The State of Western Australia v Ugle
[2017] WASC 111
•13 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UGLE [2017] WASC 111
CORAM: CORBOY J
HEARD: 3 MARCH 2017, 7 APRIL 2017 AND FURTHER WRITTEN SUBMISSIONS ON 12 APRIL 2017
DELIVERED : 13 APRIL 2017
FILE NO/S: INS 384 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
WARREN JOHN UGLE
Defence
Catchwords:
Criminal law - Breach of supervision order - Accused alleged that he did not intentionally consume or use a prohibited drug - Whether that allegation was an excuse for the purpose of s 40A(1) of the Dangerous Sexual Offenders Act 2006 (WA) - Whether the alleged excuse was a reasonable excuse - Whether s 23A of the Criminal Code (WA) applied to the offence - Whether the accused had intentionally consumed or used a prohibited drug
Legislation:
Criminal Code (WA), s 23A
Dangerous Sexual Offenders Act 2006 (WA), s 40A(1)
Result:
Accused convicted of contravening a supervision order
Category: B
Representation:
Counsel:
Prosecution : Ms S Markham
Defence: Ms G M Cleary & Ms M R Barone
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
R v Baden‑Clay [2016] HCA 35; (2016) 334 ALR 234
The State of Western Australia v Ugle [2016] WASC 252
CORBOY J:
(These reasons were delivered orally and the published reasons have been prepared from the transcript.)
Background
The accused was found in 2014 to be a serious danger to the community and a continuing detention order was made under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). The accused was subsequently released to the community under a supervision order (the Supervision Order) made by Fiannaca J on 24 November 2015.
The accused was charged in December 2015 with having contravened a requirement of the Supervision Order. Two contraventions were alleged. The Director of Public Prosecutions (WA) also commenced proceedings under pt 2, div 4 of the DSO Act on 27 January 2016 (the Contravention Proceedings).
Fiannaca J heard the December 2015 charges in July 2016. The accused was convicted on one charge: The State of Western Australia v Ugle [2016] WASC 252.
The accused was released on bail pending a sentencing hearing. A psychiatric report was ordered for the purpose of sentencing and for the Contravention Proceedings. The conditions on which the accused was released on bail included that he continued to comply with the requirements of the Supervision Order.
The accused was arrested on 16 November 2016 for an alleged breach of his bail conditions. His bail was revoked and he remains in custody. He was subsequently charged with an offence against s 40A(1) of the DSO Act: that on a date unknown between 7 and 11 November 2016, having been subject to a supervision order and without reasonable excuse, he contravened a requirement of the order by consuming or using a prohibited drug or substance, methylamphetamine, in contravention of condition 24 of the Supervision Order. The accused entered a plea of not guilty to that charge.
On 6 February 2017, Fiannaca J ordered that the trial of the charge be conducted before another judge of this court with the intention that the Contravention Proceedings would be determined by his Honour on completion of the trial.
Section 40A(1) of the DSO Act
Section 40A(1) of the DSO Act provides that 'a person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence'. The maximum penalty for the offence is imprisonment for 2 years.
Section 40B(1) provides that 'the procedure applicable to and in relation to a charge of an offence under s 40A(1) is the procedure applicable to and in relation to a charge of any other simple offence'. Section 40B(4) also provides that a charge under s 40A(1) may be heard in the Supreme Court where contravention proceedings under pt 2, div 4 of the DSO Act have also been commenced.
Section 78 of the Criminal Procedure Act 2004 (WA) provides that:
(1)In this section, unless the contrary intention appears -
exception includes a condition, excuse, exemption, proviso and qualification.
(2)An exception in respect of a simple offence need not be specified in a charge of the offence.
(3)If a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.
The State bears the onus of proving beyond a reasonable doubt that the accused was subject to a supervision order and that the accused contravened a requirement of that order. As will be explained, in the circumstances of this matter the State is also required to prove beyond a reasonable doubt that the act that constituted the alleged contravention of the Supervision Order did not occur independently of the exercise of the accused's will.
As the offence created by s 40A(1) of the DSO Act is a simple offence, the effect of s 78 of the Criminal Procedure Act is that the accused bears the onus of establishing on the balance of probabilities that there was a reasonable excuse for any contravention of the Supervision Order.
It should be noted that condition 24 referred to any prohibited drug or substance. Accordingly, the offence allegedly committed by the accused concerned the consumption of a prohibited drug or substance. The specification of methylamphetamine as the prohibited drug or substance was a particular of the charge.
The alleged contravention
The conditions of the Supervision Order on which the accused was released to the community included that:
(a)he was not to possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis (condition 24);
(b)he was to attend for and submit to urinalysis or other testing for prohibited drugs as directed by a Community Corrections Officer or a police officer (condition 32);
(c)he was not to remain in the presence of any person who he knew or ought to have known to be affected by a prohibited drug (condition 34);
(d)he was not to remain in any place where prohibited drugs were being consumed or if such a place was his approved address, withdraw from that part of the residence in which the consumption was occurring (condition 35).
The State alleged that the accused was directed by a Community Corrections Officer to attend for urinalysis testing on 11 November 2016. A sample was taken and a positive result for methylamphetamine was returned. The test result was 193 micrograms of methylamphetamine per litre. It was not in issue that the accused had also been tested on 7 November 2016 and that he had returned a negative result on that occasion.
The admissions and the issues
The accused admitted that:
(a)he was subject to the Supervision Order;
(b)he had been properly directed by his Community Corrections Officer to provide a sample of his urine for testing on 11 November 2016;
(c)he gave a sample of his urine on 11 November 2016;
(d)there were 'no issues' with the integrity of the sample or the continuity of dealings with his sample for the purpose of analysing the results;
(e)his sample returned a positive result for methylamphetamine.
Although the accused did not dispute the result of the urinalysis test conducted on 11 November 2016, he contended that he had not voluntarily used or consumed methylamphetamine in the period between the test on 7 November 2016 and the further test on 11 November 2016. He was unable to explain the presence of methylamphetamine in the test result other than that he had not knowingly or intentionally taken the drug.
The submission made on behalf of the accused at the trial was that the State could not prove beyond a reasonable doubt that the accused had intentionally consumed or used methylamphetamine in circumstances where he had denied using or consuming the drug, or being in the presence of any person who had consumed or used the drug, in the period between 7 ‑ 11 November 2016. That submission went beyond putting the State to proof of the offence; it raised the question whether the State had proved that the alleged contravention of the Supervision Order had not occurred independently of the exercise of the accused's will. The submission involved the further and anterior question of whether s 23A of the Criminal Code (WA) applied to the offence created by s 40A(1) of the DSO Act.
Although the accused did not make any submission on whether he had a reasonable excuse for contravening the Supervision Order, I consider that this question arose on the evidence. As will become apparent, I also consider that the question of whether the accused's evidence could provide an excuse within the meaning and for the purpose of s 40A(1) was relevant to whether s 23A of the Criminal Code could apply.
The evidence
The State called two witnesses: Ms Minnock, the accused's Community Corrections Officer, and Detective Senior Constable Tan, a police officer attached to the Sex Offender Management Squad. Their evidence was not contested and it is only necessary to briefly summarise the evidence of Ms Minnock.
Ms Minnock stated that the accused was required to maintain a diary recording his movements each day. In addition, he was required to wear a GPS tracking device. Ms Minnock was referred to particular extracts from the accused's diary that recorded that between 7 and 10 November 2016 the accused had visited a relative, Ms M, and two other persons, Mr H and Mr P. Ms Minnock stated that she spoke to Mr H and he denied using or being involved with the use of illicit substances (there was no objection to that hearsay evidence). She also spoke to Ms M but that conversation did not concern the use of any illicit substance.
Ms Minnock also gave evidence about urinalysis testing. In particular, she described the process, referred to as 'flushing', by which a person may dilute the concentration of a drug in their urine by consuming large quantities of water. She stated that the accused had tested positive for the use of cannabis shortly after being released to the community and that there was evidence that he had flushed prior to urinalysis testing in the early term of the Supervision Order. However, there had been no positive result for a prohibited drug or substance since 22 December 2015 and there had been no evidence that the accused had engaged in flushing since that time. He had been tested on over 80 occasions since he was released to the community under the Supervision Order.
The accused gave evidence in which he admitted that he had flushed prior to urinalysis testing immediately following his release to the community. He stated that the purpose of flushing was to get rid of the cannabis that had been in his system from the time that he had been in custody. He stated that he had consumed a considerable quantity of cannabis while in custody and immediately prior to his release.
The accused gave evidence of his movements on 10 November 2016 and stated that he could not explain how he had come to return a positive result for methylamphetamine on being tested the following day. The following exchange occurred during the accused's evidence‑in‑chief (ts 678 ‑ 679):
Well, you know that the allegation is that there was methylamphetamine in your urine test the next day on 11 November. Can you explain that?---No, I cannot explain it.
Do you know how it got into your blood stream?---No.
Can you think of any reason how it could have?---No, I can't give any reason how or why or even how it even got there.
Did you take methylamphetamine?---No.
- - - On the 10th or the 9th?---No.
The accused stated in cross‑examination that Ms M, Mr H and Mr P did not use drugs. He also stated that generally during 2016 he had encountered people who he knew to be drug users - for example, at the Community Corrections Office to which he reported, at Outcare and while he was in the city or near where he was living. However, he had not encountered any person that he knew to be a drug user in the period immediately prior to the test conducted on 11 November 2016. He stated in cross‑examination that no‑one had consumed or used methylamphetamine in his presence in the period particularised in the charge.
The accused confirmed that he was aware that he was not to remain in the presence of any person who was consuming drugs and he stated that he had declined offers to be supplied with drugs since his release. He emphasised that he did not take drugs as he did not want to jeopardise his freedom and claimed that he had not used methylamphetamine since 2007. He added that it might have been expected that he would have flushed if he had knowingly taken the drug and that he would not have presented himself for testing early on the morning of 11 November 2016.
Relevant principles
The elements of the offence created by s 40A(1) of the DSO Act that the State must prove beyond reasonable doubt have been identified earlier in these reasons. Reference has also been made to the onus that the accused carries to establish, on the balance of probabilities, that he had a reasonable excuse if it is proven that he contravened condition 24 of the Supervision Order.
In addition to those matters concerning the onus and standard of proof, it is necessary to note that:
(a)A trier of fact must not speculate in assessing the evidence, making findings of fact and reaching a verdict. The trier of fact must only act on the evidence that has been presented in the trial and must not speculate on what a person who is not called as a witness might have said had they given evidence or what a witness might have stated had they been asked a question which, in fact, they were not asked. Further, the trier of fact should not speculate about or look for theories that are not supported by the evidence.
(b)The evidence is to be assessed and findings of fact are to be made impartially and dispassionately.
(c)An inference may only be drawn that is adverse to an accused person if it is the only reasonable inference available on evidence that has been accepted as being truthful and reliable. To adopt any other approach would relieve the prosecution of the burden of proving a charge alleged against an accused person beyond a reasonable doubt.
(d)The accused elected to give evidence. He did not have to do so. He is presumed innocent and the onus remains on the State to prove that he is guilty of the charged alleged (subject to the onus that he bears on the reasonable excuse qualification provided by s 40A(1) of the DSO Act). The onus does not shift on those matters that the State must prove as a result of the accused electing to give evidence. The question is whether the State has proved beyond a reasonable doubt each and every element of the offence alleged on all of the evidence that is accepted as being truthful and reliable, including the evidence given by the accused.
(e)Putting to one side the possibility that the State has failed to prove an element of the offence alleged on the evidence that it has presented, it is not necessary that all of the evidence given by the accused be accepted as being truthful and reliable before he is entitled to be acquitted. It is sufficient that his evidence gives rise to a reasonable doubt.
Condition 24
The prohibition in condition 24 is absolute; that is, it is not qualified by words such as 'intentionally' or 'knowingly'. Further, the word 'consume' when used in condition 24 means, in my view, 'to take' or 'to take in'; that is, to take or take in so that a prohibited drug is present in the accused's metabolic system.
Accordingly, the accused will have consumed a prohibited drug for the purpose of condition 24 even if his consumption was unintentional and unknowing. The questions that then arise are whether he may be criminally responsible for an unintentional and/or unknowing consumption of a prohibited drug and/or whether he may have a reasonable excuse for the contravention of condition 24 in those circumstances.
Contravention
The integrity and the result of the urine analysis performed on 11 November 2016 was not in issue. The test conclusively established that the accused had taken in - had consumed or used in the sense explained above - methylamphetamine sometime in the period between 7 and 11 November 2016. I am satisfied beyond a reasonable doubt that the accused consumed or used methylamphetamine sometime prior to the test conducted on 11 November 2016.
The interpretation of 'without reasonable excuse'
It is convenient to next consider whether the accused had a reasonable excuse for the contravention of condition 24 of the Supervision Order and to then turn to the issue of whether s 23A of the Criminal Code applies to the offence created by s 40A(1) of the DSO Act, and if so, whether the State has proved beyond a reasonable doubt that the accused's consumption or use of methylamphetamine was the result of a conscious and deliberate act by him.
There are several matters that bear upon the interpretation of the expression 'without reasonable excuse' as it appears in s 40A(1) of the DSO Act. First, the word 'excuse' is used as a noun. Second, the accused carries the onus of establishing that he had an excuse for contravening a requirement of a supervision order - in effect, the accused is required to establish on the balance of probabilities a positive fact or state of affairs notwithstanding the wording of the section. Third, the excuse must be reasonable - a matter that is to be objectively determined by the court.
Further, s 40A(1) is concerned with contraventions of a supervision order. A supervision order is made under s 17 of the DSO Act in circumstances where the court has found that the offender is a serious danger to community but that the community can be adequately protected if the offender is released from custody on conditions. A person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that the person would commit a serious sexual offence if the person was not subject to a continuing detention order or a supervision order (see s 7 of the DSO Act). Accordingly, the nature and purpose of a supervision order and the various requirements that comprise the order, considered in the context of the objects and provisions of the DSO Act, are relevant to the proper construction of s 40A(1).
Those matters of statutory context will also be relevant to determining whether a particular excuse offered by a person who has contravened a supervision order was a reasonable excuse.
The word 'excuse' is a verb and a noun. Accordingly, it is defined in The New Shorter Oxford English Dictionary, as a noun, to mean 'the action of excusing a person or an action; noun esp. indulgence, pardon'; 'something offered as a reason for being excused'; 'something that serves to excuse or give ground for excusing; a justification, a reason'. The word is defined as a transitive and intransitive verb to mean to 'seek to clear (a person) wholly or partially from blame without denying or justifying the action concerned; try to extenuate (an acknowledged fault)'; save (someone) from punishment or harm'; 'have a sufficient excuse; be freed from blame'; 'accepted plea in exculpation of (a person), forgive' and 'refrain from exacting; dispense with'.
In my view, those definitions capture the essential meaning of the word 'excuse' for the purpose of s 40A(1) of the DSO Act when the section is construed and applied in the context of the matters referred to above. As a noun that is used to specify a matter that must be proved by the accused, the word denotes the explanation or reason given by the accused (the 'something offered') for the contravention of the supervision order. The court is then required to assess whether the explanation or reason provided by the accused is an excuse and if so, whether it is objectively reasonable. That assessment is undertaken in circumstances where a contravention of a supervision order would otherwise be a criminal offence.
What constitutes an excuse and whether it is reasonable will, of course, depend on the particular circumstances. However, the nature of the requirement that has been contravened will be significant in this context.
The excuse
An accused may have an excuse for contravening a supervision order where the breach was unintentional or unknown. That will depend on the nature of the requirement that was breached and the circumstances of the contravention. However, in such a case the absence of intent, or the accused's unwitting contravention, will be 'the excuse' for the purpose of s 40A(1). The question will then be whether the accused's lack of intent or knowledge provides a reasonable excuse.
In this instance, the accused contravened the Supervision Order by consuming or using a prohibited drug or substance. The effect of his evidence was to assert that he had unintentionally and unknowingly consumed the substance. That begs the obvious questions: how and in what circumstances?
No attempt was made by the accused to establish how he might have unintentionally or unknowingly consumed a prohibited drug or substance. However, it is notorious that the drug or substance alleged - methylamphetamine - may be ingested (orally or by 'snorting'), smoked or injected.
Plainly, the accused would have known that he was consuming or using a prohibited drug or substance if he had injected or smoked the drug or substance. There was no evidence that methylamphetamine may be 'passively' consumed and in any event, the accused denied that prohibited drugs or substances had been consumed or used in his presence in the relevant period and he was required by the Supervision Order to remove himself from the presence of any person who was consuming or using prohibited drugs or substances.
Consequently, the effect of his evidence was that he must have unintentionally or unknowingly ingested methylamphetamine at some time prior to the urinalysis test conducted on 11 November 2016. However, he did not give or present any evidence as to how he came to ingest the drug or in what circumstances that might have occurred. The effect of his evidence was to rule out any possibility that he had been given the drug by any person with whom he had contact during the relevant period.
Accordingly, the accused provided no explanation or reason for the admitted fact that he had consumed a prohibited drug or substance. I appreciate that his case was that he could not provide an explanation as he did not know how that had occurred. However, I do not consider that his evidence provided an excuse within the meaning of s 40A(1) of the DSO Act having regard to the proper construction of the section, the nature of the requirement that he contravened and the matters of statutory context to which reference has been made above. The accused did not, in my view, discharge the onus of establishing that he had an excuse for the consumption of a prohibited drug or substance by a bare denial that he had intentionally or knowingly consumed methylamphetamine, coupled with an assertion that he did not know how he had consumed the drug. Once it has been established that the accused had consumed or used a prohibited drug or substance, the excuse for the purpose of s 40A(1) had to be in the form of an explanation or reason for how the drug came to be consumed or used.
'Reasonable' excuse
It is not necessary to consider whether the accused had a reasonable excuse for contravening the Supervision Order given the finding that his evidence did not disclose an excuse for the purpose of s 40A(1). However, if his evidence is capable of being characterised as providing an excuse for the purpose of the section, I do not consider that it was a reasonable excuse.
The first reason focusses on the nature and purpose of a supervision order and the requirement that the accused contravened. It is a standard requirement that a dangerous sexual offender who is released to the community under a supervision order not consume or use any prohibited drug or substance. The reasons for that requirement are obvious - the consumption or use of a prohibited drug or substance involves the commission of a criminal offence and many prohibited drugs and substances have a disinhibiting effect that is often associated with other forms of offending, including sexual offending.
The proposition inherent in the accused's case was that a dangerous sexual offender who returns a positive result on urinalysis or other testing for a prohibited drug or substance will have a reasonable excuse for non-compliance with a drug prohibition requirement, and will not be guilty of an offence under s 40A(1), if they merely deny having consumed or used the drug and otherwise offer no explanation for the presence of the drug on testing. In my view, that proposition, and the consequences that it entails, should not be accepted having regard to the provisions of the DSO Act relating to the release of a dangerous sexual offender into the community under a supervision order; the purpose and operation of a supervision order and a drug prohibition requirement; and the onus that an accused carries of establishing a reasonable excuse for a contravention. A bare denial of use or consumption without further explanation could not provide a reasonable excuse for contravening a requirement not to consume or use a prohibited drug.
The second reason for concluding that the accused has not discharged the onus of establishing that his excuse for contravening the Supervision Order is that I have found that the State has proved beyond a reasonable doubt that the accused deliberately and consciously consumed methylamphetamine in the period particularised in the charge.
Section 23A of the Criminal Code
Section 23A of the Criminal Code provides that 'a person is not criminally responsible for an act or omission which occurs independently of the person's will'. The onus rests on the State to prove that the act constituting the offence was a willed act; that is, that the act was done by the accused consciously and deliberately.
Section 23A forms part of ch V of the Criminal Code. Section 36 of the Code states that the provisions of ch V apply to all persons charged with any offence against the statute law of Western Australia. Section 2 of the Criminal Code further provides that 'an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence'. Plainly, s 40A(1) of the DSO Act satisfies that description.
Nevertheless, I raised with the parties whether s 23A applied, at least in relation to an alleged contravention of condition 24. I raised that matter as the offence created by s 40A(1) draws its content from the requirement that it is alleged was contravened by the accused. It might be argued that the absolute nature of the requirement imposed by condition 24, coupled with the reasonable excuse qualification to s 40A(1), impliedly excluded the application of s 23A of the Criminal Code. That could be so if evidence given by an accused person to the effect that they did not intend to take and had not knowingly taken a prohibited drug constitutes an excuse within the meaning of s 40A(1) of the DSO Act (leaving the court to determine whether, in all the circumstances, the excuse was reasonable). On that interpretation, the criminal responsibility of an accused person who raises the possibility of an unintentional contravention of a requirement such as condition 24 would be determined according to the reasonable excuse qualification to s 40A(1) of the DSO Act.
This issue was raised late in the trial without counsel having a full opportunity to make submissions on the interpretation of condition 24 and the possible interaction between the condition, s 40A(1) of the DSO Act and s 23A of the Criminal Code. In circumstances where I have found that the accused's bare denial of intention and knowledge did not, by itself, constitute an excuse for the purpose of s 40A(1), I have assumed that s 23A applies so that the State is required to prove beyond a reasonable doubt that the accused consciously and deliberately consumed or used a prohibited drug. However, I should not be taken as expressing any considered and concluded view on the application of s 23A to the offence created by s 40A(1) of the DSO Act - at least where the requirement in issue is expressed in absolute terms.
The finding
As has been mentioned, the accused was required by his Community Corrections Officer to maintain a daily diary recording his movements and the persons with whom he had contact. The accused did not suggest that his diary was inaccurate and, of course, the accuracy or otherwise of the diary was a matter peculiarly within his knowledge. The diary indicated that during the period relevant to the charge the accused had only met with Ms M, Mr H and Mr P. The accused confirmed that this was so in his oral evidence. Moreover, the accused stated that Ms M, Mr H and Mr P did not use drugs to his knowledge and they had not taken drugs in his presence.
It was not in issue that the accused consumed methylamphetamine (and a finding to that effect has been made). In the circumstances of this matter, the onus resting on the State required it to exclude all reasonable hypotheses consistent with innocence. A trier of fact must not speculate in identifying what might be a reasonable hypothesis. Rather, the trier must only consider hypotheses that are based on the evidence: see, for example, R v Baden‑Clay [2016] HCA 35; (2016) 334 ALR 234 [55].
In my view, the evidence elicited in cross‑examination of the accused excluded any reasonable possibility that the accused had unintentionally and/or unknowingly consumed methylamphetamine when that evidence was considered in the context of all of the evidence, including the accused's evidence‑in‑chief. The evidence did not disclose any possible means by which the accused could have unintentionally and/or unknowingly consumed the drug and consequently, the State has excluded any reasonable hypothesis consistent with his innocence.
I find that the only reasonable inference available on all of the evidence is that the accused consciously and deliberately consumed or used methylamphetamine sometime in the period 7 ‑ 11 November 2016. Accordingly, I do not accept his evidence that he did not consume or use methylamphetamine in that period. I would add that his evidence that he had not experienced any perceptible effect from consuming the drug and therefore, he did not know that he had done so was, in my view, inherently implausible.
I find that the State has proved beyond a reasonable doubt that on a date unknown between 7 and 11 November 2016, having been subject to a supervision order and without reasonable excuse, the accused contravened a requirement of the order by consuming or using a prohibited drug or substance, methylamphetamine, in contravention of condition 24 of the supervision order. A conviction for that offence will be recorded.
4
2
2