R v Pali
[2018] SASCFC 134
•17 December 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PALI; R v BUCKINGHAM
[2018] SASCFC 134
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Hinton)
17 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Two separate appeals against convictions for drug offences, which raised similar arguments and were heard together.
Pali was found guilty by a jury of one count of trafficking in a large commercial quantity of cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the Act) and one count of cultivating a large commercial quantity of cannabis plants, for sale, contrary to s 33B(1) of the Act.
The issue at trial was whether the prosecution had proven beyond reasonable doubt that Pali knowingly provided the premises that he was leasing at Daws Park for the cultivation of cannabis, intending that it would be sold (Count 2); and, to prepare or store cannabis for sale (Count 1).
The permission Judge granted permission to appeal on Count 1 and referred the question of permission to appeal against the conviction on Count 2 to this Court. The appellant has applied for permission to appeal on further grounds.
Buckingham was convicted following a separate and unrelated trial by jury of the offence of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Act, the drug in this case also being cannabis.
Buckingham gave evidence that he grew the cannabis in order to extract oil from it for “strictly personal medicinal use” in alleviating his post-traumatic stress disorder symptoms.
The permission Judge refused permission to appeal on any ground. The appellant applies to the Court of Criminal Appeal to rule on his application for permission to appeal.
Held per Peek J (Kelly and Hinton JJ agreeing), dismissing both appeals:
In relation to Pali:
Per Peek J (Kelly and Hinton JJ agreeing):
1. Section 33OA of the Act only imposes an obligation to reference the “pure” or “mixed” nature of a drug if the prosecution alleges that the offence is one which involves a controlled drug “contained in a mixture”. Section 33OA has not been contravened; the case was conducted on the basis that the cannabis the subject of Count 1 was “pure” in that it was all “cannabis” within the statutory definition.
2. The Judge did not err in directing the jury that any amount of cannabis in excess of two kilograms constituted the relevant amount; there was not at trial any suggestion that a real possibility existed that the weight of “pure” cannabis was less than two kilograms, regardless of whether the total quantity under consideration was 39.5 kilograms or 11.6 kilograms.
3. A so called “narrowing” at trial of the subject matter of Count 1 from 39.5 kilograms to one 11.6 kilograms tranche of cannabis did not significantly change the nature of the prosecution case. At all times throughout the trial the prosecution relied upon the minimum “pure” weight of two kilograms. No deleterious effect of the “change” has been identified by the appellant, and no miscarriage occurred.
4. The prosecution case at trial was that the total 39.5 kilograms of cannabis seized was the product of one cultivation process. The direction narrowing Count 1 to 11.6 kilograms did not change the prosecution case; the remaining balance did not give rise to the suggestion of some other offending on the part of the appellant. Neither s 34 P nor s 34R of the Evidence Act 1929 (SA) was engaged. R v Jones [2018] SASCFC 96 discussed; Police v Rosales [2017] SASC 118 applied.
Per Peek J (Kelly J agreeing) and per Hinton J:
5. Section 63(3) of the Act does not require that a fresh recommendation of the Advisory Council be made each time the same regulation (or schedule) is re-enacted. Such a recommendation is only required prior to the making of an original regulation. The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 are valid to the extent that the Advisory Council’s recommendation of 2007 satisfies the obligation imposed by s 63(3) of the Act.
6. The receipt by the Minister of a recommendation of the Advisory Council will of itself satisfy the consultation requirement in s 63(2) of the Act. As consultation was had by the relevant Minister in 2007 as to the previously applicable regulations, it was unnecessary for fresh consultation to occur in 2014.
Per Peek J (Kelly J agreeing, Hinton J not deciding):
7. Permission to tender evidence on appeal concerning proposed ground 3 of appeal is refused.
In relation to the appellant Buckingham:
Per Peek J (Kelly and Hinton JJ agreeing):
1. The agreed facts and evidence given at trial, including the appellant’s own evidence, contradicted the assertion that the cannabis the subject of the offence may have been mixed with any other substance. References to “cannabis” mean “pure” cannabis as distinct from “mixed” cannabis.
Per Peek J (Kelly J agreeing) and per Hinton J:
2. In other respects, the grounds of appeal are rejected for the same reasons as expressed in the Pali appeal.
3. Permission on all grounds is refused.
Controlled Substances Act 1984 (SA) ss 4, 32, 33B, 33OA, 63; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA); Controlled Substances (General) Variation Regulations 2009 (SA); Controlled Substances (Prohibited Substances) Variation Regulations 2007 (SA); Controlled Substances (Prohibited Substances) Regulations 2000 (SA); Criminal Law Consolidation Act 1935 (SA) ss 281, 288A, 353; Criminal Procedure Act 1921 (SA) ss 128, 158; Evidence Act 1929 (SA) ss 34, 34P, 34R, 35, 37; Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) s 41, referred to.
Police v Rosales [2017] SASC 118; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied.
Aytugrul v The Queen (2012) 247 CLR 170; Coulton v Holcombe (1986) 162 CLR 1; Maloney v The Queen (2013) 252 CLR 168; R v Jones [2018] SASCFC 96; R v Soteriou [2013] SASCFC 114; R v Strawhorn (2008) 19 VR 101; Rodi v Western Australia (2018) 92 ALJR 960; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Water Board v Moustakas (1988) 180 CLR 491; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, discussed.
Harriman v The Queen (1989) 167 CLR 590; HML v The Queen (2008) 235 CLR 334; Perara-Cathcart v The Queen (2017) 260 CLR 595; Pfennig v The Queen (1995) 182 CLR 461; R v Falzon (2018) 92 ALJR 701; R v Fleming; R v Maher (2017) 129 SASR 27; Sultana v The Queen (1994) 74 A Crim R 27; Thomas v Mowbray (2007) 233 CLR 307, considered.
R v PALI; R v BUCKINGHAM
[2018] SASCFC 134Court of Criminal Appeal: Kelly, Peek and Hinton JJ
KELLY J.
In the end, the appellants’ arguments on these appeals amount to pure sophistry, as the reasons of Peek J so eloquently demonstrate. I agree with Peek J, for the reasons that he has given, that the appeals should be dismissed.
PEEK J.
The two separate appeals of Mr Mondi Pali (Pali) and Mr Simon Buckingham (Buckingham) followed their convictions in separate and unrelated trials. The appeals[1] were heard together by this Court at the request of Mr Abbott QC who appears for both persons and seeks to advance the same arguments in each case.
[1] Pali is both an appellant and an applicant in that he was granted permission to appeal on a limited basis and has applied for permission to appeal on further grounds. Buckingham is an applicant in that he was refused permission to appeal on any ground and has applied for this Court to rule on his application for permission to appeal. For the sake of simplicity I will refer to both persons as appellants and both proceedings as “appeals”.
On 16 October, and continuing on 18 October 2018, this Court heard full submissions concerning the various applications for permission to appeal on various proposed grounds of appeal; an application to adduce fresh evidence; and the substantive submissions that were to be relied upon should the necessary preliminary applications be granted. The Attorney-General intervened in relation to some only of the grounds of appeal and was represented by Mr Wait QC. The Court reserved judgment on all matters.
I would dismiss both Pali’s and Buckingham’s appeal. My reasons follow.
PART ONE: THE APPEAL OF MR MONDI PALI
At the hearing of the appeals, the argument was mainly conducted in the context of the Pali appeal; I will therefore address that appeal first.
Pali was charged on a joint Information laid against him and two co‑accused persons concerning two different suburban houses where cannabis was grown. In the present proceedings, Pali was tried alone and in relation to only one of the houses, that at 194 Daws Road (the premises). He was tried on Counts 1 and 4 of the Information but Count 4 was re-numbered Count 2 for the purposes of this trial and will be so referred to here. Accordingly, the two counts were as follows:
First Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Idriz Hoxha and Mondi Pali on the 17th day of October 2016 at Daw Park, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Section 33B(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Mondi Pali between the 6th day of August 2016 and the 18th day of October 2016 at Daw Park, cultivated a commercial quantity of controlled plants, namely 145 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.
A chronological overview of the facts
In October 2010, Pali signed a lease agreement with Mr and Mrs Basheer to lease their premises at 194 Daws Road. He used the name ‘Plamen Markov’ on signing the lease and in subsequent dealings with the Basheers. Mrs Basheer gave evidence that he told her that he was going to live there by himself and that he was going to have his wife and son come to live with him in the future; and further, in the last year or two of the rental, she had overheard the accused tell her husband that he would continue to live at the premises but that he had got someone in with him to help him with the rent.
Pali continued as the lessee until 2016. He personally paid the rent in cash to the Basheers every month at their home and also paid an additional amount for water usage every quarter. Mrs Basheer said that two or three weeks before the police raid on the premises on 17 October 2016 a different person (who she did not know) attended at her home and paid the rent, which was the last rent received prior to the police raid. She could not identify that person in any of the photographic folders that she was shown by the police. However, she gave evidence that the unknown man had telephoned her husband and said: “Plamen rang me to pay you the money because he’s away.” She further said that, when the man arrived, he said to her: “There is money from Plamen for two months because he’s away.”
Police Officer Bartlett gave evidence that, on 7 August 2016, he performed surveillance duties and observed one of the co-accused, Gentjan Koci, driving to the premises and stay there for just over half an hour during which time banging and the sounds of power tools were heard coming from the premises. The evidence, including the state and age of the cannabis plants (which had just been recently harvested when the police examined them on 17 October 2016), indicated that the hydroponic crop would have commenced at about the time of Koci’s visit. It is to be noted that this evidence corresponds with the date range of “between the 6th day of August 2016 and the 18th day of October 2016” averred in Count 2, the charge of cultivating cannabis.
In fact, Gentjan Koci was well known to Pali. Telephone records showed calls in October 2016 (including on the evening of the police raid) from Pali’s mobile phone to a mobile phone number registered to Gentjan Koci.
On 17 October 2016, the police raided the premises and found in various rooms a total of 39.446 kilograms of cannabis including leaf, stem and female flowering material in various states of drying;[2] this amount will be referred to as 39.5 kilograms. The whole of it originally constituted the corpus of Count 1. The most valuable tranche of it was an amount of 11.6 kilograms of dried female cannabis plant found in ‘bedroom one’.
[2] Another bag of “remnants or rubbish” from cannabis plants was also seized and destroyed but not weighed.
The police also found in the premises 12 cannabis plants growing in pots and 133 female cannabis cuttings growing in a “growing medium” in a foam box, a total of 145 cannabis plants within the definition of “cannabis plant”. These 145 cannabis plants constituted the corpus of Count 2. (A large commercial quantity of cannabis plants is defined as 100 plants.)[3]
[3] This matter is taken up below.
The police also found in the premises:
-A large sophisticated hydroponic cannabis growing system installed throughout the house;
-No beds or sleeping facilities in the house;
-A set of large working electronic scales suitable for weighing large amounts of cannabis;
-A mobile phone in ‘bedroom two’ which contained a message in the process of being composed reading 76 Ayes Avenue, Daw Park which is almost identical to the then address of the Basheers;
-The lease document with Pali’s fingerprint on it;
-Pali’s fingerprint on one of the 13 lampshades attached to the ceiling of one of the bedrooms being used to grow cannabis; the lampshade was not an ordinary lampshade but rather of a type commonly used in the hydroponic growing of cannabis; and,
-Two of the co-accused, Messrs Hoxha and Beqa, were then at the premises. There is no dispute that they were both criminally involved.
The prosecution case concerning the basis of Mr Pali’s criminal liability
The prosecution case was that Pali played an important role in both offences charged in Counts 1 and 2 by knowingly providing the premises at 194 Daws Road for the purpose of cultivating cannabis (Count 2 - the growing of the 145 cannabis plants) and for the purpose of preparing cannabis for sale, including preparing or storing (Count 1 - a form of “trafficking”).[4] Thus, during pre-trial submissions on Monday, 18 June 2018, the prosecutor submitted:
Our case in relation to Pali is that he was the lessee of the house at Daw Park and that he permitted those premises to be used for the commercial cultivation of cannabis and the preparation of drugs there over a period of time.
[4] “Traffic” is defined in s 4 of the Controlled Substances Act 1984 as:
traffic in a controlled drug means–
(a) sell the drug; or
(b) have possession of the drug intending to sell it; or
(c) take part in the process of sale of the drug;
The prosecutor went on to state:
the prosecution need to prove not only that he was the lessee and connected to the property, but our case is that he’s taking part in both the trafficking of cannabis and the cultivation of cannabis by permitting those premises to be used for the storing of the harvested material, the packaging of the harvested material and the growing of cannabis.
As to the relevant evidence inside the premises, the prosecutor stated:
At that address there were three rooms dedicated to the growing of cannabis. The first room contained evidence that cannabis had been grown there and stripped and there was greater than 11 kg of female cannabis head in one corner which had been almost dried to completion. And there was evidence that there was a heat-sealing machine available for use at the premises to package cannabis.
The second room is where the bud stripper was in operation. There was evidence of stripped branches and cannabis head, about two kilos. There was evidence of branches still with cannabis material on it and the bud stripper in operation. There is also evidence of the hydroponic equipment required for growing cannabis in both of these rooms, room 1 and room 2.
So the prosecution case, on the day the police attend cannabis is in the process of being removed from branches, laid out to dry and ready to be packaged. It is the harvested cannabis material that is the subject of count 1, the trafficking in a large commercial quantity. All in there is about 39 kilos total, of that one might expect about half to be saleable removing leaf and stem.
There was a third bedroom in the house which had only three light globes and light shades and transformers. In that room were 12 immature cannabis plants and 133 cuttings of cannabis in soil, in a polystyrene container. They, in total, are the 145 plants, the subject of count 4, cultivating a large commercial quantity of controlled plants for sale.
Pali did not give evidence. There was no dispute at trial that the cannabis the subject of Count 1 was “a large commercial quantity of cannabis” or that the growing plants the subject of Count 2 constituted “a large commercial quantity of controlled plants”. The issue at trial was whether the prosecution had proven that the appellant had knowingly provided or allowed the use of the premises to cultivate cannabis plants for the purpose of sale (Count 2) and to prepare or store cannabis for sale (Count 1). In her closing address to the jury, the prosecutor specifically stated there was no allegation that cannabis had been in the house prior to the 2016 cultivation charged in Count 2.
The appellate process
Pali was convicted of both counts by jury verdict on 22 June 2018. On 2 July 2018, his solicitors filed a notice of appeal (within time) in which it was asserted (incorrectly) that the appeal was as of right and that permission to appeal was not needed. The proposed grounds of appeal were stated in an annexure to the notice of appeal thus:
Annexure
1. The verdict and the judgment of guilt in respect of the two counts in the Information with which the appellant was charged should be quashed on the ground of a wrong decision on a question of law.
Particulars
1.1 In relation to the count of trafficking of a large commercial quantity of a controlled drug (cannabis) there was no evidence properly before the jury that the quantity of the controlled drug was a large commercial quantity.
1.2 In relation to the count of cultivation of a large commercial quantity of controlled plants for sale there was no evidence properly before the jury that the plants were controlled plants.
2. The appellant did not receive a trial according to law as his trial miscarried because it proceeded on two incorrect assumptions.
Particulars
2.1 That the quantity of the controlled drug (cannabis) found in the appellant’s possession was a large commercial quantity when it was not.
2.2 That the plants allegedly cultivated by the appellant were controlled plants when they were not.
The genesis of the Controlled Substances Act 1984 s 63(3) contention
On 24 August 2018, two months after conviction and just prior to the permission to appeal hearing, Pali’s solicitors filed a document headed ‘Appellant’s Particulars of Grounds Of Appeal (24 August 2018)’, which appears as follows:
APPELLANT’S PARTICULARS OF GROUNDS OF APPEAL
Count 1
Particular 1
1. Because the quantity of cannabis alleged in respect of the offence was below the specified amount for “mixed” cannabis (ie below 12.5 kg) the relevant element of the offence charged was that the quantity of cannabis was more than 2 kg of pure cannabis.
2. There was no evidence of and no direction by the Learned Trial Judge as to “pure cannabis” and what “pure” meant.
3. The jury were instead (wrongly) directed that any amount of cannabis in excess of 2 kg constituted the relevant amount.
4. Furthermore, Section 33OA of the Controlled Substances Act required the respondent to particularise as to whether the charge of large commercial quantity of the controlled drug (cannabis) was a charge relating to cannabis in its pure form or mixed form. In the absence of any such particularisation the charge should have been struck out for failing to comply with the Controlled Substances Act.
Particular 2
5. Cannabis then only becomes a “controlled drug” if and when it is “… a substance declared by the Regulations to be a controlled drug for the purpose of this Act”.[5]
6. Section 63(1) empowers the Governor to make such Regulations as are necessary for the purposes of the Act.
7. However, the Governor’s Regulation making power, insofar as it extends to making Regulations “prescribing an amount relating to a controlled drug” can only be invoked “on the recommendation of the Advisory Council” set up pursuant to Section 6 of the Act.[6]
8. No such recommendation appears to have been made by the Advisory Council in respect of the “Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014” which came into operation on the 14th of September 2014.
Count 2
Particular 3
9. The relevant amount of cannabis plants constituting a large commercial quantity as per Schedule 3 Part 2 of the Regulations is 100 cannabis plants.
10. The Regulations do not declare cannabis to be a controlled plant. The Act (Section 4(1)) defines a controlled plant as a
“… growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium) …”
11. In this case there were only 12 growing cannabis plants and 133 cuttings that were not growing cannabis plants.
12. As a matter of law, the appellant could not have been convicted of the charge of cultivating a large commercial quantity of cannabis.
[5] See s 4(1) The Definition of Controlled Drug [Appellant’s footnote].
[6] See s 63(2). [(sic) Appellant’s footnote. Paragraphs 7 and 8 in referring to “recommendations” are plainly directed to s 63(3) of the Act; it is assumed that the reference to “s 63(2)” in Pali’s footnote to paragraph 7 is in error and should be s 63(3)].
The permission to appeal hearing
On 27 August 2018, the matter was called on before the permission Judge. Mr Abbott first addressed Count 1. He then proceeded to Count 2, read the definition of “controlled plant” in s 4 of the Controlled Substances Act 1984 (the Act)[7] and stated:
The fact that the Act says that a controlled plant means a growing cannabis plant, we say means that if the plant is not growing at the time the police seized it they have to deal with it as a controlled drug, not as a controlled plant. We say that makes perfect sense under the Act, because if they walk into a plantation or a grow house where plants are growing, they charge them with controlled plants because they are growing cannabis plants. If they are not growing them, they have been harvested, they charge them with a controlled drug. There is no lacuna in the Act.
So we say in this case, in relation to the 145 plants, in fact only 12 were growing as the evidence revealed and 133 were actually cuttings that were found. We say that in accordance with the definition of controlled plant in s 4 of the Controlled Substances Act, the prosecution could not charge this defendant with 145 cannabis plants because by virtue of the definition they were not controlled plants, only 12 of them were, and if he was only charged with 12 plants that would take it to the Magistrates Court, being the least amount. So we say that the charge as presented in the Information is bad as a matter of law. When you look at the definition of controlled plant, when you look at the Information in this case, which specified 145 plants, their case was not that there were 145 growing plants, there was only 12 growing plants.
(Emphasis added)
HER HONOUR: I have got your argument.
[7] Reproduced below.
The permission Judge correctly ruled that there was no appeal as of right. Her Honour granted permission to appeal concerning the conviction on Count 1 and referred the question of permission to appeal against the conviction on Count 2 to the Court of Criminal Appeal.
The above underlined statements by counsel concerning the status of the 133 cannabis plants made by senior counsel were quite wrong. A large commercial quantity of cannabis plants is defined as 100 plants.[8] The evidence was that the police found 12 cannabis plants growing in pots and a further 133 female cannabis cuttings growing in a “growing medium” in a foam box, a total of 145 cannabis plants. Plainly, the further 133 plants were within the s 4 definition as being cuttings of a cannabis plant that “has been planted or otherwise placed in a growing medium”[9] and it had never been contended at trial that they were not.
Abandonment of all original grounds of appeal bearing upon Count 2; and the genesis of new proposed grounds bearing upon Count 2
[8] The definition in s 4 of the Act of a “large commercial quantity” of controlled plants is “a number of the plant that equals or exceeds the number of plants prescribed as a large commercial quantity for the plant”. Regulation 6(1)(b) of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 provides that a large commercial quantity “in the case of a controlled plant” is as specified in Schedule 3 Part 1 or Part 2. Schedule 3 (Part 2) in turn provides that a large commercial quantity in the case of cannabis plants is: “100 plants”.
[9] The definition of “controlled plant” in s 4 of the Act includes “a growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium).”
The incorrect position concerning Count 2 put to the permission Judge was not abandoned until 9 October 2018 (one week before the scheduled hearing in this Court) when Pali’s solicitors sent to the Court a document entitled ‘Amended Annexure to Notice of Appeal (9 October 2018)’,[10] which appears thus:
[10] As noted above, the original grounds of appeal appeared in an annexure to the Notice of Appeal and accordingly this document should have been entitled ‘Application to Amend the Grounds of Appeal’.
Annexure
1. The verdict and the judgment of guilt in respect of the two counts in the Information with which the Appellant was charged should be quashed on the ground of a wrong decision on a question of law.
Particulars
1.1 In relation to the count of trafficking of a large commercial quantity of a controlled drug (cannabis) there was no evidence properly before the jury that the quantity of the controlled drug was a large commercial quantity.
1.2 In relation to the count of cultivation of a large commercial quantity of controlled plants for sale there was no evidence properly before the jury that the plants were controlled plants.2. The Appellant did not receive a trial according to law as his trial miscarried because it proceeded on an
twoincorrect assumptions.Particulars
2.1 That the quantity of the controlled drug (cannabis) found in the Appellant’s possession was a large commercial quantity when it was not.
2.2 That the plants allegedly cultivate by the appellant were controlled plants when they were not.3. The Appellant’s trial on Counts 1 and 2 miscarried because:
3.1 There was insufficient direction on the requirement for the jury to consider each count separately;
3.2 There was no direction as to what the jury was to do in relation to the total cannabis (which weighed 39.5 kg) and which was not the subject of Counts 1 and 2;
3.3 There was insufficient direction on what use the jury could make of the evidence led in relation to Count 1 in considering the evidence led in relation to Count 2 and vice versa;
3.4 The prosecution impermissibly changed its case against the Appellant just before the Trial Judge was about to commence her charge to the jury.
This document is confusing in that it appears to be a marked up copy of amended grounds of appeal, the proposed amendments being to abandon grounds of appeal 1.2 and 2.2.[11] However, the document does not convey (by the customary sidelining or by any other method) that proposed ground 3 of appeal is entirely new (not having appeared in the original grounds of appeal or even in the ‘Appellants Particulars of Grounds of Appeal (24 August 2018)’).
[11] The assertion of “a wrong decision on a question of law” was still being maintained.
Although proposed ground 3 of appeal on its face may apply to both counts, it appears that it was added at this late stage because it had become apparent that (whatever the situation concerning Count 1), there was no extant proposed ground of appeal that could bear upon the conviction on Count 2.
The genesis of the s 63(2) Controlled Substances Act 1984 argument
On 15 October 2018, the day immediately prior to the scheduled hearing in the Court of Criminal Appeal, Pali’s solicitors sent by email to the Court yet another document, this being entitled ‘Further Amended Annexure to Notice of Appeal (15 October 2018)’. This document is once again confusing in that it is in the same form as ‘Amended Annexure to Notice of Appeal (9 October 2018)’ reproduced immediately above but it has in addition yet a further proposed ground of appeal as follows:
[Heading and paragraphs 1 to 3 as reproduced at paragraph [XX] above]
4. The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 and in particular the regulations concerning cannabis contained in Schedule 1 are invalid to the extent that there has been non-compliance with the requirement imposed by section 63(2) of the Act that the Minister must consult with the Advisory Council in relation to any regulation proposed to be made under that Act (other than a regulation proposed to be made under Part 4A or section 33LA):
4.1 The Minister did not in respect of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulation 2014 concerning cannabis contained in Schedule 1 of those regulations consult with the Advisory Council, nor did the Minister engage in such consultation in respect of any variation to those regulations.
4.2 Further and in any event, the Minister did not in respect of the Controlled Substances (Prohibited Substances) Regulations 2000 concerning cannabis contained in Schedule 1 of those regulations consult with the Advisory Council, nor did the Minister engage in such consultation in respect of any variation to those regulations.
4.2.1 The Minister did not in respect of the Controlled Substances (Prohibited Substances) Variation Regulations 2007 consult with the Advisory Council.
4.2.2 The Minister did not in respect of the Controlled Substances (General) Variation Regulations 2009 consult with the Advisory Council.
Again, this proposed ground 4 of appeal does not have the customary sidelining; but it is entirely new, not appearing in the original grounds or in the ‘Appellants Particulars of Grounds of Appeal (24 August 2018)’.[12] Further, this proposed ground purports to assert statements of fact concerning the conduct of a Minister of the Crown, a matter which was in no way raised at trial. This aspect of the matter is referred to below.
[12] It applies only to Count 1 and not to Count 2.
The hearing of the appeals
The hearing of the appeals commenced on Tuesday, 16 October 2018 and occupied the whole of the morning which had been set aside, another appeal having been scheduled to be heard that afternoon. The case was adjourned to continue on Thursday, 18 October 2018. On resuming that day, Mr Abbott produced yet another document and stated to the Court:
I also have had circulated to the court a document entitled ‘Consolidated appeal grounds’ which brings together the grounds in the various documents that are before the court.
In fact, neither the judges nor prosecution counsel had received a copy of the document. Hard copies were eventually produced of the document entitled ‘Consolidated Appeal Grounds (18 October 2018)’, which appears as follows:
CONSOLIDATED APPEAL GROUNDS
Count 1
1. The Appellant was deprived of a fair trial as the prosecution was required either to allege in a charge on the Information, or in particular[13] of it, that the quantity of cannabis the subject of the charge is a certain amount and is pure cannabis as distinct from mixed cannabis, and the Trial Judge was required to direct the jury as to whether the cannabis was pure cannabis or mixed cannabis:
1.1 The quantity of the cannabis alleged in respect of the offence was below the specified amount for “mixed” cannabis (ie below 12.5 kg) the relevant element of the offence charged was that the quantity of cannabis was more than 2 kg of pure cannabis.
1.2 There was no evidence of and no direction by the Learned Trial Judge as to “pure cannabis” and what “pure” meant.
1.3 The jury were instead (wrongly) directed that any amount of cannabis in excess of 2 kg constituted the relevant amount.
1.4 The respondent was required to particularise as to whether the charge of large commercial quantity of the controlled drug (cannabis) was a charge relating to cannabis in its pure form or mixed form.
Count[14]Count 2
2. The Appellant’s trial on Counts 1 and 2 miscarried because:
2.1 There was insufficient direction on the requirement for the jury to consider each count separately;
2.2 There was no direction as to what the jury was to do in relation to the total cannabis (which weighed 39.5 kg) and which was not the subject of Counts 1 and 2;
2.3 There was insufficient direction on what use the jury could make of the evidence led in relation to Count 1 in considering the evidence led in relation to Count 2 and vice versa;
2.4 There was no direction given in compliance with section 34R of the Evidence Act 1929;
2.5 The prosecution impermissibly changed its case against the Appellant just before the Trial Judge was about to commence her charge to the jury.
Count 3
3. The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 and in particular the regulations concerning cannabis contained in Schedule 1 are invalid and/or unlawful to the extent that there has been non-compliance with the requirement imposed by section 63(2) of the Act that the Minister must consult with the Advisory Council in relation to any regulation proposed to be made under that Act (other than a regulation proposed to be made under Part 4A or section 33LA):
3.1 The Minister did not in respect of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulation 2014 concerning cannabis contained in Schedule 1 of those regulations consult with the Advisory Council, nor did the Minister engage in such consultation in respect of any variation to those regulations.
3.2 Further and in any event, the Minister did not in respect of the Controlled Substances (Prohibited Substances) Regulations 2000 concerning cannabis contained in Schedule 1 of those regulations consult with the Advisory Council, nor did the Minister engage in such consultation in respect of any variation to those regulations.
3.2.1 The Minister did not in respect of the Controlled Substances (Prohibited Substances) Variation Regulations 2007 consult with the Advisory Council.
3.2.2 The Minister did not in respect of the Controlled Substances (General) Variation Regulations 2009 consult with the Advisory Council.
Count 4
4. The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 and in particular the regulations concerning cannabis contained in Schedule 1 are invalid to the extent that there has been non-compliance with the requirement imposed by section 63(3) of the Act that no regulation may be made prescribing an amount relating to a controlled drug except on the recommendation of the Advisory Council.
Particulars
4.1 The Advisory Council has made no recommendation prescribing an amount of a controlled drug and in this instance cannabis in respect of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
[13] [sic]. See discussion below at paragraph [38].
[14] [sic]. An unexplained artefact.
This document is divided into four sections. The first section “Count 1” appears to address Count 1 on the Information; and the second section “Count 2” appears to address both Count 1 and Count 2. However, the third and fourth sections “Count 3” and “Count 4” do not appear to make sense. This must indicate that the word “count” has been incorrectly used instead of ‘Ground of Appeal’, presumably throughout the document. As to it “bringing together the grounds in the various documents that are before the court”, one notes that little is left of the original grounds of appeal that were before the permission Judge[15] but that paragraph 2.4 (which refers to s 34R of the Evidence Act 1929) is new, not having been included in any of the various documents discussed above. And, as almost goes without saying, none of the complaints now belatedly sought to be raised for permission to appeal were raised at trial.
[15] On a positive note, the incorrect assertion of “a wrong decision on a question of law” has been finally jettisoned.
However, with all of its infelicities, I will use this document as the basis for consideration of both appeals since the Court is assured that “it brings together the grounds in the various documents that are before the court”. I proceed on the basis that the four headings Counts 1 to 4 are in fact to be taken to state exhaustively the grounds of appeal that are sought to be relied upon by the appellants.[16]
[16] Proposed ground 2 of appeal can apply only to Pali.
Consideration of ground 1 of appeal – “Pure” and “Mixed cannabis”
I again reproduce the new proposed ground 1 of appeal as follows:
Ground 1
1 The Appellant was deprived of a fair trial as the prosecution was required either to allege in a charge on the Information, or in particular of it, that the quantity of cannabis the subject of the charge is a certain amount and is pure cannabis as distinct from mixed cannabis, and the Trial Judge was required to direct the jury as to whether the cannabis was pure cannabis or mixed cannabis:
1.1The quantity of the cannabis alleged in respect of the offence was below the specified amount for “mixed” cannabis (ie below 12.5 kg) the relevant element of the offence charged was that the quantity of cannabis was more than 2 kg of pure cannabis.
1.2There was no evidence of and no direction by the Learned Trial Judge as to “pure cannabis” and what “pure” meant.
1.3The jury were instead (wrongly) directed that any amount of cannabis in excess of 2 kg constituted the relevant amount.
1.4The respondent was required to particularise as to whether the charge of large commercial quantity of the controlled drug (cannabis) was a charge relating to cannabis in its pure form or mixed form.
I will first address the introductory five lines (which will be referred to, perhaps loosely, as “the chapeau”) and then deal with the sub-paragraphs in the following order: 1.4; 1.1; 1.3; and, 1.2.
The chapeau to proposed ground 1 of appeal
The chapeau appears to be divided into two parts. The first part ends with the third word in the fourth line “cannabis,”. The second part consists of the words “and the Trial Judge was required to direct the jury as to whether the cannabis was pure cannabis or mixed cannabis:” with the colon appearing to invite progression to each of the following four sub-paragraphs. However, there is little grammatical connection of the chapeau to those four sub-paragraphs.
In these uncertain circumstances, it is well to refer to the jurisdictional basis of this appeal. Section 353 of the Criminal Law Consolidation Act 1935 provides:[17]
353—Determination of appeals in ordinary cases
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[17] This section was repealed on 5 March 2018 by the Summary Procedure (Indictable Offences) Amendment Act 2017 and re‑enacted in materially the same terms as s 158 of the Criminal Procedure Act 1921. As the subject proceedings were commenced prior to the commencement of the Act, the legislative changes have no application here: s 41 of the Summary Procedure (Indictable Offences) Amendment Act 2017.
At least one may say this. First, there was in fact no wrong decision on any question of law[18] because none of the matters now sought to be raised were raised before the trial Judge. Secondly, there is no ground of appeal that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Thirdly, the assertion in the chapeau that “the Appellant was deprived of a fair trial” can only be a reference to the third of the above three branches, that there was a miscarriage of justice.
[18] As was initially incorrectly stated in the first iteration of Ground 1 of Appeal and later abandoned.
The chapeau proceeds to state, in effect, that the miscarriage of justice being asserted is that “the prosecution was required either to allege in a charge on the Information, or in particular (sic) of it, that the quantity of cannabis the subject of the charge is a certain amount and is pure cannabis as distinct from mixed cannabis”.
It might initially appear that the word ‘particular’ in the singular immediately above should be ‘particulars’ in the plural because the sentence would then make some sense with little alteration. The assertion would then be that the prosecution was required to aver in either the charging portion or the particulars portion of the Information that “the quantity of cannabis the subject of the charge is a certain amount and is pure cannabis as distinct from mixed cannabis…”. However, if this were to be the submission, it would face a number of problems. One problem is that such a submission amounts to an objection to an asserted “formal defect apparent on the face of the information” in circumstances where no such objection was taken at trial. Such an objection is prohibited by s 281 of the Criminal Law Consolidation Act 1935, which provides:[19]
281—Objections to informations, amendments and postponement of trial
(1) Every objection to any information for any formal defect apparent on the face of the information must be made by application to quash the information, before the jury is empanelled and not afterwards.
[19] This section has since been re‑enacted in materially the same terms as s 128 of the Criminal Procedure Act 1921. There is no doubt that a “formal defect” includes a failure to make a required averment; and, that the “face of the information” includes a formal defect in either the statement of offence section or the particulars of offence section of an Information.
A second problem is that, on the hearing of the appeal, Mr Abbott was specifically asked whether he was submitting that the prosecution was here required to aver on the face of the Information whether it was alleged that the cannabis was pure cannabis as distinct from mixed cannabis; he stated that he did not make that submission.
Doing the best I can, I conclude that, despite the unfortunate drafting, the word ‘particular’ is intended to marry up with sub-paragraph 4, which has some not dissimilar wording. I therefore move to the sub-paragraphs and will deal first with sub-paragraph 4.
Sub-paragraph 4: The respondent was required to particularise as to whether the charge of large commercial quantity of the controlled drug (cannabis) was a charge relating to cannabis in its pure form or mixed form.
Under the Controlled Substances Act 1984, “pure” weights and “mixed” weights are prescribed for controlled drugs, including cannabis.[20] As far as I could understand the argument as finally put, it was along the lines that the prosecution had to particularise (in the sense of making known to the defendant and to the Court) whether it was relying on a case based on “pure” cannabis or “mixed” cannabis. In his written submissions, counsel for the appellants seeks to rely upon s 33OA of the Act, but I agree with the following observation in the respondent’s written submissions:
The respondent notes that the appellant at [18] sets out the terms of s33OA however the appellant has deleted the words ‘contained in a mixture’ from that recitation of the section. It is submitted the re-insertion of those words is necessary to understand the obligations imposed by that section.
[20] There is no definition of “pure” or “mixed” in the Regulations or in the Act.
I accept the respondent’s submission that s 33OA only imposes an obligation to assert whether the “pure” or “mixed” weight is relied upon when the prosecution alleges that the offence involves a controlled drug “contained in a mixture”;[21] for it is only in such a case that a need for clarity arises due to the fact that the prosecution may rely alternatively on the weight of the drug itself within the mixture (the pure weight) or the total weight of the substance in which the drug is situated (the mixed weight).
[21] The relevant part of s 33OA states: “… in proceedings for an offence against this Part involving that drug or precursor contained in a mixture, the question…..” (emphasis added) will be determined by reference to what is alleged in the charge.
In the present case, the cannabis the subject of Count 1 was simply described in the Information, in submissions and in evidence, as “cannabis”. There was no averment in the Information of it being “contained in a mixture”; no request for further particulars by the defence; no objection taken to the course pursued by the prosecution; no cross-examination of any of the witnesses upon the matter; and, there has never been any evidential basis to suggest any possibility other than the cannabis was “pure”.
By reference to the nature of the prosecution case, the evidence adduced and the conduct of the defence, it is apparent that there was simply no question but that the prosecution were asserting that all of the cannabis material found at the premises was “pure” in the sense that it was all “cannabis” within the statutory definition. Thus, Detective Reinhardt, who acted as the exhibits officer during the search of the premises on 17 October 2016, referred to the finding of the various tranches of cannabis without any objection to his describing the material as cannabis. He produced a video disc of a “walk through” of the premises (received as exhibit P6) which clearly depicts the various tranches of cannabis found.
Police Officer Hudson gave evidence that he has been a member of the Drug and Organised Crime Task Force (in its various forms) for some 22 years. He gave evidence without objection (or any cross-examination) as to various matters concerning the hydroponic production of cannabis. He stated inter alia:
… we refer to them as ‘grow rooms’ because the room is wholly and solely for the growing of cannabis. It will be lined with plastic, either reflective or black plastic to contain the whole room as an environment that can be controlled. So you’ll often find walls full of plastic or reflective material. Any windows will be covered off with plastic or reflective material in order to, No 1, keep the room intact as a whole, but also to stop any prying eyes from seeing what’s going on inside the room.
QIn terms of an advantage that may be gained from a hydroponic set-up as compared in comparison to an outdoor set-up, is there any?
AThere certainly is. As I said, the artificial environment means that a plant can grow far more quickly than it would outside. It’s given a whole lot more nutrients and fertilisers. It’s given a lot more light than perhaps it would normally get in an outdoor environment, it’s not under the shade of any trees, it’s not subject to cloudy days, it’s a situation which is ideal for a growing of a plant. So what would normally take six months, or nine months outside, can easily be done in three months in a hydroponic set-up within a house or a contained room.
And later:
QIn your experience in South Australia is there a preference amongst cannabis growers for outdoor grown cannabis or hydroponic grown cannabis?
AYears and years ago when I first joined the Drug Task Force outdoor plants were commonplace but over the last 20 years or plus it has become more and more prevalent that indoor hydroponically grown cannabis is No 1 better quality and No 2 more quickly grown and more favoured by people who want to buy that product both here and interstate.
On a different topic he stated:
QIf we just go over the page to p 9, the bottom photograph No 83, there is a number of items depicted in that photograph. I would like to start first with what looks to be a circular, or round object, I was wondering if you could identify that object?
A The one on top?
Q Yes, it’s got a black and silver colouring.
AThey were the scales, electronic scales. To make sure that the amount of cannabis which is sold, or supplied to other people, it is weighed out by people who grow it, they actually make sure it is exactly true to what they are saying it is. So they will weigh it on scales similar to this, which have a tare weight, which is able to read kilogram amounts, or ounce amounts, or in other drugs far smaller scales which will deal with powdered drugs and things like that. This is quite a large scale compared to the ones used in powdered drugs, but this is the type of scale which is used for weighing cannabis because it’s a bigger bulkier item, so you need a bigger scale with a weigh plate which is big enough to actually take a pound amount on. So that’s what that is, it’s electronic. And usually when we get them, we turn them on, make sure that we endorse the fact that they are working, not just a discarded item, they are actually working electronic scale.
Ms McKew, a forensic scientist at Forensic Science SA, gave the following evidence by reference to her written summary of results (exhibit P13):
QI want to ask you now about the cannabis, suspected cannabis material that you analysed. Starting with item No 4 on the table Exhibit P13.
A Yes.
Q Is that an exhibit that had an item No 9?
A Yes.
QWhat was the result of your analysis, what did you receive and what was the result of your analysis?
AI received two sealed poly-hessian bags containing 11.1 kg and 7.93 kg of moist female flowering cannabis plant material, and some cannabis leaf from cut stem pieces up to approximately 1.6 m long.
…
QCan I ask you about the fifth item on the table, item No 8, with the label DR21, what was received by you?
A Yes.
Q And what was the results of your analysis?
AI received a sealed brown paper bag containing 126 g of damp female cannabis plant material.
…
QAre you able to say anything about the quality of the material as shown in that photograph or the analysis done by you?
AMy notes indicate that what I examined was female flowering head.
QThe sixth item on the table, item 10, with the labelling DR25, what was the result of your analysis?
AI received a sealed brown paper bag containing 1.53 kg of damp cannabis leaf material.
Q Was there any flower material within that item?
ANo. I beg your pardon, I have in my notes that there were some female flowering plants and top pieces but they were negligible and I added the question mark ‘waste’.
QIf you assume this amount of cannabis was found on the floor underneath a machine known as a bud stripper is that of any relevance to your findings?
A Is that in relation to item 10?
Q Yes.
AA bud stripper is a piece of apparatus that’s used to remove any leaf material from those female flowering head. By its very nature as it grows the head, the small leaves grow within the head and once it’s removed and as part of the harvesting process is that those little leaves are removed and so that’s potentially what a bud stripper could be used for so if there’s leaf material on the floor underneath a bud stripper it might indicate that leaf has been removed from the heads that are then placed into the bud stripper perhaps and the smaller female flowering parts are perhaps really tiny small head pieces that were just too hard to separate perhaps from the leaf.
QThe seventh item on the table, item 6 with the label DR19, what was the result of your analysis?
AI received a sealed poly hessian bag containing 2.46 kg of damp cannabis leaf and some female cannabis plant material.
QWhat was the proportion of female cannabis plant material to leaf?
ANotes I made at the time of examination were that I estimated that the leaf material was comprised of 80% and the female portion 20% approximately.
QThe eighth item on the table, item 7 the label DR20, what was the results of your analysis?
AI received a sealed poly hessian bag containing 2.72 kg of damp female cannabis plant material and some cannabis leaf.
QOn this occasion what was the proportion of female cannabis plant material?
AAgain notes I made at examination I estimated that approximately 95% was female flowering material and 5% was leaf.
Q The next item on the table item No 2 with the label DR11 what were the results?
AI received a sealed poly hessian bag containing 1.98 kg of slightly damp cannabis leaf and some female cannabis plant material.
Q And the proportion of female cannabis plant material for this exhibit?
A Notes I made at the time were approximately 20% female and 80% leaf.
Q And the final entry on the table, item 3 with the label DR12, what were the results?
A A sealed poly hessian bag containing 11.6 kg of female cannabis plant material.
Q Can I ask you to look at photo booklet P8A in particular at photo No 14.
A Yes.
QIf you assume that the item labelled DR12 is what is shown in photograph No 14, are you able to comment about the quality of the cannabis material shown in that photograph or analysed by you?
AIt appears to be female head material that has been I guess it’s at the end of the harvesting process so the leaf has been removed, the head material has been removed from the stem and it's more than likely on the floor drying out.
Q Was this exhibit damp or moist?
A Notes I made at the time of examination in relation to this I made the note ‘dry’.
All of the evidence indicates that the subject of Count 1 was “pure” cannabis. Further, I agree with the respondent’s pertinent observations:
32.… the respondent asks why it should be assumed that the cannabis the subject of count 1 was mixed with some other material when:
- the cannabis head appears to have been laid out on the floor to dry. There is no obvious reason why another substance would have been added to the cannabis head whilst it lay on the floor. To the contrary, there is every reason not to do so when it is drying;
- photo 14 does not provide any evidential support for a submission that the cannabis in that photograph was mixed with another substance - accidently or otherwise;
- no other exhibits were mixed with other substances. There is no obvious reason why this particular cannabis would have been mixed with another substance; and
- in light of the commercial nature of this enterprise no obvious explanation exists for mixing the cannabis with another substance at this point in time.
The possibility of the cannabis being in a mixture is therefore contradicted by the direct evidence and inconsistent with the obvious inferences to be drawn from the whole of the evidence.
…
37.Lastly, the respondent notes that the weight of the material located in the bedroom was 11.6 kilograms of dry cannabis. Even if some small amount of contaminant could be said to have been included in the 11.6 kg and that small amount was sufficient to mean the cannabis was in a mixture, the relevant weight for a large commercial quantity of cannabis would nonetheless be 2 kilograms of pure cannabis. The prosecution can still rely on the pure amount of a controlled drug contained in a mixture. This means that provided there was at least 2kg of cannabis in that 11.6kg and provided that there was an intention to sell at least 2kg of cannabis and the appellant had that knowledge and intention then the appellant would still be guilty of trafficking in a large commercial quantity of cannabis.
38.The respondent submits any contaminant, if it was present, would have been such a small percentage of the total weight of 11.6kg that the error could not have impacted upon the deliberations of the jury. The weight of the cannabis within the 11.6kg could only have been the significant proportion of that weight. In those circumstances, there was no material error as to the directions on the evidence or the law.
Of course, it is to be accepted that in certain circumstances the prosecution may be required to give particulars as to the nature of its case, including the subject matter of a charge, if a written request for such particulars has been made. However, Mr Abbott, in response to specific questions from the Court, admitted that no such request was ever made in the present case.
In my view, there was no obligation on the prosecution here to give any further particulars than those given in the Information and given by the prosecutor in the pre-trial proceedings and in the opening to the jury.
Although decided under a different statutory regime, the decision of the Victorian Court of Criminal Appeal in R v Strawhorn is nevertheless of some assistance. Their Honours there stated:[22]
[192] Beyond laboratory conditions, all chemical substances are to some extent contaminated, even if only by dust or oxidation or hydration or bacteria. Given, therefore, the chemical composition of pseudoephedrine hydrochloride, it strikes us as inherently improbable that the statutory conception of ‘pure pseudoephedrine hydrochloride’ requires the exclusion of all contaminants regardless of their concentration. It is notorious that what is daily sold as pure food or drink or petroleum contains some such contamination and that, provided such products meet the standards of purity which are set for them by the market, or by regulatory authorities or perhaps, in some cases, simply as a matter of common sense, they are conceived of as being ‘pure’. In our view, drugs and other therapeutic goods of the kind here in question are not any different. The fact that the amounts listed in the ‘Quantity of pure drug’ column in Schedule Eleven are expressed to only one decimal place of accuracy strengthens us in that view.
[193] Of course, what is sufficient to pass as pure for one kind of product may not suffice for another. The permissible concentration of contaminants depends upon the nature of the product and the nature of the contamination. Furthermore, such is the nature of many products, particularly products like drugs of the kind here in question, that the determination of what is to pass as ‘pure’ must be left to scientists and the application of esoteric tests. It is beyond the ambit of ordinary knowledge and experience. Hence, in this case, the significance of the British Pharmacopeia.[23]
[22] (2008) 19 VR 101, 105 (Vincent, Nettle and Kellam JJA).
[23] The Court observed at paragraph [186] that the prosecution led evidence from a scientist that “she had tested the substance in accordance with the test procedures mandated by the British Pharmacopeia and that as tested the substance was found to be 99.7 per cent pure pseudoephedrine hydrochloride. She explained that, according to the British Pharmacopeia, the limits for pseudoephedrine hydrochloride range from 99 per cent to 101 per cent. It followed, she said, that the two kilograms of substance was pseudoephedrine hydrochloride in ‘its highest pure form’.”
In the light of the above discussion I can be brief in addressing the remaining three sub-paragraphs.
Sub-paragraph 1: The quantity of the cannabis alleged in respect of the offence was below the specified amount for “mixed” cannabis (ie below 12.5 kg) the relevant element of the offence charged was that the quantity of cannabis was more than 2 kg of pure cannabis.
On an assumption that the prosecution was restricted to an amount of 11.6 kilograms rather than the total amount found of 39.5 kilograms,[24] it may be accepted that the prosecution case had to be based on “pure” cannabis rather than “mixed” cannabis. But this is hardly contentious since it was always the prosecution position throughout the trial that the pure amount of two kilograms was the applicable weight; it would therefore seem that sub-paragraph 1 is intended to be merely introductory to what follows.
Sub-paragraph 2: There was no evidence of and no direction by the Learned Trial Judge as to “pure cannabis” and what “pure” meant.
[24] This aspect is dealt with in more detail in connexion with proposed ground 2 of Appeal below.
It follows from all of the above discussion that there was no need for any such evidence or directions. To put it bluntly, there was either two kilograms of cannabis present or there was not.
Sub-paragraph 3: The jury were instead (wrongly) directed that any amount of cannabis in excess of 2 kilograms constituted the relevant amount.
It follows from the above discussion that the case was conducted on the basis that all amounts of cannabis found were “pure” cannabis, or at least sufficiently “pure” such that there was no rational possibility that there was less than two kilograms of pure cannabis whether the total amount of 39.5 kilograms or the lesser amount of 11.6 kilograms was under consideration. Accordingly, the Judge was not in error in directing the jury that any amount of cannabis in excess of two kilograms constituted the relevant amount.
Conclusion concerning ground 1 of appeal
I conclude that, in the absence of any admissible fresh evidence demonstrating that the cannabis was mixed with something else to the extent that there was a real possibility that the weight of pure cannabis was less than two kilograms, there is no basis upon which this Court could find that a miscarriage of justice has occurred in this connexion. Ground 1 of appeal is rejected.
Consideration of proposed ground 2 of appeal
The whole of proposed ground 2 appears above at paragraph [29]. I will deal with its sub-grounds in the following order: 2.5; 2.1 and 2.3; 2.2; 2.4.
The Appellant’s trial on Counts 1 and 2 miscarried because:
2.5 The prosecution impermissibly changed its case against the appellant just before the trial Judge was about to commence her charge to the jury.
Reference to the statements of the trial prosecutor (above at paragraphs [14] to [16]) and to the evidence of the police officers and the forensic scientist (above at paragraphs [44] to [48]) demonstrates that throughout the trial the prosecution case was consistently that all of the cannabis found at the premises (39.5 kilograms) was the product of one cultivation that had taken place “between the 6th day of August 2016 and the 18th day of October 2016” as averred in Count 2. It will be remembered that it was on 7 August 2016 that police officer Bartlett observed one of the co-accused, Gentjan Koci, staying at the premises for a time during which banging and sounds of power tools were heard and the evidence concerning the state and age of the cannabis plants (which had just been recently harvested when the police examined them on 17 October 2016) indicated that the hydroponic crop would have commenced at about the time of Koci’s visit.
Further, as has been noted above (at paragraphs [14] to [16]), the prosecution case was always that the role Pali played in both counts was to knowingly provide the premises in which cannabis could first be cultivated (Count 2) and in which cannabis could then be prepared for sale or stored (Count 1 - a form of “trafficking”[25]).
[25] The definition of “traffic” appears above at page 4.
It was very late in the trial, just before the summing up, that the Judge initiated the following exchange with prosecution counsel concerning Count 1 (to which I will refer as “the Count 1 conversation”):
HER HONOUR: In relation to that count, I’m not sure that Mr Roach actually said how much cannabis you are relying upon for that count, could you perhaps identify that, and it might be helpful to do that from one of the exhibits that was tendered.
MS BURROWS: Yes, the most significant quantity, and really the quantity that I have pitched closing on, is exhibit item No 3, which was labelled DR12, the 11.6 kg of dry female cannabis plant material. Because that is the material that had been sorted from the leaf had been dried, the remainder could form part of the charge but isn’t necessary, it has gone over and above the 2 kg by far by then.
HER HONOUR: I see.
MS BURROWS: The other cannabis is on its way to end up in that situation.
HER HONOUR: Thank you, that’s helpful.
(Emphasis added)
No doubt both the Judge’s inquiry and the prosecutor’s reply were each prompted by a wish to simplify matters in the summing up for the jury. From the prosecutor’s viewpoint, the tranche of 11.6 kilograms was clearly the most advanced in its drying and preparation for sale and the most valuable tranche. In its then dried state, it was almost six times the minimum weight for a large commercial quantity (two kilograms) that everyone at trial was using as the appropriate figure. Divorced from the matters that have only now been raised for the first time on appeal, the answer given by the prosecutor would have appeared to be a pragmatic and co-operative one, even if somewhat favourable for the defendant.
Defence counsel (who did not appear on the appeal) of course embraced the suggestion; not, I hasten to add, through some Machiavellian foresight of the appellate havoc it might wreak, but simply from a (correct) general reaction that the lesser the figure the better (and particularly from a sentencing standpoint).
Of course, with the benefit of hindsight, it would have been better for the prosecutor to have replied to the Judge with staccato words to the effect that “the finding of all of the cannabis is relied upon, just as it has been throughout the whole of the trial”. For it can now be seen that an exquisite serendipidy of circumstances has arisen whereby a foothold for an appeal has been asserted.
Those circumstances are that the amount of very valuable female head cannabis happened to weigh 11.6 kilograms, which is less than the minimum “large commercial” weight of 12.5 kilograms for “mixed” cannabis and, it is said, count 1 came to be restricted to that weight due to “the Count 1 conversation”. It is asserted in Pali’s proposed ground of appeal that the “prosecution impermissibly changed its case against the Appellant just before the Trial Judge was about to commence her charge to the jury”; and it is asserted in the written submissions that the prosecution thereby “changed dramatically between the opening and the commencement of the Trial Judges summing up”.
The “dramatic change” is apparently that the distinction between “pure” and “mixed” cannabis originally in the trial did not matter because the weight of 39.5 kilograms comfortably exceeded both the minimum “pure” weight of two kilograms and the minimum “mixed” weight of 12.5 kilograms for a “large commercial quantity”; whereas, after the “change” the prosecution could only rely on the minimum “pure” weight of two kilograms.
However, at all times the prosecution had only relied upon the minimum “pure” weight of two kilograms and it was never spelt out by counsel what it is that is asserted to be the deleterious effect of the “change”. Theoretically, I suppose that one could say that originally the weight of 39.5 kilograms was about 20 times the minimum “pure” weight of two kilograms whereas after the “change” the weight of the 11.6 kilograms tranche was only about six times the minimum “pure” weight of two kilograms - and that it would have been easier to cross-examine witnesses to suggest that the 11.6 kilograms tranche contained less than two kilograms as defined by the Act. However, descending to reality, this would be a ludicrous proposition; there was not at trial, and is not on appeal, any suggestion, let alone a real prospect of establishing as a reasonable possibility, that the 11.6 kilograms tranche (examined by the very experienced police officers and the forensic scientist) might have consisted of less than two kilograms of cannabis and more than 9.6 kilograms of “something else”.
It is asserted in the written submissions that “the Trial Judge directed the jury only in respect of 11.6 kg and failed to give any directions as to the use (if any) that the jury could or should make of the balance of the 27.9 kg of cannabis material found at the house”. This is incorrect. The Judge did in fact give directions explaining the situation. Her Honour directed inter alia as to Count 1:
The subject of count 1, as you can see it is set out in this document, is the 11.6 kg of dried female cannabis plant material that was located at the house by the police on 17 October 2016. It is up to you, you may want to make a note of that.
Count 1 on the information relates to that 11.6 kg of dried female cannabis plant material. It was on the floor in bedroom 1. It was exhibit DR12. You can see it in situ in photograph 12 of Exhibit P8A. After it was collected by the police you can see it in photograph 51 of Exhibit P8A.
Now, you have heard that there was more cannabis at the house which appeared to have been harvested as well, but count 1 focuses on the 11.6 kg of cannabis because it was already dried.
(Emphasis added)
It would have been quite clear to the jury that, as they had heard from the very start of the trial, the very large total amount of cannabis material found at the house was the product of a continuous growing period of about 2 and a half months (corresponding to the date particulars of Count 2) and such evidence (together with the other circumstantial evidence in the case) was highly relevant to the issue of whether Pali had knowingly supplied the premises for the purpose of growing cannabis. Of course, all of that evidence also remained relevant to the issue of whether Pali had knowingly supplied the premises for the purpose of storing cannabis (Count 1) but, as the Judge directed in the passage in emphasis above, here one may focus on the 11.6 kilogram tranche as the best exemplar of the drying process. In my view, the Judge’s directions concerning the respective prosecution and defence cases were unexceptionable. Thus, her Honour directed:
The third element of the offence is that it must be proved by the prosecution that the accused knowingly trafficked in that cannabis. Now the law defines trafficking very broadly. For the purpose of this case a person knowingly traffics in a controlled drug if he or she knowingly takes part in the process of sale of a controlled drug. Breaking that down even further, a person knowingly takes part in the process of sale of a controlled drug if the person knowingly directs, takes or participates in any step, or causes any step to be taken in the procession of the controlled drug. Our legislation in South Australia gives examples of what a step in the process of the sale of controlled drug may include. It is not an exhaustive list, they are just examples.
Those examples are the following: when they are done knowing it was a step in the process of the sale of a controlled drug. Storing a drug, carrying, transporting loading or unloading the drug, packaging the drug, separating the drug into discrete units or otherwise preparing the drug, guarding or concealing the drug, providing or arranging finance, or providing or allowing the use of premises or jointly occupied premises. Of course, what is important is that those steps are not only proved, one of those steps is proved, but it is proved that at the time the accused knowingly did one of those steps knowing that it was a step in the process of the sale of the controlled drug.
Here the prosecution says the accused knowingly provided or allowed the use of the premises he leased from Mr and Mrs Basheer to be used by others to store the drug, that is the dried cannabis, for the purpose of sale. The defence case is that whilst the accused might have allowed another person to use his leased premises, the prosecution has failed to prove that he did so knowing the purpose for which those premises was to be used by the other.
That really ladies and gentlemen is the issue in this case. Has the prosecution proved beyond reasonable doubt that the accused knowingly provided or allowed the use of the premises he had leased from Mr and Mrs Basheer to be used by another or others to store cannabis for the purpose of sale.
(Emphasis added)
The Judge directed as to the prosecution case on Count 2 thus:
... A person knowingly takes part in the process of cultivation of a controlled plant if the person knowingly directs, takes or participates in any step or causes any step to be taken in the cultivation of the plant. You can see that is very broad. Breaking that down even further, a step in the process of cultivation of a controlled plant includes but is not limited to any of the following when knowingly done for the purpose of cultivation of the plant. Acquiring the plant or equipment, substances or materials, which includes seeds, seedlings or cuttings, or storing the plant or equipment substances or materials, or carrying, transporting, loading or unloading the plant equipment substances or materials, or guarding or concealing the plant or equipment, substances or materials, or providing or arranging finance or providing or allowing the use of premises or jointly occupied premises.
Here the prosecution says that based on all of the evidence you can be satisfied that the accused did take part, that he took part in the acquisition, storage or setting up of the equipment to grow the cannabis plants, given that his fingerprint was on the lampshade, or knowingly provided or allowed the use of premises he had leased from the Basheers for the purpose of cultivation of the plants.
The defence case is that the accused was not involved in the hydroponic set‑up. A fingerprint is insufficient evidence to establish that to be the case. The defence case is that whilst the accused might have allowed another person or persons to use his leased premises, the prosecution has failed to prove that he did so knowing what was going on, that is, had failed to prove that he did so knowing the plants were to be cultivated at the house.
Sub-ground 2.1 There was insufficient direction on the requirement for the jury to consider each count separately;
Sub-ground 2.3 There was insufficient direction on what use the jury could make of the evidence led in relation to Count 1 in considering the evidence led in relation to Count 2 and vice versa
No objection was taken to the summing up at trial and there was little or no expatiation of these sub-grounds on the hearing of the appeal. As to sub-ground 2.1, the Judge did direct as to separate verdicts thus:
You must consider each count separately. It does not follow that the verdict for one count must be the same as the verdict for the other count. You may find the accused guilty of one count, and not guilty of the other count. You may find him guilty of both counts, you may find him not guilty of both counts. What you do need to do is to consider each count separately as I have directed you. Count 1 relates to the 11.6 kg of dried cannabis, and count 2 relates to the 145 plants.
As to sub-ground 2.3, it is clear that all of the evidence was relevant to both charges, and no suggestion to the contrary was made at trial. There was no deficiency in the summing up in this regard.
Sub-ground 2.2 There was no direction as to what the jury was to do in relation to the total cannabis (which weighed 39.5 kg) and which was not the subject of Counts 1 and 2
The Judge correctly directed the jury that they were to have regard to all of the evidence in the case when considering whether they were satisfied beyond reasonable doubt of each of the elements of each of the two charges. The fact that the 11.6 kilograms tranche was the best exemplar of cannabis having been dried for commercial purposes did not alter that fundamental position.
Sub-ground 2.4 There was no direction given in compliance with s 34R of the Evidence Act 1929
As noted above, despite the assertion that the document ‘Consolidated Appeal Grounds’ handed up on the second day of the hearing of the appeal (18 October 2018) “brings together the grounds in the various documents that are before the court”, the fact is that sub-ground 2.4 did not appear in any other application for an amendment to the grounds of appeal then before the Court.
Counsel here belatedly seeks to submit that there was error in that “there was no direction given in compliance with s 34R of the Evidence Act 1929”. It is sought to rely on the recent decision in R v Jones in which Nicholson J (with whom Kourakis CJ and Hinton J agreed) wrote the lead judgment and dealt with the recurring question of the admissibility of the finding of a number of indicia of previous drug trading (such as large amounts of cash, notes recording past transactions and so on) on a charge involving different, more recent drug trading.[26] The difficulty with attempting to apply passages in Jones to the present case is that they are very much governed by, and to be read in the light of, paragraph [25] of Nicholson J’s judgment; it was not referred to by counsel and is as follows:[27]
[25] Circumstantial evidence tending to establish that an accused has been or is in the business of trading in controlled drugs (not being the drug or drugs the subject of the offence) is characterised in this State as discreditable conduct evidence and its admissibility is governed by section 34P of the Evidence Act. [Footnote 22 here appears].
(Emphasis added)
[26] Such matters have been discussed in decisions such as Sultana v The Queen (1994) 74 A Crim R 27, 28-29 and the recent decision of the High Court in R v Falzon (2018) 92 ALJR 701, [1].
[27] [2018] SASCFC 96.
The obvious problem with the appellant’s submission is that s 34R did not require the giving of any direction in the circumstances of this case. Nicholson J here makes very plain that his remarks at paragraph [25] and following only apply if the evidence sought to be led does not relate to the drug or drugs the subject of the offence. Footnote 22 in paragraph [25] of his Honour’s judgment reinforces this aspect and is as follows:
R v Soteriou [2013] SASCFC 114. Such evidence, ordinarily, is not to be characterised as part of the res gestae or the transaction the subject of the charge, in the sense described by McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 633, so as to be admissible independently of section 34P. See the discussion of and application of this principle by Peek J in Police v Rosales [2017] SASC 118 at [22]-[30].
Thus, his Honour here cites R v Soteriou as authority for his proposition expressed at paragraph [25]. In Soteriou, the defendant was convicted of two counts of trafficking in a controlled drug, each offence occurring on 2 February 2011. Evidence called by the prosecution included first, notebooks containing lists of persons and amounts; second, SMS messages referring, sometimes obliquely, to what the prosecution said were sales negotiations; and third, quantities of unused small plastic ziplock bags. The court held that while the first two categories constituted “discreditable conduct” because they referred to past conduct by the defendant, the third category of unused small plastic ziplock bags was not “discreditable conduct” because that evidence was relevant to the present offending charged rather than past offending. Thus, Vanstone J (with whom Sulan and Stanley JJ concurred) stated:
[13] I start with the question whether the three items of evidence were discreditable conduct evidence. In terms of s 34P(1) that question is: Did the evidence tend to suggest that the appellant had engaged in discreditable conduct … other than conduct constituting the offence?
[14] I agree with both counsel that the possession of the resealable plastic bags was not such evidence. Certainly the prosecution argued that the plastic bags were the tools of trade or paraphernalia or indicia of trading by a drug dealer – indeed there was some evidence from a police officer in this trial to that effect – but the very fact that the appellant still had possession of them indicated that they had not been used in the course of a drug trade. The subsection catches evidence suggesting that a defendant has, that is in the past, engaged in discreditable conduct; not that he might intend to do so in the future. (Emphasis added)
Buckingham was charged on the Information with the following offence:
Statement of Offence
Trafficking in a Commercial Quantity of a Controlled Drug. (Section 32(2) of the Controlled Substances Act, 1984).
Particulars of Offence
Simon Mathew Buckingham on the 1st day of December 2016 at Seaford Rise trafficked in a commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
An overview of the facts
On 1 November 2016, the police raided Buckingham’s residence at Seaford Rise and found in the carport a hydroponic “grow room” inside of which was inter alia:
-two female cannabis plants approximately 15cm tall growing in rock wool;
-a quantity of cryovac bags;
-a drying rack;
-a bag of cannabis leaf weighing 54.6g and a bag of cannabis head weighing 20.6g;
-a drying rack;
-a quantity of plastic resealable bags;
-a set of digital scales; and
-two cryovac bags containing cannabis head.
In the outdoor entertainment area was found:
-a further nine cryovac bags of cannabis head in a cardboard box;
-two cannabis grow books; and
-a fertilizer spread-sheet.
The 11 cryovac bags of cannabis contained a total of 2.298 kilograms of dry cannabis head. Each bag contained approximately 209 grams (half a pound) of cannabis. The total amount of cannabis plant material seized by police was 2.37 kilograms. The above matters were the subject of agreed facts referred to below.
Buckingham gave evidence. He agreed that he had grown all of the cannabis and that all the items seized belonged to him. He stated that he was growing the cannabis to make into oil for his own use in alleviating PTSD symptoms from which he had suffered for many years. He stated he had tried everything else and that he had become aware of studies into the use of cannabis for PTSD and determined to cultivate cannabis for that purpose. He stated that he was only going to make the cannabis in the packages into oil and then stop.
Buckingham further stated in evidence that he packaged the cannabis in cryovac bags to protect the integrity of the cannabis. He did not suggest he had packaged anything other than the cannabis he had grown in the individual bags. He described the process he intended to undertake to make the oil and at no point did he suggest that he would mix the cannabis plant material with some other substance prior to beginning that process; to the contrary, he said that the process he was going to undertake required the oil to be extracted from the plant material in his possession.
The relevant legislation and regulations
The regulations prescribe a “pure” weight of one kilogram and a “mixed” weight of 2.5 kilograms. Since the total amount of cannabis found was less than 2.5 kilograms, it was always entirely obvious that the prosecution case was that he was in possession of more than one kilogram of “pure” cannabis.
The reverse onus provision
Unlike Pali who was not prosecuted on the basis of possession of cannabis, Buckingham was clearly found in possession of cannabis. Since the amount of cannabis was greater than the “trafficable quantity” of 250 grams, a reverse onus provision applied in his case due to s 32(5) of the Act, which provides:
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i) was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
Buckingham’s grounds of appeal
Buckingham’s original and amended grounds of appeal were superseded by the ‘Consolidated Appeal Grounds (18 October 2018)’, which stated all of the proposed grounds of both appellants (reproduced above at paragraph [29]). Buckingham only seeks to rely upon proposed grounds 1, 3 and 4[53] since proposed ground 2 can apply only to Pali.
[53] With adjustments of “commercial amount” (with the lesser weight of one kilogram of “pure” cannabis) rather than “large commercial amount” (with the greater weight of two kilograms of “pure” cannabis).
Proposed ground 1 of appeal
On 23 July August 2018, the Buckingham matter was called on before the permission Judge. Her Honour refused permission to appeal on any ground. In doing so, her Honour had particular regard to the fact that in Buckingham’s case the agreed facts appear to foreclose any argument that the cannabis in Buckingham’s possession was anything other than “pure” cannabis. The agreed facts were set out in exhibit P4, which appeared as follows:
Statement of Agreed Facts
1. The accused was in possession and had ownership of all items seized during the search of 4 Corsair Close Seaford Rise.
2. The plant material seized from the property was analysed by Forensic Science SA and found to contain 2.37kg of cannabis.
3. The 2.37kg of harvested cannabis was comprised as follows:
a. Items 21 and 25, being 11 cryovac bags of cannabis, contained a total of 2298g of dry cannabis head. Each bag contained approximately 209g (half a pound) of cannabis.
b. Item 17, being the bag of fine cannabis leaf weighed 54.6g.
c. Item 18, being the bag of cannabis bud weighed 20.6g.
4. Two female cannabis plants seized, were cuttings approximately 15cm tall and had roots in rock wool and were growing in a purpose built hydroponic grow room in the carport.
5. The 2.37kg of cannabis was from a recent harvest grown in the grow house, where the two small female cannabis plants were growing.
‘Agreed Facts’, insofar as they are admissions by a defendant, have the statutory backing of s 34 of the Evidence Act 1929, which provides as follows:
34—Admissions by accused persons
A person may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence: Provided that the admission shall be made by the accused either personally or by his counsel or solicitor in his presence, or, in the case of a body corporate, by its counsel or solicitor.
I consider that the above admissions mean what they say – references to “cannabis” mean “cannabis” rather than “a mixture of cannabis and some other unknown substance or substances”.
This is confirmed by the course of the trial. At trial the prosecutor said this in her opening:
I don’t expect in this case that it will be in dispute that: firstly, the accused was in possession and had ownership of all items seized during the search of the property; secondly, that the plant material seized from the property after being analysed by Forensic Science was found to contain 2.37 kg of cannabis; thirdly, that the 11 cryovac bags of cannabis contained a total of 2.298 kg of dried cannabis head and each bag was of equal size containing approximately 209 g or about half a pound of cannabis in each bag; fourthly, that the 2.37 kg of cannabis was from a recent harvest grown in the hydroponic grow house where the two small cannabis plants were found to be growing.
…
the substance in question must be a controlled drug. As I have already mentioned, Forensic Science SA have analysed the plant material seized at the property and it was found to contain cannabis weighing a total of 2.37 kg.
Immediately following the prosecution opening, Mr Edwardson QC, trial counsel for Buckingham, exercised his right to “outline the issues in contention between the prosecution and the defence” under s 288A of the Criminal Law Consolidation Act 1935 and said to the jury:
Members of the jury, the trial in this matter will be very, very short indeed, in fact most of the police officers who were involved in the investigation of this matter will not be called by the prosecution.
It will be short and they won't be called because there is no dispute at all as to the evidence to be called by the prosecution, in particular what they located, where they located it and the quantity of cannabis that we are here talking about. So as a consequence, as the prosecutor just outlined in his opening, the only real dispute, the only issue, if I can put it that way, for your consideration will be the question of whether or not this cannabis was destined for sale. By his plea of not guilty Mr Buckingham strenuously denies that he intended to sell any of it and I can tell you, members of the jury, we will scoot through the prosecution case fairly quickly because, as I said, it is not in dispute. My client will give evidence in his defence and he will tell you about his motivation for growing the particular cannabis that is the subject of this charge, he will tell us about his long-term suffering of post-traumatic stress disorder and he will tell you about why cannabis was being grown and the extent to which it would alleviate the consequences of that particular condition.
At trial, the prosecution called police witnesses who gave evidence corresponding to that given by the officers at the Pali trial (as referred to above). The prosecution also called the same forensic scientist, Ms Tanya McKew, who gave evidence at the Pali trial, and she gave essentially the same evidence in the Buckingham trial.
All of this evidence was clearly given on the basis that the cannabis referred to was “pure” in the sense that it was not in a mixture with some other unknown substance or substances. Further, Buckingham gave evidence in his defence, the tenor of which was entirely inconsistent with any such suggestion of a mixture. It is sufficient to note the written submission of counsel for the respondent in this regard with which I agree:
11.Not only do the agreed facts contradict such an assertion, the appellant’s own evidence is not consistent with it. The appellant’s evidence was that he had cultivated the cannabis, harvested the cannabis and packaged it. Each of the 11 packages the subject of the charge had been sealed using a heat sealer machine. The appellant’s evidence was that he was in possession of the cannabis for “strictly personal medicinal use”. He described the process he intended to undertake to make an oil to help with his PTSD. At no point in the appellant’s evidence did he suggest that he had placed anything other than cannabis into the bags or that he would have any reason to introduce any other substance into the bags when cryovac sealing the cannabis. To the contrary, the process he said he was going to undertake required the oil to be extracted from the plant material in his possession.
12.There is also no evidence now proffered by the appellant on the appeal to suggest the cannabis the subject of the count was mixed with any other substance. There is therefore no basis for this Court to make that assumption.
13.The evidence at the trial was only consistent with the cannabis in the appellant’s possession not being contained in a mixture. The correct weights were therefore left to the jury to consider.
For both the above reasons, and for the reasons given in the Pali appeal, I would refuse Buckingham permission to appeal on proposed ground 1 of appeal.
Proposed grounds 3 and 4 of appeal
Proposed grounds 3 and 4 of appeal raise the same considerations discussed above in the Pali appeal. For the reasons there given, I would refuse Buckingham permission to appeal on both proposed grounds 3 and 4 of appeal.
Disposition of the Buckingham appeal
No ground of appeal is established. I would dismiss Buckingham’s appeal.
Postscript
Since writing the above, I have read Hinton J’s draft judgment. It makes more explicit the considerations, including the dialogue with counsel on the hearing, which informed the conclusions to which I have come. I had thought that those expressed conclusions were sufficiently self-explanatory but I do not disagree with his Honour that it is useful to have them spelt out in the basic and simple way that he has.
HINTON J.
With respect to Mr Pali’s appeal, I agree with Peek J for the reasons he gives that the first and second grounds of appeal are not made out. As to the third ground of appeal, I also agree with Peek J that the appellant’s construction of s 63 of the Controlled Substances Act 1984 (SA) (CSA or the Act) should be rejected. That construction has the effect that the enabling quality of a recommendation is spent if a regulation is made and subsequently revoked. In my view nothing in the text of s 63 nor in the CSA more generally requires s 63(3) to be construed in this way.
The Controlled Substances (Prohibited Substances) Variation Regulations 2007 (SA) (the 2007 Regulations) varied the Controlled Substances (Prohibited Substances) Regulations 2000 (SA) (the 2000 Regulations). Relevantly, regs 7 and 12 of the 2007 Regulations deleted regs 5 to 8 and Schs 1 to 3 of the 2000 Regulations and substituted in their place fresh regulations and schedules, Sch 1 of which, amongst other things, listed those substances declared to be controlled drugs and set the quantity limits for the purposes of the definitions of large commercial quantity, commercial quantity and trafficable quantity contained in the CSA.
The appellant accepts that the necessary recommendation for the prescription by the 2007 Regulations of the amount relating to cannabinoid for the purposes of the trafficking offences contained in s 32 CSA was made. In this regard Sch 1 Pt 1 of the 2000 Regulations as varied by the 2007 Regulations contained the following:
Large
commercial
Large
commercial
Commercial
Commercial
Trafficable
(pure)
(mixed)
(pure)
(mixed)
(mixed)
kg
kg
kg
kg
g
Cannabinoid - dried plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin
2
12.5
1
2.5
250
The appellant also does not challenge the fact that the Controlled Substances (General) Variation Regulations 2009 (SA) (the 2009 Regulations) varied the 2000 Regulations by deleting the reference in Sch 1 Pt 1 to “Cannabinoid - dried”, as reproduced in the table above, and substituting “Cannabis” consistent with a recommendation made by the Advisory Council.[54]
[54] The reason for the variation may be found in the judgment of this Court in R v Tennant (2010) 107 SASR 504.
Next the appellant points to Sch 6 cl 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) (the 2014 Regulations) which revoked the 2000 Regulations. Regulations 5 and 6 and Sch 1 of the 2014 Regulations declared substances to be controlled drugs for the purposes of the CSA and set the quantity limits for the purposes of the definitions of large commercial quantity, commercial quantity and trafficable quantity contained in the CSA. Relevantly, Sch 1 included:
Large commercial
Commercial
Trafficable
(pure)
(mixed)
(pure)
(mixed)
(pure)
(mixed)
Cannabis - plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin
2 kg
12.5 kg
1 kg
2.5 kg
250 g
250 g
The 2014 Regulations were different to the 2000 Regulations as varied in their treatment of cannabis in only one respect; the 2014 Regulations prescribed a quantity of pure cannabis for the purposes of the definition of trafficable whereas the 2000 Regulations as varied did not. The appellant accepts that a relevant recommendation from the Advisory Council for this variation existed. He contends, however, that no express recommendation existed in relation to the balance of the regulation. The respondent and the Attorney-General contend that the recommendations underpinning the 2000 Regulations and the variations in 2007 and 2009 supported the exercise of the regulation-making power in 2014 declaring cannabis to be a controlled substance and fixing the quantities for the purposes of the definitions of large commercial quantity, commercial quantity and trafficable quantity.
Section 63 sub-ss (1)-(3) CSA provide:
(1) The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this Act.
(2) The Minister must consult with the Advisory Council in relation to any regulation proposed to be made under this Act (other than a regulation proposed to be made under Part 4A or section 33LA).
(3) No regulation may be made prescribing an amount relating to a controlled drug, controlled precursor or controlled plant for the purposes of Part 5 or section 45A except on the recommendation of the Advisory Council.
Self-evidently s 63(1) vests a broad power in the Governor. Such power is to be exercised with the advice and consent of the Executive Council.[55] Every Minister of the Crown is, ex officio, a member of the Executive Council.[56] It follows that the Minister to whom the CSA is committed,[57] being the Minister who must consult in accordance with s 63(2), including in relation to a regulation to which s 63(3) applies (the type of regulation to which s 63(3) applies being a species of the genus subject of s 63(2)), will be a member of the Executive Council that advises on and consents to the making of regulations under s 63(1) by the Governor.
[55] Acts Interpretation Act 1915 (SA), s 23.
[56] Constitution Act 1934 (SA), s 66(2).
[57] Administrative Arrangements Act 1994 (SA), s 5.
The Controlled Substances Advisory Council (the Advisory Council) is established by s 6 CSA. The membership of the Council as prescribed reflects the nature of the functions committed to it by the Parliament. Those functions include to keep under review substances and devices that are subject to the CSA or that may, in the opinion of the Advisory Council, need to be brought under the CSA and the controls (if any) that are, or should be, applicable to them.[58] In the discharge of this duty the Advisory Council is able to make recommendations to the Minister for amendments to the CSA or for the making, varying or revoking of regulations under the Act.[59]
[58] Controlled Substances Act 1984 (SA), s 11(1)(a).
[59] Controlled Substances Act 1984 (SA), s 11(2).
The importance of the task vested in the Advisory Council is apparent in the fact that in regulating controlled drugs the Act does not purport in the main to specify the particular drugs and substances to which it applies. Further, with respect to the tiered commercial offences created by Pt 5 Div 2, not only does the Act not specify the drugs and substances to which those offences relate, it does not specify in relation to those drugs and substances the quantitative measures of liability that distinguish the trafficking offence from the trafficking in a commercial quantity offence and the trafficking in a large commercial quantity offence. These are matters consigned to regulation and in relation to which the Advisory Council with its specialist membership, is uniquely placed to advise the executive government.
Difficult policy questions arise regarding the regulation of drugs and substances. This explains s 63(2) CSA and the obligation imposed upon the Minister to consult with the Advisory Council in relation to any regulation proposed to be made under the Act (other than a regulation proposed to be made under Pt 4A or s 33LA CSA). Moreover, the policy issues to be determined in setting an amount relating to a controlled drug, controlled precursor or controlled plant for the purposes of Pt 5 or s 45A CSA[60] justify the requirement in s 63(3) that no regulation be made on such issue except on the recommendation of the Advisory Council.
[60] See Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code — Chapter 6: Serious Drug Offences (Report, October 1998); see also R v Young (2016) 126 SASR 41 at [46]-[50] (Kourakis CJ).
Focusing more particularly on the text of s 63(3), it contemplates two actions taken by two different actors; the making of a recommendation by the Advisory Council and the making of a regulation by the Governor. A recommendation is in the nature of a suggestion or proposal. Under s 63(3) the required suggestion or proposal is that there be a regulation prescribing a specified amount or amounts relating to a particular controlled drug, controlled precursor or controlled plant for the purposes of Pt 5 or s 45A CSA. Thus the recommendation is a factum that enlivens the power to make a regulation of the type to which s 63(3) applies. Once the factum is satisfied the power is enlivened and remains enlivened. Under s 37 of the Acts Interpretation Act 1915 (SA) the power conferred by s 63(1) is capable of being exercised from time to time. Nothing in the text of s 63(3) and nothing in the context of the CSA more generally suggests that the enabling quality of a recommendation is spent if it is not acted upon within a reasonable time or if it is acted upon but the relevant regulation is subsequently revoked. The ongoing monitoring function performed by the Advisory Council under s 11(1) CSA, the power to recommend the revocation of a regulation under s 11(2) CSA and the obligation to report annually on the administration and operation of the CSA under s 11(6) CSA suggest to the contrary.
The appellant does not contend that the 2014 Regulations prescribed an amount for the purposes of trafficking in a large commercial quantity of cannabis contrary to s 32(1) CSA any different to that prescribed by the 2000 Regulations as varied. If I am right in my view as to the construction of s 63(3) CSA the recommendations supporting the 2007 and 2009 variations of the 2000 Regulations equally supported the 2014 Regulations insofar as they prescribed cannabis as a controlled drug and the quantity of cannabis that constitutes a large commercial quantity, a commercial quantity and a trafficable quantity for the purposes of the CSA. The consequence is that even if the fresh evidence were received it would not assist the appellant.
In support of the fourth ground of appeal it was submitted that insofar as the 2014 Regulations prescribed cannabis as a controlled drug and the quantity of cannabis that constitutes a large commercial quantity, a commercial quantity and a trafficable quantity for the purposes of the CSA, the Minister did not first consult the Advisory Council as required by s 63(2). This argument was an adjunct to that advanced under the third ground of appeal in that if there was no recommendation there was no consultation. In my view the success of this ground of appeal is foreclosed by the outcome of the third ground. By that I mean that there being recommendations that support the 2014 Regulations as I have concluded, it cannot be contended that there was no consultation. Consultation may be considered to occur where the Advisory Council is advised of what the Minister proposes to do by regulation and is given a “reasonably ample and sufficient opportunity” to make known to the Minister its view or to point to problems or difficulties.[61] Where the Advisory Council makes a recommendation for the purposes of s 63(3), consultation necessarily occurs.
[61] Port Louis Corporation v Attorney-General (Mauritius) [1965] AC 1111 at 1124.
I agree with Peek J that Mr Pali’s appeal should be dismissed.
With respect to Mr Buckingham’s appeal, I agree with Peek J for the reasons he gives that the first ground of appeal is not made out. My reasons for concluding that the third and fourth grounds of appeal in Mr Pali’s appeal should be dismissed apply equally to the third and fourth grounds in Mr Buckingham’s appeal. I would dismiss Mr Buckingham’s appeal.
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