Director of Public Prosecutions (WA) v Corbett [No 2]
[2013] WASC 474
•23 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- CORBETT [No 2] [2013] WASC 474
CORAM: CORBOY J
HEARD: 28 AUGUST 2013; 11 & 26 SEPTEMBER 2013; 4 & 30 OCTOBER 2013; 13 DECEMBER 2013
DELIVERED : 23 DECEMBER 2013
FILE NO/S: DSO 3 of 2012
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Whether respondent guilty of alleged contraventions of a supervision order - Whether statements made to community corrections officer during supervision session admissible in evidence - Meaning of the expression 'affected by alcohol' - Whether instruction regarding accommodation was a lawful direction
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 4, s 18, s 21, s 23, s 40A, s 40B
Result:
Two alleged contraventions of the supervision order found to have been proved; four alleged contraventions found to have been not proved
Category: B
Representation:
Counsel:
Applicant: Mr T B L Scutt (28 August & 11 September 2013)
Mr J Mactaggart (26 September 2013 & 13 December 2013)
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Critchley v The State of Western Australia [2013] WASCA 28
Director of Public Prosecutions (WA) v Corbett [2012] WASC 438
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155
R v Swaffield [1998] HCA 1
Tofilau v The Queen [2007] HCA 39
Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
CORBOY J:
The application
The Supervision Order
The respondent has a history of sexual offending. In February 2006, he was sentenced to a term of imprisonment of 7 years on two charges of deprivation of liberty and two charges of sexual penetration without consent.
On 11 June 2012, the applicant applied for orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). McKechnie J held that the respondent was a serious danger to the community but that he should be released to the community on supervision with strict conditions: Director of Public Prosecutions (WA) v Corbett [2012] WASC 438.
Arrangements had been made for the respondent to be placed in crisis accommodation on his release. However, that accommodation was only available from January 2013 onwards. Consequently, the respondent was only released to the community pursuant to a supervision order made by Hall J on 18 February 2013 (the Supervision Order).
The Supervision Order included conditions that the respondent:
(a)be under the supervision of a community corrections officer (CCO) and comply with the lawful orders and directions of a CCO (condition 4);
(b)report to and receive visits from a CCO at times and at places as directed by the CCO, such arrangements to have regard to any employment commitments of the respondent (condition 5);
(c)consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO (condition 7);
(d)for the second three months of the order, be subject to a daily curfew for a period of between 10 and 12 hours per day as directed by a CCO, unless exemption from the curfew for individual nights was approved in advance by a CCO (condition 16);
(e)not possess, consume or use alcohol (condition 33);
(f)not remain in the presence of females who were affected by alcohol or prohibited drugs other than an adult female with whom the respondent had an ongoing sexual relationship and to whom full disclosure had been made pursuant to condition 36 (condition 35; condition 36 required the respondent to make full disclosure of his past offending and the Supervision Order to anyone with whom he commenced a domestic, romantic, sexual or otherwise intimate relationship).
The scheme of the DSO Act
The objects of the Act
The preamble to the DSO Act states that it is an Act 'to provide for the detention in custody of persons of a particular class, or for their supervision, and for other purposes'. Section 4 of the DSO Act provides that the objects of the Act are:
(a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community;
(b)to provide for continuing control, care, or treatment, of persons of a particular class.
The class of persons to whom the DSO Act applies are persons who are found to be a serious danger to the community because they pose an unacceptable risk that, if they are not subject to a continuing detention order or a supervision order, they will commit a serious sexual offence: see s 7.
Supervision Orders
Section 17(1) of the DSO Act provides that the court can make one of two orders on finding that an offender is a serious danger to the community:
(a)an order that the offender be detained in custody for an indefinite term for control, care or treatment; or
(b)an order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate.
Section 18 of the DSO Act concerns the conditions that may be imposed by a supervision order made under s 17(1)(b). Section 18(1) stipulates that the order must impose certain requirements on offenders, including that they:
(a)report to a CCO at the place and within the time stated in the order;
(b)report to, and receive visits from, a CCO as directed by the court;
(c)be under the supervision of a CCO.
Section 18(2) provides that the supervision order may contain any other terms that the court thinks appropriate:
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation or care or treatment of the person subject to the order.
Contravention proceedings
Division 4 of pt 2 of the DSO Act concerns the contravention of supervision orders. Section 21 provides that a police officer or a CCO may apply to a magistrate for a summons or warrant under s 21(2) where they reasonably suspect that a person who is the subject of a supervision order is likely to contravene, is contravening or has contravened a condition of the order. The effect of the summons or warrant is to require the person to appear before the Supreme Court or to authorise a police officer to arrest the person for the purpose of being brought before the court to enable the suspected or anticipated contravention to be considered.
Section 22 of the DSO Act provides that the DPP may apply to the court for an order under s 23 where a person appears before the Supreme Court under a summons or warrant that has been issued. Section 23 provides that:
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may ‑
(a)make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Sections 23A and 24A permit various ancillary orders to be made during contravention proceedings, including an order that the person the subject of the proceedings undergo psychiatric examination for the purpose of preparing the report required by s 37 of the DSO Act.
Section 40A(1) of the Act provides that a person who is subject to a supervision order and who, without reasonable excuse, contravenes a requirement of the order commits an offence. Section 40B specifies the procedure to be followed where it is alleged that an offence has been committed under s 40A(1). Section 40B provides that:
(a)the procedure applicable to a charge under s 40A(1) is that applicable to a charge of any other simple offence;
(b)the prosecution of a charge under s 40A(1) may be commenced in the Supreme Court if proceedings have been commenced under pt 2, div 4 of the Act;
(c)where the prosecution is commenced in the Supreme Court, it must be dealt with summarily as if it were a prosecution of a simple offence in a court of summary jurisdiction.
It follows that the applicant carries the onus of proving an alleged offence under s 40A(1) of the DSO Act beyond a reasonable doubt. However, it should be noted that the power conferred on the court by s 23 of the Act is not dependent on a conviction being recorded for an offence committed under s 40A(1). The procedure culminating in an order being made under s 23 may be triggered by the reasonable suspicion of a police officer or a CCO; the suspicion may only concern the likelihood that the person who is the subject of a supervision order may continue; and the court may act on being satisfied about the matters specified in s 23 on the balance of probabilities (including on being satisfied on the balance of probabilities that the person is likely to contravene an order).
Finally, it should also be noted that s 40 of the DSO Act provides that proceedings under the Act or on an appeal under the Act are to be taken to be criminal proceedings for all purposes.
The contravention allegations
The applicant alleged that the respondent contravened the Supervision Order on 14 occasions. The majority of the alleged contraventions were the subject of prosecution notices issued on 1 August 2013. In summary, it was alleged that the respondent contravened the requirements of the Supervision Order:
(a)by remaining in the company of females who were affected by alcohol on 27 June 2013 in breach of condition 35 (alleged contravention no 1; par 15 of the statement of material facts);
(b)by breaching his curfew on 27 June 2013 in contravention of condition 18 - charge 6856/13 (alleged contravention no 2; par 16 of the statement of material facts);
(c)by breaching his curfew on 3 July 2013 - charge 6857/13 (alleged contravention no 3; par 18 of the statement of material facts);
(d)by remaining in the company of females who were affected by alcohol on 9 July 2013 (alleged contravention no 4; par 20 of the statement of material facts);
(e)by breaching his curfew on 9 July 2013 - charge 6858/13 (alleged contravention no 5; par 21 of the statement of material facts);
(f)by breaching his curfew on 19 July 2013 - charge 6859/13 (alleged contravention no 6; par 23 of the statement of material facts);
(g)by remaining in the company of females who were affected by alcohol on 19 July 2013 - charge 6861/13 (alleged contravention no 7; par 24 of the statement of material facts);
(h)by consuming alcohol on 19 July 2013 in breach of condition 33 of the Supervision Order - charge 8395/13 (alleged contravention no 8; par 25 of the statement of material facts);
(i)by allowing various persons to remain overnight at his residence on 19 July 2013, contrary to condition 4 - charge 6860/13 (alleged contravention no 9; par 26 of the statement of material facts and see below);
(j)by remaining in the company of females who were affected by alcohol on 25 July 2013 - charge 6862/13 (alleged contravention no 10; par 28 of the statement of material facts);
(k)by allowing a relative of Ms Sturt to remain overnight at his residence on 25 July 2013, contrary to condition 4 – charge 6855/13 (alleged contravention 11; par 29 of the statement of material facts);
(l)by failing to attend a scheduled counselling session on 26 July 2013, contrary to condition 7 - charge 6853/13 (alleged contravention no 12; par 30 of the statement of material facts);
(m)by failing to attend a scheduled supervision meeting on 26 July 2013 - charge 6854/13 (alleged contravention no 13; par 31 of the statement of material facts);
(n)by breaching his curfew on 30 July 2013 - charge 6852/13 (alleged contravention no 14; par 33 of the statement of material facts).
The respondent's pleas
The respondent pleaded guilty to charge 6856/13 (alleged contravention no 2); charge 6857/13 (alleged contravention no 3); charge 6858/13 (alleged contravention no 5); charge 6859/13 (alleged contravention no 6); charge 6853/13 (alleged contravention no 12); charge 6854/13 (alleged contravention no 13) and charge 6852/13 (alleged contravention no 14).
The respondent pleaded not guilty to charge 6861/13 (alleged contravention no 7); charge 8395/13 (alleged contravention no 8); charge 6862/13 (alleged contravention no 10) and charge 6855/13 (alleged contravention no 11). Alleged contraventions 1 and 4 were not the subject of a charge.
Alleged contravention no 9
According to the statement of material facts, alleged contravention no 9 was the subject of charge 6860/2013. The charge as alleged in the prosecution notice was that the respondent contravened condition 4 of the Supervision Order by breaking his curfew on 19 July 2013. However, par 26 of the statement of material facts alleged in relation to charge 6860/13 that the respondent had failed to comply with an instruction issued by a CCO by allowing several people to stay overnight at his residence.
The respondent consented to an amendment to the charge to reflect the allegation made in the statement of material facts: 'that on 19 July 2013 at Bicton he being subject to a supervision order without reasonable excuse contravened a requirement of that order by permitting other people to remain at his premises overnight contrary to a lawful written instruction issued to him on 21 June 2013'. He pleaded not guilty to the amended charge.
The 'no case' submission
The respondent submitted that he had no case to answer in relation to charge 8395/13 (alleged contravention no 8) following the close of the applicant's case on the allegations that were not admitted. The applicant accepted that no evidence had been received on that charge and an acquittal was recorded.
The application and the issues to be determined
By an application dated 27 August 2013, the applicant applied for an order that, upon the court being satisfied that the respondent had contravened conditions of the Supervision Order, the respondent be detained in custody for an indefinite term for control, care or treatment pursuant to s 23 of the DSO Act; alternatively, that the Supervision Order be amended in such terms as the court thought fit. An interim detention order was made on 28 August 2013.
The issue to be determined at this point in the proceedings is whether the applicant has proved the contraventions of the Supervision Order that were not admitted by the respondent. The parties agreed to defer issues concerning whether an order should be made under s 23 of the DSO Act and, if so, the form of the order until the outstanding allegations of contravention had been determined.
Findings on the alleged contraventions
I have found that the applicant has:
(a)proved to the required standard alleged contravention nos 9 (charge 6860/13) and 11 (charge 6855/13);
(b)not proved to the required standard alleged contravention nos 1, 4 and 7 (charge 6861/13) and 10 (charge 6862/13).
Alleged contravention nos 1 and 4
The alleged contraventions
Paragraph 15 of the statement of material facts alleges that:
On Thursday 27 June 2013 the Respondent, in company with his partner Jocelyn Sturt, remained with a group of approximately 10 adult members of JS's family who were drinking at a park in Maylands during the afternoon, and then accompanied them into Perth city at approximately 5.30 pm, before departing from the group some time before 8 pm following an argument between Ms Sturt and members of the group. The group included adult women who were affected by alcohol. That conduct was a contravention of Condition 35 of the [Supervision Order], but is not the subject of a s. 40A charge.
Paragraph 20 of the statement of material facts alleges that:
On Tuesday 9 July 2013 the Respondent, in company with his partner Jocelyn Sturt, remained with a group of the Respondent's family members who were drinking at Wellington Square in Perth. The group included adult women who were affected by alcohol. That conduct was in contravention of Condition 35 of the [Supervision Order], but is not the subject of a s. 40A charge.
The applicant's evidence
The applicant relied upon the following evidence in relation to alleged contravention nos 1 and 4:
(a)In respect of alleged contravention no 1, admissions allegedly made by the respondent during an electronically recorded interview conducted by Constable Wilkinson and Senior Constable Sharif on 28 June 2013. Constable Wilkinson is a detective attached to the sex offender management squad.
(b)Evidence given by Ms Amber Webster. Ms Webster is a senior community corrections officer responsible for supervising the case management of Mr Corbett.
(c)In respect of alleged contravention no 4, admissions allegedly made by the respondent during an electronically recorded interview conducted on 23 July 2013 by Constable Wilkinson and Constable Cann.
It should be noted that Ms Sturt was not examined about the matters that were alleged in pars 15 and 20 of the statement of material facts notwithstanding that she was alleged to have been with the respondent on each of the occasions to which those paragraphs referred.
The interview conducted on 28 June 2013
The respondent stated during his interview with Constable Wilkinson and Senior Constable Sharif held on 28 June 2013 that he had accompanied Ms Sturt when she had visited members of her family on the previous day. They had gone to a park in Maylands and members of Ms Sturt's family had been drinking for a few hours in the park (exhibit 3A, ts 18):
SCon Sharif: … Were Jocelyn's family getting on the drink there?
Corbett: Yeah.
SCon Sharif: Yeah. How long did that go for?
Corbett: Few hours.
SCon Sharif: A few hours in the park?
Corbett: Yeah.
SCon Sharif: Yeah. Who was there? You said there was about ten people but ‑ ‑ ‑
Corbett: Yeah.
SCon Sharif: But just uncles, aunties ‑ ‑ ‑
Corbett: Aunties.
SCon Sharif: Yeah.
Corbett: Sisters, cousins.
SCon Sharif: The whole lot.
Corbett: Mm. Grandfather - old fellow. There some people from the [indistinct].
…
SCon Sharif: Yep. What were youse drinking? Not yourself but ‑ ‑ ‑
Corbett: They was drinking.
SCon Sharif: Yeah. What were they drinking?
Corbett: Just alcohol. Just [indistinct] ‑ ‑ ‑
SCon Sharif: Beer or bag wine?
Corbett: Mm.
SCon Sharif: Wine in a bag?
Corbett: Yeah.
Ms Sturt, the respondent and others had then travelled into Perth city where an argument had developed between Ms Sturt and some members of her family. The respondent had left the group as he did not wish to become involved in the argument. He had later returned to where the group had been but he had been unable to find Ms Sturt. He had then become concerned about her welfare as she was 'a sick woman' and on dialysis. He had endeavoured to find her in the city, including at Royal Perth Hospital. She was not at the hospital and eventually he had made his way home (exhibit 3A, ts 18 – 23).
The respondent confirmed that 'everyone was still groggin' on in the city' (ts 20) but he was not further questioned as to who was drinking or how much had been consumed. It was not put to the respondent that he knew that any of the females present at the park or those who had accompanied him to the city were affected by alcohol.
Ms Webster's evidence
Ms Webster gave evidence that, in a supervision session conducted on 28 June 2013, the respondent had stated that he had accompanied Ms Sturt when she had visited her family the previous day. He had disclosed that Ms Sturt, her sister and her cousin had been drinking during the visit (ts 224). Ms Webster made a contemporaneous note of her discussion with the respondent that recorded:
Tyrone said that he and Jocelyn went to visit her family yesterday in Maylands. Her sister lives with another person unknown. It was alleged that the girls had been drinking, including Jocelyn. (ts 235)
The allegation to which the note referred was an allegation made by the respondent during the session (ts 235). It was to be inferred from Ms Webster's evidence that Ms Sturt's cousin was a female (see at ts 224, 234 and 236).
Ms Webster was asked in cross-examination whether she had raised with the respondent the possibility that someone present during the visit had been drinking. She replied:
I think we were discussing the presentation of the girls that they had been into an argument and I might have said, 'How did that all come about'.
… And yes. And it followed from that. But yes, I can't recall exactly if I [had] said they had been drinking (ts 236).
The respondent did not state what 'the girls' had been drinking or how much that they had drunk (ts 234).
The interview conducted on 23 July 2013
The respondent was asked about visiting Wellington Square in the interview conducted by Constable Wilkinson and Constable Cann on 23 July 2013. He stated that he had been there with members of his family - 'people from up north when we lived in the same area'. There were females present (exhibit 4A, ts 18). He referred, in particular, to two women who had been present and who had consumed alcohol - Ms Sailor and Ms Willilane.
He thought that he had remained in the park for about 10 or 15 minutes before leaving with Ms Sturt. He had spoken to Ms Sailor and Ms Willilane but 'not all the time'. He had spoken also to a person called 'Michael' (ts 19 ‑ 20).
The respondent was asked whether he had recalled during the time that he was at the Square the condition of his supervision order that required him to not remain in the presence of females who were affected by alcohol. He confirmed that he had thought about the condition 'so I was there for a little while' (ts 20).
Ms Webster's evidence regarding the supervision sessions
The supervision session on 28 June 2013
Ms Webster was asked in her evidence about the supervision sessions that she had conducted with the respondent. She described the purpose of the sessions as, 'brief intervention. We would go over how things were going, the stability of where he was at, relationship issues, just general risk management …' (ts 222). Ms Webster then gave evidence about matters that had been disclosed by the respondent in the course of supervision sessions conducted on 28 June and 26 July 2013. The respondent objected to that evidence on the grounds of voluntariness or fairness. It was agreed that the objection should be further argued in closing submissions and Ms Webster's evidence was provisionally received subject to a ruling on the respondent's objection.
Ms Webster stated that the respondent had been brought to the supervision session held on 28 June 2013 by Constable Wilkinson and another police officer. Ms Webster had met with the police officers prior to commencing the session. Consequently, she had been aware that the respondent had been taken to the Fremantle Police Station for questioning immediately before the session. She had been advised that the respondent had been questioned about an incident involving Ms Sturt's family (ts 235) and about his failure to attend an appointment (ts 233). Accordingly, Ms Webster had been aware that the police had spoken to the respondent about possible contraventions of the Supervision Order at the time that she had conducted the supervision session. She had also been aware that the police were considering laying charges under s 40A of the DSO Act (ts 233).
Ms Webster confirmed that she had known the terms of the Supervision Order at the time that she had questioned the respondent about what had occurred the previous day with Ms Sturt's family. Accordingly, she had understood that it was possible that the respondent might admit to a contravention of the order by answering her questions. Nevertheless, she had expected the respondent to answer the questions (ts 236 ‑ 237). She had conveyed that expectation by asking the questions and through her demeanour (ts 238). She accepted that the respondent was obliged to answer her questions as part of his supervision requirements.
The supervision session on 26 July 2013
Ms Webster stated that the session held on 26 July 2013 had been conducted at the respondent's residence. The reason for her visit to his house had been his failure to attend an appointment with her that morning. The respondent's non-attendance had been contrary to the requirements of the Supervision Order. She had spoken to the police prior to the visit and had advised them that the respondent had not attended his scheduled appointment (ts 237 – 239).
Ms Webster had also been aware from speaking to the police that it had been alleged that people had stayed overnight at the respondent's house. She had asked the respondent about the circumstances relating to that allegation. She had questioned him about what had occurred during the night before and also on 19 July 2013 (ts 240). Her questions had been based on information provided by the police.
The parties' submissions on alleged contravention nos 1 and 4
The applicant's submissions
The applicant contended that the word 'affected', when used in condition 35, meant 'influenced, touched by or impacted upon' and that the word had been chosen to describe 'a condition that is less than intoxication' (applicant's submissions, par 9). He relied primarily on the admissions made by the respondent during the interviews conducted with Constable Wilkinson on 28 June 2013 and 23 July 2013 to submit that alleged contravention nos 1 and 4 had been proved on the balance of probabilities.
Ms Webster's evidence in relation to alleged contravention no 1 was said to also provide 'evidence capable of proving [the contravention] to the requisite standard of proof' (par 11). The applicant contended that the respondent's admissions to Ms Webster had been made voluntarily.
The respondent's submissions
The respondent submitted in relation to the meaning and effect of condition 35 of the Supervision Order that:
(a)The word 'affected' implied more than simply having consumed alcohol - it implied that the female concerned had drunk sufficient alcohol for its intoxicating effect to have 'made a difference' to her.
(b)Condition 35 was not a strict liability condition nor should a standard of recklessness apply. Consequently, the respondent had to know more than that a female in his presence had consumed alcohol - he had to know that she was affected by alcohol.
(c)A breach of condition 35 could only occur if the respondent remained in the presence of a female knowing that she had been affected by alcohol.
The respondent further submitted that the applicant had not proved alleged contravention no 1 as:
(a)The respondent had not made any admission about females drinking in the course of his interview with the police on 28 June 2013. The respondent had merely accepted that 'family [was] getting on the drink' (exhibit 3A, ts 18).
(b)It was clear that both men and women were present at the park in Maylands.
(c)The respondent had not been asked if every member of the group present in the park had been drinking. He had only been asked if 'they' were drinking; 'was everyone still grogging on?' and 'Were Jocelyn's family getting on the drink?'
(d)Ms Webster had questioned the respondent about visiting Ms Sturt's family home. However, the statement of material facts had alleged a contravention in respect of drinking at the park in Maylands.
(e)The respondent had spoken to Ms Webster in the past tense. Further, his admission that 'they were drinking' had not been an admission that he had been present when this had occurred.
(f)The respondent's admission that 'the girls … had been drinking on that occasion' had not been an admission that any female had been affected by alcohol. The respondent had made no admission to Ms Webster about how much alcohol had been consumed or what type of alcohol had been drunk.
The respondent submitted that the applicant had failed to prove alleged contravention no 4 as:
(a)The respondent had not made any relevant admission in the interview conducted with the police on 23 July 2013. The respondent's statements during the interview had concerned events that had occurred on 11 July 2013 and not on 9 July 2013.
(b)The respondent had conceded that women were present but he had maintained that he was 'talking to Michael' when the police put to him that women were 'in proximity with you'.
(c)The respondent had indicated that he was at the park for less than 10 to 15 minutes so that there had only been a limited opportunity for him to observe whether or not any female present was affected by alcohol.
(d)The respondent had made no admission to the effect that he knew or was aware that any female present had been affected by alcohol. He had conceded only that 'two ladies' were consuming alcohol. He had not been asked by the police what type of alcohol had been consumed or for how long the women had been drinking nor had any question been asked about the behaviour of the females present that might have indicated to him that they had been affected by alcohol.
The meaning and effect of condition 35
As has been noted, s 40A(1) makes it an offence for a person who is subject to a supervision order to contravene a 'requirement' of the order without reasonable excuse. The 'requirement' imposed by condition 35 of the Supervision Order was for the respondent to 'not remain in the presence of females who are affected by alcohol or prohibited drugs'.
Four points may be made about the meaning and effect of condition 35. First, the condition necessarily contemplates that the respondent was aware that he was in the presence of at least one female who had been affected by alcohol. The condition requires him to positively take action in those circumstances - to 'not remain' in the presence of the affected female. It follows that the respondent must first know that he is in the presence of a female who has been affected by alcohol.
Second, condition 35 does not impose a requirement that is capable of being objectively determined. For example, a condition might have been imposed that required the respondent to not remain in the presence of a female who was consuming alcohol. However, the condition focuses on the respondent's knowledge of the state of any female present who was, or had been, drinking alcohol.
Third, the condition not only imposes a requirement that depends on the respondent's state of mind (his knowledge) but it does so by reference to a matter that may not always be capable of objective assessment – whether somebody has been affected by alcohol. Each party submitted dictionary definitions to explain the meaning to be given to the word 'affected' when used in condition 35: 'influenced'; 'touched by'; 'impacted upon'; 'have an effect on' or 'making a difference to'. Accordingly, the use of the word 'affected' in the condition means that the respondent was required to take action to remove himself from the presence of a female who had, to his knowledge, consumed sufficient alcohol to have impacted upon, made a difference to or influenced her.
People may, of course, behave in such a way as to make it readily apparent that they have been affected by alcohol or drugs. Further, it may be possible to infer that a person has been affected by alcohol if information about the amount of alcohol that has been consumed, when it was drunk and the strength of the alcoholic drink is known. However, there may be questions of subjective judgment and degree about whether a person has been affected by alcohol where that kind of information is not known.
Fourth, as the applicant submitted, there is a difference between being affected by alcohol and being in a state of intoxication. A person may be affected by alcohol but not be intoxicated.
The respondent's objection to Ms Webster's evidence
The respondent submitted that the applicant had not proved that any admission made by the respondent to Ms Webster in the supervision session conducted on 28 June 2013 had been made voluntarily. The same objection was taken to the evidence given by Ms Webster about admissions allegedly made by the respondent during the home visit on 26 July 2013.
It was submitted that the respondent's admissions to Ms Webster were involuntary as:
(a)The respondent was subject to compulsory supervision by Ms Webster – condition 4 of the Supervision Order (reinforced by condition 5 that required the respondent to report to Ms Webster as his CCO).
(b)The respondent would have committed a criminal offence if he had contravened condition 4 or condition 5 of the Supervision Order. The risk that the respondent would have committed a criminal offence by refusing to answer Ms Webster's questions constituted an inducement to answer.
(c)The respondent had been previously issued with a warning for non-compliance with the terms of the Supervision Order. The warning had been issued by another CCO but Ms Webster was aware of the warning (ts 231). Accordingly, she had known that the respondent had been aware that there might be significant consequences for him if he had failed to answer questions put by her during the supervision session.
(d)Ms Webster had also been aware that the police had interviewed the respondent immediately prior to the supervision session on 28 June 2013 and that it was possible that he could be charged under s 40A of the DSO Act in relation to the matters that were to be raised with him during the session.
(e)The supervision sessions had proceeded according to a question and answer format with Ms Webster expecting the respondent to answer her questions. According to Ms Webster, she had conveyed that expectation to the respondent.
The respondent further submitted that evidence of any admission that he might have made to Ms Webster should be excluded on grounds of fairness even if it was found that the admission had been made voluntarily. The respondent relied on the submissions summarised above and on the following additional matters to argue that the evidence should be excluded on the ground of fairness:
(a)Ms Webster had been aware that the police were investigating the events that had allegedly occurred on 27 June 2013. The 'only inference open from her evidence was that Ms Webster had a clear intention to report whatever information was obtained from her questioning to the Police for investigation' (respondent's closing submissions, par 18(c)).
(b)The 'interrogation style' interviews that had been conducted by Ms Webster could not properly fall within the 'care and treatment' aims of the DSO Act. The purpose of Ms Webster's questioning was 'for, and "control" by potential contravention' (par 18(d)).
(c)Ms Webster had been aware that the answers to her questions might be used against the respondent in criminal proceedings.
(d)It would be unfair 'to use admissions obtained by the Department in circumstances where the Department has compelled the [respondent] to participate in supervision interviews as an investigative tool' (par 18(f)).
Findings on the alleged contraventions (without considering the respondent's objection to Ms Webster's evidence)
The objection to Ms Webster's evidence only concerned alleged contravention no 1. In my view, the applicant has failed to prove that contravention on the balance of probabilities even if Ms Webster's evidence is allowed. Accordingly, I propose to explain my findings on alleged contravention nos 1 and 4 and to then return to the objection that was taken by the respondent to Ms Webster's evidence.
It is not alleged that the respondent committed a criminal offence by reason of the matters stated in pars 15 and 20 of the statement of material facts. The allegation that he contravened condition 35 of the Supervision Order was made pursuant to s 21 in support of an application for an order under s 23 of the DSO Act. Although s 23 refers to likely or continuing contraventions, the allegations made in the statement of material facts are that the respondent had, in the past, contravened condition 35.
In my view it was necessary for the applicant to prove, on the balance of probabilities, the following matters to establish that the respondent had contravened condition 35:
(a)that the respondent had been in the presence of a female who was affected by alcohol;
(b)that the respondent had known that he was in the presence of a female who had been affected by alcohol; and
(c)that the respondent had remained in the presence of the affected female.
Alleged contravention 1
I find, on the admissions made by the respondent in the interview conducted with Constable Wilkinson and Senior Constable Sharif on 28 June 2013, that the applicant has proved, on the balance of probabilities, that there were female members of Ms Sturt's family drinking in the respondent's presence on 27 June 2013. In my view, the respondent's reference to 'they were drinking' included Ms Sturt's aunties and sisters when the relevant part of the interview is considered as a whole.
Ms Webster's evidence of the statements made by the respondent during the supervision session conducted on 28 June 2013 would, if admissible, support that finding. It is found later in these reasons that Ms Webster's evidence is admissible. However, I would have made the finding solely on the basis of the statements made by the respondent to Constable Wilkinson and Senior Constable Sharif.
The respondent's statements to Constable Wilkinson and Senior Constable Sharif only identified that those present in the park had been drinking wine in a bag. He was not asked, and he did not state:
(a)how much had been drunk by any of the females present;
(b)whether he knew that any female present had been affected by alcohol;
(c)whether any female present had behaved in such a way as to indicate that she had been affected by alcohol.
Accordingly, I find that the applicant has not proved, on the balance of probabilities, that any female was affected by alcohol while in the respondent's presence on 27 June 2013 or that the respondent knew that any female, who was in his presence, had been affected by alcohol.
Further, Ms Webster's evidence does not have overcome the gaps in the applicant's case on alleged contravention no 1.
Alleged contravention 4
I find, on the basis of the admission made by the respondent to Constable Wilkinson and Senior Constable Sharif, that Ms Sailor and Ms Willilane had consumed alcohol in the presence of the respondent on 9 July 2013 at Wellington Square. However, there was no evidence as to how much alcohol they had consumed or any evidence from which an inference could be drawn that they were 'affected' by alcohol. The respondent was not questioned about those matters in the course of his interview with Constable Wilkinson and Senior Constable Sharif on 28 June 2013.
It follows that there was also no evidence from which an inference could be drawn - being the only reasonable inference to be drawn from all of the relevant circumstances - that the respondent knew that either Ms Sailor or Ms Willilane was affected by alcohol. It appears that Constable Wilkinson and Senior Constable Sharif conducted the interview with the respondent on the assumption that condition 35 required the respondent to not remain in the presence of any female who was consuming alcohol. As I have explained, that is not, in my view, the effect of condition 35.
It is not necessary to determine whether the respondent had complied with the requirement of condition 35 had it been established that he had been, to his knowledge, in the presence of a female who was affected by alcohol. He stated that he remained for only 10 to 15 minutes at the Square and that he was mindful of the requirement imposed by condition 35. Arguably, the respondent did comply with the requirement imposed by the condition. The time to be allowed for the respondent to comply with the requirement would depend on matters such as how the respondent had acquired his knowledge that he was in the presence of a female who had been affected by alcohol. Obviously, that might not be immediately apparent to the respondent.
The objection to Ms Webster's evidence
The applicant's submissions
The applicant apparently accepted that the respondent had been required by the Supervision Order to answer the questions put by Ms Webster during the supervision sessions. The requirement formed part of condition 4. However, it was submitted that it was not apparent from Ms Webster's evidence that she had held out any inducement or made any promise to the respondent about the action that she might take if he did not cooperate with her during the supervision sessions (applicant's submissions, par 14).
The applicant referred to the principles summarised by Buss JA in Critchley v The State of Western Australia [2013] WASCA 28. In that case, the Court of Appeal held that the trial judge had erred by permitting the prosecution to tender an edited version of a letter written by the appellant, who had been a police officer, to the Commissioner of Police. The letter had been written in answer to a notice of intention to remove the appellant as a member of the police force. The Commissioner had issued the notice. Buss JA, with whom Martin CJ and Mazza JA agreed, observed that the appellant's letter, which contained relevant admissions, ought to have been excluded according to the 'definite rule' that a 'confessional statement cannot be voluntary if it is induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority' [48].
The applicant accepted that Ms Webster was a person in authority for the purpose of that rule but sought to distinguish the circumstances considered by the Court of Appeal in Critchley from this matter on the following grounds:
(a)although a CCO such as Ms Webster could apply to a magistrate for a warrant under s 21 of the DSO Act, the further conduct of those proceedings would be undertaken by the applicant;
(b)any decision on whether there had been a breach of a supervision order and the consequences of any proven contravention were matters for this court, whereas in Critchley the Commissioner was empowered to recommend to the Minister for Police and Emergency Services that the appellant's removal from the police force be approved.
The relevant principles
The rules by which an admission that had been made involuntarily by an accused person is excluded from evidence were explained by the High Court in in Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396. The discretion to exclude voluntary admissions was considered by the High Court in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. The Court of Appeal summarised the relevant principles in Critchley (see also Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1).
Many of the reported cases on voluntariness concern confessions of guilt. However, as Gleeson CJ pointed out in Tofilau, the common law rules relating to voluntariness apply to all admissions sought to be used in evidence against an accused person. Accordingly:
The admission may have been made to any manner of person, and in any kind of circumstance. … It may have been made in circumstances where issues of legal rights or consequences, or considerations of choice either to speak or remain silent, never entered the mind of the maker. It would be clearly wrong to suggest that the only kinds of admission used in evidence at criminal trials are those made to police officers in a context of a conscious decision not to exercise a 'right to silence'. Admissions, which may turn out to be very damaging, are often made in circumstances where the maker of the admission is unconcerned with legalities, and may not even realise the significance that later will be attached to what is said [5].
In McDermott v The King (1948) 76 CLR 501, Dixon J said:
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made … An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (511).
The second category of case referred to in that passage - circumstances where an accused person made a confessional statement out of fear of prejudice or in the hope of an advantage exercised or held out by a person in authority - was characterised as being the 'classical' ground for rejecting confessions and the category that 'looms largest in a consideration of the subject'. However, his Honour also observed:
It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will (512).
In R v Lee (1950) 82 CLR 133 the High Court noted, in relation to the distinction apparently drawn by Dixon J in McDermott that:
[Smith J] began by putting s 141 on one side on the ground that in the present case there was no evidence of a threat or promise, and then set out two imperative rules of the common law regarding confessional statements in the language of Dixon J in McDermott … These rules, stated in abbreviated form, are - (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by person in authority, unless the inducement is shown to have been removed. These two 'rules' are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really two independent and co-ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible (144).
Nevertheless, the High Court in Tofilau distinguished between what Gleeson CJ characterised as the 'definite' rule and a rule concerning 'basal voluntariness'. That distinction reflected the observations of Dixon J in McDermott.
The 'definite' or 'inducement' rule excludes statements that are the result of a threat made, or an inducement given, by a person in authority. It is a 'definite' rule because it is a precise or specific rule of the common law: Critchley [45]. The notion of a 'person in authority' refers to a person that 'the confessionalist knows or believes (or, perhaps, to those persons who the confessionalist perceives, on reasonable grounds) have lawful authority to affect the course of the investigation of or prosecution for the relevant offence': Critchley [46]. It is not necessary that the inducement relate to the actual or contemplated charge: Critchley [47].
Basal voluntariness involves a wider concept. It is concerned with whether a statement was only made because the will of the maker of the statement was overborne for some reason.
In Tofilau, Gleeson CJ noted in relation to the rationale for excluding involuntary admissions that:
The law treats as voluntary a great deal of conduct about which a person, speaking colloquially, may say that he or she had no choice. Since the original rationale for the principle of exclusion of involuntary statements was concern about the unreliability of statements made under coercion, that will sometimes be a useful guide in making a judgment about what kind of conduct will be taken to render a statement involuntary [17].
His Honour also noted that the 'abuse of the state's coercive authority' provided another part of the rationale for the exclusionary rule [18].
In their judgment in Tofilau, Callinan, Heydon and Crennan JJ traced in some detail the history of the 'inducement' rule and the concept of basal voluntariness and the underlying policy rationale for each rule. Their Honours carefully identified and emphasised the limits of the rules. Similarly, Gummow and Hayne JJ were concerned to confine the application of the rules. Their Honours observed:
'Basal voluntariness' may be seen as a principle underpinning the whole of the law relating to confessions. But it is a principle that in practice will fall for consideration, if at all, only in cases not concerning a person in authority. The test excluding statements preceded by an inducement in the form of fear of prejudice of hope of advantage held out by a person in authority necessarily excludes confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. For, of course, if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied. …
Confessions made to someone not known or believed to be a person in authority will thus fall to be considered under the test of 'basal voluntariness'. Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, 'overborne' should be understood in the sense described by Dixon J as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. It is necessary to focus upon the sufficiency of the compulsion [59] - [60].
The 'inducement' rule and the 'basal voluntariness' rule exclude statements that were made involuntarily by an accused person. There are also discretionary principles by which a trial judge may exclude voluntary admissions. Those principles were considered by the High Court in Swaffield. Three categories of case were identified cases where:
(a) it would be unfair to the accused to admit evidence of the admission;
(b) evidence of the admission should be excluded on public policy grounds;
(c)the prejudicial effect of the evidence outweighs its probative value.
In Swaffield, Toohey, Gaudron and Gummow JJ explained the rationale underlying each category of case:
The second basis is that it would be unfair to the accused to admit the statement. The purpose of this discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice [52].
Unfairness in this context is concerned with the accused's right to a fair trial and not with whether investigators have acted unfairly. An accused's right to a fair trial may be jeopardised if a statement is obtained in circumstances that affects the reliability of the statement: see Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; (1988) 82 ALR 10. However, the unfairness discretion is not exclusively concerned with reliability. The rights and privileges of an accused include procedural rights so that there 'may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence' (Swaffield [78]). So, for example, it may be unfair to admit a confessional statement into evidence if the person to whom the statement was made was not called as a witness or where an accused person had been questioned out of court in such a way as to create apparent inconsistencies that might be used unfairly to impair his or her credit as a witness.
The DSO Act
Neither party considered the provisions of the DSO Act in their submissions on the admissibility of Ms Webster's evidence. In Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 the Court of Appeal held that the trial judge had not erred in admitting evidence of statements made by the appellant to two psychiatrists appointed to provide reports under s 37 of the DSO Act. The evidence was admitted in a hearing under s 8 of the Act for orders under s 14 and s 17(1). It was contended that the evidence ought to have been excluded as it concerned statements that had been involuntarily made by the appellant. It was further contended that the appellant ought to have been given a form of caution prior to be examined by the psychiatrists and that the evidence ought to have been excluded on grounds of fairness.
Following a review of much of the case law briefly canvassed above, Steytler P and Buss JA held that:
(a)the appellant's contentions had to be assessed in the context of the scheme of the DSO Act in relation to the psychiatric examination of an offender [119];
(b)an offender was obliged to undergo a psychiatric examination (although an offender did not commit an offence if he or she refused to participate in an examination and the obligation was not 'specifically enforceable') [124];
(c)there was no obligation to provide an offender with a caution in circumstances where Parliament had imposed a statutory obligation on the offender to undergo an examination [125];
(d)the statutory scheme was inconsistent with a requirement that the unfairness discretion or policy discretion may be invoked by analogy unless, perhaps, a clinical interview was conducted in a manner that was unreasonable or oppressive having regards to the standard of clinical conduct and behaviour accepted by psychiatrists of good repute [126].
It should be noted that there was no discussion in Woods of questions regarding the common law privilege against self-incrimination and the fair trial of a person who has been required to compulsorily divulge information that may be incriminating: see, for example, the discussion in R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155. There may have been several explanations for why that line of authority was not pursued in Woods. It was not referred to in this case notwithstanding that both parties apparently accepted that the respondent was compelled to answer Ms Webster's questions or risk committing a criminal offence by refusing to do so and Ms Webster acknowledged that she had provided the police with information and obviously, she had also given similar information to the applicant prior to the trial of the allegations that the respondent had contravened the Supervision Order.
As the parties did not address the provisions of the DSO Act, no attempt was made to distinguish between the admissibility of evidence to be given by a CCO in pt 2, div 4 proceedings and evidence to be given in the prosecution of an offence under s 40A. I propose to address only the former circumstance, as it was not claimed that alleged contravention no 1 constituted an offence under the DSO Act. Ms Webster also gave evidence that was relevant to alleged contravention nos 9 and 11. The applicant denied that those alleged contraventions constituted an offence under s 40A of the DSO Act. I have been able to make findings in respect of those alleged contraventions without regard to Ms Webster's evidence and I do not propose to consider whether her evidence was admissible in proceedings under s 40A in the absence of further submissions about the effect of the provisions of the DSO Act. It may be that considerations arise in relation to the admissibility of statements made by an offender to a CCO in a prosecution under s 40A. In particular, different considerations relevant to a fair trial of the offender may be invoked.
The parties expressly or impliedly accepted in their submissions that Ms Webster was entitled under the terms of the Supervision Order to enquire into whether the respondent had contravened the order. In my view, that concession was rightly made having regard to the objects of the DSO Act, the provisions of s 18 of the Act and the role to be played by a CCO in supervising an offender (a role that was, of course, reflected in the Supervision Order). A supervision order will inevitably impose conditions that are designed to ensure that the community is adequately protected from the risk of an offender re-offending. An essential part of the CCO's role will be to monitor the offender's compliance with those conditions. As Ms Webster explained, that is one purpose of the supervision sessions – the sessions being one means by which an offender gives effect to conditions such as conditions 4 and 5 of the Supervision Order.
In my view, s 21 necessarily contemplates that a CCO may be able to disclose statements made by an offender about contraventions or likely contraventions of a supervision order. A CCO may apply to magistrate for the issue of a summons or a warrant under s 21(1) of the DSO Act. He or she is required to satisfy the magistrate that there are reasonable grounds for issuing the summons or warrant: s 21(2). The purpose of the summons or warrant is to require the person to appear in the Supreme Court or to authorise the person to be brought before the court for it to 'consider the suspected or anticipated contravention'. The Director of Public Prosecutions may apply for an order under s 23 where a person appears on a summons or warrant issued under s 21. The court may make an order under s 23 if satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening or has contravened the order.
Conclusion on the admissibility of Ms Webster's evidence
In my view, it is consistent with that scheme that a CCO may give evidence of statements made by the offender in proceedings under s 23. That is so even if the offender was compelled by the terms of the Supervision Order to make the statements to the CCO. As the Court of Appeal observed in Woods in relation to statements made by an offender during a psychiatric examination, the scheme of the DSO Act is inconsistent with the exclusion of admissions made by an offender to a CCO on grounds of fairness – at least where the CCO has not acted so oppressively or unreasonably that other public policy and fairness considerations apply (it may be that in such a case the CCO would be acting outside the scope of his or her authority as conferred by the supervision order and the DSO Act).
In my view, the applicant's concession that Ms Webster was a person in authority for the purpose of the 'definite rule' of exclusion was rightly made applying, by analogy, the test stated in Critchley. However, an offender is not 'induced' to make the statements to a CCO in the relevant sense having regard to the scheme of the DSO Act. Considerations of 'basal involuntariness' do not arise.
Alleged contravention no 7
The alleged contravention
Paragraph 24 of statement of material facts alleges that:
On ... 19 July 2013, during the taxi journey [from Maylands to a liquor store at Palmyra and to the respondent's home] and upon arriving home the Respondent was in company with an adult female Lena Mandijarra (a relative of Jocelyn Sturt) who was then affected by alcohol, having been consuming alcohol in the Respondent's presence. That conduct was in contravention of Condition 35 of the [Supervision Order], and is the subject of charge FR 6861/13.
The evidence
Ms Sturt gave evidence that on a Thursday in August, she and the respondent had visited family in Maylands. Ms Mandijarra had been among those present during the visit. A few people, including Ms Mandijarra, had subsequently travelled to the respondent's residence by taxi. They stopped at a liquor store on the way and Ms Sturt purchased wine for Ms Mandijarra. Ms Mandijarra drank the wine at the respondent's residence over a period of about two hours (ts 251 ‑ 253).
In cross‑examination, Ms Sturt accepted that she had been drinking during the visit at Maylands. She was very drunk as a result (ts 259). That had affected her memory but she confirmed that the incident that she had described had occurred in August – although, she added that 'I don't know the dates and the time' (ts 260). According to Ms Sturt, the respondent had been sleeping when Ms Mandijarra had been drinking (ts 261, 263). Further, the respondent did not speak to Ms Mandijarra while she was at his residence because he was not permitted, for cultural reasons, to speak to the sister of Ms Sturt's mother (ts 262).
Although Ms Sturt stated that those events had occurred in August, the respondent accepted that she was, in fact, giving evidence about events that took place on 19 July 2013.
The respondent was asked in the course of the interview conducted with Constable Wilkinson and Constable Cann on 23 July 2013 to explain his movements on the night of 19 July 2013. He stated that (exhibit 4A, ts 24):
I was at Maylands, sitting down with family, ah, in‑laws and families. Um, yeah, sitting, and a little [indistinct] the ended up drinking [indistinct] so-and-so and so I sat down with them. Then about after six, I think it was, we left Maylands on a, in a maxi taxi, a cab. Ah, there was ten of us on board there. Ah …
And there were some were drunk, some of them weren't. And got home and then went to sleep and, we went to sleep, me and Jocelyn.
The respondent further explained that Ms Sturt's family had purchased one bag of wine and were drinking in the park near the Maylands library. The following exchange then occurred (ts 25 – 26):
CON WILKINSON: And who was present?
CORBETT:Lena, Patricia, David, Joseph. Oh, there was people there but they got, they don't use their English name. Like, I don't even know what their English name.
…
CON WILKINSON: So who's Lena and, ah, Patrina, Patricia?
CORBETT: They auntie for Jocelyn and David is the uncle.
CON WILKINSON: And how old are they?
CORBETT: Seventy, eighty, maybe eighty. They really old.
CON WILKINSON: And were they drinking?
CORBETT: Yeah.
CON WILKINSON: How much were they drinking?
CORBETT: Just a couple and went to sleep.
CON WILKINSON: They fell asleep at your house or they fell - - -
CORBETT: Yeah.
CON WILKINSON: Asleep at the park?
CORBETT: They, at my house.
The respondent described how about 10 people caught a maxi taxi from Maylands (ts 26). They stopped at a liquor store on the way to his residence and a young person purchased a cask (ts 27 and ts 30). The respondent did not know his name. They then went to the respondent's residence.
The respondent was asked by Constable Wilkinson, 'did everyone go straight to sleep or was there further consumption of alcohol'? He replied, 'Um, Lena, Patricia went to sleep but the other guys, they were still up'. He also confirmed in answer to a further question that 'they' (that is, the 'other guys') stayed up drinking (ts 28).
The parties' submissions
The applicant's submissions
The applicant submitted that, '[i]n substance, the respondent admits that he was at Maylands with his partner Jocelyn's family and they had purchased grog or alcohol, being a bag of wine. He was present at the library in the presence of … Lena Mandijarra, and another lady called Patrina or Patricia. Those two people were drinking, had had a couple of drinks of alcohol and fell asleep at his house' (applicant's submissions, par 16). Those admissions were said to be sufficient to prove the alleged contravention no 7.
The applicant did not refer to the evidence of Ms Sturt in his closing submissions.
The respondent's submissions
The respondent submitted that the applicant had not proved alleged contravention no 7 as:
(a)In the interview conducted with the police on 23 July 2013, the respondent spoke about being with family members that included both males and females. He admitted that 'some were drunk, some of them weren't', but he was never asked whether any of the female family members were drunk or even drinking. The questions that were asked were about 'they'.
(b)Consequently, the respondent never made any admission that a female was drunk or affected by alcohol in his presence.
(c)The respondent was asked about how much 'they' were drinking. The respondent's answer, 'Just a couple and went to sleep' did not constitute an admission regarding any female having been affected by alcohol. That was so even if the reference to 'they' could be taken to include any female who had been present.
(d)Ms Sturt gave evidence that Lena Mandijarra was drinking while at the respondent's residence. However, she stated that the respondent had been asleep while that had occurred. According to Ms Sturt, Ms Mandijarra was not drinking while the respondent was awake.
(e)Further, Ms Sturt stated that she did not know what or how much Ms Mandijarra had been drinking.
Finding
As I have explained, the applicant is required to prove beyond a reasonable doubt that:
(a)Ms Mandijarra had been affected by alcohol while the respondent was present;
(b)the respondent knew that Ms Mandijarra had been affected by alcohol;
(c)the respondent remained in Ms Mandijarra's presence without reasonable excuse.
The allegation made in the statement of material facts was that the respondent remained in Ms Mandijarra's presence during the taxi ride from Maylands and subsequently, at his residence while she was affected by alcohol. As has been indicated, the applicant relied on admissions allegedly made by the respondent during the interview held with Constable Wilkinson and Constable Cann on 23 July 2013. However, in the interview:
(a)The respondent did not expressly state that Ms Mandijarra was drinking alcohol during his visit at Maylands.
(b)Insofar as the respondent's answer to the question 'and they were drinking' could be understood as an admission that Ms Mandijarra was one of a group who was drinking, the respondent merely stated that 'they' had drunk 'just a couple'.
(c)The respondent stated that a young person purchased a cask of wine during the taxi journey to his residence. Ms Mandijarra and Ms Sturt went to sleep when they arrived at the house, while the 'guys' stayed up.
There were obvious differences in the evidence given by Ms Sturt and the account given by the respondent to Constable Wilkinson and Constable Cann. However, Ms Sturt:
(a)did not give evidence that Ms Mandijarra was drinking at Maylands;
(b)stated that the respondent did not speak to Ms Mandijarra and that he was asleep throughout the time that she was drinking wine at the respondent's residence.
I find that the applicant has not proved beyond a reasonable doubt that the respondent contravened the Supervision Order by remaining in the presence of Ms Mandijarra during the taxi journey to his residence or subsequently at his residence on the evening of 19 July 2013. The respondent's statements to the police during the interview conducted on 23 July 2013 were equivocal. At most, they constituted an admission that Ms Mandijarra formed part of a group that had consumed 'just a couple' of drinks in his presence. The respondent's statements do not establish beyond a reasonable doubt that Ms Mandijarra was affected by alcohol; further or alternatively, that he knew that she was affected by alcohol.
The evidence of Ms Sturt, considered by itself or in combination with the evidence contained in the interview conducted on 23 July 2013 with the respondent, is not sufficient to prove the alleged offence for two reasons. First, I do not consider that the differences between Ms Sturt's evidence and the respondent's statements to the police can be reconciled so as to establish that Ms Mandijarra was consuming alcohol at the respondent's residence on the night of 19 July 2013. Second, and in any event, according to Ms Sturt the respondent had been asleep during the time that Ms Mandijarra was alleged to have been drinking alcohol.
An acquittal will be recorded in respect of charge 6861/13.
Alleged contravention nos 9 and 11
The alleged contraventions
Paragraph 26 of the statement of material facts alleges that:
On the same date of 19 July 2013, the Respondent allowed Lena Mandijarra and seven other people to remain overnight at his address. That conduct was contrary to the written instruction given on 21 June 2013 and was thus in contravention of Condition 4 of the [Supervision Order] and is the subject of charge FR 6860/13.
Paragraph 29 of the statement of material facts alleges that:
On the same evening of Thursday 25 July 2013 to Friday 26 July 2013, the Respondent allowed Ms Crowe to stay overnight at his address. That conduct was contrary to the written instruction given on 21 June 2013 and was thus in contravention of Condition 4 of the [Supervision Order] and is the subject of charge FR 6855/13.
The evidence
The Instruction
Ms Webster stated that she had issued two written instructions to the respondent concerning his accommodation. The first (exhibit 2) was dated 28 March 2013 and advised the respondent that, as a result of an agreement with the provider of his accommodation (Foundation Housing), he was not to have any other person stay at his premises overnight unless he had the prior approval of his CCO. The second instruction (the Instruction) was dated 21 June 2013 (exhibit 1) and stated that as a result of Department of Housing accommodation, the respondent was not:
(a)to have any person other than Jocelyn Sturt stay overnight at his premises unless he had the prior approval of his CCO;
(b)at any time to have any person visiting at his premises between his curfew hours of 8 pm and 6 am unless he had the prior approval of his CCO.
It was also expressly stated that the instruction included any direct or indirect family or friends of either the respondent or Ms Sturt.
According to Ms Webster, the first instruction was given as Foundation Housing, 'have quite strict policies about how many people are at the address and who stays overnight there' (ts 220). Consequently, the Department of Corrective Services did not wish to jeopardise the respondent's accommodation.
Ms Webster further stated that (ts 221):
So by giving this written lawful instruction it was to outline – to, I guess, to have secure accommodation so he didn't lose his accommodation. And then also in line with, you know, not putting him in high risk situations where there could potentially be females staying at the accommodation. That could potentially – be under the influence of alcohol, then that would also, you know, jeopardise his order.
She was asked to elaborate on that answer and she said (ts 221):
Well, shortly after his release from prison Tyrone had a lot of family members and his partner's family members that were wanting to stay over because he had this accommodation, and there were a number of counts where I was contacted by Foundation Housing in particular that, you know ---
In cross-examination, Ms Webster confirmed that she did not have a copy of the Department of Housing lease; she had never seen a copy of the lease; she was not aware of any policy that the Department of Housing had about guests staying overnight that might jeopardise the respondent's accommodation and there had been no indication from the Department that his accommodation would be jeopardised if guests were to stay overnight (ts 247 ‑ 248). She said that she, 'just wanted to differentiate between the Foundation Housing, now that he had moved to Department of Housing that that was the difference, just so he had a copy of that' by issuing the Instruction (ts 247).
Ms Webster also accepted that the first occasion on which she was aware of any concern about the respondent being in the presence of a female affected by alcohol was on 27 June 2013 – that is, after the Instruction had been issued (ts 248).
Alleged contravention no 9
Ms Sturt's evidence about what had happened on 19 July 2013 has been largely summarised earlier in that part of the reasons concerning alleged contravention no 7. In relation to the allegation that Ms Mandijarra and others sleep overnight at the respondent's residence, Ms Sturt stated that 'the others' (that is, the people who had travelled with her and the respondent from Maylands to the respondent's residence) had stayed for two days (ts 252).
Ms Sturt stated in cross‑examination that she could not say who was at the respondent's residence on the night of 19 July 2013 as the alcohol that she had drunk that day had affected her recollection of the night (ts 260). However, she was cross-examined on the basis that she, rather than Mr Corbett, had invited people back from Maylands to the respondent's residence and that the respondent had said that he did not want people staying overnight (ts 263). It was not put to Ms Sturt that she had erred in her evidence that Ms Mandijarra and others had stayed the night.
The respondent was asked to explain what had occurred on 19 July 2013 during his interview with Constable Wilkinson and Constable Cann. He stated that he had gone to Maylands to visit 'in‑laws and families'. At some time after 6.00 pm a group of people, including the respondent, had left Maylands and travelled to the respondent's residence by taxi (exhibit 4A, ts 24; see the passage from exhibit 4A reproduced above in relation to alleged contravention 7). The group included 'Lena, Patricia, David, Joseph …' (ts 25). They eventually fell asleep at the respondent's residence (ts 25 ‑ 26; ts 28).
Alleged contravention no 11
Ms Sturt and Ms Crowe are cousins. Ms Sturt stated that she had met Ms Crowe one day in Fremantle. They went back to the respondent's residence and Ms Crowe assisted in cleaning the unit. Ms Crowe then had a 'few drinks'. The respondent was present, lying on his bed. Ms Sturt told him to go to sleep. Ms Crowe stayed the night and left the next morning. That was the morning that the police 'took' the respondent (ts 253 ‑ 254).
Constable Wilkinson stated that the police attended at the respondent's residence during the morning of 26 July 2013. Photographs were taken of the interior of the residence that showed empty alcohol containers (exhibits 5A to 5I; ts 269 ‑ 270). A photograph was also taken of Ms Crowe who was present at the respondent's residence when the police arrived (ts 271).
Finding on whether the Instruction was breached
In my view, the respondent's admissions to the police during the interview conducted on 23 July 2013 and Ms Sturt's evidence established beyond a reasonable doubt that Ms Mandijarra and others stayed overnight at the respondent's residence on 19/20 July 2013. The evidence of Ms Sturt and Constable Wilkinson established beyond a reasonable doubt that Ms Crowe stayed the night on 25/26 July 2013. The respondent did not dispute those matters and there was no suggestion that he had obtained the prior approval of Ms Webster for any person to stay overnight at his residence on the relevant nights (apart from Ms Sturt).
I find that the respondent did not comply with the Instruction on the occasions alleged in pars 26 and 29 of the statement of material facts. However, the respondent submitted that he had not contravened condition 4 as a consequence as the Instruction was not a lawful direction.
I have disregarded Ms Webster's evidence in making the findings referred to above for the reasons explained in the section dealing with the admissibility of statements made by the respondent during the supervision decisions conducted on 28 June and 26 July 2013.
The parties' submissions on the Instruction
The respondent's submissions
The respondent submitted that the Instruction was not lawful as:
(a)The instruction dated 28 March 2013 (exhibit 2) had been issued to reflect that policies of Foundation Housing and to ensure that the respondent's accommodation was not jeopardised.
(b)Ms Webster's evidence that the two instructions were also given so as to 'not putting [the respondent] in high risk situations where there could potentially be females staying at the accommodation' and who could potentially be under the influence of alcohol should be rejected.
(c)Accordingly, the Instruction was not issued for any relevant purpose. It was given simply because the name of the housing provider had changed (see Ms Webster's evidence at ts 247). Further, the applicant had not established a 'lawful foundation' for the Instruction, as Ms Webster did not have any knowledge of the terms of the Department of Housing lease or of the Department's policies.
The applicant's submissions
The applicant submitted that the Instruction was a lawful direction having regard to the provisions of s 18 of the DSO Act and Ms Webster's evidence that one purpose of the Instruction was to guard against the respondent placing himself in 'high risk' situations. Ms Sturt was authorised to issue the instruction by condition 4 of the Supervision Order and the instruction was consistent with the requirements imposed by conditions 32 to 35.
Findings on alleged contraventions 9 and 11
Whether the Instruction was a lawful direction
The terms of s 18 of the DSO Act were set out earlier in the reasons (in the section that summarised the scheme of the Act). Condition 4 of the Supervision Order gave effect to the mandatory requirement specified in s 18(1)(d). No exception was, or could be, taken to the additional requirement embodied in the condition that the respondent was to comply with the lawful order and directions of a CCO.
The reference to 'lawful' in condition 4 could be understood in two ways: first, as a reference to the lawfulness of the exercise of power by the CCO in giving an order or direction and second, as a reference to the lawfulness of what the respondent was required to do pursuant to the order or direction given by a CCO. There may, of course, be an overlap between the two concepts: a direction requiring the respondent to do something unlawful would plainly be beyond the authority of a CCO. However, the assertion in this instance was that Ms Webster had issued an instruction that was unlawful in the first of the two senses referred to above.
The respondent contended that the Instruction was not issued for a 'relevant purpose'. The instruction that had been given on 28 March 2013 had reflected the requirements of the organisation that was then providing crisis accommodation for the respondent. However, Ms Webster had issued the Instruction without knowing about or having regard to the policies and requirements of the entity that subsequently provided the respondent's accommodation.
The authority of a CCO to give an order or a direction under condition 4 is circumscribed by the objects and purposes of the DSO Act; that is, an order or a direction will be lawful if it has been given for a purpose that is connected with the objects of the Act and in particular, with the matters identified in s 18. The objects of the DSO Act include providing for the supervision of persons of a particular class (persons who are a serious danger to the community) so as to ensure the adequate protection of the community and to provide for the continuing control, care or treatment of persons within that class (s 4). Those objects are reflected in the provisions of s 18.
As the respondent conceded, a direction given under condition 4 that was intended to preserve the respondent's accommodation would concern a matter that was connected with his supervision and, in particular, with the protection of the community and the care of the respondent. Plainly, such a direction would be lawful. Further, a direction that the respondent take a step that was intended to reduce the risk of him contravening the Supervision Order would also be lawful (subject, possibly, to any argument about reasonableness).
The preamble to the Instruction stated that it had been issued 'as a result of Department of Housing accommodation'. However, as has been noted, Ms Webster gave two reasons for why the Instruction had been given: 'to differentiate between the Foundation Housing now that [the respondent] had moved to Department of Housing' (ts 247) and because she wanted to avoid the respondent being placed in high risk situations (ts 221). The respondent contended that Ms Webster's evidence concerning the second reason should be rejected having regard to the contents of the Instruction and the circumstances in which it was issued (including, that there had been no suggestion at the relevant time that the respondent had been in the presence of women who had been affected by alcohol).
Ms Webster gave her evidence in a forthright and balanced way. She readily made appropriate concessions in cross-examination. I accept her evidence that one reason for issuing the direction of 28 March and the Instruction was to avoid the respondent being placed in 'high risk' situations that could result in a contravention of his Supervision Order.
The respondent did not challenge the terms of condition 4. In my view, the issue of whether a direction or order given by a CCO under and for the purpose of that condition is lawful is to be determined objectively rather than according to the subjective purpose of the CCO who gave the direction or order (subject to questions of bad faith and the like). That is, the lawfulness of the direction or order is to be determined by objectively considering the connection between the direction or order and the objects and provisions of the DSO Act and the terms of the relevant supervision order. A direction that required the respondent to not allow any person to stay overnight at his residence without prior approval was, in my view, a direction that was connected with his supervision as so as to ensure the adequate protection of the community and the control of the respondent.
Accordingly, the Instruction was a lawful direction. It was issued for a purpose that the respondent accepted was lawful on the finding that has been made about Ms Webster's evidence. The Instruction would, in my view, have still been a lawful direction even if Ms Webster's sole purpose in issuing the instruction had been to note the change in the entity responsible for the respondent's accommodation. The Instruction was, objectively determined, lawful having regard to the objects and provisions of the DSO Act and the conditions imposed by the Supervision Order.
Findings on alleged contravention nos 9 and 11
I find that the applicant has proved beyond a reasonable doubt that the respondent contravened condition 4 by reason of the matters alleged in pars 26 and 29 of the statement of material facts. It was not suggested that there was a reasonable excuse for the respondent's failure to comply. A conviction will be recorded in respect of charges 6860/13 and 6855/13.
Alleged contravention no 10
The alleged contravention
Paragraph 28 of the statement of material facts alleged that:
On the evening of Thursday 25 July 2013 the Respondent allowed a number of people to drink at his house. These people were Ms Sturt, Ms Sturt's adult female cousin, Eileen Crowe, and two neighbours (a male and a female). Ms Crowe was affected by alcohol, having drunk both bourbon and wine. By remaining in her presence, the Respondent was in contravention of Condition 35 of the [Supervision Order], and this conduct is the subject of charge FR 6862/13.
The evidence
Part of Ms Sturt's evidence regarding the events that occurred when she meet Ms Crowe in Fremantle has been summarised earlier in the section of the reasons concerning alleged contravention no 11. Ms Sturt further stated in her evidence that she had commenced drinking in the afternoon. She agreed that she was drunk by the time that she arrived at the respondent's residence (ts 255). She told the respondent to lie down and sleep when she and Ms Crowe arrived home (ts 256). He went to sleep while Ms Sturt and Ms Crowe cleaned the unit. Ms Crowe had 'a few drinks' after they had finished the cleaning. Ms Crowe was drinking wine (ts 255 – Ms Sturt referred to Jim Bean and wine being drunk but added that she did not drink wine). The respondent was fast asleep while Ms Crowe drank (ts 258).
Constable Wilkinson's evidence regarding his attendance at the respondent's residence during the morning of 26 July 2013 was also summarised earlier in the section of the reasons concerning alleged contravention no 11.
The parties' submissions
The applicant's submissions
The applicant submitted that the evidence of Ms Sturt proved the alleged contravention, with the evidence of Constable Wilkinson establishing that Ms Sturt's evidence referred to the night of 25 July 2013 as alleged in par 28 of the statement of material facts.
The respondent's submissions
The respondent submitted that the State had not proved this alleged contravention as:
(a)Ms Sturt accepted that the respondent had been asleep at all times when Ms Crowe was drinking.
(b)That evidence was preceded by evidence given by Ms Sturt to the effect that she and Ms Crowe had first cleaned the respondent's house and then had commenced drinking. The respondent had been asleep while the women had cleaned the house.
(c)The respondent cannot have been said to be in the presence of a female affected by alcohol if he was asleep at all relevant times. A strict liability construction of the word 'presence' would be absurd.
Findings
The matters that the applicant must establish beyond a reasonable doubt to prove that the respondent contravened condition 35 have been set out earlier in the reasons. I find that the evidence of Ms Sturt establishes that Ms Crowe was affected by alcohol – a 'few drinks' of wine would, in my view, be sufficient to affect Ms Crowe. However, I further find that the applicant has not proved beyond a reasonable doubt that the respondent knew that Ms Crowe was affected by alcohol while she was at his residence.
Accordingly, an acquittal will be recorded in respect of charge 6862/13.
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