A Guide on the Law on Food Tampering in NSW - Criminal Defence Lawyers Australia

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By Sahar Adatia and Jimmy Singh.

In recent years, cases of malicious or opportunistic food tampering and food contamination have increasingly surfaced and been quick to make news headlines around the nation.

Last year, the strawberry contamination scare gripped the country like no other story, seeing unsuspecting Australians surprised mid-chew by needles found hidden inside the fruit.

Then there was the police investigation into food intended to be served to patients at one of South Australia’s major hospitals, which was discovered contaminated with a mystery solid, organic-looking product that closely resembled faeces.

Now, that brings us to one of the latest food tampering stories, which, while certainly worrying, is alas nothing new.

This week, a Perth café owner was charged after two young children and their mother ate a brownie allegedly spiked with marijuana at his business in the western suburb of Woodlands.

The family says they were hospitalised after eating the alleged marijuana-laced brownie sold to them at Bada Bing Café, with both children acting strangely and complaining of hallucinations after they each ate part of it.

Urine Tests After Eating Brownie Confirm Presence of Tetrahydrocannabinol (THC)

On 2 March 2019, shortly after the Perth family finished eating the brownie for breakfast at Bada Bing Café, the mother noticed her five-year-old daughter Emily begin to behave oddly.

Soon after, the young girl told her father she was seeing things that were not there.

“It was very frightening, I was trying to calm Emily; she would calm down, and then she would just open her eyes and give out this blood-curdling scream,” Emily’s mother told ABC Radio Perth.

“Her heart was racing so much, that I actually couldn’t count it… I was terrified, and so was Emily.”

Emily allegedly went from ‘seeing bizarre colours’, to losing her short-term memory moments later, and then expressed intense fear and disorientation.

Her parents quickly rushed her to the hospital, along with her three-year-old brother Thomas, where they undertook urine tests.

Surely enough, the toxicology screening showed them testing positive for marijuana and confirming the presence of tetrahydrocannabinol (THC) – the primary psychoactive constituent of cannabis.

Meanwhile, the father, who did not eat any of the brownie, also took a urine test, which came back negative.

Café Owner Offers no Insight into how Food Tampering Incident Occurred

To Nathan Sharp, the owner of Bada Bing Café, the news of the marijuana-laced brownie came as a shock.

While there was no comment from him and the café offered no insight into how the incident occurred, a representative from the café expressed astonishment of the situation at hand.

“It came as a total shock to us that a Perth family is alleging that they became ill after at our café,” the representative said in a statement.

“We of course have, and continue to fully investigate this allegation. We have co-operated with WA Police who have confirmed that their investigation has been completed and no charges will be laid.”

The statement outlined that Mr Sharp co-operated with the City of Stirling in their investigation.

**Mr Sharp Charged Under the Food Act 2008 for Selling “Unsuitable” Food**

Following the investigation by the City of Stirling’s environmental health team, Mr Sharp was charged with two offences under the Food Act 2008 (WA) for selling “unsuitable” food.

“Analysis of one brownie confirmed the presence of THC and other cannabinoids,” the council said in a statement.

“However, we can assure our residents and the community that we have done a thorough investigation. This appears to be an isolated incident and the City believes it has addressed any potential risk to the community.”

According to Bada Bing Café’s website, the café is a locally owned family business run by Mr Sharp and his wife Simona Sharp.

Mr Sharp describes the café as “kid-friendly cafe/restaurant with toys and colouring-in to keep the little ones happy”.

It remains unknown how the marijuana came to be in the brownie or how it ended up being allegedly sold to the family.

Further to this, there is no evidence the suppliers intended to sell a cannabis-spiked item to the family.

What Western Australian Law has to say about Selling “Unsuitable” Food

In Western Australia, the Food Act 2008 provides for the safety and suitability of food for human consumption, and for related purposes. It is the principal piece of legislation regulating the production and sale of food in the state.

According to Section 13 of the Act, food is unsuitable if the food is damaged, perished or deteriorated to a point that it affects its reasonable intended use, or contains deteriorated, damaged or perished substances affecting its reasonable intended use, or it’s the product of a diseased animal, or an animal that dies otherwise than by slaughter, and hasn’t been declared as safe for human consumption by or under another Act, or it contains a biological (or chemical) agent or other matter or substance foreign to the nature of the food.

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What Does the Law say about Food Tampering in NSW?

What Does the Law say about Food Tampering in NSW?

‘Contamination’ is where there is interference with food in some way. It includes, causing an appearance that it’s contaminated or interfered. (section 93J Crimes Act 1900 (NSW)).

In NSW, food tampering is a crime carrying a maximum penalty of 10-years imprisonment if you contaminate food with an intention or for the purpose of either causing a public alarm (or anxiety), or to cause economic loss through making it the ‘contamination’ publicly aware (section 93K Crimes Act 1900 (NSW)).

In fact, a person who even threatens to contaminate food with the same intention(s) will face the same maximum penalty in NSW (section 93L Crimes Act 1900 (NSW)).

If a person contaminates (or threatens to) contaminate food as outlined above, which causes death or grievous bodily harm on another person, or if a person contaminates (or threatens to) contaminate food where death or grievous bodily harm does not result but intended to cause death or harm by such contamination will face a maximum penalty of up to 25-years imprisonment. (section 93O Crimes Act 1900 (NSW)).

Click here for an outline of what is ‘grievous bodily harm’.

Also, click here for an outline on the law of supplying cannabis in NSW.

In all states, any kind of food tampering must be reported to the local health department and the police.

Published on 03/07/2019