R v Perchard

[2022] NSWDC 373

District Court

New South Wales

Medium Neutral Citation:

R v Perchard [2022] NSWDC 373

Hearing dates:

18 August 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [56]

Legislation Cited:

Drug Misuse & Trafficking Act

Crimes Act

Crimes (Appeal and Review) Act 2001

Justice Legislation Amendment Act (No.2) 2018

Distress for Rent Act 1737

Hemp Industry Act

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Fox v Percy (2003) 214 CLR 118

Lunney v DPP [2021] NSWCA 186

Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1

Category:

Principal judgment

Parties:

Regina (Crown)
Perchard (Appellant)

Representation:

Gerrish Solicitor Advocate for the Director of Public Prosecutions

Francis Counsel for the Appellant

File Number(s):

2020/00145963

Publication restriction:

Unrestricted

 Decision under appeal 

Court or tribunal:

Ballina Local Court

Jurisdiction:

Local Court of NSW

Citation:

CRIME — Drug offences — Supply prohibited plant -  Is cannabis leaf in leaf form accepted to constitute a prohibited drug 

Date of Decision:

19 April 2022

Before:

Stafford, LCM

File Number(s):

2020/00145963

Introduction

1. Michael Alexis Perchard (“the appellant”) appeals his convictions before the Local Court at Byron Bay. The appellant was before that court facing a total of 20 charges. To two of them he pleaded guilty. For the other 18, the subject of this appeal, he pleaded not guilty. The parties have provided a convenient table of those charges, the plea entered and a very short form statement of what the relevant charge was. The 18 pleas of not guilty were to charges made up of 17 counts of supply prohibited drug in breach of s25(1) of the Drug Misuse & Trafficking Act (DMTA) and one count of dealing with proceeds of crime in breach of s193C(2) of the Crimes Act. The two pleas of guilty were in relation to cultivating a prohibited plant and of possessing a prohibited drug.

2. The point of difference between the 18 counts to which a plea of not guilty was entered and the 2 counts in respect of which there was a guilty plea is that the not guilty counts relate to cannabis seeds, with the allegation that the seeds in question were cannabis leaf by reason of definitions in the legislation.  The dealing with proceeds of crime charge stems from alleged proceeds of dealing with the cannabis seeds. In contrast the two guilty pleas were in respect of cannabis leaf in leaf form and did not involve seeds.

3. As will be detailed below the point being taken by the appellant is that whilst the cannabis leaf in leaf form was accepted to constitute a prohibited drug, it is argued the evidence did not establish that the seeds alleged to be cannabis seeds met the requirements of the legislation to be a prohibited drug.

Approach to section 18 appeal

4. The approach to take in respect to an appeal under section 18 of the Crimes (Appeal and Review) Act has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach I take is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

4.1.An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001.

4.2.The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

4.3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

4.4.The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

4.5.The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

5. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy.

6. I would also note that in Lunney v DPP it was further stated that the obligation to conduct the review of the evidence is qualified and shaped by the matters put in issue on the appeal.  As will be seen below the parties here have clearly articulated a specific issue which is really a question of statutory interpretation. There was no oral evidence before the Local Court magistrate.  No issue of credit arises and there is no advantage to the magistrate in having observed any witnesses.  The task of this Court is to consider the competing arguments, the documents and evidence and the legislative provisions and determine whether the magistrate’s decision was correct.

The issues

7. The parties have provided the Court with outlines of their submissions. The issue is well stated by the submissions in writing of the DPP at [3] which with some reformulation can be stated as follows:

Whether the prosecution has satisfied the onus it bears to prove beyond reasonable doubt that the cannabis seeds are a prohibited drug (issue 1); and

Whether the satisfaction of that onus requires the prosecution to prove the seeds in question did not fall within an exception contained in schedule 1 of the Drugs Misuse and Trafficking Act in respect of Tetrahydrocannabinol (“THC”), which is relevant for determining whether cannabis seeds are a prohibited drug (issue 2).

8. It is convenient to set out the full terms of that exception here::

Tetrahydrocannabinol and its alkyl homologues except--(a) where separately specified in this Schedule, or (b) in hemp seed oil, containing 50mg/kg or less of tetrahydrocannabinols, when labelled "Not for internal use" or "Not to be taken", or (c) in products for purposes other than internal human use containing 50 mg/kg or less of tetrahydrocannabinols, or (d) hemp seeds for human consumption containing 5mg/kg or less of tetrahydrocannabinols where the seeds have had their hulls removed and are non-viable, or (e) hemp seed oil for human consumption containing 10mg/kg or less of tetrahydrocannabinols, or (f) beverages made from hemp seeds if the beverage contains 0.2mg/kg or less of tetrahydrocannabinols.  (Underlining added)

9. A further issue was raised, which is perhaps no more than a reformulation of issue 1, as to whether in the event it was necessary for the prosecution to prove beyond reasonable doubt that the seeds in question did not fall within the exception, whether that had been satisfied by the tender of the section 43 certificates which were in evidence (issue 3).

The facts

10. There is no dispute about the circumstances of the police detecting the relevant seeds relevantly in the possession of the appellant. On 15 May 2020 police observed a person leaving the appellant’s premises. That person was stopped and searched and found to be carrying a box containing 16 express Post satchels which contained seeds that the police took to be cannabis seeds. It is the contents of these 16 satchels that found 16 of the 17 supply charges that are in issue. This was apparently on the basis of the appellant authorising or causing the supply of the cannabis leaf and thus falling under the extended definition of supply in section 3 of the DMTA.

11. The police then searched the appellants premises. In the course of the search the appellant arrived at the premises. The appellant was arrested for the supply of cannabis. He produced from his pocket a bag of cannabis leaf and also had $330 in his wallet. The bag of cannabis is the basis of the possess prohibited drug charge to which a plea of guilty was entered.  The $330 is the basis of the dealing with proceeds of crime charge, and it is accepted that money came from the sale of seeds of the same type said to be a prohibited drug. The search located 4 cannabis plants in what appeared to be a hydroponic setup which is the basis of the charge of cultivate prohibited plant to which the appellant pleaded guilty. The appellant showed police a number of packets of seeds in cupboards and said that the cannabis seeds were “like hemp seeds you know like, you can’t do anything with the seeds.  I can grow a few plants but test em thats all vegetative seedlings there’s no THC on those plants whatso man there all vegetable, its the same as hemp right, you can go and test em”.  The appellant also said “I sell them strictly on the basis that they are souvenirs for non germination purposes.  I don’t discuss germination with anybody, even customers, they are not for germination purposes.  What people do with them after they buy them, thats beyond my control”.  It is those seeds found in the cupboards that are the basis of the 17th supply charge.

12. The seeds in question were subjected to analysis and there was in evidence certificates under section 43 DMTA.  The certificates were all in the same terms and all certified that:

12.1. The seeds were examined;

12.2. By way of a table, containing a column headed “Prohibited Drug Identified” appeared either an entry of “none identified” or “cannabis leaf#”.  The marker “#” denotes a footnote, with the entry below the table referrable to that footnote stating:

# The item has been identified as cannabis seed/s. As per the Drug Misuse and Trafficking Act 1985 - Part 1 Section 3 the reporting of “cannabis leaf” includes ‘the achene and seed of any such plant’”.

13. The appeal was conducted, as was the Local Court hearing, on the basis that the description “cannabis leaf#” found in the certificate applied to all of the seeds the subject of the 17 supply charges.

The appellant’s argument

14. In the Local Court the appellant ran two arguments. One was that identified above covering the 3 issues in this appeal, and the other related to continuity in the chain of possession of the seeds. The second argument as to continuity is not relied on in this appeal.

15. The argument that is pressed requires reference to various parts of the DMTA and schedule 1 of that Act including amendments made to it by the Justice Legislation Amendment Act (No.2) 2018. It is also necessary to consider section 43 of the DMTA which provides for evidence by certificate. Such certificates were relied upon by the Crown in the present case and an issue arises as to just what is certified by those certificates.  

16.  In short the argument of the appellant is that the provisions of the legislation and regulations have the following effect:

16.1. The cannabis seeds in question do not fall within the definition in section 3 of the DMTA as being a substance specified in schedule 1 as a prohibited drug.  (It is important, when considering the s43 argument, to note here that the reference in section 3 to schedule 1 is found in the definition of “Prohibited Drug”, not in the definition of “cannabis leaf”); (bold added).

16.2. Section 3(1) of the DMTA commences with the words: “In this Act, except insofar as the context or subject matter otherwise indicates or requires” before then setting out the definitions.  The definition of prohibited drug is “any substance, other than a prohibited plant, specified in schedule 1”; (bold added).  The argument goes that when cannabis seed is said to be cannabis leaf, then in determining if that is a prohibited drug, the exceptions provided for in the schedule need to be taken into account.

16.3. The Justice Legislation Amendment Act (No.2) 2018 amended the definition of cannabis leaf in schedule 1.  Prior to the amendment, the entry in schedule 1 for cannabis leaf was simply “cannabis leaf”.  Thus prior to the amendment, establishing that seeds the subject of a charge were cannabis seeds would, by reason of section 3, establish the seeds were cannabis leaf, and thus, by reason of the definition of prohibited drug in section 3 and its reference to schedule 1, would be a prohibited drug because cannabis leaf, in the form of cannabis seeds, falls within schedule 1.  The amendment was to insert after the words “cannabis leaf”, “(excluding any exception listed under the matter relating to Tetrahydrocannabinol and its alkyl homologues)”.  The effect of this was that there was now the prospect of cannabis leaf (as defined by section 3) not being a prohibited drug, if it fell within the exclusion in the schedule.

16.4. Next the appellant refers to the entry for “tetrahydrocannabinol and is alkyl homologues”, found later in the schedule. That entry has been set out at [8] above. The underlined words of the above excerpt are relied on by the appellant. That entry means that an exception to THC being a prohibited drug, and thus by the exception, cannabis leaf, in this instance cannabis seeds, is “(c) in products for purposes other than internal human use containing 50 mg/kg or less of tetrahydrocannabinols”.

16.5. A live issue in this appeal is just what that exception means, specifically, whether the seeds in question are relevant “products”. 

16.6. The appellant submits that the exception to cannabis leaf created by the 2018 amendment has the effect that it then becomes an element of the offence for the Crown to prove beyond reasonable doubt that the seeds in question do not fall within that exception.

16.7.  In anticipation of an argument that it is for the appellant to take on the onus of making out the exception, the appellant relies on certain provisions in the DMTA where an onus is expressly placed upon an accused person. Specifically, section 40A

40A PROOF OF CERTAIN MATTERS

(1) The onus of proving that a substance is fibre of cannabis leaf from which the resin has been extracted shall lie on the accused.

(2) The onus of proving any act, matter or thing which is not rendered unlawful by virtue of section 10 (2), 11 (2), 12 (2), 13 (2), 14 (2), 23 (4) (b), 24 (4), 25 (4) or 35A shall lie on the accused.

16.8. Significantly the matter referred to in subsection 40A(1) is one of 3 matters which appear in section 3 as being excluded from the definition of cannabis leaf.  So that exclusion is clearly for an accused to establish; the onus lies on the accused.  Section 10(2) referred to in s40A(2) in effect makes it lawful for certain persons to possess a prohibited drug.  By section 40A the onus of establishing an accused comes within s10(2) rests on the accused. The other sections referred to in section 40A are of a similar nature.  The argument for the appellant is that section 40A is a recognition of the situation absent section 40A; that is but for section 40A it would be for the prosecutor to establish the exception did not apply.  Put another way as a matter of interpretation where the Act clearly provides for an accused to bear the onus for establishing exceptions in respect of some matters, the inference should be drawn that absent a provision placing the onus on the accused in respect of some other exception the position is that the onus remains on the prosecutor.

16.9. So far as concerns the section 43 certificates, the accused accepts the certificates are prima facie evidence that the seeds are indeed seeds of the cannabis plant.  The accused argues that the accused conceded the certificates were reliable in that regard does not mean that they are reliable in connection with matters that they are not under section 43 said to be certifying, which relevantly to this argument, is what the THC content of the seeds may be. The appellant argues there is no basis to make what in effect was an assumption made by the magistrate that the certificates should be taken to be certifying the seeds are a prohibited substance and that the certificates are evidence that all relevant matters to make out the offence are satisfied. To make good that argument section 43 and the contents of the certificates (which are all in the same terms) need to be considered.

Consideration

17. In addition to the argument laid out above, a number of other issues were raised and should be referred to.

18. The magistrate in their reasons expressed concern about the police being ambushed by the point being taken.  It was acknowledged by Mr Gerrish for the DPP that the issue of whether the seeds were a drug was raised, but not in specific terms as to purity or by being a product.  Yet as can be seen in the facts stated above at the time the appellant showed the police the packets of seeds in his premises he told them they had no THC content. Further, it was by asserted the accused without demur, that the issue of whether the seeds were prohibited drugs had been squarely raised prior to the day of hearing and that the Court had been so notified.  I accept, as appears to be almost common ground in any event, that the issue of whether the seeds in question were prohibited drugs was identified prior to the accused making his argument before the Magistrate, and no issue of “ambush” arises.  As a perhaps subsidiary argument that DPP submitted that it would be overly onerous on the prosecution if they needed to negative every one of the exceptions referred to in the legislation.  That argument is really another way of putting an argument in respect of issue 2 identified above, as to whether the onus to show the exception applies lies on the accused.

19. In respect of that argument:

19.1. The magistrate in her reasons expressly acknowledged the onus remained on the DPP; see at T8.03 where the magistrate stated “Without seeking to reverse the onus of proof, which remains always on the Crown”. 

19.2.  I accept that it is an element of the offence of supply that the DPP prove beyond reasonable doubt that the seeds are a prohibited drug.  Part of that requires showing the seeds do not fall within the exception.  So it is an element of the offence and accordingly it is a matter for the Crown to prove beyond reasonable doubt.  That this is the correct approach is supported by those provisions in the legislation where an onus is specifically placed upon an accused. That no such provision exists in relation to this exception strengthens the view that the onus remains on the Crown in respect of the exception. 

19.3.  I therefore accept the argument for the accused as set out at [16.6]-[16.8] above.  The Act provides where the onus lies on the accused, and it does not so provide in respect of the matter now in issue. It follows that the onus remains on the Crown, just as was recognised by the magistrate.  In order to be a prohibited drug it remains for the DPP to prove that the cannabis seeds meet the criteria as provided for by the legislation.

19.4. Whether or not the section 43 certificate satisfies this onus borne by the DPP is addressed below (issue 3). It is notable however that there is evidence in the DPP case of part of the exception being satisfied (if the argument as to the word product is ignored for the moment) in that the accused told the police the purpose of the seeds, as set out at [11] above. That purpose was, according to the accused “I sell them strictly on the basis that they are souvenirs for non germination purposes”.  That is a purpose other than internal human use.  That assertion, together with the identified issue of whether the seeds were a prohibited drug, allows for identification of the exception that the accused seeks to rely on.

20. The remaining issues are issue 1 and issue 3, which as noted above address the same point; that is, has the DPP satisfied the onus it bears, and is that onus satisfied by the section 43 certificate.  To succeed in showing the onus has been satisfied, it needs to be accepted that the exception does not apply because the seeds are not “products” within the meaning of that term in Schedule 1 in the entry for THC, and / or that the section 43 certificate has the effect of certifying that the seeds are a prohibited drug.

“Products”

21. The starting point then is the definition section of the DMTA which is section 3 and which defines a prohibited drug to be “any substance other than a prohibited plant specified in Schedule 1”.  Cannabis leaf is specified in Schedule 1 (but with the rider of the exclusion of the exception there stated), and so is therefore a prohibited drug should the exclusion not apply.  Further, cannabis leaf by its definition includes the seeds of the cannabis plant.  Thus the seeds, by reference to section 3 are a substance and a prohibited drug if not within the exclusion.

22. As the accused points out, s3 begins with an exception, that the definitions there set out are the definitions except so far as the context or subject matter otherwise indicates or requires. In my view, even without those opening words of s3 the words of the schedule make it expressly clear the exception needs to be taken into account. Section 3 requires consideration of Schedule 1. The entry for cannabis leaf is referred to at [16.3] above, which provides for the exclusion from what would otherwise fall within the schedule as cannabis leaf, "any exception listed under the matter relating to THC etc" found for the THC entry in Schedule 1. It is exception (c) underlined at [8] above that the accused relies on.

23. That exception has 3 parts: that it is “in products”; for purposes other than internal human use; and containing 50mg/kg or less of THC.  It would only require the DPP to negate one of these three parts for the exception to not apply.

24.  A difficulty in determining this appeal is interpreting this exclusion, or even trying to give it expression.  My attempt to incorporate the section 3 definition of cannabis leaf with the entries in Schedule 1 for cannabis leaf and THC results in the following:

“Cannabis leaf, which includes cannabis seeds, excluding in products for purposes other than internal human use containing 50mg/kg or less of THC”.

25. With all due respect to the legislative draftsperson, that cumulation of the provisions is difficult to comprehend.

26. Another attempt at stating with some degree of precision in relation to cannabis leaf what is a prohibited drug is :

“Excluded as a prohibited drug is cannabis leaf when used in a product which is not for human consumption and containing 50mg/kg or less of THC”

27. A point taken by the DPP is that the exception by the use of the word “products” is not referring to seeds.

28. Section 3 defines a prohibited drug as a substance specified in schedule 1; cannabis leaf, which by the section 3 definition includes cannabis seeds, is such a substance if the exclusion does not apply.  The exclusion being relied on by its terms refers to "in product".  That is, an exception to being a substance is if the substance “in products” etc.  It is in attempting to make sense of the wording of the exception that led to my proposed second interpretation above.

29. On one view it must therefore be either that a substance can be a product, or substance and product are the same thing, or the substance must be within the product.  It is this last interpretation that sits best with the second interpretation above, and with the DPP argument.

30. The DPP argument is that the exception applies where the substance, which is cannabis leaf as defined, is in product.  The accused asserts that the product is the cannabis seeds, yet in the language of the schedule, the seeds are a substance, and so the DPP argue, not, in terms of the schedule, a product.  The DPP argument is arguably flawed because if the accused argument is correct, then the substance, by the exclusion, ceases to be a substance and becomes a product.  

31. Just what the word “product” means as used in the exception could resolve the argument.  If product does not include seeds, then the accused’s argument fails.

32. In interpreting the exception, it should be borne in mind that the exception to THC applies to cannabis leaf, and that cannabis leaf is made up of not just cannabis leaf per se, and by the s3 definition cannabis seeds, but also by the s3 definition, any plant or part of a plant of the genus Cannabis by whatever name that plant or part may be called; this is as per s3, which continues “and includes the achene and seed of any such plant, but does not include”, cannabis oil, fibre from the plant, or any growing cannabis plant.  The exception in the schedule found at the THC entry thus applies to cannabis leaf, cannabis seeds, any plant of the genus Cannabis, and achene of the cannabis plant.  What the schedule excludes is any exception listed under the entry for THC, which includes, as relied on by the appellant, “except (c)  in products for purposes other than internal human use containing 50 mg/kg or less of THC”.  Assume for the purpose of argument that a non growing plant was found.  Logically, on the accused’s view, the accused argument could apply there also, which would involve saying that the non growing plant, if established by the s43 certificate to be cannabis, would also need to be proven BRD not to be a “product” for purposes other than internal human use, and containing less than the stated amount.  Whilst items of agriculture may be considered product, and indeed are often referred to as produce, the use of the word product in the schedule has about it the idea of if being something produced from the cannabis leaf, in whatever form, a view which again supports the second mooted interpretation above. 

33. The accused's approach to the interpretation of the word product was to rely on various dictionary definitions. By reference to the Australian Oxford dictionary this included the definition of “a thing or substance produced by natural process or manufacture”.  I note that was the only one of the three definitions found in that dictionary that was highlighted, which I take to mean to indicate the definition relied on. With respect that adds little to the debate because it gives the two possibilities here, namely something produced by a natural process such as seeds being grown or something produced by way of manufacture, for example some kind of cannabis based product produced from ingredients including seeds or a non-growing cannabis plant. If the second definition referring to manufacture is considered then the seeds would not be the product but rather the material going into the product which is the argument for the DPP.  On this view the seeds would not fall within the exception as they are not relevantly products.

34. The Australian legal dictionary was relied on which defined product, as highlighted by the accused, as “any tangible or intangible item of personal property other than a thing in action or money”.  I do not consider that very helpful; the word plainly needs to be interpreted by reference to its context and the purpose of the legislation and that definition is so broad that it would not logically follow that that is the meaning intended for the word being considered as it appears in Schedule 1.  Next relied on was Stroud’s Judicial Dictionary of words and phrases where the entry for “product” included, again as highlighted, “corn grass or other product growing on land” with there then being a reference to the Distress for Rent Act 1737.  I accept that the word “product” in certain circumstances includes reference to agricultural items. I do note however that last definition requires the product to be growing on land which is not the position of the seeds in question here.

35. Lastly, Black’s Law dictionary was relied upon with the highlighted section only being the word product and the whole of the definition being “something that is distributed commercially for use or consumption that is usu (I infer usually) (1) tangible personal property, (2) the result of fabrication or processing and (3) an item that has passed through a chain of commercial distribution before ultimate use or consumption”. The second of those options would plainly not include seeds.

36. In my view the fact that the word product can include seeds is not determinative of the argument.

37. The DPP argues that cannabis seed here is a substance and not a product.  A prohibited drug is by the definition of that term in section 3 a “substance”; the exception in the schedule uses the term “product”, which the DPP argues is something different.  I note “substance” itself is defined in section 3 as being “includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers”. That definition is inclusive, not exhaustive.  The accused relied particularly on the definition found in Blacks Dictionary.  There was no real argument by the accused addressing the choice of word “product” in the exception, when the seeds the accused seeks to bring within the exception are plainly a substance as that term is used in the DMTA, subject of course to the prospect that by coming within the exception what was a substance becomes a product.  That is strained interpretation of the words of the exception.

38. In other words the DPP argues cannabis seed does not fall within the exception found in Schedule 1 as it is not a product, which the DPP argues is something made from, or produced from, or which contains, the substance, and it is the substance which by s3 is the prohibited drug, subject to the exception of "in products".  The exception can be intelligently understood this way; the otherwise prohibited drug is not a prohibited drug if it is “in products” for purposes other for human consumption and is less than 50 mg/kg THC.  The word “in” is significant; the meaning contended for by the accused would more easily follow if some other word were used, such as “being”.  It is important to arrive at some cumulative statement of what is being excepted from the listed prohibited drug of cannabis leaf.  Two attempts have been made above, a third is:

Cannabis leaf, including cannabis seeds, is a prohibited drug, except in products for purposes other than internal human use containing 50 mg/kg or less of tetrahydrocannabinols.

39. In my view, as a matter of plain English, expressed that way the material (to adopt a neutral word) being referred to as a product is something beyond cannabis leaf, however described.

40. The DPP argument made reference to the Hemp Industry Act (HIA) of 2008 and the fact that “products'' containing low-level THC are not illegal in certain circumstances.  I note by section 5 of that Act licences may be granted for the cultivation or supply of low THC hemp for purposes including commercial production and use in any manufacturing process.  That provision shows that THC can legally be in a product of cultivation, or a product of manufacture.  Sadly it does not really advance the present debate.  The DPP argued that the exception was related to matters (or products) regulated by legislation such as the HIA.  There can be found in the DMTA and the HIA reference to the HIA and DMTA respectively; see eg in s3 DMTA for the definition of low THC hemp, and the note to s5 of the HIA.

41. The DPP also relied on part 3A of the DMTA and Part 3 of the regulations which sets out or makes reference to testing procedures in relation to substances.  Part 3A provides another example of the legislation referring to the prohibited drug as a substance, not a product.   

42. In the course of the debate as to what product means the accused also made reference to Hansard when the 2018 amending Bill was debated, but little more was said about it other than Parliament said little that would assist in this regard.  In preparing these reasons I read the Hansard entry, and read also clause 1.4.4 of the Australia New Zealand Food Standards Code, referred to in Hansard.  The parties were notified of that and copies of that material was provided and any further submissions were invited.  The accused counsel Ms Francis helpfully submitted, in short, that those materials were not on point. I accept that those materials do not aid the present debate.

43. The confusion in this debate arises from the fact that the exception to cannabis leaf in Schedule 1 is adopted from the exception to THC in Schedule 1.  THC is a separate prohibited drug, at least for the purposes of Schedule 1.  The accused argument depends really on reading the THC exception into cannabis leaf more than is permitted by the legislation.  That is, the cannabis leaf exception is not where the THC of the cannabis leaf is in some product, such as, the accused would argue, cannabis leaf; the exception adopted from the THC entry needs to be read in relation to cannabis leaf, so that the exception is where cannabis leaf is in products, not THC.

44. Read that way, the exception (c) for the THC entry reads "except (c) in products"; that is THC is a prohibited drug except when it is "in products" within the terms of the balance of the exception.  When adopted for cannabis leaf, cannabis leaf is a prohibited drug except when it, cannabis leaf, is "in products".  What brings cannabis leaf within the exception is when the cannabis leaf (including seeds) is "in products".  

45. This view is supported by the fact that if the exception was intended to be for cannabis leaf with a THC level of less than 50 mg/kg, it would have been a simple matter for the legislation to say exactly that. Notably, the next exception found for the entry for THC in the schedule, (set out in full at [8] above) takes that approach; exception (d) provides “hemp seeds for human consumption containing 5mg/kg or less of tetrahydrocannabinols where the seeds have had their hulls removed and are non-viable”. The reason exception (c) does not state “cannabis seeds” or “cannabis leaf”, is because that is not what is being excepted from being a prohibited drug; rather, what is being excepted is cannabis leaf (including seeds) in products other than for human consumption with a THC content of 50 mg/kg or less.

46. It follows that cannabis seeds do not fall within the exception.

Section 43 certificate

47. The above conclusion is enough to determine the appeal adversely to the appellant.  It is accepted that the section 43 certificate establishes that the seeds in question are cannabis seeds, and as the exception on the above interpretation does not apply, the seeds in question are a prohibited drug.

48. That said, in deference to the submissions of the parties, for completeness the following is offered, albeit obiter.

49. To determine this argument, which was whether, had the exception applied did the section 43 certificate establish that the cannabis seeds did not fall within the exception, the section 43 certificate requires interpretation.  The footnote to the table contained in the certificate identifying the prohibited drug as cannabis seeds has been set out above but it is convenient to set it about again as follows:

# The item has been identified as cannabis seed/s. As per the Drug Misuse and Trafficking Act 1985 - Part 1 Section 3 the reporting of “cannabis leaf” includes ‘the achene and seed of any such plant’”.

50. The reference in the certificate is to section 3. There is no reference in the certificate to the exception. The approach of the magistrate is to assume that because the certificate certifies that the seeds are of the cannabis plant it therefore falls within the definition with the assumption being that it does not fall within any of the exceptions. It was common ground that the certificate establishes that the seeds that were the subject of the charges are cannabis seeds.  It is also agreed that as they are cannabis seeds then as provided by section 3 they are cannabis leaf. 

51. This is not a case of some kind of application of a presumption of regularity whereby because the unchallenged certificate says something falls within section 3 it therefore means all exceptions are considered. It is important to remember where the onus lies. The way the certificate is presented leads me to have some doubt as to whether there has been any consideration of the exceptions.

52. The matter perhaps can be viewed in this way. The definition in section 3 provides if you like a collection of different items that all fall within the definition of cannabis leaf. That is not in dispute. But within that collection of items constituting cannabis leaf are also items that are later by definition excluded from being a prohibited drug. The certificate only takes the analysis to the step of establishing that the seeds are cannabis seeds and therefore cannabis leaf.  It is very significant that the definition of cannabis leaf in section 3 is of what constitutes cannabis leaf; it is not a definition of what constitutes a prohibited drug.  The definition of a prohibited drug contained in section 3 is any substance, other than a prohibited plant, specified in schedule 1, which is where the exception is found. The assertion, or certification, that the seeds are cannabis seeds shows that the section 3 definition of "cannabis leaf" is satisfied but it does not justify the label “prohibited drug”. The magistrate seems to have worked on the basis that because those words “Prohibited Drug Identified” appear on top of the column of the table set out in the certificate then that certifies the substance is a prohibited drug, including a certification that the substance does not fall within any exception.  That the certificate does not have this effect is clear when the words of section 43 are considered.  Section 43 itself does not speak of certification of a substance as a prohibited drug.  Rather section 43 provides that a certificate may be given of the result of analysis of any plant or substance and that the production of the certificate shall be prima facie evidence of the identity of the plant or substance and its quantity. By subsection 4 the relevant certificate in legal proceedings is prima facie evidence of those two matters i.e. the identity and quantity of the plant in question. The legislation does not give the certificate or the certifier the role of determining whether the substance in question is a prohibited drug.  The certificate is one piece of evidence which establishes on a prima facie basis that these are cannabis seeds and nothing more. That labels such as “prohibited drug identified” may be found on the form does not annex for the analyst greater jurisdiction of determining whether the seeds are prohibited drugs as opposed to determining the identity of the seeds and the quantity.

53. Had it been necessary to determine issue 3 identified above, it would have been determined that the section 43 certificate does not prove the seeds in question are a prohibited drug.

Conclusions

54. At the outset of these reasons three issues were identified.  There are determined as follows:

54.1. Issue 1: has the DPP satisfied the onus it bears? The onus to prove that the seeds are a prohibited drug rests on the Crown, including as an element of the offence that the seeds do not fall within the exception. That onus here has been satisfied given the determination of the statutory interpretation issue, that the exception does not apply to the seeds. Had the exception applied to the seeds, the onus would not have been satisfied based on the evidence before the magistrate. The discussion of whether the exception applies begins at [21] above, and is perhaps most succinctly stated at [43] - [45].

54.2. Issue 2: does satisfying the onus require showing the seeds in question do not fall within the exception.  No, for the reason that the determination of the statutory interpretation issue means that the exception does not apply to the seeds.

54.3. Issue 3; does the section 43 certificate prove that the seeds are a prohibited drug, ie that they did not fall within the exception.  Due to the determination of the statutory interpretation issue it was not necessary to determine this question, though as discussed above my view is that the certificate does not establish, had the exception applied, that the seeds do not come within it.  The certificate does not certify whether the substance is a prohibited drug, but certifies the matters set out at section 43(4).

55. In terms of the nature of this appeal, I have found the decision of the Magistrate is correct, but for different reasons.  In my view her Honour erred in her findings concerning the s43 Certificate for the reasons set out above.  Her Honour decided the issue of whether the seeds fell within the exception based on her view of the effect of the s43 Certificate, and so did not need to consider the interpretation point.  My determination of the interpretation point is that the exception does not apply to the cannabis seeds the subject of the charges.  It follows that it is enough for the s43 Certificate to certify that the items analysed are cannabis seeds, and as they do not fall within the exception on a proper interpretation of the DMTA and Schedule 1, they are a prohibited drug.

ORDERS

56. The conviction appeal is dismissed.

Decision last updated: 26 August 2022