O'Hara v The Queen - [2009] NSWCCA 54

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
O'Hara v R [2009] NSWCCA 54

FILE NUMBER(S):
2006/7595

HEARING DATE(S):
23 February 2009

JUDGMENT DATE:
9 March 2009

PARTIES:
Michael Ian O'HARA - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Grove J Buddin J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/61/0147

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

LOWER COURT DATE OF DECISION:
4 March 2008

COUNSEL:
C Smith - Applicant
D Arnott SC - Respondent/Crown

SOLICITORS:
Legal Aid Commission - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Unlawfully causing a person to take a stupefying thing contrary to s 38 Crimes Act 1900 as in effect at the time
Meaning of "unlawfully"
Alcohol a stupefying thing within the meaning of the provision
Amending legislation no indication of previous ambiguity
R v Murcott 1893 XIX VLR 408 followed

LEGISLATION CITED:
Crimes Act 1900
Crimes Amendment (Drink & Food Spiking) Act 2008
Liquor Act 1982
Offences Against the Person Act 1861

CATEGORY:
Principal judgment

CASES CITED:
Allina Pty Limited v Federal Commissioner of Taxation 1991 28 FCR 203
R v Murcott & Ah See 1893 XIX VLR 408

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/7595
GROVE J
BUDDIN J
PRICE J
9 March 2009

Michael Ian O’HARA v REGINA

Judgment

GROVE J: This is an appeal against conviction on a count of unlawfully causing a person to take a stupefying thing with intent to commit an indictable offence contrary to s 38 of the Crimes Act 1900 as applicable at the date of the alleged offence, namely 22 April 2006.
The appellant was tried before Nield DCJ and a jury at Katoomba District Court on an indictment containing that count and two further counts charging aggravated sexual intercourse without consent. He was found guilty on all three counts. The appeal challenges only the conviction on the first count.
As a result of a short relationship, the appellant fathered the victim, a daughter who was born on 28 October 1991. Although he had other children, he lived as a single man. In years recent to the offences, the appellant re-established some contact with the complainant’s mother and his daughter occasionally stayed overnight at his house on a weekend. She came for that purpose on 22 April 2006. At the time she was fourteen and half years of age and the appellant was forty.
In the afternoon, the appellant purchased eight bottles of “Vodka Cruiser” and some beer. It was common ground that the complainant had not previously drunk alcohol. At his urging she drank two of the bottles of Vodka Cruiser after which she said she did not want to drink any more. The appellant encouraged her to get drunk by consuming the remaining bottles and he made a “bet” that, if she drank them, she could have all the coins that were lying on a table in the loungeroom. These had previously been counted and amounted to $137.
The appellant gave evidence at his trial. He did not dispute these facts but claimed that it was his intention to “street smart her, get her to understand and know how to moderate her drinking ….now she knows not to have eight Cruisers.” He agreed that the complainant “started stumbling, slow speaking, slurring” and when asked whether she was intoxicated to the degree of “falling down, legless drunk” he responded “a bit less than that.”
The complainant agreed that she had eventually drunk all eight bottles. After she had drunk four of them the appellant began to kick a ball saying she would feel better if she moved about. She couldn’t kick the ball and said that she felt “weird” and her legs were shaking. After watching some television she went to bed. She felt that she was “spinning” and she vomited into a receptacle (an “esky”) which had been located nearby to her bed.
During the night she awoke to find the appellant in bed with her under the covers. The first sexual assault then occurred. The complainant rose and went to the toilet feeling confused as to what was happening. When she came out of the toilet she saw the appellant was then lying in the living room, so she returned to the bed. She went to sleep but awoke again as the appellant had returned and the second sexual assault took place. In response to a question from him she said (untruthfully) that she “was fine” but she gathered her belongings into her bag and unlatched the door. She took some money from the table and ran to the house of a friend. She was later contacted by her mother to find out why she had not stayed at her father’s house and after inquiry, her mother took her to the police station.
The appellant sent a series of text messages to the complainant. It can be observed that a jury may well have regarded the content of some of these as inculpatory of the appellant.
Mr Smith of counsel for the appellant (who did not appear at trial) argued that the conviction on the first count could not be sustained for either or both of two reasons. First, he submitted that it was not unlawful for the appellant to supply alcohol to his daughter and, second, that alcohol was not a “stupefying thing” within the meaning of that expression in s 38.
Section 38 (as applicable in this instance) was in the form originally legislated in the Crimes Act 1900, subject to a subsequent change in the available maximum penalty from penal servitude for life to 25 years imprisonment. The provision has earlier antecedents in the Offences Against the Person Act 1861 (24 and 25 Vict c 100) (Imp). The relevant statutory prescription was in these terms:
“38. Using chloroform, &c., to commit an offence. Whosoever unlawfully applies or administers to or causes to be taken by, or attempts to apply or administer to, or cause to be taken by, any person, any chloroform laudanum or other stupefying or over-powering drug or thing, with intent in any such case to enable himself, or another person, to commit, or with intent to assist another person in committing, an indictable offence, shall be liable to penal servitude for life.”
In support of the first argument counsel referred to the Liquor Act 1982 (in effect as at 22 April 2006) which provided (so far as is relevant):
“114(1) A person shall not, in any place ….supply liquor to a person under the age of eighteen years
…..
(6) It is a defence to a prosecution for an offence under subsection (1) …..if it is proved that the defendant was a parent …..of the person to whom the liquor was ….supplied …..”
Attention was drawn to one of the practice texts which described the elements of an offence under s 38 as:
“(1)   The accused unlawfully
….
(iii)         Caused to be taken ….a substance
(2)         which was …..
(iii)         a stupefying ….thing; and
(3)         the accused intended to enable himself ….to commit an indictable offence ….”
It was contended that it should therefore be concluded that the legislative expression “unlawfully” related to the act of “causing to be taken” and the provision should be construed to require proof of an objective element of unlawfully causing the stupefying thing to be taken and, separately, a subjective intention to commit an indictable offence.
The submission misconstrues the meaning of “unlawfully.” As is the case in numerous similar legislative prescriptions, the meaning is “without lawful excuse”. Hence it would not be unlawful if, for example, a supply was made under duress or for a genuine therapeutic purpose.
The construction argued for the appellant which disjoins the unlawful causing to be taken from the intent to commit an indictable offence should be rejected. As the Crown Prosecutor Mr Arnott SC pointed out, if the legislature had intended that “unlawfully” was confined to qualifying that part of the provision which included “causes to be taken”, the section could simply have been drafted to insert the word “and” before “with intent”.
The defence made available under s 114 (6) of the Liquor Act above recited is, in its terms, referrable to a prosecution under s 114 (1) and does not purport to extend scope beyond what is stated in the provision.
It is not the case that the word “unlawfully” in s 38 has no work to do. In its appropriate meaning of “without lawful excuse” it in particular makes available defences such as have been exemplified above.
I would reject the first proposition argued by the appellant.
The second submission was that alcohol was not comprehended within the expression “stupefying thing” in s 38.
With commendable candour, Mr Smith acknowledged that unless this Court concluded that the decision of the Victorian Full Court in R v Murcott & Ah See 1893 XIX VLR 408 was wrong, his argument must fail.
Murcott was a case where the offenders sought to ply the victim with alcohol in the form of what was described as chinese brandy. An expert was called who testified that the liquor was “a cordial aromatic stimulant weaker than the best brandy, but about the same strength as common brandy.” He added an opinion that if “that girl (the victim) drank half a tumbler of the spirit after a glass of ale it would ultimately stupefy her.”
I interpolate that in the present trial there was no expert evidence of this type but there was no dispute about the effect on the complainant, some aspects of which have been described above. Dr Thacker, who examined the complainant at Bathurst Base Hospital was not asked about this nor was it inquired of her whether she felt qualified to express an opinion. She said that a person under the influence of alcohol would be relaxed and interference with the vagina of a very relaxed person would not necessarily produce injury. She had detected no injury when she examined the complainant.
The prosecution in Murcott alleged breach of s 19 of the Crimes Act 1890 (Vic) the wording of which was slightly different from s 38 but, as Mr Smith correctly conceded, it was not different in any material way.
Section 19 was in these terms:
“Whosoever shall unlawfully apply or administer to or cause to be taken by or attempt to apply or administer to or attempt to cause to be administered to or taken by any person any chloroform laudanum or other stupefying or overpowering drug matter or thing with intent in any such cases thereby to enable himself or any other person to commit or with intent in any of such cases thereby to assist any other person in committing an indictable offence shall be guilty of felony and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term not exceeding seven years.”
The submission by the offenders (Murcott and Ah See) was that the section was never intended to cover alcoholic liquors which intoxicated, but merely cover drugs of known stupefying or overpowering qualities.
Rejecting that submission Madden CJ said:
“It would have been plainer, no doubt, if the section had contained more explanatory words, for instance, if the word ‘intoxicating’ had been added. We think, however, that there is enough to show that the offence here charged is fairly supported by the evidence. The argument that the words which follow ‘chloroform’ and ‘laudanum’ mean really something of the same character as chloroform and laudanum and would not cover other things having different effects, cannot prevail. If the sentence had stopped at the word ‘drug’, or the word ‘drug’ had not been used at all, much might have been said in favour of the argument that the thing to be ‘administered, taken, or applied’ must be something of the same character as chloroform and laudanum. But the word ‘drug’ is used and it is followed by the words ‘matter or thing’, so that the administration not only of a drug but of any ‘other stupefying or overpowering matter or thing’ is sufficient.”
Holroyd and Hood JJ were in agreement with the Chief Justice.
It is the capacity of the “thing” to stupefy and not the class of substance which is relevant. It can be observed that in editions of Archbold in relation to the foundational legislation of 1861 the editors have commented “if the drug etc is not named in the indictment, evidence must be given to show that it was of a stupefying or overpowering nature, calculated to aid the offender in the commission of a felony.” This comment has been reproduced in local texts, for example, Criminal Law in New South Wales Watson & Purnell.
I have above observed that in the present case the effect on the complainant was not in real contest and there was ample evidence for the jury to conclude that she was in fact stupefied by the ingestion of the alcohol.
I would not depart from the views expressed in Murcott and in my opinion the construction offered therein was correct.
In deference to the argument canvassed in the appellant’s written submissions I should note the analysis of the replacement of s 38 by a substituted provision which took effect on 28 March 2008. The amendment was achieved through the Crimes Amendment (Drink and Food Spiking) Act 2008. The new provision refers to an “intoxicating substance” and there is a definition of this to include “alcohol or a narcotic drug or any other substance that affects a person’s senses or understanding”. As the name of the amending statute suggests, a particular mischief at which the new provision was directed was the practice of “spiking” drinks.
I would reject any contention that the amendment responded to some gap in earlier legislation whereby alcohol was not included as a possible stupefying thing. I would derive no assistance from the subsequent statute to resolve ambiguity in the earlier provision as it is my view that there was no ambiguity to be resolved: cf Allina Pty Limited v Federal Commissioner of Taxation 1991 28 FCR 203 at 212. I would reject the second submission.
I propose that the appeal against conviction on count 1 of the indictment be dismissed.
BUDDIN J: I agree with Grove J.
PRICE J: I agree with Grove J.
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LAST UPDATED:
9 March 2009