A mother and her two young children had a trip to the hospital after consuming a brownie allegedly laced with marijuana from Bada Bing Café in Perth back in March. The mother, Sharon, said her five-year-old daughter Emily saw things “jumping” and her vision became impaired, after eating at the café. The family then went the hospital as Sharon developed similar symptoms, and their three-year-old son Thomas was drowsy. Test results from the hospital showed marijuana in their systems. The father, Michael, who did not eat a brownie, nor did he exhibit any these signs, bought another brownie from the café the following day then put it in a freezer. A week later the police took it away for testing and this confirmed the presence of THC and other cannabinoids. It is still unknown how the brownie had marijuana in it.
The Cafe
The café owner is Nathan Sharp and his wife Simona, who have four young children. They were shocked to find out the news of the THC-laced brownies and have been fully cooperative during the police investigation. Mr Sharp, trading as Bada Bing Café, has been charged by the council under the Food Act 2008 (WA) with two counts of selling food that was unsuitable. He is scheduled to face Perth Magistrates Court on 19 July 2019.
If the owners did not know about the brownies, this raises the question – was it an employee of theirs, or the supplier? If so, this brings civil law into play and may allow for the owners to bring an action against their employee or the supplier. If it was an employee, then tough laws render the business culpable as they should have had quality control measures in place, it could be argued.
THE LAW
Assuming this occurred in NSW, the relevant offence would be section 38A ‘Spiking drink or food’ found in Crimes Act 1900 (NSW):
(1) In this section:
“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.
“impair” includes further impair.
(2) 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 would 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.
Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both.
(3) 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.
(4) 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.
(5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section.
(6) An offence against this section is a summary offence.
IS WEED A DRUG?
The developed world has seen an increase in the decriminalisation of marijuana for recreational use and it is anticipated that this momentum will continue. This movement has specifically decriminalised cannabis ‘edibles’, meaning cannabis-infused food, in countries like Canada and the United States. Although attitudes towards this in Australia are changing, and the trend has been geared towards calling for the decriminalisation of marijuana, cannabis is still classed as a prohibited drug under Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), distinguishing between cannabis leaf, cannabis oil, cannabis plant cultivated, cannabis plant and cannabis resin. A cannabis plant cultivated by enhanced indoor means or by any other means are also categorised differently.
CAN THE CASE BE MADE OUT?
For the Court to hand down a guilty conviction to whoever spiked the brownies, the prosecution must prove beyond a reasonable doubt that they intended to at least impair the senses of the victims with the spiked brownie, and that they in fact gave them the brownie. This could be a tricky case to prove as the person who spiked the brownies may not have necessarily been the person to give the brownie to the victims. If someone else handed the brownie to the victims and they had no knowledge of its tampering, this raises significant legal questions relating to whether the mens rea (guilty mind) is made out.
To learn more about drug offences, check out our dedicated page here.