[2015] ACTSC 205

The matter is remitted to the Magistrates Court so that evidence of the disputed fact can be adduced.

CRIMINAL LAW - Appeals From and Control Over Magistrates - crown appeal against non-conviction order - contested evidence from the bar table of innocent ingestion of prohibited substance - whether the magistrate should have directed that the law of evidence applied pursuant to s 4 Evidence Act 2011 (ACT) - whether the magistrate was obliged to require the respondent to prove the asserted facts where they were disputed by the prosecution by adducing appropriate evidence.

CRIMINAL LAW - Particular Offences - drug offences - driving with a prescribed drug in oral fluid or blood - repeat offender.

Crimes (Sentencing) Act 2005 (ACT) s 17

Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20

Evidence Act 2011 (ACT) s 4

Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545

1. At about 2.25 pm on 7 August 2014, the respondent was driving a motor vehicle and was stopped by police conducting random breath testing. He was required to undergo a drug screening test, which, when analysed, confirmed the presence of prescribed drug Delta-9-tetrahydrocannabinol (THC) in his oral fluid. Police observed the respondent to have watery, bloodshot eyes with small pupils, his speech was slow, his ability to understand was fair and his demeanour fluctuated between being indifferent and abusive when questioned.

2. The respondent was charged by way of summons with an offence contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), alleging that, as a repeat offender, on 7 August 2014, having been the driver of a motor vehicle on a road, he had, within the relevant period, a prescribed drug in his oral fluid.

3. On 2 March 2015, the respondent entered a plea of guilty to this charge in the Magistrates Court. The respondent did not give evidence, but submitted to the Magistrate that he did not use drugs and that the presence of THC in his oral fluids may have resulted from his consumption of a "protein power" which had "stuff in it" and which "obviously tripped over this test". The respondent produced a packet of the "protein powder" for the Magistrate to inspect, telling her that he had purchased it at the Mitchell Produce Markets. The Magistrate said she would "look at the ingredients" of the substance, but it is unclear from the transcript whether the ingredients were displayed on the packet and, if not, what they may have been.

4. The respondent submitted that the Magistrate should make a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) and, despite the protestations of the prosecutor, she adopted that course.

5. On 24 March 2015, the Director of Public Prosecutions filed a notice of appeal appealing against the non-conviction order imposed by the Magistrate on the following grounds:

(a) [t]he sentence imposed was manifestly inadequate;

(b) [the Magistrate] erred in finding that the respondent had discharged the burden of establishing a circumstance of exculpation;

(c) [the Magistrate] erred by taking into account an extraneous or irrelevant matter, namely that hemp seeds were (supposedly) a perfectly legal substance;

(d) [the Magistrate] erred in finding that the ingestion of hemp seeds was the ingestion of a perfectly legal substance; and

(e) [the Magistrate] erred in finding that the moral culpability of the defendant was in the circumstances low.

6. On 17 July 2015, the appeal came on for hearing before me. After hearing counsel for the respondent, I upheld the appeal, set aside the orders of the Magistrate, and remitted the charge to the Magistrates Court for further hearing. At that time, I indicated that I would publish my reasons at a later time. These are those reasons.

Section 17 of the Crimes (Sentencing) Act 2005 (ACT)

7. In imposing a non-conviction order, the Magistrate was exercising power granted by s 17 of the Crimes (Sentencing) Act:

(1) This section applies if an offender is found guilty of an offence.

(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

8. The respondent was not represented by a legal practitioner in the proceedings before the Magistrate. The appellant informant, a police officer, was, as is usual, represented by a lawyer employed by the ACT Director of Public Prosecutions. When the respondent asserted from the bar table that the THC found in his oral fluid may have been the result of ingestion of the protein powder, the prosecutor objected:

Ms Lucero: Yes, your Honour, the defendant hasn't proven that the reading that was positive is as a result of a (indistinct) your Honour, he's relying on his - - -

Her Honour: He's raised it.

Ms Lucero: - - - statement that that is what he consumed. And there's no evidence to show that consuming that product would, in fact, have an impact on showing a positive reading of THC in the blood. I would submit, your Honour, if the defendant wishes to rely on this as a defence, which he essentially is, that it should proceed to a hearing.

9. As the Magistrate observed, the respondent was not raising the suggestion of innocent ingestion of the THC as a defence, but in mitigation of sentence. The prosecutor renewed her objection:

Ms Lucero: But he is essentially submitting that this should be considered as an extenuating circumstance. I'm saying that there is no evidence to show that that was the cause of the positive reading in the blood.

10. There followed on unedifying exchange between the Magistrate and the respondent about another case, apparently reported in the Canberra Times, where a different Magistrate had found that the ingestion of hemp seeds in a muesli product could have led to THC being detected in an offender's body. I say that the exchange was unedifying because the scant material put before the Magistrate did not provide any basis for treating the earlier case as factually equivalent to the case before her. In particular, it was not clear what expert evidence, if any, was before the Magistrate in the earlier proceeding. The heading of the Canberra Times article was apparently "Hemp seed muesli led to ACT drug driving charge", suggesting that, in that case, the offender had consumed raw hemp seeds. The substance said to have been ingested by the respondent in the present case was described as a "protein powder". Even if one were to accept that the protein powder contained hemp seeds, it is not clear to what processes or refinements the hemp seeds may have been subject in manufacturing the protein powder. There was simply no evidentiary basis upon which the determination of the Magistrate in the previous proceedings could be applied to the proceeding concerning the present respondent.

Ms Lucero: I would press for this matter to proceed to hearing, in order to get more sufficient evidence, rather than just relying in the defendant's statement...

12. The Magistrate did not require the respondent to adduce evidence supporting his suggestion that the THC detected in his oral fluid may have been the result of innocent ingestion of the protein powder and dismissed the charge pursuit to s 17 (2) (a) of the Crimes (Sentencing) Act, presumably on the basis that she was satisfied that there were extenuating circumstances in which the offence was committed.

13. For the purposes of this appeal, I accept that innocent ingestion of a substance which causes THC to be detected in oral fluids may be an extenuating circumstance justifying the making of a non-conviction order. The question is whether there was evidence of that extenuating circumstance before the Magistrate.

14. It is common in sentence proceedings for assertions of fact to be made from the bar table during submissions in mitigation of sentence, particularly in the Magistrates Court. Where an accused person, or their legal representative, asserts a matter of fact in such a way, and it is not challenged by the prosecutor or the Magistrate, the court will ordinarily accept that the asserted facts are proved without the necessity of formal proof: Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at [24].

15. To the extent that the issue is governed by statute, the provisions of the Evidence Act 2011 (ACT) must be considered. Section 4 (1) of the Evidence Act provides that the Evidence Act applies "to all proceedings in an ACT court". Sections 4 (2) and (3) of the Evidence Act make specific provision for sentence proceedings:

(a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and

(b) if the court states in the direction that the law of evidence applies only in relation to stated matters - the direction has effect accordingly.

(3) The court must make a direction under this section if -

(a) a party to the proceeding applies for the direction in relation to the proof of a fact; and

(b) in the court's opinion, the proceeding involves proof of the fact, and the fact is or will be significant in deciding a sentence to be imposed in the proceeding.

16. It is clear that the Magistrate viewed the assertion of innocent ingestion as a fact significant to the determination of sentence with respect to the respondent. Were it not for her acceptance of that asserted fact, the sentence imposed would have been manifestly inadequate. In my opinion, the repeated requests of the prosecutor to require evidence of the asserted fact can be nothing but a request under s 4 (3) (a) of the Evidence Act for a direction that the law of evidence apply in the proceedings, albeit that the provision was not specifically mentioned. Once that application was made, the Magistrate was obliged to make the direction, as the requirements of s 4 (3) (b) were satisfied.

17. Even if the repeated requests of the prosecutor that the Magistrate require evidence of the facts asserted by the respondent are not to be seen as an application under s 4 (3) (a) of the Evidence Act, they nevertheless were an indication that the prosecution challenged the facts asserted by the respondent. How such a matter is to be dealt with in circumstances where the Evidence Act does not apply was considered by Refshauge J in Talkuder v Dunker at [19]:

The consequence of the Evidence Act not applying is that the common law of evidence applies. As Giles JA (with whom Levine and Sperling JJ agreed) said in R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 at 428:

What I have said is not to deny that the sentencing judge should be fully informed, or that desirable practices as they have developed should not continue. In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is a good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.

18. It follows that the Magistrate was obliged to require the respondent to prove the asserted facts disputed by the prosecution by adducing appropriate evidence. She did not require the respondent to adduce evidence, with the consequence that there was no evidence of the offence being committed in extenuating circumstances such as to enliven the Magistrate's discretion under s 17 of the Crimes (Sentencing) Act.

19. For this reason, I have set aside the decision of the Magistrate.

20. The respondent was not legally represented in the proceedings before the Magistrate and it was not his fault that the proceedings miscarried. As I indicated to counsel for the appellant, the respondent should be placed back into the position that he was in before the proceedings miscarried, or as near to that as is now possible. For that reason, I remitted the matter to the Magistrates Court for the respondent to adduce evidence in support of his assertion that the THC detected in his oral fluids may have been caused by innocent ingestion.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Burns.