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Court of Criminal Appeal 9 March 2009

O'Hara v R

[2009] NSWCCA 54

Also reported as 193 A Crim R 546
Sexual offencesDomestic & family violence
CRIMINAL LAW AND PROCEDURE MEANING OF "UNLAWFULLY" R V MURCOTT 1893 XIX VLR 408 FOLLOWED

Citation: O'Hara v R [2009] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 9 March 2009
Judge(s): Grove J (principal judgment); Buddin J and Price J (agreeing)

Background

The appellant was convicted in the District Court at Katoomba on three counts: unlawfully causing a person to take a stupefying thing with intent to commit an indictable offence (s 38, Crimes Act 1900), and two counts of aggravated sexual intercourse without consent. He challenged only the first conviction on appeal.

The facts concerned the appellant's fourteen-year-old daughter, who visited his home overnight in April 2006. The appellant purchased eight bottles of a pre-mixed vodka drink and, despite the complainant having no prior experience with alcohol, induced her to drink all of them by offering a monetary incentive. She became visibly intoxicated: stumbling, slurring, and vomiting. During the night, the appellant committed the two sexual assaults against her.

The appeal raised two distinct legal arguments against the s 38 conviction: first, that the appellant's conduct in supplying alcohol to his daughter was not "unlawful"; and second, that alcohol was not a "stupefying thing" within the meaning of the provision.

  • Whether the word "unlawfully" in s 38 required the prosecution to prove that the act of causing the complainant to take the substance was independently unlawful, separate from the intent element.
  • Whether a defence available under s 114(6) of the Liquor Act 1982 (permitting a parent to supply alcohol to their child) negated the "unlawfully" element of the s 38 offence.
  • Whether alcohol fell within the expression "stupefying or over-powering drug or thing" in s 38.
  • Whether the 2008 amendments to s 38 implied that alcohol had not previously been covered by the provision.

Decision

On the first issue, the Court rejected the appellant's construction of "unlawfully." Grove J held that, consistent with similar legislative provisions, "unlawfully" means "without lawful excuse." The provision does not require the prosecution to establish an independently unlawful act of administering a substance, separate from the accompanying intent to commit an indictable offence. The word "unlawfully" operates to preserve defences such as duress or genuine therapeutic purpose, but it does not function as a freestanding element requiring proof of a distinct legal wrong in the supply itself.

The Court also rejected the argument that the parent-supply defence in s 114(6) of the Liquor Act carried across into s 38. That provision is expressly confined to prosecutions under s 114(1) of the Liquor Act and does not extend to other legislative contexts.

On the second issue, the Court followed the 1893 Victorian Full Court decision in R v Murcott & Ah See, which held that alcohol is capable of being a "stupefying thing" within the equivalent Imperial provision. The relevant question is whether the substance has the capacity to stupefy, not whether it belongs to the same class as named substances such as chloroform or laudanum. On the evidence at trial, the complainant's state of intoxication was not genuinely in dispute, and the jury had ample basis to find that she had been stupefied.

The Court declined to draw any inference of prior ambiguity from the 2008 amendments, which introduced a new provision expressly addressing "drink and food spiking" and defined "intoxicating substance" to include alcohol. Citing Allina Pty Limited v Federal Commissioner of Taxation, Grove J held that subsequent legislation cannot be used to resolve ambiguity in an earlier provision where, in his view, no ambiguity existed in the first place.

Orders Made

  • Appeal against conviction on count 1 of the indictment dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that "unlawfully" in s 38 of the Crimes Act 1900 means "without lawful excuse," not that the act of administration must itself constitute a separately identifiable legal wrong.
  • A statutory defence available under one Act (here, the parent-supply exemption in the Liquor Act 1982) does not automatically extend to negate elements of an offence under a different Act, unless the legislation expressly provides for that.
  • Alcohol is capable of constituting a "stupefying thing" for the purposes of s 38, following the Victorian Full Court's reasoning in R v Murcott & Ah See (1893): the operative criterion is the substance's capacity to stupefy, not its classification as a named drug or compound.
  • Subsequent amending legislation, standing alone, does not establish that earlier legislation was ambiguous or deficient in its coverage, particularly where the court is satisfied the earlier provision was clear.
  • In dismissing the appeal, the Court left intact the principle that an offender who induces intoxication in a victim, in the context of intending to commit a sexual offence, may properly be convicted under s 38 even where the intoxicating agent is a commonly available alcoholic beverage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 38 (as in force at the time of offence)
- Crimes Amendment (Drink & Food Spiking) Act 2008 (NSW)
- Liquor Act 1982 (NSW), s 114
- Offences Against the Person Act 1861 (Imp), 24 and 25 Vict c 100

Cases:
- R v Murcott & Ah See (1893) XIX VLR 408 (Victorian Full Court, followed)
- Allina Pty Limited v Federal Commissioner of Taxation (1991) 28 FCR 203 (cited on use of subsequent legislation to resolve ambiguity)