Criminal Offences of Injuring or Killing Australian Citizens or Residents Overseas

Six tourists including two young Australian women, both aged 19-years, are now deceased as a result of a mass poisoning in a popular South-East Asian holiday destination in Laos, after consuming drinks that are believed to have contained methanol.

The Destination

Vang Vieng in central Laos was a remote and secluded mountain town until the early 2000s when backpackers flooded the area to turn southeast Asia into a world-renowned nomadic destination and party hub.

Since then, Laos has been a vital location for young travellers, tourists, and curious adventurers who want to go off the beaten path and ensure their money can go a long way when it comes to experiences, partying, and exploring new locations. However, the deaths of six tourists from across the world have caused an international stir regarding the safety of foreign countries for young travellers.

The tragic deaths of the two Australian girls, Holly Bowles and Bianca Jones, both aged 19 and from Melbourne, occurred late last week due to methanol poisoning.

Methanol poisoning, a potentially fatal condition, is not new to the geographical region, with numerous incidents reported across Laos, Thailand, Indonesia, and other nearby countries. Methanol, a toxic form of alcohol, can cause severe health issues, including blindness and death, if ingested in large quantities.

Albanese, Australia’s Prime Minister, stated that the teenagers’ deaths were ‘every parent’s worst fear’. He has since pledged to work with the governments of affected countries to improve safety measures for Australian travellers. But, what can be done about crimes committed against Australians on foreign territories, and how much do worried parents really need to worry about suspected poisonings while their kids are on a fun weekend getaway or gap year travel?

Offences of Killing or Injuring Australians Overseas

The Crimes Legislation Amendment (Harming Australians) Act 2020 inserted a number of offences into the Criminal Code 1995 (Cth) which relate to killing or harming Australian citizens or residents when they are overseas.

Murder of an Australian Citizen or Resident Overseas

Murdering an Australian citizen or resident overseas is an offence under section 115.1 of the Criminal Code Act 1995 (Cth) which carries a maximum sentence of life in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You engaged in conduct outside Australia,
2. Your conduct caused the death of another person,
3. The other person was a citizen or resident of Australia, and,
4. You intended to cause, or were reckless as to causing, the death of an Australian citizen or resident or any other person you ‘caused the death’ if your conduct substantially contributed to it.

You were ‘reckless’ if you were aware there was a substantial risk that your conduct would cause death and it was unjustifiable to take that risk but you went ahead with your actions regardless.

Manslaughter of an Australian Citizen or Resident Overseas

Section 115.2 of the Criminal Code Act 1995 (Cth) contains the offence of manslaughter of an Australian citizen or resident overseas, which carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that a person:

1. Engaged in conduct outside of Australia,
2. The conduct led to the death of another person,
3. The person was a resident or citizen of Australia, and
4. The person intended to cause harm or acted recklessly to an Australian citizen or resident.

Bar to Prosecuting Overseas Homicide Offences Against Australians

It is important to be aware you cannot be found guilty of either of the above offences if you had already been convicted or acquitted of an offence relating to the same conduct under laws of the country or part thereof where your conduct occurred.

Intentionally Causing Serious Harm to an Australian Citizen or Resident Overseas

Intentionally causing serious harm to an Australian citizen or resident overseas is an offence under section 115.3 of the Criminal Code Act 1995 (Cth) which carries a maximum sentence of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You engaged in conduct outside Australia,
2. Your conduct caused serious harm to another person,
3. The other person was a citizen or resident of Australia, and,
4. You intended to cause, or were reckless as to causing, serious harm to an Australian citizen or resident or to any other person.

You ‘caused serious harm’ if your conduct substantially contributed to the harm being caused.

Recklessly Causing Serious Harm to an Australian Citizen or Resident Overseas

And recklessly causing serious harm to an Australian citizen or resident overseas Is an offence under section 115.4 of the Criminal Code Act 1995 (Cth) which carries a maximum sentence of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You engaged in conduct outside Australia,
2. Your conduct caused serious harm to another person,
3. The other person was a citizen or resident of Australia, and,
4. You were reckless as to causing serious harm to an Australian citizen or resident or to any other person you ‘caused serious harm’ if your conduct substantially contributed to the harm being caused.

Again, you were ‘reckless’ if you were aware there was a substantial risk that your conduct would cause serious harm and it was unjustifiable to take that risk but you went ahead with your actions regardless.

Legal Defences

Several legal defences including self-defence, duress, sudden or extraordinary emergency, mental illness and automatism may apply to the above offences.

In the event you are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of the case.

You are entitled to an acquittal if the prosecution is unable to do this.

Jurisdictional Problems

The main legal impediment to prosecuting any of the above offences is jurisdictional; in other words, the fact Australia does not have the power to conduct prosecutions abroad.

So, in practice, either the alleged offender would need to be an Australian citizen and be extradited to our shores to face the charges, or would need to be any person visiting Australia and be apprehended here.

Bootleg Alcohol Leads to Higher Poisoning Frequency

The frequency of poisonings that are due to bootleg alcohol has been an ongoing concern for tourists visiting some of the less affluent countries in the area, such as Cambodia, Vietnam, and Indonesia.

Indonesia has the highest rate of incidents in the last 20 years due to the production and consumption of unsafe liquor, along with tourist stop-over towns on backpacking trails, such as Vang Vieng. Due to unsafe food and alcohol regulations, establishments can get away with making and serving counterfeit drinks that use methanol.

Australian Poisoning Cases

One of the most infamous poisoning cases to grace the headlines in Australia involved a beef Wellington pie — although seemingly innocent enough to serve for a dinner party, the suspected dish led to the death of three individuals and one in critical condition.

Erin Patterson prepared the beef Wellington pie for her family members in July 2023. The dish supposedly led to mushroom poisoning, specifically using the Amanita phalloides mushroom, which is responsible for 90% of mushroom-related deaths around the world. Similarly, the same type of mushroom was responsible for two deaths at a New Year’s Eve party in Canberra eleven years prior.

Another infamous poisoning case in Australia involved gas poisoning and mysterious deaths near Lane Cove River in Sydney in 1963 — the Bogle-Chandler case. Since the cause of death could not be confirmed for over 50 years, the mysterious deaths led to worldwide headlines and a famous case that attracted instant media publicity. The initial poisoning theories included cone shell poison, LSD, and aphrodisiacs. But, in 2006, a filmmaker hypothesised that the cause of death was due to hydrogen sulphide and the nearby noxious fumes from a polluted river bed.

Lastly, thallium poisoning was responsible for the ‘Thallium Craze’ in the early 1950s, a period of murder or attempted murder by using thallium. This easy-to-get, over-the-counter substance could quickly claim the lives of victims. Notable cases included:

• The Yvonne Fletcher case of a woman who was charged and tried for the murders of two husbands,
• The Ruby Norton case, where a woman was tried for murdering her daughter’s fiance, and
• The 1953 case involving Caroline Grills, who was sentenced to life in prison for murdering three family members and a family friend.

Australian & Worldwide Poisoning Prevalence

While accidental poisoning may not be the leading cause of injury hospitalisations, understanding its prevalence and sources is crucial for staying safe. Between 2022 and 2023, accidental poisoning accounted for almost 9,000 hospitalisations and made up nearly 2% of all injury hospitalisations.

The main categories of accidental poisoning include non-opioid analgesics, sedatives, narcotics, opioids, hallucinogens, biological substances, alcohol, organic solvents, gases, vapours, and pesticides. In 2022, alcohol accounted for just 130 out of 100,000 age-standardised rates of accidental poisoning hospitalisations, compared to almost 3,000 for other and unspecified drugs and biological substances.

Furthermore, the number of hospitalisations caused by accidental poisoning over the past decade has shown a downward trend in Australia, decreasing to 33.4 per 100,000 persons in 2022, down from 45.4 in 2015-2016.

Even with nationwide cases that gripped the public, like the 2023 Leongatha mushroom poisoning that led to three deaths from supposed mushroom poisoning in Victoria, the number of cases has decreased across the country.

But, does the data in Australia reflect the world as a whole? Somewhat.

The total mortality rate from unintentional poisoning per 100,000 population has decreased from 2000 to 2019, but only slightly. Furthermore, a study conducted by the Global Burden of Disease showed that there was a reduction in death and disability-adjusted life-years due to unintentional poisoning in South Asia.

Vigilance is Key

Poisonings are not common, but they are extremely deadly — and the most recent outbreak in southeast Asia is a cause for concern. Poisoning is the ninth-highest cause of hospitalisation in Australia — and although it is not an everyday worry, understanding the signs of a poisoned substance, and of poisoning symptoms, is key to staying safe while home or abroad.

Methanol is a toxic type of alcohol, which can be lethal in even small doses, leading to death, long-term injury, or blindness. Methanol poisoning causes similar symptoms to alcohol poisoning, which can delay the victim from getting immediate help. But, more severe symptoms include abdominal pain, trouble breathing, and a comatose state — all of which can lead to severe illness or death within just a couple of days.

Staying safe while travelling is essential. Recognising the symptoms of methanol poisoning, and knowing where and how to seek medical help, is paramount.