R v Gorton - [2001] QCA 43

[2001] QCA 43

COURT OF APPEAL

WILLIAMS JA
AMBROSE J

DOUGLAS J

CA No 263 of 2000

THE QUEEN

ASHLEY JOHN GORTON	Appellant
BRISBANE ..DATE 19/02/2001
JUDGMENT
19022001 D.1 T19/BP17 M/T COA35/2001

WILLIAMS JA: The appellant faced charges of offences against the
Drugs Misuse Act.

The first was that he unlawfully produced cannabis sativa, conduct made an offence by section 8 of that Act. The second count was that he unlawfully had possession of cannabis sativa, conduct made an offence by section 9 of that Act. And thirdly, that he had in his possession a quantity of equipment used in connection with the commission of the crime of producing a dangerous drug, conduct made an offence by section 10 of that Act.

Before the jury was sworn, a preliminary point was taken by the appellant, namely that those provisions of the Drugs Misuse Act were invalid because they contravened section 116 of the Commonwealth Constitution, or alternatively they were invalid by operation of section 109 of the Constitution given the provisions of the Psychotropic Substances Act 1976 (Commonwealth).

The appellant dismissed his counsel and argued the point himself before Mr Justice Mackenzie. For reasons which he gave at the time, that learned Judge concluded there was no substance in the submissions of the appellant and ruled that there was no basis upon which the appellant was entitled to a defence on the ground that the statutory provisions in question were invalid.

In the light of that ruling the appellant pleaded guilty to the charges. Various material was placed before the Judge on the question of sentence and ultimately the sentence imposed was 180 hours' community service.

2 JUDGMENT

19022001 D.1 T19/BP17 M/T COA35/2001

The appellant has now appealed against his conviction, wishing by the appeal to reagitate the points taken before Justice Mackenzie with respect to the validity of the provisions of the Drugs Misuse

Act.

The appellant placed in evidence before Justice Mackenzie an extract from the Indian Hemp Drugs Commission Report conducted in India. That was apparently primarily concerned with social and religious customs in which marijuana and its derivatives were allegedly used.

The appellant asserts, and it can be accepted for purposes of the appeal, that he is an adherent of the Hindu religion. In accordance with what he claims are customs and practices of that religion he wants to use marijuana in his home as part of his religious worship.

So far as section 116 of the Constitution is concerned, he relies in particular on the words found therein, "The Commonwealth shall not make any law ... for prohibiting the free exercise of any

religion." That is the provision of the Constitution he submits
is infringed by the sections in question of the Drugs Misuse Act.

There are in my view two answers to that proposition. Firstly, as was held by the Full Court of South Australia in Grace Bible Church v. Reedman (1984) 36 S.A.S.R. 376, section 116 by its terms only regulates the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gorton

Details

AGLC: R v Gorton [2001] QCA 43
Case: [2001] QCA 43
Decision Date: 19/02/2001

CaseChat Overview and Summary

The case of R v Gorton involved the appellant, Ashley John Gorton, who was charged with offences under the Drugs Misuse Act, including the unlawful production and possession of cannabis sativa and possession of equipment used in connection with the commission of the crime of producing a dangerous drug. Before the trial, Gorton argued that the provisions of the Drugs Misuse Act were invalid as they contravened section 116 of the Commonwealth Constitution or were inconsistent with the Psychotropic Substances Act 1976 (Commonwealth). However, the trial judge rejected these arguments, and Gorton subsequently pleaded guilty and was sentenced to 180 hours of community service. Gorton appealed his conviction, seeking to re-argue the validity of the Drugs Misuse Act provisions. The appeal court considered Gorton's claim that the legislation infringed on his right to freely exercise his religion, as an adherent of Hinduism, which allegedly required him to use marijuana in his religious practices. The Court of Appeal concluded that section 116 of the Constitution only regulated the powers of the Commonwealth and did not prevent a State Parliament from passing laws that might prohibit the free exercise of a religion. Additionally, the Court found no inconsistency between the Drugs Misuse Act and the Psychotropic Substances Act 1976.

The Court of Appeal further found that the appellant had not presented a valid argument to demonstrate that the sections of the Drugs Misuse Act in question did not create offences that could be dealt with by the Courts in Queensland. The appeal was dismissed, and the conviction was upheld. The Court held that there was no inconsistency between the Drugs Misuse Act and the Commonwealth Constitution or the Psychotropic Substances Act 1976. The appeal was dismissed, and the conviction was upheld.

Orders