15 July 2019


International Cases

DANIELS -v- FREER

Australia

25.09.2017

Criminal

Court must not grant leave to appeal unless a ground has a reasonable prospect of success

The Appellant seeks leave to appeal against a conviction for being a reportable offender who, without reasonable excuse, failed to comply with his reporting obligation contrary to Section 63(1) of the Community Protection (Offender Reporting) Act, 2004 (WA) (CP Act). The issue at the hearing was whether the disputed email had been sent by the Appellant and, if it had been sent, did the content of that disputed email constitute a 'reasonable excuse' for the Appellant failing to report under Section 63 of the CP Act. Magistrate found that, the Appellant did not send the disputed email. Further, it was found that, even if the Appellant had sent the disputed email, the explanation did not constitute a reasonable excuse. Accordingly, the magistrate convicted the Appellant and imposed a fine.

The CP Act outlines a framework requiring certain offenders who commit sexual or other designated serious offences to keep the police informed about specified personal details and their location in the community. Relevantly, a person becomes a reportable offender when sentenced by a Court for a reportable offence. Alternatively, an application may be made in respect to other offenders, who would not otherwise be subject to the CP Act, if the court is satisfied the offender poses a risk. A reportable offender must be given written notice of his reporting obligations and the consequences that may arise if he fails to comply with those obligations. Part 3 of the CP Act provides for reporting obligations. The obligations include the initial reporting obligation by the reportable offender and subsequently, the obligation to report annually and as required by the Commissioner of Police. A reportable offender must report changes to relevant personal details to the Commissioner and of any intended absence from Western Australia and then, must report upon returning. The length of the period of reporting is either for 8 years or 15 years depending upon the class of offence in respect to which the offender was convicted.

An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary Court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice. On appeal, the Court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below. The Court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that, the ground has a real, rational and logical prospect of succeeding and is more than arguable.

Senior Constable Saunders confirmed that, if a reportable offender communicates a 'reportable change' via email then the police send a return email confirming the change and provide a receipt number. Senior Constable Freer gave evidence that, if an email is received then a hardcopy is stored on the police system. Senior Constable Saunders gave evidence that, a search of the police electronic record database determined that, there was no record of the disputed email having been received by the police. Further, it was stated that, standard procedure of the police, at the relevant time, was that, if an email is received seeking to change the meeting time then the police would contact the reportable offender personally.

The disputed email appears to be an unsent response to that email of the police. The police confirmed that, interviews for reportable offenders in regional Western Australia are conducted by the respective local police station. The email exchanges demonstrate that, the police, upon receipt of email communications, did provide prompt replies. The sequence of emails supports Magistrate's finding that, disputed email was never sent. There was no error in findings of magistrate that the disputed email was not sent by the Appellant.

It is clear that, underlying the reporting obligation is a significant community protection issue. Given the nature of the community protection requirement, it is necessary that, obligations on reportable offenders be strictly observed. The seriousness of the offence of failing to comply with an obligation imposed under the CP Act, whether a prohibition order or a reporting obligation, is understood by having regard to the fact that, such an order or requirement is directed towards governing the behaviour of the reportable offender to reduce the risk posed by the subject of the order or obligation to persons in the community by reducing the likelihood of reoffending.

Section 63(2) of the CP Act, states specific factors that, a Court must have regard to when considering whether a person has a 'reasonable excuse'. The Appellant does not have a disability that, affects his ability to understand or comply with the obligation to report. The form of the notification given was adequate and made clear the obligation to report. The fundamental principle is that, the prosecution must prove every element of an offence subject to any statutory exception. Whether there is a statutory exception concerns the proper construction of Section 63 of the CP Act and particularly, whether there is an implied exception to the fundamental principle.

It is a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (as therefore, to be proved, beyond a reasonable doubt by the prosecution), or whether it is intended to be a ground by which criminal liability may be avoided (and therefore, to be proved, on the balance of probabilities, by the Defendant). There are a number of examples where Courts have considered the words 'reasonable excuse' in the context of an offence provision and have held that, the subject matter implied that, the accused carried the onus. The Appellant did not have a reasonable excuse for failing to report, regardless on whom the onus was re-posed. Prosecution has proven beyond a reasonable doubt that, the Appellant did not have a reasonable excuse. Magistrate did not err in finding that, the Appellant did not have a reasonable excuse for his failure to meet his obligation to report.

Tags : Obligation Report Reasonable excuse

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