Citation: R v Knell [2023] NSWDC 81
Court: District Court of New South Wales
Date: 23 March 2023
Judge: Haesler SC DCJ
Background
The accused was charged on two counts: first, attempting to cause a person to take an intoxicating substance with intent to commit sexual touching (under s 38(b) and s 344A(1) of the Crimes Act 1900); and second, sexual touching without consent. A jury had been empanelled and the prosecution's case was about to close.
The complainant's evidence was that she had asked the accused for a glass of water. He returned with a drink that tasted like cordial. After she took only a sip, he repeatedly re-entered the room asking whether she had drunk any, and urging her to do so. She had not known the drink allegedly contained sleeping pills.
Before the prosecution closed, the court was asked to rule on the proper jury direction for the phrase "cause to take" in Count 1. That ruling was directly linked to a foreshadowed no-case submission by the defence.
Legal Issues
- What is the correct meaning of "cause to take" in s 38(b) of the Crimes Act 1900?
- Does "cause to take" require proof that a person in authority commanded or directed another to ingest a substance (as held in R v Wilhelm and R v Riley), or does it carry a broader ordinary meaning?
- On the facts of this case, was there sufficient evidence of the "cause to take" element to withstand a no-case submission?
Decision
The court's initial draft jury direction had given "cause to take" its ordinary English meaning: intentionally doing something to induce another person, by request, demand, trick or force, to ingest a substance. However, the court's attention was drawn to two authorities, R v Wilhelm [2010] NSWSC 334 and R v Riley [2011] NSWCCA 238, which construed "cause to take" more narrowly. Both decisions held the phrase applied only where a person with authority over another commanded or directed that person to take a substance.
The defence submitted that the court was bound by Riley (a Court of Criminal Appeal decision) and that, on that construction, the evidence could not prove the element as charged. The prosecution argued those cases should be confined to their facts, as both arose in the context of causation in death cases. The prosecution also pointed to Houshyar v R [2022] NSWCCA 245, where a direction broadly covering the act of placing a substance in a drink without the person's knowledge had been accepted by both parties and the Court of Criminal Appeal without apparent objection.
Haesler SC DCJ concluded that Riley and Wilhelm were distinguishable. Those cases involved situations where the victim was aware they were taking an intoxicating substance and acted on their own free will. The present facts were materially different: the complainant had no knowledge that the drink allegedly contained an intoxicating substance. Where a person is unaware of the substance, the court held there is no need to depart from the ordinary meaning of the words "cause to take." On the prosecution's case at its highest, the accused intentionally did acts intended to result in the complainant ingesting a substance without her knowledge, and that fell within the ordinary meaning of the phrase.
The court accordingly directed the jury that "cause to take" means "intentionally doing an act that resulted in the other person without their knowledge ingesting or taking in the intoxicating substance." The word "intentionally" was included to make clear that accidentally causing someone to take a substance falls outside the offence. The no-case submission on Count 1 was refused. The jury ultimately acquitted the accused on Count 1 and convicted on Count 2, with the verdicts turning on the facts rather than the direction given.
Orders Made
• The defence no case submission was refused
• The jury was directed that "cause to take" means intentionally doing an act that resulted in the other person without their knowledge ingesting or taking in the intoxicating substance
• The jury acquitted the accused (Knell) of Count 1
• The jury convicted the accused (Knell) of Count 2
Key Takeaways
- The District Court held that the narrow construction of "cause to take" in Riley and Wilhelm (requiring proof of a command or direction by someone in authority) does not apply where the complainant was unaware that an intoxicating substance had been placed in a drink. In that factual scenario, the phrase carries its ordinary English meaning.
- A conviction under s 38(b) of the Crimes Act 1900 for causing another person to take an intoxicating substance requires proof of an intentional act; accidentally causing ingestion is insufficient to satisfy the element.
- The Court of Criminal Appeal decisions in Riley and Wilhelm are not of universal application: their narrower construction of "cause to take" arose in the context of causation in death cases where the victim knowingly and voluntarily consumed the substance.
- Where the ordinary meaning of a statutory phrase is applied, the court confirmed the presumption that Parliament, when enacting the Crimes Amendment (Drink and Food Spiking) Act 2008, was aware of existing common law authority and chose not to alter the established legal meaning.
- Sufficient evidence existed on the prosecution's case, taken at its highest, to refuse a no-case submission where the accused allegedly placed a substance in a drink and repeatedly urged the complainant to consume it without disclosing the presence of that substance.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 38(b), 38A, 39, 344A(1)
- Crimes Amendment (Drink and Food Spiking) Act 2008 (NSW)
Cases
- R v Wilhelm [2010] NSWSC 334
- R v Riley [2011] NSWCCA 238
- Houshyar v R [2022] NSWCCA 245
- O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220; [1957] HCA 8
- Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31
- R v Kennedy (No 2) [2008] 1 AC 269
- The Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49