Kirby v MZ - [2019] ACTSC 327

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kirby v MZ
Citation:	[2019] ACTSC 327
Hearing Dates:	8 – 11 and 14 October 2019
DecisionDate:	3 December 2019
Before:	Mossop J
Decision:	The accused is guilty of the related charge
Catchwords:	CRIMINAL LAW – RELATED CHARGE – Determined by court without jury – administer a declared substance without authorisation – jury found accused guilty of sexual intercourse without consent – whether accused administered a substance to the complainant – he did – whether the substance administered to the complainant was a declared substance – it was
Legislation Cited:	Magistrates Court Act 1930 (ACT), s 90B Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), ss 10, 11, 19, 20, 25(a), 37(1) Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT), s 360(2)(c) Supreme Court Act 1933 (ACT), ss 68D, 68E(2) Therapeutic Goods Act 1989 (Cth), s 52D(2)
Parties:	Joel Kirby (Informant) MZ (Accused)
Representation:	Counsel S Jerome (Crown) B Boucaut QC (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Number:	SCC 319 of 2018

MOSSOP J:

Introduction

MZ was found guilty by a jury of a single count of sexual intercourse without consent. I am required to deal with a related charge transferred from the Magistrates Court under s 90B of the Magistrates Court Act 1930 (ACT). The charge alleges a contravention of s 37(1) of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) (MPTG Act) as follows:

That he, in the Australian Capital Territory, on 17 August, 2018, did administer a declared substance (other than a pharmacy medicine or pharmacist only medicine) to someone else, namely, [GR] and he was not authorised to administer the substance to [GR].

The court is required to deal with the related offence without a jury. It must do so on the basis of the evidence given during the trial and any other additional evidence given under s 68D of the Supreme Court Act 1933 (ACT). Neither party sought leave under s 68E(2) to call additional evidence in relation to the charge.

The MPTG Act

The relevant statutory provision of the MPTG Act is as follows:

37Administering certain declared substances
(1)A person commits an offence if–
(a)the person administers a declared substance (other than a pharmacy medicine or pharmacist only medicine) to someone else; and
(b) the person is not authorised to administer the substance to the other person.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

A “declared substance” is defined as including “a medicine”: s 25(a). “Medicine” is defined in s 11(1) of the MPTG Act as:

(a) a pharmacy medicine; or

(b) a pharmacist only medicine; or

(c) a prescription only medicine; or

(d) a controlled medicine.

Each of those expressions is defined in s 11(2) by reference to the content of schedules to the “medicines and poisons standard”. The medicines and poisons standard is the poisons standard made under the Therapeutic Goods Act 1989 (Cth) s 52D(2).

It is alleged in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirby v MZ

Details

AGLC: Kirby v MZ [2019] ACTSC 327
Case: [2019] ACTSC 327
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered the case of Kirby v MZ, where MZ was found guilty by a jury of sexual intercourse without consent. The court was required to determine a related charge concerning the administration of a declared substance, specifically whether MZ administered zopiclone or temazepam without authorization. The accused was found to have administered the substances to the complainant without the necessary authorization, leading to a conviction under the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT). The court's decision hinged on the credibility of the complainant's evidence, supported by her immediate complaints and subsequent medical examination, which indicated that she had not consented to the sexual act. Toxicology tests confirmed the presence of the drugs in the complainant's system, and the court concluded that MZ had intentionally administered the substances. The court's reasoning was thorough, examining the definitions and provisions of the relevant legislation, and confirming that MZ did not meet the criteria for authorized administration as per the Act and Regulations.

The legal issues at hand primarily revolved around the interpretation of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) and its Regulations, specifically sections 37, 10, 11, 19, 20, 25(a), and 37(1). The court had to determine whether the substances administered were indeed declared substances, whether MZ was authorized to administer them, and whether the act of administration constituted an offence under the Act. The court found that both zopiclone and temazepam are classified as prescription-only medicines, and that MZ did not have the requisite authorization to administer these substances to the complainant. The analysis included a review of the statutory definitions, the Medicines and Poisons Standard, and the specific circumstances of the case, leading to a finding that the accused's actions constituted an offence.

The court's reasoning and outcome were based on the complainant's credible evidence, the results of toxicology tests, and the absence of any reasonable alternative explanation for the presence of the substances in the complainant's system. The court emphasized the complainant's immediate complaints and her consistent account of events, which were corroborated by her actions and statements following the incident. The evidence showed that MZ had access to the drugs and had no legitimate reason to administer them to the complainant. The court concluded that MZ was not authorized to administer the substances under any of the provisions outlined in the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) and its Regulations, leading to the conviction on the related charge.

The final orders of the court included the conviction of MZ on the related charge, with the court finding him guilty of administering the declared substances without authorization. The decision was made on the basis of the evidence presented and the application of the relevant statutory provisions, affirming the complainant's account and the absence of any reasonable doubt regarding the accused's actions.

Orders