R v Smith - [2011] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v SMITH
[2011] SADC 78
Reasons of His Honour Judge Chivell
27 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES
Disputed Facts Hearing - Charges of theft (2 counts) and assault (one count) - Defendant submits in mitigation that offences committed under influence of involuntarily ingested drug.
Held - involuntary ingestion of drug not proved on balance of probabilities
R v Lobban (2001) 80 SASR 550; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, applied.

R v SMITH
[2011] SADC 78

Daniel Graham Smith pleaded guilty to charges of theft (two counts) and assault (one count) in this Court on 15 November 2010, before Her Honour Judge Davey. The matter was adjourned because there was concern that certain evidence given by Mr Smith was inconsistent with his pleas of guilty.
This issue has since been resolved. Mr Smith claims that he was intoxicated when he committed these offences and is amnesic about what happened. However, he accepts that he was conscious and acting voluntarily at the time the offences were committed.
The factual dispute now before me relates to whether Mr Smith was intoxicated as a result of being given a drug of some sort by an unknown person in circumstances where Mr Smith was unaware of its nature. In other words, he maintains that he was intoxicated, but that the intoxication was involuntary and resulted from the act of another.
The prosecution disputed this claim.
Mr Smith submits that involuntary ingestion of a drug mitigates the seriousness of the offending. Accordingly, the onus is on Mr Smith to satisfy me, on the balance of probabilities, of the truth of this claim.[1]
[1] R v Lobban (2001) 80 SASR 550 at [26-33] per Martin J, citing R v Olbrich (1999) 199 CLR 270, R v Storey [1998] 1 VR 359 at p 369
The facts giving rise to the charges to which Mr Smith has pleaded guilty are contained in the statements of the two victims and police officers. Mr Smith does not dispute these facts.
At 11.18 am Ms Matters, the first victim, was sitting in her motor vehicle at the petrol station at the Adelaide Airport. Mr Smith approached the car and suggested to her that he had a gun. He then grabbed her handbag and walked off. When she called out to him he called her a “stupid bitch” and later, when she drove her car towards him, he made the shape of a gun with his fingers. Ms Matters’ property including the handbag and a mobile telephone were later found in Mr Smith’s possession.
A few minutes later, Ms Aitken was sitting in a motor vehicle she had just hired at the airport. Mr Smith approached and opened the door of the car and demanded a lift out of the airport. Ms Aitken said “No”. Mr Smith then tried to pull her out of the car, telling her that the police were after him. He then removed her keys from the ignition.
At around this time, police officers arrived on the scene. Both officers Strickland and Quigley deposed to seeing Mr Smith shouting at the female driver of a car, obviously Ms Aitken. They saw him try to drag her out of the car, and then take the keys from the ignition. They said that Mr Smith told them to “Fuck off”, and that he was agitated and aggressive. Because Mr Smith did not comply with their directions, and moved as if to remove something from his bag, the police officers drew their firearms. He still did not comply with their directions, and eventually they deployed capsicum spray and took him to ground, where he struggled violently. Other police officers, both State and Federal, attended and assisted to subdue Mr Smith. He was handcuffed and then became compliant.
After he was arrested, he was conveyed to the Sturt Police Station and placed in a holding cell. He was asked by the cell guard, Constable van Dijk:
"Q… Have you taken any drugs recently?
AJust speed.
QJust the amphet?
AYep.
QHow much?
A(no response)
QA point? A couple points? How much?
AYeah a bit more than a couple points.
QWhen? Today or …
ALast night”[2]
[2] Statement, p 4
Constable van Dijk wrote in the Prisoner Screening Form[3] that Mr Smith appeared “moderately – highly” under the influence of alcohol/drugs. He commented:
Appears to be under the influence of amphetamines/LSD * 1330 hrs – Arrested male states he had taken more than 1 point of speed yesterday. Feels okay now.
[3] Exhibit P1
Constable van Dijk gave evidence at the hearing. He described Mr Smith’s behaviour in the holding cells as “bizarre”.[4] In cross-examination, he was asked to elaborate. He said:
His behaviour appeared to be out of the ordinary. He was speaking extremely fast and he was rambling passages of speech which were inaudible, incomprehensible, they were fast passages of speech. He appeared to be looking everywhere quite fast and agitated All of his movements appeared to be faster than the ordinary person which, to me, shows the behaviour of a person affected by methamphetamine-type substance.[5]
[4] T31
[5] T33
Mr Smith was interviewed at 2.40pm that afternoon. At that time he was apparently alert, there was discussion of him obtaining legal advice, and he declined to answer questions about the incident.
Mr Smith gave evidence on oath that he had only been released from Mobilong Prison about three weeks prior to these events on 22 April 2010. He said following his release from Mobilong he went to live with his partner in Waikerie. He stayed away from drugs following his release. He conceded that he’d had a heavy amphetamine habit in the past. He said that his partner drove him to Adelaide on the night of 21 April to buy a washing machine from a friend. She dropped him off at the home of a friend, Sahar Nabi, and then drove back to Waikerie to work. There was a barbecue going on at Sahar Nabi’s house. He had a glass of whiskey and coke, and a stubbie of beer. He had a headache, so he asked Sahar Nabi for some Panadol. She gave him some tablets which he took, and then he went to bed.
He says he has no memory of what happened after that until he woke up in the cells at the Sturt Police Station.
He had a memory of the capsicum spray burning him, but nothing else.
Mr Smith said he had no memory of telling Constable van Dijk that he had taken speed.[6] He denied that he took speed the night before.[7]
[6] T13
[7] T15
It is an agreed fact that the police were requested by a member of Mr Vadasz’s firm to undertake a blood and urine analysis of Mr Smith by way of facsimile sent at 15:41 hours on 23 April 2010, that is the day after these events. I accept that this confirms that Mr Smith’s claim of involuntary ingestion of drugs could not have been invented by him after that time. No such blood test or urine test was conducted. I have no evidence as to whether any drugs relevant to this matter could have been detected had such analysis been undertaken in response to the request.
In cross-examination, Mr Smith admitted that he knew that Ms Nabi was an amphetamine user, but said that he was not interested in taking drugs, and that he could say “No”.[8] He said he has spoken to Ms Nabi on the telephone a couple of times since these events. Ms Nabi told him that her friend feels responsible because she had given him her medication rather than Panadol. Inherent in this evidence is that it was not Ms Nabi who provided the medication but another, unknown female person. She told him what the tablets were but he now could not remember. He did not ring Ms Nabi for “a few months” after 22 April 2010.[9] He could not now remember what the tablets looked like. He said he could not remember saying to Mr Broomhall, the psychologist, that he believed the medication was “something along the lines of a sleeping tablet or Panadeine Forte”.[10]
[8] T20
[9] T23
[10] T24
Conclusions
The onus is on Mr Smith to satisfy me of the truth of his assertion that he was, at the time he committed these offences, under the influence of an intoxicating drug which he had taken unknowingly, thinking it was a headache tablet.
From his cross-examination, it has clearly been within Mr Smith’s ability to provide evidence of the nature and type of substance which he asserts was given to him. He has failed to do so, simply explaining that he has forgotten what he was told a couple of months later when he telephoned his friend.
Put at its highest, Mr Smith’s evidence is simply that he has no memory of committing these offences, and all he can think of is that he took two tablets the night before thinking they were Panadol.
Mr Smith’s behaviour on the following day, 22 April 2010, strongly suggests that he was not under the influence of any kind of stupefying drug. His behaviour at the airport was aggressive, and agitated, much more consistent with having taken a stimulant drug such as amphetamine. This is also consistent with what he told Constable van Dijk in the cells, namely that he had taken “more than a couple of points” of amphetamine the night before.
Mr Smith has not produced any other evidence to support his claims, either from the friend Sahar Nabi who gave him the tablets, or from Sahar Nabi’s friend who allegedly supplied them.
Given all this evidence, I am not satisfied on the balance of probabilities that, at the time he committed these offences in the later morning of 22 April 2010 at the Adelaide Airport, Mr Smith was suffering from the effects of an involuntarily ingested drug of some sort. The fact that he has no memory of these events, it seems to me, does not, of itself, prove that fact. On his evidence, he could well have taken Panadol or some other pain-relieving drug the night before, gone to sleep, and then later taken an amphetamine or some other stimulant drug and now has no memory of having done so. That does not amount to involuntary intoxication.
In all these circumstances, I reject the submission that the sentence to be imposed for these offences should be mitigated on the grounds of involuntary intoxication.