R v Jenkinson

District Court of NSW|2022-04-07

Director of Public Prosecutions (NSW) (Crown) Hamilton Janke Lawyers (accused) File Number(s): 2020/00131225

INTRODUCTION

On Wednesday, April 6, 2022, the trial of Thomas Jenkinson was mentioned before me in the District Court, Newcastle, to provide material to be the subject of voir dire proceedings to determine a preliminary question of law before commencement of the trial before me as a judge alone, without a jury.
The accused was absent but represented by his solicitor and the Crown was represented by a Crown Prosecutor.
After a brief discussion, the Crown provided informally a bundle of material, including written submissions upon the question of law to be resolved and written submissions prepared by the accused's counsel, provided by his solicitor.
The proceedings were adjourned to commence the following day. The accused's counsel was detained in a trial in Sydney which had exceeded the anticipated time. He attended on April 7, 2022, for the presentation of evidence on the voir dire from an analyst employed by the Forensic and Analytical Science Service, after which the trial was adjourned until later in the day after counsel had attended to his commitments in other proceedings.

THE VOIR DIRE

The accused was arraigned and pleaded not guilty to the sole count on the indictment but, upon the application of s 25(3) Drug Misuse and Trafficking Act 1985, pleaded guilty to an offence of supply prohibited drug, contrary to s 25(1) of the Act. The Crown did not oppose that course.
The offence upon the indictment before the court alleges that the accused, "On 1 May 2020, at Nelsons Plains in the State of New South Wales, 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 (s 25(2) Drug Misuse and Trafficking Act 1985.)" The alternative was read, alleging the accused, "On 1 May 2020, at Nelsons Plains in the State of New South Wales, did supply a prohibited drug, namely psilocybin (s 25(1) Drug Misuse and Trafficking Act 1985)." To this, he pleaded guilty.
The Crown bundle was marked exhibit A on the voir dire, supplemented by a signed copy of an agreed statement of facts. The submissions were received in written form. Thereupon, the Crown called Timothy Hudson. Subsequently, Dr Michael Robertson gave evidence on behalf of the accused. It was proposed that their evidence would be tendered in the trial without the need to recall them. Their evidence was, in large measure ad idem, with no credit issues enlivened.

THE FACTS

The facts leading to the accused's arrest are uncontroversial. He was in a parked car, about 10.30pm on May 1, 2022, in Nobles Road, Nelsons Plains. He was approached by police. The car was registered to him. It was a 2010 Holden Cruze with registration XXX XXX. After an initial conversation, the police executed a lawful search of the car, during which they found the following items: 1. Plastic resealable bag with cannabis leaf in the front passenger seat; 2. Silver weighing scales in the front passenger seat; 3. $940 in Australian currency in an elastic band in the centre console; 4. $1,300 in Australian currency inside the wallet located in the centre console; 5. $150 in Australian currency inside a wallet located in a jacket on the front seat; 6. A large plastic container in the rear passenger foot well, containing, 1. 12 plastic bags containing mushrooms; 2. a bag containing four empty plastic capsules.
The above items were in the possession of the accused in the circumstances in which they were found. The accused was placed under arrest and transported to Raymond Terrace Police Station. The accused declined to participate in an interview with the police.
The seized items above were analysed by the NSW Health Pathological Forensic and Analytical Science Service and found to contain the following: FASS D2020002692 1. Reference XD500005823 Item 1.1, 63.7 grams of vegetable matter. Item 2.1, 34.3 grams of vegetable matter. FASS D2020002693 1. Reference XD700089410 Item 1, 1.3 grams of cannabis leaf. The vegetable matter identified in the item FASS D2020002692 weighed a total of 98 grams.
I have extracted the information from the agreed statement of facts filed in the proceedings and acknowledged by the accused and on behalf of the Crown. The document was prepared in accordance with s 191 Evidence Act 1995. Upon the material before me, I am satisfied that the accused agreed to these facts upon the advice of his lawyers.
There is no evidence as to how one consumes mushrooms for the effect of the active constituent, but the submissions made were consistent with the proposition that they may be taken orally, either in their vegetative form, or by way of an infusion from steeping the vegetable matter in water. It is one of those facts of which I would take notice for the purpose of the proceedings, that mushrooms containing this prohibited drug are consumed in those fashions.
Evidence from Dr Robertson, called on behalf of the accused, included that if the appropriate procedures were available, psilocybin could be separated from the mushrooms into a near pure form. It is not denied that the mushrooms found contained a quantity of psilocybin. According to the accused's argument, it is that quantity of the prohibited drug found in the mushrooms upon which the accused should be prosecuted and found guilty, not the bulk of the mushroom material in which it was found.
The Crown asserts that it is the weight of the vegetable matter in the form of the mushrooms in which the drug was found that founds the accused's liability, relying on the definition of the term "admixture" in s 4 of the Act.

DISCUSSION

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, Drug Misuse and Trafficking Act 1985, 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.
Mr Hudson's certificate of analysis refers to 13 resealable bags, each one containing vegetable matter; vegetable matter in six of the bags was found to contain psilocin and was also indicated to contain psilocybin. The total weight of the vegetable matter was 98 grams, the quantity averred in the indictment.
The identification of the prohibited drug psilocin and the indication that the material also contained psilocybin was upon analysis performed using representative samples of the mushrooms and not all of them. This practice follows an internationally accepted method of sampling, subject to the drug being suitable for sub-sampling whereby police select the samples to be submitted and delivered to the Forensic and Analytical Science Services for analysis.
There is no criticism of this practice, but questions were asked of Mr Hudson regarding the practice in support of the proposition advanced on behalf of the accused.
The quantity of psilocybin in the vegetable matter and the quantity of psilocin in the vegetable matter were not specified. This, as I understood the evidence, was because of the nature of the testing undertaken by the analyst in respect of which Mr Hudson provided his report.
Evidence was elicited to the effect that, subject to the facilities being available, an appropriate analysis could reveal the pure content of the prohibited drug in vegetable matter such as this.
Provisions in the Act to which the parties referred are as follow, with my emphasis: S 3(1) provides the following definitions with a preamble expressed thus: "(1) In this Act, accepting so far as the context or subject matter otherwise indicates or requires ---" "'Prohibited drug' means any substance, other than a prohibited plant, specified in sch 1." "'Prohibited plant' means - (a) a cannabis plant cultivated by enhanced indoor means, or (a1) a cannabis plant cultivated by any other means, or (b) any growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Papaver orientale or Papaver bracteatum, or (c) any growing plant of a description specified in an order in force under subs (2), but does not include any growing plant, referred to in para (a), (a1) or (b), of a description prescribed for the purposes of this definition." The descriptions of plants other than those identified as cannabis do not have any significance in these proceedings. "'Substance' includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers." "'Supply' includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those actual things."
The plea of guilty by the accused to the alternative charge reflects the Crown case to be advanced at trial, that he had the vegetable matter in his possession for the purposes of supply. No other inference would be available, in my view, from the quantity that he had, from the circumstances in which it was found, and from the indicia of drug supply found in the accused's motor vehicle.
S 4 provides the definition of admixture. "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."
Pt 2C, Drug Misuse and Trafficking Act 1985 was introduced for the control of the supply, manufacture, and advertising of psychoactive substances. In this part, definitions provided in s 36ZB (1) include, "'Substance', "includes any plant, fungus or natural organism." S 36ZE excludes from Part 2C substances specified in sch 1.
The active constituent in cannabis is included in sch 1: "Tetrahydrocannabinol and its alkyl homologues, except, 1. where separately specified in the schedule, or 2. in hemp seed oil, containing 50 mg/kg or less of tetrahydrocannabinols when labelled 'Not for internal use' or 'Not to be taken', or 3. in products for purposes other than internal human use containing 50 mg/kg or less of tetrahydrocannabinols, or 4. hemp seeds for human consumption containing 5 mg/kg or less of tetrahydrocannabinols where the seeds have had their hulls removed and are non-viable, or 5. hemp seed oils for human consumption containing 10 mg/kg or less of tetrahydrocannabinols, or 6. beverages made from hemp seeds if the beverage contains 0.2 mg/kg or less of tetrahydrocannabinols."
Thus, mushrooms are not included in sch 1, whereas cannabis, in its various forms, is included, defined as "prohibited plant" in s 3 of the Act. The active constituent in mushrooms is included in sch 1, as is tetrahydrocannabinol, the active constituent in cannabis, subject to the exceptions listed.
I note that the preamble in the definition of s 3(1), "In this Act, except in so far as the context or subject matter otherwise indicates or requires - " is not replicated in the provision introducing the definition of admixture in s 4.

SUBMISSIONS

The point advanced on behalf of the accused has two primary submissions.
First, the reference to psilocybin and psilocin, used in sch 1, is intended as a reference to the specific substances and not to mushrooms in which they are found. I accept this to be so.
Secondly, the term "admixture" does not apply to the vegetable matter in the form of the fungi in which those substances are found naturally, but is confined to artificially combined bulk, including the prohibited drug. Reasons offered in support of this proposition are, 1. In sch 1 the quantities specified in the six columns as measures respectively for trafficable quantity, small quantity, indictable quantity, commercial quantity, large commercial quantity, and discrete dosage units are, except in three respects, expressed in terms of discrete dosage units, interchangeably with measures of weight or mass, with one discrete dosage unit equivalent to 0.01 grams, which must refer to the extracted form of the prohibited drug, and 2. One discrete dosage unit is what would be ordinarily required to experience a recreational effect of the prohibited drug.
This, it is submitted, leads to the conclusion that the commercial quantity for the purposes of the offence charged in the indictment is 100 grams of prohibited drug and not the 98 grams of mushrooms in which it was found.
I do not accept this submission for reasons I shall explain when dealing with the interpretation of the definitions relevant to the question.
It is submitted that the inclusion of cannabis as a prohibited drug, separately from the active constituent tetrahydrocannabinol, which is also included in sch 1, in contrast to the inclusion only of psilocybin and psilocin in the schedule, suggests a clear intent by the legislature to prohibit only the active ingredient of hallucinogenic mushrooms under the Act.
I do not accept this argument.
Inclusion of tetrahydrocannabinol in sch 1 is qualified, included as a discrete substance except where separately specified in this schedule, or in hemp seed oil containing 50 mg/kg or less of tetrahydrocannabinols, when labelled "Not for internal use" or "Not to be taken", or in products for purposes other than internal human use containing 50 mg/kg or less of tetrahydrocannabinols, or hemp seeds for human consumption containing 5 mg/kg or less of tetrahydrocannabinols where the seeds have had their hulls removed and are non-viable, or hemp seed oil for human consumption containing 10 mg/kg or less of tetrahydrocannabinols, or beverages made from hemp seeds if the beverage contains 0.2 mg/kg or less of tetrahydrocannabinols.
In short, tetrahydrocannabinol is a prohibited drug by inclusion in sch 1 unless it is part of the substance listed within this range of exceptions for therapeutic use.
I do not agree that the inclusion of tetrahydrocannabinol in these terms supports the proposition that the inclusion without qualification or exceptions of the substances psilocybin and psilocin reveals a legislative intention to confine the sanction for offences in respect of those substances to conduct in respect of the pure or the near pure form.
It was also submitted on behalf of the accused that the inclusion of Part 2C of the Act to regulate psychoactive substances, with a further definition of the term "substance" to include plant, fungus, or natural organism, which would catch mushrooms such as were found in the possession of the accused, provides further support for the accused as guidance for the court when considering whether the provisions in the Act relevant to the present question, properly interpreted, exclude such vegetable matter from the term "admixture" and the term "substance".
I do not agree with that submission.
Part 2C was introduced to the Act for offences involving psychoactive substances, which could include mushrooms but for the exclusion from application to a substance specified in sch 1 by s 36ZE found within Part 2C of the Act.
Pt 2C was introduced in 2013 by the Drugs and Poisons Legislation Amendment (New Psychoactive and other Substances) Act 2013, assented to on 24 September 2013, with the date of commencement 7 October 2013 whilst the other provisions to which I was taken were extant and operative.
The provisions in Part 2C are confined to the purposes of that portion of the Act and do not assist in resolution of the decision presently required. They include no reference to the modification of the provisions extant at the time of amendment. The submission would require the court to come to the view that the intention of the legislature revealed in the new provisions reflects the understanding and purpose advanced on behalf of the accused, that existed at the time of the legislative purpose for the extant provisions. I do not accept this to be so.
Resolution of this dispute turns upon interpretation of the definition of "admixture" in s 4 of the Act. There is no authority found that addresses the point advanced, though cases dealing with sentencing have proceeded upon the unchallenged premise that it is the bulk of the mushroom material in which psilocybin or psilocin occurs naturally which is the relevant quantity.
Examples were proffered by the Crown: Cunningham v R [2017] NSWCCA 222, para [22], where McCallum J wrote, with the agreement of the Chief Justice and the Chief Judge at Common Law (my emphasis): "In those circumstances, the charge and sentencing task rested critically on the deeming provision in s 29 of the Drug Misuse and Trafficking Act. That section provides that possession of an amount of prohibited drug which is not less than the trafficable quantity is deemed to be for supply. The trafficable quantity for psilocin is 0.15 grams. The weight of the mushrooms possessed by the applicant was 15.86 grams."
Then, in Woods v R [2020] NSWCCA 219, at para [19], Wright J wrote, with the agreement of the Chief Justice (my emphasis): "The State offences, sequence 12 (with sequence 11 taken into account on a Form 1), sequence 22 and 26 were found to have occurred as a result of a controlled operation and involved what is set out below. (1) Sequence 11 - On 12 and 20 April and 4 and 11 May 2017, an undercover officer purchased a total of 10.55 grams of MDMA for $1,280 from the applicant's co-offender, with whom the applicant was in a relationship. The applicant knowingly supplied those drugs to the co-offender for the purpose of receiving a financial and material gain for each separate supply. (2) Sequence 12 - Between 17 May and 6 June 2017, two undercover officers purchased a total of 45.44 grams of MDMA from the applicant on three separate occasions. The applicant knowingly supplied those drugs to the undercover officers for the purpose of receiving a financial and material gain for each separate supply. (3) Sequence 22 - After the applicant was arrested on 27 July 2017, his home was searched and 34.67 grams of cocaine was found in a locked safe underneath his bed. The applicant had disclosed that an ounce of cocaine was in the safe and provided the PIN to open the safe. (4) Sequence 26 - On 27 July 2017, a plastic bag containing dried mushrooms was also found in the locked safe and this material contained 25.3 grams of psilocin. The applicant told police in a subsequent interview that he had purchased the material online. While the quantity found exceeded the commercial quantity of psilocin, it was an agreed fact that the crown could not prove beyond reasonable doubt that the applicant knew that the quantity exceeded the commercial quantity."
The judgement in that decision, as I understand it, was crafted upon the premise that the term "psilocin" was interchangeable with the term "vegetable matter" that would have applied to the bulk.
The ultimate submission on behalf of the accused is that the term "admixture", as it is defined in the Act, refers to a blend of materials, including prohibited drugs, which has been created by intervention and not occurring naturally, such as in the case of mushrooms.
Thus, as the Crown submitted, the resolution of the question turns upon the meaning of the terms as used in the Act to which I have referred.

CONSIDERATION

The definitions given to "prohibited plant" and "prohibited drug" are exclusive. "Prohibited drug" means any substance other than a prohibited plant specified in sch 1. The effect of this is that psilocybin and psilocin are prohibited drugs. The definition of "prohibited plant" does not extend to include plants or fungi such as are the subject of this trial.
By force of s 4 of the Act, reference to a prohibited drug in the Act includes a reference to any preparation, admixture, extract, or other substance containing any proportion of a prohibited drug.
Of importance in this inclusive definition is reference to any preparation or admixture or other substance. The definition of "substance" includes preparation and admixture. There is thus a measure of circularity in the structure of these provisions.
The term "preparation" is not defined but it must, in my view, be read as the product, the result of activity of preparing, involving intervention rather than a product occurring naturally. Even the most rudimentary research reveals the meaning of the term to include the action or process of making something ready for use or service and is equally referrable to the product brought into existence by means of the actions for preparation.
The mushroom seized could not be viewed as a preparation in the circumstances before the court. Indeed, the inclusion of psilocybin and psilocin in the vegetable matter must have been a natural occurrence, without intervention, which would have been confined, I expect, to the harvesting of the fungi and the storage in plastic bags.
The inclusive form of these definitions and specifically as used in the definition of the term "substance" supports the proposition that the legislature has not excluded from the meaning of "admixture" and "substance" vegetable matter, such as in this case. The question to be answered, though, includes whether the legislation should be read as to extend to vegetable matter, such as in this case.
In El Kheir v R [2019] NSWCCA 288, the court was concerned with s 4 of the Act. Leeming JA, with whom the other members of the court agreed, wrote, at [34] and following: "34. 'Admixture' is not a word in common usage. It derives from much earlier cognate legislation. A similar definition of 'substance' (to include 'preparation or admixture of any substance') was found in s 3 of the Poisons Act 1952 (NSW); see now s 4 of the Poisons and Therapeutic Goods Act 1966 (NSW). The word was also found in s 18(2) of the Police Offences Amendment (Drugs) Act 1927 (NSW). That legislation directly criminalised, inter alia, the manufacture of opium (s 19(1)(a)) and authorised the making of regulations to prohibit the manufacture of 'any drug to which this Part of this Act applies' (s 20(1)(a)). That Part applied to four drugs in addition to opium: morphine, cocaine, eegonine, and heroin 'and any preparation, admixture, extract or other substance containing not less than one-fifth percentum of morphine or one-tenth per centum of eegonine, cocaine or [heroin]': s 18(2). 35. It is clear from the prohibited drugs to which 'admixture' applies (and has for many years applied) that it extends to mixtures of powders, mixtures of liquids and cases where a solid is dissolved in a liquid. English in this respect lacks the precision of Latin, where Roman law distinguished between confusion and commixtio: see R Hickey, 'Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title' (2003) 66 Modern Law Review 368 at 369-372. For present purposes, I regard 'admixture' and 'mixture' as synonymous, and will refer to the former only when dealing with the legislation. 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]-[114]. In that way, s 4 alters the elements of the offences created by the Drug Misuse and Trafficking Act."
The decision in Finch v R [2016] NSWCCA 133, concerned cardboard impregnated with LSD and reference was made to substances and capsules. At 142, Payne JA, with whom the other members of the court agreed, wrote: "On the evidence here, the cardboard was designed to be swallowed and, accordingly, the cardboard impregnated with LSD was ingested by a user. The cardboard was not analogous to a container or syringe from which the user extracted a drug. A much closer analogy would be the non drug content of a film coating or a gelatin capsule used in the production of lawful drugs in the way described by the Federal Court in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132. That film coating or gelatin capsule is an integral part of the ingestion by the user of the drug. In the same way here, the cardboard impregnated with LSD was an integral part of the ingestion by the user of the drug and thus a 'preparation' or a 'substance' within the meaning of s 4."
The point urged on behalf of the accused is that there is a distinction between the combination of the naturally occurring prohibited drug in the plant form from which it could be derived in pure and impure form and the blend of that prohibited drug through intervention with other material to produce an admixture as defined in s 4. It is the absence of human intervention for the creation of mushrooms and the active constituent that separates this material from that contemplated by the courts, in the authorities to which I have been taken by the Crown.
The flaw in that argument, in my view, is that it ignores the circumstance where a person was engaged upon the propagation and growth of mushrooms containing these substances for distribution or use as prohibited drugs.
In the authorities that were discussed, the courts were not called upon to deal with the nature of mushrooms and the active constituent, the subject of this prosecution. However, I am satisfied that the reasoning that is revealed, particularly for example that offered by his Honour Justice Leeming, supports the argument for which the Crown contends.
I am not persuaded that these authorities support the view that the definitions with which the court is concerned are to be read down to lead to the conclusion for which the accused contends.
Counsel on behalf of the accused advanced principles of statutory interpretation, including the ejusdem generis rule of statutory interpretation, however, my assessment of the provisions within the context in which they are found in the Act, leads me to the view that the argument advanced by the Crown is the correct one.

DECISION

Accordingly, I find that the quantity of drug for the purposes of this prosecution should be presented as 98 grams of the bulk vegetable matter of which the specified prohibited drug was a part.

Amendments 10 October 2022 - Corrected typographical errors 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: 10 October 2022

Poisons Act 1952(NSW)

Police Offences Amendment (Drugs) Act 1927(NSW)

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