R v MILE

[2010] SADC 9

District Court of South Australia

(Criminal)

R v MILE

[2010] SADC 9

Reasons for Ruling of His Honour Judge Herriman (ex tempore)

12 January 2010

CRIMINAL LAW - PARTICULAR OFFENCES

Application to change plea.  Charge of trafficking in a controlled drug - specified as 'cannabinoid'.  Controlled Substances Regulations then applicable defined cannabinoid as 'dried plant material'.  Prosecution case based on possession of undried material.  Leave granted to change plea.

Controlled Substances Act 1984 (SA) s 32(1); Controlled Substances (General) Regulations  2000, referred to.
R v Selita (2004) 149 A Crim R 243, applied.

R v MILE
[2010] SADC 9

1. On 19 October this year the accused pleaded guilty to the offence of trafficking in a controlled drug, the particulars being that he trafficked in a large commercial quantity of cannabinoid contrary to s32(1) of the Controlled Substances Act. Application is now made by him to withdraw that plea on the basis that it was in error and that, on the prosecution case, he cannot be guilty of the offence as charged.

2. I remind myself that I have a discretion to allow the withdrawal of a plea if the accused can satisfy the court that to refuse it would result in a miscarriage of justice.

3. In essence, his submission here is that the plea was entered in circumstances whereby he did not fully appreciate the nature of the charge.  I have determined to allow the accused to withdraw his plea. My brief reasons for doing so, which I will expand upon if necessary, are these.

4. First, it is common ground that at the time of his apprehension the accused was in possession of a quantity of cannabis plant material which on any account was undried. It was described as green in colour. It weighed 57.5 kg but, when reweighed some seven months later, weighed approximately 10 kg.

5. The Controlled Substances (General) Regulations 2000 that were then in force defined cannabinoid as ‘dried plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin’. It is noteworthy that that definition was later amended by regulation of September 2009 to simply identify the substance as cannabis and plant material of the description I have just related.

6. In the case of R v Selita[1] the Court of Criminal Appeal in this State determined that the relevant weight of cannabis material for the purposes of a charge of possession of cannabis for sale or supply was to be the weight at the time of apprehension or discovery of possession. In particular, Gray J in that case made some remarks, which I will quote. At para.96 he said:

   There are anomalies inherent in the taking of weight measurements.  There is obvious scope for inconsistencies.  A person apprehended with cannabis on the day of the stripping of a plant will have, by weight, a considerable amount more than if apprehended some weeks later, with the same material in a dried form.  However, the legislature did not indicate that the dried weight is relevant for the purposes of the Act.  It is the weight of cannabis involved in the commission of the offence that is relevant.  This is at the time of seizure. 

   The court found that that weight at the time of seizure was indeed the relevant weight for the purposes of that particular matter.

   [1] (2004) 149 A Crim R 243

7. Here the situation is quite the opposite as the legislature has, by the regulation I have quoted, specified that the substance for the purposes of this offence under s32(1) must be dried material, and by that I apprehend it means dried cannabis material. In this instance the accused was not at any time in possession of dried cannabis material. I cannot, therefore, see any basis for convicting him of the offence as charged. He may well be liable for conviction on other counts.

8. The Director of Public Prosecutions contended that some sense could be made of the charge if regard were had to the penalty provisions, which purport to distinguish between pure and mixed forms of controlled substances, in particular cannabinoid quantities. It argued that it was valid to describe pure cannabinoid as the dried form of the substance and mixed cannabinoid as a form of the substance containing some level of water or moisture. Hence, it said, one could make some sense of the charge and conclude that the accused was validly convicted on his plea. I do not accept that contention, and for the reasons that:

   (1)prima facie, the offence can only be committed when trafficking the substance in a dried form; and

   (2)I am not prepared to treat the pure or mixed distinction, which plainly has work to do in connection with other drugs, as governing or dictating the definition of cannabinoid upon which the charge is brought.

9. For all these reasons, I grant leave to the defendant to withdraw his plea and he should now be re-arraigned.