Dodd v Police - [2010] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DODD v POLICE
[2010] SASC 50
Judgment of The Honourable Justice Duggan
4 March 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - EFFECT OF PARTICULAR WORDS - OTHER WORDS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - ADMINISTERING STUPEFYING DRUG
Appeal against conviction – appellant convicted by Magistrate of adding a substance to a beverage being recklessly indifferent to causing impairment of the consciousness of another person without the knowledge of that person contrary to section 32C(1) of the Criminal Law Consolidation Act 1935 (SA) – whether Magistrate erred in deciding whether appellant was recklessly indifferent by application of objective standard – whether recklessly indifferent in the context of s 32C(1) involves subjective or objective standard.
HELD: appeal allowed – recklessly indifferent in the context of s 32C(1) assessed by reference to subjective standard requiring advertence to the risk and a determination to proceed notwithstanding that risk – matter remitted for hearing before another Magistrate.
Criminal Law Consolidation Act 1935 (SA) s 32C(1), referred to.
Tziavrangos v Hayes (1991) 55 SASR 416; Banditt v The Queen (2005) 224 CLR 262, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"recklessly indifferent"

DODD v POLICE
[2010] SASC 50
Magistrates Appeal: Criminal

DUGGAN J: The appellant was charged on an Information which alleged that, on 7 November 2008, he added a substance to a beverage intending to cause, or being recklessly indifferent as to causing, an impairment of the consciousness of another person and that he committed the act without the knowledge of that person contrary to s 32C(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
The appellant pleaded not guilty to the charge but was convicted after a trial before a Magistrate. He has appealed against conviction.
Previously, the appellant and the victim, Y, had been in an intimate relationship. They remained friends when the relationship came to an end and moved in the same circle of friends.
After finishing work on 7 November 2008, the appellant and Y went separately to the Duke of York Hotel in the city. They spoke to one another in the hotel at various stages during the evening.
On one of these occasions the appellant bought Y a drink of soda, lime and bitters. He said that he thought she was a little stressed and tense and decided to relax her with some anti-anxiety medication which he had been prescribed. The medication consisted of Alprazolam tablets. According to the appellant’s version he took half a tablet and placed it in Y’s drink.
The appellant said in evidence that he was aware that there was a warning on the tablet box stating that the medication could cause drowsiness.
After Y took a sip from the drink a friend pointed out to her that there was something in the drink. She took the tablet out of the glass and did not consume any more of the drink.
Two expert witnesses were called at the trial to explain the nature of the drug and its effects. In her reasons for decision the Magistrate summarised the evidence of the experts. She said:[1]
The two learned academics who gave evidence before me, Professor White and Associate Professor Irvine, referred to the effect that this drug can have on a person. It is a drug that is intended to have a calming effect on persons who are anxious and agitated. Their respective opinions about what effect .25mg of the drug, (which I have found beyond reasonable doubt was the amount placed in the drink) would have on a normal healthy adult individual differed slightly.
Professor White states that a dose of .25mg is unlikely to have a significant effect on a person, other than reduced anxiety, even if s/he is not accustomed to the drug. In his opinion, there is no evidence of impairment of a person’s ability at this dose.
Associate Professor Irvine described the effect for the same amount of the drug as being negligible. He further stated that the person who had had the drug administered to them unknowingly was not likely to be impaired in any way and specifically there would be no impairment of consciousness or ability to function physically.
That was the opinion of the experts based on the general effects of the drug as they are know to them. They both acknowledge that although the general effects may be those stated that there is always the possibility that a small percentage of the population would have a different, or more dramatic, reaction to the drugs. They acknowledge that if the drug was taken with alcohol that would have an effect on the consumer. Furthermore, the drug may interact with other drugs being taken by the consumer and cause varied effects.
[1] Police v Dodd [2010] SAMC 2 at [16]-[19].
The Magistrate accepted the appellant’s evidence that he placed only half a tablet in Y’s glass. She said in her reasons for decision that she had no doubt that the appellant did not intend to impair Y’s consciousness or any bodily function. The Magistrate accepted that it was the appellant’s intention to only relax Y. She added:[2]
I am satisfied that this is was a misguided attempt by the defendant to act in a way that he thought was for the benefit of [Y] but he was recklessly indifferent as to the effects of his actions.
[2] Police v Dodd [2010] SAMC 2 at [24].
In her sentencing remarks the Magistrate said she found that there was no sexual motive involved in the appellant’s actions.
In order to deal with the grounds of appeal it is necessary to have regard to the elements of the offence. The particulars charged against the appellant required proof that –
1the appellant added a substance to Y’s drink.
2Y was a person who would or might consume the drink unaware of the presence of the substance.
3the appellant intended to cause or was recklessly indifferent to causing impairment of Y’s consciousness or any bodily function.
There is no dispute that the first two elements were proved by the prosecution; they were admitted by the appellant. The appeal focuses on the third element, namely, the appellant’s state of mind.
The Magistrate found that there was no intention to impair consciousness but that the appellant was recklessly indifferent to the causing of such impairment.
It was accepted on the hearing of the appeal that “reckless indifference” in the context of s 32C(1) required proof that the appellant was aware of the risk of impairment of consciousness, but that he determined to go ahead and place the tablet in Y’s drink. It was not disputed on appeal that causing drowsiness would constitute an impairment of consciousness.
The Magistrate dealt with these issues in the following passage of her ex tempore reasons:[3]
The defendant was of the view (based on taking the drug himself for a year and being aware of its effect) that the effect on [Y] of only .25mg of the antidepressant would be to relax her. He was not qualified to make that decision. He did not know whether she was on other medication; he did not know whether she had any potential for an adverse reaction in the nature of an allergy - or otherwise; he had no idea whether she had in fact been consuming alcohol earlier in the day; nor indeed did he know whether she would have alcohol later that night.
Whereas I have absolutely no doubt that [the appellant] did not intend to cause [Y] any harm and he did not intend to impair her consciousness or bodily function, the fact is that he had no idea how the drug would affect her. His intention was to relax her, to diminish what he perceived to be anxiety which, on her evidence, did not exist.
He described the way he behaved as ‘acting on the spur of the moment’. He said ‘I decided to put the half a tablet in her drink, stupidly’. Clearly, after the event, he has recognised that this matter was far more significant than he considered at the time. The question is whether his action at the time of putting the antidepressant in [Y’s] drink was reckless indifference within the meaning of s.32C.
There is no doubt that the substance, in this case the antidepressant, a prescription drug, was added to the victim’s drink by the defendant. It had the potential for causing impairment of the consciousness or bodily function of [Y]. It was put in her drink without her knowledge and the defendant was recklessly indifferent as to the effect that it would have on her.
It is a matter of some concern that the Magistrate did not explain the concept of reckless indifference and did not set out how she applied her understanding of the concept to the facts. This was the crucial issue in the case. The concept of reckless indifference in the context of this offence is quite different from recklessness in the sense of a higher degree of negligence. The inquiry is subjective, not objective.[4] As observed, there must be advertence by the person to the risk and a determination to proceed notwithstanding awareness of the risk.
[3] Police v Dodd [2010] SAMC 2 at [20]-[23].
[4] Tziavrangos v Hayes (1991) 55 SASR 416 at 420 and the discussion in Banditt v The Queen (2005) 224 CLR 262.
The tenor of the Magistrate’s remarks suggests that she decided the matter by reference to an objective standard. She referred to the expert evidence that there is always a possibility that some members of the population will have “a different or more dramatic reaction to the drug”. She referred to the fact that the appellant did not know if Y was using other drugs or had been consuming alcohol. She referred to the fact that the drug had the potential for causing impairment of Y’s consciousness or bodily function. However, the nub of the case was not whether these possible consequences were open on the evidence relating to the general nature and effects of the drug; rather it was whether the appellant had given consideration to the risk of impairment if Y consumed the drug and whether, if he had been aware of such a risk, he decided to proceed regardless. This process of reasoning was not referred to in the Magistrate’s remarks.
The appeal will be allowed and the conviction set aside. The matter will be remitted for hearing before another Magistrate.