R v Thomson [2006] ACTSC 64 (28 June 2006)

Last Updated: 12 February 2007

R v ROGER WILLIAM THOMSON

[2006] ACTSC 64 (28 June 2006)

CRIMINAL LAW - cannabis offence - whether certificate per Drugs of Dependence Act 1989 (ACT) s 192 admissible for proceedings under Criminal Code 2002 (ACT) Ch 6 - whether dried cannabis plants "cannabis" under the Code - Meaning of "cannabis", "goods"

Criminal Code 2002 (ACT), ss 24, 600, 601, 602, 603, 800, Pt 6.1

Criminal Code (Serious Drug Offences) Amendment Act 2004 (ACT)

Drugs of Dependence Act 1989 (ACT), ss 3, 3AA, 192, Pt 10

Evidence Act 1995 (Cth), ss 9(3), 177

Criminal Code Regulation 2005 (ACT), Sch 1 Pts 1.1, 1.2, Sch 2

Drugs of Dependence Regulation 2005 (ACT)

DPP v Tong (2004) 151 A Crim R 296; [2004] NSWSC 689

Rizen Smash Repairs Pty Ltd & Anor v D G Department of Fair Trading [2002] NSWADT 173

NACS v MIMA [2002] FCA 935

Ng v Haskett & DPP [2002] NSWSC 258

No. SCC 279 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 28 June 2006

IN THE SUPREME COURT OF THE )

) No. SCC 279 of 2005

AUSTRALIAN CAPITAL TERRITORY )

R

v

ROGER WILLIAM THOMSON

ORDER

Judge: Higgins CJ

Date: 28 June 2006

Place: Canberra

THE COURT RULES THAT:

1. Certificates tendered pursuant to Drugs of Dependence Act 1989 s 192 have evidentiary effect for the purpose of Criminal Code 2002 Ch 6 offences;

2. The particular certificate tendered is insufficient as to content to be efficacious to prove the offence alleged.

1. The accused, Roger William Thomson, on 15 May 2006, pleaded not guilty to a charge that:

... on the 4^th day of June 2005 ...[he] ... trafficked in a trafficable quantity of cannabis.

He pleaded "guilty", however, to a charge that:

... on the 4^th day of June 2005 ... [he] ... possessed a prohibited substance, namely cannabis.

The accused has elected for trial by judge alone.

2. The Crown case is that, on 4 June 2005, police executed a search warrant at [address suppressed]. The property is owned and occupied by the accused's parents. The accused resided there.

3. Vegetable matter, believed to be cannabis, was located in and outside of the garage situated on the premises. Part of the material consisted of whole, uprooted and dried cannabis plants. There were four growing plants in a storage room in the garage.

4. There was also hydroponic paraphernalia, electronic scales and clip seal bags, some containing cannabis.

5. The plant material was weighed. It allegedly weighed 1825.3 grams.

6. The accused admitted the seized items were his. He asserted that the cannabis was for his own use.

7. The offence the subject of the "not guilty" plea is now contained in the Criminal Code 2002 (ACT) (the Code) (effected by A2004-56, that is, the Criminal Code (Serious Drug Offences) Amendment Act 2004 (ACT)). That was notified on 6 September 2004 and the substantive provisions came into effect on and from 6 March 2005).

8. Those provisions replaced similar offences in the Drugs of Dependence Act 1989 (ACT) (DOD Act). For the remaining, less serious, cannabis offences that Act continues to apply. For the purposes of that Act "cannabis" is defined to mean (s 3):

... a cannabis plant, whether living or dead, and includes any flowering or fruiting top, leaf, seed, stalk or any other part of a cannabis plant and any mixture of parts of a cannabis plant or cannabis plants, but does not include cannabis resin or cannabis fibre.

cannabis fibre means a substance consisting wholly or substantially of fibre from a cannabis plant but not containing any other material from a cannabis plant.

cannabis plant means a plant of the Genus Cannabis.

cannabis resin means a substance consisting wholly or substantially or resin, whether crude, purified or in any other form, from a cannabis plant.

...

[original emphasis]

9. The evidence tendered, purporting to identify and analyse the substances seized both as to composition and weight, was a certificate issued under s 192 (DOD Act). A question has arisen as to its admissibility and evidentiary effect. I have been requested to rule on those issues. This is that ruling. Section 192 (DOD Act) provides:

(1) In proceedings for an offence, a certificate signed by an analyst stating, in relation to a substance referred to in section 191--

(a) that the analyst signing the certificate is appointed as analyst under section 183; and

(b) when and from whom the substance was received; and

(c) what (if any) labels, or other means of identifying the substance accompanied it when it was received; and

(d) what container or containers the substance was contained in when it was received; and

(e) a description, and the weight, of the substance received; and

(f) if the substance, or any part of it, is analysed--

(i) the name of the method of analysis; and

(ii) the results of the analysis; and

(g) how the substance was dealt with after handling by the analyst, including details of--

(i) the quantity retained; and

(ii) the name of the person (if any) to whom any retained quantity was given; and

(iii) measures taken to secure any retained quantity;

is evidence of the matters stated in the certificate.

(2) For subsection (1), a certificate that purports to be signed by an analyst shall, unless the contrary is proved, be taken to have been so signed.

(3) Subsection (1) only applies if a copy of the certificate was served on the defendant in the proceedings, or on the defendant's lawyer on the record of those proceedings, not later than 14 days, or any shorter period the court may order, before the beginning of the hearing of the proceedings.

(4) If an analyst issues a certificate under this section, he or she shall give a copy of the certificate to the commissioner of police.

10. Section 3AA (DOD Act) applies the Code (inter alia) to "offences against this Act".

11. Part 10 (DOD Act) creates "offences".

12. On 4 March 2005, regulations were made under the DOD Act. It applies as the definition of "drug of dependence" for the purposes of that Act, Schedule 1 (Controlled drugs), Pt 1.1 (Drugs of Dependence), and "associated drug" or "a related drug" as specified under the Criminal Code Regulation 2005 (ACT) (the Regulation).

13. The Regulation was made on 4 March 2005 coinciding with the relevant Code amendments. Schedule 1 Pt 1.2 to the Regulation defines "prohibited substances", not a term used in the Code but used in the DOD Act. Item 26 refers to "Cannabis". A trafficable quantity is defined as 300 grams thereof.

14. Schedule 2 refers to a "controlled plant", being a "growing plant" mentioned in Schedule 2. A cannabis plant is specified as a "controlled plant".

15. The growing plants seized in this case are not listed as part of the material supplied for analysis. However, disturbingly, the material referred to in the Certificate as contributing to the "weight of sample" includes all the various containers referred to as containing material described as cannabis.

16. There is a heading "Weight of Sample". Under "Result" is 1,825. Under "Units" is "grams". Under "Method" is "06.02.01 & .02". Those latter figures are not explained.

17. The next heading is "Cannabis Identification Tests", followed by two lines. The first discloses "Botanical ID of Cannabis". Under "Result" is "Cannabis". "Units" is blank. "Method" is "06.02.05". That figure is unexplained. The next line states "Cannabis ID by GLC/MS". The "Result" is "delta 9 - THC". The "Method" is "06.02.06". Neither of those statements is explained.

18. It follows that all that can be inferred from the certificate evidence adduced, even if admissible for the purposes of count 1, is that the vegetable material is botanically "Cannabis" within the meaning of the DOD Act. I have no explanation of "GLC/MS". I do not know what "delta 9" refers to. I could guess that "THC" means "tetrahydrocannabinol" but that latter substance has received no statutory definition in the DOD Act. It is referred to in the Code though not defined. It is common knowledge that it is the active chemical ingredient of cannabis for drug use purposes.

19. Section 600 of the Code appears under the headings "Serious Drug Offences" and for Pt 6.1, "Interpretation for ch 6".

20. It provides, relevantly for present purposes:

In this chapter:

cannabis means a substance consisting of or containing -

(a) the fresh or dried parts of a cannabis plant, other than goods that consist completely or mainly of cannabis fibre; or

(b) tetrahydrocannabinol

cannabis plant means a plant of the genus Cannabis

21. For the first count the term "trafficable quantity" is relevantly defined in respect of a "controlled drug" as the quantity prescribed by "the regulations" (s 601(1) (the Code)).

22. The term "traffics" is defined by s 602 (the Code):

For this chapter, a person traffics in a controlled drug if the person--

(a) sells the drug; or

(b) prepares the drug for supply--

(i) with the intention of selling any of it; or

(ii) believing that someone else intends to sell any of it; or

(c) transports the drug--

(i) with the intention of selling any of it; or

(ii) believing that someone else intends to sell any of it; or

(d) guards or conceals the drug with the intention of--

(i) selling any of it; or

(ii) helping someone else to sell any of it; or

(e) possesses the drug with the intention of selling any of it.

23. The offence is created by s 603(5) (the Code):

A person commits an offence if the person traffics in a trafficable quantity of cannabis.

Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

24. Trafficking in cannabis of a lesser quantity attracts, under s 603(8) (the Code), 300 penalty units or imprisonment for three years or both.

25. By s 603(6) (the Code):

Absolute liability applies to the circumstance that the quantity trafficked in was a trafficable quantity.

26. The prosecution is further assisted by s 604(1) (the Code):

(1) If, in a prosecution for an offence against section 603, it is proved that the defendant--

(a) prepared a trafficable quantity of a controlled drug for supply; or

(b) transported a trafficable quantity of a controlled drug; or

(c) guarded or concealed a trafficable quantity of a controlled drug; or

(d) possessed a trafficable quantity of a controlled drug;

it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

Note A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)).

27. The reference to "absolute liability" is a reference to s 24 (the Code):

24 Absolute liability

(1) If a law that creates an offence provides that the offence is an absolute liability offence--

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 36 (Mistake of fact--strict liability) is not available.

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence--

(a) there are no fault elements for the physical element; and

(b) the defence of mistake of fact under section 36 is not available in relation to the physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

28. The reference to "the regulations" is a reference to the Regulations commencing the same date as the Criminal Code (Serious Drug Offences) Amendment Act 2004.

29. They identify "controlled drugs" in Sch 1. In Pt 1.2 (prohibited substances) Item 26 is "cannabis". A "trafficable quantity" is proclaimed to be 300.00 grams. Item 130 refers to "tetrahydrocannabinals (THC) and their alkyl homologues, except if separately mentioned in the Schedule".

30. The certificate does not address the quantity of "THC", assuming that to be a reference to Item 130.

31. A question was raised as to whether, for the purposes of contributing to the "trafficable quantity", apart from the need to exclude packaging, stalks and branches of the plant material concerned also need to be excluded.

32. The Code definition excludes "goods that consist completely or mainly of cannabis fibre". It does not distinguish between "goods" which may legally be possessed or sold and those which may not. The term "goods" is not a term of art, it refers simply, as Mr Whybrow submits and as per the Oxford English Dictionary, to "movable property, merchandise, wares".

33. Nevertheless, the expression "completely or mainly" seems to me to permit the inclusion of incidental stalks and branches which are admixed with a substantial quantity of cannabis material not being completely or mainly "cannabis fibre". It would not be practicable nor likely to be intended that incidental material, such as stalks or branch fragments would be excluded. However, a dried plant stripped of virtually all leaf and flowering head material would reasonably be able to fall within the exclusion. A full plant, uprooted and dried (or partially dried) but so only as no longer to be no longer a "growing plant" (see s 600 (the Code) "controlled plant") would not be excluded from the definition of "cannabis" and the entire weight of it would be capable of constituting a relevant "quantity".

34. The question which remains open is whether a s 192 certificate made under the DOD Act has a similar evidentiary effect for the Code as it has for that Act.

35. Section 174 (DOD Act), inserted contemporaneously with the transfer to the Code of "serious drug offences", provides:

Interpretation for Part 11

(i) in this part:

offence means an offence against this Act or the Criminal Code, chapter 6 (serious drug offences).

36. Section 192 (DOD Act) is located within Part 11. It follows that a certificate under s 192 will have evidentiary effect, not only for offences under the DOD Act, but also for serious drug offences under ch 6 of the Code.

37. The Code itself makes no provision granting evidentiary efficacy to such a certificate. Section 800 (the Code) permits the Executive (that is, the ACT Government) to make regulations for the Code. The only interaction provided for is that Sch 1 of the Regulation refers by note to the fact that the schedule thereto prescribes substances for the DOD Act as either "drugs of dependence" (Pt 1.1) or "prohibited substances" (Pt 1.2).

38. What then of the Evidence Act 1995 (Cth) (Evidence Act)? The DPP contended that compliance with the Evidence Act (s 177) was unnecessary on the somewhat unpersuasive basis that the test results, the subject of the Certificate, were not an expression of opinion.

39. The certificate is expert opinion evidence. It could become the subject of a certificate under s 177 (Evidence Act) , see for example: DPP v Tong (2004) 151 A Crim R 296; [2004] NSWSC 689 (s 177 procedure); Rizen Smash Repairs Pty Ltd & Anor v D G Department of Fair Trading [2002] NSWADT 173 (Re defects in vehicle); NACS v MIMA [2002] FCA 935 (Re authenticity of a photograph); Ng v Haskett & DPP [2002] NSWSC 258 (Re fractured ribs and the force needed to break them).

40. It may be added that by virtue of s 9(3)(d) (Evidence Act), the effect of a s 192 (DOD Act) certificate is not deprived of the efficacy it possesses so far as that flows from the DOD Act. Whilst not deprived entirely of evidentiary effect, it is simply insufficient as to content to be efficacious to prove the offence alleged against s 603(5) (the Code).

41. I rule accordingly.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 28 June 2006

Counsel for the Crown: Mr J Lawton

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: Mr S Whybrow

Solicitor for the accused: Rachel Bird and Co

Date of hearing: 15 May 2006

Date of judgment: 28 June 2006