Jenkinson v R

Court of Criminal Appeal (NSW)|2023-10-11|Before: Mitchelmore JA, Rothman J, Wilson J, Per Mitchelmore JA, Per Rothman J

HEADNOTE [This headnote is not to be read as part of the judgment] On 8 April 2022, the appellant was convicted in the District Court for an offence of supplying a prohibited drug, namely, psilocybin, in an amount which was not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). The charge arose from the police locating 98 grams of dried mushrooms in resealable plastic bags in the appellant's car during a lawful search on 1 May 2020. On 7 April 2022, the trial judge conducted a voir dire hearing to determine whether the weight of psilocybin included or excluded the weight of the mushrooms in which it was naturally found. His Honour held, relevantly to this appeal, that the quantity of psilocybin should be presented as 98 grams of the bulk vegetable matter, being the mushrooms, of which the psilocybin was part. In reaching this conclusion, his Honour construed the expression "preparation, admixture, extract or other substance containing any proportion of the prohibited drug" in s 4 of the DMT Act as including the mushrooms in which the prohibited drug is naturally found. The appellant appeals on the basis that the trial judge erred in this construction. The Court (Mitchelmore JA and Wilson J agreeing, Rothman J agreeing with the order for separate reasons), dismissing the appeal, held: Per Mitchelmore JA (Wilson J agreeing at [70]): (1) The phrase "other substance containing any proportion of the prohibited drug" in s 4 is intended to capture material that contains a prohibited drug and other material that is not prohibited. Read as a whole, the focus of s 4 is not human involvement in the mixing of substances, but with the fact of mixed contents, any proportion of which is a substance specified in Schedule 1: [22]. The trial judge was correct to conclude that the appellant was in possession of a quantity of prohibited drug which satisfied the threshold in Schedule 1 of the DMT Act for not less than a commercial quantity of psilocybin, for the purposes of the charge in s 25(2) of the DMT Act: [39]. Per Rothman J: (2) The mushroom is a consumable form of the drug and is included in the ordinary meaning of the term "drug" and in this case "prohibited drug": [64]. The primary judge determined that the reference in Schedule 1 to the DMT Act were the specific substances psilocin and psilocybin and that the prohibited drug definition extended to the mushrooms in which those prohibited drugs were found: [62]-[63]. The weight of the drugs is the weight of the drug in the form of the mushroom: [65].

JUDGMENT

MITCHELMORE JA: The appellant, Thomas Jenkinson, was convicted by Bennett SC DCJ sitting alone on the charge of supplying a prohibited drug in an amount which was not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). On 1 May 2020, police officers conducted a lawful search of the appellant's car and found 98 grams of dried mushrooms in resealable plastic bags. The dried mushrooms were found, on analysis, to contain psilocybin, a psychoactive component with hallucinogenic properties which is a prohibited drug under the DMT Act. The only issue in the trial, and the appeal, was the quantity of psilocybin.
The appellant contended that he should only have been charged by reference to the quantity of psilocybin in the mushrooms. On that basis, he entered a plea of guilty to the statutory alternative charge of supplying a prohibited drug, namely psilocybin, contrary to s 25(1) of the DMT Act (see s 25(3) of the DMT Act). The Crown relied on the weight of the mushrooms in which the psilocybin was found, having regard to s 4 of the DMT Act, which is headed "Admixtures" and provides: "In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug."
On 7 April 2022, the trial judge conducted a voir dire hearing to determine whether the weight of psilocybin included or excluded the weight of the mushrooms. On 8 April 2022, his Honour gave an ex tempore judgment, which he later revised, concluding that the quantity of psilocybin should be presented as 98 grams of the bulk vegetable matter, being the mushrooms, of which the psilocybin was part: R v Jenkinson (No 1) [2022] NSWDC 286.
Following his Honour's judgment, the matter proceeded to trial, with the appellant maintaining his pleas without otherwise making any further submissions or offering any other defence. In finding the offence proved, the trial judge noted that the issue in the trial was the quantity of the prohibited drug in the form in which it was found and that he had resolved that question on the voir dire: R v Jenkinson (No 2) [2022] NSWDC 287 at [14].
The appellant contends that the trial judge erred in concluding that s 4 of the DMT Act "can include the unaltered organic matter in which a prohibited drug is naturally found". For the reasons that follow, I have concluded that his Honour reached the correct conclusion. The appeal should be dismissed.

Background to the appeal

The appellant was charged with the following offence: "[O]n 1 May 2020, in Nelson Plains in the State of New South Wales, [the appellant] did supply a prohibited drug, namely, psilocybin in an amount of 98 grams being an amount which was not less than the commercial quantity for that prohibited drug."
The facts relevant to the charge may be shortly stated, by reference to Bennett SC DCJ's judgment on the voir dire. On 1 May 2020, at about 10.30pm, the appellant was sitting in a parked car in Nelson Plains. The appellant was approached by police and, following an initial conversation, the police executed a lawful search of his car. During that search, police relevantly located a plastic container in the rear passenger foot well, inside of which was a number of plastic bags containing dried mushrooms: at [8]. The appellant was placed under arrest and was transported to Raymond Terrace Police Station, where he declined to participate in an interview: at [9].
The police sent the dried mushrooms to the NSW Health Pathology Forensic and Analytical Science Service (FASS) for analysis: at [10]. The FASS certificate of analysis, dated 23 July 2020, was signed by Timothy Hudson, a forensic chemist employed by FASS who gave evidence on the voir dire. The certificate of analysis noted that the sealed drug exhibit bag that was provided to the Illicit Drugs Analysis Unit of FASS contained ten resealable plastic bags and three plastic bags, each of which contained vegetable matter of various weights: at [16]. Vegetable matter in six of the bags was found to contain psilocin, and the presence of psilocybin was also indicated: at [16]. The combined weight of the vegetable matter in those six bags was 98 grams: at [16].
The trial judge made the following observations about psilocin and psilocybin at [15]: "Psilocybin and psilocin are related, in the sense that they are both found in mushrooms such as were in the accused's possession, in their natural form, with likely changes from one to the other when analysis is performed in the manner described in the evidence of Mr Hudson. Both appear as prohibited drugs in sch 1, [DMT Act], where the quantities specified, for the purposes of the Act, are: In the case of psilocin and its derivatives, being those derivatives having hallucinogenic properties, trafficable: 15 discrete dosage units or 0.15 grams; small quantity: 4 discrete dosage units or 0.04 grams: indictable quantity, 25 discrete dosage units or 0.25 grams: commercial quantity, 25 grams: large commercial quantity, 100 grams, discrete dosage unit 0.01 grams. The same quantities are specified in respect of psilocybin and its derivatives, being those derivatives having hallucinogenic properties."
Although there was no evidence before the trial judge as to how the mushrooms were to be consumed for the effect of the active constituent, the parties' submissions were consistent with the proposition that the mushrooms could be taken orally, either in their vegetative form or by way of an infusion from steeping them in water: at [12].
By reason of the method of testing that Mr Hudson undertook, the respective quantities of psilocybin and psilocin in the mushrooms were not specified in the FASS certificate of analysis: at [19]. The trial judge heard evidence from the appellant's experts to the effect that there was a testing method that could reveal the pure content of a prohibited drug in vegetable matter such as mushrooms, subject to the facilities being available: at [20]. Dr Robertson, a forensic toxicologist and pharmacologist, gave evidence that psilocybin can be extracted from mushrooms by crushing or pulverising the mushroom, extracting the psilocybin with a solvent, and evaporating the solvent. The extracted psilocybin takes the form of a white powder or darker crystals, and can be consumed in that form or combined with liquid or food. In cross-examination, Dr Robertson explained that this process would not generate an entirely pure product, given it is a "natural product".
According to Dr Robertson and another forensic pharmacologist and toxicologist who gave evidence, Dr Nieuwenhuijzen, the level of psilocybin in the dry weight of mushrooms ranges from 0.1% to 2%. They agreed that recreational users rarely extract psilocybin from mushrooms. They further agreed that the recreational dose of mushrooms usually ranges from 1 to 5 grams which, Dr Robertson added, assumed a 1% purity. The experts also gave evidence to the effect that while the average amount of psilocybin required to induce a hallucinogenic effect is 0.004 to 0.01 grams, it would be very unlikely for the consumption of 0.01 grams of mushroom (being 0.0002 grams of psilocybin) to have any appreciable effect upon a person.

The issue on the voir dire

The trial judge noted that the appellant's argument on the voir dire involved two primary submissions: 1. The references to psilocin and psilocybin in Schedule 1 of the DMT Act were to those specific substances and not to the mushrooms in which they are found: at [29]. 2. Section 4 of the DMT Act did not extend to vegetable matter, such as mushrooms, in which a prohibited drug was found naturally. Rather, the scope of the term "admixture", read in context, was confined to artificially combined bulk. It followed, the appellant submitted, that the quantity of prohibited drug for the purposes of the offence charged was well less than the 98 grams of mushrooms in which the prohibited drug was found, and thus did not constitute supply of not less than a commercial quantity.
The trial judge accepted the first submission (at [29]) and the Crown did not take issue with that conclusion on the appeal. The trial judge did not accept the second submission: at [32]. Given the degree of overlap between the submissions in this Court and those made to the trial judge, rather than separately canvass his Honour's reasons it is convenient to address the issue raised directly.

Construction of s 4 of the DMT Act

It was common ground that the task of construing s 4 of the DMT Act is to be conducted "by reference to considerations of text, context and purpose having regard to the mischief at which it was directed": Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4 at [23] (Kiefel CJ, Gageler and Keane JJ), [71] (Nettle and Gordon JJ). Context is to be understood in a broad sense and considered in the first instance: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); see also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
Section 3(1) of the DMT Act contains a number of definitions which apply "[i]n this Act, except in so far as the context or subject-matter otherwise indicates or requires". A "prohibited drug" is defined exhaustively to mean "any substance, other than a prohibited plant, specified in Schedule 1". By contrast, the term "substance" is defined inclusively, as follows: "substance includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers."
Section 25(2) of the DMT Act, being the offence provision in the present case, provides that "[a] person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence". The term "commercial quantity" is defined in s 3 to mean, in relation to a prohibited drug, "a number or amount, if any, specified opposite the … prohibited drug in Column 4 of Schedule 1".
Schedule 1 of the DMT Act includes "Psilocin and its derivatives being those derivatives having hallucinogenic properties" and "Psilocybin and its derivatives being those derivatives having hallucinogenic properties" as a prohibited plant or prohibited drug. The commercial quantity for both is 25.0 grams, and the large commercial quantity is 100 grams, while the indictable quantity is "25 DDU [discrete dosage unit] or 0.25g". Section 3(1) defines "discrete dosage unit" by reference to an amount specified opposite the prohibited drug in the sixth column of Schedule 1, "which is prepared or apparently prepared for the purpose of being administered as a single dose". The discrete dosage unit for psilocin and psilocybin is 0.01 grams.
I have set out s 4 above but given its brevity and its centrality to the argument I will set it out again: "In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug."
The focus of the appellant's argument was the words "other substance", read with the words that precede it, namely: "preparation", "admixture" and "extract". The appellant submitted that in circumstances where each of the preceding words invoked human involvement, "other substance" should be restricted to "species of that genus". He submitted that if the word "substance" was construed in accordance with the broad definition in s 3(1), the words "preparation, admixture, extract or other" would have no work to do.
The appellant submitted that the construction for which he contended was supported by the purpose of s 4, which he described as capturing substances which are created, altered or combined by human intervention. He referred to the second reading speech to the Drug Misuse and Trafficking Bill 1985, in which the then Attorney General referred to the DMT Act as overcoming the problem posed by the "mixture of drugs, such as heroin, with other non-prohibited substances": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 November 1985 at 10616. The Attorney made reference in this context to the process of "cutting" drugs or otherwise mixing them with other substances.
The appellant's argument involves reading the words "preparation", "admixture" and "extract" in isolation from the balance of the section, in particular the concluding words that qualify them: "containing any proportion of the prohibited drug". Coming at the conclusion of the list, but nonetheless read with the words that precede and follow it, the phrase "other substance" is intended to capture material that, if not a preparation, admixture, or extract, nevertheless contains a prohibited drug and other material that is not prohibited. Read as a whole, the focus of the section is not human involvement in the mixing of substances, as the appellant submitted, but with the fact of mixed contents, any proportion of which is a substance specified in Schedule 1.
That construction is consistent with the purpose of the provision, which "resides in its text and structure": Lacey v Attorney-General (Queensland) (2011) 242 CLR 573; [2011] HCA 10 at [44]. It is readily apparent from the terms of s 4 of the DMT Act that its purpose is to put beyond doubt that if material contains any proportion of a prohibited drug (defined in s 3(1) to mean "any substance… specified in Schedule 1") the material, in its entirety, will be treated as a prohibited drug for the purposes of the Act. That purpose is consistent with the structure of the offence provisions in the DMT Act by reference to the weight of prohibited drugs and prohibited plants. Leeming JA emphasised the significance of weight to the offence provisions in the DMT Act in El Kheir v R [2019] NSWCCA 288 ("El Kheir"), specifically when considering s 4: "[36] There may be an element of overlap or duplication in the provisions concerning admixtures. It will be seen that there may be two ways in which provisions relating to an 'admixture' apply: (a) directly through s 4, by requiring references in the statute to 'prohibited drug' to be read as references to admixtures containing a prohibited drug, and (b) indirectly, because the definition of 'prohibited drug' turns on 'substance' which itself includes an admixture. The precise effect of the provisions need not be analysed in any detail. Indeed the definitions in s 3 were not analysed in the parties' submissions in this Court - the applicant's written submissions did not mention any of these provisions, while his oral submissions were confined to s 4 (contrast for example the concession recorded in Woods v R [2017] NSWCCA 5 at [21(e)], which was based exclusively on the definitions in s 3). For present purposes, the consequence is simple enough. The Act requires identifying the weight of a prohibited drug, so as to determine whether the amount in issue is, inter alia, a commercial quantity, a large commercial quantity or an amount which is less than a commercial quantity. In determining the weight, what matters is not the weight of the pure drug which might be derived from a quantity of powder which has been 'cut down' with some other substance, or from a volume of liquid in which the crystalline form of a prohibited drug has been dissolved and from which it might be precipitated. What matters is the weight of the impure mixture containing the prohibited drug. [37] Section 4 of the Drug Misuse and Trafficking Act is an interpretation provision. It applies to references to 'prohibited drugs' elsewhere in the Act. No other sense can be given to its opening words 'In this Act, a reference to a prohibited drug includes ...'. Section 4 is not a deeming provision which applies in all circumstances. Its effect is limited. [38] Confined as it is to references to 'prohibited drugs' in the Drug Misuse and Trafficking Act, s 4 has real work to do. In particular, it will have a powerful effect on the availability of more serious charges available when a 'commercial quantity' or a 'large commercial quantity' of a prohibited drug is manufactured or supplied. A dilute mixture, which if purified might fall well short of a commercial quantity, might nonetheless sustain a conviction of a commercial quantity or even a large commercial quantity. What matters for the purpose of the elements of the offences created by the Drug Misuse and Trafficking Act, by reason of s 4, is the weight of the mixture, not the weight of the prohibited drug contained within the mixture. Similar consequences may apply in including the weight of cardboard intended to be ingested which has been impregnated with LSD should contribute to the weight of the prohibited drug: see Finch v R [2016] NSWCCA 133 at [117]-[144]. In that way, s 4 alters the elements of the offences created by the Drug Misuse and Trafficking Act. …" (Emphasis in [38] added.)
In the face of the identified mischief, one would not readily construe "other substance" in s 4 so as to exclude material that contains any proportion of a prohibited drug on the basis that it is naturally occurring. There is no relevant difference, for the purposes of determining quantity under the DMT Act, between heroin being mixed with non-prohibited substances like sugar, cocaine being cut with baking soda, and psilocybin forming part of organic matter. As Leeming JA stated in El Kheir at [38], "[w]hat matters for the purpose of the elements of the offences created by the [DMT Act], by reason of s 4, is the weight of the mixture, not the weight of the prohibited drug contained within the mixture".
The provisions of Part 2C of the DMT Act, on which the appellant placed some reliance, do not assist his arguments on s 4. Part 2C is titled "Offences involving psychoactive substances". Section 36ZD(1) sets out a number of definitions which apply "[i]n this Part", including "psychoactive substance", which means "any substance (other than a substance to which this Part does not apply) that, when consumed by a person, has the capacity to induce a psychoactive effect". The term "substance" is also defined, inclusively, to include "any plant, fungus or natural organism". Finally for present purposes, "psychoactive effect" is defined as follows: "psychoactive effect, in relation to a person who is consuming or has consumed a psychoactive substance, means - (a) stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or (b) causing a state of dependence, including physical or psychological addiction."
Referring to the definition of "substance" in s 36ZD, the appellant submitted that if "substance" included a plant, fungus or natural organism throughout the DMT Act, the s 36ZD definition would be redundant. I accept that the amended and the amending Act must be read together as a combined statement of the will of the Legislature: see Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 at [95]. However, the definition of substance in s 36ZD(1) does not give rise to a negative implication that the broad definition of "substance" in s 3 excludes such organic and natural material. As the Crown submitted, the definition in s 36ZD directs attention to particular matter in the context of Part 2C.
Section 36ZF creates a range of offences, including the knowing or reckless supply or manufacture of psychoactive substances, while s 36ZE creates a series of exemptions from the application of s 36ZF. In the second reading speech to the Bill that was enacted as the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Act 2013 (NSW), pursuant to which Part 2C was inserted, the Minister for Fair Trading explained the purpose of s 36ZE as follows (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 September 2013, at 23190): "The above offences represent a significant shift in drug enforcement. They seek to prohibit the sale of all psychoactive substances, both those existing and those yet to be developed, rather than prohibiting specific substances by prescription. Combined with the broad definitions, this means that exemptions from the offences are required to ensure that legitimate psychoactive substances are not inadvertently prohibited. It also exempts substances that, whilst illegitimate, are more appropriately dealt with elsewhere."
Section 36ZE(1) provides that the Part does not apply to, relevantly, "a substance specified in Schedule 1" (s 36ZE(1)(a)) and "any plant or fungus, or extract from a plant or fungus, that is not, or does not contain, a substance specified in Schedule 1" (s 36ZE(1)(h)). Referring to s 36ZE(1)(h), the appellant submitted that if s 4 captured organic matter which naturally contained a prohibited drug, then "[e]very plant or fungus which contained a prohibited drug would be specified in Sch 1" and "the category… envisioned by s 36ZE(1)(h) could not exist". The submission rests on a misunderstanding of s 4 and a misreading of s 36ZE(1): 1. Starting with s 4, it operates to extend the references to prohibited drug in the Act but it does not extend the definition of "prohibited drug". In order to satisfy the definition of "prohibited drug", a substance must be specified in Schedule 1. As the trial judge found, and as is not challenged, the prohibited drug in the present case was the psilocybin, not the mushrooms. It simply does not follow that every plant or fungus that contains a prohibited drug would be specified in Schedule 1. 2. As for s 36ZE(1)(h), it is formulated in negative terms: if a plant or fungus is not, or does not contain, a substance specified in Schedule 1, then it does not fall within the scope of Part 2C. This paragraph has to be read with s 36ZE(1)(a), which exempts from Part 2C substances specified in Schedule 1 (the effect of which is that only the offence provisions in Part 2 apply to those substances). The effect of these two paragraphs is to exempt from the operation of Part 2C, for example, herbal products that might be sold in health food stores which might have mild psychoactive effects. The Minister confirmed this was the purpose of s 36ZE(1)(h) in the second reading speech.
The appellant identified a number of potential consequences of the construction that the trial judge adopted which, in his submission, told against it. He submitted that the construction would perversely incentivise suppliers to purify mushrooms into a "more dangerous" form. He further submitted that the construction created injustice or absurdity because: (i) possession of a single dose of mushrooms is deemed to have a trafficable quantity; (ii) commercial and large commercial supply offences would apply to persons who supplied no more than a handful of recreational doses; and (iii) criminal liability would be expanded for organic material that has not been specified, even where some drugs and their plants of origin are separately listed within Schedule 1.
It is difficult to see why the trial judge's construction would motivate suppliers to "purify" mushrooms into more dangerous forms, let alone how they would achieve that end. As to the harsh consequences that the appellant submits flow from the trial judge's construction in terms of the quantities specified in the columns Schedule 1, there would be nothing to preclude the appellant relying on evidence such as he did in the present case by way of mitigation on sentence, just as an offender might rely on the purity or otherwise of other prohibited drugs, in respect of which the offender is found to have supplied a commercial quantity. It is also of some significance in this context that pursuant to s 40 of the DMT Act, which is a deeming provision titled "Effect of certain representations", a substance does not have to contain any prohibited drug and yet may be relied on to constitute an offence under the DMT Act if it is represented to be a prohibited drug. Section 40(1) provides: "(1) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited drug or a specified prohibited drug shall, for the purposes of this Act and the regulations, be deemed to be a prohibited drug or the specified prohibited drug, as the case requires."
In so far as the appellant submits that criminal liability would be expanded for organic material "that has not been specified", that submission involves the same misunderstanding of s 4 to which I have referred above. As to the appellant's submission regarding the consequences of the trial judge's construction in the present case for circumstances in which a prohibited drug, and a plant from which it originates, is specified in Schedule 1 of the DMT Act, such circumstances were the focus of the two decisions on which the appellant relied as supporting the construction of s 4 for which he contended, namely, Director of Public Prosecutions v Goodchild [1978] 1 WLR 578 ("Goodchild") and R v Keskic [1979] Qd R 348 ("Keskic"). Close examination of those cases highlight that those circumstances require special attention.
The appellant in Goodchild was relevantly convicted on a charge of unlawful possession of a cannabinol derivative, contrary to s 5(2) of the Misuse of Drugs Act 1971 (UK) c 38, in the form of some cannabis leaves and stalk. A "cannabinol derivative" was defined in Pt IV of Schedule 2 of the Act to mean "the following substances, except where contained in cannabis or cannabis resin, namely tetrahydro derivatives of cannabinol and 3-alkyl homologues of cannabinol or of its tetrahydro derivatives". There was also a provision, at the conclusion of Schedule 2 to the Act (which listed the controlled drugs dealt with by the Act) which incorporated "any preparation or other product containing a substance or product for the time being specified in [the list of drugs] above" (emphasis added).
The appellant was convicted on the basis that the parts of the cannabis plant and stalk did not fall within the statutory definitions of either "cannabis plant" or "cannabis resin", both of which were carved out of the definition of "cannabinol derivative". The prosecution contended that possession of naturally occurring material that did not fall within the express carve outs, and contained a cannabinol derivative, would constitute the offence of possession of a "cannabinol derivative". Lord Diplock noted that an inference derived from the presence of an exception was "notoriously a weak one", and the appellant should not be "gaoled upon an ambiguity": at 583. Resolution of the appeal thus did not turn on construction of the phrase "any preparation or other product containing a substance or product for the time being specified in [the list of drugs] above" that was specified in Schedule 2 of the Misuse of Drugs Act, which the appellant submitted was similar to s 4 of the DMT Act.
Lord Diplock did express the view that "prima facie one would not suppose that possession of naturally occurring leaf and stalk of the plant cannabis sativa of which a cannabinol derivative, tetrahydrocannabinol, was an unseparated constituent could be charged under the Act as possession of a 'cannabinol derivative'". The reasoning to that conclusion is important (at 582-583): "My Lords, the Misuse of Drugs Act 1971 is a criminal statute. It makes it an offence to be in possession of any of a long list of drugs and makes the gravity of the offence depend upon the class of listed drug into which the particular substance in his possession falls. Most, though not all, of the listed drugs in the three Classes A, B and C are described by their precise chemical name and are synthetic substances which do not occur in the natural state. In the case of these drugs there is no room for doubt or ambiguity. A substance either is the described synthetic drug (or a preparation or other product containing the described synthetic drug) or it is not. But there are some listed drugs which, although they can be synthesised, also occur in the natural state in plants, fungi or animals, and these include some of the most used narcotic drugs. It would not in my view be a natural use of language to say, for instance, that a person was in possession of morphine when what he really had was opium poppy-straw from which whatever morphine content there might be in it had not yet been separated; nor do I think it would be an apt use of language to describe the poppy straw as a 'preparation or other product' containing morphine, since this expression is inappropriate to something that is found in nature as distinct from something that is man-made. Regarded simply from the point of view of language the matter is in my view put beyond doubt as respects the specific narcotic ingredients found in opium poppies by the inclusion in the list as separate items 'opium' and 'poppy straw' as well as morphine, thebaine, codeine and several other specified alkaloids which are or may be constituents of opium and of poppy straw. A similar indication of the meaning of references in the Schedule to specific drugs by their scientific names is to be found in the inclusion as separate items of 'cocaine' itself and 'coca leaf' which contains cocaine and from which cocaine can be extracted. I should conclude, therefore, that prima facie a reference in Schedule 2 to a specific drug by its scientific name does not include a reference to any naturally occurring substance of which the specific drug is a constituent but from which it has not yet been separated." (Emphasis added.)
Lord Diplock's comments are not readily transferable to the context of the DMT Act, which (i) operates by reference to weight of prohibited drugs, as opposed to classes of drug; and (ii) as the Crown submitted, does not, in s 4, use the word "product", which is more closely associated with human intervention, but the much broader word "substance".
In Keskic, s 130 of the Health Act 1937-1976 (QLD) provided that a person shall not "have in his possession a dangerous drug, or a prohibited plant or procure for himself a dangerous drug or a prohibited plant or attempt so to do, save under and in accordance with the authority of a licence or other authorisation provided by or under this Act". Schedule 8 of the Act contained what Andrews J described as a list of drugs "most of which appear to be substances obtained by processing but it includes 'Cannabis and cannabis resin and extracts and tinctures of cannabis'": at 351. Regulation A2.06 of the Poisons Regulations of 1973 (QLD) relevantly provided that unless the context of a Schedule otherwise indicated, "[a] preparation, admixture or substance, containing any proportion of a substance specified in clauses (a), (b) or (c) hereof" was deemed to be specified in the Schedule. Clauses (a), (b) and (c) relevantly referred to the substance named or described, or an alkaloid or active principal of such a substance, or a salt or ester of a substance so specified. The Crown contended that read together, these provisions defined the cannabis sativa plant as a substance and the s 130 offence was established by proving as a matter of evidence that it contained tetrahydrocannabinol.
As in Goodchild, the relevant drug (tetrahydrocannabinol) was included in the list of controlled drugs along with separate items of the natural material, including the flowering or fruiting tops of the cannabis plant (at 582-584), so in Keskic the list of dangerous drugs included tetrahydrocannabinol (of which the accused had been charged with possession) and cannabis, cannabis resin, and extracts and tinctures of cannabis. This is important when considering the observation of Andrew J (Hoare and Campbell JJ agreeing) that there was nothing in the Act or the regulations in Goodchild that made its application to the legislation his Honour was considering inappropriate: at 355.
Schedule 1 of the DMT Act includes Cannabis leaf; Cannabis oil; Cannabis plant (cultivated indoors and otherwise); Cannabis resin; and tetrahydrocannabinol and its alkyl homologues (save for specific exceptions). The specific issue that arose in Goodchild and Keskic, regarding the cannabis plant, cannot readily be transposed to the particular issue before this Court. Nor does it follow that the decision of this Court in relation to s 4 and mushrooms containing psilocybin will lead to consequences of the generality for which the appellant contends.
I reject the reasons that the appellant advanced for a more confined construction of s 4. The trial judge was correct to conclude that the appellant was in possession of a quantity of prohibited drug which satisfied the threshold in Schedule 1 of the DMT Act for not less than a commercial quantity of psilocybin, for the purposes of the charge in s 25(2) of the DMT Act.

Conclusion

I propose the following order: 1. The appeal is dismissed.
ROTHMAN J: I have had the advantage of reading the circulated draft of Mitchelmore JA and the benefit of her Honour's carefully crafted and eloquently expressed reasons for judgment.
My initial reaction was to agree with those reasons and the outcome. Yet, the result has seemingly unattended consequences beyond these proceedings and beyond the drug or drugs here in question.
I rely on the reader of these reasons having read the reasons for judgment of Mitchelmore JA and will deal with the matters only to the extent necessary to understand these reasons. I should note that, in a perfect world, notwithstanding the different maxima prescribed for the sentence imposed depending on the interpretation adopted, one would hope that the sentence fixed and imposed would not differ substantially. Whatever be the construction of "admixture", the quantity of effective illicit drug is identical.
As remarked by Mitchelmore JA, the issue raised on appeal depends on whether the quantity of a drug in its natural vegetable state is determined by the total weight of the vegetable matter or by the quantity of illicit substance contained within the vegetable matter (including, in this case, fungus). Essentially, as Mitchelmore JA notes, the issue turns on whether s 4 of the DMT Act, by its use of the terms "admixture" and "other substance" extends to a drug in its natural state or is confined to a substance, which humankind has altered.
Magic mushrooms are not the only natural substance that contains illicit drugs. Poppies contain opium, including morphine and codeine. Even poppy seed contains morphine and codeine, although the amount will vary depending upon the location and process of manufacture. Of course, opium can be used to produce other narcotics, such as heroin and oxycodone.
Similarly, cannabis leaf or cannabis plant, in its natural state, contains THC (Tetrahydrocannabinol) of between 0.3% and 1.0% naturally. Higher levels may exist where the plant is cultivated artificially.
Usually, in drug offences, the illicit drug is found in a substance that had diluted the extracted drug. Thus, cocaine or heroin or other like drugs is extracted and "cut" to a purity that maximises the drug-trafficker's profit. Similarly, MDMA or "Ice" is extracted or manufactured by humans and diluted to that which is thought to be a saleable and profitable level.
There can be no suggestion that an illicit drug that has been derived from its natural state or manufactured, whether in a "pure" form or diluted into other, or by other, substances does not fall within the meaning of "admixture" or "other substance" in s 4 of the DMT Act.
It is appropriate to reiterate the relevant definition in s 4 of the DMT Act, which provides that "a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug". Ordinarily, an "admixture" is something added to a substance as a minor constituent or a mixture of different substances that have been mingled.
The appellant seems to be relying on the method of construction summarised by the maxim "ejusdem generis", which describes the process by which general words are limited to the "same class or genus" of the item to which the general words refer.
However, the method has been the subject of significant criticism and has been described as a "useful tool but poor master". Mahoney JA described it in the following terms: "The ejusdem generis process of reasoning has had a long but varied history; is based upon a doubtful premise; operates by a mechanism which is uncertain; and, to the extent that it presently operates, in my opinion, has real effect to determine the construction of a statute only in a limited area." [1]
The foregoing passage was cited with approval by Spiegelman CJ [2] , during which comments the Chief Justice also referred to the comments of Dixon J in Cody v J.H. Nelson [3] and Lord Diplock in Quazi v Quazi [4] .
Ultimately, the issue must be determined by the Court ascertaining the intention of the legislature from the words of the statute in a manner that achieves the purpose of the legislature and harmonious goals in their application. [5] Such a construction will not necessarily accord with the literal meaning. Nor is it derived by giving a dictionary definition to each (or any) word. Further, the Act must be read as a whole and the provisions construed within the purpose of the Act.
Plainly, the purpose of the DMT Act seeks to prohibit dealing, creating and possessing illicit drugs by creating criminal offences. The term "drug" is not defined. Yet the term "prohibited drug" is defined by reference to a list of substances specified in Schedule 1. Using one of the earlier examples, THC is specified as a prohibited drug "except … where separately specified in the Schedule". Cannabis leaf (and plant) is specified separately.
Thus, cannabis leaf (with currently irrelevant exceptions) is a prohibited drug, in and of itself. So too is cannabis plant.
Codeine and morphine are prohibited drugs as is coca leaf and "Concentrate of poppy straw". To add to the foregoing matrix, the term "substance" is defined to include "preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers".
Given the use of "other substance" in s 4 of the DMT Act, there is a degree of circularity. Often, in such circumstances, the circularity leads to the conclusion that the word should take its ordinary, rather than its defined, meaning. Nevertheless, no drug (leaving aside the theoretical possibility of laboratory-created substances in a vacuum) is ever "wholly" pure. There are always additives or impurities, even if insubstantial.
The foregoing is intended to set the context for the construction of the DMT Act and the purpose of the legislature. The use of the term "other substance" would necessarily include prohibited drugs in the form of a salt, ester or ether, each of which are within the ordinary meaning of "substance" and within the extended defined meaning.
Are the mushrooms a substance, as defined or otherwise? If not, is that which is supplied (or possessed or cultivated) only the drug within the mushrooms? Is the answer informed by the hypothetical issue relating to poppyseed? If a baker possesses 10 kilograms of poppyseed for the purpose of baking poppyseed cake, is the baker in possession of 10 kilograms of codeine and/or morphine?
The circumstance that law enforcement officers are unlikely to charge the aforesaid hypothetical baker in possession of poppyseed does not resolve the tension. Rather, the tension is resolved by resort to first principles. A drug is something (a substance perhaps) having a narcotic, hallucinogenic or therapeutic effect. The inclusive definition of a prohibited drug in s 4 of the DMT Act is not exhaustive, nor does it confine the ordinary meaning of the term "drug" or "prohibited drug".
Something that is sold in a form capable of being consumed (or possessed in such form) for the narcotic, hallucinogenic or therapeutic effect, is a drug, within the ordinary meaning of that word. Cocaine or MDMA, regardless of its purity, possessed, sold or created in a form, capable of consumption as a drug, is a drug, as is any other such material. They are "drugs" whether or not the extended definition of prohibited drug is utilised.
Returning then to the issue at hand, the learned primary judge determined that the reference in Schedule 1 to the DMT Act were the specific substances psilocin and psilocybin. No issue arises in this appeal as to that conclusion.
The learned primary judge also concluded that the prohibited drug extended to the mushrooms in which those prescribed and prohibited drugs were found. The mushrooms, relevantly, were in the possession of the appellant.
The mushrooms are in a form in which the prohibited drug or drugs are capable of being consumed as such, in order to provide the effect of those prohibited drugs. As such, my preferred view is that the mushroom is a consumable form of the drug and is included in the ordinary meaning of the term "drug", and, in this case, "prohibited drug".
It is the mushroom that is the prohibited drug or drugs, psilocin and/or psilocybin in a consumable form, and the weight of the drugs is the weight of the drug in that form and, therefore, equivalent to the weight of the mushrooms.
If the prohibited drug were not in a form that was capable of being consumed, e.g. was required to be cooked or distilled or otherwise chemically treated, and was not in its natural state, then the "prohibited drug" would be a drug within the extended meaning of s 4 of the DMT Act. If the prohibited drug were in its natural state and incapable of practical consumption in that state to provide the narcotic, hallucinogenic or therapeutic effect of the drug, then the material would be neither a drug, prohibited or otherwise, in the ordinary meaning of that term, nor within the inclusive meaning provided by s 4 of the DMT Act.
In other words, the "prohibited drug" prescribed in Schedule 1 of the DMT Act denotes the substance in its "pure" or naturally occurring form, if, in its naturally occurring form, the effect of consumption in that form is the effect of the drug i.e. it has its perceived narcotic, hallucinogenic or therapeutic effect. If it is in any other form, it is a "prohibited drug" by operation of the extended definition in s 4 of the DMT Act.
In this way, the tension in the DMT Act and its Schedule disappears. Poppyseed, in its natural form, would not be a prohibited drug because it has no effect as a drug when consumed in that manner. Further, such a construction also explains or harmonises the legislature's exception for otherwise specified items and the need to specify separately coca plant, cannabis plant and cannabis leaf.
Lastly, I make it clear that, if my construction were determined to be incorrect, then I would agree that the mushrooms could fall within s 4 of the DMT Act. I would do so, because such a result would then be the only way of reconciling the tension, achieving harmonious goals and giving effect to the purposes of the legislature.
For the foregoing reasons, I agree with the orders proposed by Mitchelmore JA that the appeal should be dismissed.
WILSON J: I agree with the order proposed by Mitchelmore JA, for the reasons her Honour has given.

Endnotes

Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373.
DCT v Clark (2003) 57 NSWLR 113 at 143.
74 CLR 629; [1947] HCA 17.
[1980] AC 744 at 807-808.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [31]-[49] (Kiefel CJ and Keane J) and at [124]-[125] (Bell and Gageler JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2024

Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Act 2013(NSW)

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