Crimes Amendment (Drink and Food Spiking) Bill 2008

Clauses 1 to 4 agreed to.

Mr GREG SMITH (Epping) [4.36 p.m.]: I move the following amendment:

Page 4, schedule 1 [4], proposed section 38A (4), lines 9-14. Omit all words on those lines.

I reiterate what I said earlier. The offence provision 38A (2) states:

A person:

(a) who causes another person to be given or to consume drink or food:

(i) containing an intoxicating substance that the other person is not aware it contains, or

(ii) containing more of an intoxicating substance than the other person could reasonably expect it to contain, and

(b) who intends a person to be harmed by the consumption of the drink or food,

is guilty of an offence.

That does not sit well with the proposed defence in subsection (4) that states:

A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food.

To succeed in the prosecution or to bring a prima facie case there has to be evidence, which, if contradicted, would prove that the alleged perpetrator intends the person to be harmed by the consumption of the drink or food. To have a defence that says if you have a reasonable cause to believe that the victim would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of an intoxicating substance in the drink or food makes a mockery of the offence because it assumes some people may volunteer to be harmed by being knocked out by these intoxicating substances.

This bill is aimed at protecting women, in particular, from being raped or robbed as a result of being given too much alcohol, Rohypnol or some other harmful intoxicating substancethat affects a person's senses or understanding. Harm includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances. Interestingly, the phrase "might reasonably" is an objective test in the meaning of "harm" and in the defence. That is absurd. Despite the protestations of my learned opponent the Parliamentary Secretary and those advising him, the model committee said that this was redundant and unnecessary. If someone mistakenly felt that the victim wanted to be knocked out for non-medical purposes, one would think they would ask the victim first.

It is absurd to suggest that someone would voluntarily allow himself or herself to be preyed upon by someone who had secretly administered an intoxicating substance to knock them out. There is very good reason for the Government to improve this legislation and to protect women, who are the main victims, and men from this type of evil offence. It can only be said to be evil and cowardly to drug someone for the purposes of sexual gratification or robbery. I am sure that the member for East Hills would agree that it is a heinous offence and we certainly want to protect potential victims. That is said to be the purpose of this legislation. In doing that, we should not include a defence that causes so much confusion that some magistrates—I will not name any—may well regularly let people off. We do not want that; we want this legislation to protect people.

The more serious offence referred to in proposed section 38A carries a penalty of 25 years imprisonment, which means there must be a trial. I gave the example of TA, which highlighted the persecution suffered by a woman regarding whether she was consenting because she was delirious and looked as though she was enjoying herself. She obviously had no idea what was going on. We do not want women to have to go through that experience. We want the effective alternative provision that this Government promised, which the Model Criminal Code Committee recommended and which other States are implementing.

I understand that one member claimed that Western Australia had introduced a defence. I assure the House that I was not confused about the section to which I was referring. I mentioned the TA case to illustrate how bad it is for women and to highlight that, even if a defence exists to protect doctors, sometimes doctors are the wrongdoers. In the TA case a doctor was the offender, having injected a woman with an intoxicating substance that nearly killed her. He had to resuscitate her. I urge the Government to ignore any prejudice because it is an Opposition amendment, to take a bipartisan approach to helping women in these situations and to support the amendment. The Government has not offered a rational argument as to why that defence should be included. All it will do is cause confusion.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [4.45 p.m.]: This morning Opposition members spoke about offences involving the use of intoxicating substances to commit sexual assault and other serious offences. The member for Epping has also spoken about using intoxicating substances to facilitate sexual gratification or robbery. The Opposition has moved an amendment to remove the offence in proposed section 38A (4). Members opposite have expressed horror that it will allow an alleged offender to escape punishment or, to use the words of the member for Burrinjuck, "provide a loophole" to offenders charged with using an intoxicating substance to commit sexual assault or some other serious indictable offence. That is simply not true.

The Opposition does not appear to understand that proposed section 38A (4) cannot be used as a defence to a charge of using an intoxicating substance with an intent to commit an indictable offence. The same would be true if someone gave another person poisoned food. The defence in proposed section 38A (4) is simply not available because the offences they are talking about are indictable offences that the law regards as serious and will be dealt with on indictment in the District Court before a judge and a jury. Proposed section 38A deals with a summary offence that will be dealt with by a magistrate in a Local Court. To make it abundantly clear that that is the case and that this does not apply to the more serious offences that the member for Epping and other members opposite referred to, I will read proposed section 38A (4). It provides:

A person does not could commit an offence against this section if the person has reasonable cause to believe

And then says "an offence against this section"—not section 38 but proposed section 38A. That is, the defence in proposed section 38A (4) is a defence to a charge in a Local Court.

Mr Greg Smith: That is right.

Mr BARRY COLLIER: Does the member agree with that?

Mr Greg Smith: I do.

Mr BARRY COLLIER: There goes his argument.

Mr Greg Smith: But you often can't prove the criminal act afterwards because the woman is unconscious and can't remember anything. That is why you can't prove it.

ASSISTANT-SPEAKER (Ms Alison Megarrity): Order! The Parliamentary Secretary will be heard in silence.

Mr BARRY COLLIER: Again the defence applies to section 38A, not to proposed section 38 and the serious offences to which the member for Epping keeps referring. Those serious offences are dealt with on indictment in the District Court; these offences are dealt with in a Local Court. In short, the defence does not apply to those heinous cases that he referred to and about which he provided examples. Those cases are dealt with in the District Court on indictment. I am sure that the member would agree that if someone did use an intoxicating substance to commit those offences obviously the court would treat that as an aggravating feature of the offence.

The definition provides that the defendant must have reasonable cause to believe that each person who was likely to consume the drink would not have objected to the food or drink and so on. That is not a loophole; it does not allow a defendant to walk away as a result of relying on that defence. The defendant must show on the balance of probabilities that he or she had reasonable grounds for believing that the other person did not object to consuming the drink or the food. That is a question of fact to be determined from the surrounding circumstances by the presiding magistrate. It is not carte blanche. A defendant cannot simply walk away; it is not a loophole.

The Government opposes the amendment moved by the member for Epping. The defence included in proposed section 38A (4), in the interests of abundant caution, serves to clarify the extent of the application of the offence. It will ensure that prosecutions and convictions are targeted toward appropriate levels and categories of criminality. The defence was also recently adopted by the Western Australian Parliament in conjunction with the implementation of a drink spiking offence in that State. The inclusion of the defence operates to clarify that the new offence does not include acts done by a person when they had a reasonable belief that the other person would not have objected to those acts. As I said, the reasonableness of the belief must be established in order for the defence to operate. The more serious acts referred to by the Opposition this morning will continue to be covered by sections of the Crimes Act. In fact, section 38 has been amended for that very purpose.

The defence to the new summary food and drink spiking offence represents a balanced approach by the Government in seeking to make New South Wales safer by specifically targeting the act of spiking in and of itself. Instead of having to prove a suspect intended to rob or assault somebody after spiking their drink, the police will now have the option to charge offenders just because they spiked the drink in the first place. What we are doing here is not redundant. We are seeking through this legislation to fill a gap identified by the Model Criminal Law Officers Committee. It would be a shame if this balance were upset as a result of any confusion about the extent of the application of the defence. It would also be a shame if the suggested defence creates some sort of loophole for offenders with insidious intentions to escape punishment because of baseless or clearly unreasonable assertions. The Government opposes the amendment.

Question—That the words stand—put.

The House divided.
Question resolved in the affirmative.

Amendment negatived.

Schedule 1 agreed to.

Consideration in detail concluded.


Motion by Mr Barry Collier agreed to:

That this bill be now passed.

Bill passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.