New Zealand Law Society - Some proceedings involving mushrooms

Some proceedings involving mushrooms

A mushroom for everyone

Meadow Mushrooms Ltd’s advertising campaign featured photos of packaged mushrooms and the text “Fancy a Curvy Earthy Brunette? There’s a mushroom for everyone”. This drew a complaint to the Advertising Standards Authority in 2016 near the end of an extensive campaign in places such as billboards, bus shelters, social and print media. The complainant found the advertisement offensive as they believed it degraded all women, placed them in the lens of men and portrayed them as objects and not humans. Meadow Mushrooms said the campaign was “tongue and cheek” but the complainant had missed the overarching theme/message that Meadow Mushrooms believed there was a mushroom for everyone “and you are encouraged to try and find yours”.

The Authority’s Complaints Board found that the advertisement was light-hearted and focused on mushrooms and not people. It did not consider the wording portrayed people in a manner which was likely to cause offence or employed sexual appeal in a manner which was exploitative or degrading of people in order to promote the sale of products ([2016] NZASA 351).

Defence kept in the dark

Professional mushroom picker Ewa Rolbiecka was at work in a mushroom shed in Ireland’s County Wicklow. The mushroom trays were rather high up and Ms Rolbiecka decided to improvise and use a stool to reach them. Unfortunately she chose a very short stool and fell on to her right leg on the concrete floor, injuring her back. Unable to work and claiming she had not been provided with proper equipment, she sued her employer, Michael Kennedy. The case took three years to come to trial, in March 2019. Ms Rolbiecka’s case included claims that she was unable to carry out household tasks, to cycle or walk far, and had problems with lifting, carrying, pushing and pulling things. Michael Kennedy’s defence was that she had contributed to the problem and he had provided proper equipment. On the second day of a scheduled three-day trial, Kennedy’s defence team, Finbarr Fox SC and Philip Fennell BL introduced some smoking gun evidence when they produced a film shot by a private investigator. This showed Ms Rolbiecka cycling a year after the accident, with another film showing her pushing her grand-daughter in a pram to and from a shopping centre. Justice Bernard Barton adjourned proceedings to let the defence team view the unedited versions. On their return to court they advised that the case was being withdrawn.

Automatism and magic mushrooms

On 28 December 2015 Canadian high school student Thomas Chan and three friends consumed some “magic mushrooms” which contained psilocybin in the basement of his mother’s home. A few hours after ingesting the mushrooms, Mr Chan’s behaviour changed. He began speaking in gibberish, ran upstairs to his mother’s room and began calling his mother and sister “Satan” and “the Devil”. He then ran outside, where it was below freezing and snowing, wearing only a pair of pants. Mr Chan ran to his father’s house, which was just around the corner. He fought off one of his now-frightened friends and broke in through a window. His father appeared and Mr Chan stabbed him repeatedly, his father dying of his injuries. His son then attacked his father’s partner, stabbing her multiple times. When the police arrived he immediately complied with demands to raise his arms and drop to the ground. However, when handcuffed he struggled violently, “with super strength” according to one of the police.

In March 2019 Thomas Chan was convicted of manslaughter and aggravated assault. He was sentenced to five years’ imprisonment. However, on 3 June 2020 the Ontario Court of Appeal set aside his convictions and granted him a new trial (R v Sullivan 2020 ONCA 333). At issue in the appeal (which was heard with another similar case) was whether Mr Chan should have been able to plead non-mental disorder automatism. The problem was that the claim arose from his intoxication and he was charged with violent offences. However, section 33.1 of the Criminal Code removed non-mental automatism as a defence where the state of automatism was self-induced by voluntary intoxication and the offence charged was a violence-based offence.

His defence challenged the constitutionality of section 33.1. The trial judge found it was constitutional, but the appeal court found the judge had got the objective of of section 33.1 wrong. “A reasonable person in Mr Chan’s position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour, let alone a knife attack on his father and his stepmother, people he loved.”

The Court of Appeal found that as Mr Chan should have been provided with the opportunity to plead non-mental disorder automatism, his convictions should be set aside and a new trial ordered. “The trial judge made no finding that Mr Chan was not acting voluntarily. Instead, he found that as a result of psychosis induced by intoxication, Mr Chan was incapable of knowing that his actions would be considered wrong according to moral standards of reasonable members of society. This is not a finding of non-mental disorder automatism. A person can lack the capacity to know their acts are wrong, yet still voluntarily choose to engage in those acts,” Paccioco JA stated. Mr Chan is now out on bail.

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