The State of Western Australia v Ugle
[2016] WASC 252
•19 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UGLE [2016] WASC 252
CORAM: FIANNACA J
HEARD: 27 JUNE, 1 & 19 JULY 2016
DELIVERED : 19 JULY 2016
FILE NO/S: INS 47 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
WARREN JOHN RICKY UGLE
Accused
Catchwords:
Criminal Law and procedure - Trial by judge alone - Breach of DSO supervision order - Positive urinalysis - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 40A(1)
Result:
Acquitted of charge PE 59371/2015
Convicted of charge PE 62861/2015
Category: B
Representation:
Counsel:
Prosecution : Ms K Robinson
Accused: Ms M R Barone
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Nil
Table of Contents
The charges
The issue
How the prosecution comes to be in this court
Evidence in the trial ‑ an outline
Legal principles
Circumstantial evidence
The evidence
Certificates of analysis
Dr Cruickshank
The results for each certificate (Exhibit 14)
Dr Grasko
Interview 3 December 2015
The accused's evidence at trial
Assessment of the accused's evidence
Findings
Conclusion
FIANNACA J:
(This judgment was delivered orally on 19 July 2016 and has been edited from the transcript.)
The charges
Warren John Ricky Ugle is charged with two counts of an offence under s 40A(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), which provides:
A person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence.
Mr Ugle pleaded not guilty to those charges and was tried by me in relation to them at a hearing conducted on 27 June 2016 and 1 July 2016.
For convenience, I will refer to Mr Ugle as the accused. This is a standard term in criminal trials and implies nothing about his status as a person presumed innocent until proven guilty.
On 6 October 2014, the accused was found to be a serious danger to the community for the purposes of the Act, in that there was an unacceptable risk that if he was not subject to a continuing detention order, or a supervision order, he would commit a serious sexual offence. Simmonds J, who made the finding, ordered that the accused be detained under a continuing detention order from that date.
On 24 November 2015, following an annual review of that detention order, I rescinded the detention order and released the accused on a supervision order, containing a number of strict conditions intended to provide adequate protection of the community against the accused's risk of serious sexual offending. Condition 24 of the supervision order prohibited the accused from possessing, consuming or using any prohibited drug, including cannabis.
The two charges brought against the accused are in the same terms, namely that:
[B]eing subject to a supervision order, without reasonable excuse, he contravened the requirement of the order by consuming a prohibited drug, namely cannabis, in contravention of condition 24 of the supervision order.
The first offence (PE 59371/2015) is alleged to have occurred on a date unknown between 23 November 2015 and 2 December 2015 at Perth. The second offence (PE 62861/2015) is alleged to have occurred on a date unknown between 23 November 2015 and 23 December 2015, again, at Perth. The charges were brought by the police on 4 December 2015 and 26 December 2015 respectively, on each occasion after the accused had returned a positive urinalysis result for a cannabis metabolite.
The charges, as laid by the police, inappropriately particularised the contravention in each case as 'supplying a positive urinalysis sample containing cannabis'. That was the evidentiary basis of the charge, not an apt particularisation of the offence, having regard to the condition alleged to have been contravened. Each of the charges was amended at the conclusion of the prosecution case, in the terms to which I have already referred, after counsel for the accused properly identified the problem with the form of the charges. Counsel for the accused, again, quite properly acknowledged that the amendment would occasion no prejudice to the accused, having regard to the way in which the defence had been conducted.
The issue
The facts are largely not in dispute. The accused accepts that, at the relevant time, he was subject to a supervision order under the Act, namely the order made on 24 November 2015, and that Condition 24 of the order prohibited him from possessing, consuming or using cannabis. Further, he does not dispute that he gave the urine samples that were analysed and returned positive results for a cannabis metabolite. The issue is whether those results established that the accused consumed cannabis at a point in time after he was released on the supervision order. The accused denies that he did so.
How the prosecution comes to be in this court
The offence under s 40A is a simple offence. By s 40B(1) of the Act, 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. However, the prosecution of such a charge may be commenced in the Supreme Court 'if proceedings have been commenced under pt 2 div 4 [of the Act] in respect of the [accused] in relation to the same conduct and not concluded[1]'. Those are proceedings by an application made by the Director of Public Prosecutions (WA) in this court to deal with an alleged contravention, by the making of an order under s 23 of the Act either to amend the supervision order or to detain the offender for an indefinite term (i.e. a continuing detention order). Such an application is on foot. By s 40B(4), although the charges were commenced in the Magistrates Court, it was necessary for the s 40A charges to be prosecuted in this court. I must deal with them summarily, under the Criminal Procedure Act 2004 (WA) (CPA).
[1] Dangerous Sexual Offenders Act 2006 (WA) s 40B(2).
Accordingly, I must decide the facts and decide whether the accused is guilty or not guilty of the offences by applying the relevant law to those facts. I am required to make that decision on the evidence presented in the trial and on that evidence alone.
Evidence in the trial ‑ an outline
The prosecution evidence consisted of:
(1)A copy of the supervision order signed by the accused on 24 November 2015;[2]
(2)Seven PathWest laboratory reports in relation to urinalysis tests done on urine samples collected from the accused on 1, 3, 8, 10, 14, 21 and 22 December 2015;[3]
(3)A Department of Corrective Services Substance Abuse Test Results for the accused, from 13 April 2015 to 17 September 2015;[4]
(4)A DVD recording of an electronic record of interview (EROI) conducted with the accused on 3 December 2015;[5]
(5)A DVD recording of an EROI conducted with the accused on 24 December 2015;[6]
(6)Oral expert evidence from Dr Christopher Cruickshank from PathWest in respect of the urinalysis testing conducted with the accused, during December 2015, and establishing the chain of custody for the samples collected on 1 and 22 December 2015;[7] and
(7)Oral expert evidence from Dr Jonathan Grasko, consultant toxicologist, concerning the interpretation of the urinalysis results.
[2] Exhibit 1.
[3] Exhibits 2 ‑ 8.
[4] Exhibit 9.
[5] Exhibit 10.
[6] Exhibit 11.
[7] Exhibits 12 and 13.
The accused gave evidence in his defence.
Before outlining the evidence and making factual findings, I will refer to the legal principles that apply.
Legal principles
The accused is presumed by law to be innocent of each of the charges, until and unless the presumption is displaced by proof of guilt beyond reasonable doubt. The presumption has applied throughout the trial and during my deliberations. Without limiting the general proposition, it informs, in particular, the manner in which I must consider two critical issues in this trial: the inference to be drawn from the circumstantial evidence and my assessment of the accused's evidence.
The burden of proving the accused's guilt lies upon the State. In order to discharge that burden, it must prove each element of the offence beyond reasonable doubt. As I noted earlier, the facts are largely not disputed by the accused. When the facts are uncontroversial, it makes the fact-finding task easier, but, the need to be satisfied of the prosecution case beyond reasonable doubt remains. The accused does not have to prove anything.
As I have noted, the accused gave evidence. By doing so, he has not assumed any burden of proof. His testimony becomes part of the evidence I have to consider in deciding whether the prosecution has discharged its burden. If his evidence gives rise to reasonable doubt in respect of the particular charge I am considering, then I must find him not guilty of that charge. Even if I reject his testimony, that does not translate into a finding of guilt or proof of facts contrary to his evidence.
Importantly, although the State has submitted that the accused has lied in respect of a number of matters, it does not rely on lies as evidence of guilt. If I find that the accused has lied, it will be relevant only to my assessment of his credibility as a whole. If I do not believe his evidence, whether in specific respects or as a whole, I am required to set it aside and consider the rest of the evidence which I do accept, and determine on that evidence, whether the State has proved each of the elements of the offence that I am considering.
The accused also took part in two audio‑visually recorded interviews with the police (the EROIs). He was under no obligation to do so. He had a right to remain silent. However, again, the EROIs become part of the evidence I have to consider in deciding whether the prosecution has proved its case. The considerations I have outlined in relation to his evidence in court, arising from the presumption of innocence and the burden of proof, also apply in respect of the EROIs. However, in considering the weight I should give to his answers during the EROIs, I take into account that the answers were not given under oath and were not tested by cross‑examination.
On the other hand, in the context of the circumstances of this case, I can have regard to the fact that the accused's first account to the police on 3 December 2015 was at a time much closer to the period leading to his release from detention, when his memory could be expected to be more accurate. There was little, if any, opportunity to tailor his evidence to the information now available, including the expert evidence.
In the context of this case, the credibility (that is, the honesty and reliability) of the prosecution witnesses was not put in issue. Their evidence is expert evidence. Although the weight that I give to the evidence of an expert witness is a matter for me to determine, as the judge of the facts, where the witness is clearly qualified to give the expert opinion and there is no evidence to contradict what the witness has said, I should accept their evidence, unless there is a good reason for not doing so.
In this case, there is no challenge to the expert evidence, and there is no good reason to depart from it. The question is what conclusions I can draw from it, having regard to other evidence in the case.
The assessment of credibility is a significant matter, however, when considering the answers given by the accused in the EROIs and the evidence given by him in the trial. In assessing a witness's credibility, it is necessary to analyse what the witness says and to have regard to the impression I have formed of the witness. The manner in which a witness gives evidence can, on occasions, be a guide to credibility and reliability, although care must be taken not to read too much into a witness's demeanour. For instance, apparent confidence, which may sometimes suggest reliability, may be bravado; hesitation, which may sometimes suggest lack of reliability, may be due to nervousness or may simply indicate that the witness is being careful to ensure their answer is accurate.
I have borne in mind that the process of giving evidence in a criminal trial can be a stressful experience that might affect the way in which the witness presents. I have also taken into account that a witness's age, cultural background, level of education, degree of sophistication and emotional temperament are matters that may affect the way in which they present and how they articulate answers. Of course, the time that has elapsed since the occurrence of the events in question and the impact of the delay on the witness's recollection is also a relevant consideration.
An important relevant consideration in this case has been whether the accused's evidence was internally consistent and consistent with the accounts he gave in the EROIs. Whether any inconsistency I find to exist affects the accused's credibility on essential facts will depend on the significance of the matter on which he has been inconsistent, and any explanation he may have for the inconsistency.
Bearing those matters in mind, I am entitled to rely on experience and common sense in assessing the accused's credibility and the plausibility of his accounts, both in the EROIs and in his testimony. Of course, it is not simply a choice of accepting all of his evidence or rejecting all of it. It may be that I accept part of his evidence, but reject other parts. What I have said about the assessment of the accused's evidence is subject, of course, to the principles I have outlined in respect of the presumption of innocence and the burden and standard of proof.
Circumstantial evidence
The State's case against the accused is circumstantial. That is, it depends on an inference being drawn, in each case, from primary facts established by the evidence. An inference is a logical deduction from such facts. It is not guesswork or speculation. Specifically, the State's case here depends on an inference being drawn, from the fact that a cannabis metabolite was found in the accused's urine sample, that he consumed cannabis.
I cannot draw that inference unless I am satisfied it is the only reasonable inference open on all of the evidence. If there is a reasonable hypothesis open on the evidence that is consistent with innocence, then I cannot be satisfied beyond reasonable doubt of the accused's guilt. In deciding whether I can draw a particular inference, beyond reasonable doubt, I must have regard to the whole of the evidence and the combined effect of the primary facts, as I find them to be. I am not to consider each piece of evidence in isolation or in a piecemeal way.
The evidence
Certificates of analysis
There is no dispute that the accused produced urine samples for the purposes of urinalysis on seven occasions, from 1 December 2015 to 22 December 2015. The laboratory reports, to which I have previously referred, were tendered by consent. There was no issue taken with the chain of custody in relation to the samples. The process for the collection, transfer and analysis of the urine samples was explained by Dr Cruickshank.
Dr Cruickshank
He is a medical scientist and is in charge of the clinical pharmacology and toxicology laboratory within PathWest, a government agency whose services include scientific analysis of biologically produced samples for forensic purposes. Specifically, the pharmacology and toxicology section of PathWest deals with the testing of urine samples for illicit drugs, referred to as urinalysis. The laboratories are accredited by the National Association of Testing Authorities (NATA). Testing is done in accordance with procedures that are consistent with the relevant Australian standard.
There are two stages to the testing. First, there is the screening test for a number of drugs and alcohol. There is a cut‑off level for each drug, below which the result will be reported as negative. One of the tests is for a cannabis metabolite, 11‑nor‑delta‑9‑tetrahydrocannabinol‑9‑carboxylic acid. For convenience, I will refer to it as THC, although that is commonly used to designate the active ingredient in cannabis, tetrahydrocannabinol, which, as was explained by Dr Grasko, is rendered inactive within the metabolite. The cut‑off level for the THC is 50 micrograms per litre (ug/L). If the result for the test is above 50 ug/L, it will be reported as 'confirmation required' and the sample will proceed for further testing for the metabolite. In those instances where further testing is done, an analysis report is produced which reports whether THC was, in fact, found in the sample and, if so, the concentration of that metabolite.
The laboratory reports for 1 December 2015 and 22 December 2015 include both the screening report and the final analysis report. Each report also refers to a creatinine level. Dr Cruickshank explained that part of the collection procedure involves a test at the point of collection to see whether creatinine is inside the sample collected. This is an indicator of the integrity of the samples, creatinine being a marker which is typically in urine and will indicate that the sample is, indeed, a urine sample. If the level of creatinine is less than 1.8 millimoles per litre (mmol/L), the sample is regarded as a dilute sample. The report states that a dilute sample increases the probability of achieving a 'not detected' result, and it is recommended that a repeat sample be taken. Dilution can result from the person drinking a lot of water before producing the sample. The effect of the evidence is that, where a sample is diluted, a 'not detected' result during the screening test cannot be regarded as a reliable indicator that the drug the subject of the screening is not present, hence the recommendation for a repeat sample.
For urine samples being screened for drugs for the Adult Community Corrections section of the Department of Corrective Services, Chain of Custody forms are completed. The relevant forms for 1 and 22 December 2016 were tendered as Exhibits 12 and 13. The Chain of Custody form reports the specific temperature of the specimen, read within four minutes of collection. The temperature also helps to establish the integrity of the sample. The sample is taken in a primary container, which will then constitute one of the samples that are sent to the laboratory. A portion of the sample from the primary container is poured off into a separate clean container. One of the samples then becomes the referee sample and the other one becomes the test sample.
A description is given in the Chain of Custody form of the colour of the urine. A lighter colour would tend to suggest that the person has drunk a lot of water and the sample is more dilute. On the other hand, if someone is dehydrated, the sample will become more concentrated, which I understood from Dr Cruickshank's evidence to mean that the colour will be darker. The colour of the urine gives some context to the creatinine level.
In relation to the sample taken on 1 December 2015, the Chain of Custody form referred to the collection being a 'difficult collection'[8]. Dr Cruickshank explained that this means it involved a longer collection time than usual. The temperature of the specimen on that occasion also tended to confirm that it may have taken longer than usual for the accused to produce the sample. The form also indicated that the minimum amount had been collected. In cross‑examination, Dr Cruickshank agreed that difficult collection of a minimum amount might be entirely consistent with somebody who has had difficulty going to the toilet at the required time.
The results for each certificate (Exhibit 14)
[8] Exhibit 12.
I have outlined these aspects of Dr Cruickshank's evidence to indicate ultimately that the information contained both in the analyst's reports and in the chain of custody forms is consistent with the samples, in fact, being urine samples and the findings that were made being reliable findings. The information that I must rely upon ultimately in respect of the level of THC in the samples from 1 and 22 December 2015 is in the final reports, not the screening reports.
The results for 1 December 2015 show, first of all, that, upon screening, a cannabis metabolite was detected and this, therefore, required confirmation. What that means is that there was more than 50 ug/L in order for the metabolite to be detected. Upon analysis, it was found that there was THC in the sample in the amount of 64 ug/L. The creatinine level was 24.3, well above the 1.8 cut‑off which is necessary in order for the sample to be regarded as a genuine urine sample.
As for the results from 3 December 2015 until 21 December 2015, being on 3, 8, 10, 14 and 21 December, the screening results were negative. Therefore, there was no further analysis to detect whether there was THC within each of those samples. The creatinine level for the sample on 3 December 2015 was 3.3, which is above the cut‑off that I have previously referred to. However, the creatinine level for the samples on 8, 10 and 14 December 2015 was 1.4, 1.3 and 1.5 respectively. Those samples, therefore, were reported as being dilute. For that reason, it is not possible to draw any conclusion from those samples as to whether, in fact, there may have been THC in the accused's body or, indeed, in the sample that was provided.
The sample from 21 December 2015, which also returned a negative result, showed a creatinine level of 21.3, which is well above the 1.8 cut‑off. However, Dr Grasko's evidence was that, as the cut‑off level for screening of a cannabis metabolite is greater than 50 ug/L, there is a possibility that there was THC in the sample at a level below 50 ug/L. This has significance when one comes to consider the result for 22 December 2015. That sample gave a result showing that a cannabis metabolite was detected on screening. As I have already said, that means that there must have been more than 50 ug/L detected, and the report showed that confirmation was required. When the subsequent analysis was conducted, the THC level that was found within the sample was in fact 38 ug/L. That is, less than the 50 ug/L required on the screening. So far as that discrepancy is concerned, Dr Grasko indicated that the analysis process is more accurate, and all that the screening result really demonstrates is that there was sufficient THC to give what he referred to as a 'not negative' result (which I will refer to as a positive result) that required confirmation. In any event, as Dr Grasko confirmed during cross‑examination by counsel for the accused, one has to focus ultimately on the result in the final report. The creatinine level for that particular sample was 27.5 mmol/L.
As I have indicated, the result for 21 December 2015 needs to be considered in the context of the finding for 22 December 2015. What I mean by that is, according to Dr Grasko, the fact that there was not a positive screening result on 21 December 2015 does not mean that there was no THC in the sample. All that it means is that any THC in the sample was not at the cut‑off level, thus giving a 'negative' result. The point is that the result on 22 December 2015 should not be regarded as some anomaly. It is possible that on 22 December 2015 there was a spike in the level (which I will talk about in a moment), which resulted in the screening process showing a positive result on that day, even though on the previous day it did not.
This particular point that I am making is relevant, both from the point of view of the prosecution, in establishing that the result of 22 December 2015 is genuinely indicative of the accused having used cannabis, and from the point of view of the defence, in its submission that the result for 22 December 2015 can be accounted for on the basis that there was residual THC within the accused's body from the use by him of cannabis before he was released on the supervision order, so that it was not in contravention of the supervision order.
Before I come to deal with Dr Grasko's opinions about these results, I should outline the provisos outlined by Dr Grasko, particularly during cross‑examination by counsel for the accused, that apply to the interpretation of the results. The first is that the figures that one relies on in interpreting the results are not absolute. There has been research that demonstrates, for instance, that the level of THC that one might expect in a person's body, and in urine samples after it has been excreted from fat within the body, is variable. THC will accumulate at different rates in different people and will be excreted at different rates by different people. It accumulates in the fat. It is excreted from the fat and, ultimately, excreted from the body in urine.
The level that one might see in a urine test will be affected by a number of factors. One such factor is the potency of the drug that was consumed in the first place. Cannabis can contain different levels of THC, depending on how it is grown. Other factors include how much cannabis was used, the variability of uptake into the fat tissues by particular individuals, the variability of excretion between individuals and, of course, the time that has elapsed since the drug was used. Dr Grasko agreed in cross‑examination that it is not possible to work backwards in order to determine accurately, from a positive cannabis result in a urine test, when the cannabis was used. Further, the rate of excretion from fat into the urine ultimately is not linear. It is possible that the level that is found in one urine sample on one day is exceeded by the level that is found in a urine sample the next day, even though one would expect, in general terms, that there would be a diminishing of the levels. There is in general terms a diminishing of the levels, but there can be spikes along the way, which will result, for instance, in a subsequent sample having a greater level of THC than in an earlier sample.
Notwithstanding these variables that I have been referring to, which prevent accurate calculation backwards to a time of use, there is a range of periods within which one would expect, as a matter of experience and research, that cannabis would be excreted from the body and which enables, therefore, a range of times to be given as to when the cannabis is likely to have been used. As will emerge shortly from a summary of the evidence given by Dr Grasko, it is the case that the degree to which THC will persist in the body as residual THC and be accumulated with newly acquired or ingested THC will depend on whether a person has been an intermittent user of cannabis or a heavy user of cannabis. I will say something more about what Dr Grasko said about those matters below.
First I need to say something about the prison urinalysis results which were tendered. It is not necessary for me to go to the details of those results, because, although there was a positive result in July 2015, Dr Grasko agreed that one cannot draw any reliable conclusions from those results about the extent of use of cannabis by the accused while he was in custody and during the period over which the testing was done. If it had been possible to make that sort of determination, it could have been relevant to an assessment of the accused's evidence about the extent to which he used cannabis while in custody.
Dr Grasko
Dr Grasko is a consultant toxicologist at PathWest. He is also the head of toxicology at Clinipath Pathology, a private laboratory. He is a medical doctor who has specialised in clinical pathology and toxicology. Following specialty, he completed a post‑graduate diploma through the University of Cardiff in toxicology.
Dr Grasko was called to give his opinion about potential scenarios that might explain the urine test results for the accused from 1 December 2015 to 25 January 2016, although, ultimately, the focus in the trial was only on results from 1 December 2015 to 22 December 2015.
Dr Grasko explained the screening process that I have already spoken about. He clarified that it is generally an immunoassay, and the test is designed to detect any molecule that might resemble one of the classes of drug that is listed on the report. If it does detect a molecule, whether it be that particular drug or one that resembles the molecule of that particular drug, then it will show, as Dr Grasko described it, as 'not negative'. In fact, the way in which it is reported is that confirmation is required. So a screening test could detect any substance that might resemble one of the compounds that is listed. The levels that are required to be met as cut‑off levels before a result will be reported as a positive result have been devised in a way, as Dr Grasko put it, to allow the donor the presumption of innocence.
So far as creatinine levels are concerned, Dr Grasko said that the level of 1.8 mmol/L gives a level of confidence that the result that is being produced is valid. So, anything less than 1.8, he said, might generate a result, but the result would have some level of uncertainty. However, if he received a sample that had a creatinine concentration of less than 1.8, it would still be tested if the screening result was positive. In those circumstances, the fact that the creatinine result was less than 1.8 would not make a difference. In the context of this case, of course, that is somewhat academic, because the creatinine levels were above the cut‑off for the two samples that are the subject of the charges, and, in respect of the ones that were reported as dilute, they were below.
In terms of there being potentially false positives, Dr Grasko said there are some five or so different cannabis metabolites. The molecule that is detected in the screening test is one that is not particularly water‑soluble. But there is another molecule that attaches to it, namely carboxylic acid, which is soluble. That molecule makes the THC molecule inactive.
Ultimately, the real significance of Dr Grasko's evidence was to consider the various scenarios that were put to him to arrive at an explanation for the positive results on 1 December 2015 and 22 December 2015. The scenarios that were put to Dr Grasko were derived from what the accused said to the police in his EROIs and the evidence that he gave in court. At the time that Dr Grasko gave his evidence, the accused had not yet given his evidence, but the scenario that the accused ultimately gave was put to Dr Grasko during cross‑examination by the accused's counsel.
The various scenarios put to Dr Grasko were as follows.
Firstly, that the accused had used cannabis in prison, and that the last time that he used cannabis was on 13 or 14 November 2015. On that occasion, he used 10 to 12 cones of cannabis. The other scenario was that the last time that he used cannabis in prison, having previously used in prison, was on 17 or 18 November 2015. Again, on that occasion, he used 10 to 12 cones. Those two scenarios were then related to the findings both on 1 December 2015 and 22 December 2015.
Another scenario that was put to Dr Grasko was that the accused had been present while other people were smoking cannabis at a time proximate to 22 December 2015. That scenario was intended to address the possibility that the positive result on 22 December 2015 may have been from his having passively inhaled cannabis.
Finally, another scenario was put to Dr Grasko on the basis that, in the week leading up to his release from prison on 24 November 2015, the accused had used some 30 cones of cannabis per day on each day. Dr Grasko was asked to consider the possibility that that might explain the results both for 1 December 2015 and 22 December 2015.
There is a degree of complexity to the way in which the evidence was adduced, because of the fact that it was necessary to take Dr Grasko through the various scenarios. Adding to that complexity is that Dr Grasko was asked to consider three different degrees of usage on the part of the accused.
The first was that the usage on 13 or 14 November 2015, or 17 or 18 November 2015, whichever dates one used as the departure point, was a one‑off use. In other words, that he had not been using prior to that while he was in prison.
The second scenario was that the accused was an intermittent user. The difficulty with the use of that description, however, is that Dr Grasko used it in a particular, technical way, based on studies where a person was considered to be an intermittent user if they used one or two cigarettes (or cones or bongs) at a time, about three to four times a week. I would note that, in lay terms, 'intermittent user' might encompass anyone who uses from time to time. However, as I say, Dr Grasko was considering the scenario by reference to that degree of usage, derived from studies.
Finally, Dr Grasko was asked to consider a scenario in which the accused had been a heavy user of cannabis while in prison. Again, Dr Grasko tended to use a technical definition of 'heavy user', derived from a 1985 study, in which a person who used 56 g of cannabis or more in a month was regarded as a heavy user. Someone who used 28 g per month was regarded as a moderate or regular user. Someone who used less than 7 g per month was described as an irregular or intermittent user. As for what those weights might mean, in terms of the number of cigarettes or cones or bongs that one might need to use, Dr Grasko explained that an average joint or cigarette is considered to be 0.5 of a gram, and an average bong is considered to be 0.25 of a gram.[9] Finally, Dr Grasko, at times, used the term 'extended use' to describe what a person who might be regarded as a heavy user may have done, and that, he said, meant over about a six‑month period.[10]
[9] Trial ts 54.
[10] Trial ts 54.
Against that background, I turn to a summary of what Dr Grasko had to say about these matters.
So far as the result on 1 December 2015 is concerned, which is the 64 ug/L of THC, on the basis that the last time on which the accused had used cannabis was on 13 or 14 November 2015, and that he used 10 to 12 cones on that occasion, he said that he would not expect that the result would have been achieved if it had been a single use.[11] In other words, that scenario would not account for the result that appeared on 1 December 2015 if it involved a single use.
[11] Trial ts 51 ‑ 53.
So far as an intermittent user was concerned, he initially said that it would not be plausible to give a positive result of that kind on 1 December 2015, if the last occasion on which the accused used was on 13 or 14 November 2015. However, his evidence in respect of that changed later in cross‑examination.
In relation to a heavy user, he said that it would be credible for a heavy user to test positive on 1 December 2015 if it was a result of extended use. That would be because of the amount of THC that would have built up in the person's body, which would allow for an extended period of excretion.
Staying with the result on 1 December 2015, on the basis that the last date of use was 17 or 18 November 2015, and that, on that occasion, the accused used 10 to 12 cones, Dr Grasko said in examination‑in‑chief that the result would be possible for someone who had engaged in a single use. However, it would be an extreme result, because you would expect 90% of the THC to have been eliminated from the body within five days. He said that in extreme cases, if the dose is really large, and, of course, depending on potency and so on, you might extend the excretion period to 14 days. Generally speaking, however, you would not expect to still show a positive test within seven days.
Obviously, in respect of intermittent use, on the evidence that Dr Grasko gave, it would be possible for the result on 1 December to have been residual THC from a use of 10 to 12 cones on 17 or 18 November 2015. Similarly for heavy use.
I do not propose to refer further to heavy use, because in respect of each of the scenarios put to Dr Grasko, he agreed that he could not exclude the possibility that the positive results on both 1 December 2015 and 22 December 2015 were for residual THC from heavy use before the accused's release from prison.
As for passive smoking, Dr Grasko said in examination‑in‑chief that the result on 22 December 2015 would not have been expected in an intermittent user, who had been using only until they were released from prison on 24 November 2015.[12] That is because you would not expect them to have a build‑up of THC within their body at such a level as to show a detectable result on 22 December 2015 simply from being present while other people were smoking cannabis. In respect of someone who was a heavy user, Dr Grasko said that such a person might be able to absorb enough THC from passive smoking just to go over the cut‑off level.[13]
[12] Trial ts 59 ‑ 61.
[13] Trial ts 61.
In cross‑examination, Dr Grasko was asked about the result on 1 December 2015 on the basis that the accused had last used on 13 or 14 November 2015, and that, on that occasion, he used 10 to 12 cones.[14] Dr Grasko responded as follows:[15]
Question: If I understood, that possibly 1 December could be the result of residual use, 10 to 12 cones, in an intermittent user?
Answer: That's correct.
Question: For both 13, 14 or 17, 18 November date ranges?
Answer: That's correct.
[14] Trial ts 83 ‑ 92.
[15] Trial ts 89.
Dr Grasko then said that he definitely could not exclude a residual result from use on 13 or 14 November of 10 to 12 cones if the accused was a heavy user.[16] As I said earlier, that evidence was not consistent with what Dr Grasko had said in his evidence‑in‑chief, but I accept ultimately that that is the final opinion that he expressed in relation to that matter.
[16] Trial ts 92.
Further in relation to the result of 1 December 2015, Dr Grasko was asked whether, if the last use by the accused was on 17 or 18 November 2015 and the accused had used 10 to 12 cones, the result could be a residual result from that use, without the accused having used after his release on 24 November 2015. Dr Grasko's evidence was that he could not exclude that possibility, even in relation to a single use. So far as intermittent use was concerned, again, he could not exclude that possibility.
Dr Grasko was then asked, in relation to 22 December 2015, whether the result on that day of 38 ug/L could be accounted for by his use on 13 or 14 November 2015 of 10 to 12 cones, without any further use of cannabis after that. In relation to a single use, he said that it was beyond his experience, both in respect of the literature and his experience as a toxicologist, to find such a positive result. In that regard, I took his evidence to mean that he did not consider that scenario to be a possibility, or, at least, a reasonable possibility.
In relation to an intermittent user, in the way in which he had defined that term,[17] Dr Grasko said that he would not be able to exclude that scenario totally, but that, in his view, it would be outside of what one would expect, and that one would not be able to accumulate enough THC to give a positive result on 22 December 2015. I take his evidence, ultimately, to mean that for an intermittent user (being someone who used one or two cones three to four times a week), who last used on 13 or 14 November 2015, and who used 10 to 12 cones, he would not expect there to have been sufficient residual THC to account for the result. Of course, in respect of a heavy user, he said that he could not exclude that it was a residual result.
[17] Trial ts 90.
Next, in relation to the result on 22 December 2015, on the assumption that the last use by the accused was on 17 or 18 November 2015, and that he used 10 to 12 cones, Dr Grasko started by saying that he could not definitely exclude it, but ultimately he was of the view that you would not expect there to be a positive result if it had been a single use.[18] I take his evidence to mean, in that regard, that it would not be a reasonable possibility that such a result would occur.
[18] Trial ts 94.
Finally, Dr Grasko was asked about a situation in which, over the week before his release, on 24 November 2015, the accused had used 30 cones of cannabis per day. In that regard, Dr Grasko indicated, in respect of each possibility, that is, single use, intermittent use and heavy use, that it was possible to expect a residual result on both 1 December 2015 and 22 December 2015 without there having been any further use by the accused after his release on 24 November 2015. On the assumption that it was 10 cones a day instead of 30 cones a day, he said that, although he considered it to be unusual, he could not totally exclude the possibility that enough THC could have accumulated in his system during that period to account for a residual result on 1 December 2015 for an intermittent user.
As for the result on 22 December 2015, on the same assumptions, that is, 30 cones a day for the week leading up to his release, Dr Grasko appears to have accepted that it was plausible the result was for residual THC. Although he was not asked specifically in relation to that for an intermittent user or a single user, the answer that he gave in respect of 10 cones a day, namely that a residual result was plausible for an intermittent user, suggests that he must have regarded a residual result as plausible for an intermittent user if the amount used was 30 cones a day.
Before moving on to the significance of that evidence, having regard to what the accused has said about these matters, and my assessment of the accused's evidence, it is necessary for me to refer to what Dr Grasko had to say about the amounts that were being suggested. First of all, in respect of an amount of 30 cones a day, Dr Grasko was asked whether he considered that to be a realistic amount for someone to use, in terms of intoxication. He said it would be extreme. His answer was:[19]
[A]s I said, I would not expect someone that was even an intermittent user to be able to consume that amount of cannabis.
[19] Trial ts 116.
He also gave evidence that, in respect of an amount of 10 to 12 cones in the one session, if it was someone who was a naïve drug user, in other words, someone who did not have experience with the drug, he would expect the person to be comatose. In any event, his expectation was that there would be a significant degree of intoxication from that amount of drug. He said that a person using that amount of drug would, in his view, be stuporous.
Finally, Dr Grasko was asked about how the results for 1 December 2015 and 22 December 2015 might be accounted for if the accused had not used cannabis prior to being released from prison. The obvious alternative explanation for each of the results is that the accused used cannabis in a period before he gave the urine sample that produced the result. He was asked the following questions by me:[20]
Question: In relation to the reading on 1 December 2015 of the 64 micrograms, are you able to offer any opinion about that, putting aside any question about whether Mr Ugle might have used before he was released? If on the assumption that that was not the case, in terms of explaining a reading of 64 micrograms per litre, how many days before that he would have to have used cannabis before you would get to that sort of level?
Answer: So that would be difficult to sort of quantitate. I guess it's not a huge amount. You would probably still need to assume that he had taken it within one or two days of the ... You still would not expect him to have taken it within one or two days of producing the sample. So that would have been more than that. So probably at least more than five days, once again, that you would expect him to have excreted the majority of the metabolite by that stage.
Question: Would that be a small amount?
(That was a question relating to the amount that would have been used.)
Answer: In the context of someone with a background, or just as a once‑off user, so as a once‑off use, you would expect a reasonably small amount, yes.
Question: And someone who might have been an intermittent user before?
Answer: Yes, you would also expect, I guess, also to be a small amount, if he had used it within a couple of days, but I guess the time lag to get there might be extended, so you might expect that the last use to be further back than a one‑off use.
[20] Trial ts 118 ‑ 121.
In cross-examination, when Dr Grasko was asked about this, he gave the following answers:[21]
Question: And on the question that his Honour asked you about, in terms of 1 December 2015, and the 64, and you said if it was a one‑off use of a reasonably small amount in the history of an [intermittent] user, the time lag to get there would be extended. Your answer was expected to be further back, so further back than the five days?
Answer: Yes.
Question: Do you have any idea what the further back would be? Are we talking two, three, four, five days?
Answer: No. It would be difficult to know. I guess you would probably use that in a context of an intermittent user, so you would be looking at the 10-day, potentially, the 10‑day mark.
Then I asked him for clarification in relation to that issue:[22]
Question: In terms of the range of days, though, the number of days?
Answer: Well, it could, yes. So basically it would be the same range that we would expect for an intermittent user. So you know, it could be anything from one day to ten days, but generally, because of the level, you would be expecting about the three to four level, at least three to four days prior.
[21] Trial ts 121.
[22] Trial ts 122.
Dr Grasko's evidence in that regard appears to put the consumption of cannabis that could have resulted in the finding for 1 December 2015 within the period after the accused was released on 24 November 2015, if it was not a residual finding. In other words, if the accused used cannabis within that period, that could account for the result on 1 December 2015.
Coming to 22 December 2015, Dr Grasko gave the following answers to my questions:[23]
Question: Have I understood you correctly that you accept that if Mr Ugle had smoked cannabis six days before the reading of 22 December 2015, that could account for the reading of 38?
Answer: Yes. So for a small amount, six days before would potentially give you a positive result.
Question: And how close to the 22nd could you get before you would say that that was unrealistic?
Answer: So I guess because it's such a low amount, you would expect the majority of the THC to be excreted, so really, anything less than three days would be unusual.
[23] Trial ts 117.
The last result before 22 December 2015 was on the previous day. That was a negative result and could be relied on because the creatinine level was well above the cut-off. However, as I explained before, the result of 21 December 2015 does not exclude the possibility that there was THC in the accused's body that was below the threshold level, and it is possible the result of 22 December 2015 was a spike in the level of THC that was already present in the accused's body. The last known negative result that can be relied on before 21 December 2015, because the creatinine level was above the cut-off level, was on 3 December 2015.
So, the reading on 21 December 2015 does not negate Dr Grasko's evidence that the consumption of cannabis that may account for the positive result on 22 December 2015 could have happened within a period of six days before that date. That would be within a period of time after 14 December 2015, which was a negative result, but from a dilute sample, so that it cannot be relied on. In any event, there is no suggestion that the result of 21 December 2015 necessarily would exclude Dr Grasko's evidence about the period within which the accused could have used cannabis to give the result on 22 December 2015.
To sum up, as far as the evidence about urinalysis results is concerned, there appear to be two possibilities: that the levels that were detected, both on 1 December 2015 and 22 December 2015, were the result of the accused having used cannabis within a short time before he gave the urine samples that gave those results, or they were residual results. I have outlined what Dr Grasko said in respect of both those matters.
I turn, then, to what the accused has had to say about these matters.
Interview 3 December 2015
After the positive result was received for the 1 December 2015 sample, the accused was interviewed by police on 3 December 2015. He admitted that he had given a sample of urine for testing on 1 December. He said that he could not explain the positive result from that test. There was then the following exchange about his use of cannabis while in prison:[24]
[24] EROI ts 9 (3 December 2015).
Question: When was last time you smoked?
Answer: Would have been in Casuarina.
Question: Okay. When? Can you give us an estimated time or an exact time or an exact date?
Answer: 24th, I got out … I'd say the 13th. 14th, if that.
Question: … 10 days before you got out.
Answer: Yep.
Question: 10 or 11 days before you got out.
Answer: Yep.
Question: … And then we've had another 7 days since then.
Answer: Yep.
Question: About 17 days.
Answer: Yep.
Question: … Have you smoked anything since you've been out?
Answer: No.
When asked what his understanding was as to how long cannabis stayed in one's system, the accused said that it varies with different people, according to what he had heard through prison chit‑chat. The police returned to the question of his cannabis use in prison as follows:[25]
Question: And whilst in prison you smoked cannabis as well?
Answer: Yes.
Question: … How often would you have smoked cannabis?
Answer: Mmm, maybe once a week if I could afford it.
[25] EROI ts 10 (3 December 2015).
The police then returned to the question of the last occasion on which he smoked cannabis in prison:[26]
[26] EROI ts 10 ‑ 11 (3 December 2015).
Question: And you're saying that your last smoke of cannabis was roughly 17 days ago?
Answer: Yes.
Question: … [W]hat would that have been? Would that have been a joint or a bong or cone or what would it have been?
Answer: Mmm. A few bongs, cones or what, however you want to imply.
…
Question: On that day?
Answer: Yep.
Question: So how much would you have smoked on that day?
Answer: Ten, 11, 12 cones, maybe.
Question: In a day?
Answer: Yeah.
Question: Constant smoking then.
Answer: Mmm.
The accused went on to explain that this was due to the fact that he was going to court in relation to the dangerous sex offender proceedings, and that he was liable to get out. He said that the stress got the better of him. When asked whether cannabis was something that he used to deal with stress, the accused said, 'In a sense, I suppose.' He went on to explain that gaol was not very easy.
In respect of the 22 December 2015 sample, the accused was again interviewed by the police, on 24 December 2015. He had been charged, by that stage, in respect of the earlier positive result. He admitted providing the urine sample on 22 December 2015. He indicated that he had no idea how the positive result for that day had come about. In fact, at various points in time during the interview, he suggested that the result was not true. He seemed to indicate that he believed it was all lies. He said, 'I'm innocent, this is lies.'[27]
[27] EROI ts 12 (24 December 2015).
However, when asked specifically, again, about when was the last time that he had smoked, he said that he had not had a smoke since he left Casuarina. When he was asked, 'So, do you recall when the last time was in Casuarina?', his answer was, 'Maybe the 18th, the 17th.'[28] It can be seen immediately that that was different to the answer he gave in his interview on 3 December 2015. The questioning continued:
[28] EROI ts 7 (24 December 2015).
Question: Maybe the 18th or 17th?
Answer: Maybe, I'm not quite sure.
Question: So from that, do you mean of November?
Answer: Yes
Question: So about approximately one week before you left?
Answer: Yes
Question: And what quantity of cannabis did you have that time?
Answer: I don't know, a few.
Question: A few? And a few ‑ what do you mean by a few?
Answer: I don't know. A few bongs.
Question: A few bongs, okay. What was your cannabis use like in Casuarina?
Answer: I don't know. Off and on. Off and on.
Question: Off and on. Okay. Would you smoke every week?
Answer: Yes.
Question: So, by that, I take it to mean it was quite regular, would that be fair?
Answer: Yes
Question: What made you stop on the 18th or 17th or thereabouts?
Answer: Because I was going to court to get out.
Question: Okay. Strong motivation?
Answer: Yes
When asked if he had been with people who smoked cannabis, he said that his partner did not smoke cannabis.[29] The questioning continued:
[29] EROI ts 11 (24 December 2015).
Question: Have you been around anyone that's used cannabis since you left prison?
Answer: I've walked through houses, and they have been smoking, but that's about it.
Question: Okay, just …
Answer: Walked straight through and straight out.
Question: When was the last time that happened?
Answer: They're smoking … yesterday.
Question: Yesterday?
Answer: I think, or the day before.
Question: What do you do when you go into a house where people are using cannabis?
Answer: I walk out.
He was asked further about it and he said that it might have been 'yesterday or the day before'.[30] The questioning continued:
Question: Okay. So tell me about that.
Answer: Just walked into my niece's house and they were smoking bongs, so I just went out.
Question: How long were you there for?
Answer: A couple of minutes
[30] EROI ts 11 (24 December 2015).
In considering this aspect of the interview, I have regard to what Dr Grasko said about the study that had been done in respect of passive smoking. He said that it had involved exposure within an enclosed environment for a period of three hours, and the amount of smoke that was evident and that was, therefore, being passively smoked was such as to cause the person who was the subject of the study to have to put on glasses, because of the effect on their eyes. Clearly, that is a very different scenario to what was described by the accused in his interview about the occasion that he had walked through his niece's house.
I should say, finally, in relation to the interview on 24 December 2015, that the accused indicated that he was aware of the level of the first test being 64. He said that, since then, he had given three or four 'clean piss tests', as he described them.[31] He said they were watered down and that, eventually, he gave a normal one. What he said there was consistent with what he admitted also in evidence, that he deliberately drank large amounts of water to water down or dilute the samples that he gave after the positive result on 1 December 2015, until he was told by his Community Corrections Officer that he was to stop doing that.
[31] EROI ts 15 (24 December 2015).
I will come back to the significance of that later.
The accused's evidence at trial
The accused gave evidence in the trial, and he was cross‑examined. He gave evidence‑in‑chief that he was released from Casuarina Prison on 24 November 2015. The following questions were asked by counsel, and answers given by the accused:[32]
Question: When was the last time that you smoked cannabis while you were in custody?
Answer: Probably the week before I got out.
Question: So can you tell us about your cannabis use in the week before you got out?
Answer: It was quite frequent, like.
Question: So you were released on the 24th. When was the last time you actually smoked cannabis?
Answer: 23 November.
Question: So the day before you were released?
Answer: Yes
[32] Trial ts 139.
It can be seen, therefore, that the accused's evidence went from saying that it was 'probably the week before' he was released from prison that he last smoked cannabis, to specifically identifying the day before he was released as the last occasion. The apparent inconsistency might have been explained as a looseness of language in the accused's first answer, if this had been the only occasion where apparent uncertainty transformed into a positive recollection within the space of a few questions.
The accused went on to say that he had smoked at least a 'ball' of cannabis the week before he was released. He said he was given the 'ball' for a favour he had done for a fellow prisoner. He said he received the ball on either 17, 18 or 19 November 2015. He said it was in a balloon, but he did not know how much there was by weight. He said he gave some out, but smoked most of it. He said he was 'not pretty familiar' with the dates when he started smoking the cannabis, but that he had smoked 'a week strong' before he was released on 24 November 2015. He said he had just 'continuously smoked day and night all the way through breakfast, lunch and dinner'[33]. He said that he probably had his first smoke from that ball within the hour of getting the cannabis. He went on to say, again, that the last time he smoked the cannabis was on 23 November. When asked if he remembered at what time, he said:[34]
I think it was lunchtime. It was lunchtime ‑ lockdown ‑ because we were watching a movie, midday movie.
[33] Trial ts 140.
[34] Trial ts 141.
This is another example where the accused, in my opinion, went from language suggesting uncertainty to a positive recollection.
He said that he smoked continuously for 'at least a week straight'. He said that he smoked in his cell, using the inner cardboard cylinder of a toilet roll. As I understood his evidence, he would put a hole in the cardboard cylinder, put cannabis in it, block the ends and then smoke from the hole. He was then asked if he knew how many cones he was smoking a day. His answer was:[35]
Maybe 20, 25 a day. Maybe 10 in the morning before unlock, before 7.30. And then lunchtime I come back from work, get locked down for lunch to 1.30. 12 to 1.30 is the lockdown hours in Casuarina. And then at night time we get locked up at 5.30, having another smoke. 10 cones at every sitting.
[35] Trial ts 142.
In respect of his prior use in prison, he said in evidence‑in‑chief:[36]
[36] Trial ts 142 ‑ 143.
… I was still smoking on and off all the time through my prison sentence.
… Whenever I can get it, like. Plus I had a cellie who is tied into some people so I was pretty ‑ smoking nearly every second or third day.
Question: So when you say you were smoking, sorry, every second or third day, over what period of time are we talking about?
Answer: For months.
Question: For months?
Answer: Yes, for months. I just kept, it was an endless supply.
Question: Okay. And which months are you speaking about?
Answer: Say a whole year.
Question: Which year are you speaking about?
Answer: 2015, 2014, 2013, 2012
Question: So throughout your whole last prison sentence?
Answer: Yes. Yes. Through my whole eight years.
During that aspect of the accused's evidence, I formed the view that he was plucking figures out of the air. In essence, making the evidence up as he went along. I have no confidence that he was actually recalling facts or circumstances based on reality.
I will shortly outline a number of specific factors that reflect adversely on the accused's credibility. But, in light of the way in which the accused's evidence developed over the course of his evidence‑in‑chief, the internal inconsistencies that emerged during that evidence and the impression I formed from listening to and watching him, I would not rely on anything he said about these matters without support from elsewhere. In relying on impressions, I have been mindful of the matters I referred to earlier in discussing the limitations of relying on a witness' demeanour. It is a combination of factors to which I have referred that have led to my assessment of the accused's credibility.
That assessment was reinforced during cross‑examination of the accused. I do not intend to go into a great deal of detail of what he said in cross‑examination, but I will come to some matters shortly.
Assessment of the accused's evidence
I will now deal with what will be obvious from what I have outlined, that is, that the accused's account in his evidence‑in‑chief was inconsistent with what he said to the police in the EROIs to which I have referred earlier. He was asked to explain the inconsistencies in his evidence‑in‑chief. His evidence was that, when speaking with the police, he tried to minimise the amount that he had been using because he thought he would get in trouble. He said he tried to 'not make it sound that bad'. He went on:[37]
If I was a drug‑fucked person in jail, you know, what sort of person would I be on the outside? So I tried to lighten it.
[37] Trial ts 143.
The irony of that explanation, of course, is that it recognises the implausibility of someone who is such a heavy user in prison, as the accused described himself, suddenly becoming totally abstinent upon release. His colourful description of 'drug‑fucked' also acknowledges that the kind of usage he has now described in evidence would have had a significant impact on his functioning within the prison. In my opinion, it is implausible that that would have gone unnoticed.
In cross‑examination, he was asked about his employment. He said he worked in the learning centre, where he did some construction and cleaning. He said that there would be a few staff and a few officers at the learning centre where he was working.[38] In my opinion, one would have expected that someone in authority would have noticed the effects of heavy use of drugs by the accused, if, indeed, the accused was using heavily. He was reminded that, in his interview, he had said that a couple of cones would mellow him out. He agreed, and he said what he meant by that is 'three or four'[39]. Although he initially claimed, when cross‑examined about the effect of 30 cones a day upon him, that it would not really make him intoxicated, because one becomes accustomed to it,[40] he then went on to say that smoking 10 cones for breakfast would make him stoned, and that he went to work in prison stoned, although he claimed that those in authority would not pay much attention to him, and that he used tricks such as putting Visine eye drops in his eyes to reduce the redness. I found his evidence, in respect of these matters, unconvincing and contrived.
[38] Trial ts 147.
[39] Trial ts 164.
[40] Trial ts 166.
I accept that the accused consumed cannabis on occasions when he was in prison. Clearly, the positive result in July 2015 supports that. He may well have used tricks to avoid detection. I have no doubt that he did, on occasions, drink substantial amounts of water to dilute his samples in order to defeat urine tests for drugs, as he claimed in his cross‑examination to explain why he would not be detected and why he would not fear being detected. It is also something he did while under the supervision order in December 2015, as I have already mentioned, although he claimed that his deliberate dilution of samples during that period was to avoid detection of residual amounts in his system from his binge in his last week of incarceration.
It may also be that when he obtained cannabis in prison, on occasions, it was for favours, as he described, and it may be that the person he nominated in evidence, reluctantly during cross‑examination, was someone who had assisted him to obtain cannabis in prison. However, I have the distinct impression that the accused has weaved elements of truth from past experiences into a fabricated story about his cannabis use towards the end of his incarceration, in an attempt to give it plausibility.
He gave evidence after having heard Dr Grasko's evidence. During the course of his evidence, he spoke about having heard that urinalysis readings can spike. He gave that evidence in the context of explaining why he had proceeded to dilute samples by drinking excessive amounts of water after the first positive result on 1 December 2015. I consider that his evidence in respect of that matter sounded contrived in order to fit with what Dr Grasko had said about potential spikes resulting from the variability of excretion of THC from the body.
As I noted earlier, there were times when the accused's evidence went from lacking specificity or indicating uncertainty, to being very specific and firm about the same matter within the space of a few questions. In short, I do not believe the accused's evidence that he was using cannabis heavily for most, if not all, of his time in prison over a period of eight years. Nor do I believe his evidence that he used on a daily basis, whether it be 10 cones a day or 30 cones a day, or anything in between, in the last week before he was released on the supervision order. The manner in which the accused gave his evidence in respect of these matters had an air of contrivance to maximise the impression that there would have been a significant amount of residual cannabis metabolised in his system when he was released on the supervision order.
There are several reasons for rejecting his evidence that he smoked substantial amounts of cannabis every day in the last week of incarceration.
Firstly, it is inconsistent with what he told the police. His explanation for not telling the police what he now says is not logical and is counter‑intuitive, as he was clearly trying to suggest to them that there was residual cannabis in his body from when he was in prison. The problem was that he did not have the expert opinion available to him at that time as to the plausibility of various scenarios. The accused admitted that, after the positive reading from 1 December 2015, he deliberately drank large volumes of water, as I have already indicated, until he was told by his Community Corrections Officer that he had to stop doing that. If he truly believed that there may be residual THC in his body that may continue to be excreted in subsequent samples, the obvious thing to have done would have been to elaborate further to the police and explain that there may be further positive results in order to forestall any possible suggestion that he was using cannabis while under the supervision order. Instead, his admitted deceptive conduct in diluting samples suggests that he was trying to conceal cannabis use while he was in the community.
The second reason for rejecting his evidence is that the amount of cannabis he described using, ranging from 20 to 30 cones, is likely to have rendered him very intoxicated, if not stuporous and potentially comatose, as described by Dr Grasko in his evidence.[41] It may be that, as someone who had experience with cannabis, he would not be rendered comatose, but, on my assessment of the expert evidence, it is inconceivable that he would have been able to function normally, and that his state of intoxication would not have been noticed. As I have said already, his evidence that he was trying to minimise the amount of drugs that he used in what he said about his drug usage when he spoke to the police, because he did not want them to have the impression that he was 'drug‑fucked' while in prison, indicates that he knows he would have been substantially intoxicated by the amount of drugs he now refers to.
[41] Trial ts 113.
Thirdly, his account of drinking great volumes of water every morning, in order to achieve a dilute urine sample if tested while in prison, lacked plausibility and evoked a nonsensical scenario of someone alternating between cones of cannabis and glasses or other containers of water on a constant basis, until he had finished the cannabis that he was consuming at that time.
Fourthly, it beggars belief that smoking up to 10 cones in one session would not have left some evidence of use that might be detected in his cell, let alone on his person.
Fifthly, his evidence in respect of the amounts he used during that week was inconsistent. Indeed, there were a number of inconsistencies in his evidence. From saying he used 20 to 25 cones a day, he went on to say it was 30 cones. From saying in evidence‑in‑chief that he had previously smoked cannabis nearly every second or third day, he went on, in cross‑examination, to say it was nearly every day, and, at one point, that it was every day of the whole of his term of imprisonment. From saying that he had used 'for months', when asked over what period he had used cannabis, he went on to say, within the space of a few questions, that it was a whole year, then that it was every year from 2012 to 2015, and then that it was during the whole eight years he was in prison.
Finally, I do not accept that the accused would have been prepared to engage in such reckless behaviour as he described, understanding that it might put in jeopardy his release on a supervision order if he was caught. In my view, he has acknowledged that he had that understanding. It is inconsistent, in any event, with what he told police on 24 December 2015, when he said that he stopped using on 17 or 18 November, although he was not sure of the date, because he was going to court to get out. He agreed that he had a strong motivation to stop.
In my opinion, the account the accused gave in his interview of 3 December 2015 is likely to be the closest to the truth about his cannabis use while he was in prison. It was closer in time to when he was released from prison, and he would have had a better recollection at that time of when his last use was than he did when he was interviewed again three weeks later. I do not know whether the accused deliberately brought forward the date of last use when he was interviewed on 24 December 2015, but I do not regard that estimation to be reliable, in light of what he had said on 3 December. He said on 24 December that he was not sure. That is understandable, given the time that had elapsed. He said that he used a few bongs, but when asked what he meant by a few, he said he did not know. As I said before, he said that his use in prison had been on and off.
Findings
The two possible explanations for the positive urinalysis results on 1 December 2015 and 22 December 2015 are (a) that the accused used cannabis at a time after he was released on the supervision order, most likely in a small amount that had been largely excreted from his body, sufficiently to result in the low readings, or (b) the low readings are the result of residual THC in his body from use while he was in prison.
I am satisfied that the accused's evidence in court can be rejected as untrue, and the account he gave to police on 24 December can be rejected as unreliable. I consider that his account on 3 December 2015 is likely to be true insofar as he identified his last use of cannabis in prison as having occurred around 13 or 14 November 2015. I also consider that his description of previous use in prison on that occasion is likely to be closer to the truth than anything he has said since. In other words, he would have smoked 'maybe once a week if he could afford it'. I have doubts about his claim that he smoked 10 to 12 cones on the last occasion, being 13 or 14 November, but I cannot reject it as a reasonable possibility. His explanation was that he was feeling stressed about coming up to court for the DSO hearing. That is a more plausible explanation than the one he has given since, that he was stressed about being released.
I consider, therefore, that I should have regard to Dr Grasko's opinions based on the scenario of the accused having last used while in prison on 13 or 14 November 2015, on the basis that he used 10 to 12 cones, and that he had previously been less than an intermittent user, in the way that term was defined by Dr Grasko, but he was not a first‑time or naïve user. That creates some difficulty, in that we do not have an opinion from Dr Grasko as to whether someone between a first‑time user and an intermittent user, as he described that term, may have given a positive result, as a result of residual cannabis in their body. However, if I take Dr Grasko's evidence on the basis that the accused was close to being an intermittent user, in the way that Dr Grasko described that category, then I could not exclude the reasonable possibility that the reading on 1 December 2015 was due to a residual amount of cannabis in the accused's body from his last use in prison.
Although I consider that scenario to be unlikely, and that the reading probably was the result of use after the accused was released, I am not satisfied that is the only reasonable hypothesis. In other words, I am not satisfied that the first count has been proved beyond reasonable doubt.
In respect of the second count, on the factual basis that I consider to be reasonably open, Dr Grasko's evidence would exclude as a reasonable possibility the hypothesis that the reading of 22 December 2015 was due to a residual amount of THC in the accused's body from use on 13 or 14 December 2015. In those circumstances, the only reasonable inference is that the accused used cannabis at a time within a week or so of the urine test, and the THC had largely been excreted from his body by the time of the test. That is consistent with the accused having used a small amount against the background that, while he was in prison, he was not a heavy user, and certainly not in the last nine or 10 days of his incarceration. I am satisfied beyond reasonable doubt, therefore, that the accused did consume cannabis after he was released on the supervision order and, in contravention of condition 24 of that order, at some time between 1 December 2015 and 22 December 2015.
Conclusion
Accordingly, I acquit the accused of the first charge being PE 59371 of 2015, and I convict the accused of the second charge being PE 62861 of 2015.
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