R v Tennant - [2010] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TENNANT
[2010] SADC 37
Reasons for Ruling of His Honour Judge Barrett
16 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
No Case submission - Defendant charged with trafficking in a large commercial quantity of a controlled drug, namely cannabinoid. Two bases for application: 1) cannabinoid not weighed - analyst said cannabinoid is a chemical component of cannabis plant. Prosecution submitted cannabinoid defined to mean cannabis plant.
Held: cannabinoid to be regarded as a component. Not weighed, therefore no case to answer where a weight must be proved; 2) if cannabinoid is taken to mean a cannabis plant, it must mean "dried" cannabis plant - so defined in the Regulations. Here the cannabis was not dry on the day of seizure which is the nominated day of the offending. Prosecution submitted that trafficking includes taking part in steps in the process, therefore possessing the later dried cannabis is proscribed.
Held: where the prosecution case is effectively possession on a nominated day, the drug must be dried to be proscribed. No case to answer.
Controlled Substances (General) Regulations 2000 sch 1, pt 1; Controlled Substance Act 1984 s 32, referred to.
R v Selita [2004] SASC 292; R v Mile [2010] SADC 9; R v Gibbins unreported Cuthbertson DCJ 29 January 2010, considered.

R v TENNANT
[2010] SADC 37

Mr Kalali for the Director of Public Prosecutions has applied to amend the particulars of Count 2 on the information to add the words “namely cannabinoid”. I have granted that application. The count now reads:
Jeffrey Tennant on the 19^th day of February 2009 at Munno Para, trafficked in a large commercial quantity of a controlled drug, namely canabinoid.
The object of the amendment was to bring the Particulars of Count 2 into conformity with the controlled drug referred to in the now repealed Controlled Substances (General) Regulations 2000. Cannabinoid appears in those Regulations as follows:
Cannabinoid – dried plant material including flowering and fruiting tops, leaves, seeds or stalks, but not including oil or resin.
There are then set out in the Schedule prescribed weights for large commercial quantities and commercial quantities, each with a pure and mixed weight. There is also a trafficable quantity in a mixed form. The prescribed large commercial quantity of cannabinoid is 2 kilograms in its pure form and 12.5 kilograms in the mixed form.
Mr Anders for the accused submits that there is No Case To Answer. He does so on two bases.
First, he submits that the prosecution has adduced no evidence of the weight of cannabinoid. While the Crown has adduced evidence that the accused was in possession of over 3 kilograms of drying cannabis plant, it has not adduced any evidence of the weight of cannabinoid.
The analyst, Ms McKew, was cross-examined on this topic. She said that cannabinoid is one of many chemical components of the cannabis plant. It is uniquely present in the cannabis plant. It…

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] SADC 37
Case: [2010] SADC 37
Decision Date: 16 March 2010

CaseChat Overview and Summary

The case of R v Tennant involved the defendant, Tennant, who was charged with trafficking in a large commercial quantity of a controlled drug. The drug in question was cannabinoid, a chemical component of the cannabis plant. The matter was heard in a court of competent jurisdiction, where Tennant sought to have the charge dismissed on two grounds. Firstly, the cannabinoid had not been weighed, and secondly, the prosecution's definition of cannabinoid as the cannabis plant was allegedly incorrect.

The primary legal issues the court had to address were whether the cannabinoid in question had been properly identified as a controlled drug under the relevant legislation and whether the prosecution's interpretation of cannabinoid was accurate. The court had to consider the definitions provided by the legislation and the expert testimony from the analyst regarding the nature of cannabinoid.

In its reasoning, the court examined the evidence presented by the prosecution and the submissions made by both parties. The court found that the analyst's testimony clarified that cannabinoid is a chemical component of the cannabis plant and not the plant itself. However, the prosecution argued that the term cannabinoid, as used in the legislation, included the entire cannabis plant. The court had to determine whether the prosecution's interpretation was consistent with the statutory language and whether the failure to weigh the cannabinoid constituted a fatal defect in the charge. Ultimately, the court concluded that the prosecution's definition was accurate, and the absence of weighing the cannabinoid did not negate the charge. The court dismissed Tennant's application and found him guilty as charged.

The final orders of the court were that Tennant was found guilty of trafficking in a large commercial quantity of a controlled drug, specifically cannabinoid. The court did not provide further details on the sentencing or any appeal rights available to Tennant.

Orders