R v MARDON
[2015] SADC 78
•22 May 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARDON
Criminal Trial by Judge Alone
[2015] SADC 78
Reasons for the Verdicts of His Honour Judge Soulio
22 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Trial by judge alone - Accused charged with 2 counts of theft, 3 counts of serious criminal trespass in a place of residence, 3 counts of attempted create risk of harm - accused contaminated milk and apple juice in complainant's fridge with weed killer - accused denied he did so with the intention of causing harm to the complainant or his family.
Verdicts - Guilty all counts
Criminal Law Consolidation Act 1935 SA) ss 29, 134, 170, 171, 270; Juries Act 1927 (SA) 7, referred to.
Britten v Alpogut [1987] VR 929; R v Irwin (2006) 94 SASR 480; R v P, NJ [2003] SASC 308; R v Collingridge (1976) 16 SASR 117; Haughton v Smith [1975] AC 476; Kristo v The Queen (1989) 39 A Crim R 86; R v Finnigan (No.2), considered.
R v MARDON
[2015] SADC 78Background
The complainant, Mr Anthonysz, and the accused knew each other as members of a Jehovah’s Witness congregation of Crafers. The complainant is an elder of that congregation.
In 2010 the complainant was a member of a committee of three elders responsible for a decision to excommunicate the accused from the congregation. The prosecution alleged that between 31 March 2011 and 26 October 2011 the accused was unlawfully in possession of a key to the complainant’s house (Count 1), and that on 16 August 2011 (Counts 2-3), between 15 October 2011 and 19 October 2011 (Counts 4-5), and on 25 October 2011 (Counts 6-7), the accused entered the complainant’s house and put glyphosate, a type of weed killer, into drink containers inside the complainant’s refrigerator. The prosecution also alleged that the accused stole personal documents belonging to the complainant (Count 8). The accused pleaded guilty to the charges of theft (Counts 1 and 8) at the commencement of the trial.
The accused admitted that he entered the complainant’s house as a trespasser, and that he inserted glyphosate into milk and apple juice containers inside the complainant’s refrigerator, but denied that he did so with the intention of causing harm to the complainant or his family.
He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927.
The Charges
The accused was charged on Information with eight separate offences, namely:
Count One Theft (s 134 of the Criminal Law Consolidation Act 1935) (‘CLCA’).
The particulars alleged are that:
The accused between the 31st day of March 2011 and the 28th day of October 2011 at Stirling, dishonestly dealt with property, namely a house key, without the consent of the owner Ben Anthonysz, intending to deprive the owner of that property or to make a serious encroachment on the owner’s proprietary rights.
The accused pleaded guilty to Count 1 on 23 February 2015.
Count Two Serious Criminal Trespass in a Place of Residence (s 170(1) CLCA.
The particulars alleged are that:
The accused on the 16th day of August 2011 at Stirling, entered or remained in the place of residence of Ben Anthonysz as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
Count Three Attempted Create Risk of Harm (s 29(3) and 270A CLCA).
The particulars alleged are that:
The accused on the 16th day of August 2011 at Stirling, without lawful excuse, inserted glyphosate into a container of apple juice, attempting to cause harm to another, or being recklessly indifferent as to whether such harm was caused.
Count Four Serious Criminal Trespass in a Place of Residence (s 170(1) CLCA).
The particulars alleged are that:
The accused between the 15th day of October 2011 and the 19th day of October 2011 at Stirling, without lawful excuse, inserted glyphosate into a container of apple juice, attempting to cause harm to another, or being recklessly indifferent as to whether such harm was caused.
Count Five Attempted Create Risk of Harm (s 29(3) and 270A CLCA).
The particulars alleged are that:
The accused between the 15th day of October 2011 and the 19th day of October 2011 at Stirling, without lawful excuse, inserted glyphosate into a container of apple juice, attempting to cause harm to another, or being recklessly indifferent as to whether such harm was caused.
Count Six Serious Criminal Trespass in a Place of Residence (s 170(1) CLCA).
The particulars alleged are that:
The accused on the 25th day of October 2011 at Stirling, entered or remained in the place of residence of Ben Anthonysz as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
Count Seven Attempted Create Risk of Harm (s 29(3) and 270A CLCA).
The particulars alleged are that:
The accused on the 25th day of October 2011 at Stirling, without lawful excuse, inserted glyphosate into a container of milk, attempting to cause harm to another, or being recklessly indifferent as to whether such harm was caused.
Count Eight Theft (s 134 CLCA).
The particulars alleged are that:
The accused on the 25th day of October 2011 at Stirling, dishonestly dealt with property, namely bank statements and personal documents, without the consent of the owner Ben Anthonysz, intending to deprive the owner of that property or to make a serious encroachment on the owner’s proprietary rights.
The accused pleaded guilty to Count 8 on 23 February 2015.
Directions
General Directions
It is necessary to give consideration to the elements of the offences and to the onus of proof. The accused is presumed to be innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I must be satisfied before I could convict the accused on any count on the Information that the prosecution has proved beyond reasonable doubt each element of the charge.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge. I also bear in mind that the complainants, and the accused, are entitled to a separate consideration of the appropriate verdict in relation to each count.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
Witnesses
The Crown case comprised the evidence of Mr Anthonysz, police officers, Mr Wales, Mr Bedford and Mr McLean, and Mr Drummer, a forensic pharmacologist and toxicologist who gave evidence about the toxicology of glyphosate. Certain facts were agreed. The accused elected to give evidence.
The Elements of the Offences
Counts 2, 4 and 6 – Serious Criminal Trespass in a Place of Residence – s 170(1) CLCA
The offences alleged against the accused contain five elements, each of which the prosecution must prove beyond reasonable doubt before the accused can be found guilty.
The first four elements are: 1, that the accused entered or remained in a place of residence; 2, that the entry was intentional; 3, that the accused entered or remained in the place of residence as a trespasser without the consent of the owner or occupier; 4, that the accused knew that he was a trespasser or was recklessly indifferent as to that fact. Elements 1-4 of each of the charges of serious criminal trespass in a place of residence are not in dispute.
The fifth element of the offending is in dispute; that is, that at the time of the trespass the accused intended to commit an offence against the person. The prosecution’s allegation, in respect of each count, is that the accused was attempting to cause harm to the complainant or members of his family, by putting glyphosate into beverage containers inside the complainant’s refrigerator.
Counts 3, 5 and 7 – Attempted Cause Harm – s 29(3) Criminal Law Consolidation Act - Create Risk of Harm
It is an offence to do an act, without lawful excuse, knowing that the act is likely to cause harm to another, and intending to cause such harm, or being recklessly indifferent as to whether such harm is caused.
“Harm” is relevantly defined in s 171(1) CLCA as including “physical or mental harm”.
The offence alleged against the accused contains four elements, each of which must be proved by the prosecution beyond reasonable doubt before the accused can be found guilty.
The elements of the offence are: 1, that the accused, consciously and deliberately, performed an act which was likely to cause harm to another; (the act need not in fact cause harm to any person. It is sufficient for the prosecution to prove that the act was likely to cause harm to another;) 2, that, at the time of performing the relevant act, the accused knew the act was likely to cause harm to another; 3, that the accused intended to cause harm to another, or was recklessly indifferent as to whether the performance of the relevant act caused harm to another. (Either intention or reckless indifference will suffice. An accused is recklessly indifferent if, while not intending to cause harm to another, he performs the act, realising that a consequence of doing so might be to cause harm to another but he nevertheless goes ahead and performs the act); 4, that the act was without lawful excuse. Here, there was no assertion by the accused that he had any lawful excuse.
Attempt
Section 270A(1) CLCA provides that: “a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence.”
The law in South Australia in relation to attempt was conveniently summarised by Millsteed DCJ in R v Finnigan (No.2):[1]
[1] R v Finnigan (No.2) SADC 2015.
… (T)he elements of an “attempt” under s 270A are not defined in the CLCA but are informed by the common law. The common law has generally drawn a distinction between preparing to commit a crime and attempting to commit it. In Britten v Alpogut[2] Murphy J defined an attempt at common law as follows:[3]
[2] Britten v Alpogut [1987] VR 929.
[3] Britten v Alpogut [1987] VR 929 at 938.
[A] criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.
This definition was approved by the Court of Criminal Appeal (SA) in The Queen v Irwin and, thus, represents the law in this State.[4] Accordingly, an attempt is committed when a person takes some step or steps towards the commission of a particular offence, which go further than mere preparation to commit the offence and which may fairly be described as sufficiently proximate to the commission of the offence.[5] Difficulties may, of course, arise in determining where an accused person’s conduct falls on the continuum between non-criminal conduct (mere preparation) towards the criminalisation of attempts (sufficiently proximate) to finally culminate in a completed offence[6] but this is not an issue in the context of the present argument.
[4] R v Irwin (2006) 94 SASR 480 at 485.
[5] See R v P, NJ [2003] SASC 308 at [111] Mullighan J (note the expression “immediately connected” rather “sufficiently proximate” was used by his Honour).
[6] D. Caruso and others South Australian Criminal Law, LexisNexis Butterworths Australia, 2014 at [8.18].
A controversial area of the common law concerns the circumstances in which a person may be found guilty of an attempt to commit an offence where the circumstances rendered the completed offence impossible. As Bray CJ observed in The Queen v Collingridge:[7]
[7] R v Collingridge(1976) 16 SASR 117 at 118.
Possibly the most difficult question of the many difficult questions involved in this branch of the law is the question of whether the crime of attempt has been committed when for one reason or another it was not possible in the circumstances for the accused to have achieved his object by the means which he adopted. Examples of hypothetical problems in this area, dear to the hearts of casuists and examiners, are firing an unloaded gun believed to be loaded, administering a harmless substance believing it to be poisonous or an insufficient quantity of real poison believed to be enough, stabbing a dead man believed to be alive, or a block of wood believed to be a human being, firing in the direction where the intended victim is believed to be but is not in fact, and similar questions, arising perhaps more frequently in theory than in fact.
In Haughton v Smith[8] the House of Lords considered that the question of whether a person may attempt to commit an offence in circumstances of impossibility depends upon the nature of the circumstances giving rise to the impossibility. The principle in Haughton v Smith was succinctly summarised by Bleby J in R v Irwin:[9]
The appellant’s argument has its roots in the House of Lords decision in Haughton v Smith, particularly the reasons of Lord Hailsham LC in which his Lordship did not entirely adopt but did refer extensively to the analysis of the law of attempt in the judgment of Turner J of the New Zealand Court of Appeal in R v Donnelly. In summary, the principle which can be distilled from Haughton v Smith is that attempts fall into at least three categories. In one type of case, the accused fails to complete the crime because of ineptitude inefficiency, because the means employed are insufficient or because he or she is somehow interrupted and unable to complete the offence (“insufficient means”). In another type of case, the accused does everything which he or she sets out to do, believing it to amount to a crime, when as a matter of law the actions do not constitute any offence (“legal impossibility”). In the third category, the accused is unable to complete the offence because, regardless of the means adopted, it would be physically or factually impossible to do so (“factual impossibility”). According to the decision in Haughton v Smith, only the first type of case, insufficient means, could properly lead to conviction for an attempt.
Until the decision in Irwin the courts in this State followed Haughton v Smith.[10] In Irwin the accused was convicted of attempted aggravated robbery based on his conduct in demanding money from the victim though the victim had no money on him. The Court dismissed the appeal and refused to follow Haughton v Smith in respect of the distinction drawn between factual impossibility and impossibility due to insufficient means. Bleby J (with whom Duggan and Anderson JJ agreed) said:[11]
More importantly, attempts to classify various types of attempt into particular categories has been shown to be wanting. The concept of a defence of factual impossibility is flawed and has been resoundingly condemned by judges, legislatures and commentators alike in numerous jurisdictions. There can be no ethical distinction between an offender who fails to complete a crime due to insufficient means and one who fails because of physical impossibility. The common law should reflect this. To allow such a distinction would be to endorse a technical, theoretical concept which produces unjust and inconsistent practical results. It would be contrary to common sense and would ignore community expectations that an offender who, with the requisite intention, takes sufficiently proximate steps towards the commission of a crime should not be held accountable for his or her actions
[8] Haughton v Smith [1975] AC 476.
[9] R v Irwin (2006) 94 SASR 480 at [10].
[10] See R v Collingridge (1976) 16 SASR 117; R v Kristo (1989) 39 Crim R 86.
[11] R v Irwin (2006) 94 SASR 480 at [30].
The Prosecution Case
Evidence of the Complainant
The complainant is 49 years old. At the time of the offending in April 2011, the complainant was living in Stirling with his wife and three children, aged 4, 9 and 10 years, respectively.
He said that he first met the accused 15 years prior to the incident when they were both members of the same Jehovah’s Witness congregation. Prior to the offending, the accused had been “disfellowshipped” from the congregation. The complainant was a member of a committee of three people involved in a process of considering behaviour by the accused said to offend the dictates of the church, and had imposed a penalty of excommunicating the accused from the church. An excommunicated or disfellowshipped member is still permitted to attend meetings but not permitted to interact socially with other members, either at church or generally.
The complainant said that in 2011 he had six keys to his house in total; five in the possession of family members, and a spare key which was usually left in the front door. He said that earlier in the year, one of the keys “went missing”.
The complainant’s evidence as to the offending was that after attending a congregation meeting, he came home and made a cup of tea. He described a toxic taste in the tea which he subsequently identified as originating from the milk. He inquired as to whether any family member had contaminated the milk, which they all denied. He threw the milk away. Between April 2011 and August 2011, the complainant said that on about half a dozen occasions he became suspicious that the drinks in the refrigerator were contaminated. At one point, he believed that there was something wrong with the milk he was purchasing, and took it back to the shop from which it had been purchased. However upon returning home he noticed that a bottle of fruit juice in the refrigerator was cloudy, and had the same acrid taste as the milk.
The complainant said that in May 2011 he obtained a CCTV camera as he was convinced that someone was coming into the house and contaminating the drinks. Between that time and 25 October 2011, the complainant said he tried to set the camera to activate upon detecting movement on each occasion the family left the house, but said that did not always work.
On the evening of Tuesday 25 October 2011, the complainant and his family attended their usual church meeting. He activated the camera before he left the house. Upon returning he checked the milk by tasting it, but could not taste any contamination. He then watched the video footage from that night, and saw footage showing the accused in the complainant’s house in the kitchen and at the refrigerator.
Cross-Examination of the Complainant
In cross-examination the complainant said that he is one of three congregation elders and all elders hold equal authority within the congregation. He said that the accused had admitted to engaging in a relationship with someone whilst he was married, and that was the reason he was excommunicated from the congregation. He said that the accused continued attending meetings regularly on Tuesday and Sunday nights throughout 2010 and 2011, but no member of the congregation was permitted to speak to him. On the occasions the accused attended he would have seen that the complainant, his wife and his children were also in attendance.
Evidence of Mr Drummer
Expert evidence was given by Mr Drummer, and his report dated 13 November 2013 admitted into evidence. At the time of writing the report he was employed by the Victorian Institute of Forensic Medicine as the Head of Forensic Science Centre Services. He is now the Deputy Director of programs at the Institute. I accepted Mr Drummer as an expert witness, in the field of toxicology.
Mr Drummer described glyphosate as a weed killer used to destroy weeds in gardens or on farms. He said that it can be poisonous to humans but its toxicity is relatively low, such that small exposures tend not to cause any particular harm. He said that one would need a fair amount of exposure, usually a deliberate consumption of large amounts, before it could cause significant side effects, toxicity, or even death. He said that consumption of large amounts would cause depression of the respiratory system, as well as significant gastrointestinal side effects including nausea and vomiting. Consumptions of small amounts tend not to cause any observable effects but might cause some irritation in the bowel.
For the purposes of writing the report, Mr Drummer was provided with analysis reports from the National Measurement Institute of three samples. The samples related to fruit juice and milk. Mr Drummer said that the amount of glyphosate present in the liquids represented a diluted amount. The highest concentration found was 960mg per litre, and the lowest 730mg per litre. Calculations were provided in relation to the juice which had a glyphosate concentration of 770mg, leading to the calculation that about a quarter of a gram of glyphosate or less would be ingested as a result of drinking a 250ml glass of the liquid. Therefore just under a gram of glyphosate would be ingested if a litre of juice had been consumed. He said that this would be well short of the dose required to cause significant clinical symptoms, but said that it might cause some irritation of the gut.
In cross-examination Mr Drummer agreed that glyphosate has a particularly offensive smell, such that it is easily detected in a liquid. It is also known to have a vile taste as a concentrated solution. If diluted however, without tasting the solution itself, it would be hard to know how much that would affect the taste of a liquid, such as milk or juice. Mr Drummer also agreed that consumption of glyphosate in quantities of the order of 0.2gms to 0.4gms would be unlikely to cause harm.
The Evidence of Police Officers
The evidence of police officers related to formal matters including the taking of photographs, the gathering of items including a container of weed killer by the crime scene investigator and the arrest of the accused. Police took samples from the milk and juice containers found in the complainant’s refrigerator. Police seized a plastic bottle of weed killer from the house of the accused, along with a snap lock bag of syringes, a key which worked in the barrel lock of the complainant’s front door, and two further syringes, as well as a registration document addressed to the complainant and his wife, located within the accused’s vehicle.
The Defence Case
The accused said in chief that he became a Jehovah’s Witness when he was 19 years old. His first interaction with a Jehovah’s Witness was when he was 17 years old and he met a girl whose mother was a Jehovah’s Witness. When he joined the church he participated in meetings in Whyalla where he then lived. At the age of 23 years he moved to Bridgewater. He continued to be part of the Jehovah’s Witness church and attended the congregation at Crafers.
The accused met the complainant through a Lobethal congregation which the complainant was attached to at the time. Ever since the accused joined the Jehovah’s Witness group in Whyalla, his entire social life consisted of, and was restricted to, associating with other members of the church.
The accused said in 2010 he was having difficulties in his marriage, and had sexual relations with another woman, an act forbidden by the Jehovah’s Witness faith. The accused did not disclose his actions to anyone else for about six months, but described the anguish he experienced as a result of being “morally unclean and dishonest.” He confessed to his wife, and to an elder within the church. A formal meeting was organised within the church before a committee of three elders, one of whom was the complainant. The accused discussed with them what he had done and following this discussion the elders “announced” his confession to the congregation. The accused described that process as a formal process, whereby his wife was given the option of choosing to annul the marriage. Following the announcement another meeting was arranged, which the accused described as “an informal get together.” The same three elders were present. Further inquiries were made of the accused following which the accused was told that he was about to be excommunicated from the congregation. The decision was announced to the congregation at the following Tuesday meeting, in the presence of the accused. The accused’s wife was also a Jehovah’s Witness and she continued to attend the meetings following his excommunication. Members were permitted to speak to her, but not to the accused.
The accused said that he attended every Tuesday and Sunday night meeting throughout 2010 through to October 2011. He said that given the close relationship between members of his faith he was ignored, not only by his congregation, but every congregation. He described being ‘shattered’ by this.[12]
[12] T 110 line 28-29.
When the accused was initially “disfellowshipped” he described being unhappy, but accepted the decision as part of the disciplinary process. However, he said eventually it went past a time within which he should have been reinstated. By early 2011 he said that he was depressed. He said that he became desperate as no one was talking to him and he had no one to talk to. He wasn’t formally forbidden from speaking to anyone else, but if he was seen speaking to people outside of the congregation it would be viewed as him creating another life, and not being serious about wanting to be a Jehovah’s Witness. On three separate occasions the accused wrote a formal letter to the elders asking to be reinstated and each occasion his application was refused.
The accused agreed that he obtained a key to the complainant’s home at some point, but said he could not recall how he came to be in possession of that key. He agreed that he did not have permission to obtain that key. He said that at some point in mid 2011 he used the key to gain entry into the complainant’s house.
When asked why he went into the complainant’s house, the accused said he was getting desperate. He said that he was looking for something in the house that would take the complainant away from being on the judicial committee. He said he was looking for bank statements or tax information which might indicate that the complainant was stealing donations made anonymously to the congregation. The accused said that he felt the complainant was the leader of the elders and that he was controlling the others. He said he believed that he would be more entitled to a fair hearing and there would be more of a chance of him being reinstated if the complainant was no longer an elder.
Some time in 2011 the accused said that he decided to put glyphosate in the liquids in the complainant’s refrigerator “to disrupt the family and cause uneasiness within the family” in the hope that they may feel uncomfortable about things going on in their home, and the complainant would need to be around to protect them. In order to do this the complainant would need to step down as an elder, and another elder would be assigned to his matter.
The accused said he used a one ml syringe to put glyphosate into the complainant’s drinks. He said he would not always fill the syringe to the top; it would depend on the amount of liquid that was in the container. The accused said that he knew at the time of putting glyphosate in the drinks that it was a weed killer and he knew what chemicals were in it. He said that he did not think that putting glyphosate into the drinks would harm the complainant, his children or his wife.
The accused said that he went to a lot of effort to ensure that this wasn’t the case. He said he contacted a poisons hotline and asked the person who responded what would happen to them or what would be the harm if somebody had consumed glyphosate or ‘No Grow 450’. He said the person asked him if it was concentrated or diluted, and he said diluted. He was then asked, in what concentrations and he responded, in normal dilutions of the bottle. When asked by his counsel to elaborate on ‘normal dilution’ he said that he would calculate it to be 20ml per 5 litres. The accused said he was told by the poisons hotline person to monitor the person who had consumed glyphosate, but not to take them to the hospital unless they showed signs of sickness in any way. The accused said that after the conversation on the poisons hotline, he considered that it was a possibility that glyphosate at the levels he had administered might cause someone harm.[13]
[13] T 119 line 25.
The accused said that following the conversation with the poisons hotline person he mixed up various batches, starting with the recommended dosage amount of 20ml per 5 litres, which he worked out to be 4ml per litre. He described it as painful to drink due to the taste and smell, but said that by painful he meant it made him gag, as opposed to having made him suffer physical pain. He said that he was only able to consume half a glass and that he felt no effects, only that he couldn’t get rid of the taste in his mouth. He continued trying to drink it at different diluted concentrations, he said that he was concerned the complainant or his family might drink the liquid so he didn’t want to put an amount of glyphosate that was too low into the liquid that they might not notice and drink it. He said again that he wasn’t intending to hurt the complainant and his family, but rather disrupt them enough that they would want the complainant home with them. The accused said that he tested the glyphosate about half a dozen times and suffered no adverse effects. He said that he didn’t think anything would happen if the complainant or his family drank any of the contaminated liquids as they would spit it out because of the taste. He reiterated that he did not intend to cause them harm or make them sick.
Cross-examination of the Accused
In cross examination the accused agreed that he was concerned the family would drink the contaminated liquids which is why he tested it on himself at various diluted levels. He also agreed that he was contaminating liquids in the refrigerator which were the type of liquids that a family would drink. He agreed that at the time he was putting glyphosate into the liquids he knew that the complainant had three children and that at the time one of those children was around five years old. It was put to him that despite his expressed concern that the family might drink the liquids, he put the glyphosate in the exact products that people would be expected to drink, namely milk and apple juice. The accused said that this was correct and was an oversight on his part. He said “I hadn’t thought a great deal about it to be perfectly honest.” He went on to say that his thought was that one simply could not drink it, as nothing could disguise the taste and it was his belief that a child would be even less likely to drink it.
The accused said that he put the glyphosate in a liquid that would cause them “a little bit of emotional discomfort” by “playing with their minds.” He said that he went to every effort possible to avoid causing physical discomfort.
As to his claim that he had called the poisons hotline, the accused said that he assumed that he found the poisons hotline number on Google, but was unsure whether it was a government department number. He said that he spoke with a female and told her that a child had ingested some glyphosate but that he wasn’t sure how much had been ingested. He said he was told that consumption could cause nausea and vomiting and was asked if the child had vomited. He said that he asked if it was going to cause harm and they said no.[14] He agreed that at the time he was aware that consumption of the weed killer No Grow 450 could cause vomiting and nausea.
[14] T 129 line 30-36
The accused agreed that when he was excommunicated from the congregation he lost his entire social network, and agreed that in his mind it was the complainant who was preventing him from rejoining the congregation, and it was the complainant who had the greatest influence within the group. He described “feeling invisible” at the meetings and said that it was when he knew people within the judicial committees were laughing and saying that his life was a joke, and that his wife’s life was a joke, that he realised it didn’t matter what he did; the complainant had already prejudged him and would never understand and accept anything he said or did.
The accused said that his wife divorced him in 2012. He said that he would have discussions with his wife about moving, and starting a new life somewhere else, but that the elders would then talk to her. He said “every piece of good that I would do, they would destroy it within minutes and so she ended up turning against me.’[15] He agreed, that in his mind he had lost his friends and his wife because of the elders, including the complainant, but disagreed that he wanted revenge on the complainant.
[15] T 136 line 17-19
The accused said that he knew that the complainant thought he was doing the right thing so he didn’t judge him for that. He went on to say the following:[16]
AI saw – this is going to be unusual, okay? I saw the glyphosate as a less destructive thing than if I found anything on his tax because it would be non-confrontational, Ben simply steps aside. Whereas if he’s a disfellowship, I don’t want that: he’s an asset, right or wrong he’s an asset. We don’t always do things that are right even though we believe that we are and I’m a good example of that.
[16] T 137 line 12-20.
He agreed that he was not going to the home of any of the other elders and putting glyphosate into their drinks. The accused said that he was going out of his way to protect the complainant and his family. Counsel for the prosecution suggested to the accused that if he was trying to protect the complainant and his family he would not be putting a poison into their drinks. The accused said in response that he did not consider glyphosate to be a poison, and thought it was a ‘safe product.’ Despite this he still contacted the poisons hotline and said that he agreed that he had made a massive mistake but still denied wanting to cause the complainant harm. It was suggested to the accused that his intention was to make the complainant sick so that he would not be able to attend the meetings. He denied that this was his intention. He agreed that putting poison into somebody’s drinks is an extremely confrontational thing to do.
Submissions
Counsel for the accused submitted that the accused’s thought processes and emotional state at the time of the offending affected his ability to think rationally, therefore the accused did not intend to cause harm to the complainant but simply wanted to ‘put the wind up them.’ Further, it was said that the accused was not reckless as to whether harm would be caused; he in fact made every effort to avoid that by tasting and drinking the glyphosate himself. It was submitted that by putting a liquid with a particularly pungent smell and vile taste into the same liquids every time, the accused was expecting that the glyphosate would be readily identifiable and completely predictable.
I bear in mind the submission of counsel for the accused that I should consider the accused’s mental state when determining what the accused was thinking when he entered the complainant’s house. As defence counsel submitted, the accused was at a loss emotionally and spiritually. The church had abandoned him and his marriage was being destroyed. His judgment was impaired. Defence counsel submitted that I could infer that someone who puts glyphosate in someone’s drinks is not thinking clearly. I accept that the accused’s judgment may have been impaired.
Findings
As I have said, there is no controversy as to the factual basis of the charges. The real issue for determination is whether I am satisfied beyond reasonable doubt that the accused intended to cause harm, or was reckless as to whether there was a risk of harm being caused, to the complainant or members of his family by his actions. A further issue is consideration of whether poison of the amount used by the accused was likely to cause harm.
I accept the evidence of Professor Drummer that glyphosate is a weed killer that can be poisonous to humans when ingested;[17] and that dependent upon the amount of glyphosate ingested, consumption could cause significant side effects including death.[18] The consumption of a significant dose of glyphosate could cause depression of the respiratory system, problems with blood pressure, and significant adverse effects in the stomach. The consumption of small amounts may not cause adverse side effects but that would depend upon the sensitivity of the person consuming the poison.[19] The consumption of relatively small amounts, such as that discovered in the milk from the complainant’s refrigerator, might cause irritation of the gut, or perhaps nausea, but would be unlikely to cause significant side effects.[20]
[17] T 84 line 34-T85 line 9.
[18] T 85 line 15.
[19] T 85 line 19.
[20] T 87 line 37.
The effect of those findings is that the contamination of the milk and juice, at the levels at which the accused admitted contaminating those drinks, could possibly have caused harm, but I am unable to find that it was “likely to cause harm” in terms of s 29(3) CLCA.
I find that the causing of nausea or vomiting would constitute a sufficient harm within the broad definition of s 171(1) CLCA.
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the court room. His explanations were unconvincing, as was his manner. He gave inconsistent evidence saying he knew of the poisonous properties of glyphosate, but considered it to be a safe product. He gave inconsistent evidence saying he had inserted known poison into drinks in the complainant’s refrigerator, but also saying he did so in such a manner as to protect the complainant and his family from consuming the poison.
I reject as even a reasonable possibility, that the accused contacted the poisons hotline at all. His evidence that he thought the weed killer he was inserting into the consumable drinks in the complainant’s refrigerator was a safe product beggars belief. I am satisfied beyond reasonable doubt that the accused intended in fact to exact some revenge upon the complainant, and that he was endeavouring to ensure that the complainant did not continue his position as an elder at the church. I reject his denials of intending to cause either the complainant or his family harm by committing the acts he has admitted.
I bear in mind that disbelieving the accused of course does not establish the prosecution case. It is necessary for me to consider whether the elements of the offences have been proved on the evidence.
As I have said, I completely reject the accused’s evidence that he took the precautionary steps that he gave evidence about, namely ringing the poisons hotline to endeavour to ascertain the effects of consumption at particular levels of the weed killer, and contaminating his own drinks and drinking them to ascertain the impact of consumption of the weed killer. I consider that his evidence about those matters was an ex post facto rationalisation of behaviours he realised subsequent to being charged, was somewhat irrational.
The matters put by defence counsel, as to the approach to be taken to assessing the accused’s mental state however, were the very reasons I find that the accused entered the complainant’s house as a trespasser intending to cause harm, (within the definition to which I have previously referred) to the complainant or members of his family. I find beyond reasonable doubt that he contaminated the drinks with a known poison, intending to cause at least nausea. That is the only reasonable and rational inference I can draw from the evidence as I have found the facts to be.
I consider that the only reasonable rational inference to be drawn from a combination of the finding that the accused bore an intense animosity towards the complainant to whom he attributed the loss of his marriage, and of his social life; together with the use of a contaminant which he knew to be poisonous, and knew was capable of causing harm; is that he did indeed intend to cause harm to the complainant, or to members of the complainant’s family which would have the impact upon the complainant of preventing him from attending church meetings.
The accused was aware of the possible side effects of the consumption of the weed killer, and contaminated the very drinks likely to be consumed, including by children he knew to be present in the house, namely milk and fruit juice.
I find that the fact that there may not have been sufficient poison to be likely to cause harm does not afford the accused a defence, or mean that the charge of attempting to cause harm cannot be made out.[21]
[21] R v Irwin (2006) 94 SASR 480.
I find each of the elements of the offences proved beyond reasonable doubt.
Count 1
The accused pleaded guilty at the commencement of trial to the charge of theft.
Count 2
I find beyond reasonable doubt that the accused did commit an act of serious criminal trespass in a place of residence by entering the complainant’s house on 16 August 2011 as a trespasser. He did so with the intention of committing an offence against the complainant or his family or both, namely, the offence made out in Count 3 on the Information, of inserting glyphosate into a container of apple juice in a refrigerator in the complainant’s home, attempting to cause harm to the complainant or his family or both.
Count 3
I find that there was an attempt by the accused to cause harm on 16 August 2011. I find it proved that the accused inserted glyphosate into a container of apple juice in the complainant’s refrigerator, attempting to cause harm to either the complainant or his family.
Count 4
Count 4 is made out beyond reasonable doubt. The serious criminal trespass in a place of residence is constituted by the accused entering the complainant’s house between 15 October 2011 and 19 October 2011 as a trespasser, intending to commit an offence against the complainant or his family, namely the offence made out in Count 5 on the Information. That is, he inserted glyphosate into an apple juice container in the complainant’s refrigerator, attempting to cause harm to either the complainant or his family.
Count 5
I find beyond reasonable doubt that there was an attempt to cause harm between 15 October 2011 and 19 October 2011, constituted by the accused inserting glyphosate into a container of apple juice in the complainant’s refrigerator, attempting to cause harm to either the complainant or his family.
Count 6
I am satisfied beyond reasonable doubt that the accused committed an act of serious criminal trespass in a place of residence on 25 October 2011 by entering the complainant’s house as a trespasser. The trespass was committed with the intention of committing an offence against the complainant or his family or both, namely the offence made out in Count 7 on the Information, of inserting glyphosate into a container of milk in the refrigerator, attempting to cause harm to the complainant or his family.
Count 7
I find that on 25 October 2011, the accused committed the offence of attempting to create a risk of harm by inserting glyphosate into a container of milk in the refrigerator, intending to create a risk of harm to the complainant or his family.
Count 8
The accused has pleaded guilty to Count 8 on the Information, namely theft.
Verdict
As to Count 1 – Guilty
As to Count 2 – Guilty
As to Count 3 – Guilty
As to Count 4 – Guilty
As to Count 5 – Guilty
As to Count 6 – Guilty
As to Count 7 – Guilty
As to Count 8 - Guilty
4
1