[1988] HCA 31
O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220
Source
Original judgment source is linked above.
Catchwords
[1988] HCA 31
O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220
Judgment (8 paragraphs)
[1]
Introduction
Earlier this week Jacob Knell was indicted and said he was not guilty of two counts:
Count 1 - attempt to cause a person to take an intoxicating substance with intent to commit an indictable offence of sexual touching, without consent, knowing the person was not consenting: s 38(b), s 344A(1) Crimes Act 1900.
Count 2 - sexual touching without consent, knowing the person was not consenting: s 38(b) Crimes Act 1900.
A jury was empanelled. The Prosecution case is about to close
I have been asked to rule on the direction I propose to give the jury in relation to the term "cause to take" in Count 1. This ruling will then impact upon the course of the trial, as a no-case submission in relation to Count 1 has been foreshadowed by the defence. The jury are waiting. They have been very patient, as today has been disrupted, including by the discharge of a sick juror: see separate judgment. I will be as succinct as I possibly can. I have added the references to authorities, quotations, and extracts from the transcript referred to when this judgment was taken out.
At the start of the trial, as is my usual practice, I advised the parties that I would prepare a Jury Elements document, which would be read to the jury at the close of the evidence and before addresses. Two drafts of that document were circulated for discussion. In the initial Jury Elements document 1.1, under the heading, "Cause to take", I noted,
"The words 'cause to take' carry their ordinary English meaning' here, to do something to induce by request, demand, trick or force, someone to ingest or otherwise take into their body."
After circulating that draft, I had cause to look at the commentary to s 38 (b) Crimes Act in Criminal Practice and Procedure NSW, LexisNexis Butterworths, authored by former Justices Howie and Johnson. The commentary at [8-s 38.10] drew my attention to the decisions of Justice Howie J in R v Wilhelm [2010] NSWSC 334 and the Court of Criminal Appeal of R v Riley [2011] NSWCCA 238. Both judgments held that the term "cause to take" referred to "a situation where a person of authority over another commands or directs them to take a substance."
I informed the parties of those two authorities and provided them with a further Draft Jury Elements document 1.2. There I noted, under the heading "cause to take:"
"The words 'cause to take' require proof that a person with authority over another ordered, commanded or directed them to ingest or otherwise take into their body the intoxicating substance."
There have been a number of short discussions during the course of the trial but a few moments ago, as the Prosecution case is now about to close, I was asked to rule on what proposed direction I intend to give.
[2]
Submissions
Earlier today the prosecution provided me with comprehensive written submissions, which reviewed the relevant authorities: MFI 9. Mr Steward for Mr Knell, at very short notice provided written submissions, to which he spoke: MFI 11. The prosecution relied upon their written submissions.
Mr Steward's submissions are succinct and to the point. He says my second suggested direction in Jury Elements 1.2, is the correct one. It is consistent with the determination of the Court of Criminal Appeal in Riley, which adopted the direction of Justice Howie J in Wilhelm. That decision was based on his Honour's comprehensive analysis of authorities which discuss the term "cause to take," including O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220 and decision of Justice Yeldham in Castle v Olen (1985) 3 NSWLR 26.
Mr Steward submits, that I am bound by those decisions and must apply them. He then submits that; applying that direction the evidence taken at its highest could not establish the accused "caused" the complainant "to take" anything. Given the evidence of the complainant at trial transcript pp 12 and 15 (see below at [12]) this would mean the Prosecution could not prove that critical element of Count 1.
The Prosecution submit that those cases should be confined to their facts, as both involved questions of causation in death cases. They took me to the decision of the Court of Criminal Appeal in Houshyar v R [2022] NSWCCA 245; the most recent decision involving the application of s 38 (b) Crimes Act. In that case, Judge Flannery SC gave this direction to the jury:
"To cause to be taken, includes putting an intoxicating substance into a drink, intending the person who consumes the drink, without informing the person of the presence of the intoxicating substance in the drink and ignorant of the presence of the intoxicating substance, the person drinks the drink."
That direction was accepted by the parties and the Court.
[3]
Transcript
The following passage's set out the complainant evidence about how she was, on the prosecution case, "caused to take" the intoxicating substance. It starts from when the complainant said she heard the accused come into her bedroom:
"He didn't talk. He opened the door. Our bedroom light was off but the light behind him in that hallway was on, so I could see him. And I asked him if I could have a glass of water, 'cause I had a sore throat": TT page 12
She said he went and took and then dropped the container of sleeping pills she kept in her cupboard. Then:
"A. He'd come back into my room about ten minutes later with a glass. It was a short round one … I took a sip of it and it tasted like straight cordial so I sat it down on my bedside table: TT 14
Q. Now after you've taken a sip and put that glass beside the bed--
A. Yeah.
Q. --are you able to say what Jakob then did?
A. He left the room and then he kept coming back in asking me if I drank any and telling me to drink it. He did that around four times, and then the next time he come into the room I pretended to be asleep.
Q. I'll come to that bit. You said he came back in and you think it was about four times, and asked you about the drink. When you say he came back in, what was he doing when he came back in?
A. He would just walk in, ask me, "Have you drank any", then...(not transcribable)..that "Can you drink some".
Q. You say he did that about four times?
A. Yeah.
Q. Are you able to say over what period of times, in term of minutes, or whatever it was for him to make those four return trips you're talking about?
A. Probably like, it was just all different, like two minutes, and then five minutes.
Q. You then started to say that there was a time he came into the room, and you pretended to be asleep?
A. Yes": TT page 15
The prosecution submit that those facts require a Houshyar type explanation of the term "cause to take." The defence submit that if the direction set out in Riley is given, on those facts, a verdict of direction would be required.
[4]
Consideration
In their written submissions, the Prosecution took me to other Crimes Act provisions where "cause to take" relates to drink spiking and to the other amendments introduced into the Crimes Act by the Crimes Amendment, (Drink and Food Spiking) Act 2008. They submit that the impact of the ruling the defence now seek would effectively mean that drink spiking offences do not exist, cannot exist.
Mr Steward responded that it is not for a judge to create offences by construction: Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31. A judge of an inferior jurisdiction must apply the law; and that law was explained in Riley.
I note, for example; s 35 Crimes Act "causing the dog to cause an injury" fits with the authority derived from O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220; [1957] HCA 57, as it contemplates an order or command to an animal by someone who exercises authority over it.
It is submitted that these principles were well known when the amending Act was brought before Parliament in 2008, given what had fallen from the High Court in O'Sullivan and the other authorities on which he now relies.
Parliament is presumed to have been aware of those common law decisions and they could have defined the term "cause to take" so as to cover this very eventuality. They did not. Thus, it can be presumed they did not want to change a law that affected the rights and freedoms of individuals: The Daniels Corporation International Pty v ACCC [2002] HCA 49 at [43].
The Prosecution relied upon s 38A Crimes Act the specific "drink spiking offence," which also uses the term "cause to take." But I note it is drafted differently than s 38(b). Section 38A (1) uses the term, "causes another person to be given or to consume drink or food - containing an intoxicating substance that the other person is not aware." And s 38(3) then notes:
"For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person."
Section 38(b) is closer in its terms to s 39 Crimes Act: "Using poison et cetera to endanger the life or inflict grievous bodily harm". Section 39 was considered in Riley and Wilhelm.
The Prosecution submissions took me through various passages in O'Sullivan, Wilhelm and Riley. In Riley it was noted that in O'Sullivan the High Court, the joint judgment (at 228), cited a passage from the 3rd ed. of Halsbury's Laws of England:
"Before a man can be convicted of causing he must be in a position of dominance and control so as to be able to decide whether the act should be done or not (authority cited), and it must be established that he gave some order, command, direction or authority to the person doing the act (further citation of authority)." Riley at [129]
The Prosecution submissions noted the English decision of R v Kennedy (no.2) [2008] 1 AC 269, cited in Riley at [135]. At [22] the prosecution's written submissions state that:
"Kennedy presents compelling UK authority for the distinction between the meaning of administer and cause person to take."
I agree with that proposition, but that is one reason why there are separate provisions in s38(a) and s38(b). Section 38(a) refers to "administer an intoxicating substance." Section 38(b) uses the critical term "cause another person to take."
The prosecution submission goes on:
"[23] Wilhelm and Riley are able to be distinguished and confined to their facts (where a person knowingly and willingly takes a substance) and moreover Riley expressly declined to confine the meaning of cause person to take to a person in a position of dominance or control issuing some order, command or direction."
That is true, in part, the words order, command and direction are not explicitly required but Riley did explicitly, as did Wilhelm, consider the position of "dominance or control or authority:" O'Sullivan at 228.
In Riley, two aspects of Judge Blackmore SC's directions at trial were criticised. His Honour had directed the jury in these terms:
"What is meant by causing the named person to take a substance? Before this element is made out beyond reasonable doubt, it is necessary that you be satisfied that the accused induced the named person to take the poison or noxious thing.
To be induced the named person must be persuaded, in the sense that his or her decision to take the substance was substantially influenced, by what was said or done by the accused in relation to taking of the substance. Merely encouraging the named person to act in this way is insufficient. The named person must actually be induced to act in this way."
One; was his Honour's use of the term "fully informed." The second, was a misdirection on "cause to take" by his use of the words "substantially influence." Both Riley and Wilhelm concerned cases where the alleged victim of the offences was aware that there was a substance intoxicating substance in what they were ingesting. That is quite different to the factual situation here.
No challenge to the direction in Houshyar was raised at trial or before the Court of Criminal Appeal but, as Mr Steward points out correctly, the fact that there was no challenge does not mean that that decision, which did not address this issue, is in any way binding on me. Mr Steward notes that neither Riley nor Wilhelm were cited to the Court of Criminal Appeal. The fact, that counsel there did not take the point, does not determine any decision I make.
[5]
Conclusion
I generally try to direct a jury based upon the ordinary English meaning of the words used in the Indictment. Here "cause to take" and "cause" mean, "a thing that occasions something," or, "a thing from which something results." That ordinary definition does not include any concept of authority or command, although it does not exclude those terms.
Wilhelm and Riley, upon which the defence rely, both involved a factual situation where the substance taking party had some knowledge that informed what they were doing. And in each case, it was therefore implied that were willing actors and thus required some authority to be exercised over them to cause them to do what they did as part of the chain of causation that resulted in endangering life or the infliction of grievous bodily harm: s39 Crime Act.
Wilhelm and Riley both involved facts situations where a break in the chain of causation was very much in issue. This case does not involve that consideration. The here charge requires proof the accused "caused the complainant to take an intoxicating substance." The words 'cause to take' cannot be divorced from the subject of those words - the 'intoxicating substance.'
Here - taking the Prosecution case at its highest - the allegation is that the accused, having been asked for a drink by the complainant, provided a drink to her and that drink is said to contain the intoxicating substance diphenhydramine, an antihistamine often used as a sedative or sleeping draft.
It is not in dispute that that drug is an intoxicating substance. What is in dispute is whether there that drug or any was in the substance supplied and if there was whether the accused had anything to do with that drug being there.
Here, given the complainant's ignorance of what was in the glass, if the prosecution case is accepted, the cause of her taking an intoxicating substance could only have been the accused's action in adding that substance to her glass. In that context it is a step to be too far to take the words "cause another person to take;" words which would ordinarily be interpreted as "cause a thing that occasions something or a thing from which something results" and read into that simple phrase what is set out in Kennedy and Wilhelm.
Here, the accused's alleged actions deprived the complainant of her choice in a sense of her exercising her own free will. What is alleged - if completed as this is an attempt case - would have resulted in her ingesting the intoxicating substance without her having any knowledge that an intoxicating substance was in the glass.
If the Prosecution case is accepted the accused's actions would in that very real sense (had the attempt been successful) have caused her to take, not what she expected, a drink of water or cordial, but an intoxicating substance. That fact situation is quite different than the causation scenarios discussed in Riley and Wilhelm, which both concerned the exercise of the free will of the victim/complainant who was aware they were taking an intoxicating substance.
Here there is no need for any qualification of the ordinary English meaning of the words "caused to be taken."
The Prosecution case, at its highest, is that the accused attempted to intentionally do an act with the anticipated result that the other person would ingest or take into themselves the intoxicating substance, without knowledge of that substance - his acts were intended to cause that result. Those acts fall within the ordinary meaning of the words "cause another person to take."
If it can be proved that the accused intentionally did an act that resulted in the complainant, without her knowledge, ingesting or taking in an intoxicating substance, then that element of the offence will have been proved. I intend to direct the jury in those terms.
[6]
Proposed direction - cause to take
The prosecution submissions asked that a direction based on that given by Judge Flannery SC in the Houshyar trial be included in the Jury Elements Document: see [12] above. I do not propose to give that direction. That does not mean the Prosecution cannot make a submission to the jury in those terms. It is my practice, when I give written directions, to use general terms rather than specifically tailor the written direction to the case for one party or the other.
I will give the parties another draft for comment before I give the direction - I will use the word "intention" to make it clear that accidentally taking the substance is not within the ambit of the offence. Accordingly, I intend to direct the jury in the following terms;
"Cause to take; - intentionally doing an act that resulted in the other person without their knowledge ingesting or taking in the intoxicating substance."
[7]
Verdict by direction refused
Following my extempore judgement, the Prosecution closed its case. The defence made a no case submission. It was refused for the reasons outlined above.
NOTE: A direction as indicated at [42] was given to the jury. The jury acquitted Knell of Count 1 but convicted on Count 2. The verdicts turned on the facts not the direction.
[8]
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Decision last updated: 04 April 2023