R v Lind - [2004] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v LIND
Determination of His Honour Judge Clayton
30 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
HELD: Crown has not established that cannabis oil and resin manufactured by the defendant had been produced for a commercial purpose.
Controlled Substances Act 1984 ss 4, 32(1)(b), referred to.

R v LIND
[2004] SADC 100

Jason Paul Lind has pleaded guilty to taking part in the production of a prohibited substance contrary to section 32(1)(b) of the Controlled Substances Act 1984. The particulars alleged are that between 1 May 2001 and 2 June 2001 at Rosewater he knowingly took part in the production of cannabis resin or cannabis oil.
A second count of possessing a prohibited substance for sale was not proceeded with.
A dispute has arisen as to the purpose of Mr Lind in producing the cannabis oil or resin. The prosecution asserts that he manufactured the oil or resin for a commercial purpose. The accused claimed that his reason for producing the cannabis oil or resin was for personal therapeutic reasons.
The Crown accepted that it bears the onus of establishing beyond reasonable doubt that the purpose was one of commerciality. That much is clear. But the Crown also contended that the requirement to establish commerciality does no more than to require “that somewhere along the line in the future Mr Lind may have contemplated selling or organising the sale of some of his product”. The Crown argued “contemplation is sufficient and indeed that is all we are alleging; namely, a state of mind that he may have sold some in the future”.
There was no dispute as to the actual facts, although there were disputes as to the inferences that might be drawn from those facts.
In a statement of agreed facts it was agreed that when police searched Mr Lind’s home on 1 June 2001 they observed a corrugated iron shopfront with a workshop or factory at the rear. The workshop was very messy and in a state of disrepair. At the front of the property was a residence. When a detective indicated to Mr Lind that police believed he was growing cannabis Mr Lind said that the crop was upstairs. A search upstairs revealed an area, which had been cordoned off to create a room, where a hydroponic cannabis crop was growing. Police found three plants in respect of which an expiation notice was subsequently issued. Accordingly, I am not concerned with those plants per se. A search of the premises disclosed a number of other items including:
·    17 plastic soft-drink bottles containing a green solution with some cannabis plant material, 14 of which contained cannabis plant material (items 1, 2, 4 and 5: certificate of analysis 24 August 2001)
·    Two glass jars containing the green solution
·    A glass baking dish containing a sticky black sludge-like substance (item 13: certificate of analysis 5 November 2003
·    A test tube containing the green solution
·    Ten black capsule-type tablets (found in a drawer in the bedroom area): (item 18 certificate of analysis 24 August 2001)
·    Hydroponic equipment, including lights and ballast boxes (found with the three cannabis plants)
·    Dried cannabis in various places and a bong (for which Mr Lind was issued with an expiation notice)
·    A small gas burner (found at the foot of Mr Lind’s bed). This was returned to Mr Lind.
When questioned Mr Lind exercised his right to silence.
The seized material was analysed at the Forensic Science Centre by Mr Rodney Norris. Mr Norris gave evidence and said he examined 17 bottles of green solution of which 14 contained a green liquid and cannabis material steeping in that liquid. The active ingredient in cannabis (tetrahydrocannabinol) was present in all of the solution. Mr Norris concluded that dried cannabis had been steeped in ethanol, a solvent, in all the bottles. The total volume of the liquid was 8185mls and the liquid could have yielded 144.7gms of cannabis resin.
Mr Norris also analysed the ten gelatine capsules. They were filled with a green/black oily substance which was analysed as cannabis oil. The oil in the capsules weighed a total of 5.4gms. The individual capsules all had different weights, which ranged between 0.304gms and 0.641gms.
The substance in the glass dish was analysed and found by Mr Norris to be cannabis resin weighing 7.1gms.
The parties agreed that cannabis oil is made by extracting the active ingredient of cannabis from the cannabis plant material and concentrating the extract to form a black sticky oil. Dried cannabis is soaked in a solvent, in this case ethanol or methylated spirits, and the plant material is removed by filtration or decanting the liquid leaving a green solution. The solvent is then evaporated off leaving cannabis oil which is a black/green sticky substance.
The distinction between cannabis oil and cannabis resin involves an interpretation of the definitions of those substances in section 4 of the Controlled Substances Act 1984. In summary, cannabis oil is a substance which when dissolved in the solvent known as hexane constitutes more than 85% of the weight of the quantity of that substance and cannabis resin is a substance which when dissolved in hexane constitutes more than 15% but not more than 85% of the weight of the quantity of the substance.
It was agreed that the classification of material depends on the materials solubility in hexane, that the green liquid, which was found, was classified as cannabis resin, that the black sticky oil inside the capsules was classified as cannabis oil and that the black sticky substance in the glass dish was classified as cannabis resin.
The Crown’s case was that there was a commercial component associated with the production process of Mr Lind. The case for commerciality depended upon the potential value of the finished product and the total quantity of potential cannabis oil that could have been produced from the various liquids seized at the scene together with the existence of electronic scales, resealable plastic bags and the hydroponic cannabis crop then under cultivation. The Crown case was that the evidence in its totality established a commercial component.
I do not attach a great deal of significance to the resealable plastic bags found in the kitchen. Such bags are commonly found in kitchens of homes. Similarly, the presence of scales is equivocal, although scales can be one of the tools of trade of a drug dealer. However, the quantity of cannabis material found together with the presence of the new hydroponic crop when taken together could be indicative of an ongoing enterprise that had a commercial component. But that is not the totality of the evidence. That evidence must be considered in the light of the defence evidence.
So far as the ten capsules are concerned the oils were contained in gelatine containers of the type that are readily available. The oil had been inserted into the capsules. Mr Norris gave evidence that it was a messy material and a syringe is often used for filling the capsules. One of the ten capsules weighed 0.3 of a gram and the others weighed between 0.5 and 0.6 of a gram. The total weight of the ten capsules was 5.4gms. The total weight of the substance in the 17 containers was 144.7gms. Mr Norris said that legally the oils were classified as cannabis resin because the hexane solubles ranged from 45% to 72% which was less than the 85% required by the statutory definition.
As to the contents of the glass Pyrex dish Mr Norris said that the black sticky residue in the dish weighed 7.1gms. He analysed the substance twice. One result came out at 84% and the second result was 86% so that it was on the borderline between cannabis resin and cannabis oil.
Mr Norris said that the total quantity of potential oil material was 151.8gms, which in the case of capsules containing 0.3 of a gram would produce 506 capsules or in the case of capsules containing 0.6 of a gram would produce 253 capsules of cannabis oil. Mr Norris said that to produce 144gms of oil required at least two kilograms of cannabis and probably quite a bit more. I accept the evidence of Mr Norris.
Detective Senior Constable David Paul Hunt provided evidence of the value of cannabis. He gave evidence that cannabis oil can be consumed by lacing the outside of a cigarette or joint, it can be vaporised in a glass pipe and smoked or it can be mixed with liquid such as wine and drunk. He said that cannabis oil is rare in South Australia and his contact with it has been limited. The Drug Database compiled by the State Intelligence Branch of the South Australian Police Department records only 16 instances where cannabis oil has been seized since 1 January 2001. The Australian Illicit Drug Report 1998-1999 suggested that 1.0gm of cannabis oil ranged in price between $30 and $60. The 2001 SA Drug Trends suggested the price of one capsule (under 1.0gm) was between $20 and $50 and in 1992 the same publication suggested that the price was between $20 and $25. Mr Hunt added that the prices had been obtained from those limited sources and could not be considered exhaustive. So far as cannabis resin is concerned in 1998-99 the price of 1.0gm was given at between $30 and $50, in 2001-02 the price of one deal (1.0gm approximately) was given as between $30 and $50 and in 2002-03 the price was given at between $20 and $50.
In his oral evidence Mr Hunt was asked why cannabis oil might be packaged in capsules for commercial purposes. He said that being a liquid it had to be contained in some sort of container and that it needed to be easily transported and handed over to different people. He said that the capsule was essentially a form of storage rather than a unit of consumption. In cross-examination Mr Hunt agreed that cannabis oil and cannabis resin were comparatively rare in South Australia. He gave evidence that cannabis oil can be swallowed in capsule form in one gulp. I accept the evidence of Mr Hunt.
Mr Lind gave evidence. He agreed that he grew the three cannabis plants, but denied that he ever intended to sell cannabis oil, cannabis resin or dried cannabis. He also denied that he had ever sold any of those substances.
In June 1997 Mr Lind was involved in a motor vehicle accident and suffered whiplash injuries and spinal damage. His injuries and consequential pain are confirmed by a number of medical reports, although the last of those was dated August 1999.
Mr Lind gave evidence of his medical condition during the six months following the accident. He said he suffered excruciating pain in the shoulders and neck. He said he still suffers pain.
Prior to his accident Mr Lind had been an occasional cannabis smoker. After the accident his use of cannabis increased because it relieved tightness of muscles and decreased his pain. He took the cannabis by pipe and was smoking three or four cones a day. He said that while it “lumped” his brain it eased spasming and allowed freedom of movement. Initially he purchased cannabis from dealers but after discussions with his mother commenced growing one plant in the garage at home. Later when he moved to the site of the current offences he set up three plants because that is what he believed he needed. He bought the necessary hydroponic equipment for about $2,000.
A book which Mr Lind purchased from a hydroponics shop contained “Methods for the Preparation of Extremely Potent Cannabis Products” including the preparation of oil capsules for oral ingestion. Mr Lind started making oil. At that time he was smoking at least eight to ten cones a day and said he was stoned during the day.
Mr Lind explained the presence of the electronic scales found in his home on the basis that they were required for mixing shellac in his woodwork activities and in making yeast to bake bread.
He said that the capsules, which were found by the police, were the second batch he had produced. The first batch had failed having melted and ended up in a sludge. The total number of capsules in the second batch was about 20 to 25 capsules. The ten capsules that were found were those that he had not consumed. He said his intention was to continue consuming them. He said he was still in the experimental phase. When asked what the effect of the capsules on him was, he said:
“It’s a little bit hard to say. I was still smoking cannabis at the same time, but I did feel some sort of relief once I mixed butter in with them as well. They wouldn’t work by themselves, so I read you actually have butter with the oil as well when they’re consumed, that’s when I wasn’t sure if I was just being a guinea pig, or what experimentation stage I was at. I went from having two capsules to six capsules a day.”
The book, which I have mentioned, states that the purified oil should be consumed with an equal amount of butter which carries the oil through the membranes of the stomach and intestine.
Mr Lind said that while he was experimenting on himself he felt quite definite pain reduction and definite reduction in the spasms and tightness in his shoulder and back area. The relief which he obtained was similar to that obtained from smoking cannabis. He said that he commenced making the oil instead of continuing smoking because it was a health issue. He was trying not to smoke. He had given up cigarettes previously and smoking was giving him lung problems. He said he “feared down the track I would be quite crook from smoking THC so I decided to consume, ingest some”.
Mr Lind explained the fact that there was more than 8 litres of material seized on the basis that he did not know how much he was going to end up with and wasn’t sure what the proper dosage was. He said there was no information to instruct him how much to take.
He explained that a gas burner found in his room was a camping heater used to provide warmth and denied that he had ever used it to evaporate resin. However, even if the heater had been used to evaporate resin that would only show personal use, not commerciality.
Mr Lind explained a quantity of cannabis found in a bag of rags as a supply that he had put away in case he was burgled.
Dr M G Venning is an expert in pharmacology and physiology. He has made a study of drugs. He gave evidence about the effect of cannabis and said that it has been shown to be a muscle relaxant and has been used to treat various disorders that involved spasticity or muscle spasms because it has been shown to relax muscles that are in spasm. Historically cannabis has been used for pain relief for thousands of years. He said there was a lot of medical use of marijuana up until early in the 20^th century.
The ultimate question is whether the Crown has proved beyond reasonable doubt the element of commerciality. That question largely depends on the view that one takes of the evidence of Mr Lind.
The Crown did accept that Mr Lind had suffered injuries in a motor vehicle accident and that he was a user of cannabis.
The Crown submitted that some aspects of Mr Lind’s evidence were implausible. The Crown challenged his assertion that he was producing oil so that he could ingest cannabis rather than smoke it. It was agreed that was inconsistent with his explanation of the need for the second crop. The Crown contrasted his evidence that he wished to ingest oil rather than smoke and said it gave rise to an inconsistency.
I think that any inconsistency, if there is one, can be explained by Mr Lind’s evidence that his use of capsules was still in an experimental stage.
The Crown also put that there was no satisfactory explanation for placing the oil in the gelatine capsules. It was agreed that if Mr Lind simply wanted access to the oil it could have been stored in a jug without the need to go to the trouble of inserting the oil into the capsule. The Crown said that placing the oil into capsules was important because that was a form in which the oil could be sold.
I accept that Mr Lind had an explanation for placing the oil in capsules. He was doing no more than following the directions in the book which I have mentioned.
At a value of $20 to $25 per capsule the ten capsules found in Mr Lind’s possession had a value of between $200 and $250. The 17 bottles of liquid and the material in the glass dish had the potential to yield 151.8gms of oil material. The value of the capsules that could potentially have been produced varied between $5,060 and $12,650.
The Crown was also critical of Mr Lind because a tin containing cannabis was buried amongst rags and linen and the existence of cannabis in photograph 25 in a plastic shopping bag. At most, the hiding of the cannabis shown in photographs 10, 11 and 25 was consistent with some guilty intention, but that does not distinguish between illegal personal use and a commercial objective.
In my opinion the most telling fact is the quantity of oil and the other cannabis product found, in particular, the ongoing crop. 151.8gms would yield 506 capsules weighing 0.3 of a gram or 303 capsules weighing 0.5 of a gram. There are other possibilities depending on the weight of the oil in the capsule.
Mr Lind said that he had progressed from using two to six capsules a day. That evidence was not challenged. The yield from what Mr Lind had on hand would have produced somewhere between 50 days (six capsules at 0.5 of a gram per day) and 253 days (two capsules per day of 0.3 of a gram). As I have mentioned, Mr Lind was still in the process of experimentation to find the correct dosage. The oil had to be inserted into the capsules. Mr Lind did not know what his requirement was. The first batch of 20 capsules had failed.
Other than an inference that might be drawn from the volume of cannabis seized and the scales and plastic bags there is no evidence of a commercial enterprise. Each of those components is capable of an innocent explanation. There is no evidence that Mr Lind intended to sell cannabis, cannabis oil or cannabis resin. Also, I think it is important that the Crown has not established that there was a market for capsules of cannabis oil. The evidence of Mr Hunt is significant. Capsules are containers for oil, but there have been relatively few prosecutions, including cannabis oil. There is no evidence of any person to whom Mr Lind might have sold cannabis oil.
Mr Lind gave no reason not to accept his evidence that he had an innocent purpose for producing the oil.
I am not satisfied beyond reasonable doubt that Mr Lind produced the cannabis oil or resin for a commercial purpose.