The State of Western Australia v O'Rourke
[2010] WASCA 141
•30 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- O'ROURKE [2010] WASCA 141
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 17 JUNE 2010
DELIVERED : 30 JULY 2010
FILE NO/S: CACR 63 of 2010
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
CRAIG STEPHEN O'ROURKE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
Citation :THE STATE OF WESTERN AUSTRALIA -v- O'ROURKE [2010] WASC 72
File No :INS 1 of 2010, MCS 36 of 2008
Catchwords:
Criminal law - Construction of s 178 of the Criminal Code (WA) - Whether orders made under s 23 of the Dangerous Sexual Offenders Act 2006 (WA) constitute punishment - Whether pt 2 div 4 of Dangerous Sexual Offenders Act 2006 (WA) constitutes a code for dealing with a contravention of a supervision order
Legislation:
Bail Act 1982 (WA)
Criminal Code (Qld), s 204
Criminal Code (WA), s 178
Criminal Code Act 1913 (WA), s 7
Criminal Code Act 1924 (Tas), s 118
Criminal Procedure Act 2004 (WA), s 126(1)(b), s 128(2)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Dangerous Sexual Offenders Act 2006 (WA), s 4, s 5, s 7(1), s 7(2), s 7(3), s 8, s 17, s 17(1)(b), s 18, s 18(1), s 18(2), s 21, s 21(2)(a), s 22, s 23(a), s 29, s 33, s 40, s 43, s 45
Evidence Act 1906 (WA), s 32, s 36A, s 106A
Prisons Act 1981 (WA)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr B Fiannaca SC
Respondent: Mr D McKenzie
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Mr D McKenzie
Case(s) referred to in judgment(s):
Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575
Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
McLURE P: The respondent was charged on indictment with eight counts of disobeying conditions of a supervision order made under s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) and one count of attempting to do so contrary to s 178 of the Criminal Code (WA) (Code). The trial was heard by judge alone (Murray J).
On 13 April 2010 the trial judge, acting under s 128(2) of the Criminal Procedure Act 2004 (WA), entered judgment for the respondent upon his plea that the offences charged are not offences under s 178 of the Code. The State of Western Australia (State) appeals against that judgment. The appeal raises issues as to the proper construction of s 178 of the Code and pt 2 div 4 of the DSO Act.
Background
On 27 March 2009, McKechnie J declared the respondent to be a serious danger to the community within the meaning of the DSO Act. McKechnie J made a supervision order under s 17(1)(b) to provide for the respondent's control in the community for a period of 5 years (the supervision order). McKechnie J imposed a number of conditions of the supervision order including, relevantly, conditions that the respondent must:
(22)not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
(23)attend for, and submit to, urinalysis or other testing for prohibited drugs or substances as directed by the CCO or by a police officer, including accompanying such persons to an appropriate location for such testing to take place;
(27)not be in possession of, use, or be under the influence of, alcohol;
(30)not remain in the presence of females who are affected by alcohol, unless the identity of such persons is approved in advance by the CCO.
On 9 December 2009, the respondent was arrested and charged with offences contrary to s 178 of the Code in relation to alleged contraventions of the supervision order. He was admitted to bail. On 10 December 2009, a magistrate issued a summons under s 21(2)(a) of the DSO Act (the DSO summons) to cause the respondent to appear before the Supreme Court so that it might consider suspected contraventions of the supervision order. The circumstances of the contraventions relied on in the criminal proceedings were the same as those relied on in the proceedings under the DSO Act. Thereafter the proceedings under the DSO Act and the criminal proceedings were pursued in tandem.
On the return date of the DSO summons on 17 December 2009, the Director of Public Prosecutions (DPP) filed an application under s 22 of the DSO Act which sought, in the alternative, orders under s 23 of that Act. At the trial before Murray J on 22 March 2010, the respondent through his counsel, admitted the conduct relied on by the State for the alleged contraventions of s 178 of the Code. The admissions were made pursuant to s 32 of the Evidence Act 1906 (WA) and took the form of an amended statement of material facts. Pursuant to s 126(1)(b) of the Criminal Procedure Act the respondent pleaded that the offences charged were not offences under the Code.
Section 178 of the Code provides:
Any person who, without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice, or by any person authorised by any public statute in force in Western Australia to make the order, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
The central issue at trial was whether the proviso to s 178 applied to the respondent's contraventions of the conditions of the supervision order made under the DSO Act.
The scheme of the DSO Act
The objects of the DSO Act are to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community and to provide for their continuing control, care or treatment (s 4). A person of a particular class is a person who is under sentence of imprisonment wholly or in part for a serious sexual offence (s 8) and who is 'a serious danger to the community' (s 17). In order to find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence (s 7(1)). The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability, the onus of proof of which is on the DPP (s 7(2)). The DSO Act sets out considerations to which the court must have regard in deciding whether a person is a serious danger to the community (s 7(3)). A serious sexual offence has the meaning given to that term in the Evidence Act 1906 (WA) s 106A.
Section 17 and s 18 in pt 2 div 2 are the source of the court's power to make a detention or supervision order (a Division 2 order). Section 17 provides:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may ‑
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)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 and states in the order.
(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.
Section 18 deals with conditions of a supervision order. Section 18(1) lists the conditions which must be imposed, including reporting and supervision conditions. It is also a mandatory condition that the person not commit a sexual offence as defined in the Evidence Act s 36A during the period of the supervision order.
Section 18(2) provides:
(2)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.
Division 4 deals with contraventions of a supervision order. It is necessary to refer to all the provisions in that division, being s 21, s 22 and s 23 which provide:
21. Summons or warrant because of contravention
(1)A member of the police force or community corrections officer who reasonably suspects that a person who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for the issue of a summons or warrant under subsection (2).
(2)If the magistrate is satisfied that there are reasonable grounds for the suspicion described in subsection (1), the magistrate has to issue, in the form approved by the chief executive officer ‑
(a)a summons requiring the person who is subject to the supervision order to appear before the Supreme Court for it to consider the suspected or anticipated contravention; or
(b)a warrant directed to all members of the police force for the person who is subject to the supervision order to be arrested and brought before the Supreme Court for it to consider the suspected or anticipated contravention.
(3)The summons or warrant may state the suspected or anticipated contravention in general terms.
(4)A magistrate cannot issue a warrant under subsection (2) unless ‑
(a)the application is supported by evidence on oath; and
(b)the magistrate is satisfied that the person against whom it is issued would not appear in answer to a summons.
(5)Even if subsection (4) does not prevent a warrant from being issued, a magistrate may refuse to issue a warrant if the magistrate considers that it would be unjust to issue it.
22. DPP may seek order
(1)If a person appears before the Supreme Court under a summons or warrant issued under section 21, the DPP may apply to the court for an order under section 23.
(2)The application must state the order sought.
23. Court may make order
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.
The DSO Act does not expressly empower the court to order that a person be detained between the first appearance before the Supreme Court under s 22 and the final determination under s 23. Moreover, s 5 expressly provides that the Bail Act 1982 (WA) does not apply to a person detained under the DSO Act. Bail was ordered in this case only because the respondent had also been charged with contravening s 178 of the Code.
By s 40, proceedings under the DSO Act or on an appeal under that Act 'are to be taken to be criminal proceedings for all purposes'. Further the court may, on its own initiative or on the application of a party, give directions in relation to the conduct of a proceeding under the DSO Act (s 43).
A continuing detention order made under s 17 and s 23 must be the subject of annual review by the Supreme Court (s 29). The court must rescind the order if it does not find that the person remains a serious danger to the community (s 33).
Under s 45, if a court orders under the DSO Act that a person be detained in custody, it must issue a warrant for the person's apprehension, if necessary, and detention in a prison under the Prisons Act 1981 (WA).
The trial judge's reasons
The trial judge identified the relevant question as being whether a mode of proceeding against the respondent for disobedience to the supervision order is expressly provided by the DSO Act and is intended to be exclusive of all other punishment. The trial judge held that s 178 had no application for two reasons. First, on its proper construction, the DSO Act was intended to be an exclusive mode of proceedings for past breaches, continuing breaches and future breaches of a supervision order. That is, the proviso to s 178 applies even if the mode of proceeding cannot be characterised as 'punishment' [55], [56]. Further and in the alternative, the trial judge concluded that an order under s 23 of the DSO Act constituted 'punishment' for the purposes of s 178. He said:
But if it is necessary that to exclude the operation of s 178 it is necessary to discern an exclusive provision of punishment in the other statute, then in my opinion although the ultimate purpose of making orders under the DSO Act is to achieve a measure of protection for the community from the future commission of serious sexual offences by the offender in question, nonetheless the character of the orders which may be made, whether a supervision order or a continuing detention order, is punitive. Within the meaning of s 178 the making of such orders would constitute 'punishment' [55].
Grounds of appeal
The State relies on one ground with three particulars. The substance of the State's formulation of the ground appears in particulars (a) and (b) which are to the effect that the trial judge erred in law in finding that:
(a)orders made under s 23 of the DSO Act constitute punishment; and
(b)the DSO Act constitutes a code and that pt 2 div 4 thereby contains a mode of proceeding against a person for disobedience that is intended to be exclusive of all other punishment.
Background to the DSO Act
New South Wales preventive detention legislation (the Community Protection Act 1994 (NSW)) was held to be incompatible with the requirements of Ch III of the Commonwealth Constitution and thus invalid in Kable v Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51. The principle in Kable is that State legislation which purports to confer upon a State court a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction is invalid.
In Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, the High Court considered whether the DangerousPrisoners (Sexual Offenders) Act 2003 (Qld) (the Queensland Act) impaired the institutional integrity of the Supreme Court of Queensland in such a fashion as to be incompatible with the requirements of Ch III of the Constitution (Cth) as determined in Kable. The Queensland Act was held to be valid. The starting point for the High Court's consideration of the validity of the Queensland Act were statements in earlier cases to the effect that the constitutional principle derived from Ch III is that, exceptional cases aside, the involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt: Fardon [77], [217]. It was in that context that the distinction between preventive detention and penal or punitive detention was addressed. Gleeson CJ characterised the Queensland Act as authorising preventive detention in the interests of community protection [19] but observed that it was difficult to maintain a strict division between punitive and preventive detention [20]. McHugh J said [34] the Act was not designed to punish but rather designed to protect the community.
In reformulating the principle derived from Ch III, Gummow J rejected the use of the terms 'penal' or 'punitive' in favour of a formulation that emphasised that the concern is with the deprivation of liberty of a person without adjudication of guilt rather than with the further question of whether the deprivation is for a punitive purpose [81]. Moreover, he observed that the term 'punishment' and cognate terms were of indeterminate scope [82]. However, he also observed that the making of a detention order under the Queensland Act did not punish an offender twice or increase his punishment for the offences of which he had been convicted [74]. Callinan and Heydon JJ applied the traditional approach to Ch III questions in this area which is to determine whether the detention is punitive. They said that question depends upon whether the impugned law provides for detention as punishment or for some legitimate non‑punitive purpose [215].
The Western Australian DSO Act is closely modelled on the Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 considered by the High Court in Fardon. I infer that course was taken to ensure the validity of the DSO Act.
Background to s 178
Section 178 has been rarely used. There are equivalents in Queensland (s 204 of the Criminal Code (Qld)), and Tasmania (s 118 Criminal Code Act 1924 (Tas)), and we are told there are similar provisions elsewhere, including Papua New Guinea, Nigeria, Bermuda and Fiji. The State's researches have failed to locate any Australian or international authority on the construction issues that arise for determination in this case.
Insofar as s 178 refers to a lawful order of a court of justice, it is the statutory equivalent of a sub‑set of the common law of contempt of court.
The Criminal Code Act 1913 (WA) s 7 preserves the common law power of courts of record to punish summarily for contempt of court. At common law, contempt of court is classified as being either criminal or civil. Civil contempt involves (inter alia) disobedience to a court order by persons involved in civil litigation. Contumelious disobedience to such an order is punishable by imprisonment. Indeed, all proceedings for contempt are criminal in nature and must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525.
I have been unable to locate any authority on whether disobedience to a court order by persons involved in criminal proceedings also constitutes a contempt of court. I will proceed on the assumption that it does.
Analysis
The State advances three propositions. First, s 178 requires that the mode of proceeding itself provide punishment for disobedience to a lawful order issued by a court. Secondly, pt 2 div 4 of the DSO Act does not provide 'punishment' for contravention of a condition of a suspension order. That is, the division is not punitive in character. The State contends the trial judge erred in relying on 'effect' not 'purpose' in determining that the provisions of the DSO Act provide for punishment. Thirdly, on its proper construction the DSO Act is not intended to be an exclusive code for dealing with contraventions of a supervision order.
The State concedes that action under pt 2 div 4 of the DSO Act provides for a 'mode of proceeding' for the purposes of s 178. Both parties accept that a condition of a supervision order imposed under s 18 of the DSO Act forms part of the supervision order and thus a breach of a condition is a breach of the supervision order. They also accept that a supervision order is a lawful order of a court for the purposes of s 178.
The State also contends that the power in s 23(a) of the DSO Act to make 'any other order' does not include a power to impose a sentence or other penalty for a contravention of a condition of the supervision order. I agree. The power to make 'any other order' in s 23(a) is to be exercised in accordance with the objects and purposes identified in s 18(2). That is, the orders must be preventive in purpose and effect.
Against that background, I turn first to the proper construction of s 178. If the proviso applies, disobedience of any lawful order issued by a court will not constitute an offence under s 178. There are two limbs to the proviso. They require that:
(1)some mode of proceeding against a person for disobedience of any lawful order issued by a court is expressly provided by statute; and
(2)the statutory mode of proceeding for such disobedience is intended to be exclusive of all other punishment.
The term 'punishment' in s 178 is not intended to be confined to its narrow criminal law sense of a sentence imposed for the commission of an offence. So much is made clear by the terms 'mode of proceeding' and 'disobedience' in the proviso. Those are very wide terms that would include, but not be limited to, criminal proceedings. The meaning of the term 'punishment' is also to be derived by reference to the conduct to which the punishment relates. It is 'punishment' of past conduct. Thus punishment in s 178 means a penalty of some nature for conduct that has occurred.
Part 2 div 4 of the DSO Act does not empower the court to punish for a contravention. Under s 23 the court has the power to involuntarily detain a person in custody or further limit the rights and freedom enjoyed by other citizens. However, the existence of a past, existing or likely (future) contravention is the factum that enlivens the power (discretion) to make an order under s 23; the contravention is the event which enlivens the power but it is not the focus, object or purpose of the exercise of the power. Section 23, like s 17, requires the court to look forward to what is required to protect the public from future offending and how the risk thereof is to be managed. The purpose and effect of s 23 is not to impose a penalty of any nature for the contravention. Accordingly, s 23 of the DSO Act does not empower the court to punish a person for disobeying a lawful order of the court. It follows the trial judge erred in concluding that pt 2 div 4 of the DSO Act made provision for imposing punishment.
The next question of statutory construction is what is meant by the expression 'exclusive of all other punishment' in the second limb of the proviso (s 178). The language suggests that there must be an intention in the other statute to exclude all punishment that can be imposed under other laws for disobeying a lawful order of a court. That would exclude s 178 and its common law equivalent. Section 178 is one of the rare provisions of the Code where a common law equivalent applies concurrently, namely part of the common law of contempt of court. I am satisfied that the expression exclusive of 'all other punishment' in the second limb of the proviso is intended to require that the other statute evince an intention to exclude punishment that can be imposed under other law (including in particular, s 178 and its common law equivalent) for disobeying a lawful order of a court. The expression is not intended to impose a requirement that the other statute itself impose punishment for the contravention. All the proviso to s 178 requires is that the other statute evince an intention that it be the exclusive code for dealing with a contravention of a supervision order.
There are a number of indications that pt 2 div 4 of the DSO Act, which provides for a mode of proceeding against a person for disobedience of a supervision order, is intended to be an exclusive code for contravention of a supervision order.
The first indicator is the circumstances in which the DSO Act came to be enacted. The intention was to exclude a successful Kable based challenge to the validity of the legislation. It can be inferred the legislature intended that the DSO Act be the exclusive source of the substantive law relating to the imposition and amendment of preventive orders imposed on dangerous sexual offenders.
That intention is reflected in the scheme of the DSO Act as a whole. The entire focus of the legislation is to impose, amend or rescind detention or supervision orders by reference to the risk of commission of a further serious sexual offence to the exclusion of any form of punishment for what has already occurred. That is demonstrated in the structure, language and purpose of s 23. The discretion in s 23 must be exercised by reference to the protection of the public having regard to the level of risk of the person committing a serious sexual offence in the future. As a result, the court's power is enlivened not only if a person is or has contravened a condition of the suspension order but if a contravention is likely. Moreover, a finding of an actual or likely contravention empowers the court in appropriate circumstances to reduce the severity of the conditions in order to reduce the risk of re‑offending. Such a structure is inconsistent with an intention that a contravention of a supervision order can be punished, whether under s 178 of the Code or its common law equivalent.
The only intended relevance of a contravention of a condition of a supervision order under the DSO Act is what it reveals about whether there is any relevant increase in risk of re‑offending in the future and if so, what steps are required to reduce or eliminate the risk. Thus, the DSO Act as a whole evinces a legislative intent that the mode of proceeding under pt 2 div 4 of that Act against a person for disobeying a condition of a supervision order is intended to be exclusive of punishment under other laws.
This construction does not have the consequence that conduct which gives rise to a contravention of a supervision order can never be the
subject of punishment under the Code. If a person subject to a supervision order breaches a mandatory condition by committing a sexual offence as defined in s 36A of the Evidence Act, that offence can be prosecuted under the relevant provision of the Code because it does not depend, in whole or in part, on establishing a breach of the supervision order. The only punishment and thus offences excluded are s 178 and any other law pursuant to which disobedience to a lawful order of a court without more can be punished.
The State contends that in determining the statutory intent, regard should be had to the limitations on the court's power in the DSO Act to grant bail and to order detention pending the determination of a s 22 application. The omissions and exclusions from the express and implied powers of the court in these areas are directly referable to the purpose of ensuring the constitutional validity of the DSO Act. They reflect an intention to distinguish between how the law treats persons charged with criminal offences and how it treats citizens whose rights and liberties can be removed or restricted based solely on the risk of them committing an offence in the future. The exclusions and omissions are entirely consistent with an intention that pt 2 div 4 of the DSO Act be an exclusive code.
On its proper construction, the DSO Act is intended to be an exclusive code for dealing with a contravention of a supervision order. The appeal should be dismissed.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.
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