R v Greenfield - [2005] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GREENFIELD
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Tilmouth
9 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCES
Charge of producing cannabis oil - Trial by Judge Alone.
Criminal Law Consolidation Act (1935) (SA) s 12 s 32, referred to.
R v Celani (1983) 35 SASR 255; R v Avory (2003) 87 SASR 392; DPP Reference (No 2 of 1995) (SA) (1995) 65 SASR 508, applied.

CRIMINAL LAW - EVIDENCE
Circumstantial Evidence. Objective circumstances do not compel inference of providing cannabis.
Reasonable hypotheses consistent with innocence.
R v Merritt [1999] NSWCCA 29; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (No 5) (1990) 170 CLR 573, applied.

R v GREENFIELD
[2005] SADC 123
Preliminary

Samuel James Greenfield was tried before me sitting as a ‘judge alone’[1] upon his plea of not guilty to the charge of taking part in the production of cannabis oil. He was also charged with producing cannabis oil, however on the first day of the hearing the prosecution entered a nolle prosequi in relation to that charge.
[1] Juries Act 1927 (SA) s 7(1), T1-5 L21, 2 September 2005, and refer R v Heydon (2000) 765 SASR 265, c.p. R v W (2001) 124 ACrimR 545 (ACT), R v Minani [2005] NSWCCA 226
Particulars of the offence which went to trial are that between 12 February 2003 and 14 June 2003 at Beachport in the southeast, Mr Greenfield knowingly took part in the production of cannabis oil, a prohibited substance contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (“the Act”). As a trial by Judge alone, there is a duty to provide reasons for the decision relating to all the relevant points of law applicable to a jury trial on the same charge and to apply those to the facts as found[2].
[2] Fleming v The Queen (1998) 197 CLR 250, 263, R v Eide [2005] 2NZLR 504
Definitions under The Act
“Cannabis oil” is defined by s 4 of the Act (so far as applies to this case) as meaning a substance containing any one or more of the chemicals cannabinoid or tetrahyrocannabinol:
where the amount of soluble material in any quantity of the substance, when dissolved in the solvent known as hexane, constitutes more than 85% of the weight of that quantity of substance.
In contrast “cannabis resin” is defined as containing the same substances constituting more than 15% but not more than 85% of the weight of that quantity of substance, whereas “cannabis”, is defined as also containing the same substances, essentially in plant form. Under the Controlled Substances (Prohibited Substance) Regulations 2000, Regulation 5 declares all three (in Schedule 1) to be ‘prohibited substances’ for the purposes of s 12(4) of the Act.
There is no “prescribed amount” with respect to possession of the cannabis oil, attracting the operation of s 32(3). Under s 32(5)A(b)(ii) where the substance the subject of the offence is a prohibited substance for which there is no “amount prescribed” (not being cannabis or cannabis resin) a penalty including a fine not exceeding $400,000 or imprisonment for a term not exceeding 30 years or both, become available upon contravention of s 32. In R v Di Maria[3] it was held where no amount is prescribed in relation to a given drug – as is the case with respect to cannabis oil – the lower penalty range applies.
[3] (1996) 67 SASR 466 at 471.
The primary facts
The facts of this matter are not really in dispute. The accused elected not to give or call evidence. On Friday 13 June 2003 police from Millicent entered 52 Railway Terrace Beachport, the home of the accused[4], at about 9.45am and conducted a search of the premises in his absence under the authority of a warrant issued pursuant to s52 of the Act. Upon that search they found various items in an upstairs room on or under a table, which in essence were said to be the components of a kit used for producing cannabis oil.
[4] Ex P 10 Certificate of Title, T 151 L 8-20
At about 10.10am the accused arrived, apparently on foot, and was spoken to by Detective Holmes. It was put to him that they believed there was a “clan lab” in operation on the premises for the production of hash oil, to which the accused replied “I do not know what you are talking about”.[5] This statement was not relied on as probative by either counsel and I therefore ignore it. In the following conversation with the police the accused exercised his right to silence and that being so, it is not admissible evidence under the principle established by the High Court in the Queen v Petty and Maiden.[6]
[5] T25 L 18-20.
[6] (1991) 173 CLR 95, 99; R v Barr [2004] NTCCA 1.
Likewise, subsequent interviews in which the statutory rights were given to the accused and confirmation of the earlier interview with him was obtained, he again exercised his right to silence;[7] for like reason I regard them as irrelevant. The search, or the aftermath at least, was recorded on video Exhibit P3, which was viewed in open court. It provides a general view of various rooms in the house including “bedroom 1” where the majority of the seized items were located, but otherwise is of little value. The audio commentary is not tendered as evidence.
[7] This was recorded and tendered as Exhibit P1.
The seized exhibits
The relevant items alleged to be used for the production of cannabis oil are perhaps best described by reference to the photographs Exhibit P5, especially 4 and 5 (beakers in boxes), 9 (coke bottle), 10 (glass funnel), 12 and 13 (conical flasks), 16 (granulations), 18 (two conical flasks), 20 (hotplate), 21 “Oil Out” container, 23 “MonstaBloom” fertiliser, 24 (retort clamp), 25 (variously described as a “condenser”, “scientific glassware” or a “fractinating column”, 26 (glass hosing and pipes), 27 (glass tubing and rubber stoppers), 28 (teaspoon), 29 (filter papers) and 30 (the table in question) showing stoppers, clamps and other items scattered over a blue tarpaulin. The police also seized a “Tarbaby Pro” booklet or brochure Exhibit P6, which is also to be seen in Exhibit P5 photograph 35. The original position of these various items when first located by the police can be viewed on the video Exhibit P3; by the time the photographs Exhibit P5 were taken they were moved.[8]
[8] T79, L 35-44, T155 L10 – 156 L27.
Detective Beattie took swabs from several of the items around areas “that appeared to have any staining or residue”,[9] including the coke bottle, the glass funnel, a conical flask, the hot plate and the teaspoon.[10] Detective Fielke then seized what he described, over objection, as what looked like ‘dried cannabis stalks’[11] that ‘looks like it’s been lying around for a while…’[12]. These stalks are to be seen in Exhibit P5, photograph 34.
[9] T81 L6-10
[10] T81 L1, 86 L10.
[11] T62 L13-14, T63 L29, 64 L4.
[12] T P63, L37-38.
They were examined by Mr Camilleri, a scientific officer working with Forensic Science SA’s Illicit Drug Section who gave evidence of being told by “our cannabis expert” – once again over objection – that it was “consistent with a cannabis stalk”[13] and who also told him “it was not possible to test that, other than a visual inspection”.[14] Otherwise his opinion on the stalks was outside the areas of his expertise[15]. This evidence was led for the limited purpose of explaining why further testing was not pursued, otherwise it is inadmissible hearsay and cannot be probative of the stalks being cannabis.
[13] T P126, L24-30.
[14] T P127, L1-7.
[15] T 127 L8-13
Another item of interest to the police was a small piece of tissue paper having ‘black staining or residues’[16] to be seen in photograph 43 of Exhibit P5. This was found by Fielke in a rubbish bin located somewhere outside the premises and was admitted into evidence as Exhibit P9. The evidence is quite imprecise as to exactly where in relation to the house this was located except that it was ‘outside of the premises – in the yard’[17]and the evidence is equally imprecise about where it was positioned in the bin[18], whether it was any other (and which) items and how full or empty the bin was, or for that matter how long it may have been there. For all that is known, it may have been close to the house or close to the front driveway awaiting collection by the local Council.
[16] T 65 L14-15
[17] T 65 L16-21 T 140 L8-11
[18] T 72 L1-12
That tissue too was submitted for forensic testing. Mr Camilleri later analysed the black substance on it and expressed the expert opinion that it “contained cannabinoids” derived from the plant material and was “likely to be cannabis oil”.[19]
[19] T 128, L20, 129 L6.
Finally a coffee grinder found in the kitchen on the upper level of the premises was seized and examined; this can be seen in Exhibit P5 photograph 2. Mr Camilleri also detected cannabinoids[20] in the swab taken by Detective Beattie from ‘inside the grinding mechanism … around the spindle area of the grinder’.[21] In this connection it may be observed that the Tarbaby instruction kit (Exhibit P6) recommended breaking dried plant material and stated “the smaller you can grind or blend down your plant material, the greater the yield you will generally experience”.[22]
[20] T 128, L2-5.
[21] T 85, L22-38.
[22]T 158 L31-35
The fingerprints of Mr Greenfield were found on ten glass items seized from the room on the upper level where the table and items already referred to were located.[23] Swabs taken later on 13 June at the Millicent Police Station of the accused’s hand and finger nails[24] proved to contain tetrahydrocannabinol and cannabinoids,[25] a result consistent with him “preparing some cannabis head material to smoke, breaking it up, handling it in the course of that breaking up …”.[26]
[23] T 152 L5-14, Exhibit B 12, 13 & 14.
[24] T 28 L17-24
[25] T 152 L3-5, Exhibit P11.
[26] T 149 L18-36.
The accused purchases oil extracting equipment
Evidence was given by Mr Lambert, a director of Grow Australia a mail order company based in Sydney, to the effect that it was the accused who placed an order on 12 February 2003 to purchase nutrients, a heat shield, an odour eliminator, a pump kit and heater, ‘Oil Out’ solvent and a charcoal filter, paid for by money order of $918.50 and despatched by TNT Express General Courier[27]on about 17 February 2003 to the accused’s residence in Beachport.[28]
[27] T 106 L10-11, 107 L21-22
[28] Exhibit P7.
A subsequent order placed on 7 April 2003 by the accused and despatched on 19 April 2003 was for ‘replacement items’, comprising a flask, some bungs, more Oil Out and a beaker glass, this time at a cost of $432.30, also paid for by money order.[29] There is, it should be noted, no evidence that any of the items forwarded in the first dispatch were broken or missing.[30] The particulars of the accused as addressee corresponded with TNT Road Despatch labels found on boxes in the accused’s house.[31] Mr Lambert also deposed that the Tarbaby Pro kit forwarded by his organisation to the accused was an ‘oil extraction unit …..necessary for oil extraction from plants’[32].
[29] Exhibit P8.
[30] T 131 L12-35, T134 L17-21, T 137 L30- T 138 L19.
[31] Exhibit P5, Photographs 1, 2, 3, 6, 7, 15, and 17.
[32] T 104 L36 - T 105 L3.
There was no evidence at all presented during the course of the trial to suggest anyone else other than Mr Greenfield occupied or had access to the various items or exhibits of relevance to this case.
The prosecution case – a summary
It is the case theory for the prosecution that based on all these objective facts, an inference can be drawn that the kit ordered from Grow Australia and delivered to the accused was plainly used for the production of cannabis oil. All the necessary apparatus and equipment needed for the production and purification of cannabis oil were found in the one room of the house.[33] The instruction manual (Exhibit P6) provided all the advice needed to achieve that result in a step by step format.[34] The equipment was positioned on the tarpaulin ready for use.[35]
[33] T 134 L36 – T 135 L6.
[34] T 131 L12-35, T134 L17-21, T137 L30- T138 L19
[35] T 157 L21-26.
It was said that the production of cannabis oil can be inferred from a combination of facts, that cannabis stalks were found; cannabis oil or resin was found under the accused’s hands and fingernails; the ‘oil’ found on the tissue in the refuse bin outside the house was likely to be cannabis oil, and from the cannabinoids found in the grinder located in the kitchen. Based on this evidence it was argued, the course of events must have been that the accused stripped cannabis leaf from the stems found in the house, ground it in the kitchen grinder, these being steps in the contemplated production of cannabis oil.[36]
[36] T 164 L16-30
As the closing submissions for the prosecution unfolded, it was not clear whether the case was that the kit must have been used at some time between the first order placed on 12 February 2003 and by 13 June 2003 when the police attended at the premises, hence the dates nominated in the information, but in the end it came down to the submission that production must have been at some time ‘proximate’ to 13 June 2003.[37]
[37] T 158 L10-13
Analysis of the prosecution case
The evidence certainly establishes that the accused ordered enough equipment and chemicals capable of perfecting any intention to produce cannabis oil or resin. That equipment was equally capable of producing either or both.[38] The evidence also established that the accused undoubtedly had access to cannabis, given the traces of cannabinoid found on his hands and under his nails, in the grinder and to a lesser extent in the rubbish bin. And the evidence also establishes that he must have handled most items of the kit, although it remains unclear whether either or both dispatches were partially unpacked or not. His finger prints, coupled with the evidence of residue or staining in or on many of the glass components of the kit as seen by Detective Beattie, support the inference that the kit must have been used by the accused for some purpose or another. It seems likely that the kit was diss-assembled after use, although it is impossible to know when that might have been. Against this background the focus then turns to the evidence of cannabinoids detected on the accused and on the other items referred to.
[38] T 172 L6-21
The tests for the presence of Drugs
This directs attention once again to the evidence of Mr Camilleri. His role in the Illicit Drug Section centred on investigation and analysis of items relating to ‘clandestine illicit drug laboratories’.[39] His primary qualifications were in chemistry and biology and it became clear that his expertise did not extend very far into the area of botany.[40]
[39] T 121 L12-18
[40] T140 L9-11, T147 L3-5, T149 L9-12
His qualifications to speak on the subjects pertinent to his evidence were not challenged by defence counsel. In essence Mr Camilleri analysed a number of substances using gas chromatography with mass spectral detection, for the purpose of detecting the presence of controlled or illicit substances.[41] This method of testing was a ‘very sensitive form of analysis,’[42] one capable of detecting ‘very small portions’ of illicit drugs.[43]
[41] T124 L15-19.
[42] T138 L37.
[43] T 138 L38
Importantly, no drugs were detected on any swabs taken of the equipment said to form part of the oil extraction kit found in the house. The conclusion that “no drugs were detected” is significant. As to this topic Mr Camilleri was cross-examined:[44]
QYou understood I think from the material that you were provided with, including the exhibit log, that you were testing swabs and so on that had come from various parts of this glassware, is that right, amongst other things.
AYes, that’s correct.
QIf a stain on the glassware swabbed – by ‘stain’ I mean something that has obviously some residue that can be seen – if that was swabbed and if it had come from a process of extraction of cannabis, would you expect that you would get a positive test for the presence of cannabinoids from that swab.
AYes, that’s correct.
QBut as I understand it, none of the swabs that you examined or, indeed, glassware that you examined, was positive for the presence of cannabinoids with the exception of a swab from a manual grinder and the tissue with the black substance on it, that is in relation to the swab from the manual grinder Exhibit RBT26S and the tissue with the black substance was RBT27; is that correct.
AYes, that’s correct.
[44] T139 L3-23
This constitutes affirmative evidence, perhaps not conclusive standing alone, that the apparatus had not been used proximate to 13 June 2003 for the production of cannabis oil, or cannabis resin for that matter.
The significance of the finding ‘no drugs were found’ on the unassembled glassware forming part or parts of the kit, is that if they had been used for the process of extraction of cannabis oil, it would be expected to return a positive test for the presence of cannabinoids. Thus it is impossible to draw the inference from those results that cannabis oil was produced by using the TarBaby Pro kit
As noted already the tissue found in the rubbish bin Exhibit P9, was also examined by Mr Camilleri and was “likely to be cannabis oil”,[45] in his opinion. That opinion was founded solely on the visual observation that the material on the tissue was consistent with oil.[46] He was unable to perform the analysis required to determine whether that material or the cannabinoids from the grinder were cannabis oil or a form of resin,[47] as his examination was admittedly incomplete since there was insufficient material for testing.[48]
[45] T128 L29-35
[46] T128 L31-35.
[47] T 140 L27 – T 141 L3.
[48] T 129 L4-19
This is a significant qualification given that “cannabis oil” the prohibited substance charged in this case, is defined in s 4 of the Act in a way that distinguishes between cannabis oil and cannabis resin, such that further testing is necessary in order to ascertain the quantity of the substance and to determine if it is above or below “85 per cent of the weight of that quantity of substance”; if the former it will be cannabis oil, if the latter it will cannabis resin.
The evidence of Mr Camilleri on this critical point was:[49]
[49] T 129 L 1-19
QAre you aware of the definition that's given in the Controlled Substances Act of cannabis oil.
AYes, I am
QIn coming to the conclusion that the material on the tissue was likely to be cannabis oil, did you have regard to that definition or some other definition.
AI was unable to perform the analysis that is required to determine whether the material was a cannabis oil or a cannabis resin and therefore my conclusion that the item is cannabis oil is based purely on a visual identification.
HIS HONOUR
QWas there any reason why you wouldn't do that. Was there just not enough material.
AThat's correct. The material was not sufficient to perform that analysis.
QYou needed more 'oil' to make good that testing procedure
AThat is correct.
He conceded under cross-examination that the material in the house Exhibit P9 “might be cannabis oil and it might be cannabis resin but [he] can’t tell … which.”[50] The prosecution accepted that “the difference between cannabis oil and resin is established by the chemical test”.[51]
[50] T141 L4-11
[51] T163 L18-23
Accordingly it must follow from this evidence that it is impossible to find beyond reasonable doubt that the cannabinoids on the tissue, in the grinder, or about the accused’s hands and fingers, were unquestionably cannabis oil, and further there is simply no way of determining whether it was cannabis oil as opposed to resin; the probabilities seem equally open in both respects.
The elements of the charged offence

The elements of an offence, to be gleaned from s 32(1)(a), requiring proof beyond reasonable doubt, are:
1. the accused must have taken part in the process of production;
2. the substance produced was cannabis oil;
3.the accused must have ‘knowingly’ taken part in the production of the prohibited substance.
Subsection 32(3)(4)(a) of the Act provides that: a person “takes part in the … production” if that person “takes, or participates in, any step, or causes any step to be taken, in the process of that … production …”. The prosecution contends there is evidence from which it could be inferred the accused had taken a step in the process of producing cannabis oil.[52]
[52] T160 L27-31.
These provisions were considered by the Court of Criminal Appeal in Re Avory[53]. It was accepted by the prosecution, rightly so, that if the accused merely acquired and remained in possession of the equipment and chemicals necessary for the production of cannabis oil and no more, that would not be sufficient to sustain the charge.[54] It was further contended, equally correctly, that the Court had to be satisfied the accused had actually embarked on a process, intending that process to end in the production of cannabis oil, on the basis of Avory’s case.[55] Indeed in reliance on Avory[56] it was suggested that it would constitute sufficient knowledge to make out an offence, if the production of cannabis oil were in the ‘contemplation’ of the accused.[57]
[53] Re Avory: Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392.
[54] T161 L1-7.
[55] T161 L8-22.
[56] 87 SASR at 400
[57] T 167 L34 - T 168 L12
Generally speaking the expression “knowingly” connotes proof of an actual desire or wish to do an act of the proscribed character, in this case to produce cannabis oil.[58] Even so, the specific knowledge required may be established by knowledge that such a result will probably, or is likely to occur.[59]
[58] R v Reynhoudt [1962) 107 CLR 381 at 398-390, DPP v Morgan [1971] AC 152 at 210, DPP v Pereira (1989) 63 ALJR 1, 87 ALR 217.
[59] Crabbe v The Queen (1985) 156 CLR 464.
In that respect the prosecution linked the circumstances referred to above and urged the Court to conclude each element was sufficiently proved to constitute the offence. Those circumstances were strengthened, it was argued, by the fact that the accused had spent a great deal of money in acquiring the equipment. It was forcefully said to be inconceivable that having spent over $1,000 the accused would not have put the oil instruction kit to good use.
Avory decides that the evidence must establish some ongoing process of production which may properly be regarded as evidence of participation in the process of production, as opposed to merely preparatory acts. That is the process of production must have been established, it must be “in-train” or “sufficiently advanced and identifiable”.[60] Avory also establishes, to translate it to the facts of this case, that if the accused was doing no more than obtaining material with a view to its use for production at some indefinite time in the future, that would not constitute participation in or taking a step in the process of production, because that process would not have been “so established and made operational”.[61]
[60] DPP Reference (No 2 of 1995) (SA) (1995) 65 SASR 508 at 513-514.
[61] 87 SASR at 408 [96].
Circumstantial evidence
The case for the prosecution must be viewed in the light of the evidence of Mr Camilleri. It is circumstantial; the cannabinoids found on the tissue coupled with those in the grinder, the fact that the stems found near the extraction kit are likely to be from a stripped cannabis plant, the evidence of the accused having handled cannabis, together with the irrefutable fact that the kit could only have been used to extract oil, lead only to the conclusion that cannabis was involved. The defence case is that by looking at each item of evidence from which the inference of guilt is said to arise, that item does not of itself, or in conjunction with the other items, lead to that conclusion at all. Alternatively it is contended that there are several hypotheses consistent with innocence such as to compel a not guilty verdict.
As a matter of principle, in deciding whether to accept the evidence of a particular fact, in this case that the accused took part in the process of production of cannabis oil, it is necessary to consider the evidence directly relating to that fact, not in isolation, but in the light of the whole evidence, and it is permissible to draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference; nevertheless it is not permissible to view an intermediate fact as an indispensable basis for an inference of guilt, unless at the end of the day the trier of the fact is satisfied of the existence of that fact beyond reasonable doubt: Chamberlain v The Queen[62]; Shepherd v The Queen[63].
[62] (No 2) (1984) 153 CLR 521 at 535
[63] (No 5) (1990) 170 CLR 573 at 576.
The ‘intermediate facts’ relied upon by the Crown in this prosecution are those just identified. If any of them form indispensable links in the chain of reasoning towards an inference of guilt, they must be found beyond reasonable doubt before the ultimate inference of guilt can be supported by them: Sheppard[64], R v Merritt[65].
[64] 170 CLR 579
[65] [1999] NSWCCA 29 at [70] – [1].
Findings and inferences from the evidence
There is no doubt that the accused possessed the apparatus capable of making cannabis oil, sometime after 19 February 2003 and sometime before 13 June 2003. Next there are the stalks found nearby which may be cannabis stalks, but on the basis of the evidence detailed above, are not proved beyond reasonable to doubt to have been cannabis. The evidence falls far short of that standard. Then there is the cannabinoid found in the grinder seized from the kitchen which could have clearly been the remains of grinding cannabis leaf as recommended in the Tarbaby instruction manual, preparatory to oil or resin extraction, or for personal case. The prosecution fairly conceded that if the court ‘cannot be satisfied beyond reasonable doubt that the accused has ground cannabis material in that grinder intending it to be used in the Tarbaby system, then he ought to be acquitted’.[66]
[66] T 162 L17-24
There is in addition the cannabinoid on the tissue located in the rubbish bin somewhere outside the premises. This could have been the product of wiping the utensils of smoking cannabis,[67] and could as mentioned, have been either oil or resin of cannabis; Mr Camilleri could not tell which it was.[68] As to this evidence the court knows practically nothing about the location of the tissue such as whether it was close to or distant from the house, what the other contents of the bin were, if any, and it is entirely a matter of speculation how long the tissue may have been there. Since the proved circumstances, such as there are, do not have a direct relationship with the equipment in the house capable of being used to produce cannabis oil, and given the other circumstance noted, the are substantial doubts about this material having any sufficient nexus with the process of oil extraction, such that it is impossible to be satisfied in the requisite sense that this evidence has have any probative value concerning the process of production of cannabis oil. Given these circumstances it is hardly surprising that the prosecutor ultimately elected not to “place very much reliance on it”.[69]
[67] T 3 L17, T 146 L10.
[68] T P140 L 27 – P141 L 7, P143 L 5-16, P 146 L 2-11
[69] T 167 L10-32
Accordingly, quite apart from the fact that it is impossible to tell if the stain on the tissue was oil or resin, that item of evidence cannot be used to sustain an inference of guilt.
The material found in the coffee grinder has a closer and identifiable connection with the equipment located in the adjoining room, but that may be consistent with the smoking of cannabis by the accused, as there were cannabinoids detected on his hands and under his nails.[70] Nor can those items taken together lead to the a process of reasoning that since one might be cannabis, the other might be cannabis oil and so on.
[70] T 167 L10-32
The Elements related to the Evidence
Returning to the elements of the offence, the second is that it must be proved the prohibited substance involved was cannabis oil. Since that fact cannot be inferred conclusively from the cannabinoids detected in the grinder, on the accused’s person, or in the refuse bin, the prosecution fails on this ground. A further fatal flaw in its case is that those items together point at best to the potential for production of cannabis oil or resin, but not one to the exclusion of the other.
Next, as to taking part in the production of cannabis oil, the prosecution has to further prove more than acts preparatory to production. At its highest, what has been shown on the evidence in this matter is merely “preliminary acts which in itself does not give rise to an offence …”.[71]
[71] Questions of Law Reserved on Acquittal/No 1 of 1996 (1997) 68 SASR 117 at 122.
Finally as to the necessity to prove knowledge, it is open to infer that the accused was a cannabis user by reason of the traces found on his person and in the grinder. The tissue does not advance matters, given the equivocal circumstances in which it was found. From this point, it is open to further infer from the purchase of the relatively expensive kit, that the accused had the production of some kind of cannabis product in mind, that is, he had an actual desire or wish to produce. Once again, however, it may have been resin or oil he had in contemplation.
The situation is practically indistinguishable from that occurring in Queen v Celani[72]. Matheson J held the prosecution failed to establish the substance in the possession of the accused was hashish, as opposed to a preparation of hashish. The expert evidence was to the effect that the nature of the drug was probably hashish, but it was possible that it was merely a preparation containing a proportion of Indian hemp. His Honour ruled:[73]:
I agree with Mr Retalic that it is very important that the Crown should establish clearly that the substance in question as hashish, or a preparation containing hashish, because of the substantial difference in penalty provided by Parliament between that offence, and the offence relating to Indian hemp, or a preparation containing Indian hemp.
In my view of understanding that there is resin in Indian hemp material itself, I did not think the Crown had established that the exhibits in question were hashish. They could have been, but reading the evidence as a whole, they could easily have been merely a preparation containing a proportion of Indian hemp and the defendant was not charged with offences relating to Indian hemp. Accordingly I rule that there was no case to answer.
[72] (1983) 35 SASR 255
[73] (1983) 35 SASR at 260
Celani was cited and distinguished by the Court of Criminal Appeal in R v Chapman,[74] without any suggestion of disapproval. In this matter now before the court, it has been seen that like Celani, the penalty as between cannabis oil and cannabis resin offences are appreciably different. The fact of the matter is that the cannabinoids detected here could equally have been resin or oil based, which means that there is insufficient proof of the prohibited substance charged.
[74] [2001] SASA 200 at [44-46]
In reaching the conclusion that the accused had one of two modes of production in mind, I have ignored the evidence of the accused’s reputation as a consumer of cannabis.[75] Evidence of general reputation is normally admitted to prove just that and no more; if it were tendered as evidence of the fact reported, it would necessarily offend the rule against hearsay.[76]
[75] T 36 L5-13, T37 L10-16
[76] [2001] SASC 200 at [44-46]
On the other hand, evidence that the accused reported to the police the theft of a few ounces of marijhuana on 23 May 2003[77] supports the inference that he may have had production in mind, at some indefinite time in the future, whereas evidence he admitted he was to ‘get himself a hash lab,[78] was not relied on by the prosecution[79] and so I ignore it as a potential admission to this offence. If anything it supports the view that Mr Greenfield may have had the production of resin rather than oil in mind.[80]
[77] T 114 L21-33
[78] T33 L5-8, T 114 L24, T115 L8, T 116 L11-23
[79] T 168 L27, 169 L11
[80] As argued for the defence T P 174 L23-31
Of course none of this material is available against the accused for the purpose of suggesting he is the type of person likely to commit drug offences, or that he is a person of bad character.[81]
[81] BRS v R (1997) 191 CLR 275, Gipp v R (1995) 194 CLR 106.
Process of Manufacture
A further line of defence was urged by defence counsel to the effect that there was no ‘ongoing process of manufacture’,[82] because the process of changing ‘cannabis plant material’ into cannabis resin, or cannabis oil, the amount of active ingredient – tetrahydrocannabinol – ‘remains the same, both in terms of potency and quality’.[83] That is the ‘cellulose component is removed, nothing is being produced’, all that is being done is ‘that the packaging is being changed’.[84]
[82] T178 L35-38
[83] T179 L36 – T 180 L13.
[84] T 182 L5-L26.
It is true Mr Retallic cross-examined Mr Camilleri to the point of conceding that cannabis, cannabis oil and cannabis resin, all contain tetrahydrocannabinol and that if cannabis is changed to cannabis resin or oil for instance, the drug or active ingredient of tetrahydrocannabinol remains the same, although there is an increase in the concentration.[85] The questioning then continued:[86]
[85] T 146 L13-25
[86] T 146 L26-147L1
QThere is no more active ingredient, it's just that the active ingredient is contained in lesser material
A.     Yes, that's correct
QSo effectively - and I appreciate this is not 100% accurate - what you're doing when you change cannabis into, say, cannabis oil, is you're removing the cellulose component, aren't you.
A.     The plant material, yes, that's correct.
QBut everything else, for all intents and purposes, is left the same.
A.      Yes, the presence -
QCertainly as far as the drug component is concerned that stays exactly the same.
A     That's correct.
Based on this evidence the submission was there can only be a process of production if there is a change from one thing ‘into something new’,[87] which did not occur here. The submission relied on comments by Besanko J in Re Avory[88] in connection with the use in s 32(4)(a) of the expression "process" of manufacture, which Besanko J regarded as involving “what is made shall be a different thing from that out of which it is made."[89]
[87] T 190 L19-31
[88] above 87 SASR at 409[103]
[89] Citing In Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336.
There are two fundamental difficulties with this contention. In the first place Avory concerned a charge of taking part in the process of manufacture of methylamphetamine from hypo phosphorous acid, nicotinamide and iodine crystals, where not all the necessary ingredients were present. Besanko J had in mind in his reasons that none of these raw substances had been changed sufficiently to enable the inference to be drawn that the process of manufacture had been embarked upon. Here the charge is taking part in the process of producing cannabis oil merely from cannabis.
Secondly, the Act erects a different regime from that of the chemist. Clearly the substantive offences it creates and the variable penalties provided for offences involving cannabis and cannabis resin, as opposed to cannabis oil and other drugs, indicate that Parliament considered cannabis oil to be quite different from cannabis and cannabis resin. The separate declaration of each as a prohibited substance confirms that conclusion.
More to the point, section 4 of the Act defines “produce” in relation to a substance as meaning “to produce by any method whatsoever, including cultivation, and "production" has a corresponding meaning”. There is no semblance of any need to demonstrate the conversion from one thing to another both qualitatively and quantitatively in this meaning. In any case changing cannabis oil into cannabis resin or cannabis oil, seems inherently to involve the kind or degree of change envisaged by Avory. It must follow this ‘defence’ must be rejected.
Conclusion
In the end result the court is not satisfied beyond reasonable doubt of the guilt of the accused. Proof of the elements of production, and prohibited substance, is wanting. No alternative offence, such as an attempt is relied upon by the prosecutor.[90]
[90] T20 L4-18
The same conclusion is reached by an alternative process of reasoning. The court is required to entertain a reasonable doubt where any other inference consistent with innocence is reasonably open on the evidence: Sheppard.[91] In this respect the prosecution must exclude all other reasonable hypotheses available on the evidence: Plomp v The Queen,[92] Barca v Queen,[93] Re Van Beelan,[94] R v Chapman,[95] and the accused is entitled to the benefit of the doubt necessarily created by that circumstance: Pitkin v the Queen.[96]
[91] T P578-579
[92] (1963) 110 CLR 234
[93] (1975) 133 CLR 82
[94] (1974) 9 SASR 163 at 370
[95] (2002) 83 SASR 286
[96] (1995) 130 ALR 35 at 39
In this matter, on the evidence there are two such hypotheses, first that the accused had the production of resin in mind as opposed to oil and secondly the evidence of cannabinoids being present in the house and on his person, is perfectly consistent with the handling of cannabis by the accused as a user.
Verdict
I am not satisfied of the guilt of the accused beyond reasonable doubt because the prosecution has failed to prove at least two elements of the offence and because it has failed to exclude reasonable hypotheses consistent with innocence. He is therefore entitled to an acquittal.
A verdict of not guilty is entered to the charge of taking part in the production of cannabis oil accordingly.