R v Tennant - [2010] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TENNANT
[2010] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
16 July 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCE - CANNABIS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERAL PRINCIPLES
STATUTES - SUBORDINATE LEGISLATION - CONSTRUCTION - PARTICULAR WORDS
Application by DPP for permission to appeal against a directed acquittal - respondent charged with trafficking in a large commercial quantity of a controlled drug namely cannabinoid - whether cannabinoid is the controlled drug referred to in the item in the Regulations - whether plant material in question was a controlled drug - whether non-dried cannabis an "analogue" or "a controlled drug contained in a mixture" - whether keeping and drying harvested cannabis plant material is to take part in the process of sale of a controlled drug - permission to appeal granted - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 352(1)(ab)(ii); Controlled Substances Act 1984 (SA) s 4(1), s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 12(4), s 12(4)(b), s 32, s 32(1), s 32(2), s 32(3), s 32(4), s 32(5), s 33, s 33(1), s 33(2), s 33(3), s 33B, s 33B(3), s 33B(4), s 33B(5), s 33C, s 33I, s 33I(1), s 33J, s 33K, s 33K(2), s 33L, s 33R; Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA); Controlled Substances (General) Regulations 2000 reg 5(1), reg 5(3), reg 6, referred to.
R v Vallelonga (2009) 105 SASR 21, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"cannabinoid", "dried plant material", "analogue", "mixture", "manufacture", "traffic", "cultivate a controlled plant"

R v TENNANT
[2010] SASCFC 2
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: The Director of Public Prosecutions (the DPP) has applied for permission to appeal against an acquittal directed by a District Court Judge. The entitlement to apply for permission to appeal is conferred by s 352(1)(ab)(ii) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The DPP presented an Information charging Mr Tennant with two offences. The second offence was a charge of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the CSA). The particulars were that on 19 February 2009 he trafficked in a large commercial quantity of a controlled drug, namely cannabinoid.
The charge was based on an allegation (not denied) that Mr Tennant was found to be in possession of about three kilograms of drying cannabis plant material. The charge reflects a provision in Schedule 1 to the Controlled Substances (General) Regulations 2000 (the Regulations) made under the CSA. That Schedule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tennant

Details

AGLC: R v Tennant [2010] SASCFC 2
Case: [2010] SASCFC 2
Decision Date: 16 July 2010

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) sought permission to appeal against a directed acquittal of the respondent, Mr. Tennant, who had been charged with trafficking in a large commercial quantity of a controlled drug, specifically cannabinoid. The central dispute revolved around the interpretation of the relevant legislation, particularly whether the plant material in question constituted a controlled drug as defined by the regulations, and whether it could be considered an "analogue" or a "controlled drug contained in a mixture." The case was heard by Doyle CJ, Duggan and David JJ.

The legal issues before the court were whether the term "cannabinoid" in the relevant schedule of the regulations referred to the chemical components of the cannabis plant or to the plant material itself, and consequently, whether the harvested and dried cannabis plant material constituted a controlled drug for the purposes of the trafficking offence. Further questions arose regarding whether the process of keeping and drying harvested cannabis plant material could be considered taking part in the process of sale of a controlled drug, and the implications of the weight of the material being measured after drying.

The court determined that the trial judge had erred in interpreting the relevant item in the regulations as referring solely to cannabinoid as a chemical component. Applying ordinary principles of statutory interpretation, the court held that the item should be read to encompass dried plant material, giving effect to all words within the provision and avoiding surplusage. The dash following "cannabinoid" was interpreted as introducing an explication of the term, meaning "cannabinoid in the form of dried plant material." However, despite finding this error, the court ultimately dismissed the DPP's appeal.

The court concluded that the case was not a suitable vehicle for definitively resolving the complex legal issues raised, including the meaning of "analogue" and "controlled drug in a mixture," due to uncertainties in the evidence presented. While permission to appeal was granted to address the arguable error in interpretation, the appeal was dismissed because the available evidence did not permit a full assessment of the interaction between the statutory concepts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Press’s submission faces the further difficulty of whether, even if these submissions were accepted, Mr Tennant could have been found guilty of an offence against s 32(1) or s 32(2), bearing in mind that the only evidence of weight is the evidence of the weight of the material when dried. The Judge was not asked to consider whether Mr Tennant was liable to conviction under s 32(3). The DPP accepted that a conviction for that offence could be obtained only by proceeding in the Magistrates Court. The Judge expressed no opinion on that submission and neither do I.Conclusions It is time to come back to the facts of the case. It is understandable that the DPP wishes to clear up the difficulties to which I have adverted. But this case is not a suitable vehicle for that. The correct interpretation of the relevant provisions involves, at the least, consideration of the meaning of an analogue, of a controlled drug in its pure form and of a controlled drug in a mixture. These are matters on which expert evidence might throw some light. The Judge erred in ruling that the controlled drug was a cannabinoid, and that what had to be proved was the weight of cannabinoid contained within the cannabis plant material. But the Judge cannot be said to have been wrong in ruling that the case before him was based on an allegation that on 19 February 2009 Mr Tennant was in possession of a controlled drug. Moreover, when the Judge made his ruling at the close of the prosecution case, he was confronted with the same lack of evidence as is this Court. Most of the arguments raised by Mr Press before this Court were not raised before the Judge, although there does not appear to be any unfairness to Mr Tennant in considering them now. The obstacles to ruling on them arise from the state of the evidence. There are too many uncertainties about this case for it to be a vehicle to decide the issues raised by Mr Press. I would grant permission to the DPP to appeal, but would dismiss the appeal. Inconvenient as it may be, the submissions on which the DPP relies should be resolved only when the Court has the benefit of evidence that will enable it to assess the interaction between the statutory concepts. DUGGAN J: I would grant permission to appeal but dismiss the appeal. I agree with the reasons of the Chief Justice. DAVID J: I would also grant permission to appeal but dismiss the appeal. I agree with the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

Some additional comments might help. By s 33B(4) an offence against s 33B(3) involving less than 20 plants is to be prosecuted in the Magistrates Court. But in the case of any offence against s 33B proof that the defendant cultivated 10 plants or more gives rise to a rebuttable presumption of an intention or belief concerning sale: s 33B(5). Similarly, in the case of offences involving trafficking in controlled drugs possession of a trafficable quantity of the drug gives rise to a like presumption: s 32(5). Finally, it is to be noted that if a person cultivates five plants or less, the maximum penalty for the cultivation is $500: s 33K(2). Similarly, mere possession of cannabis, cannabis resin or cannabis oil attracts a maximum penalty of only $500, substantially less than the maximum penalty for the possession of any other controlled drug: s 33L.Consideration of submissions I consider that the Judge erred in ruling that the relevant item in Part 1 of Schedule 1 (“the item”) is cannabinoid, namely a group of chemical components of the cannabis plant. 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. On the Judge’s approach all words in the item after “cannabinoid” are surplusage. If the item makes a cannabinoid a controlled drug, the words that follow are meaningless because the controlled drug is one of, or, the chemicals or chemical compounds that constitute a cannabinoid. It is not the plant material referred to. Also, as cannabinoids are distinctive of and unique to the cannabis plant, there was no need to refer to plant material and no point in doing so. A cannabinoid will necessarily be derived from cannabis plant material. Accordingly, the Judge’s approach is one that the Court should try to avoid. The approach that gives effect to all parts of the item is preferred. The dash after the word “cannabinoid” can without difficulty be read as meaning that what follows is an expansion of or explication of what precedes the dash. The item can be read as:Cannabinoid in the form of dried plant material … That is, cannabis plant material. This is not a strained reading of the item. Indeed, this is what the drafter has done with the two preceding items. Bearing in mind the statutory definitions, it would have been simpler if the drafter had simply said: “cannabis oil” and “cannabis resin”. The insertion of the dash was unnecessary and confusing, but again each item should be read as if the provision was “cannabis in the form of oil” and “cannabis in the form of resin”.