R v Parisi
[2014] SASCFC 57
•6 June 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PARISI
[2014] SASCFC 57
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Bampton)
6 June 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCE - CANNABIS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - IN MINOR QUANTITIES OR FOR PERSONAL USE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - KNOWLEDGE AND INTENT - SOUTH AUSTRALIA
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Appeal against conviction for drug trafficking.
The appellant was convicted of trafficking in a “large commercial quantity” of cannabis contrary to s 32(1) of the Controlled Substances Act 1984. A search of his premises revealed prescribed hydroponic equipment and 11.99 kilograms of “slightly moist” cannabis, which he admitted to police he grew yearly for personal use. None of the usual indicia of active drug trafficking were located. At trial there was evidence that freshly harvested cannabis loses 75 per cent of its original weight upon air-drying, and the Judge proceeded on the basis that when determining whether the appellant intended to sell a “large commercial quantity”, the relevant weight was not less than two kilograms of the estimated air-dried weight rather than not less than two kilograms of the slightly moist weight (“the dried cannabis approach”). His Honour found the intention to sell a “large commercial quantity” proven because “the sheer quantity of cannabis found” in the appellant’s possession, which was estimated to weigh 2.99 kilograms when air-dried, was more than one person could consume over a year. The appellant appealed against conviction.
Held (Peek J, Sulan and Bampton JJ agreeing, allowing the appeal):
1. The Judge erred in adopting the dried cannabis approach. The prescribed weights of cannabis underpinning trafficking offences do not refer to cannabis in dried form. Accordingly, if a defendant possesses not less than two kilograms of cannabis which is not air-dried (“wet cannabis”) and is charged with trafficking in a “large commercial quantity”, two kilograms of the wet cannabis will constitute a “large commercial quantity”. It is sufficient to prove the defendant intended to sell not less than two kilograms of wet cannabis even though by the time of the intended sale its weight would have air-dried to less than two kilograms. The prosecution was therefore only required to prove that the appellant intended to sell not less than two kilograms of the 11.99 kilograms of wet cannabis seized. The likely weight of the cannabis when air-dried nevertheless remains relevant to proof of an intention to sell; the lesser the air-dried weight of the cannabis, the less likely it may be that there was an intention to sell.
2. If a “large commercial quantity” of cannabis greater than two kilograms is possessed, it is not necessary to prove an intention to sell the entire amount; proof of an intention to sell not less than two kilograms will suffice. However, proof the defendant intended to sell only an amount less than two kilograms is insufficient. Provided that the legal elements of “possession” are satisfied, the prosecution need not prove the defendant knew what the cannabis in his possession actually weighed or that two kilograms of cannabis constitutes a “large commercial quantity”. In the present case, it was sufficient for the prosecution to prove an intention to sell not less than two kilograms of the 11.99 kilograms of cannabis seized.
3. The phrase “does not include cannabis resin or cannabis oil” in the definition of “cannabis” under s 4 of the Controlled Substances Act 1984 does not mean that for a substance to be “cannabis” it must not contain any cannabis oil or cannabis resin. The word “include” is used in the sense that the defined substance “cannabis” does not include the separately defined substances “cannabis oil” or “cannabis resin”, which are characterised by reference to prescribed statutory concentrations of the active chemical ingredients of the drug. Accordingly, any weight attributable to cannabis oil or cannabis resin naturally present in a sample of “cannabis” is included in the weight of that sample.
4. The Judge erred in the way in which he embarked on a calculation as to the precise weight of dried cannabis one person could consume over one year, and in concluding, on the basis of unsafe assumptions concerning those calculations, that the appellant necessarily held an intention to sell a “large commercial quantity”.
5. It is impossible to say the appellant would inevitably have been convicted if a correct approach had been taken at trial with respect to the relevant law and consideration of the evidence. The appellant elected not to give evidence at trial on the understanding that the Judge would take the dried cannabis approach. Had the Judge not adopted this approach, the appellant may have elected to give evidence. In circumstances where serious errors of law occurred and a number of unsafe assumptions were adopted, the proviso cannot apply.
6. The appeal is allowed, the conviction and sentence imposed are set aside and a retrial of the Information is ordered.
Controlled Substances Act 1984 (SA) ss 4(1), 23, 31(1), 31(4), 32, 32(1), 32(2), 32(2a), 32(3), 32(5), 33(1), 33(2), 33(3), 33I, 33P, 45A; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) Reg 5, 6, 6(1), 6(2a), 6(3), 6(4a), 6(5), 6(7), 9B(2), Sch1, referred to.
R v Tennant (2010) 107 SASR 504, applied.
R v Scarpantoni (2013) 118 SASR 131, distinguished.
R v Parisi [2014] SADC 9, not followed.
R v Tennant (2010) 107 SASR 504, discussed.
Eubel v Martin (1992) 57 SASR 290, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"cannabis", "cannabis oil", "cannabis resin", "commercial quantity", "large commercial quantity","trafficable amount", "dry weight", "wet weight"
R v PARISI
[2014] SASCFC 57Court of Criminal Appeal: Sulan, Peek and Bampton JJ
SULAN J. I would allow the appeal and order a retrial. I agree with the reasons of Peek J.
PEEK J. Appeal against conviction for drug trafficking.
After a trial by Judge alone, the appellant was convicted of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (the Act). The Information was as follows:
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
Tony Parisi on the 25th day of July 2011 at Hillbank, knowingly trafficed in a large commercial quantity of a controlled drug, namely cannabis.
The evidence
On 25 July 2011, police officers attended at the appellant’s house at Hillbank pursuant to a general search warrant and were admitted by his wife. The appellant later opened a shed that had been partitioned into two rooms. A large amount of cannabis was spread out on the shelves (to be referred to as “the subject cannabis”). There was also present prescribed hydroponic equipment, including eight ballast boxes, eight light fittings, eight light globes and a carbon filter. Large black pots with root systems without plants were found but there was no evidence of waste material such as stems or leaves.
A water-pipe, two pipes and a small amount of dried cannabis in a small container were also found. None of the indicia of active drug trading often found by the police such as electronic scales; quantities of cash; evidence of luxurious living or a lifestyle exceeding the identifiable and known means of the appellant; surveillance or security equipment; lists of customers and outstanding debts; mobile phones; heat sealing machines, or supplies of plastic sealed bags were discovered.
Immediately after the search, a police officer interviewed the appellant who admitted that he was the occupier and that the subject cannabis and equipment belonged to him. He said that the cannabis was for “self use” and that he grew cannabis once a year for that purpose.
On 26 July 2011, police officers delivered the subject cannabis to the Forensic Science Centre. On 27 July 2011 it was analysed and weighed by Mr Webber, an analyst appointed under the the Act.[1] He formally certified that it was cannabis and that the total weight was then 11,963.0 grams (11.963 kilograms) and he described the cannabis as “slightly moist”; his certificate was admitted as exhibit P3. In a later statement admitted by consent at trial as exhibit P4, he stated that freshly harvested cannabis loses approximately 75 per cent of its original weight as moisture upon air drying and concluded that the minimum fixed air-dry weight of the cannabis would have been not less than 2990 grams (2.99 kilograms).
[1] Controlled Substances Act 1984, s 23.
In fairness to the prosecution, it should be noted that while a loss of about 75 per cent of weight from freshly harvested “wet” cannabis to fully air-dried cannabis may generally be accepted, the true weight loss likely to occur in a particular case will very much depend on how long after harvesting the cannabis is actually weighed. In the present case, the description by Mr Webber of the cannabis as “slightly moist” may well have indicated that part of the drying process had already occurred but the evidence was too vague to do other than assume a 75 per cent maximum reduction in favour of the appellant. At the re-trial, the evidence may be different in this respect.
The central issue – the dried cannabis approach
Mr Press, who appeared for the prosecution on the appeal (but not at trial), correctly conceded that it appears that the Judge proceeded on the basis that, for the purpose of considering whether the required intention of the appellant was proven, the relevant weight of the subject cannabis was the likely air-dry weight of 2990 grams as estimated by Mr Webber, and that the prosecution had to prove that the appellant intended to sell not less than two kilograms of the estimated air-dry weight of 2990 grams of cannabis or, in other words, two thirds of the postulated dry weight. This approach will be referred to as “the dried cannabis approach”. It is further accepted by the prosecution that the appellant conducted his case (including the making of his decision not to give evidence) on the basis that the Judge was adopting that approach.
On appeal, Mr Press contended that the dried cannabis approach was fundamentally incorrect as a matter of law. The matters of the correctness of the dried cannabis approach and the way in which the Judge approached the case generally are critical to the outcome of this appeal.
In order to consider these matters, I will first set out the legislative and regulatory provisions and also refer to a submission made at trial that the subject material here was not cannabis within the meaning of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (the Regulations).
The legislative and regulatory framework concerning cannabis
The legislative and regulatory framework concerning cannabis is not uncomplicated. Cannabis (unlike other substances) is defined in the Act itself. Section 4 provides:
cannabis means a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or cannabis oil;
cannabis oil means a substance that contains chemicals of any one or more of the following classes;
(a) cannabinoids;
(b) tetrahydrocannabinols;
(c) alkyl homologues of tetrahydrocannabinols,
where the amount of soluble material in any quantity of the substance, when dissolved in the solvent known as hexane, constitutes more than 85 per cent of the weight of that quantity of substance;
cannabis resin means a substance that contains chemicals of any one or more of the following classes:
(a) cannabinoids;
(b) tetrahydrocannabinols;
(c) alkyl homologues of tetrahydrocannabinols,
where the amount of soluble material in any quantity of the substance, when dissolved in the solvent known as hexane, constitutes more than 15 per cent but not more than 85 per cent of the weight of that quantity of substance;
The above definitions do not themselves declare cannabis to be a controlled drug. To this end, s 4 of the Act provides:
controlled drug means—
(a) a drug of dependence; or
(b) a substance declared by the regulations to be a controlled drug for the purposes of this Act; or
(c) an interim controlled drug,
but does not include a controlled plant;[2]
[2] Section 4 of the Act defines controlled plant as meaning “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) or any other plant declared by the regulations to be a controlled plant for the purposes of this Act”.
Regulation 5 provides that “controlled drugs” are those listed in Schedule 1. Regulation 6 and Schedule 1 of the Regulations deal with the particular weights of cannabis (expressed in kilograms and grams) that are to constitute a “large commercial quantity”, a “commercial quantity” and a “trafficable amount” of cannabis respectively. Relevantly, Regulation 6 provides:
6—Prescribed quantities of controlled drugs, controlled precursors and controlled plants
(1) For the purposes of the definition of large commercial quantity in section 4(1) of the Act, the quantity of a particular controlled drug or controlled plant prescribed as a large commercial quantity of the drug or plant in its pure form is—
(a)in the case of a controlled drug—the amount (if any) listed in the column headed “Large commercial (pure)” of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug; …
(2) For the purposes of the definition of large commercial quantity in section 4(1) of the Act, the quantity of a mixture containing a particular controlled drug or controlled precursor prescribed as a large commercial quantity for any mixture containing the drug or precursor is—
(a)in the case of a controlled drug—the amount (if any) listed in the column headed “Large commercial (mixed)” of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug; …
(3) For the purposes of the definition of commercial quantity in section 4(1) of the Act, the quantity of a particular controlled drug or controlled plant prescribed as a commercial quantity of the drug or plant in its pure form is—
(a)in the case of a controlled drug—the amount (if any) listed in the column headed “Commercial (pure)” of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug; …
(4) For the purposes of the definition of commercial quantity in section 4(1) of the Act, the quantity of a mixture containing a particular controlled drug or controlled precursor prescribed as a commercial quantity for any mixture containing the drug or precursor is—
(a)in the case of a controlled drug—the amount (if any) listed in the column headed “Commercial (mixed)” of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug; …
Schedule 1 to the Regulations in turn provides:
Large commercial (pure)
Large commercial (mixed)
Commercial (pure)
Commercial (mixed)
Trafficable (mixed)
kg
kg/DDUs
kg
kg/DDUs
g/DDUs
Cannabis - oil (other than hemp seed oil)
2kg
10kg
1kg
2kg
25g
Cannabis - resin
2kg
10kg
1kg
2kg
25g
Cannabis - plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin
2kg
12.5kg
1kg
2.5kg
250g
Schedule 1 performs three functions of relevance to this appeal. In the first column, it prescribes the substances that are “controlled drugs”. In the second to fifth columns, it prescribes amounts of controlled drugs for the purposes of s 32 of the Act.[3] In the sixth column, it prescribes “trafficable amounts” of controlled drugs for the purposes of s 32 of the Act.[4]
[3] Section 32 of the Act concerns trafficking.
[4] It is to be noted that the schedule only addresses “pure substances” rather than mixtures of the substances.
What is “cannabis” for the purposes of the present case?
Before proceeding further, I should address a contention made at length at trial by senior counsel (who also appeared on the appeal), that the material in possession of the appellant was not “cannabis” for the purposes of the Act. It was argued that even though the subject material admittedly comprised only material from cannabis plants, it was not “cannabis” within the meaning of the legislation; this was said to be because the definition includes the phrase “but does not include cannabis resin or cannabis oil” and the material here in fact did include some naturally occurring cannabis resin and/or cannabis oil.
Unsurprisingly, the Judge rejected this argument;[5] he was correct in doing so. While initially filing a ground of appeal raising this matter, counsel did not press this argument in this Court. Nor, however, did he acknowledge that it was wrong. Since this case must be retried (for reasons apparent below), the argument might resurface and it is best to deal with it now.
[5] R v Parisi [2014] SADC 9, [9].
As has been established in evidence in many cases, including the present,[6] cannabis resin and cannabis oil naturally occur in cannabis plants and have a much greater content of tetrahydrocannabinol (the active drug ingredient, THC) than is contained in the other parts of the cannabis plant. Accordingly, a substance which contains cannabis oil or cannabis resin in a more concentrated form than naturally appears in a growing or dried cannabis plant may be treated in different and in more serious ways than cannabis material simply taken from growing or dried cannabis plant.[7]
[6] A forensic scientist, Ms McKew, was called by the prosecution and gave evidence at T84-90.
[7] One obvious example of the differentiation between cannabis, cannabis resin and cannabis oil in the legislation and regulations is the prescription of lesser threshold amounts of “cannabis oil” and “cannabis resin” than “cannabis” for the purposes of evidentiary and sentencing consequences. This is evident in Schedule 1 of the Regulations reproduced above. Another example is found in the “Expiation of simple cannabis offences” regime enacted by s 45A of the Act. Here, Regulation 9B(2) provides:
(2) For the purposes of paragraph (b) of the definition of simple cannabis offence in section 45A(8) of the Act, the following quantities of cannabis, cannabis resin and cannabis oil are prescribed:
(a) in the case of cannabis – 100 grams;
(b) in the case of cannabis resin – 20 grams;
(c) in the case of cannabis oil – 0 millilitres.
As Doyle CJ noted in R v Tennant,[8] various aspects of the Act demonstrate that Parliament envisaged that cannabis and its derivatives would be declared as controlled drugs by regulations made pursuant to the Act. His Honour further stated:[9]
The item is to be interpreted according to the ordinary principles of statutory interpretation. A relevant principle is that a court should give effect to all parts of a statutory provision if it can do so consistently with the terms used and consistently with principles of statutory interpretation. In particular, a court will endeavour to avoid rendering a provision meaningless, or parts of a provision as mere surplusage. In the case of regulations it is also appropriate to have regard to the statutory provisions under which they are made, and to the context in which they are made.
[8] (2010) 107 SASR 504, 509. I would add to the aspects mentioned by his Honour, the very enactment of the definitions of cannabis, cannabis resin and cannabis oil in s 4 of the Act.
[9] (2010) 107 SASR 504, 510-511.
With reference to the present argument under consideration, the word “include” is not used in s 4 in the sense of “physically contain within” but rather in the sense that the defined substance (“cannabis”) is not to include differently defined substances (“cannabis oil” and “cannabis resin”) which are to be treated differently from cannabis. The couplets “cannabis oil” and “cannabis resin” in the s 4 definition of cannabis,[10] are to be read in the way in which those couplets are themselves respectively defined in their own s 4 definitions; namely, as substances quite different to “cannabis” and which must contain, in a prescribed range of concentration, one or more particular chemical(s) that have been extracted from the cannabis plant.
[10] “Does not include cannabis resin or cannabis oil”.
To be explicit, cannabis is regulated because people seek to ingest the drug THC which is principally found in the resin or oil contained within the cannabis plant. The words “does not include cannabis resin or cannabis oil” in the s 4 definition of “cannabis” cannot possibly mean that, for a substance to be cannabis, it must not contain any cannabis resin or cannabis oil. Rather, cannabis is defined as “a plant, or any part (including the seed) of a plant, of the genus cannabis” and any given sample of a cannabis plant may or may not contain naturally occurring resin or oil. To argue that the legislative or regulatory intention is to regulate cannabis usage by defining or restricting “cannabis” to substances that do not contain cannabis resin or cannabis oil beggars belief. The argument is not unduly “technical”, to use an overworked term; it is simply misconceived.[11]
Must weight attributable to the presence of cannabis oil or resin contained in a sample of cannabis be deducted from the weight of the sample?
[11] In Eubel v Martin (1992) 57 SASR 290, Bollen J observed (at 292): “It may seem then that the argument for the appellant is very “technical”. “Technical” is a word much ill-used by lawyers of any status. It is sometimes used to condemn an argument calling for strict interpretation of statutes, rules or contractual documents. That is an incorrect use of the word. But even if the word “technical” (despite my view to the contrary) be applied to the argument here that does not diminish the value of the argument. Long ago Lord Goddard LCJ said that there was nothing wrong with the taking of the most technical point in an effort to avoid conviction."
Although the appellant at trial took the position that the subject substance was not cannabis at all on the basis stated above, the Judge briefly alluded to a slightly more sophisticated potential argument. This was to the effect that although the subject substance was to be taken to be cannabis, it might be contended that under the Regulations, the weight attributable to the presence of cannabis oil or resin in the subject sample should be deducted from the gross weight of cannabis. The correctness of such an argument is obviously of potential importance to the determination of the threshold points of “large commercial quantity”, “commercial quantity” and “trafficable quantity” in Schedule 1 to the Regulations.
The Judge rejected any such argument.[12] I too consider that any such argument must be rejected, and for the following reasons.
[12] His Honour gave no reasons for doing so.
In Schedule 1 to the Regulations, the three relevant substances are dealt with in the order: “cannabis – oil (but not hemp oil)”; “cannabis – resin”, and “cannabis – plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin”. The descriptions of the first two substances (cannabis oil and cannabis resin) closely correspond to the respective statutory definitions in s 4 of the Act. While there may be a certain clumsiness of drafting of the regulation,[13] the reference to the third substance, “cannabis”, should also be interpreted by reference to the s 4 definition. Again, the words “not including” do not refer to naturally occurring oil or resin contained within a particular sample of cannabis but rather to substances which are appropriately dealt with under the immediately preceding, more serious categories “cannabis oil” and “cannabis resin”. Thus, it is again clear that the Regulations acknowledge that cannabis oil or resin may (or may not) be found in any given sample of cannabis; accordingly, any weight attributable to oil or resin naturally present in a sample of cannabis is to be included in the weight of the sample.
[13] Section 4 of the Act states “cannabis means a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or cannabis oil” whereas Schedule 1 of the Regulations states: “cannabis – plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin”.
The prosecution submissions concerning the dried cannabis approach
In supporting his major contention that the dried cannabis approach adopted by the Judge was wrong, Mr Press put two alternative submissions as to what is the correct approach. The first submission was that if a defendant possesses not less than two kilograms of cannabis and is charged with traffic[14] in a large commercial quantity of cannabis, the prosecution need only prove that he or she intended to sell any amount (no matter how small) of the cannabis in its original form. Mr Press argued that if that first submission was rejected, his second alternative submission should be accepted. This was that if a defendant possesses not less than two kilograms of cannabis in a “wet” state, and is charged with traffic[15] in a large commercial quantity of cannabis, the prosecution need only prove that he or she intended to sell not less than two kilograms of cannabis in a “wet” state even though he or she intended to sell it after it had dried to a much lesser weight.
[14] On the basis of possess intending to sell contrary to s 32 of the Act.
[15] On the basis of possess intending to sell.
I reject the first submission and accept the second. My reasons follow.
The first prosecution contention: a defendant’s intention to sell any part of two kilograms of cannabis in his possession will suffice
In considering the prosecution’s first submission, it is first necessary to have regard to the nature of the offence of trafficking contrary to s 32 of the Act. Section 32 of the Act creates four separate offences of trafficking, each with their own penalty regime. Three of the offences, s 32(1), s 32(2) and s 32(3), are differentiated by the quantity involved: “a large commercial quantity” (two kilograms of cannabis[16]); “a commercial quantity” (one kilogram of cannabis[17]) and any lesser amount. The fourth offence, s 32(2a), is differentiated by the locality of the commission of the offence.[18]
[16] Schedule 1 to the Regulations.
[17] Schedule 1 to the Regulations.
[18] “A person who, in a prescribed area, traffics in a controlled drug is guilty of an offence”.
By virtue of the definition in s 4(1) of the Act, a person may “traffic” in a controlled drug in three alternative ways: by selling the drug; by possessing the drug with the intention of selling it; or by taking part in the process of sale of the drug. It is the second of those alternatives that is presently under consideration.
Regulation 6 (reproduced above) provides that a large commercial quantity of cannabis (in its pure form) is two kilograms.
Thus the full charge here, when the ingredients referred to above are incorporated, must be read as follows: “Tony Parisi on the 25th day of July 2011 at Hillbank, knowingly possessed two kilograms of cannabis intending to sell it”.
The possession and the holding of the requisite further specific intent to sell must be contemporaneous, and the correct interpretation of the required intention is obvious and intractable. The word “it” in the phrase “intending to sell it” can only mean the two kilograms of cannabis of which the defendant is then in possession and should not be read as if the Parliament had used the different words “any of it”.
I am of the view that the above matters standing alone are determinative of the matter; however, in view of Mr Press’ earnest submissions I will add the following. Mr Press seeks to rely on the recent decision of this Court in R v Scarpantoni[19] which concerned a charge of manufacturing a large commercial quantity of a controlled drug contrary to s 33 of the Act. However, I emphasise that the words in s 33 are “intending to sell any of it”[20] and not the quite different words of s 32, namely, “with the intention of selling it”.
[19] (2013) 118 SASR 131.
[20] Section 33(1), (2) and (3).
Sections 32 and 33 do have in common that they each involve two separate inquiries. The first inquiry concerns the matters of actus reus and general intention. The second inquiry concerns the matter of a further specific intention as to sale. In the present case, the actus reus is the possession of a large commercial quantity of cannabis on 25 July 2011 and the general intention is simply the intention to possess. Those matters were always admitted here and it was only the second inquiry, concerning the further specific intention as to sale, that has been in dispute. However, in Scarpantoni, it was the first inquiry as to the actus reus (and more particularly the general intention accompanying it), that was under consideration. It was contended in Scarpantoni that the prosecution were required to prove “that the defendant knew that he was intending to manufacture a large commercial quantity of the drug”.[21] It was in this context that the Court found s 33P of the Act to be applicable. It provides:
[21] (2013) 118 SASR 131, 135 [13] (Kourakis CJ and Sulan J).
33P—Knowledge or recklessness with respect to identity or quantity
(1) In any proceedings against a person for an offence against this Part relating to a controlled substance, the prosecution must establish that the person knew, or was reckless with respect to, the fact that the substance was or was to be a controlled substance.
(2) The prosecution need not establish that the person knew, or was reckless with respect to, the particular identity of the controlled substance.
It is clear on its face that this section is only relevant to what I have termed the general intent aspect of the first inquiry. Importantly, it has no relevance to the second inquiry, the further specific intention as to sale. In Scarpantoni, that aspect was addressed by the words in s 31(1) “intending to sell any of it” and by the reverse onus provision in s 31(4) that applied in that case.[22]
[22] There was no lacuna in the circumstances of Scarpantoni as there is in the present case.
Conclusion as to the first prosecution contention
I therefore conclude that on a charge of trafficking in a large commercial quantity contrary to s 32(1) of the Act, it is necessary for the prosecution to prove that the defendant actually intended to sell[23] not less than two kilograms of the amount of cannabis in his or her possession. However, two important matters should be emphasised.
[23] “Sell” is defined broadly at s 4(1) to mean: sell, barter or exchange, offer or agree to sell, barter or exchange or expose for sale, barter or exchange.
First, when a defendant is in possession of a large commercial quantity of cannabis, the amount will usually be greater than the exact weight of two kilograms, of course by a varying margin. In such cases, proof of an intention to sell an amount of cannabis that in fact weighs not less than two kilograms (rather than the total amount, however much greater than two kilograms) will suffice. In the present case, it sufficed to prove an intention to sell not less than an amount of cannabis that in fact weighed not less than two kilograms of the total 11.99 kilograms of the cannabis. In practical terms,[24] such an intention would be established here by a finding that at the time of his possession the appellant intended to sell not less than one sixth of the total “wet” cannabis in his possession immediately prior to police intervention.
[24] There is a slight rounding in favour of the appellant.
Second, provided that the required elements of possession are proven, the prosecution need not prove that the defendant knew what the cannabis in his possession actually weighed or that a weight of two kilograms of cannabis constitutes a “large commercial quantity”.
The second prosecution contention: the dried cannabis approach is incorrect
The second, alternative, prosecution submission was that if a defendant possesses not less than two kilograms of cannabis in less than a fully air-dried state (“wet cannabis”[25]), and is charged with traffic[26] in a large commercial quantity of cannabis, the wet weight of the cannabis will constitute “a large commercial quantity”, even though the defendant intended to sell the cannabis only after it had dried to a lesser weight. Mr Press submits that the dried cannabis approach adopted by his Honour was therefore incorrect.
[25] This term is used to connote cannabis that is in any way less than completely air dried.
[26] On the basis of possession of cannabis intending to sell it.
Schedule 1 to the Regulations
Well prior to the actual decision in R v Tennant[27] being handed down by the Court of Criminal Appeal,[28] points had been taken or reserved in a number of cases as to the then included word “dried” in the reference to cannabis in Schedule 1 to the Regulations. As Tennant was later to confirm, the inclusion of the word “dried” meant that harvested cannabis plants which had not yet been dried were not within the words of the Regulations. Accordingly, the Regulations were amended as from 10 September 2009 by simply deleting the word “dried”.
[27] (2010) 107 SASR 504.
[28] The judgment in Tennant was handed down on 16 July 2010.
However, the true effect of the word “dried” had been more broad ranging. Not only did it form a necessary part of the definition of what “cannabis” was for the purposes of the Regulations (as explained above) but it also bore directly on the meaning and practical effect of the important weight prescriptions in relation to statutorily defined quantities: “large commercial quantity”;[29] “commercial quantity”;[30] and “trafficable quantity”.[31] When cannabis was required to be dried cannabis, the necessary meaning of the prescriptive weights was that such weights were to be of dry cannabis. However, with the deletion of the word “dried”, the position has become that any specified minimum weight in Schedule 1 will be taken to be the actual weight of the cannabis (even if “wet”) at the time of possession, as distinct from a forecasted lesser weight due to air-drying.[32]
[29] Section 4; Regulation 6(1)-(2a).
[30] Section 4; Regulation 6(3)-(4a).
[31] Section 4; Regulation 6(5)-(7).
[32] This amendment may well result in unintended harsh or capricious results. As examples, two kilograms of “wet” cannabis seized immediately after its harvesting will give rise to a s 32(1) charge of “traffic in a large commercial quantity of a controlled drug” (maximum penalty of $500, 000 or imprisonment for life, or both) whereas if the same cannabis were seized after it had air dried, the weight might then be only about 500 grams, which could only give rise to a charge of “traffic in a controlled drug” (s 32(3) - maximum penalty for a basic offence of $50, 000 or imprisonment for 10 years, or both). Similarly, one kilogram of “wet” cannabis seized immediately after its harvesting will give rise to a s 32(2) charge of “traffic in a commercial quantity of a controlled drug” (maximum penalty for a basic offence of $200,000 or imprisonment for 25 years, or both) whereas if the same cannabis were seized after it had air dried, the weight then might be only about 250 grams which amount (in the absence of indicia of drug trafficking or other evidence) might well be regarded as marginal evidence of an intention to sell rather than to consume.
Accordingly, it is now the position that when a defendant in possession of two kilograms of cannabis in a wet state is charged with trafficking in a large commercial quantity of cannabis in that he had “possession of the drug intending to sell it”, it is sufficient to prove that he then intended to sell that two kilograms of “wet” cannabis even though he knew that the air-dried weight of that cannabis would diminish to less than two kilograms by the time of the intended sale.
Therefore, in the circumstances of the present case, the prosecution was only required to prove that as at 25 July 2011, the appellant intended to sell two kilograms of the 11.963 kilograms seized on that day by police. In practical terms,[33] such an intention would be established by a finding that he intended to sell at least one sixth of the cannabis in his possession at that time.
The continuing relevance and importance of evidence that cannabis loses up to about 75 per cent of its “wet” weight once air-dried
[33] There is a slight rounding in favour of the appellant.
However, the above conclusion does not mean that the evidence customarily given, including in the present case, that cannabis loses up to about 75 per cent of its weight from harvesting to a fully dried state is of no relevance or importance. I agree with this statement in the prosecution outline of argument:
This is not to say that the ultimate weight of the cannabis is irrelevant. The amount of cannabis any defendant will derive from their criminal pursuit will be relevant to whether the prosecution has proved an intention to sell. For example a defendant located with 1 kilogram of cannabis that has just been harvested would eventually derive approximately 250 grams of cannabis that is dried/usable. Such an amount may result in the tribunal of fact having a reasonable doubt about whether the defendant has an intention to sell the 1 kilogram in his possession. The smaller the eventual weight of the cannabis the less likely it may be that the prosecution can exclude as a reasonable possibility that the cannabis is intended for personal use (or some other lesser offence).[34]
[34] It is to be emphasised that drying rates and consumption rates of cannabis by heavy users are not a matter of judicial knowledge. It is therefore necessary for the solicitors for a defendant who wishes to mount an argument of the type above to ensure that there will be sufficient evidence before the Court.
Thus, if the tribunal of fact considers it possible that the appellant had intended to completely dry the subject cannabis,[35] knowing that the original amount 11.963 kilograms of cannabis would reduce to about three kilograms, then regard may be had to evidence as to the lesser weight to which wet cannabis may reduce, and to the likelihood (or unlikelihood) of intended personal use of that quantity of dried cannabis. Thus, in the present case, if the 11.963 kilograms of wet cannabis would reduce to about three kilograms, then the two kilograms of wet cannabis sufficient to constitute a “large commercial quantity” (being part of the original 11.963 kilograms) would reduce to about 500 grams.
[35] The way in which the cannabis was discovered strongly suggests that this was the intention of the defendant.
Conclusion as to the “dried cannabis approach”
For the above reasons, Mr Press is correct in his contention that the Judge erred in adopting “the dried cannabis approach”. This is clearly confirmed by the fact that the Judge approached the case on the basis that the prosecution had to prove that the appellant intended to sell two kilograms of dried cannabis (amounting to two thirds of the notional dry weight) whereas the correct position was that the prosecution only had to prove that the appellant intended to sell two kilograms of wet cannabis, which would equate to only about 500 grams (or about one sixth), of the total dried weight. The submission that the Judge approached the case in a way that was too favourable to the appellant is therefore also correct.
However, the effect of the appellant’s submissions is that the Judge erred in his approach to the case in other additional ways such that one cannot be confident that it was inevitable that a conviction would have resulted if his Honour had taken the correct approach. I consider that this complaint by the appellant must be upheld and the appeal allowed. My reasons follow.
Lack of adequate reasons or patent error of approach?
After referring to some of the facts, the Judge stated:
I have directed myself that the accused is presumed innocent unless and until the prosecution has proved each element of the offence beyond reasonable doubt. The accused is not obliged to say, do, or prove anything. He chose not to give evidence. He was entitled to do so and I have not drawn any inference adverse to him from his exercise of that right. He gave an explanation to police for his conduct, namely, that he grew the cannabis for his own use. I have rejected that explanation but my rejection of it is not a basis for conviction. The question always remains: has the prosecution proved each element of the offence beyond reasonable doubt?
On the issue of onus of proof I add this: the prescribed quantity of pure cannabis for a large commercial quantity is two kilograms but there is no prescribed amount for a trafficable quantity of pure cannabis in the Regulations. Accordingly, there is no “deeming provision” and no onus on the accused by way of an aid to proof for the prosecution.
Elements of the offence
To prove its case the prosecution must prove:
1 that the substance is cannabis;
2 that cannabis is a controlled drug;
3 that the accused possessed the drug;
4 that the quantity he intended to sell was a large commercial quantity.
(Emphasis added)
This passage is unfortunate in two respects. First, the Judge’s statement “I have rejected that explanation … (of personal use)” is puzzling because, prior to that point, his Honour had in fact said nothing at all (in his reasons or on the trial transcript) about rejecting the appellant’s explanation. Second, although his Honour apparently had found that the appellant’s explanation was to be rejected, and that an intention by him to sell a large commercial quantity existed, his Honour up to this point in his judgment had given no reasons at all for such findings.
Understandably, the appellant seeks to rely on these matters as being evocative of findings made without sufficient reasons being given. However, the judgment proceeds to disclose that his Honour positively considered that the sheer quantity of the cannabis, together with the calculations that he purported to make, was his reason for finding the charge proven. In my view, the case is one of patent error of approach rather than undisclosed error necessitating recourse to absence of reasons.
The dried cannabis approach and the Judge’s calculations
The Judge concluded his judgment with the following short passage:
I am also satisfied beyond reasonable doubt that the prosecution has proved that the accused intended to sell not less than two kilograms of the cannabis. In reaching that conclusion I have not overlooked the fact that a “bong” and parts of the type used for smoking cannabis were found in a cupboard in the shed. Nor have I overlooked the fact that none of the usual paraphernalia of the drug dealer (such as scales, J-bags, tick lists and mobile telephones) were found. The sheer quantity of the cannabis found satisfies me of the accused’s intention to sell. The unchallenged evidence of Detective Brevet Sergeant Klingberg was that the cannabis was worth between $13,860 and $21,780. There was enough to produce nearly 150,000 (sic) “cones” for a smoker or between some 4,000 and 6,000 “joints”. I have no doubt that the amount of cannabis in the accused’s possession was way out of the range that a user would have produced for personal use. I am satisfied beyond reasonable doubt that the accused intended to sell not less than two kilograms of the cannabis.[36] (Emphasis added)
[36] The Judge’s computations based on the amount of 2.99 kilograms of dried cannabis confirms that his Honour’s concluding words “intended to sell not less than two kilograms of the cannabis” did indeed mean two kilograms of the amount of 2.99 kilograms of dried cannabis.
These are the only reasons given by his Honour, both for rejecting the appellant’s explanation and for finding that he intended to sell a large commercial quantity. They are really limited to the proposition that “The sheer quantity of the cannabis found satisfies me of the accused’s intention to sell”.
It is to be noted that the appellant immediately stated to the police that he grew cannabis once a year for “self use” and that various items suitable for that purpose (including two cannabis style pipes, a water hookah and cigarette papers) were found at the scene.
The Judge attempted to calculate the rate at which the appellant would have to consume the amount of 2.99 kilograms of dried cannabis over the period of one year following his arrest[37] if his possession of the seized 11.963 kilograms of “wet” cannabis were to be justified as having been for “self use”. In doing so, his Honour made a number of serious errors.
[37] The period of one year is derived from the claim of the appellant that he grew one crop per year, with the next crop being due about one year from his arrest just after harvesting the current crop.
The Judge was inconsistent at the outset in formulating the question under the dried cannabis approach as being whether the appellant was able to smoke the whole of the 2.99 kilograms of dried cannabis[38] over the period of one year. If one were to reason consistently with the (incorrect) dried cannabis approach, the relevant amount to be considered would not have been the whole of the 2.99 kilograms of dried cannabis but rather only about one kilogram of dried cannabis. (This is because if the appellant smoked one kilogram, then only 1.99 kilograms would remain for sale, which would not amount to “a large commercial quantity”.[39])
[38] That “the sheer quantity” to which his Honour refers is the whole 2.99 kg of cannabis is clear. His Honour’s finding that “the cannabis was worth between $13,860 and $21,780” is undoubtedly derived from Klingberg’s figures that one pound of flowering head (approx 454 grams) was worth in the range of $2,100 to $3,300; for the weight of 2.99kg, the range is almost exactly his Honour’s range of between $13,860 and $21,780. Further, his Honour’s computation of “nearly 15,000 cones” (erroneously stated as “nearly 150,000 cones” but later corrected to 15,000) is also obviously based on the whole amount of 2.99kg.
[39] Similarly, if he smoked two kilograms, that would only leave 0.99 kilogram for sale which (on the approach his Honour took) would not amount to a commercial quantity either.
Superimposed on the above shaky foundation is the fact that the Judge further erred in adopting a number of doubtful assumptions. As an overarching matter, the Judge assumed that one could make calculations on the basis of a solid foundation of certain definite figures (namely: a precise weight of dried cannabis; to be consumed by one person; over the definite period of exactly one year). He further assumed that, having come to a minimum rate of consumption on the basis of those figures, one could simply conclude that the appellant could not have had an intention to consume at such a high rate and therefore must have intended to sell the cannabis. Unsafe assumptions (partly in explication of the above and partly standing alone) include the following.
First, it was assumed that, as at 25 July 2011, the appellant intended to consume every bit of the dried cannabis over the exact one year period. This was a doubtful assumption in that a heavy smoker with a practice of growing only one crop of cannabis per year is highly likely to err on the side of producing too much cannabis rather than too little, lest he run out of his drug.
Second, it was assumed that the appellant intended that none of the cannabis would be discarded on the basis of inadequate quality. However, there is virtually no evidence here as to the quality of the cannabis or, more particularly, the uniformity of the quality. It may well be that an experienced smoker who had a plentiful amount of cannabis would only intend to use the very best of cannabis and to discard a good deal of the more marginal material. Another possibility is that he might have intended to give away greater or lesser amounts of poorer quality cannabis over that period to fellow smokers. Possession of cannabis with that latter intention might constitute a different offence but it would not come within the definition of the more serious offence of trafficking.[40]
[40] Section 33I(2)(b) of the Act provides that a person who has possession of cannabis intending to supply it to another person is guilty of an offence, the maximum penalty being $2,000 or imprisonment for two years, or both.
Third, it was assumed that the appellant intended that all of the predicated amount would be consumed by him alone. However, one simply does not know how many smokers the appellant might have contemplated as being possibly involved in consuming the cannabis over the one year period. Although the appellant used the rather quaint term “self use”, the onus was not on him[41] to prove that he intended to smoke any particular amount, or that he alone would be doing all the smoking. It is to be noted that the appellant was apparently not living alone at the premises (his wife admitted the police when they served a general search warrant) and the evidence is silent as to who else may have lived there or how many friends may have been accustomed to going there for the purpose of smoking cannabis.
[41] I address the serendipitous non-application of the reverse onus provision in this case below.
Conclusion as to the disposition of the appeal
Mr Press correctly conceded that the trial Judge must apply the law correctly, regardless of any concession made by the prosecution or defence, and that errors such as the adoption of the incorrect dried cannabis approach are serious errors of law; thus, the appeal must be allowed unless the proviso can apply.
I consider that serious errors in the course of the trial, including the major error of law as to the incorrect dried cannabis approach and a number of unsafe assumption being adopted, have been established.
As to the application of the proviso, it was submitted by counsel for the appellant on the appeal that the appellant at trial had made his decision not to give evidence on the basis that the Judge would adopt the dried cannabis approach and that his Honour would adopt a line of reasoning consistent with that approach. His position on the appeal was that if he had known at trial that a different approach would be taken to an assessment of his intention as at 25 July 2011, he may have elected to give evidence. Mr Press rightly conceded that this matter has to be seriously considered when considering whether the proviso can be applied here.
I consider that it is impossible to say that the appellant would inevitably be convicted if a correct approach is taken in relation to both the interpretation of the relevant law and the consideration of the evidence. In all of the circumstances, this is not a case for the application of the proviso.
A final word
For many years now, it has been common place, both here and in other jurisdictions, for drug legislation to provide that once a person is proven to be in knowing possession of a certain amount of an illicit drug, it will be presumed, in the absence of proof to the contrary, that they had a certain intention, such as selling that drug. Thus s 32(5) of the Act provides:
(5)If, in any proceedings for an offence against subsection (1), (2) 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.
(Emphasis added)
“Trafficable quantities” of particular controlled drugs may be prescribed by the Regulations; a certain weight is to be prescribed in relation to a “pure” controlled drug and a higher weight in relation to “mixtures” containing that particular controlled drug (which is thus present in an “impure” form).
However, it has been apparent to the Court for some time that there is a serious defect in the Regulations in that while they specify a “trafficable amount” of 250 grams for a mixture containing cannabis, they glaringly fail to specify any trafficable amount for “pure” cannabis. In the present case, the appellant had in his possession cannabis in the “pure” form but in the absence of a specification of a particular “trafficable amount” for pure cannabis, the reverse onus provision cannot be engaged.
I emphasise that this is a glaring omission; why it has not been attended to is not a matter of public record. No amendment by Parliament is required; what is required is an appropriately drawn amending Regulation.
Orders
As to the question of whether there should be an order for judgment of acquittal or a re-trial, counsel for the appellant made no submission that there should be anything other than a re-trial and argued the appeal on the basis that that would be the appropriate order. In all the circumstances, I consider that there should be a re-trial. I propose the following orders:
1Allow the appeal.
2Set aside the conviction.
3Set aside the sentence imposed.
4 A re-trial of the Information be held
BAMPTON J: I would allow the appeal. I agree with the reasons of Peek J and the orders he proposes.
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