The Offence of Supplying a Prohibited Drug Causing Death in New South Wales

The Queensland government recently approved pill testing services in the state. 

The move follows the success of fixed site drug services in the ACT, and a number of successful trials involving mobile pill testing at music festivals.

And while other states and territories are moving towards a harm reduction approach when it comes to illicit drugs, the New South Wales government has consistently been moving in the opposite direction.

A relatively recent example of this failed approach is the enactment in 2018 of the offence of “drug supply causing death” – in what many see as a populist, knee-jerk and likely futile reaction to win favour from radio shock-jocks and the mainstream media generally.

Criminalisation after tragedy

Following the deaths of 23-year-old Joshua Tam and 21-year-old Diana Nguyen at the Defqon.1 music festival in September 2018, the Berejiklian government rushed through an offence ostensibly designed to punish drug suppliers for deaths resulting from the supply of illegal drugs.

The offence of supply of drugs causing death is contained in section 25C of the Crimes Act 1900 (NSW), and carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You supplied a prohibited drug to another person,
2. You did so for a financial or material advantage,
3. Another person administered the drug to themselves,
4. The drug caused or substantially caused another person’s death, and
5. You knew, or ought reasonably have known, that supplying the drug would expose another person to the significant risk of death.

A ‘prohibited drug’ includes, but is not limited to:

1. Heroin,
2. ‘Ice’ (or crystal methamphetamine),
3. Cocaine, and
4. ‘Ecstacy’ (or MDMA).

You are not guilty if you were legally authorised to supply the drug.

Mental element

The mental fault element of the offence, outlined under s25C(2) requires that the defendant knew, or ought reasonably to have known, that supplying the prohibited drug would expose another person (whether or not the person to whom the drug was supplied) to a significant risk of death as a result of the self-administration of the drug.

Departure from traditional notions of homicide

The offence reflects a major departure from traditional approaches to homicide, which generally considers dangerous actions by a victim as breaking the chain of causation for a crime.

It remains the first offence of its kind in Australia.

More harm than good

Since its enactment, the offence of drug supply causing death has been heavily criticised as ineffective, futile and potentially counter-productive.

Dr Elyse Methven from the University of Technology Sydney has noted that similar drug supply causing death laws in the United States have exacerbated, rather than prevented drug related harms.

In many US states which have implemented a similar offence, drug suppliers are zealously prosecuted for homicide with an undue focus on low level dealers rather than traffickers. This shift has disproportionately impacted people of colour in the United States and further intensified problems of mass incarceration.

Dr Methven further notes that the offence has also incentivised abandoning people who are overdosing:

“Disturbingly, evidence from the US suggests drug homicide offences increase the risk of death to drug users. Faced with the prospect of prosecution and a lengthy prison sentence, suppliers and bystanders are more likely to abandon people experiencing drug overdose symptoms than seek medical help.”

However, one of the most self-evident criticisms of the offence is that its elements appear too difficult for police and prosecutors to apply. Five years since the offence has been introduced there have been no prosecutions for this apparently necessary new crime. 

Harm reduction as a solution

Trying to tackle drug-related harms through criminalisation is bound to be ineffective. We have several decades of evidence from a failed War on Drugs to demonstrate this will be the case.

Harm reduction is an approach to drug-related harms that accepts the reality that some people will use drugs and seeks to keep those who choose to use as safe as possible.

Pill testing (or “drug checking”) services allow people who use drugs to test the composition and purity of their substances before consuming them.  

Many of the harms of party drugs, particularly MDMA, are the result of unexpected high purity caps or pills or the existence of “adulterants” which can have harmful effects on the body. 

Pill testing utilises the principles of forensic chemistry techniques, including chromatography and spectroscopy, to identify  both the quality and composition of drugs submitted for testing.

Studies have consistently shown that individuals who use pill testing services report a greater sense of control over their drug use and a reduced likelihood of using drugs that they perceive as risky. 

Additionally, individuals who receive high purity drug test results are more likely to use drugs in a safer manner, such as by using smaller doses or using the drug in a different way than originally intended.

Pill testing services have also been found to be cost-effective. By reducing the number of drug-related hospital admissions and emergency room visits, these services can save healthcare systems money in the long run.

Rather than criminalisation in response to drug-related deaths, we need well funded, “on-the-ground” harm reduction services that can actually save lives.