R v Tennant
[2010] SADC 37
•16 March 2010
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 19th 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the amendment was to bring the Particulars of Count 2 into conformity with the controlled drug referred to in the now repealed Controlled Substances (General) Regulations 2000.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 is spread throughout the plant although it is to be found in higher concentrations in the resinous material. The effect of one part of Ms McKew’s evidence is that it is possible to extract cannabinoid from the plant. I say it “appears” because the following answer was given to what is really a double-barrelled question. This exchange took place in cross-examination (T55).
QSo if you saw fit to, you could analyse cannabis plant materials supplied to you at the Forensic Science Centre and work out whether there was cannabinoid there present, extract that chemical compound.
AThat’s right, yeah.
QThat didn’t occur here.
ANo it didn’t.
Mr Anders submitted that in these circumstances the prosecution has not adduced any evidence of the weight of the proscribed controlled drug. There is thus No Case To Answer on Count 2.
Mr Kalali for the Director of Public Prosecutions submitted that the definition of cannabinoid in the Regulations should not be read in the context of the evidence from the analyst. He submitted that cannabinoid should not be understood to mean a chemical component of the cannabis plant. Instead it should be equated with “dried plant material”. It is to be noted that these Regulations are now repealed. New Regulations, effective from 10 September 2009, substitute the word “cannabis” for “canabinoid”. However this case is to be determined by the regulations applying in February 2009.
I do not accept that submission. In my view the definition must be understood in the context of the evidence adduced at the trial. According to that evidence cannabinoid is not a plant. It is one of many chemical components of the plant.
In those circumstances the prosecution has not adduced any evidence of the weight of the particularised drug.
That conclusion would lead to my finding No Case To Answer in respect of any breach of s 32(1) or (2) of the Controlled Substances Act which required proof of a nominated weight of the drug. However it might be open to the jury to convict the accused of a breach of s 32(3) of the Act which proscribes simply trafficking in a controlled drug. No weight is involved. Mr Anders submitted that, pursuant to s 32(4) a breach of sub-section (3)may only be prosecuted within the Magistrates Court as a summary offence. I do not rule on that submission.
Second, Mr Anders submitted that, assuming cannabinoid is regarded as meaning the cannabis plant, it is dried plant material which is proscribed. He submitted that in R v Selita [2004] SASC 292 at [96], Gray J found that in offences which penalised the possession of a certain weight of cannabis, the weight should be determined at the point of seizure [96]. When harvested, cannabis contains water which is lost over time. By analogy with that reasoning Mr Anders submitted that the accused in this case would have to be proved to be trafficking in dried material. He is alleged to have done so on 20 February 2009. On that date the cannabis was not dry.
Precisely this point was the subject of a finding by Herriman DCJ in R v Mile [2010] SADC. His Honour was there considering an application for leave to change a guilty plea on the ground that when a plea of guilty was entered the defendant had not realised that he had a defence to the charge of trafficking in a controlled drug, namely that the material he was alleged to be in possession of was cannabis which was not dry. His Honour granted the application [6]–[8] applying the reasoning of Gray J in Selita
In response Mr Kalali submitted that in the case of R v Gibbins (unreported ruling delivered on 29 January 2010 at T96-7) Cuthbertson DCJ ruled that, at least in the case of charges of trafficking in the drug, the definition extended to various steps in the process of trafficking. Thus transactions before and after the accused is apprehended in possession of wet cannabis might be taken into account. Applying that reasoning to this case, Mr Kalali submitted that while on 19 February 2009 the accused was in possession of wet cannabis, that was merely a step in the process of trafficking. In due course the same cannabis became dried.
While I appreciate the force of that submission this case is really based on the allegation of the accused in possession of cannabis on a nominated date. That is so despite the breadth of the open by the prosecutor. In opening Mr Kalali said,
… possessing approximately 3.1 kilograms of cannabinoid intending to sell that, or take part in the process of sale, and that is Count 2. (T9)
Later in his opening he made more explicit the separation between possessing and taking part in. Despite that separation I think it is really plain that the Crown case is based upon possession of the drug on 19 February 2009. It is not the case of taking part in a step in the process over a period of time. In those circumstances I find that the Crown case must be understood to be one of possession for sale within the definition of trafficking. That is a feature distinguishing this case than that of Gibbins.
I find that there is no case to answer on this basis. For that reason I make no ruling on the question of whether the offence of simply trafficking in cannabinoid could be tried by jury in this court.
I will direct the jury to return a verdict of not guilty on Count 2.
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