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) 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 this case that the accused administered zopiclone or temazepam or both to the complainant. No objection was taken to the latent duplicity in the charge. Both zopiclone and temazepam are listed in Schedule 4 of the Poisons Standard June 2018 (Cth). Each is therefore a “prescription only medicine”.
A “regulated substance” is defined to include a “medicine”: s 10 MPTG Act. It therefore includes zopiclone and temazepam. Section 20 of the MPTG Act defines when a person is “authorised” to deal with a “medicine”. Section 19 defines “deal” as including when a person “administers the substance”: s 19(1)(e). Section 20 provides that a person is authorised to deal with a medicine when:
(a) the person has a licence or permit under a Commonwealth Act, this Act or another territory law that authorises the dealing; or
(b) the person may or must deal with the medicine or poison under a Commonwealth Act, this Act or another territory law; or
(c) the chief health officer approves the dealing under a regulation; or
(d) the dealing is otherwise authorised by regulation.
Section 360(2)(c) of the Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) provides that the following dealing is an authorised dealing:
if the person is not a prescriber and the medicine is supplied for the person’s own use – self administration of the medicine;
Section 361(1) of the Regulation permits an assistant to administer a medicine to someone else if:
(a) the medicine is obtained by or for the assisted person from someone who is authorised to supply the medicine to the assisted person; and
(b) the medicine is administered in accordance with the directions on the medicine’s labelling; and
(c) if the assisted person is not a person under a legal disability – the assisted person asks for the assistant’s help to take the medicine; and
(d) if the assisted person is a person under a legal disability – the assistant is authorised by the assisted person’s parent or guardian to administer the medicine.
Findings
The complainant and the accused were married. They were separated but living under one roof. On the evening of 16 August 2018, the complainant was sharing a bed with her three-year-old daughter. After the complainant had gone to bed, on a number of occasions during the evening the accused went into the bedroom where the complainant was sleeping to discuss issues relating to their financial affairs and their divorce. After he had come in a number of times the complainant commenced an audio recording on her mobile phone sometime after midnight.
About an hour into the recording, the accused engaged in sexual intercourse with the complainant. This was a fact which he admitted. The jury’s verdict was that this was without the complainant’s consent. That finding is consistent with what can be heard on the audio recorded on the mobile phone and necessarily involves the rejection beyond reasonable doubt of the version of events given by the accused in his interview with police that was to the effect that the complainant invited him to have sexual intercourse with her.
The complainant awoke shortly after the intercourse commenced and told the accused to stop. He did stop. He left and she attempted to go back to sleep. Approximately 10 minutes later the accused returned to the bedroom. The complainant gave evidence that she felt his finger in her mouth and that there was a substance on his finger which felt rough and tasted bitter. On the audio recording she says to him in Chinese “What are you doing?” “What did you feed me?”. He denies feeding her anything. She tells him to leave the room.
She immediately washed out her mouth using water from the mug next to her bed and spat it back into the mug. She then went to the ensuite bathroom and observed “white dots” or a “wet powder” on her front teeth. The tap in the bathroom can be heard running on the audio recording. She had a bitter taste on her tongue which had woken her up. She went downstairs, woke up her mother and then washed her mouth out again into three different glasses.
The jury accepted her evidence that she had not consented to the sexual intercourse. I accept beyond reasonable doubt her evidence that the accused came and put a bitter tasting substance into her mouth using his fingers. I find that she rinsed out her mouth into the mug that was next to her bed, that she then rinsed out her mouth again in the bathroom and then went downstairs and rinsed out her mouth into the three glasses.
The complainant’s evidence as to the accused’s conduct and her credibility are supported by her complaint to her mother immediately after the event in question, the terms of her 000 call, her complaints to Senior Constable Yanes and First Constable Dimes and her complaints to Dr Sarah Martin who examined her that morning at the Canberra Hospital. The terms of those complaints in the circumstances in which they were made indicate that they are likely to be reliable.
Having accepted that the accused placed a bitter substance in the complainant’s mouth, the issue comes down to whether or not the Crown has proved beyond reasonable doubt that the accused did administer zopiclone or temazepam to the complainant. In other words, was the substance on his finger one or other or both of those drugs?
I am satisfied beyond reasonable doubt that the white, bitter, powdery substance that the complainant felt being placed in her mouth by the accused included both temazepam and zopiclone. The conclusion that both substances were given to the complainant is reached for the following reasons.
First, the accused had access to both temazepam and zopiclone. Police executed a search warrant at a pharmacy visited by the accused. The accused’s patient history record from the pharmacy was tendered. It shows that he had a prescription for ‘temaze’ tablets filled on two occasions; once in June 2018 and once in August 2018. It further shows that a prescription for ‘imovane’ tablets was filled in August 2018 on the same date as the second temaze prescription was filled. This date was two days prior to the alleged incident. Imovane is a medicine containing zopiclone.
During her evidence-in-chief interview with police, when questioned by the constable about whether or not MZ consumed alcohol or drugs the complainant gave evidence that: “I remember just one time he was saying he need to taking sleeping tablet be able to sleep but I never saw the tablet so I don’t know whether it’s true or…”. A blisterpack labelled ‘Imovane zopiclone 7.5mg’ was seized by police. The blisterpack contained seven tablets which were individually presumptively tested. Samples from two tablets were combined for confirmatory analysis. Zopiclone was detected in the tablets. The contents and manufacturer’s markings are consistent with the pharmaceutical product ‘imovane tablets (sanofi-aventis)’.
Second, the complainant had consumed temazepam and zopiclone at some time. Toxicology tests revealed traces of temazepam in the complainant’s blood. Temazepam, zopiclone and caffeine were detected in her urine.
The evidence of the complainant in her evidence-in-chief interview was that on that night, and in general, she did not take any medication, either generally or to help her sleep. She stated that she did not consume alcohol or drugs. This was not challenged in cross-examination. I accept that evidence. It is therefore not open to find that the results of the toxicology test are indicative of the complainant taking those substances of her own accord. The fact that the liquid in the three glasses used by the complainant to wash her mouth out was tested and that no drugs were detected in the complainant’s oral wash sample is not significant. For reasons which are unclear, no testing was done on the liquid in the mug that was beside the bed. The absence of drugs in the oral wash in the glasses is understandable having regard to the complainant having first washed her mouth out in the mug and then in the ensuite prior to rinsing her mouth using the water in the glasses.
Third, there is no other reasonable alternative as to what the substance placed in the complainant’s mouth on the night of the incident could be. To begin with, the description of a rough, white and bitter powder is consistent with the texture of a crushed medicine tablet. It is not consistent with much else. The possibility that the substance was anything other than a crushed medicine tablet is very low, given that the accused would have no motive to feed the complainant something that would have no effect on her. Furthermore, had the accused attempted to administer a crushed tablet of a medicine of a different kind than temazepam or zopiclone, that would have been evident in the toxicology report. The toxicology analysis was broad, testing for alcohol, amphetamines, opiates, cannabinoids, cocaine metabolites, GHB, benzodiazepines and other important drugs. Furthermore, I accept the complainant’s evidence that she does not take any medication or drugs, either generally or to help her sleep. This again reduces the possibility that there was available to the accused a different crushed tablet like substance to administer to the complainant.
Fourth, although it is not clear exactly what the motive for putting such medicines in the complainant’s mouth was, the insertion of sleep promoting medicine (as opposed to some other substance) is not inconsistent with the established circumstances, most particularly a desire to affect the recollection of non-consensual sex a few minutes beforehand.
The presence of the complainant’s DNA on the imovane packet or the bag into which the complainant’s mother put it does not give rise to any reasonable doubt. The mere presence of DNA on the bag or blister pack is not significant given their presence in a shared household.
I am satisfied beyond reasonable doubt of the following:
(a) zopiclone and temazepam are medicines for the purposes of the MPTG Act;
(b) each of the medicines was intentionally administered to the complainant by the accused;
(c) the medicine that was administered to the complainant was not obtained by or for the assisted person for the purposes of s 361(1)(a) of the MPTG Regulation;
(d) the complainant was not a person under a legal disability for the purposes of s 361(1)(c);
(e) the complainant did not ask for the accused’s help to take the medicine: s 361(1)(c);
(f) the accused was not authorised to administer zopiclone or temazepam to the complainant under s 20 of the MPTG Act because the dealing was not authorised by regulation (s 20(1)(d)) or under any of the other paragraphs of s 20(1) of the Act.
I therefore find the accused guilty on the related charge.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 3 December 2019 |
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