases where the SCRAM System company has had to rescind alerts because of problems with the data. He has been with the SCRAM Systems company for twelve years. There have been no false positives within his twelve years at the company.94
58When the report which disclosed a level of false positives was published in 2012, the data which led to the conclusion that the tests were positive for alcohol consumption, met all the diagnostic criteria for a positive result. The conclusion that there may have been false positives was based upon the self-reporting of the clients involved that they had, in some cases, not consumed alcohol. The rate of false reports, on this basis, was less than one per cent. The researchers at the time raised the issue that there may have been false reporting from those clients as to whether or not they had consumed alcohol. Despite this uncertainly, the data was published at that time and SCRAM Systems stands by it.95
59Mr Altvater concluded his evidence by pointing out that the false positive rate is very, very low. He said that the data analysing the accuracy of the system also demonstrated that approximately 28 per cent of likely consumption of alcohol events are not reported by SCRAMS Systems. That is because the strictness of the criteria measuring the accuracy of the data, which always gives the benefit of doubt to the client.96

Ms Tara Seddon – DNA expert

60Ms Tara Seddon gave evidence that she had examined and analysed two swabs taken from the mouthpiece of a wine bottle and a DNA reference sample associated with the accused. She said that a mixed DNA profile of two contributors

T64, L23-30
T66, L20-28
TT67-68
T69, L2-13

was obtained from the sample taken from the mouthpiece of the wine bottle. She said that the result of the testing was that it was 100 billion times more likely that the accused was a contributor to the DNA sample than if he was not. This amounted to “extremely strong support for the proposition that the accused was a DNA contributor to the sample” from the mouthpiece of the wine bottle.97
61Saliva testing was not conducted on the sample from the mouthpiece of the wine bottle.98 This is because the swabs were taken from a wine bottle and wine can give a false positive to saliva testing. On that basis, she would not be able to rule out a false positive from a true positive result for saliva, from the sample.99 She was unable to comment on the source of the DNA.100
62Under cross-examination, Ms Seddon gave the following evidence:

(a)the sample she analysed had two contributors. The second of the contributors was a female;101
(b)she is unable to say, statistically, what the weight of the female’s contribution was to the mouthpiece of the wine bottle;102
(c)the result of the testing was that the accused was not excluded as a contributor to the DNA detected;103
(d)she agreed that transfer of DNA is a common phenomenon;104

(e)she was unable to comment on whether, if the accused had kissed the female involved in depositing the DNA sample, then a possible hypothesis is that his DNA would also have been found around the mouth of the bottle;105

TT71-72
T72, L5-7
T72, L8-16
T72, L22
TT72-73
T73, L2-4
T73, L9-13
T73, L20-22
T73, L24-31

(f)she is unable to say how the DNA came to be on the mouthpiece of the wine bottle;106
(g)she is unable to comment upon whether or not the accused put his mouth around the wine bottle;107
(h)if the accused had kissed the female, that may be an explanation as to how his DNA came to be found on the mouthpiece of the wine bottle. She is unable to comment on the likelihood of that possibility;108 and
(i)transfer of DNA can occur in a number of ways. It could be from directly touching an item or it could be through indirect contact via an intermediary.109

Detective Senior Constable Richard Balkwell – Informant

63Through the informant, Detective Senior Constable Richard Balkwell, two Records of Interview (“ROI”) were played to the Court. The video recording of the ROI conducted with the accused on 16 February 2022 (“the first ROI”), together with a transcript of the first ROI, was tendered and marked as Exhibit P9. The video recording of the ROI conducted with the accused on 1 March 2022 (“the second ROI”), together with the transcript of the second ROI, was tendered and marked as Exhibit P11.

64Key matters which emerge from the content of the ROIs will be referred to in more detail below.

65The substance of the evidence given by the informant was as follows:

(a)he was asked to investigate a possible breach of a SO as a result of an allegation that the accused had tested positive for alcohol through his SCRAM device, in the early hours on 14 February 2022;110

TT73-74
T74, L3-7
T74, L8-17
T74, L24-28
T86, L27-31

(b)on the morning of 16 February 2022, he attended with other police members at the accused’s address at approximately 8.25am, to arrest the accused;111
(c)a breath test was conducted on the accused at that time and returned a negative reading for alcohol;112
(d)a search was conducted of the accused’s house, and also of his fiancée, Mary’s, car. In Mary’s car, three receipts were found and seized, being two Woolworths receipts and a K-Mart receipt. The first Woolworths receipt noted that a number of items were purchased at Melton at 9.41pm on 13 February 2022. A second Woolworths receipt recorded the purchase of items, including some non-alcoholic wine, at Melton at 8.35pm on 13 February 2022. The K-Mart receipt noted the purchase of certain items at Melton at 9.17pm on 13 February 2022;113
(e)a search of a bin that was located in the laundry of the accused’s house identified a receipt from BWS, a retail outlet selling, among other things, alcohol, located in Point Cook. That receipt noted the purchase of six 330- millilitre bottles of Kopparberg Rosé Cider alcohol and one 750-millilitre bottle of Yellowtail Sparkling Rosé. The receipt recorded that the purchase took place at 7.02pm on 13 February 2022;114
(f)photographs taken at the time of the search recorded the following items that were found during the search of the accused’s house: The box for, and two empty bottles of the Kopparberg Rosé Cider and the empty bottle of the Yellowtail Sparkling Rosé wine.115 The bundle of photographs was tendered and marked as exhibit P8;

T87, L7-16
TT87-88
TT88-90. Those three receipts were marked as Ex P6
TT90-91. That the receipt was marked as Ex P7

(g)a search of the bins on the outside of the accused’s house revealed a number of empty bottles that had contained alcohol, which had been deposited within the bins;116
(h)the empty bottle of Yellowtail Sparkling Rosé was the bottle which was subjected to DNA testing;117

(i)the video and transcript of the first ROI conducted following the accused’s arrest, is a true and accurate copy of the interview which took place between the informant and the accused;118
(j)as a result of the arrest and answers given during the ROI, the accused was charged with the first of the breach of SO charges and was presented after hours to the Melbourne Magistrates’ Court. He was denied bail on that date and remanded from that point. Bail was ultimately granted to him on 21 February 2022, with the conditions of that bail altered on 24 February 2022, by consent. The variation was to do with the accused’s address;119
(k)pages 1 and 2 of the Undertaking of Bail dated 24 February 2022 were exhibited as Exhibit P10. It is a breach of these conditions which constitutes Charge Three;120
(l)during the first ROI, the accused stated that “false alarms” had been given by his SCRAM device in the past;121
(m)the informant referred the Court to page 4 of Exhibit P5, which was a tamper report dated 19 February 2021. This disclosed a “confirmed tamper event with alcohol detected”. The informant said that it was his understanding that

T94, L2-19
T94, L24-27
T99, L9-12
TT104-105

this matter was not subject to any breach or investigation, because the device had been tampered with and no accurate alcohol reading could be alleged;122
(n)the informant was taken to a further tamper report dated 9 March 2021, which appeared at page 5 of Exhibit P5. The informant said that, on this occasion, although the report disclosed a “confirmed tamper event”, no alcohol was detected on that occasion;123
(o)the informant was also taken to a report concerning a tamper event on 14 and 15 April 2021, which was page 6 of Exhibit P5. The informant confirmed that this was, again, a “confirmed tamper event with alcohol was detected”;124
(p)the informant said that these three events were the extent of his enquiries as to what the accused had alleged were “false alarms” on his SCRAM device;125
(q)on 1 March 2022, the informant became aware of a further allegation that the accused had consumed alcohol by virtue of the reading on his SCRAM device. The report was in relation to alleged consumption of alcohol between 26 and 27 February 2022;126
(r)for the purposes of investigating that report, the informant attended at the accused’s unit in order to arrest him. He was not present at his home, and arrangements were made for him to attend at the Werribee Police Station to be arrested. A search of the front garden of the accused’s premises was made, in particular, of the accused’s recycling bin. An empty alcohol bottle was identified within the bin;127

T107, L8-21; Ex P5, page 4
T107, L25-32
T108, L1-6
T108, L8-9

(s)the accused presented voluntarily at the Werribee Police Station to be formally interviewed and was arrested;128
(t)the video and transcript of the second ROI that was subsequently conducted, is an accurate record of what took place in the second ROI between the informant and the accused;129
(u)under cross-examination, the informant gave the following evidence:

(i)the informant agreed that, in the first ROI, the accused said that he did not consume alcohol on 14 February 2022;130
(ii)similarly, in the second ROI, the accused said that he did not consume alcohol on either 26 or 27 February 2022;131
(iii)the informant confirmed that there are no witnesses who saw the accused drink alcohol on either 14, 26 or 27 February 2022;132
(iv)the informant confirmed that there is no direct evidence of anyone witnessing the accused consuming alcohol on those occasions. Enquiries were made of the accused’s wife and her friend, but he was not successful in obtaining any statements;133
(v)the accused’s fingerprints were taken as part of the investigation, to see whether or not there were any matches on the bottles that were found on 14 February 2022. The informant confirmed that no fingerprints were obtained from any of the bottles;134

T11, L12-28
TT111-112; see Ex P11
T116, L9-12
T116, L13-16
T116, L17-23
T116, L24-30
TT116-117

(vi)the informant has not checked to see whether or not the timestamps on the various receipts which were seized, are accurate;135
(vii)no attempt was made to obtain CCTV footage which would have identified either the accused or his fiancée entering either Woolworths, K-Mart or BWS at the times indicated on the various receipts on 13 February 2022;136
(viii)on that basis, it is not known who actually made those purchases at those times;137
(ix)during the second ROI, the accused was asked “What is your choice of alcohol?” The accused replied, saying, “Beer and Hennessy”. The informant agreed that no beer or Hennessy was found at the accused’s residence;138
(x)the informant agreed that the accused said, in the first ROI, that the best way he can explain the presence of the empty bottles, is his fiancée drinking with her bridesmaids in preparation for their wedding;139
(xi)the informant also acknowledged that, during the second ROI, the accused said that Yellowglen is his fiancée’s favourite drink. The informant agreed that Yellowglen was found during both searches.140

The Records of Interview

66The answers given by the accused in the two ROIs in which he participated, are evidence in the trial. I must treat that evidence as I would any other piece of evidence. It is for me to determine whether those answers engender a reasonable

T118, L10-25
TT118-119
T119, L15-18
T120, L2-11
T120, L12-17
T120, L18-25

doubt about the accused’s guilt. I may reject the accused’s answers if I am satisfied beyond reasonable doubt that they are neither truthful nor accurate.

67As I set out above, the accused bears no onus of proof. It is for the prosecution to prove that on the two occasions alleged, the accused consumed alcohol. It is not for the accused to prove that he did not consume alcohol as alleged. The fact that he chose to participate in a police ROI on each occasion, does not alter that position.

68Relevant answers given by the accused during the two ROIs are set out below.

The first ROI conducted on 16 February 2022

(a)the accused does not drink;141

(b)on Sunday night (13 February 2022), the accused and his fiancée went out for dinner in the city. They arrived home after 10.00pm. They had a friend baby-sitting and when they arrived home, the accused was surprised by Valentine gifts and the room being set up and one bottle of non-alcoholic wine and Yellowglen for his fiancée. He toasted with the non-alcoholic drink and that is all he can say about Sunday night;142
(c)his fiancée is planning for their wedding and some girlfriends came over to the accused’s house on Saturday for a few drinks. That is why the police found bottles at his house;143
(d)he does not have any idea how alcohol was detected in his system. This is the third or fourth time the SCRAM device has given a “false alarm”;144
(e)he does not know who purchased the alcohol. It could have been Mary or her friend, Yai;145

Ex P9, Answer to Question 11
Ex P9, Answer to Question 12
Ex P9, Answers to Question 18 and 19
Ex P9, Answers to Question 20 and 21
Ex P9, Answers to Question 115 and 116

(f)after they celebrated Valentine’s Day, the accused and his fiancée went to bed just after 1.00am.146 The accused woke up at 7.30am;147
(g)at no stage on either 13 or 14 February 2022, did he consume alcohol;148

(h)he thinks the Yellow Tail rose bottle was the one that Mary was drinking from;149
(i)he poured her a glass from that bottle. He did not drink out of it;150

(j)the card ending in xx5296 that was used to purchase the items from BWS in Point Cook, is not his card;151
(k)he does not know how alcohol was detected in his system between 1.43am and 8.57am on 14 February 2022. He does not know how to explain it, except perhaps spending time with Mary, cuddling and kissing her.152

The second ROI conducted on 1 March 2022

(l)on 26 February 2022, he worked until 12 noon. Then he watched television and then picked up Mary from work. After that, they picked up a car from the mechanic, purchased food from Red Rooster and went home. Mary prepared dinner. The accused watched television. After dinner, Mary left, because she is not allowed to stay the night. The accused went to bed at 11.00pm. When he woke up on Sunday morning, the accused and Mary went car shopping;153

Ex P9, Answer to Question 135
Ex P9, Answer to Question 147
Ex P9, Answers to Question 158 and 159
Ex P9, Answer to Question 245
Ex P9, Answers to Question 250 and 251
Ex P9, Answer to Question 364
Ex P9, Answer to Question 371
Ex P11, Answers to Question 17-20

(m)he woke up at 9.00am on Sunday morning.154 No one else was with him at the residence between when he went to bed at 11.00pm and when he woke up at 9.00am.155 He was asleep the whole time;156
(n)he did not consume any alcohol during that time;157

(o)he has not drunk alcohol for nearly seven years.158 Alcohol put him in prison a few times and he wants to change his life and intends to stick to that and stay away from alcohol;159
(p)the bail he is on at the moment is the same as his SO – he cannot drink alcohol; he has a curfew; he cannot commit crimes; he has to follow the directions of the authorities.160 He has been on bail since 21 February 2022;161
(q)since he has been on bail, he and Mary went to an Amcal Pharmacy and obtained a breathalyser device. On last Thursday night, they tested it out to see if it worked, so Mary had wine. Then, the accused tested both Mary and himself to see if it works; 162
(r)he is familiar with s6.4 of his SO which prevents him from consuming alcohol;163
(s)Yellowglen sparkling wine is Mary’s favourite wine;164

(t)he has not drunk any alcohol. It stresses him out knowing that he has not drunk any alcohol but here he is getting arrested and accused of drinking

Ex P11, Answer to Question 100
Ex P11, Answer to Question 102
Ex P11, Answer to Question 108
Ex P11, Answer to Question 113
Ex P11, Answer to Question 146
Ex P11, Answers to Questions 147 and 148
Ex P11, Answers to Questions 153-155
Ex P11, Answer to Question 161
Ex P11, Answers to Questions 173-178
Ex P11, Answer to Question 192
Ex P11, Answer to Question 196

alcohol. He has no way of proving that it did not happen. His life is on the line, his freedom is on the line, his livelihood is on the line and there is nothing he can do about it;165
(u)knowing what happened just a couple of weeks ago (with being arrested on 16 February 2022), he is not willing to throw his life away just for alcohol;166
(v)Mary did not consume any alcohol on the evening of 26 February 2022;167 and

(w)when he did drink, it was beer and spirits like Hennessy.168

Prosecution closing submissions

69The prosecution closing submissions can be summarised as follows:

(a)all elements of the three offences had been proven beyond a reasonable doubt, namely that the accused had consumed alcohol on two occasions, as alleged, and did so, insofar as the third charge was concerned, while on bail for the first charge;

(b)the assertion made by the accused that he did not commit the offences is a lie and should not be believed. The evidence in support of the charges is overwhelming;

(c)

the main plank for the case of the prosecution is the expert evidence and the consumption reports that were obtained from the SCRAM device worn by the accused. Those reports, and specifically the evidence given by Mr Altvater, ought be accepted. The Court should place great weight on that evidence, not only because of the quality and accuracy of the evidence, but because of the way in which it was given, which showed that the witness was fair and objective. The nature of the data captured from the operation

Ex P11, Answers to Questions 207-210
Ex P11, Answers to Questions 213 and 214
Ex P11, Answer to Question 233
Ex P11, Answers to Questions 241-244

of the SCRAM device on each occasion, should satisfy the Court beyond reasonable doubt, that the accused consumed alcohol on the dates alleged;

(d)there is nothing in the evidence that was put before the Court that shows the SCRAM device produces data which is anything but accurate. The graphs of the confirmed alcohol consumption events showed the typical bell-like curve which had been described by Mr Altvater. The absorption rate and elimination rate are consistent with the way in which the body absorbs alcohol. On each occasion, the baseline reading was zero and the reading returned to zero. On each occasion, there was no environmental contamination detected;

(e)there is evidence that there can be false positives given by a SCRAM device; however, the rate of false positives is very low – being less than one per cent;

(f)there is no evidence of any environmental contamination on either occasion of alleged alcohol consumption. Further, there is no evidence relied upon by the accused in relation to any reasonable hypothesis consistent with his assertion that his SCRAM device had been giving “false alarms” in the past and that he did not drink on the two occasions alleged;

(g)while the accused said that he had kissed and cuddled his fiancée on 14 February 2022, and that she had been drinking, the evidence indicated that a comparatively small amount of alcohol had been consumed by her on that evening. There cannot be both an alcohol reading from environmental contamination and a “false positive”. These matters put forward by the accused are not compatible with each other. Mr Altvater’s evidence was that if there had been environmental contamination, then the data would not have been confirmed as an event of alcohol consumption;

(h)the three reports in 2021 which were said to be “false alarms”, in fact show that the SCRAM device was working precisely as it should be;

(i)the concept of “beyond reasonable doubt” is not a mathematical formula. It is a term of common sense. Section 64(1)(e) of the Jury Directions Act 2015, spells out that reasonable doubt is “not an imaginary or fanciful doubt or an unrealistic possibility”;

(j)in order to find that the two alleged consumption events, as measured by the SCRAM data, were false positives, the Court would need to be satisfied that the false positives on those occasions were “realistic possibilities”;

(k)during his evidence, Mr Altvater refuted all of the alternative theories that were put forward by defence counsel, such as interference with the operation of the SCRAM device, environmental contamination, sleeping with somebody who had consumed alcohol, or kissing or having sex with somebody who had consumed alcohol. Mr Altvater’s view was that he could not understand how that type of interaction would ever translate to alcohol being secreted by the wearer of the SCRAM device, as opposed to being a source of environmental alcohol. If it was the latter, then the presence of environmental alcohol would mean the test did not satisfy all six of the testing criteria;

(l)certain pieces of evidence are particularly significant, viz:

(i)there was alcohol available at the premises just prior to each detection of the alcohol consumption event;

(ii)the data from the SCRAM device indicated a confirmed consumption of alcohol on each occasion; and

(ii)DNA analysis of the mouthpiece of one of empty bottles of alcohol indicated that the accused could not be excluded as a contributor to

the DNA found on that bottle. The fact there was another contributor does not matter. The evidence indicates that the accused’s DNA is on the mouth of that bottle; and

(iv) in relation to the event that took place on 26 and 27 February 2022, the accused said, during the ROI, that he was alone during that evening. Mary left the house at 10.30pm that night. The accused said that Mary did not consume alcohol while at his house that night. On that basis, there is no relevance to the accused’s answer that Yellowglen is her favourite drink. It becomes irrelevant, because his own evidence was that she did not drink anything that night at his house;

(m)taking all of the evidence is taken into account, namely the evidence of purchase of alcohol, in combination with finding empty bottles of alcohol on or around the dates of alleged consumption, the DNA evidence and the evidence of confirmed alcohol consumption events on the relevant dates, leads to the conclusion that the circumstantial case against the accused has been proven. All of this evidence, other than the accuracy of the data collected from the SCRAM bracelet, was largely unchallenged; and

(n)in relation to Charge 3, if the Court is satisfied that Charge 2 is proven, if the Court similarly accepts that the accused was on bail at that time, then there should be no difficulty in finding Charge 3 proven.

The Defence submissions

70The closing submissions of the defence can be summarised as follows:

(a)the prosecution have not proven their case beyond a reasonable doubt;

(b)in relation to the three incidents which were characterised by the accused as the device giving “false alarms”, when the device was inspected, there was no evidence that the accused had tried to damage it;

(c)Mr Altvater’s evidence was that it can never be one hundred per cent guaranteed that the SCRAM devices operate accurately;

(d)each of the incidents of alleged alcohol consumption must be viewed separately. The prosecution are effectively making a tendency argument by suggesting that if one incident occurred, then the other must have occurred;

(e)in order to accept Mr Altvater’s evidence, it is necessary to disregard everything the accused said in the two ROIs. He participated in each voluntarily. He was cool and calm. During each ROI, he denied consuming alcohol on numerous occasions. During the second ROI, he added that he was not prepared to throw his life away for alcohol. His answers were consistent. He was not evasive. He provided truthful answers. He made appropriate concessions, such as that there was alcohol in his house and his fiancée was drinking alcohol around him. He admitted to having been stressed prior to the second alleged event of alcohol consumption. He admitted that he used to drink alcohol when stressed;

(f)there is no reason to reject what the accused says in his ROIs. There is no eyewitness to the accused drinking alcohol. It is a circumstantial case. If the Court is unable to exclude a reasonable hypothesis consistent with innocence, then the Court ought accept that hypothesis;169
(g)the Court should accept that there are previous occasions on which the device gave false readings;

(h)the accused’s fingerprints are not on the bottles that were tested;

(i)only one bottle had the accused’s DNA on it; and

(j)the task for the Court is to take into account the entirety of the evidence and decide whether it has been proved beyond a reasonable doubt that on each

Shepherd v The Queen [1990] 170 CLR 573 at 578

occasion, the accused consumed alcohol. Taking into account the entirety of the evidence, there is a reasonable doubt;

Principles of Law

Each charge must be considered separately and in light only of the evidence which applies to that charge
71In this trial, the prosecution has brought three charges against the accused. Notwithstanding that the evidence concerning the three charges was heard during the one trial, each charge must be considered separately, in light only of the evidence which applies to it.

The treatment of expert evidence

72Evidence was lead from two experts in this trial.

73People with specialised knowledge or training are allowed to give their opinions about matters within their field of expertise. The defence did not challenge the expertise of either expert who gave evidence in this trial.

74The evidence of one or other, or both of these experts, may assist me to make a decision in this trial.

75In this case, the evidence of Mr Altvater may assist me to determine whether or not the two reports purporting to be evidence of confirmed events of alcohol consumption, are in fact evidence that the accused consumed alcohol on those occasions.

76I am not required to accept Mr Altvater’s opinion. I am the judge of the facts in this case. Even though Mr Altvater is an expert in his field, his opinion is merely a piece of evidence like any other, which I may accept or reject.

77Ms Seddon gave evidence that it was “a hundred billion times more likely if the accused is a contributor” to the DNA samples taken from the mouthpiece of the

bottle which was tested. She said that this provided “extremely strong support” for the proposition that the accused was a contributor to that DNA sample.

78Even if I accept the evidence of Ms Seddon as to the likelihood of the presence of the accused’s DNA on the mouthpiece of an empty bottle of alcohol, that does not necessarily mean that the accused must be guilty of the offences charged. It is just one piece of circumstantial evidence and must be considered in the light of the other evidence in this case.

Circumstantial evidence

79Some evidence can prove a fact directly. Other evidence can prove a fact indirectly.

80Care must be taken when drawing conclusions from indirect evidence. I must consider all of the evidence in the case and only draw reasonable conclusions based on the evidence which I accept. I may only convict the accused if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt. In that case, I must acquit him.

Findings of Fact

81I found all of the prosecution witness to be honest and reliable. Their accounts were largely unchallenged. They made appropriate concessions where necessary. The whole of the evidence establishes the following facts:

(a)on 14 February and also between 26 and 27 February 2022, the accused was the subject of a SO;

(b)the SO contained a condition which prohibited the accused from consuming alcohol while subject to the SO, except with the permission of the PSA;

(c)the conditions of the SO also require the accused to wear a SCRAM device, which can detect if the accused has consumed any alcohol;

(d)on 19 February 2021, the accused’s SCRAM device (no 123145, last calibrated on 13 January 2021) produced data which resulted in a report indicating a “Confirmed tamper with alcohol detected”;

(e)on 9 March 2021, the accused’s SCRAM device (no 123145, last calibrated on 13 January 2021) produced data which resulted in a report indicating a “Confirmed tamper”;

(f)on 14 April 2021, the accused’s SCRAM device (no 123145, last calibrated on 13 January 2021) produced data which resulted in a report indicating a “Confirmed tamper with alcohol detected”;

(g)on the afternoon of 13 February 2022, the accused’s fiancée and some of her friends were present at the accused’s premises and may have been drinking alcohol;

(h)on 13 February 2022, at 7.02pm, a person unknown purchased the following bottles of alcohol from the BWS store in Point Cook:

(i)six “Kopparberg Rose Cider” 330ml (“the Kopparberg cider”); and

(ii)one “Yellow Tail Bubbles Rose” 750ml (“the Yellow Tail rose”);

(i)on 13 February 2022, at 8.35pm, a person unknown purchased a bottle of “Bel Normande Red Grape” non-alcoholic wine 750ml (“the non-alcoholic wine”);

(j)on the evening of 13 February 2022, the accused, his fiancée and her friend were present at the accused’s premises. They toasted the fact that it was Valentine’s Day. Alcohol was being drunk at the accused’s premises at this time;

(k)on 14 February 2022, the accused’s SCRAM device (no 138818, last calibrated on 4 March 2020) produced data which resulted in a report indicating “Confirmed alcohol consumption” (“the first SCRAM report”;

(l)the first SCRAM report satisfied all six criteria for a confirmed alcohol consumption event, namely:

(i)a baseline transdermal alcohol concentration (“TAC”) of 0.0 per cent at 1.12am;

(ii)an absorption rate of 0.028 TAC per hour;

(iii)a peak TAC of 0.058 per cent at 3.15am;

(iv)an elimination rate of 0.010 TAC per hour;

(v)a return to 0.00 TAC at 8.57am; and

(vi)the event passed the environmental contaminant test;

(m)during a search of the accused’s premises on 16 February 2022:

(i)two empty bottles of Kopparberg cider and one empty bottle of Yellow Tail rose, were found in a bin in the laundry;

(ii)numerous other empty bottles of alcohol were found in the recycling bin; and

(iii)an open bottle of the non-alcoholic wine was found in the door of the fridge, with some contents still inside the bottle;

(n)two swabs taken from the mouthpiece of the bottle of Yellow Tail rose, contained evidence of DNA which provides “extremely strong support” for the proposition that the sample includes the accused’s DNA. This DNA was mixed in with DNA from an unknown female contributor;

(o)the accused’s fingerprints were not found on the various bottles found at the accused’s premises on 16 February 2022;

(p)on 21 February 2022, the accused entered into an Undertaking of Bail. On 24 February 2022, his bail conditions were varied. Between 26 and 27 February 2022, the accused was on bail for the purposes of the Bail Act;

(q)between 26 and 27 February 2022, the accused’s SCRAM device (no 115031, last calibrated on 18 January 2022) produced data which resulted in a report indicating “Confirmed alcohol consumption” (“the second SCRAM report”);

(r)the second SCRAM report satisfied all six criteria for a confirmed alcohol consumption event, namely:

(i)a baseline TAC of 0.0 per cent at 10.15pm;

(ii)an absorption rate of 0.004 TAC per hour;

(iii)a peak TAC of 0.039 per cent at 8.555am;

(iv)an elimination rate of 0.015 TAC per hour;

(v)a return to 0.00 TAC at 11.28am; and

(vi)the event passed the environmental contaminant test;

(s)on the evening spanning 26 and 27 February 2022, the accused’s fiancée did not consume alcohol. The accused was home alone after his fiancée left the accused’s premises, which was prior to 11.00pm;

(t)during a search of the exterior of the accused’s premises on 1 March 2022, an empty bottle of alcohol was found in the recycling bin

(u)testing of SCRAM data is subject to passing six strict criteria. Unless all six criteria are met, a report of alcohol consumption will not be confirmed;

(v)the presence of environmental alcohol will always cause a test to fail the six strict criteria;

(w)kissing a person who has been consuming alcohol has not been shown to lead to a confirmed consumption of alcohol event;

(x)being intimate with or in bed with someone who had drunk a lot of alcohol, may lead to the detection of environmental alcohol, which would mean that the test would not pass the six strict criteria; and

(y)the likelihood of a particular SCRAM device producing a “false positive”, is
0.03 per cent.

Reasons and verdict

82I will deal first with Charge 1. For the avoidance of doubt, when I say “satisfied” or “proved”, I mean “satisfied or proved beyond reasonable doubt”.

83I have no difficulty being satisfied that Element 1 of Charge 1 is proved. It is not in dispute that the accused was subject to a SO containing a particular condition, namely that he must not consume alcohol except in accordance with the directions of the PSA.

84During the trial, the accused did not lead any evidence in relation to having a reasonable excuse for consuming alcohol. He says that he did not consume any alcohol. Therefore, if I am satisfied that Element 2 of Charge 1 is proved, I am also satisfied that Element 3 of Charge 1 is proved.

85I turn now to Element 2, which is the real issue in this trial. To reiterate the test, the prosecution must prove beyond reasonable doubt that on 14 February 2022, the accused consumed alcohol.

86There is no evidence that any person witnessed the accused drinking alcohol on that date. The accused says that he did not do so. The prosecution concedes that the case against the accused is circumstantial. Thus, I must consider all of

the evidence in the case and only draw reasonable conclusions based on the evidence which I accept. I may only convict the accused if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt. In that case, I must acquit him.

87There is evidence that certain types of alcohol were purchased on the evening of 13 February 2022. There is evidence from the accused himself, that alcohol was present and open at the accused’s premises on the evening of 13 February 2022. There is evidence that a bottle of non-alcoholic wine was also purchased on the evening of 13 February 2022. The accused says he “toasted” Valentine’s Day with some of the non-alcoholic wine. There is evidence that by 16 February 2022, some of the alcohol which was purchased on the evening of 13 February 2022, had been consumed. There is evidence of the accused’s DNA on the mouthpiece of the bottle of Yellow Tail rose which was found in the laundry of his premises, on 16 February 2022.

88In addition, there is evidence that the accused’s SCRAM device detected the presence of alcohol in his perspiration, commencing after 1.12am on 14 February 2022, peaking at 3.15am on 14 February 2022 and ending at 8.57am on 14 February 2022. There is evidence that the absorption and elimination rates of the accused’s TAC on this occasion, satisfy the strict criteria applied to the analysis of this data, to ensure that it is consistent with human consumption of alcohol. There is evidence that the data passed the environmental contamination test. The likelihood of this report being a “false positive” report of confirmed alcohol consumption, is 0.03 per cent. I am satisfied that this statistic does not give rise to a reasonable doubt that the data gathered from the accused’s SCRAM device on 14 February 2022, was inaccurate.

89During his ROI on 16 February 2022, the accused said that he had been cuddling and kissing his fiancée on the evening of 13 February 2022. They went to bed at about 1.00am. They slept in the same bed. He also said that she had been drinking alcohol that night, before going to bed.

90The evidence satisfies me that such activity is not likely to give rise to the accused secreting alcohol in his perspiration, if he had not otherwise been drinking alcohol. The evidence satisfies me that consumption of alcohol by the accused’s fiancée and his close proximity to her in bed, is likely to have resulted in the detection of environmental alcohol. If environmental alcohol was detected, I am satisfied that the test would have failed, as all six criteria would not have been met.

91On the basis of all of the evidence before me, I am satisfied beyond reasonable doubt, that the data collected by the SCRAM device on 14 February 2022, and set out in the report of Confirmed Alcohol Consumption on 14 February 2022, is accurate. For that reason, I am satisfied beyond reasonable doubt that the accused’s answers which indicate that he did not drink alcohol on 14 February 2022, are neither truthful nor accurate. I reject the evidence given by the accused in his ROI that he did not consume alcohol on 14 February 2022.

92Taking into account all of the evidence before me, viz:

(a)the report which satisfies me that a confirmed event of alcohol consumption took place on 14 February 2022;

(b)the fact of purchase of alcohol on 13 February 2022, the receipt for which was found in the laundry bin at the accused’s premises;

(c)the presence and availability of open alcohol at the accused’s premises on the evening of 13 February 2022;

(d)the presence on 16 February 2022 at the accused’s premises of empty bottles of alcohol of the same type as that purchased on 13 February 2022; and

(e)the presence of DNA on the mouthpiece of one of those empty bottles of alcohol, the analysis of which provides extremely strong support for the conclusion that the DNA belongs to the accused

I am satisfied that there is no reasonable view of the facts which is consistent with the accused not drinking alcohol on 14 February 2022. On that basis, I am satisfied beyond reasonable doubt that Element 2 of Charge 1 is proved.

93I therefore find the accused guilty of Charge 1.

94I turn now to Charge Two.

95My observations as to Elements 1 and 3 of Charge 2 remain apposite. Once again, Element 2 is the real issue in the trial of this Charge. My observations about the relevant test remain the same as for Charge 1.

96Once again, there is no evidence that any person witnessed the accused drinking alcohol on 26 or 27 February 2022. The accused says that he did not do so. The prosecution concedes that the case against the accused is again, circumstantial.

97There is evidence that the accused’s SCRAM device detected the presence of alcohol in his perspiration, commencing after 10.15pm on 26 February 2022, peaking at 8.55am on 27 February 2022 and ending at 11.28am on 27 February 2022. There is evidence that the absorption and elimination rates of the accused’s TAC on this occasion, satisfied the strict criteria applied to the analysis of this data, to ensure that it is consistent with human consumption of alcohol. There is evidence that the data passed the environmental contamination test. The likelihood of this report being a “false positive” report of confirmed alcohol consumption, is 0.03 per cent. I am satisfied that this statistic does not give rise

to a reasonable doubt that the data gathered from the accused’s SCRAM bracelet between 26 and 27 February 2022, was inaccurate.

98During his ROI on 1 March 2022, the accused said that neither he nor his fiancée consumed any alcohol on 26 February 2022. His fiancée went home before he went to bed at about 11.00pm on 26 February 2022. He woke at 9.00am on 27 February 2022.

99The evidence satisfies me that there was no activity undertaken by the accused between 26 and 27 February 2022, which was likely to give rise to the accused secreting alcohol in his perspiration, if he had not otherwise been drinking alcohol.

100On the basis of all of the evidence before me, I am satisfied beyond reasonable doubt, that the data collected by the SCRAM device between 26 and 27 February 2022 and set out in the report of Confirmed Alcohol Consumption on 26 and 27 February 2022, is accurate. For that reason, I am satisfied beyond reasonable doubt that the accused’s answers which indicate that he did not drink alcohol on 26 or 27 February 2022, are neither truthful nor accurate. I reject the evidence given by the accused in his ROI that he did not consume alcohol on either 26 or 27 February 2022.

101Taking into account all of the evidence before me, viz:

(a)the report which satisfies me that a confirmed event of alcohol consumption took place on between 26 and 27 February 2022; and

(b)the presence of an empty bottle of alcohol in the recycle bin located at the accused’s premises on 1 March 2022;

I am satisfied that there is no reasonable view of the facts which is consistent with the accused not drinking alcohol on 26 and 27 February 2022. On that basis, I am satisfied beyond reasonable doubt that Element 2 of Charge 2 is proved.

102I therefore find the accused guilty of Charge 2.

103On that basis, I must find Elements 1 and 2 of Charge 3 proved, namely that the accused committed an indictable offence between 26 and 27 February 2022 and that the accused was on bail at the time of committing that indictable offence.

104I therefore find the accused guilty of Charge 3.

Orders of the Court

105The formal Orders of the Court are that I find the accused, Mr WA, guilty of Charge 1 (CR22-00224), guilty of Charge 2 (CR 22-00296) and guilty of Charge 3 (CR 22- 00296).

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[2022] VCC 2278

16 December 2022