The Crime of Poisoning in New South Wales

After one of the biggest medical disasters in our nation’s history, Australia’s ‘Thalidomide babies’ are still waiting for an apology and promised compensation.

Who are Australia’s Thalidomide babies?

Thalidomide babies were born in the late 1950s and early 1960s., when their pregnant mothers were prescribed the drug by their GPs or mental health professionals to relieve nausea,  sedate them and combat anxiety. But it was later revealed that women who took the substance in early pregnancy were at an increased risk of having a child with physical defects.

During the decade or so when the drug was regularly prescribed, about 10,000 children were born with phocomelia, or malformed limbs.

Australian doctor William McBride, who died last year, was practising as an obstetrician and gynaecologist in Sydney at the time. The doctor is widely credited with writing the first English language medical journal article, published in 1961, which drew links between thalidomide and birth defects.

Despite this, it was some years before a definitive parallel was confirmed. The failure to recognise the correlation had much to do with the fact that the prescribing doctor was not the same person as the doctor s present to deliver the babies, and there was limited, if any, health record cross-referencing.

These factors were somewhat hidden by the natural gestation period – many women took the drug in early pregnancy but without the kind of sophisticated scanning and ultrasound techniques that are available today, the birth defects were not noticed until the baby was born.

The suffering of survivors

Many of these Thalidomide babies have gone on to live relatively normal lives, get married and have babies of their own. Their suffering has been well documented – many have suffered a lifetime of ongoing pain and worsening health outcomes, but representatives of the Thalidomide Group Australia say they still feel let down by the Australian Government.

Earlier this year, a Senate Inquiry found the Australian Government owes an apology as well as ongoing disability support payments to thalidomide survivors.

The Inquiry found that when Thalidomide was first linked to birth defects, the Australian governments – at both a state and federal level – did not take swift action to recall the use of, or ban the importation and sale of the drug. The inquiry found that had the government acted more quickly, about 20 per cent of Australia’s Thalidomide survivors may not have been affected.

But some months after this senate inquiry released its findings, the Group says nothing concrete has occurred in the way of follow up of tits recommendations.

To date, victims of Thalidomide are estimated to have received a combined total of $140 million from the Australian distributor of Thalidomide, pharmaceutical company, (Diageo Australia) via various court settlements and other types of payments.

It’s understood that Federal Health Minister Greg Hunt has written to Diageo seeking further lifetime compensation for victims and is currently in discussions with the company.

In the meantime though, Thalidomide survivors are incredibly disappointed with the amount of money spent by the Federal government on a memorial for sufferers, which they say while well-intentioned, will do nothing to compensate for their increasing medical costs, or assist them with disability aids in their latter years. Some may require modifications to their home, others may provide mobility vehicles, as well as carers.

Thalidomide survivors face an uncertain future.

With the exception of tax relief, the Australian government has not provided financial assistance to Thalidomide survivors, nor provided wheelchairs, modified cars, or implemented any special assistance programmes.

By contrast, earlier this year Canada doubled the size of the lump sum it offers survivors and increased the size of its assistance fund to one million dollars per year.

Survivors want more than a ‘plaque in the park’. They want an apology and for the Federal Government to fulfil its moral obligation and help to ease the burden of escalating medical expenses and an uncertain future. And they want action sooner rather than later so they can face their future with certainty and confidence, no matter what the effects of Thalidomide on their health in their later years will be.

Poisoning Offences in New South Wales

Using poison to endanger life or inflict grievous bodily harm is an offence under section 39 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 10 years in prison.

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

1. The defendant administered or caused another to take a poison, intoxicating substance or other destructive or noxious thing,
2. He or she intended by doing so to injure the other person, or was reckless as to whether the other person would be injured, and
3. The substance in fact endangered the life of, or caused grievous bodily harm to, the other person.

‘Grievous bodily harm’ means ‘very serious harm’

It includes, but is not limited to:

• The destruction of a foetus, other than by a medical procedure
• Any permanent or serious disfiguring, and
• Any grievous bodily disease

A person is ‘reckless’ if they realised injury could possibly be inflicted but went ahead with the act regardless.

Defences to the charge include self-defence, duress, necessity, automatism and mental illness.

Where a defendant is tried under section 39 but the prosecution fails to establish all three ‘elements’, the fact-finder (eg the jury) may instead return a verdict of guilty to an offence under section 41 of the Crimes Act, provided of course that the elements of that offence are established. This is known as a ‘statutory alternative’.

Section 41 prescribes a maximum penalty of 5 years in prison for administering or causing another to take a poison, intoxicating substance or other destructive or noxious thing with the intention to injure, or cause distress or pain to, the other person.

The offence does not require proof of endangerment of life or infliction of grievous bodily harm.

Another statutory alternative is contained in section 41A, which relates to the poisoning of water supplies. The section sets a maximum penalty of 5 years in prison for introducing any poison or other destructive or noxious thing into a supply of water with the intention of injuring any person.

Again, proof of endangering life or actually inflicting harm is not required.