Director of Public Prosecutions (WA) v TJD [No 3]
[2013] WASC 43
•18 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- TJD [No 3] [2013] WASC 43
CORAM: CORBOY J
HEARD: 13 NOVEMBER, 8, 10 & 23 DECEMBER 2012 & 23 JANUARY 2013
DELIVERED : 18 FEBRUARY 2013
FILE NO/S: MCS 2 of 2011
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
TJD
Respondent
Catchwords:
Dangerous sex offender - Whether respondent guilty of alleged contraventions of a supervision order - Onus of proof - Whether unacceptable risk that the respondent would commit a serious sexual offence if continuing detention order not made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23, s 40A
Result:
Respondent found guilty of one charge of contravening a supervision order; second order dismissed
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v TJD [2011] WASC 83
Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142
Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594
Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
Woolmington v Director of Public Prosecutions [1935] AC 462
CORBOY J
The history of this matter
The supervision order made in relation to TJD
TJD was due to be released from prison on 27 March 2011 having completed cumulative terms of imprisonment imposed on 26 July 2005, 2 August 2006 and 24 April 2007. The Director of Public Prosecutions applied for an indefinite custody or supervision order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) prior to TJD's release from prison. The application was heard by Commissioner Sleight on 31 March 2011. His Honour held that TJD was a serious danger to the community and that he should be detained in custody for an indefinite term for control, care and treatment: Director of Public Prosecutions (WA) v TJD [2011] WASC 83.
The first annual review of TJD's continuing detention was conducted by McKechnie J on 23 April 2012. His Honour was satisfied that TJD remained a serious danger to the community but concluded that the continuing detention order should be rescinded and that a supervision order should be imposed for a period of 10 years: Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142.
The supervision order included the following conditions:
(a)TJD was to 'engage, including engage in one on one counselling, with any psychiatrist, psychologist, mentor, support service, support person and/or accommodation provider nominated by the CCO [Community Corrections Officer] as directed by the CCO' (condition 9);
(b)TJD was to 'undergo medical testing or treatment, including anti‑libidinal treatment, as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist' (condition 11);
(c)TJD was not to 'possess, consume or use any illicit drugs or substances including, but not limited to, cannabis' (condition 28);
(d)TJD was to 'attend for, and submit to, urinalysis or other testing for illicit drugs or substances as directed by the CCO or by a police officer' (condition 29);
(e)TJD was not to have 'contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless the contact is authorised either by a Court Order or in advance by the CCO, such contact being supervised at all times by an adult approved in advance by the CCO' (condition 31);
(f)TJD was to 'provide details of any contact with a child under the age of 17 years both to his CCO and to police upon the next occasion he reports to that person or agency' (condition 33);
(g)TJD was to 'maintain a daily diary of his movements and activities and present the diary to the CCO or a police officer upon request' (condition 40).
Proceedings for contravention of a supervision order
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 provides 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.
Division 4 of pt 2 concerns the contravention of supervision orders. Section 21 provides that a police officer or a community corrections officer may apply to a magistrate for the issue of a summons or warrant under s 21(2) where he or she reasonably suspects 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 magistrate must issue a summons or a warrant if satisfied that there are reasonable grounds for suspecting that the person is likely to contravene, is contravening or has contravened a condition of a supervision 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 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 Act.
It is important to note 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 community corrections officer; 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).
The alleged contraventions
On a date that is not apparent from the books of materials received as evidence in this matter (exhibits 1 and 2), TJD was charged with offences under s 40A(1), the allegation being that in early July 2012 he contravened conditions 31 and 33 of the supervision order. The statement of material facts for those offences appeared at pages 1 and 2 of exhibit 1. TJD pleaded guilty to those charges. They were dealt with in the Magistrates Court on 14 August 2012 (exhibit 1, pages 15 ‑ 23). TJD was fined $1500 as a 'global fine covering all charges' (exhibit 1, page 23).
On 30 October 2012, a prosecution notice was lodged in the Magistrates Court charging TJD with five further offences under s 40A(1) of the Act. TJD was committed to appear before the Supreme Court on those charges by an order made by a magistrate on 2 November 2012.
The charges alleged in the prosecution notice were that TJD, being subject to a supervision order and without reasonable excuse, contravened a requirement of that order by:
(a)failing to undergo anti‑libidinal medical treatment, as directed by a CCO, in consultation with a doctor (charge 1);
(b)failing to engage in one on one counselling with a psychologist, as directed by a CCO (charge 2);
(c)failing to attend for urinalysis testing for illicit drugs, as directed by a CCO (charge 3);
(d)using an illicit drug, namely Tetrahydrocannabinol (cannabis) (charge 4);
(e)failing to maintain a daily diary and present it to a CCO upon request (charge 5).
The period specified for each offence was 23 April to 5 October 2012.
The DPP's application
The Director of Public Prosecutions applied on 5 October 2012 for orders that, upon the court being satisfied that TJD had contravened conditions of the supervision order made on 23 April 2012 and amended on 24 April 2012, TJD be detained in custody for an indefinite term for control, care or treatment; alternatively, that the supervision order be amended in such terms as the court thought fit. The DPP also applied for an order under s 24A(2)(a) of the Act that TJD be immediately detained in custody pending the determination of charges under s 40A(1) of the Act and the DPP's application under s 23.
The DPP's application came before McKechnie J on 5 October 2012. His Honour ordered that TJD be detained in custody until the final hearing of the alleged breaches under the Act. No other ancillary order was made by his Honour.
TJD's pleas
TJD pleaded guilty to charges 1, 3 and 4 and not guilty to charges 2 and 5. Section 40B(4)(d) provides that any finding of fact by the Supreme Court in the proceedings under s 40B may be used in the proceedings under pt 2 div 4. Accordingly, whether the DPP has proved that TJD was guilty of charges 2 and 5 will be considered first. It will then be necessary to consider what, if any, order should be made under s 23 of the Act.
Charge 2
The charge
Charge 2 alleged that TJD had contravened condition 9 of the supervision order - the requirement that TJD 'engage in' counselling. No particulars were provided of the charge so that it was not possible to ascertain from the wording of the charge how it was alleged that TJD had contravened condition 9; that is, how it was alleged that he had failed to engage in one on one counselling as directed by a CCO. However, no particulars of the charge were sought.
The statement of material facts alleged that TJD had failed to attend counselling sessions on 27 August and 3 October 2012. The statement referred to the reasons given by TJD for his failure to attend the sessions and to various matters which, it is to be inferred, were intended to cast doubt on the explanations given by TJD for his alleged non‑attendance.
The statement of material facts made no reference to TJD's conduct in any particular counselling session or more generally, to the manner in which he participated in counselling.
The evidence relevant to the statement of material facts
Exhibit 1 comprised a bundle of documents that was tended by the DPP with the consent of TJD. The exhibit included an affidavit made by Deanna Louise Fernandez in support of the DPP's application for an interim detention order. Ms Fernandez is an employee of the Department of Corrective Services and has been involved in the case management of TJD since he was released from prison under the supervision order made by McKechnie J.
Ms Fernandez referred to condition 9 of the supervision order in her affidavit and stated that TJD had failed to attend scheduled appointments with his counsellor/psychologist on 27 August and 3 October 2012. She gave some evidence regarding the circumstances in which it was alleged that TJD had failed to attend those appointments. That evidence was broadly consistent with the statement of material facts.
Exhibit 1 included a statement made by Ms Fernandez. The statement also contained evidence about the circumstances in which it was alleged that TJD had failed to attend his psychological counselling appointments on 27 August and 3 October 2012.
Other evidence relating to TJD's participation in counselling
Ms Fernandez also referred in her statement to three occasions during the term of the supervision order (12 June, 9 July and 6 August 2012) on which it was alleged that TJD had 'shortened' counselling sessions with his psychologist. Ms Fernandez identified the reasons allegedly given by TJD for shortening the sessions and stated that those reasons had been 'verified as being incorrect' (Fernandez, par 20; exhibit 1, page 48). However, she did not state how that had occurred.
Ms Fernandez also provided a community supervision assessment dated 31 October 2012. The assessment formed part of exhibit 1 (pages 52 ‑ 61). It was stated in the assessment that TJD was considered to have contravened numerous conditions of the supervision order 'as outlined below'. The report proceeded to outline the manner in which Ms Fernandez considered that TJD had failed to comply with condition 9 of the supervision order. She explained that TJD had weekly appointments to attend psychological counselling and that the psychologist concerned would provide the court with a report on '[TJD's] level of engagement during those sessions'. She referred to TJD's alleged failure to attend scheduled counselling appointments on 27 August and 3 October 2012 and on another occasion. She also referred to the shortened counselling sessions which she characterised as being 'other incidents of a lack of motivation to comply with Psychological Counselling sessions' (exhibit 1, page 57).
David Summerton is a psychologist with the dangerous sexual offenders psychology team within the Department of Corrective Services (ts 53). He was first involved in counselling TJD in 1996 when TJD participated in an intensive sex offender programme while in prison. He has been involved in counselling TJD since his release from prison (ts 54). Exhibit 1 included a treatment progress report dated 24 October 2012 prepared by Mr Summerton (pages 62 ‑ 71).
Mr Summerton commented on TJD's attendance for psychological counselling in his report. He stated that:
I understand that a treatment progress report is required for [TJD] including comment on the number of sessions attended and appointments missed since he was released on a 10‑year supervision order on 23 April 2012. [TJD] missed only three of his weekly appointments during his period in the community and at the time of writing he had attended a further three sessions following his return to custody on 10 October 2012. He did not supply a medical certificate for two of the sessions that he failed to attend. However, his evident regular attendance does not offer an accurate portrayal of his participation in counselling. (Exhibit 1, page 62)
Mr Summerton then proceeded to deal with three 'broad areas' in his report: TJD's motivation to engage in counselling, the reliability of his self report and risk management.
Mr Summerton's report was detailed and necessarily contained a number of observations reflecting his subjective assessment of TJD's participation in counselling. So, for example, Mr Summerton observed in relation to TJD's motivation to engage in counselling:
Since [TJD] was released to the community in April 2012 his motivation to actively engage in the counselling process is considered to have been negligible. While he only missed three sessions he frequently gave the impression of not wanting to be present and this included numerous comments to the effect that he did not wish to actively participate during various sessions.
Reference was made to requests by TJD to terminate counselling sessions early and to the reasons that were given by him for those requests. Mr Summerton recounted matters that led him to conclude that the reasons were implausible or questionable and he advised that since his return to prison, TJD had:
… made some level of admission regarding deception by him during his recent period in the community. He has acknowledged that he did not attend the job interview as claimed, but had concocted the appointment in an attempt to avoid a counselling session and he made a similar concession regarding supposed hospital appointments at St John of God's and Shenton Park respectively. He has also implicitly acknowledged that his deception was widespread and undermining any productive engagement in counselling. (exhibit 1, page 63).
Mr Summerton continued this part of his report by observing that TJD had also been 'evasive in addressing issues of substance' during counselling sessions (exhibit 1, page 63). He stated that, 'it is assumed that [TJD's] apparent reticence to engage in counselling is in large part based on the inevitability that the widespread inconsistencies in his self report to various parties will surface under sustained scrutiny' (exhibit 1, page 63).
Much of the balance of Mr Summerton's report reflected his concerns about the reliability of TJD's self report. In a section of his report dealing expressly with that matter, Mr Summerton identified 11 instances that he characterised as being a 'sample' of the 'described lies/deceptions or questionable information' provided by TJD. The purpose of including the examples in the report was to illustrate the 'obvious challenges inherent in effectively managing [TJD's] risk' (exhibit 1, page 65, and see at page 67). None of the instances to which Mr Summerton referred concerned TJD's alleged failure to attend counselling sessions on 27 August or 3 October 2012. Rather, he referred in his report to examples of what he regarded as false statements by TJD about why it was necessary to reduce the length of some counselling sessions.
The prosecutor's closing
Counsel for the DPP stated in closing in relation to charge 2 (ts 104):
I don't think there has been a formal acknowledgement that the three counselling sessions were in fact missed but whether or not there is evidence from which your Honour could conclude that three sessions were missed, of course the real point, as Mr Summerton put it, is not that the three sessions were missed but it's a question of what one means by 'engaging' as the charge puts it, engaging in counselling. At page 62 of the original book [exhibit 1] Mr Summerton in fact referred to [TJD's] attendance as evident regular attendance and made it plain that the mere fact that he missed three sessions was not of any great consequence.
I then put to counsel the difficulty of determining what was meant by the word 'engage' in condition 9. Counsel for the DPP responded that the word 'engage' must mean 'engage satisfactorily'. Reference was then made to those aspects of Mr Summerton's report that highlighted dishonesty, deceptiveness and fabrication. It was submitted that (ts 105):
On any view, Mr Summerton's evidence by his report is that [TJD] has not engaged in one‑to‑one counselling satisfactorily. The word 'satisfactorily' is necessarily implied. If someone in [TJD's] position does not engage in counselling satisfactorily, he breaches the condition. That is the broad submission, and we say that the terms of Mr Summerton's report establish that.
The ambiguity of the charge and multiple alleged offences
It appeared that there were two difficulties with the charge as formulated in light of the way in which the prosecution had conducted its case; first, there was an ambiguity in the expression 'engage in counselling' and second, the charge arguably alleged more than one offence. In relation to the question of duplicity, it was not clear whether the allegation made was that TJD had breached the supervision order by failing to attend counselling sessions or by shortening those sessions or by the manner in which he had participated in counselling or by some combination of all of those matters. Further, the charge still arguably alleged more than one offence if it was confined to the matters alleged in the statement of material facts ‑ that is, an alleged failure to attend counselling sessions on 27 August and 3 October 2012. Seemingly, an offence would be committed by TJD on any occasion that he failed to attend a counselling session without reasonable excuse when directed to do so if, on its proper interpretation, condition 9 of the supervision order imposed a requirement that TJD attend counselling as directed; that is, 'engage' in counselling meant attend at counselling. The charge would, on the statement of material facts and the evidence of Ms Fernandez, disclose two possible offences on that construction of s 40A(1) of the Act and the supervision order.
That matter was raised with the DPP and the solicitor for TJD by letter sent following closing addresses. The letter also raised the possibility that charge 5 alleged more than one offence. It is convenient to first explain why I considered that might be so before explaining the response to my query in respect of the charges.
Charge 5
Charge 5 alleged that TJD had failed to maintain a daily diary and present it to a CCO upon request. That reflected the wording of condition 40 of the supervision order. The statement of material facts alleged that TJD had failed to produce his diary as requested on a number of occasions: 18 July, 15, 22 and 29 August and 5, 6 and 12 September 2012.
The evidence adduced by the prosecution on TJD's alleged failure to produce his diary is briefly summarised later in the reasons. However, it was broadly consistent with the statement of material facts.
Again, the evidence arguably disclosed that the charge was allege more than one offence if, on a proper construction of s 40A(1) and condition 40 of the supervision order, each alleged failure by TJD to produce his diary without reasonable excuse when requested constituted a separate offence.
The DPP's response to the court's query
The DPP advised in response to the concerns raised over the form of the charges that he elected to limit charge 2 to an allegation that TJD had failed to attend counselling on 27 August 2012 and that he would restrict charge 5 to an allegation that TJD had failed to produce his diary on 5 September 2012. TJD did not oppose those elections being made by the DPP. The plea of not guilty was maintained.
The DPP submitted when electing that all of the evidence regarding TJD's participation in counselling, including the report of Mr Summerton, was relevant and admissible on the question of what order should be made consequent upon the contraventions of the supervision order that had been admitted by TJD and any further breaches that were found to have been committed. Similarly, it was contended that all of the evidence regarding the maintenance and production of a diary by TJD was admissible and relevant for that purpose.
TJD accepted that evidence about those matters was admissible for the purpose contended for by the DPP.
Evidence relevant to the prosecution of a charge and to the making of an order under s 23
The power to make an order under s 23(1) of the Act is not dependent on a conviction being recorded for an offence committed under s 40A(1). Rather, as has been noted, the court may make an order under s 23(1) on being satisfied, on the balance of probabilities, that the person who is subject to the restraining order is likely to contravene, is contravening or has contravened a condition of the supervision order. Accordingly, the election by the DPP in respect of charges 2 and 5 did not have the effect of confining the evidence relevant to the application for an order under s 23(1) to TJD's alleged failure to attend a counselling session on 27 August 2012 and to produce his diary when requested to do so on 5 September 2012. I accept that evidence that TJD allegedly failed to produce his diary on other occasions will be relevant to whether an order should be made under s 23(1).
The evidence relevant to TJD's participation in counselling sessions was more problematic. Section 23(1) still refers to contraventions of the supervision order, albeit in an extended way (likely to contravene).
There is an ambiguity inherent in the wording of condition 9: what was meant by 'engage in' counselling? Did the order impose a requirement that TJD attend counselling whenever directed to do so or did it require more of TDJ? Did it require, as the prosecution contended in closing, that TJD participate in counselling that was considered to be satisfactory? If so, satisfactory according to what standard?
In my view, the requirement that TJD 'engage' in counselling is to be understood as a requirement that he attend counselling as directed by the CCO. I do not consider that the order can be interpreted to refer to the quality of his participation in counselling. The order is an order of the court. Contravention of the order is an offence and may also have serious consequences for TJD under s 23 of the Act. It is to be presumed that the order was intended to be expressed in such a way that TJD knew what he was required to do or refrain from doing so as to comply with its terms rather than imposing a requirement that incorporated a wholly or partially subjective element. Further, there is no basis for adding words to the order by implication having regard to the nature of the order and the consequences of a breach.
Accordingly, I do not consider that Mr Summerton's evidence can be used to establish that TJD has contravened the requirements of his supervision order. However, I accept that his evidence was relevant to the question of whether an order should be made under s 23(1) having regard to the matters referred to in the section.
The evidence on TJD's alleged failure to attend counselling on 27 August 2012
Ms Fernandez dealt specifically with the circumstances in which it was alleged that TJD had failed to attend a counselling session on 27 August 2012 at paragraph 15 of her affidavit (exhibit 1, page 28). She stated:
On 27 August 2012, the Respondent failed to attend a scheduled appointment with his Psychologist. He claimed he had a stomach complaint and as such would not be able to attend this appointment. The Respondent was instructed to provide a Medical Certificate to confirm his inability to attend. He has not complied with this instruction nor did he attend the scheduled appointment.
She also dealt with the matter in her statement (exhibit 1, par 16 at page 47). She stated that TJD had been directed on 22 August 2012 to attend a counselling appointment on 27 August. She then stated:
[TJD] claimed he suffered a stomach complaint. Departmental records indicate that [TJD] had been out of his home between the hours of 10.43 am to 5.49 pm. During a supervision session on 29 August 2012 [TJD] denied being absent from his home and claimed he had been in bed all of that day.
TJD gave evidence at the hearing but he was not asked any questions concerning his alleged failure to attend a counselling appointment on 27 August 2012. There was, however, transcript of a recorded interview conducted by the police with TJD on 19 October 2012. The transcript formed part of exhibit 1 (page 107 and following). TJD was questioned in the course of the interview about his alleged failure to attend the counselling appointment. However, it was not easy to follow the account that he gave of his movements that day and there were no submissions made by counsel regarding the statements that he made in the interview.
It was apparent from the interview that TJD accepted that he had been directed to attend a counselling session on 27 August 2012. However, he stated that he had gastroenteritis that day. He contacted the 'Maddington office' (the office operated by the Department of Corrective Services to which TJD reported) to state that he could not attend the appointment because of his illness. He was told not to attend if he had gastroenteritis (exhibit 1, page 139 and page 143).
Subsequently, he left his house to go to the chemist to purchase medicine. He then gave an account of his movements after attending the chemist that was convoluted but which was not inconsistent with him suffering from gastroenteritis. The police did not directly challenge that account and there was no evidence adduced to contest his statement to the police that he been told not to attend the Maddington office if he was ill.
He also stated in his police interview that he had asked for a medical certificate from a doctor but was advised that it could not be backdated. Again, there was no challenge to that statement by the police or during the hearing.
The evidence relevant to charge 5
In her affidavit made in support of the application for an interim detention order, Ms Fernandez merely stated that TJD had failed to present his diary as requested on 5 September 2012 (page 28, par 14). In her witness statement, she stated that TJD had advised, on 5 September 2012, that he had forgotten to bring his diary to his supervision session (page 50, par 34).
TJD gave no evidence regarding his failure to produce his diary on 5 September 2012 or on any other particular occasion at the hearing. He gave evidence about the difficulty that he had in maintaining the diary due to his limited education (ts 90). He was, however, questioned by the police about his alleged failure to produce his diary on 5 September 2012. He stated that he was 'pretty sure' that he had taken his diary with him to the supervision session conducted on that day (exhibit 1, page 121).
The onus of proof
Neither party made any submission on whether it was for the prosecution to prove under s 40A(1) that the defendant had no reasonable excuse for contravening a requirement of a supervision order or whether the defendant carried the onus of establishing that there was a reasonable excuse for the contravention. Obvioulsy, the question of onus concerns the proper construction of s 40A(1).
It has long been established that the fundamental principle that the burden of proving every element of an offence charged rests at all times on the prosecution is subject to any statutory exception: Woolmington v Director of Public Prosecutions [1935] AC 462, 482. In Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; 168 CLR 594 Brennan, Dawson and Gaudron JJ said at 601:
It is made clear in R v Edwards [1975] QB 27 and R v Hunt [1987] AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused … but extend to all cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused, the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.
Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 provided an example of where the subject matter implied that the defendant carried the onus of establishing a reasonable excuse for failing, as a director or secretary of a company, to provide a liquidator with a report concerning the affairs of the company by a specified date (the obligation to provide the report was imposed by s 375(1) and s 375(2) of the Companies (New South Wales) Code; s 375(9) created an offence if the report was not provided as required without reasonable excuse). Hunt J referred to the 'golden thread which is always to be seen throughout the web of the English criminal law, that is that it is the duty of the prosecution to prove the guilt of the accused' and continued (at 455):
But none of those particular applications of the 'golden thread' principle assists in relation to statutory exceptions. In each case, it must be a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (and so to be proved by the Crown), or whether it is intended to be a ground by which criminal liability may be avoided (and so to be proved by the accused).
His Honour concluded that:
In the present case, subs (9) indicates fairly clearly to my mind that the offence is the failure to comply with the obligations imposed by the earlier subsections, but not if it be shown that there was a reasonable excuse for that failure. It is the existence of the reasonable excuse which prevents the failure from becoming an offence, and that excuse must necessarily be comprised of facts which are additional to those which constitute the failure to comply. Added to that particular indicium is the undoubted circumstance that those additional facts will in almost every case (if not indeed in every case) be solely within the knowledge of the director or the officer of the company who is charged. (456)
Findings can be made on whether TJD contravened the supervision order as alleged by charges 2 and 5 without finally determining the question of onus. Accordingly, I do not propose to determine the question in the absence of submissions from the parties. I have raised the matter as it is, self‑evidently, fundamental to the application of the section; no doubt it will require further consideration in the future.
Finding on charge 2
I am not satisfied that prosecution has established beyond a reasonable doubt that TJD contravened condition 9 of the supervision order by failing to attend a psychological counselling session on 27 August 2012 without reasonable excuse. TJD admitted that he did not attend the session. However, he gave an excuse that was not inherently implausible and raised, as an issue, whether he had failed to attend without reasonable excuse. The prosecution has failed to establish that TJD did not have a reasonable excuse for his admitted failure to attend if it carried the onus on that issue.
Alternatively, I am satisfied on the balance of probabilities that TJD had a reasonable excuse for his failure to attend the counselling session if he bears the onus on the issue. There was no evidence that directly contradicted the statement that he had made to the police that he was ill and that he had been advised not to attend at the Maddington office for that reason. The account that he gave of his movements for the rest of the day was not necessarily inconsistent with him being ill. The fact that he did not subsequently produce a medical certificate does not establish that he was lying about his illness. He provided the police with an explanation as to why he did not produce a medical certificate and he was not challenged on that explanation by the police or at the hearing. Similarly, the fact that he is alleged to have lied about his whereabouts on 27 August 2012 at the supervision session held two days later does not, in itself, establish that he was not ill. I am also not prepared to find that all that TJD told the police should be rejected as being unreliable.
Finding on charge 5
I gave close consideration to whether the prosecution ought to have been permitted to elect on charge 5 after the evidence had been completed, notwithstanding that there was no application by TJD to have the charge dismissed. It may have been unfair and prejudicial to TJD to permit an election after he had given evidence when a number of separate allegations had been made regarding when he had failed to produce his diary. However, I have concluded that the prosecution should be permitted to elect having regard to the conduct of the trial and, in particular, that TJD had provided an explanation for why he had not produced his diary on 5 September 2012 to the police. The record of his interview was tendered as part of exhibit 1 by consent. TJD did not seek to add to what he had told the police about his alleged failures to produce his diary in his evidence during the hearing other than to explain the difficulties that he had in maintaining a diary generally. The explanation that he gave to the police was not challenged by the prosecution.
Consequently, the issue to be determined was whether TJD had no reasonable excuse for failing to produce his diary as he had forgotten to bring it with him to a supervision session. As I have indicated, I do not consider that the answer to that question will differ according to who bears the onus under s 40A(1).
It is, of course, an everyday occurrence to forget to do something. However, in my view, the fact that TJD forgot to bring his diary to the supervision session did not provide him with a reasonable excuse for failing to produce his diary when directed to do so. I have reached that conclusion having regard to the nature and purpose of a supervision order and the circumstances in which an order is made under the Act. The requirements of a supervision order will necessarily be onerous and I do not consider that the failure to comply with a requirement of such an order through forgetfulness provides a reasonable excuse. Accordingly, I find TJD guilty of charge 5.
The other charges
It is, of course, a serious matter that TJD has admitted using an illicit drug and that he failed to attend for urinalysis testing as directed by the CCO. TJD explained that he had consumed cannabis as it assisted him to relax and cope with stress (ts 84). It might be, however, that his contravention of conditions 28 and 29 of the supervision order can be adequately dealt with by imposing a penalty for the offences committed under s 40A(1) of the Act - although, his explanation for consuming cannabis rather than taking anti-depressant medication was a cause for concern.
However, TJD's admitted failure to maintain anti‑libidinal medical treatment is significant for the purpose of determining what, if any, order should be made under s 23. The circumstances in which TJD made that admission are also relevant to that matter; that is especially so when the reasons given by McKechnie J for granting the supervision order are considered.
In his reasons published on 23 April 2012, McKechnie J found that TJD remained a dangerous sexual offender in light of the psychiatric reports that were tendered at the review hearing. However, his Honour concluded that he was 'persuaded that the community can be adequately protected if TJD is released on supervision for a period with conditions that include a condition mandating his continued counselling' [5]. His Honour observed in explaining that conclusion that (at [6]):
One of the things that persuades me is the fact that TJD has voluntarily sought to reduce his testosterone levels and has been taking anti-libidinal medication Androcur, to assist him to manage deviant sexual fantasies by diminishing sexual arousal. He has also participated in some confronting weekly counselling sessions with Mr Summerton.
As I read his Honour's reasons, he concluded that a supervision order should be made because TJD had voluntarily taken an anti-libidinal medication while still in custody and he had engaged in 'conflicting' counselling sessions. No doubt, his Honour considered that those matters indicated that the risk of TJD re-offending was not so great as to be unacceptable, partly as they were important for risk management and partly as they demonstrated that TJD had acquired an insight into his offending that was also relevant to risk management.
The failure to take anti‑libidinal medication
Evidence was taken by consent from Dr Fitzclarence prior to TJD pleading to the charges. Dr Fitzclarence is a general practitioner who is the Deputy Director of Health for Prison Health in the Department of Corrective Services. She prepared a report concerning TJD's compliance with the requirement that he undergo anti‑libidinal medical treatment. The report referred to pathology tests that indicated that TJD's testosterone levels were suppressed in June and July 2012, consistent with him having been compliant with his medication regime. However, tests undertaken in September recorded a significant increase in TJD's testosterone levels, suggesting that he was no longer compliant (ts 41).
Dr Fitzclarence was cross‑examined, to the effect that:
(a)Testosterone levels could vary with illness and medication.
(b)A very bad bout of gastroenteritis could explain a rise in testosterone levels - Dr Fitzclarence acknowledged, '[p]otentially, if you had very severe gastroenteritis or you weren't absorbing the tablet' (ts 46). Vomiting and diarrhoea associated with gastroenteritis could prevent the tablet being absorbed.
(c)It took approximately a week to get a 'good effect' from the presence of Androcur. It took longer for the effect to wear off after the medication had ceased - three to four weeks for testosterone levels to return to normal (ts 46). The response varied between individuals.
Dr Fitzclarence's evidence regarding the possible effect of gastroenteritis on TJD's testosterone levels was more fully explained in the following answer given in cross‑examination:
It is possible. It would be pretty nasty to have that sort of gastroenteritis lasting from the beginning of September to the end of September, and we've got the 5th and the 26th [dates on which tests were conducted]. So I would expect if you had gastro that severe, then there would be some interaction with medical services for help. But, yes, gastro can cause you - you can take the tablet and vomit it or you can - it cannot be absorbed if you have diarrhoea. I might add, though, that if you miss one or two tablets, when you start again very quickly the testosterone level will come down again. The half‑life of Androcur … is 1.9 days. So it takes 2 days for the dose to fall to half the level. So it would have to be a repetitive - like an absorption or a repetitive vomiting of the tablet to not have the effect (ts 46).
TJD gave evidence following his plea of guilty to the charge that he failed to undergo anti‑libidinal medical treatment. He stated that he stopped taking the medication because 'I ended up in a relationship' and he 'wanted to have normal life' (ts 79). He stopped using the medication at about the end of June or early July 2012. He did not resume taking the medication until he was again placed in custody (ts 79). He understood that it was a condition of his supervision order that he complied with directions regarding the medication and he realised that this was and an important requirement. He admitted that he had lied to the police when interviewed about his failure to take the medication (ts 88). He told the police that the only time he had not taken the medication was when he had run out of tablets and had to wait until a payday to be able to purchase a further supply (exhibit 1, page 127 and following, and see also at page 151 and following).
Mr Summerton's report and evidence
Reference has already been made to aspects of Mr Summerton's report and, in particular, his assertions that TJD had lied in counselling about a number of matters. Mr Summerton observed in his report (exhibit 1, page 67):
As has been identified [TJD's] inclination to misrepresent the truth is multiply determined. The reasons include secondary gain such as avoiding scrutiny or a desire to influence others, but also involve personality factors whereby he lies to inflate his sense of self or at times that he perceives his integrity to be under threat. While certain misrepresentations appear to require obvious calculation on his part, it is a moot point to what degree certain aspects of his lying are under his immediate control. Certain lies appear to occur spontaneously and having lied about a particular issue he is required to follow up with further embellishment of obfuscation to support the initial misrepresentation … Aside from lying for instrumental reasons this way of responding appears to have been so integral to his psychological make up that it is not easy for him to relinquish regardless of any motivation on his part. It is apparent that with increased stress and emotional instability he is more inclined to say whatever comes to mind and having to remember and maintain a given version of events becomes a stressor in and of itself.
Mr Summerton considered that the matters he had identified in his report had 'clear implications for the effective management of [TJD's] risk in the community'. The report did not include a comprehensive reassessment of the risk of reoffending, but Mr Summerton noted a number of matters indicating that since his release from prison under the supervision order there had been an 'elevation in [TJD's] risk with respect to identified acute risk factors and also in relation to factors that had been identified as specifically related to his risk of reoffending' (exhibit 1, page 70). Hostility towards a number of people in his life, including those in his immediate support network, was one elevated risk factor. There was also in Mr Summerton's opinion clear evidence of emotional collapse, to a degree that indicated that TJD was having difficulty coping with everyday life and that he lacked the ability to control his emotions when under stress. He required ongoing treatment.
As has been noted, Mr Summerton considered that TJD had displayed little motivation to engage in counselling since his release and he considered that TJD would most likely respond to a management regime that entailed immediate consequence for any breaches of conditions. He also considered that any supervision order should be modified to ensure that TJD was obliged to make 'full disclosure to anyone with whom he commenced a domestic, romantic, sexual or otherwise intimate relationship regarding his past offending and the imposition of any supervision order, with the disclosure to be capable of being confirmed by the CCO and police officers' (exhibit 1, page 71).
In his evidence‑in‑chief, Mr Summerton stated that he was not certain whether there were further interventions available to TJD within a prison environment that would better prepare him for life in the community. Mr Summerton considered that TJD needed 'real life' situations as opposed to necessarily going over issues that had been dealt with in past counselling.
Reference was made to in the cross-examination of Mr Summerton to a short period during which TJD was hospitalised at his own request. Mr Summerton stated in relation to that episode:
The difficulty for me is knowing - is being able to assess his motivations to act in a particular way at any given time.
So I couldn't definitely say why he went through - why he sought psychiatric assistance at that time. As I recall, he released himself from hospital fairly quickly after being admitted. I was of the view - no, I shouldn't say I was of the view. I speculated that he was unsettled by or was seeking to avoid certain issues at that time that were playing out in his life, and that's the crisis along with - the assistance he sought potentially related to that issue which related to a partner at the time and a request by Community Corrections that contact with her be made and it seemed that he wanted to avoid that, so there was some speculation that that was a motivator, but obviously I can't say definitely (ts 60)
It was apparent from Mr Summerton's evidence and from that given by TJD about counselling that there had been a breakdown in the relationship between Mr Summerton and TJD. TJD expressed some hostility towards Mr Summerton arising out of a particular incident; Mr Summerton acknowledged that it was appropriate for a new psychological counsellor to be allocated to TJD.
TJD's evidence about counselling
TJD's evidence‑in‑chief regarding psychological counselling following his release from prison was to the effect that:
(a)He had been participating in counselling prior to his release from prison. Mr Summerton was his counsellor (ts 85).
(b)He considered that the counselling was going 'okay' when he was in prison and 'all right' immediately after he was released until Mr Summerton 'didn't believe half the things I say' (ts 85). TJD then recounted an episode in 2009 while he was still in prison and participating in a sex offender treatment programme. He stated that Mr Summerton considered that he was lying about 'what happened to me as a child' in the course of that programme (ts 85). He then recounted an incident that he alleged had occurred after his release from custody. He stated that he had attended a place where counselling was to occur with his niece and Mr Summerton called him a liar in front of his niece. That made TJD angry and 'I turned off to him'; that is, he did not trust Mr Summerton as a consequence of that incident (ts 86). Following the incident, TJD 'pulled back, didn't want to say much to him because I felt like he was judging me every time I would open my mouth, and that still happened right up until a few weeks ago, my feeling of that' (ts 86).
(c)He did not raise his concerns in the counselling sessions because he was too scared that he would be sent back to gaol (ts 86).
TJD was asked in cross‑examination whether he had ever lied to Mr Summerton. He did not directly reply to that question but responded by stating that he did not trust Mr Summerton (ts 91). He stated that he had not read Mr Summerton's report but it had been discussed with his counsel and he was aware that Mr Summerton had alleged that he had lied to him. He stated, however, 'I didn't lie to him repeatedly' (ts 93).
Reference has already been made to that part of Mr Summerton's report in which he provided what he described as a sample of the 'lies/deceptions or questionable information' provided by TJD in counselling sessions. TJD was cross‑examined about the instances cited by Mr Summerton. He accepted that he had concealed 'at first' from Mr Summerton a relationship with a woman that had developed after his release from prison; that he had fabricated some matters concerning employment 'at first'; about taking anti‑libidinal medication and about the use of cannabis. However, he denied lying about other matters referred to in Mr Summerton's report and denied that he had repeatedly lied to Mr Summerton (ts 96). Finally, he denied that Mr Summerton had spoken to him about not telling the truth (ts 96).
Section 23 order
There was material before the court that might sustain a finding, on the balance of probabilities, that TJD had contravened the supervision order or was likely to contravene the order, especially as the question of reasonable excuse does not arise under s 23 of the Act. The most obvious examples were provided by the allegations made by Ms Fernandez that TJD had failed to attend counselling sessions on occasions in addition to 27 August 2012 and that he had failed to produce his diary when requested to do so on a number of occasions. It is possible that TJD had also admitted to regular cannabis use. His evidence raised the possibility that he would not take anti-libidinal medication in the future if he considered that it interfered with having what he considered to be a 'normal life'.
However, I do not consider that it is necessary to make detailed findings about those matters to determine whether an order ought to be made under s 23. TJD has admitted to contraventions of the supervision order; the admission that he failed to take anti-libidinal medication being particularly significant for the purpose of making an order under s 23. Those admissions provide the basis for making an order under s 23 - they establish contraventions of the supervision order for the purpose of that section.
Further, I accept the DPP's submission that the real significance of Mr Summerton's report lay in his opinion regarding TJD's attitude towards counselling rather than in the number of occasions on which TJD might have failed to attend a counselling session. Whether I find that TJD failed to attend one or three counselling sessions would make no difference to the form of the order that might be made under s 23.
TJD has admitted that he remains a serious danger to the community. That raised the question at previous hearings under the Act of whether the court should make an order under s 17 of the Act and if so, the form of order. The question to be determined on the DPP's present application is whether an order should be made under s 23 (1)(a) or (1)(b). That requires a determination to be made about whether there is an unacceptable risk that TJD would commit a serious sexual offence if an order was not made under s 23(1)(b). The paramount consideration in determining that question is the need to ensure adequate protection of the community: s 23(2).
As has been explained, Sleight C had initially refused to make a supervision order. McKechnie J made the supervision order on the first annual review of continuing detention as he was persuaded that TJD's conduct in the intervening year indicated that the risk of him reoffending was not unacceptable. However, within a relatively short period after the supervision order was made (and the order was for a period of 10 years), TJD had ceased taking his anti‑libidinal medication and had lied about that matter when challenged. He gave an explanation to the police that suggested he had been unable to afford the medication at a particular point in time. The cross‑examination of Dr Fitzclarence suggested that he had initially intended, in the hearing of the charges brought against him, to suggest that his testosterone levels had been elevated in September 2012 because of illness rather that non‑compliance with the requirement that he take anti‑libidinal medication as directed. Those matters demonstrated a lack of insight by TJD into his offending and the reasons for his offending that was, in my view, significant for assessing the risk of him committing a serious sexual offence if an order was not made under s 23(1)(b).
McKechnie J also considered that TJD's participation in counselling during the period that he had been detained in custody pursuant to the order made by Sleight C diminished the risk of him reoffending. However, the report of Mr Summerton demonstrated that there had been a significance change in TJD's participation in counselling which, again, suggested that he lacks insight into the causes of his offending and the need for him to actively and continuously take steps to minimise the risk of reoffending.
I accept that the counselling relationship between Mr Summerton and TJD has broken down. There may be cases in which it is possible to conclude that a fresh counselling relationship might be established with an offender who is the subject of a supervision order without the risk of the offender committing a serious sexual offence being magnified. However, I do not think that this is so in this instance. I consider that Mr Summerton's report indicates that it is necessary for TJD to establish a fresh counselling relationship and to demonstrate a commitment to and understanding of the need for counselling before consideration should be given to him being released back into the community. That is so regardless of why the counselling relationship between Mr Summerton and TJD had deteriorated.
Mr Summerton expressed the view that there was little more that could be done by way of intervention to ameliorate the risk of TJD reoffending while he remained in custody. With respect, that appears to overlook the breakdown in his counselling relationship with TJD and the evidence that was apparently accepted by McKechnie J that TJD had been able to meaningfully engage in counselling in a way that impacted on the risk of him reoffending. It would appear, therefore, that it may be possible for TJD to establish a new counselling relationship while in custody that will reduce the risk of him reoffending if he is released back into the community.
I have concluded that the risk of TJD committing a serious sexual offence if an order was made under s 23(1)(b) is unacceptable and that an order should be made under that paragraph for the continuing detention of TJD for care, custody and treatment having regard to the need to protect the community. In reaching that conclusion, I have also taken into account and accept the opinion expressed by Mr Summerton in his report concerning the 'elevated' risk of TJD reoffending as a consequence of the matters to which he referred in his report. I do not consider that a proposal by TJD to have his compliance with condition 11 of the present supervision order by a pharmacist offers sufficient protection to the community in all the circumstances.
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