Just Cases | Season 1 | Episode 4 | They don't teach you this at law school

June 1996. Late at night, two young men cross paths on a Sydney street. When the sun rises the following morning, one of them will be found dead.

The events of that evening are murky, but the resulting court case is unprecedented - and we still feel its effects.

Music in this episode:
- 'Made Men' by Audiobinger (CC BY-NC-SA 4.0 license)
- 'You Cant Love Me' by Audiobinger (CC BY-NC-SA 4.0 license)

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Transcript | Just Cases | Season 1 | Episode 4 | They don't teach you this at law school

Kate Seear: [00:00:00] It sent shockwaves through the community that somebody might be charged and found guilty of manslaughter in these circumstances

from Monash Law School. This is just cases, the backstory to the biggest court cases you've never heard of.

Kate Seear: I can't look this case up in a book, right? It's not written up.

It's not imprinted anywhere, literally. But it's been imprinted on the mines and memories of people who inject drugs in Australia

on just cases. We explore cases that have changed the way we live our lives and the stories of those caught in the crossfire.

Melissa Castan: It is June, 1996 on the streets of Cabramatta in Sydney's West. It's late at night and two young men will cross paths for the first time, but when the sun rises the following morning, one of these men will be found dead on the street. What exactly went down that night is still not entirely clear, and the stories of these two men has gone pretty much [00:01:00] untold.

But my guest today says that what happened as a result of this case is unprecedented in Australian law and it's had a ripple effect that's continued to resonate to this day. Kate Seear teaches law at Monash Law School and she's felt the impact of the story of Quoc Cao and Matthew Sutton in the decades since that tragic night in Sydney.

So Kate, take us to that 19 June, 1996. What do we know about what happened?

Kate Seear: Yeah. We know some things Melissa, but we don't know everything. So it's a fascinating story. The case that I'm interested in began on the night of the 18th of June, 1996, where a 21-year-old man named Matthew Sutton met another man called Quoc Cao on the streets of Canberra matter, which it's a suburb of Sydney, as many of our listeners will know, and the two men didn't know each other before that meeting.

What we know is that Mr. Sutton told Mr. Cao that he had some heroin. He bought some heroin in Cabramatta, and at that time, actually Cabramatta was one of the largest street drug markets in the country. So [00:02:00] Sutton told Cao that he had bought some heroin and that he wanted to inject it, but importantly, he didn't have a.

Needle and syringe to use. And so he approached Cao and asked him if he could help. And Cao as it turned out, said that he could, he had a needle and syringe. He had one back at his house. He actually lived in a boarding house in a suburb called Canley Vale, which is just right near Cabramatta. And so they struck a bit of a deal in that.

Cao said to Sutton, if you can give me a lift back to my boarding house, I will give you a clean needle. So that's what happened. It's not entirely clear what happened next. There's a couple of things that we know, and most importantly what we do know is that Matthew Sutton at some stage over the next little while, maybe at around midnight, did inject himself with heroin using a needle that Cao had given to him.

It's unclear where that happened, whether he injected himself inside Cao's house or outside on the street. We don't know. Cao certainly said that all I did was give him a needle and that was the end of it and he went on his [00:03:00] way. But what we do know is that the next morning, so the morning of the 19th of June, 1996, Sutton was found dead in the street right near Cao's boarding house at about eight o'clock in the morning and.

Sutton was sadly one of more than 200 people who had died of a drug overdose in New South Wales, just in that year alone.

Melissa Castan: And it was in the midst of a kind of an epidemic type situation in the mid nineties, wasn't it? Yeah, it

Kate Seear: was. There was a sort of spike and a series of heroin overdoses or drug injecting, but particularly heroin overdoses across Australia at that time.

And I think. Yeah, I think there were 226 heroin related deaths just in New South Wales. So sadly, Matthew Sutton was one of them. And and is a person who most of our listeners will never have heard about. But for reasons I'm gonna explain a lot of people out there in the community do know about for reasons I'll come to,

Melissa Castan: cao was charged with manslaughter of Sutton. That's quite unusual in this kind of fact situation, isn't it?

Kate Seear: Yeah, it is. It was. It was unprecedented that something like this [00:04:00] happened and it has had a series of ripple effects that continue to resonate until this day. So Cao was. Technically charged with having what we call felon.

He felonious, slew Matthew Sutton. That's what's charge. That sounds very old fashioned term. It is a very old fashioned term. It is. And so he was charged with something that we call unlawful and dangerous act. Manslaughter and the case then proceeded in front of a jury in the district court of New South Wales.

And so essentially, unlawful and dangerous act, manslaughter is a kind of complicated charge. What it requires is proof that somebody had engaged in an unlawful act of some kind, and that act was dangerous. And that the dangerous act then caused the death. So explain to me

Melissa Castan: how that kind of. Charge came to be chosen for this kind of act?

What do we

Kate Seear: know about what happened? It's a bit complicated. So I'll take you through it. The starting point is that there's a law in New South Wales, which is called the [00:05:00] Drug Misuse and Trafficking Act, and there's a section in that section 12 that says, and I'll just read it to you, that a person who administers or attempts to administer a drug to himself or herself.

He's guilty of an offense. And this is the offense of what we often refer to as shorthand of the offense of self-administration. In other words, it's illegal to inject yourself with drugs, for instance. Okay? And so in that sense, Sutton committed an unlawful act because he injected himself with drugs, but no one would ever prosecute

Melissa Castan: him because

Kate Seear: he was gone.

No, exactly. So section 19 of that same act says that a person who aids are bets. Councils, procures, solicits, or incites the commission of an offense under this division is guilty of an offense, and this is what Cao was accused of. In other words, what Cao did that was wrong or unlawful was that he aided an ab bettered Sutton's.

Self-administration by giving him the needle, that Sutton used to inject himself [00:06:00] with drugs, and that was the unlawful and dangerous act, if you like. Yeah. That got Cao charged with his offense and saw him before a jury. Now, you mentioned that this is an

Melissa Castan: unusual case. Why is an unusual case?

Kate Seear: There's a few reasons.

One is that, first of all, it was unheard of for a person to be charged with unlawful and dangerous act manslaughter in these circumstances where. What had happened was that Cao had merely given somebody else a clean needle and syringe to use. And I say merely there. I know that it might depend on your perspective whether there was something really egregious or immoral about that.

But as I'll explain in a while, that's actually quite a common practice among people who inject drugs and it's important. And I'll come back to it. It's also an unusual case in the sense that it's not a reported decision. So what I mean by that is that as you well know, when we study law or teach students about law our students can go to.

The law library and flick through any number of volumes of books that have important decisions like the [00:07:00] Mabo case and others of the high court, whether the reasons that a decision were made are set out and you can read them and study them. And this was a case that proceeded in front of a jury. So there are no written reasons for decision and therefore I can't. Look this case up in a book. So it's not written up. In other words, it's not written up. It has no presidential shows show. That's right. And no, it, it's not imprinted anywhere, literally. But it's been imprinted on the minds and memories of people from Cabra matter in particular also from the Vietnamese community of which Mr.

Cao was apart. And more broadly, people who inject drugs in Australia. People who work in my sector, who do drug research or drug policy or drug law, and people who use drugs are very familiar with this case because it sent shockwaves through the community that somebody might be charged and found guilty of manslaughter in these circumstances for something that many people thought was quite innocuous actually.

Yeah. Merely giving somebody a needle and sending them on their way.

Melissa Castan: So how do we come to know about [00:08:00] this case if it hasn't been written up in the normal formal law reports or something of that nature?

Kate Seear: Yeah, it's a good question. Actually. A couple of people wrote about it several years ago, and one of them I'm very grateful to is a researcher called Julian Shimmel.

But. I often go to academic conferences, drug policy, drug law conferences, and people still talk about this case. So it lives on in people's minds for a range of reasons. But one of them is because of the research that Julian did many years ago, and one of the things that Julian did is he managed to get the tape of the trial and he transcripted himself and he helpfully shared it with me and some of my colleagues.

And the case was heard by. Somebody called Acting Judge Ford and in his charge to the jury acting Judge Ford actually signaled that this was a very unusual and interesting case. And I'll just tell you what acting Judge Ford said. I. He said, this is the first case that I've ever encountered where a person who is present at the time of an injection and who supplies a needle has been [00:09:00] regarded as somebody who is a party to a participant in the crime.

In a sense, it may well be that this is a test case. That's interesting because.

Melissa Castan: As a case that's broken, a kind of boundary by having a manslaughter charge for this kind of fact situation, it is a bit of an unusual case, and yet if it was a test case, we would've expected to see it have more emphasis or been repeated in other cases that have come since then and yet.

That hasn't actually happened.

Kate Seear: Yeah, that's right. It hasn't and it's puzzling to me as to why that might be. Is it

Melissa Castan: possibly because it's just confined to its own special unusual facts, with the jury. So the jury were persuaded that Cao was guilty in these very particular one-off situation, although it's not such a one-off because it must actually Yes.

Happen quite a bit. It does. Where people provide other people with clean. Needles. It does. It's a very

Kate Seear: common practice. Look, there's been a bit of speculation as to why this case might have even been brought in the first place, and also [00:10:00] why the jury did convict in this case. Certainly, I know some people have taken the view that there might have been a racial element to it that Mr.

Cao was a Vietnamese descent in Cabramatta, which as I said, had a large street market of drug. Dealing and drug use, and there's a long and very complicated history in relation to drug policy and people of Indochinese or Vietnamese descent. So some people I think, felt that Cao might have been targeted in order to send a message to that particular community.

Melissa Castan: What punishment was imposed for him for the guilty finding?

Kate Seear: His punishment was. Fairly lenient in a sense. He wasn't sent to jail. He received a three year good behavior bond. And as I said, in a sense, what was perhaps most important was that symbolically, that sentence and that conviction really resonated with people in that community who had this long history of sharing needles and clean needles and syringes with one another for reasons that will come to.

Melissa Castan: You are listening to just Cases with Melissa Castan and Kate Seear, and Kate's [00:11:00] telling us the little known story of Matthew Sutton and Quoc Cao. So given that there's no written judgment for us to work off, and only the transcript of what the, I guess the judges statements were at the end there. Can you answer something for me?

And that is, what do you think this judgment missed or didn't say as much as what it did say?

Kate Seear: I think that's a great, what doesn't it address? Yeah, it's a great question. 'cause there's something at the heart of it actually that it misses, which I think is what makes the case to me both so interesting and so important and also I think wrong.

So the statute law in this case, and we're dealing with those sections I mentioned earlier. From the New South Wales legislation, they don't ask us to consider the motivations of a person in Mr. Cao's position. So it doesn't

Melissa Castan: have to be that you intended to harm someone No. Or you were negligent as to harm cause to someone.

No. It's

Kate Seear: just Did you do it? That's right. The question simply, did Cao give Sutton a needle? If so, he's fallen foul of that section of the act. But the thing that's lost in the case. Is that there [00:12:00] are a range of reasons why people in Cao's position often give clean needles and syringes to other people, including strangers, but also people that they know.

And it's often because it has something to do with preventing harm. So it's actually a caring and benevolent act. And is

Melissa Castan: that because when you. Supply a drug user with a clean needle, you are minimizing the harm that they might experience Exactly. From the taking

Kate Seear: of the drugs. Exactly. So maybe, we'll if I can just take you on a side trip a little bit for No, not,

Melissa Castan: let's go there

Kate Seear: for a little while and just tell you a little bit about some of those harms.

'cause they're actually at the heart of the case as I think about it anyway, so one of the things that we need to know is that many people who inject drugs live with what we call bloodborne viruses. And those are things like HIV. And hepatitis C. So viruses that are transmitted through blood and thus through needle use and thus through needle sharing, actually sharing.

Melissa Castan: Yeah.

Kate Seear: So for example, if a person who [00:13:00] injects drugs, if I were injecting drugs and I shared my needle with you and I had HIV or hepatitis C, you may acquire that. Through using my needle. And what we know actually is that a lot of people in Australia who inject drugs, do share needles. And there are very high rates of bloodborne viruses, mainly hepatitis C. Right. And

Melissa Castan: that goes to, why people talk about having safe injecting rooms. Exactly. So that people who are going to use drugs have the opportunity to have clean equipment and healthcare people nearby in case it's needed.

Exactly.

Kate Seear: Because they are gonna do it anyway. Exactly. So the figures are quite. Alarming, actually quite important. So around 230,000 Australians live with hepatitis C at the moment, and about 10,000 new infections occur every year, and 90% of them are among people who inject drugs because right of the sharing of needles.

So it's a very major. Public health issue. And so what was missed or what was not able to be sort of explored in Cao's case [00:14:00] was that depending on your perspective, he either engaged in an unlawful and dangerous act. That helped. Precipitate Matthew Sutton's death, or he was engaged in a very caring and compassionate act for somebody else he knew who needed access to a clean needle and syringe.

We know that from research that this is a very common practice among people who inject drugs, not just in Australia, but all over the world. And there's been some research done in New South Wales that suggests. That about half of people who inject drugs collect clean needles and syringes for friends or family or for their mates, or even for strangers like, um, Cao and Sutton were, and pass them on to other people who need them for exactly this reason.

Because it's a kind of

Melissa Castan: currency in that environment.

Kate Seear: Yes.

Melissa Castan: Now, if that's the case, then there's quite a big gap between the way the law's actually structured and written down. And the actual lived experience of the people that the law is gonna apply to. There's quite a big disconnect there.

Kate Seear: Absolutely.

And this practice that I've been describing [00:15:00] where people acquire clean needles and syringes and pass them on to other people they know is a practice called peer distribution because peers, France, distribute. To one another, or even non

Melissa Castan: friends.

Kate Seear: Even someone who exactly, strangers

Melissa Castan: don't know.

But you know that they're a user.

Kate Seear: Yes. Strangers, family members. I think it's quite common amongst people who have members in their family who inject drugs. Parents, for example, who will make sure that if their children are using drugs that you know, if they're gonna do it, they must at least get. A clean needle and syringe to do it.

And that practice of peer distribution is itself also illegal in most parts of Australia. So I mentioned some sections of that. Legislation in New South Wales earlier. But in addition to those sections, there's a section in New South Wales legislation and also in most states and territories. That make this particular practice of passing on clean needles and syringes to other people also unlawful.

And that. That legislation's been on the [00:16:00] books for decades in Australia. Is it still enforced as a matter of practice? Not so much I don't think. I'm certainly not aware of any recent prosecutions. But again, it's the sort of thing that lingers in people's consciousness. Consciousness. So we have this very unusual situation where it's unlawful to distribute needles to.

Other people. Despite that, people do it and it's very common, but there is certainly a sector of the population who are fearful of either being caught in possession of clean needles and syringes, or being caught passing them onto other people. And this is where the importance of Caos case comes back in because people know.

Actually that Cao was prosecuted. People who inject drugs, that community of people is aware of that case. It's now nearly 20 years old. It's not reported or written down anywhere, as I said, but it's lingered on in people's memories. And I think in that sense it acts as a very important and I think troubling deterrent.

To a commonplace [00:17:00] practice that people engage in that is actually vital to

Melissa Castan: health. A deterrent to a health practice. Yes. As opposed to a drug practice. Exactly.

Kate Seear: And I think also too, I've done a lot of research over a number of years about drug law and drug policy. And these are often very emotional issues.

People often respond very emotionally to drug use. Of course we mustn't forget that in this case we have a young man, Matthew Sutton, who was dead. And in that sense it's often. I think I can understand the response of a jury who might feel that somebody needs to be blamed or held to account for that death.

But I think in my mind, Cao was not the person who should have been held to account. In fact, his motivations and his actions were probably very benevolent. And I think sadly, that was lost in the case.

Melissa Castan: Now the case isn't really taught anywhere as an explicit kind of in the textbooks of criminal law. And it's not really addressed much in the public, but it has had this.

Big impact in our drug laws and in people's attitudes are towards addiction. So [00:18:00] what kind of message do you think this case has for us? Now, what, where does it stand for us? Now

Kate Seear: we can sit here and I think, talk about. Things like the specific law in question or some of the specific sections in question, but I think the Cao case raises much bigger picture issues for us in relation to drug law and drug policy.

And most of all, I think what it is that people often try to grapple with is what is the meaning. Of this case, or what kind of message does this case send? More broadly about the idea that we would encourage people to help each other out or to care for each other, to support friends and family or strangers who we encounter that use drugs and to engage in.

What a proven harm reduction measures, like the use of clean needles and syringes. So there's a lot of questions that I'm left with as a result of the Cao case. One of them is really, does a case like Cao discourage people from injecting drugs? In the company of other people. Or having people [00:19:00] inject in their own homes.

What would happen? Which presumably

Melissa Castan: is safer.

Kate Seear: Exactly. It's

Melissa Castan: safer than being on your own down a lane way. Exactly. Not having anyone look at what's happening.

Kate Seear: Exactly. So if I knew, for example, that you injected drugs, I would much prefer for you to do that in my home so that I could support you and call an ambulance if I needed to if you got into trouble than to tell you to go off and do it down the street.

Melissa Castan: But this kind of prosecution or even just the reputation about this single case is enough to say to people, you can't be doing that here in my house. 'cause I might be prosecuted. That's right. But

Kate Seear: what's really important is that what happens technically in a case isn't always what people in the public end up understanding the significance of that case to be.

It has a sort of wider symbolic significance and imprints in people's consciousness in a different kind of way.

Melissa Castan: Given all of that, are they moves to reform this area of law? 'cause it sounds to me from what you're saying, that it's not. Not a good fit with reality, but it also might be something that was grounded in thinking about these issues from 30 or [00:20:00] 20 years ago, and they've gone a bit stale.

Yeah, have we moved on from this point? Yeah,

Kate Seear: I think that's a perfect way of describing it. Look, happy news is that there have been some changes in Australian law in the last couple of years, so across Australia and all states and territories. These kinds of provisions have been on the books for.

Decades. But in the last couple of years, Tasmania, the Northern Territory and the a CT have all moved to deal with, first of all, that prohibition on peer distribution that I spoke about. And I was very pleased and very proud that my colleagues and I played a role in, managing to en encourage the a CT government to repeal that law.

So in the a CT, there is now no longer a prohibition on peer distribution.

Melissa Castan: But what about in New South Wales, Victoria, but in New South Wales and Victoria, Queensland.

Kate Seear: Yeah. There is that, that remains on the books. And so it's actually a very opportune time to be having this conversation because right now in Victoria, there's actually a very broad [00:21:00] ranging parliamentary inquiry into drug law reform happening.

And a committee of. The Parliament is considering whether any changes to any of our drug laws in Victoria are needed, and if so, which ones? And I can think of a few, yes, there's plenty, but this to me is one of, one of the ones that should be high on their list. And I've given evidence to that committee and I've told them as much.

And one of the things that was very interesting is that a couple of members of that committee said to me. I didn't even know that this was a law that we had on our books in Victoria.

Melissa Castan: Yeah.

Kate Seear: And why would people, It's obscure. It's

Melissa Castan: obscure, and if you're a politician, would you really be aware of such a law?

Yes. Dealing with a community you might be entirely unfamiliar with. That's right. But it does go to that bigger issue about the health. Is it a health issue or is it a criminal law issue? Yes. And I'm wondering whether. Politicians are now ready to move away from that crime construct. Yes.

And accept more of the public health and even personal health issues that are involved with addiction.

Kate Seear: Yeah, there has been this [00:22:00] longstanding tendency in law. For drug use to be seen in a binary fashion. As either a criminal problem or a health problem. And in both senses actually to be seen as a problem.

And what I think we need to do is move away from all of those conceptualizations and to towards a harm reduction focus. And a harm reduction focus is one that says, look. We acknowledge that a certain proportion of the public uses drugs despite the opinions of some people who would say that it's possible to have zero drug use.

I don't think that's realistic. And so what we should be doing is making sure that we put in place strategies that reduce harm among those people who use drugs. But does reducing harm end up encouraging other people to get involved? No, that's one of the big misnomers. There's no evidence that strategies like needle and syringe programs.

Supervised injecting facilities, which are the, a topic of significant debate in Victoria at the moment. There's no evidence that if we establish [00:23:00] these vital lifesaving health service harm reduction facilities, that they encourage drug use. I think it's because ludicrous,

Melissa Castan: that would be what people would be worried about.

That's right. They'd say, I don't wanna be a part of that. 'cause that's just gonna encourage new. Addictions or new? New problems. Yeah, new use.

Kate Seear: But I think you only have to think about it in relation to yourself. If a supervised injecting facility set up around the corner from your house, Melissa doesn't mean that you'd wander down and decide to inject heroin tomorrow. Probably not. Probably me. Yes. But

Melissa Castan: maybe someone who's in a more vulnerable state than I am, or more on the cusp of making various life decisions might be persuaded by. Yes. Their dealer or their would be dealer. Yeah. That it's all right.

It's all gonna be fine. 'cause you can't get in trouble. And you can't get hurt. And that kind of, I think that's where people think that harm reduction Yes. Correlates with encouragement. Yes. Because they're thinking, what? What about the person who's on the. Tipping point of becoming involved. Yeah. [00:24:00]

Kate Seear: And that it normalizes drug use.

But what the evidence consistently tells us from Australia and all around the world is that's just not the case. And in fact, that there's a certain proportion of the population who. Is interested in trying drugs or there are certain people who will just try drugs. And I think it's a profoundly moral and ethical and political question of why it is that we would not provide services to these people that we know work, that save lives, that prevent harms that preserve life and health.

Why would we not provide them? If we know that they're available and. And that's one of the great, I think, political questions and ethical questions of our time. And it's a live question right here and now in Victoria, and I hope to see the laws change.

Melissa Castan: Kate, thank you very much for a very interesting case and some very interesting ramifications that have come out of it as well.

Thanks, Melissa. It's been a pleasure. You've been listening to Melissa Caton and Kate Sr. From Monash Law School. You can check out Kate's other podcast, [00:25:00] the Outer Sanctum on the A, B, C. If you'd like to learn more about today's case, check out the Just Cases website@justcasespodcast.com. See you next time.

Just Cases is a production from Monash Law School Music. In today's episode from Audio Bja. You can check out the back catalog of just Cases online, just cases podcast.com and subscribe on iTunes, Stitcher, and SoundCloud. If you have an idea for a case you'd like to hear more about on just Cases, get in touch on Twitter.

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