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 declares controlled drugs. The relevant provision was:
Cannabinoid – dried plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin.
The Judge ruled that the controlled drug declared by this provision was cannabinoid (a chemical component of the cannabis plant). There was no evidence as to the quantity or weight of cannabinoid in Mr Tennant’s possession, and so possession of a traffickable quantity of a controlled drug (defined in the Schedule by reference to weight) was not and could not be established. Accordingly, there was no case to answer. The Judge also ruled that if he was wrong, and cannabis plant material was the controlled drug under this part of the Schedule, it was “dried plant material …” that was declared a controlled drug, and as the plant material in question was drying but not dried, that was another reason why the prosecution could not succeed.
The Judge rejected a submission by the DPP that it was open to the jury to convict on the basis that Mr Tennant was in the process of drying plant material; in due course that material would have dried; on 19 February 2009 Mr Tennant was taking part in the process of sale (as defined) of a controlled drug (the dried plant material once it was dried); this fell within the definition of “traffic” in the CSA, and so he could be found guilty. The Judge said that the charge was based on possession of the controlled drug on 19 February 2009, not on taking part over a period of time in a process that would result in the existence of the controlled drug.
For those reasons the Judge directed a verdict of not guilty. The trial proceeded on the first count, and Mr Tennant was convicted.
The DPP challenges these rulings by the Judge.
The DPP’s submissions raise some difficult questions of statutory interpretation. The Schedule in question was amended from 10 September 2009. The relevant provision now refers to “cannabis” rather than to “cannabinoid”, and the word “dried” has been omitted. As the primary issues argued in this case will not arise again, it occurred to me that this might not be a fit case for a grant of permission to appeal against a directed acquittal. However, Mr Press, counsel for the DPP, informed the Court that there are about 20 cases in the wings which turn on the proper interpretation of the Schedule as it was before 10 September 2009. In the circumstances, it is appropriate to grant permission to appeal.
It should be noted that those reasons are based on the CSA and the Regulations as they stood between 3 December 2007 and 9 September 2009 (inclusive).
The Legislation
Substantial amendments to were made to the CSA by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA). By a transitional provision the amendments that it effected apply only in relation to an offence committed after 3 December 2007.
In s 4(1) the CSA defines “cannabis” as follows:
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.
This definition is followed by a definition of “cannabis oil” and a definition of “cannabis resin”. These are substances that contain any one of certain specified chemicals, one of which (in each case) is “cannabinoids”.
Expert evidence before the Judge from Ms McKew was to the effect that “cannabinoid” is a generic term for a group of chemical compounds that are found in the cannabis plant, and that are unique to cannabis. Chemical analysis of a cannabis plant will identify cannabinoids within the plant, and the presence of cannabinoid is something that enables one to identify the plant as cannabis. There are, of course, other ways of identifying the cannabis plant. Cannabis oil and cannabis resin are produced by extracting those materials from plant material. Freshly harvested cannabis plant material can lose up to about 75% of its weight if allowed to air-dry. The residual moisture will be removed only by applying heat, as in an oven.
Ms McKew also gave evidence of the weight of the plant material found in Mr Tennant’s possession. It was presented to her in a number of different packages. In all it weighed 3718.5 g. She described it as dry: [T46]. However, she weighed the material on 12 March 2009. She agreed that she could not say whether the cannabis was moist or dry when seized on 19 February 2009: [T54]. However, the effect of the evidence is that the cannabis was not dried when seized, and had dried between 19 February 2009 and 12 March 2009.
That was the limit of the relevant expert evidence.
There was no evidence of the weight of the plant material on 19 February 2009. All one could say is that it must have been more than the weight on 12 March 2009.
I now summarise how the CSA and the Regulations deal with what I will call “cannabis offences”.
The CSA defines a controlled drug as follows:
(a) a drug of dependence; or
(b)a substance declared by the regulations to be a controlled drug for the purposes of this Act,
but does not include a controlled plant.
The CSA defines “controlled plant” as follows in s 4(1):
controlled plant means 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.
Section 12(4) of the CSA gives the Governor power by regulation to declare a substance to be a controlled drug.
Having distinguished between a controlled drug and a controlled plant, the CSA then creates offences under the headings of “commercial offences” and “other offences”, in Division 2 and Division 4 respectively of Part 5.
“Commercial offences” involve dealings with controlled drugs, controlled precursors and controlled plants. Section 32 of the CSA provides:
32 - Trafficking
(1)     A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)     A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3)     A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4)     An offence against subsection (3) involving cannabis, cannabis resin or cannabis oil (and not involving any other controlled drug) must be prosecuted, and dealt with by the Magistrates Court, as a summary offence but if the Court determines that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 2 years, the Court must commit the person to the District Court for sentence.
(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.
“Large commercial quantity” is defined by s 4(1) as follows:
large commercial quantity of a controlled drug, controlled precursor or controlled plant means –
(a)     in relation to a controlled drug contained in a mixture –
(i)    a quantity of the drug that equals or exceeds the amount prescribed as a large commercial quantity for the drug in its pure form; or
(ii)     a quantity of the mixture that equals or exceeds the amount (if any) prescribed as a large commercial quantity for any mixture containing the drug; or
(b)in any other case – a quantity of the drug, precursor or plant that equals or exceeds the amount prescribed as a large commercial quantity for the drug, precursor or plant (as the case may be) in its pure form.
There is a similar definition for “commercial quantity”.
Section 33 creates offences involving the manufacture of a controlled drug for sale. The offences are structured in the same way as are the offences under s 32, but there is no equivalent to s 32(4).
The cultivation of controlled plants for sale is dealt with by s 33B, which provides:
33B -         Cultivation of controlled plants for sale
(1)     A person who cultivates a large commercial quantity of a controlled plant intending to sell any of them or their products or believing that another person intends to sell any of them or their products is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)     A person who cultivates a commercial quantity of a controlled plant intending to sell any of them or their products or believing that another person intends to sell any of them or their products is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3)     A person who cultivates a controlled plant intending to sell it or any of its products or believing that another person intends to sell it or any of its products is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4)     An offence against subsection (3) involving a cannabis plant (and not involving any other controlled plant) must be prosecuted, and dealt with by the Magistrates Court, as a summary offence but if the Court determines that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 2 years, the Court must commit the person to the District Court for sentence.
(5)     If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
The sale of controlled plants is dealt with in similar terms by s 33C.
The category of “other offences” comprises offences that do not involve the commercial element of sale. This element is part of the offences already described either through the definition of “trafficable quantity” (which definition relates to a controlled drug and to a controlled plant) or through a specific reference to sale.
The “other offences” are relevantly the supply or administration of a controlled drug (s 33I); the manufacture of a controlled drug (s 33J); the cultivation of controlled plants (s 33K) and the possession or consumption of a controlled drug (s 33L). It should be noted that s 33I and s 33L make separate provision for a controlled drug other than cannabis, cannabis resin or cannabis oil and a controlled drug being cannabis, cannabis resin or cannabis oil. It should also be noted that s 33K deals with cultivation other than cultivation for sale, because cultivation for sale will fall under s 33B.
The CSA reflects a legislative assumption that cannabis, cannabis oil and cannabis resin will be declared to be a controlled drug. This assumption appears from s 32(4) (above); from s 33I(1) which refers to “a controlled drug (other than cannabis, cannabis resin or cannabis oil)” and from s 33L which is relevantly expressed in identical terms.
The broad scheme of the CSA in relation to cannabis is as follows. First, the CSA identifies controlled drugs and controlled plants. There is a legislative assumption that cannabis, cannabis oil and cannabis resin will be a controlled drug. A growing cannabis plant is specified as a controlled plant. Second, the CSA creates separate commercial offences relating to controlled drugs and controlled plants, the offences being created by reference to the element of sale and graded according to the quantity of the relevant substance. Third, the CSA creates a series of “non-commercial offences”. The offence provisions all distinguish between a controlled drug and a controlled plant.
Experience with the CSA since it was first enacted in 1984 suggests that there will be cases in which the circumstances will fall under more than one offence creating provision. This results from attempts to cover a wide range of circumstances, and from the expanded definitions given to concepts such as “cultivate”, “manufacture”, “sell”, “traffic”, “step in the process of sale”, “step in the process of manufacture” and “cultivate a controlled plant”.
Finally I come to the Regulations. By reg 5(1), made under s 12(4) of the CSA, the Governor has declared substances in Schedule 1 to the Regulations to be “controlled drugs”. By reg 5(3), made under s 12(4)(b) of the CSA, the Governor has declared certain plants other than cannabis to be controlled plants. There was no need to make such a declaration in relation to the cannabis plant because of the definition of “controlled plant” in the CSA. Regulation 6 specifies quantities that are a “large commercial quantity” or “commercial quantity”, and it does so distinguishing between pure and mixed quantities in the case of a controlled drug.
Part 1 of Schedule 1 is headed “Controlled drugs other than drugs of dependence”. Relevantly it provides as follows:

Large
commercial
(pure) Large
commercial
(mixed) Commercial
(pure) Commercial
(mixed) Trafficable
(mixed)

kg kg kg kg g

…

Cannabis – oil (other than hemp seed oil) 2 10 1 2 25

Cannabis – resin 2 10 1 2 25

Cannabinoid – dried plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin 2 12.5 1 2.5 250

The reader who has struggled through all of these provisions will immediately see a problem. One would expect the third item to refer to cannabis rather than cannabinoid, followed by the words used to define “cannabis” in s 4(1) of the CSA or the words used in the Schedule. One wonders why there is a reference to cannabinoid, a term that describes constituent chemical elements of the cannabis plant. A reader with some background in the area will also realise that the absence of any definition of “dried” leaves room for argument about when plant material is to be regarded as “dried”.

Part 2 of Schedule 3 reflects reg 6 of the Regulations, and prescribes what is a “large commercial quantity”, “commercial quantity”, and “trafficable quantity” of cannabis plants. It is in the following form:

Large
commercial Commercial Trafficable

any plant of the genus
Cannabis L 100 plants 20 plants 10 plants

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”.
Another reason for this conclusion is the legislative assumption that cannabis (the plant) will be a controlled drug. That supports the conclusion that I would reach in any event.
For those reasons I conclude that the Judge erred in deciding that the item referred to a cannabinoid, as distinct from cannabis, which is plant material containing cannabinoid.
As to the second part of the Judge’s reasons, he is correct. There is no escaping the fact that the drafter has identified dried cannabis plant material as the controlled drug.
It is well known from the many cases that have come before this Court that the cannabis plant is used in its dried form, and not in the moist or “non-dried” form. In this case, as in case after case, the evidence is that after harvesting the plant the next step is to dry the harvested material. Indeed, sub-para (d) of the definition of cultivate in s 4(1) of the CSA reflects this. The definition is:
cultivate a controlled plant means –
(a) plant a seed, seedling or cutting of the plant or transplant the plant; or
(b) nurture, tend or grow the plant; or
(c) harvest the plant (including pick any part of the plant or separate any resin or other substance from the plant); or
(d)dry the harvested plant or part of the plant; or
(e)take part in the process of cultivation of the plant.
By failing to define “dried” the drafter of the Regulations has left it to the Court to decide on the evidence in each case whether or not the plant material is dried. It may be that there is an established understanding as to the meaning of “dried”. If there is, I doubt whether it will be so precise as to avoid all argument. There is no reason to think that “dried” means a complete absence of moisture. The evidence before the Judge suggests that if plant material was completely devoid of moisture it would crumble or turn to dust: T76-T77. I consider that “dried” must be a reference to the plant material being sufficiently dried to be in a usable state. On the evidence now before the Court it is not possible to say when that state will be reached.
The evidence before the Judge was that the plant material was dry when weighed at 3718.5 g, but that its weight when seized was unknown. That weight would have been greater, because the plant material had dried in the meantime.
Subject to what follows the Judge correctly directed the jury to acquit. There was no evidence to support a finding that on 19 February 2009 Mr Tennant was in possession of dried plant material.
Mr Press endeavoured to avoid this conclusion. That is understandable, because uncertainty as to whether material is dried is likely to result in some prosecutions failing.
Schedule 1 in the Regulations distinguishes between a controlled drug in its pure form and a controlled drug contained in a mixture – see the heading to the Schedule set out above. This reflects the approach taken in the statutory definition of “large commercial quantity” and “commercial quantity”.
There is no definition of “drug in its pure form” or of “drug contained in a mixture”. The manner in which these terms are used is illustrated by the definition of “large commercial quantity” (see above).
Mr Press submits that for the purposes of the definition of “large commercial quantity” the pure form of the controlled drug is cannabinoid in the form of dried plant material. Mr Press goes on to argue that if the plant material is not dried (I will use this expression to refer to plant material which has been picked from a plant or separated from a plant and is not yet dried) it is, to use the statutory expression, “… a controlled drug contained in a mixture”. He argues that the not dried material is a mixture of the controlled drug in its pure form and water, the substance removed by the process of drying.
I do not accept this submission, at least without expert evidence to support it. The scope of the expression “controlled drug contained in a mixture” might be affected by evidence going to the point. It may be that the statutory expression “controlled drug contained in a mixture” requires that there be present the pure form of the controlled drug in the same way as occurs if, for example, pure heroin were mixed with a “cutting agent”, or if dried cannabis were mixed with tobacco. Whether the expression reaches, for example, a mixture containing the pure drug in its dissolved form is another question. For example, a pure drug might be dissolved in water or some other liquid from which it can be recovered. Whatever might be the conclusion in relation to that situation, I do not agree that not dried plant material can be regarded, as matter of ordinary language, as a mixture containing dried plant material (the drug in its pure form) and water. If, for example, the possession of dried apricots was made an offence, and it was an offence whether the person was in possession of dried apricots in their pure form or in a mixture, Mr Press’s argument appears to lead to the conclusion that the possession of whole and fresh apricots would be an offence because the whole apricot would be treated as comprising dried apricot material mixed with the moisture and apricot stone that would be removed in the drying process. In my opinion that approach is too artificial. Moreover, dried plant material will usually contain some moisture. The only difference between dried plant material and not dried plant material is the amount of moisture.
For these reasons I do not accept the submission. Expert evidence relating to the statutory expressions just considered might throw light on their meaning. There is no such evidence. I am not persuaded by Mr Press’ submission, as things stand.
Mr Press submits that on the approach that I take harvested and not dried cannabis plant material can be kept and stored and sold with impunity because until it is dry it is not a controlled drug.
Mr Press might be correct. But the process of drying cannabis plant material, with the purpose of producing dried plant material, the controlled drug, might fall within the definition of “manufacture”. This expression is defined in s 4(1) of the CSA as follows:
manufacture, in relation to a controlled drug means –
(a)     undertake any process by which the drug is extracted, produced or refined; or
(b)     take part in the process of manufacture of the substance.
That expression is expanded by s 4(4) which provides that to direct, take or participate in any step or cause any step to be taken in the process of manufacture is to take part in the process of manufacture. That provision is given expanded content by s 4(6) of the CSA which provides as follows:
(6)For the purposes of this Act, a step in the process of manufacture of a controlled drug includes, without limitation, any of the following when done for the purpose of manufacture of the drug:
(a)     acquiring equipment, substances or materials;
(b)     storing equipment, substances or materials;
(c)     carrying, transporting, loading or unloading equipment, substances or materials;
(d)     guarding or concealing equipment, substances or materials;
(e)     providing or arranging finance (including finance for the acquisition of equipment, substances or materials);
(f)     providing or allowing the use of premises or jointly occupying premises.
It may be that Mr Tennant could have been charged with the offence of manufacturing a controlled drug for sale contrary to s 33(3) of the CSA, on the basis that by drying the harvested material he took part in the process of manufacture of the controlled drug. Whether he could have been charged under s 33(1) or s 33(2) is another matter, depending on whether an offence under those provisions can be proved by establishing the weight of the controlled drug that ultimately would have been manufactured, that is, the weight of dried plant material that would have been produced.
On this point it is necessary also to bear in mind that “cultivate a controlled plant” is given an expansive definition by s 4(1) of the CSA. In particular, by sub-para (d) of the definition of “cultivate a controlled plant” that expression includes:
… dry the harvested plant or part of the plant …
It could be argued that the CSA does not contemplate that to dry harvested plant material is to cultivate a controlled plant and also to manufacture a controlled drug. I recognise the difficulty. These issues are best decided when a case in which they have been explored at trial comes before this Court. They were not argued before the Judge. Nor was the Judge asked to consider whether s 33R of the CSA, relating to alternative verdicts, would have permitted the jury to find Mr Tennant not guilty of the offence charged but guilty of an offence involving the manufacture of a controlled drug.
In the present case Mr Tennant was, by count 1, charged with and convicted for cultivating growing cannabis plants found at his property. The presence of the not dried material was used to support an argument that he intended to sell some or all of the plants. The not dried plant material had been removed from the plants in question. It may be that the CSA and Regulations do not grapple adequately with the possession of and dealing with not dried plant material removed from growing cannabis plants: see the comments in R v Vallelonga [2009] SASC 224; (2009) 105 SASR 21 at [11]-[12] Gray J; at [27] Vanstone J; at [33] Kourakis J.
Mr Press also submits that non-dried cannabis plant material is an analogue of the controlled drug in the form of dried plant material, and so is to be treated in the same way as the controlled drug. This submission is based on s 4(2) and s 4(3) of the CSA, which respectively provide as follows:
(2)     A substance is an analogue of another for the purposes of this Act if –
(a)    they both have substantially similar chemical structures; or
(b)     they both have substantially similar pharmacological effects.
(3)Subject to the regulations, an analogue of a controlled drug (not being an analogue that is itself declared by regulation to be a drug of dependence or a controlled drug) is by virtue of this subsection a controlled drug.
There is no definition of “analogue”.
Regulation 5(1) declares certain substances to be controlled drugs. Sub‑para (c) declares to be a controlled drug:
(c)any analogue of the natural or synthetic form of a substance listed in Schedule 1 (being an analogue having a substantially similar chemical structure to the substance, but differing in elemental composition due to the addition, deletion or replacement of any substituent element or group).
It might be the case that not dried plant material is an analogue of dried cannabis plant material. There was no evidence about this. It is unwise to speculate in the absence of assistance from a qualified expert on the point. A decision on this argument could affect one’s approach to the arguments referred to above.
Mr Press’s final submission is that Mr Tennant could have been found guilty of trafficking in a controlled drug because he was taking part in the process of sale of the controlled drug, for the purposes of sub-para (c) of the definition of “traffic in a controlled drug”. That expression is defined as follows in 4(1) of the CSA:
traffic in a controlled drug means –
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug.
That expression is then expanded by s 4(5) of the Act, which provides as follows:
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)     storing the drug;
(b)     carrying, transporting, loading or unloading the drug;
(c)     packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)     guarding or concealing the drug;
(e)     providing or arranging finance (including finance for the acquisition of the drug);
(f)     providing or allowing the use of premises or jointly occupying premises.
Mr Press argues that keeping and drying the harvested material, for the purpose of selling it when dried, is to take part in the process of sale of the controlled drug. He submits that it does not matter that on 19 February 2009 the controlled drug did not yet exist, or had not yet been produced.
I consider that this submission blurs the distinction between the process of manufacture and the process of sale. I have set out above the statutory provisions relating to manufacture. Subject to the operation of s 4(5)(e) and s 4(5)(f) (not relied on in this case), my tentative opinion is that a person takes part in the process of sale for the purposes of s 4(5) only if, in the situations referred to in s 4(5), the controlled drug exists. That is not to say that there might not be situations in which one could be said to take part in the process of sale of a controlled drug, despite the fact that the drug does not yet exist. A person might enter into a contract for the sale of a specified quantity of a controlled drug, yet to be acquired by the seller, or yet to be produced by the seller. That is not the present situation.
This submission by Mr Press also has to overcome the difficulty (it may be no more than that) presented by sub-para (d) of the definition of “cultivate a controlled plant” (set out above).
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.

Large commercial (pure)	Large commercial (mixed)	Commercial (pure)	Commercial (mixed)	Trafficable (mixed)
kg	kg	kg	kg	g
…
Cannabis – oil (other than hemp seed oil)	2	10	1	2	25
Cannabis – resin	2	10	1	2	25
Cannabinoid – dried plant material including flowering and fruiting tops, leaves, seeds or stalks but not including oil or resin	2	12.5	1	2.5	250

Large commercial	Commercial	Trafficable
any plant of the genus Cannabis L	100 plants	20 plants	10 plants