Thread by @ElyseMethven

New article published in Criminal Law Journal on the crime of 'drug supply causing death'. The offence was rushed through NSW Parliament in late 2018 with inadequate consultation. The crime was introduced in response to recent drug-related deaths at music festivals (a thread)

The offence was introduced in response to a so-callled 'expert report'. The 'experts' were not criminal law academics, lawyers or drug policy experts. They were heads of government agencies. It's now in section 25C of the Crimes Act 1900 (NSW) legislation.nsw.gov.au/#/view/act/190…

If someone is found liable for drug supply causing death in NSW, they may now receive up to 20 years imprisonment. The elements of the offence that the Prosecution must prove beyond a reasonable doubt are listed here:

The 'experts' warned the NSW Premier that 'more analysis and consultation' was needed before enacting a new crime which radically changed homicide law. The Premier ignored this advice & introduced s 25C as part of her government's 'Just Say No' approach to drug use #nswpol

The crime is a radical shift from the common law, which basically said that if a person supplies a drug to another person, & that other person voluntarily self-administers the drug & dies, the self-administration of the drug breaks the 'chain of causation'

This meant that ordinarily, the voluntary informed act of an adult to use a drug would negate the element of causation, and the drug supplier could not be liable for murder or manslaughter - eresources.hcourt.gov.au/showCase/2012/… This is no longer the case in NSW ...

The crime of 'drug supply causing death' contains no requirement that the supply must cause the user's death. Only the drug use must cause their death. The following illustrates how far s 25C may extend liability for homicide (subject to the mental element, see below)

Perhaps unintentionally, the mental element of s 25C is pretty narrow. The accused must have known, or 'ought' to have known, that the drug supply would expose another person to 'a significant risk of death'. This may be harder to prove than the mental element for manslaughter

Just how courts will assess 'significant risk of death' in drug supply/use scenarios remains to be seen. I caution courts to avoid generalisations about drugs which ignore the 'weak statistical correlation' between illicit drug use and death

My main concern, though, is that NSW has failed to learn from the US experience of drug-induced homicide prosecutions. In the US, there is a significant racial element to the enforcement of drug-induced homicide. And there is NO EVIDENCE that homicide laws prevent drug harms

Also, by failing to enact a 'Good Samaritan' exception to s 25C, a drug supplier may be found liable of homicide in NSW even where they seek medical help for a drug user. As a result, ppl might abandon drug users experiencing overdose symptoms for fear of prosecution.

In fact, the harsh 'law and order' approach in the US - where many states prosecute drug-related deaths as homicides - has resulted in an increased risk of death and serious harm to drug users theappeal.org/charging-deale…

In short, the new crime of 'drug supply causing death' in NSW is based on flawed reasoning, a lack of expert consultation, and no evidence that it will deter drug supplies and drug-related harms. In fact, it is likely to cause more harm than good #crimlaw #drugpolicy

(For those interested in reading the full article, it can be found here - academia.edu/40072032/Danci… ) and is available via legal.thomsonreuters.com.au/criminal-law-j…