What is the Law and Penalties for Food Tampering in NSW?

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By Sahar Adatia and Jimmy Singh.

There’s no denying that for the sweet tooth, custard is old-fashioned comfort food at its finest.

It’s a dessert that doesn’t require any frills or fancy plating and is simply enjoyed in its silky form and sweet flavour. Even better, it doesn’t fail to please when it is spruced up – with fruit, caramel, meringue, nuts, jelly, even chocolate ganache.

But evidently this is not the case when it is mysteriously spruced up with a strange substance that strongly resembles faeces.

Seems odd, right?

Sounding like something more out of an episode of Gordon Ramsay’s Kitchen Nightmares, on 8 November 2018, a police investigation was triggered after food intended to be served to patients at one of South Australia’s major hospitals was discovered intentionally contaminated with a mystery “solid organic-looking product” that had the same appearance of faeces.

Detectives were called to Flinders Medical Centre to examine how up to 10 custard and jelly desserts were deliberately laced with a peculiar, abnormal substance, and to carry out testing to determine whether faeces was the substance involved.

According to authorities, the contaminated food was part of a special modified diet option for vulnerable patients who have difficulty swallowing. The meddled sweets were found on a tray inside a kitchen refrigerator during a scheduled inspection around 9:15am, following which a hospital staff member disclosed the contamination. The substance appeared to have been planted in the food.

Speaking of the sabotage, police confirmed no patients had consumed the food and there had been no threats made over the contamination.

“We are satisfied that there are no patients who have been fed the contaminated foodstuffs. No threat or claim has been made in connection with this,” Acting Assistant Commissioner Joanne Shanahan said.

She did not comment on whether the strange substance was faeces, beyond stating that the “matter was being forensically analysed”.

Meanwhile, patients who consumed the same desserts the previous day were contacted, however none of them complained about the quality of the food or of feeling unwell.

Mystery Substance Confirmed Not Faeces

While police are continuing to investigate the curious case, South Australia’s Health Minister Stephen Wade said the deed is a “disgusting act of contamination” and one which is completely condemned.

He also said that patients should find reassurance in that a scheduled daily safety check was able to pick up the intentional corruption before any people were affected.

Additionally, Mr Wade confirmed that the organic material was not faeces.

“I’m advised it was organic material and it wasn’t faeces,” Mr Wade said.

“It was placed in a small number of custard desserts, less than 10.”

Mr Wade said he was very glad the sabotage was identified and that CCTV operational in the area where the hospital was cooking the “all-new fresh meals” may assist to find the culprit.

Hospital Staff Helping with Criminal Investigation of Food Sabotage

Health staff and management at Flinders Medical Centre are now assisting police with the criminal investigation. Hospital security footage is being reviewed and staff are undergoing questioning.

In the meantime, while there are concerns about possible copycat incidents, Assistant Commissioner Shanahan warned that police are on the lookout and anyone proven to be behind the attacks would front serious charges.

“We are looking at anyone who may have had access into this area of the hospital,” Assistant Commissioner Shanahan said.

Police are currently unclear whether the dessert contamination happened on site.

Table Of Contents

The Law on Food Tampering in NSW

The Law on Food Tampering in NSW

Food sabotage is a crime.

‘Food tampering’ is also known as food contamination which involves the deliberate interference with food. This also includes tampering with food to make its appearance as though it has been contaminated or interfered. This is reflected in section 93J of the Crimes Act 1900 (NSW).

Anyone guilty of contaminating food with the intention of causing public alarm or economic loss under section 93K of the Crimes Act 1900 (NSW) will face a penalty of up to 10-years imprisonment.

Anyone guilty of threatening to contaminate food with the intention of causing public alarm or economic loss under section 93L of the Crimes Act 1900 (NSW) can expect to face a penalty of up to 10-years imprisonment.

A person guilty of committing any one of the above two offences in circumstances that it causes either death or a really serious injury (known as grievous bodily harm) to a person will be faced with a penalty of up to 25-years imprisonment under section 93O of the Crimes Act 1900 (NSW).

The same maximum penalty applies to anyone guilty of either s93K or 93L in circumstances the offender intends to cause death or harm (where death or harm doesn’t occur).

You will be guilty of contaminating food with the intention of causing public alarm or economic loss under section 93K of the Act if the police can prove each of the following elements beyond reasonable doubt in court:

You interfered with food in any way. This can include making it look like it has been tampered or interfered with, or where inserted something inside it; and
At the time of doing this, you had the intent to cause public alarm or economic loss. This includes a situation where the public awareness of tampering causes anxiety or economic loss.

You will be guilty of food contamination if you commit the above offence, and the police are able to prove beyond reasonable doubt that the contamination caused death or grievous bodily harm to another person.

“Grievous bodily harm” is the kind of harm that includes broken bone, split lip or any harm that involves permanent or serious disfiguring.

Grievous bodily harm is a more serious kind of harm than actual bodily harm charges.

It is important to note that under this offence, it is not actually necessary for there to be any harm or economic loss that is in fact suffered as a result of the food contamination. Rather, simply intending to cause the harm or economic loss is enough to be guilty of this offence.

Food for Thought: The Crime of Food Tampering and Why People Do It

Deliberately contaminating food products with the intent to cause harm is considered food tampering. It is a crime that has previously occurred in processing, storage operations and retail procedures. In the future, it may also be considered a terrorism strategy.

According to Griffith University criminologist Dr Danielle Harris, food tampering is a very deliberate act and the explanations for people committing this offence are vast.

“We have lots of different explanations for why people commit crime, from free will, rational choice, routine activities, the impact of a traumatic childhood, abuse of substances, a difficult home environment, residential mobility etc,” Dr Harris said.

“Food tampering is one of those things where it’s the epitome of free will – what we’re seeing here is somebody who wanted to inflict harm and wanted to instil fear.”

Highlighting the recent strawberry contamination occurrences as a case in point, she said that the thought that it surfaces via a disgruntled employee or someone seeking some kind of revenge is likely a reasonable explanation because this ties in to the idea of free will.

“We’re not talking about an accident here – it’s not a crime of passion, it didn’t happen while somebody was drunk, it’s not something where we have those mitigating circumstances,” Dr Harris said.

As such, according to the criminologist, often, food tampering occurs where the person wants to instil fear and create harm.

Any questions arising from this blog? Our team appears in all courts.

We are available 24/7 and have experienced criminal lawyers in Newcastle, Parramatta, Penrith and Bankstown.

Published on 11/11/2018