R v Nisbet and Nisbet No. DCCRM-02-1289

[2003] SADC 41

R v NISBET & NISBET
[2003] SADC 41

CHIEF JUDGE WORTHINGTON
CRIMINAL

1. The first defendant, Iris Nisbet, and the second defendant, James Whitson Nisbet, have pleaded guilty to taking part in the production of cannabis at Ingle Farm between 1 May and 15 May 2001, contrary to s32(1)(b) of the Controlled Substances Act 1984 (“the Act”). It is alleged in the information that the amount of cannabis involved was more than 2kgs.

2. The DPP says that production of this cannabis involved a commercial purpose and that this is to be taken into account under s44 of the Act when fixing the penalty for each defendant. The defendants deny that this was so, and since the Crown relies on this as an aggravating feature it carries the onus of establishing it beyond reasonable doubt (Anderson v The Queen (1993) 177 CLR 520 at 536).

3. On Monday 14 May 2001 police officers arrived at the defendants’ home at Ingle Farm and went to a rumpus room in the back yard.  Inside, the defendants and two others were trimming cannabis stalks, putting cannabis head into small containers on the floor.  On one side of the room there were some lengths of string, each about 3-4 metres, running from one end of the room to the other with cannabis branches hanging from them.  There was cannabis also laid out to dry on two tables. 

4. There was a hinged bookcase against one wall of the rumpus room which concealed the door to a small room measuring about 3m x 1.5m, and inside that room  were three pots, each of two containing the stump of a cannabis plant and the third containing a mature cannabis plant about 1.5m high.  It is common ground that all of the loose cannabis in the rumpus room was from two plants that had been in those pots.  The small room was set up for hydroponic growing with eight halogen lights and miscellaneous associated equipment.  Harvesting of the plants had been going on over a couple of days; since Saturday 12 May. 

5. Police put the loose cannabis into storage in five paper bags and a small sample into an envelope.  Photographs were taken of the plant.  The loose cannabis was weighed by Mr Gregory Webber, analyst, on 22 May 2001 and he calculated its total weight as 3808.5gm.  He described it as slightly moist, mouldy female cannabis plant.  The material in four of the bags (3378gm) was flowering head with some cut stem pieces.  Mr Webber estimated the percentage of stem in three of the bags at between 5% and 10% and in the fourth bag at between 10% and 15%.  He also estimated that mould would account for less than 1% of the total weight.  It would be artificial to make a precise calculation, but in light of this evidence it is reasonable to say that as at 22 May 2001, the weight of cannabis head harvested from two of the plants was approximately 3400gm, an overall deduction of about 10%-11% to account for stem and mould.  It is agreed that cannabis head is the useable part of the plant that  has market value.

6. Mr Desmond Carroll, forensic scientist, said that having regard to the identical conditions under which the three plants had been grown in the small room and the yield obtained from two of them, and having inspected photographs of the remaining plant, it was extremely likely that the yield from the third plant would be half the combined yield from the other two.  That opinion appears to be reasonable and there is no reason not to accept it. 

7. The material that had been weighed by Mr Webber on 22 May 2001 remained in the sealed paper bags, and when he weighed it again on 4 March 2003 it was 2401gm.  He said that the difference in weight was due to loss of moisture since May 2001.  Mr Webber explained that the moisture content of growing cannabis is up to about 80%, but most of that will be lost in the drying process.  If it is spread out or hung up to dry with plenty of air circulation, he would expect most of the moisture to be gone within about two weeks.  In this instance, however, the material had been placed in paper bags very soon after harvest - the longest any of it had not been part of a growing plant was about two days, and some of it for less than that.  He said that putting it into paper bags would have caused a significant slowing in the rate of moisture loss because of the lack of air circulation, and that had it been left to dry in the normal way the loss of moisture would have been much greater by 22 May.  It was his opinion that stored as it was, it would have reached a stabilised weight within about 12 months after it was seized. 

8. The thrust of Mr Webber’s evidence is that when the cannabis was weighed on 22 May 2001 there was still a very large moisture content which would not normally have been there if the material had been dried with adequate air circulation, and that cannabis used by consumers usually contains some moisture, but not anything like the moisture content of this cannabis at the time it was seized.  In those circumstances, I cannot accept the submission by the DPP that for the purposes of this offence the defendants are saddled with the weight obtained on 22 May 2001.  The probabilities are that the cannabis dried out slowly in the bags over a period of about 12 months, and, on the evidence available, the fairest way to assess the quantity for the purposes of the offence is to have regard to the weight obtained on 4 March 2003, namely 2401gm.  There must be a similar allowance to that made earlier (between 10% and 11%) to take account of stalk and mould, giving a nett weight of head in the bags, rounded off, of 2140gm. Mr Carroll thought that the percentage of stem for the third plant could be up to 15%.  To arrive at the potential useful yield of that plant, I will reduce the gross yield of 1200gm (50% of 2401gm) by 15% (180gm) to 1020gm, giving a calculation of total yield: 2140 + 1020 = 3160gm.  Again, precision is impossible.  I find that the total weight of marketable cannabis from the three plants was about 3kg.  The market value of such a quantity would depend on a number of factors including how it was sold, but it would be likely to be some thousands of dollars.

9. The principal role in the commission of this offence was played by the second defendant, Mr Nisbet.  He is 62 years of age and no longer employed.  He has been a carpet layer and a truck driver.  In 1994 he was involved in a motor vehicle accident which has left him with chronic pain in and around his neck, and he is now on a disability pension.  About four years ago he received a substantial worker’s compensation settlement, in the order of $50,000.  Most of this was invested but there was some kept aside for other expenses. For some time he was prescribed morphine tablets and other medication for his pain, but the side effects were so bad that he discontinued that treatment.  Through a friend he was introduced to tea made with marijuana.  He found that this eased the pain and lifted his mood.  As a result, he has been using cannabis in that way for some years.  Mrs Nisbet said that the use of this tea has made a great difference to their lives because of its beneficial effect on him.  The DPP does not dispute the evidence of this personal use of marijuana and I accept it. 

10. Mr Nisbet has always been interested in pigeon racing, both as a boy in Scotland and after he came to Australia in 1959.  He was involved in it with his parents, his brother and his uncles in Scotland, and later in Australia, as a young man, for about 11 years, but then drifted away from it. Apart from the effect of the accident, Mr and Mrs Nisbet were both affected by the loss of their daughter, the eldest of their three children, who died of an aneurism in 1994 leaving three children.  It is clear from the evidence, including the psychological report of Donna Harden, that this had a devastating effect.  Mr Nisbet’s general practitioner recommended that he take up a hobby, so he returned to the sport of competitive pigeon racing.  It is clear from the whole of the evidence that he involved himself deeply in this, almost to the point of obsession.  For example, the birds’ quarters are air-conditioned. At the time police arrived in May 2001 he had 270-300 birds, a mixture of racers and breeders.  There is no doubt that he was, and still is, very fussy in his care of them and he has been very successful in racing them.  

11. Mr Nisbet said that it is common in the United Kingdom and Europe to mix hemp seed in the feed for racing pigeons and that his family had used it in Scotland.  He said that it has a calming effect which improves their performance and their condition generally.  This practice of using hemp seed was corroborated by Mr Ronald Meins, who raced pigeons in England, and Mr Raymond McIlduff, who raced them in Ireland.  Apparently reputable books and a journal on the sport that were put into evidence show that hemp seed can be a recommended ingredient in feed for racing pigeons. 

12. Mr Nisbet said that when he tried to obtain hemp seed from a fodder store in Adelaide he was unsuccessful, and believing that cannabis was the same as hemp and that it would improve the birds’ performance, he began to use it as an ingredient in their feed during 2000.  He said that he would crush it and put it through a fine sieve.  Later he used a vitamiser. At first he bought a small amount of cannabis, but then decided to grow a plant in the small room off the rumpus room. 

13. His evidence of what occurred after that was as follows.  His belief about the beneficial properties of cannabis for the birds was bolstered by their significantly better performance and their winning a number of trophies.  He then decided to grow three plants which he believed would give him enough cannabis for 12 months.    However, when they came to maturity they were badly affected by mould, which is dangerous for the birds, so he threw away the whole crop.  He planted another three and these produced the cannabis the subject of the offence.  He said that were it not for being apprehended, he would have done the same thing again in about 12 months to keep up his stock.  He vehemently denied that he had any intention of selling any of the cannabis.  Apart from what he might have used in his marijuana tea, he said that, given the number of birds, it would all have been used up over 12 months as an additive in feed.

14. As soon as the police officers arrived in the rumpus room they separated each of the four occupants so that they could not talk to each other, and each of them was interviewed separately.  Mr Nisbet was interviewed by Mr Rasch whose notes record that Mr Nisbet explained how he used cannabis for the birds.  There is no record in his notes that Mr Nisbet mentioned using cannabis himself in tea.  Mr Nisbet was certain that he had mentioned this use when being interviewed, and Mr Rasch said in evidence that he could not be sure one way or the other about whether that had happened.  It is clear from the soundtrack of a video taken by police in the rumpus room that there was some conversation between the police and Mr Nisbet which was not recorded in notes.  In light of that and because of the opinion I formed about Mr Nisbet, I accept that he did tell the police about using cannabis himself as well as for the pigeons. 

15. I had the opportunity to hear and observe Mr Nisbet in evidence-in-chief and under cross-examination.  I thought that he was mainly frank and open in his answers.  He told Mr Rasch that these three plants were the first he had ever planted, but in evidence he gave the history of his involvement in growing cannabis that I have set out.  While that part of his interview with Mr Rasch was not truthful, I accept that it was said under stress by a man who had never been in trouble with the police before, and I draw no adverse inference from it.  It is certainly not an untruth that is consistent only with consciousness of guilt in the sense of there having been some commercial purpose in growing the cannabis.  It is quite consistent with someone who is confessing to growing the plants that are there to be seen, but not wanting to volunteer information about earlier efforts in case that lands him in further trouble. 

16. Apart from the quantity of cannabis involved and its large potential value, the DPP points to the cost of setting up the hydroponics and the cost of electricity used by that household because of that set up.  I accept that Mr Nisbet spent money on his hydroponic system but he purchased the components cheaply, mainly second-hand.  The overall cost of setting up was not great and was well within his means. The cost of electricity was very high for a period of about nine months because of using hydroponic equipment for the crops.  However, the cost of electricity was already fairly high because of other equipment associated with his pigeons, notably the air-conditioning. 

17. Mrs Nisbet’s part was much less than her husband’s.  She was aware of what he was doing and acquiesced in it.  She, like the other two present in the rumpus room, also helped strip the cannabis from the stems so that it could be dried.  When asked by the police what it would be used for, she said that her husband used it “as a tea for his pains in his neck and the rest for the birds”.  She was straightforward in her evidence and, in my opinion, was a reliable witness.

18. There is no doubt that Mr Nisbet knew that it was unlawful to grow this cannabis and, in my opinion, that is why it was in the concealed room.  However, I accept that they have both been truthful in their account of the reasons for growing the cannabis. The features emphasized by the Crown certainly raise serious questions about what they were doing, but the evidence considered as a whole does not take the matter any further than that.  In that regard, although it is of only limited assistance, there is no evidence of any of the common indicia of cultivation for retail sale:  scales, plastic bags, a heat sealing device, list of names, etc.  Nor is there anything to suggest preparation or packaging for bulk sale.

    19             For these reasons, I find that the defendants have raised a reasonable explanation consistent with there not having been any commercial purpose, and that explanation has not been excluded.  It follows that the Crown has not established  the element of commerciality against either defendant beyond reasonable doubt, and they are to be sentenced accordingly.