The Queen v Lagan [2001] ACTSC 131 (21 December 2001)

Last Updated: 19 March 2002

THE QUEEN v JOHN LAGAN [2001] ACTSC 131 (21 December 2001)

CATCHWORDS

CRIMINAL LAW - no case submission - offence of intentionally and unlawfully administering an injurious substance likely to endanger human life - s 27(3)(b) Crimes Act 1900 - accused injected complainant with heroin - complainant opiate naïve and intoxicated on alcohol and benzodiazepines- overdose - severe hypoxic encephalopathy - authorities considered - requisite intention of offence must be at least "to injure or cause pain or discomfort" - difference between ss 28(2)(a) and 27(3)(b) is harm caused - no intention to injure or cause pain or discomfort - not reasonably foreseeable that quantity of heroin administered likely to cause injury and/or endanger life because accused did not know extent of complainant's intoxication - no case submission upheld - verdict of acquittal entered.

EVIDENCE - exclusion of evidence of ambulance officer at scene - whether probative value outweighed by prejudice to accused - s 137 Evidence Act 1995 (Cth) - probative value slight - lack of probative value does not mean prejudice unless some risk that tribunal of fact will draw inferences adverse to accused - trial by judge alone - no such inferences drawn - evidence not excluded - use limited.

Drugs of Dependence Act 1989, s 171(3)

Evidence Act 1995 (Cth), ss 135, 136, 137

Crimes Act 1900, ss 27(3)(b), 27(4), 28(2)(a)

Blick v R [2000] NSWCCA 61; (2000) 111 A Crim R 326

Cato v R [1976] 1 WLR 110

R v Cunningham [1957] 2 QB 396

R v Marcus [1981] 1 WLR 774

Tulley v Corrie (1867) 10 Cox CC 584

R v Hennah (1877) 13 Cox CC 547

He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523

Wilson v R [1992] HCA 31; (1992) 174 CLR 313

No. SCC 45 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 21 December 2001

IN THE SUPREME COURT OF THE )

) No. SCC 45 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: JOHN LAGAN

Defendant

ORDER

Judge: Higgins J

Date: 21 December 2001

Place: Canberra

THE COURT DIRECTS THAT:

A verdict of acquittal be entered on count one of the indictment dated 1 June 2001.

1. This is a trial by judge alone. On 3 December 2001, the accused John Lagan pleaded not guilty to a count alleging that he:

" . . . on the 6^th day of September 2000, at Canberra in the Australian Capital Territory . . . intentionally and unlawfully administered to Priscilla Barbara Earl an injurious substance, namely heroin, likely to endanger human life."

2. There was a second count, alleging that, on the same occasion, he:

" . . . administered to Priscilla Barbara Earl a prohibited substance, namely heroin."

3. To that count the accused pleaded guilty.

4. The prosecution has tendered all of the evidence upon which it proposes to rely. The defence does not challenge any of that evidence save that it is submitted that I should not admit part of the evidence of a student paramedic who attended Ms Earl.

The factual background

5. As at 6 September 2000, Ms Earl was a neighbour of the accused at Currong Flats, Braddon ACT. Ms Earl, it seems, was afflicted by alcohol and drug abuse problems. She had been living with another resident of Currong Flats. That day she split up with her boyfriend. Both had been drinking heavily.

6. The accused had made no secret of the fact that he was a heroin user, albeit that, at the time, he was on methadone and used heroin only occasionally to "top up." When seen earlier in the afternoon by another mutual friend, Mr Moores, the accused had seemed to him to be drug affected. He last saw Ms Earl and the accused on that day at about 5pm.

7. Mr Nguyen was the Currong Flats resident with whom, as at 6 September 2000, Ms Earl was living.

8. He confirmed that Ms Earl, to his knowledge, abused alcohol and marijuana. He was aware, he said that:

" . . . she used to use heroin a long time ago."

9. There were some faded bruises he had seen some time earlier. They had excited his curiosity as to Ms Earl's intravenous drug use. Some of Ms Earl's previous boyfriends he understood to have used marijuana and heroin. He last saw Ms Earl about 4pm and told her to leave his flat because she was so drunk.

10. Mrs Linda Lagan, the accused's mother, had seen her son that day. She observed that he seemed concerned about the physical safety of a woman neighbour who had a "situation" with her current boyfriend and her former boyfriend (Mr Moores). She did hear sounds from Ms Earl's flat sounding as if the latter was upset.

11. She received a phone call from the accused about 11pm. She went to his flat at 11:15pm. He had locked himself out. He and Ms Earl were together. She formed the view that the accused was affected by heroin. Ms Earl was affected by drugs and/or alcohol. She seemed to have been injured.

12. Mrs Lagan had a spare key. She let them in.

13. What next happened can only be inferred from statements made by the accused and persons who thereafter attended to treat Ms Earl.

14. The accused made a statement to Detective Sergeant Booy at 12am on 7 September 2000.

15. He told Sgt Booy that, earlier, he had, at Ms Earl's request, injected her with heroin after she had had a "big fight" with her boyfriend.

16. He claimed, at the time, not to be adversely affected by drugs or alcohol.

17. The record of the conversation included the following:

"Q 46 . . . what happened after - immediately after you injected her?

A . . . I rang the police straight away - I rang the ambulance straight away.

Q 47 . . . What happened to [Ms Earl]?

A . . . Well she was talking and then the next minute she - she dropped."

18. He said he had been told to apply mouth to mouth resuscitation by the ambulance officer. The efforts he made did not improve matters. Ms Earl "started to turn blue."

"Q 60 A . . . she was probably on the ground maybe, six, seven, maybe eight minutes on the ground before the ambulance got here."

19. There is also a record of a call, apparently from the accused, on 000 to the ambulance service.

20. Two ambulance officers and a security guard attended shortly thereafter. They took over the care of Ms Earl. They were unsuccessful in restoring her to consciousness.

21. One of the two paramedics was Neal Smith. He was a student paramedic. It is part of his evidence which is subject to objection. That part relates to his conversation with the accused whilst he was proceeding to assist Ms Earl.

22. Mr Douglas Wright was the senior paramedic. He was told by the accused that he (the accused) "gave [Ms Earl] the heroin."

23. Mr John Thistleton, security guard, confirmed much of the evidence of the paramedics. He recorded in his statement that he had a brief conversation with the accused.

"I said: "What (sic) the bloody hell is she laying here overdosed."

He said: "She asked for some of it."

I said: "She doesn't use it.

He said: "Yeah but I am a user and she asked for some of it.""

24. He also stated:

"Around this time I recall one of the paramedics having a conversation with the male. I recall the paramedic asked "how long she had been like this for, to which the male replied 10 minutes."

25. It is apparent that Mr Thistleton knew that Ms Earl was a drug and alcohol abuser but was not known to be an injecting heroin user. He does not otherwise than to the reference, in a different context, to "10 minutes" confirm the conversation Mr Smith claimed to have heard.

26. At 2:44am on 7 September 2000, Detective Constable Smith, with Detective Constable Faulds, interviewed the accused.

27. On legal advice he declined to answer any questions concerning the incident. No adverse inference can be drawn from the fact that the accused declined to answer those questions.

28. There is no objection to the admission into evidence of the material supporting the accused's earlier statement that he had injected Ms Earl with heroin at her request.

29. The forensic evidence is consistent with this version of events. So also is the accused's plea of guilty to Count 2.

30. It follows that it is open to conclude, beyond reasonable doubt, that the accused, an experienced heroin user, injected Ms Earl with heroin. Apart from the disputed conversation with Mr Smith there is no direct evidence as to the size of the dose administered or of his expectation as to its effect. It can be concluded that he intentionally administered heroin to Ms Earl. It was unlawful to do so. (see Drugs of Dependence Act 1989 s 171(3) - reflected in Count 2).

31. There was some forensic evidence. First, that as a result of the heroin injected into her, Ms Earl suffered a potentially fatal overdose. She has severe hypoxic encephalopathy. That is, she has brain damage due to respiratory arrest. She remains in a coma.

32. Thus it can be concluded, beyond reasonable doubt, that the injection of heroin administered to Ms Earl had, objectively, been both injurious to her and likely to endanger her life.

33. Bodily samples were taken from Ms Earl and analysed. Multiple drug traces were found, as follows:

Blood analysis

* Ethyl alcohol (.140g/100ml.)

* Free morphine (.09mg/L.)

* Total morphine (.24mg/L.)

* Diazepam (.06mg/L.)

* Nordiazepam (.02mg/L.)

* Alprazolam (.05mg/L.)

* Oxazepam (1.8mg/L.)

* Tetrahydrocannabinolic acid (.03mg/L.)

34. Urine analysis found morphine, monoacetylmorphine, codeine, atropine, benzodiazepines and cannabinoids.

35. She had been treated by the paramedics with atropine, adrenaline and naloxone.

36. There were no signs of habitual injecting drug use.

37. Associate Professor Olaf Drummer has provided two reports, dated 9 January 2000 and 8 February 2001.

38. He had been provided with the relevant forensic reports.

39. He noted that it appeared that Ms Earl was an "opiate - naïve person." Adverse effects in such a person:

" . . .[are] much more likely than in a person accustomed to the effects (ie tolerant). Under these conditions, a heroin injection can cause cardiorespiratory arrest within minutes of the injection, or if the dose is not fatal a lack of oxygen to the brain can cause severe hypoxic encephalopathy"

40. However, there are further factors which may be relevant to an adverse reaction. As to alcohol:

"Alcohol will exacerbate the effects of heroin and benzodiazepines."

41. The role of benzodiazepines is that they have a "significant additive effect" to alcohol.

42. Cannabis was also present in Ms Earl's blood but Professor Drummer assigned no particular role to it. However, the other drugs found were, in combination, significant.

43. Under "Specific Comments" Professor Drummer concluded:

"The amount of morphine, both free and total, indicates that a reasonable dose of heroin was given, or taken, by [Ms Earl]. Heroin is confirmed by the presence of 6 - monoacetyl morphine in urine."

44. The presence of three benzodiazepines indicated to Professor Drummer abuse of these drugs, although it was possible, he said, that she had been prescribed one or more of those drugs for legitimate purposes:

"It is not usual practice to prescribed (sic) more than one benzodiazepine at one time. The presence of diazepam could indicate that the last dose of this drug may have been a few days previously."

"Alcohol will contribute substantially to any toxic effects of heroin. This will mean that lower doses of heroin are required to cause death in the presence of significant amounts of alcohol."

45. In his later report, Professor Drummer estimated that the injection administered to Ms Earl contained between 40 and 110mg of heroin. That could be assumed, in Professor Drummer's view, to "represent a commonly used dose."

46. Such a dose, even absent the presence of other CNS (Central Nervous System) depressant drugs, he said, "is likely to lead to overdose symptoms" in an "opiate-naïve" person. However:

"In regular users of heroin doses may exceed 1000mg daily, while naïve users might only inject 10-20mg of heroin."

47. The presence of the other drugs in Ms Earl were likely to " . . . worsen any toxic response."

48. The purpose of the illicit use of heroin is to induce a mildly toxic response, falling short of unconsciousness and, certainly, of respiratory failure.

49. There is no expert evidence as to whether a 40mg dose or, at least, a commonly used dose, of whatever toxic strength that may be commonly expected, would be likely to pose a serious risk to the life of the person injected.

50. Further, a person would, to anticipate the severe toxic reaction which occurred, have needed knowledge of the effect of both alcohol and diazepines in combination with heroin and that the subject had consumed each of them.

The evidence of Neal Smith

51. The conversation deposed to by Mr Smith is capable of leading to two inferences. First, that the accused injected Ms Earl with heroin with a view to assisting her suicide. The second, subsidiary thereto, is that he waited for 10 minutes after her lapse into coma before telephoning "000" for assistance.

52. Mr Sabharwal, for the accused, submits that the evidence referred to should be excluded pursuant to ss 135, 136 and or 137 of the Evidence Act 1995 (Cth). Those provisions, s 135 and 136, permit the Court to exclude evidence (s 135) or to limit its use (s 136) where, to do otherwise, would "be unfairly prejudicial to a party."

53. However, s 137 makes it mandatory for the Court to refuse to admit prosecution evidence if "its probative value is outweighed by the danger of unfair prejudice to the defendant."

54. The grounds suggested to support "unfair prejudice" are:

(i) Only Mr Smith supports the view that the disputed words were uttered by the accused.

(ii) Although Mr Smith made a note concerning the conversation at 2am on 7 September 2000, there was a variance between that note and his statement made on 31 October 2000 both as to the words themselves and the order of the words, albeit they are similar in effect.

(iii) Mr Smith did not mention the conversation nor that he had a note made of it to police on their arrival.

(iv) The note fails to record that the accused said that he had administered the heroin to Ms Earl.

(v) The accused was, according to his conversation with DC Smith and to his mother's observation, under the influence of some substance.

55. The nature of the judgment required by s 137 is a "balancing process" - see Blick v R [2000] NSWCCA 61; (2000) 111 ACrimR 326.

56. At p 333, Sheller JA expressed the test as requiring that:

" . . . a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment."

"Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is out-weighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected."

57. In the present case, the conversation as to the "10 minutes" delay is recalled by Mr Thistleton (whether or not it was the identical utterance) as 10 minutes between the lapse into coma and the arrival of the paramedics. As a result, I would accept that, on the balance of probabilities, a tribunal of fact would conclude that Mr Smith was mistaken as to the statement he attributed to the accused as to the "10 minutes." It is also consistent with the accused's statement to Sgt Booy that the "10 minutes" was the lapse of time between onset of coma and arrival of the paramedics pursuant to the accused's 000 call. The same tribunal would, I accept, note that there is no support for any conclusion that the quantity of heroin administered was such that it would be perceived, particularly by an addict, as likely to endanger life even in an inexperienced user. It was a "normal" dose.

58. Further, the actions of the accused, both in calling for help and administering CPR, are inconsistent with a desire on his part to assist a suicide. Indeed, though the result is that Ms Earl is severely disabled, she would undoubtedly have died had the accused not taken those steps.

59. Thus it is unlikely that whatever Mr Smith heard was intended to convey any intention on the part of the accused to assist Ms Earl to die.

60. It follows that I agree with Mr Sabharwal that the probative value of Mr Smith's evidence is slight. However, the mere lack of adverse probative value does not indicate unfair prejudice in admitting it into evidence unless there is some risk that the tribunal of fact will misuse the evidence adversely to the accused.

61. In the present case, before the plea of guilty was rejected, the Crown case did not include in its case statement any allegation of an attempt to kill Ms Earl on the part of the accused. Nor, although, the Case Statement refers somewhat inaccurately to the conversation reported by Mr Smith, it does not assert that the injection of heroin, though to help Ms Earl because of her recent misfortunes, was intended to cause her death. The Case Statement referred to the conversation in the following terms:

"The accused told Wright and Smith [it was only Smith who asserts it] that the complainant [Ms Earl] had been "down" for 10 minutes before he called, and that he had given her heroin. Smith heard him say that Earl had wanted to die for weeks and he thought he would help her."

62. In the present case, therefore, as this is a trial by judge alone, I perceive no risk that I would use the evidence of Mr Smith so as to draw inferences adverse to the accused not warranted by the true probative value of that evidence. I would note, for myself, that no inference should be drawn that the accused intended to harm Ms Earl whether at her request or otherwise. Further, I do not consider that I would be persuaded that the accused had waited 10 minutes before calling 000 after Ms Earl went "down." Even if I was persuaded to accept the statement of his intent in injecting Ms Earl, it does not establish that the accused intended to harm Ms Earl or foresaw that harm would result from the injection he gave her.

63. I, therefore, do not consider that s 137 mandates the exclusion of the evidence. Nor, is there any case for its discretionary exclusion under s 135. However, I have already indicated that it is not open to me to use the evidence to support an inference, not urged by the Crown, that the accused intended or foresaw that Ms Earl would suffer harm from the heroin he administered to her. I would, therefore, direct myself pursuant to s 136 not to draw those inferences which the evidence does not fairly bear.

No Case Submission

64. Mr Sabharwal and Mr Robertson (for the Crown) agree that the accused administered heroin to Ms Earl and that it was unlawful to do so. Nor is it disputed that the heroin was in fact, so far as Ms Earl was concerned, given her prior intoxication, "an injurious substance likely to endanger" her life. It, in fact, did endanger her life.

65. The question is whether the mens rea (guilty knowledge) necessary to support that actus reus (guilty act) can be established on the evidence presented. There is an issue as to what state of mind, in law, constitutes the mens rea for this offence.

66. Mr Sabharwal submits that the requisite intention must be more culpable than that required for s 28. The relevant subsection of s 28 requires "intent to injure or cause pain or discomfort." The penalty for administering an injurious substance with that intent is 5 years imprisonment. Section 27(3)(b), though silent as to intent, carries 10 years imprisonment. If the additional culpable intents referred to in s 27(4) are present the maximum rises to 15 years. Thus, Mr Sabharwal contends, the accused should be open to conviction only if he was aware that the heroin he administered was likely to endanger Ms Earl's life.

67. There is, of course, no evidence that he knew or could reasonably have been expected to know that. Indeed, the evidence strongly supports the contrary proposition.

68. Mr Robertson, however, contends that the absence of any specified intent indicates that it is enough that the substance was objectively dangerous to life and knowingly administered. It is not necessary to prove that the accused was aware of the danger in administering it. He need only be aware that the substance was an illicit drug and that he was injecting that drug into another person.

69. That submission is supported, it is contended, by the English decision of Cato v R [1976] 1 WLR 110.

70. In that case appeals against convictions for manslaughter and the equivalent of a s 27 offence were dismissed. The appellants had injected each other and the deceased with heroin. The strength of the dose was determined by the relevant recipient. The Court of Appeal (per Lord Widgery CJ) said (at 119), having acknowledged that there were substances having a "potentiality for harm if taken in overdose" which would not by reason only of that potentiality be "a noxious thing," continued:

"When one has regard to the potentiality of heroin in the circumstances which we read and hear about in our courts today we have no hesitation in saying heroin is a noxious thing. . . "

71. Thus, it was reasoned, there was no need for foresight that it would do harm in the particular circumstances in question. ("Noxious thing" is the more archaic expression for an "injurious substance").

72. Even the word "maliciously," in their Lordships' view, did not require such foresight, distinguishing R v Cunningham [1957] 2 QB 396, which held the contrary, on the basis that the injury in Cunningham was "indirect."

73. With respect to their Lordships, the distinction is unsatisfactory. In Cunningham coal gas was caused to escape. The accused did not foresee that it would cause harm in another part of the house. In Cato the injection was not foreseen to be likely to cause harm.

74. In R v Marcus [1981] 1 WLR 774, Cato was distinguished. In that case the administration of a drug was intended to cause harm but given in too small a dose to have any toxic effect. The decision did not address the issue of awareness of the risk of harm nor differ from the view expressed in Cato that heroin was an inherently dangerous substance.

75. The decision in Cato was contrary to earlier authority. In Tulley v Corrie (1867) 10 Cox CC 584, Cockburn CJ, in considering the effect of the equivalent of the s 27 offence, directed a civil jury that the intent of the two provisions, the s 27 offence being a felony and the s 28 offence a misdemeanour, was (at 587):

" . . . that, if a person administered a noxious thing simply with the intent to injure, aggrieve, and annoy, and the consequences prove to be more extensive than the intention, if consequences fatal to life or to health result from the illegal act, then that which otherwise be a misdemeanor becomes, in consequence of the results that take place, a felony."

76. As to the issue of what was a "noxious thing," in R v Hennah (1877) 13 Cox CC 547, Cockburn CJ, after consultation with another judge observed at 549:

"The statute makes it an offence to administer, although not with the intention of taking life or of doing any serious bodily harm, any noxious thing with intent to cause injury or annoyance. But unless the thing is a noxious thing in the quantity administered, it seems exceedingly difficult to say logically there has been a noxious thing administered."

77. To apply R v Cato to the present case would make any administration of an illicit drug which had serious but unforeseen adverse consequences a serious offence whereas if those serious consequences were not to occur an offence (other than a s 171 DODA offence) would be committed only if the specific intent referred to in s 28 was present.

78. The contention that the s 27 offence is , in effect, a crime which may be committed even if the administrator of the illicit substance had no knowledge of its injurious qualities and had no expectation of any harm seems at odds with the principles enunciated by Brennan J (as he then was) in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, 582:

1. There is a presumption that in every statutory offence it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.

1. There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either - (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.

2. The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.

3. The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides."

His Honour continued at 583:

" The presumption that some form of mens rea is an element in these offences is strengthened by the severity of the penalty . . ."

79. To apply those observations to the s 27 offence, it is not credible that it was intended that the higher penalty should apply if there is not present, at least, the intent referred to in the s 28 offence.

80. There is also, the consideration that the same knowledge, or lack of it, was, in Cato deemed sufficient for manslaughter. The law in Australia as to the foresight required as to the likely consequences of an unlawful and dangerous act to be sufficient for manslaughter was stated in Wilson v R [1992] HCA 31; (1992) 174 CLR 313. At 333, Mason CJ, Toohey, Gaudron and McHugh JJ noted that:

"An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act".

81. It is not enough that the act was, in fact, dangerous. As their Honours observed, at 335:

"A act may be dangerous without carrying with an appreciable risk of serious injury."

82. There are only two authorities on s 27. The first is R v Galvin (1998) 147 FLR 182. In that case, the offence alleged was that of intentionally and unlawfully interfering with a conveyance in circumstances likely to cause grievous bodily harm. The accused had deliberately caused the vehicle his wife was driving to crash into a rock embankment by taking hold of the steering wheel. The case turned on the nature of the required interference, not on intent.

83. The second is R v Hughes [2000] ACTSC 112 (1 December 2000). It involved the administration of oleandrin, a known poison derived from the oleander plant, by the offender with a view to endangering the life of her husband. He became quite ill but did not die.

84. I observed, in assessing the culpability of the offender.

"5. It is apparent that the offence against s 27(3)(b) does not require that the administration of the objectively life endangering substance be with intent to kill or even with reckless indifference to a perceived probability of death occurring. If it was otherwise the offence would be, at least, identical to attempted murder.

6. On the other hand, the intent must be more culpable than the mere administration of the substance in the knowledge that it will cause pain or discomfort, otherwise it would be identical with an offence against s 28(2)(a).

7. It follows that the essence of the offence is the administration of a substance known by the offender to be likely to endanger life or, at least, to cause grievous bodily harm. It cannot be supposed that it would be a crime to administer a substance believed to be beneficial but which, in truth, is lethal, unless the person administers it was aware of that property in the thing administered. It is not necessary that death or grievous bodily harm be intended or perceived as likely."

85. Those comments were, of course, obiter. The offender, on any view of it, had an intention to cause harm to the victim, leaving eventually to death or grievous bodily harm, though she had not, by the time she desisted, reached the point where she expected death to ensue from the most recent administration of the poison.

86. From the context in which s 27 appears it is also apparent that the requisite intention could not be less than that proscribed by s 28(2)(a) ie "with intent to injure or cause pain or discomfort to that person," albeit that intent to kill or cause serious bodily harm need not be established.

87. Thus the difference between the two offences does, as Cockburn CJ suggested in Tulley v Corrie (supra), come down to the harm caused. So that, if life is endangered or grievous bodily harm caused by the "injurious substance," the more serious offence has been committed if, at least, the intent referred to in the s 28 offence is present.

88. However, whether or not a more specific intent or advertence to consequences is required, it is apparent that, in the present case the intent shown by the evidence, was not to injure or to cause any pain or annoyance to Ms Earl. In fact, the only conclusion that can sensibly be drawn from the evidence was that the administration of the heroin was intended to relieve Ms Earl's feelings of depression, to dull her awareness of emotional pain. That is, to "help" not harm her.

89. Further, the quantity administered could not have been reasonably perceived as likely to cause injury unless the observer was aware, not only that Ms Earl was "opiate-naïve," but also that she had ingested other drugs and alcohol to such an extent that an otherwise non-injurious injection of heroin would be seriously harmful or, at least, some injury.

90. There is some evidence to support the view that the accused was aware that Ms Earl was not a regular heroin user and had drunk alcohol. There is, however, no evidence that he was aware that Ms Earl had also abused benzodiazepines so that the consequence of the dose of heroin he administered would be dangerous to her life.

91. Accordingly, I uphold the submission that the Crown has failed to make out a prima facie case. I direct a verdict of acquittal on count one of the indictment accordingly.

I certify that the preceding ninety one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 21 December 2001

Counsel for the Crown: Mr A Robertson

Solicitor for the Crown: ACT Directors of Public Prosecution

Counsel for the accused: Mr J Sabharwal

Solicitor for the accused: ACT Legal Aid Office

Date of hearing: 3, 6 December 2001

Date of judgment: 21 December 2001