R v Quint

The Evidence at Trial

1. The first exhibit in the Crown case was a document signed by the accused, his counsel and the Crown Solicitor Advocate by which the accused made admissions pursuant to s 184 of the Evidence Act 1995 (NSW) that: 1. In January 2019, [the accused] lived in an apartment at 199 Faulkner Street, Armidale; 2. [The accused] cultivated the 58 plants located at 199 Faulkner Street, Armidale by police on 3 January 2019; 3. [The accused] did not hold a licence to possess or cultivate the cannabis plants.
2. Unsurprisingly, in light of these admissions, the only other evidence in the Crown case was some evidence from the Officer in Charge, Plain Clothes Constable Lee-Winser in respect to the detection and arrest of the accused and some photographs of the cannabis plants found at the accused's address in Armidale.
3. The accused gave evidence. That evidence included a history of significant back pain, probably related to his prior employment in sawmills. This pain required medication and, eventually, surgery by way of a discectomy for his lumbar spine. He said the medication resulted in severe side effects.
4. He also gave evidence that from about 1998, he started suffering from pain due to a condition diagnosed as trigeminal neuralgia. This caused and continues to cause him significant, life-altering pain. It restricted him from engaging in ordinary day-to-day activities. He had suicidal ideations but had never attempted suicide.
5. He began using cannabis to treat his pain from about 2016. He obtained the cannabis (male heads of the plant and seeds) on the "black market". I take this to mean he illegally obtained the cannabis.
6. He said the cannabis helped with his pain immensely. It enabled him to do things he had not previously been able to do. He said there were no side effects from the cannabis, unlike the prescription pain medication he had been taking.
7. He had been consulting a local doctor, Dr Martin, from about the early 2000's. He raised the use of cannabis to alleviate his pain with Dr Martin in about 2016. Dr Martin mentioned to him the name of Dr Katelaris in Newcastle. There was no direct referral by Dr Martin.
8. The accused made contact with Dr Katelaris and started obtaining cannabis products from him in about 2017. It should be noted that Dr Katelaris had had his registration as a medical practitioner cancelled and was not authorised to prescribe cannabis products to anyone, including Mr Quint. Thus, his provision of those products to Mr Quint, and Mr Quint's receipt of them, was unlawful.
9. Mr Quint was aware of the existence of the medicinal cannabis program whereby cannabis products could be lawfully prescribed to eligible persons. He did not make an application for access to cannabis products through the scheme nor did he ask Dr Martin to prescribe him with those products or assist him in obtaining them through the scheme. He thought the cost of the prescription medicinal cannabis products would be prohibitive. Mr Quint did not seek a second opinion from another practitioner on access to the medicinal cannabis scheme.
10. Mr Quint was aware that a licence could be sought for cultivating cannabis, but he did not take any substantive enquiries other than a Google search that led him to believe he would not qualify for such a licence.
11. He gave evidence that he understood that it would take about 3 months from the planting of the cannabis seeds for a plant to grow so that it could be harvested and used for medicinal purposes.
12. He said once he learned that the supply of products from Dr Katelaris may not continue, he began to cultivate the cannabis, as he was worried that he would have suicidal ideations because of the pain. He was aware that he could have sought treatment for any suicidal ideations, but did not do so because one of the treatment options may have been to commit him to a mental institution for treatment.

Evidential Burden

1. The accused bore the evidential burden to establish a basis for the defence of necessity.
2. Where an accused bears an evidential burden, that burden is discharged if there is evidence which taken at its highest in favour of the accused could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence had been negatived. The legal burden then shifts to the Crown to negative the defence beyond reasonable doubt. The question whether the evidential burden has been discharged is a question of law for the trial judge: Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at [36].

Legal Principles: Necessity

1. The history and elements of the defence, or excuse, of "necessity" were discussed by the Court of Appeal in Veira v Cook [2021] NSWCA 302 at [7]-[19] per Meagher JA. This included a reference to the test stated by the Full Court of the Victorian Supreme Court in R v Loughnan [1981] VR 443 at 448-449: It will be seen…that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect…. The other elements involved…can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another. The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril… [A]ll the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed. The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?
2. The defence was considered in R v Rogers (1996) 86 A Crim R 542. In that case, the trial judge had refused to leave to the jury the necessity defence for a charge of escape from lawful custody, in circumstances where there was available to him an alternative course of bringing the threats made to him to the attention of prison authorities and seeking protection. The Court of Criminal Appeal upheld the trial judge's decision, however, in doing so held that the requirements of urgency and immediacy of the threatened harm should not be treated as conditions for the existence of necessity, but rather as "factual considerations" relevant to the issues as to the accused's belief, and the reasonableness and proportionality of his or her response. This was because the Court considered the defences of necessity and self-defence as being closely related.
3. Gleeson CJ (Clarke JA and Ireland J agreeing) said at 546-547: The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed. This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic, it is now more appropriate to treat those "requirements", not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.… … [W]here the accused's conduct, otherwise unlawful, is sought to be excused on the basis that it was a response to a threat of death or serious injury to the accused, the first question is whether it was, in truth, such a response.… The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.… The concept of reasonableness…introduces into the consideration of possible alternatives an appropriate concession to practical reality. It is not, however, intended to provide scope for the making choices or value-judgments of a kind which undermine the principle itself. Reasonableness is not designed to allow people to choose for themselves whether to obey the law.
4. In Veira v Cook [2021] NSWCA 302, Meagher JA said (at [41]-[43]): There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law…. The applicant's formulation of the threatened harm which may engage the necessity defence would leave people free to do what Gleeson CJ said the defence "cannot" do, namely "to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law" (Rogers at 546). It contemplates that the person responding to the threatened harm does so having first made a value judgement as to its being "not less than" the harm involved in the unlawful conduct.
5. Finally, in B v R [2015] NSWCCA 103 at [306], Simpson J said that financial hardship does not meet the high test in Rogers.

Consideration

1. I do not consider that the evidence given by Mr Quint taken at its highest in favour of him could lead a jury, properly instructed, to have a reasonable doubt that the defence had been negatived. That is, I did not consider that Mr Quint had discharged his evidential burden. Accordingly, I did not leave the defence to the jury.
2. In my opinion, the evidence of Mr Quint did not disclose an imminent threat of death or serious injury to him or anyone else. Accepting, as I must, from Rogers that the imminence of the threat is not an element of the defence, but one of the factual considerations relevant to the issues as to the accused's belief, and the reasonableness and proportionality of his response, this does not change my view. Not only was there not an imminent threat, but there was not a threat of death or serious injury.
3. As to the nature of the threat, it was that if or when the supply of cannabis products from Dr Katelaris ceased, the accused would be faced with the prospect of not having cannabis to treat his terrible pain caused by the neuralgia. He could have gone back to prescribed medications, but he feared that they didn't work to relieve him of the pain and he experienced terrible side effects from these drugs.
4. He said he feared having to go back to those medications and "suicidal tendencies" from the extreme pain. He said he was "going to probably hurt" himself. When asked what he did to avoid the need to contemplate suicide, he said "Well, that brings us to the cultivation" (T 22.36).
5. He said he thought it would take "the summer" after planting to get suitable cannabis plants to yield products he could use. I take that to be about the 3 months I referred to above.
6. I do not regard this evidence as indicating a risk of death or serious injury to Mr Quint. Admittedly, the neuralgia caused him life-altering pain. However, there were the prescription alternatives. Whilst he said they did not work as well as the cannabis products and had side effects, they were lawful and did relieve, at least to some extent, his symptoms.
7. Further, to the extent that he feared that once the cannabis products became unavailable from Dr Katelaris he would have suicidal thoughts, this was not imminent. It was to take three months to get the cannabis products ready by cultivation. There is no evidence as to how long it was to be before the products became unavailable though Dr Katelaris.
8. He could have sought treatment from Dr Martin or a psychiatrist/psychologist with respect to his suicidal ideations. There may have been medications and/or treatments that did not involve him being committed to a mental health unit for treatment. He did not explore those options. It was not a reasonable response to the future loss of cannabis products from Dr Katelaris, with the benefits they gave him, to simply commence cultivating his own cannabis knowing this was unlawful.
9. For the defence to be available, if the first question of responding to an imminent threat of death or serious injury is answered in the affirmative, then the question is whether Mr Quint honestly believed on reasonable grounds that his actions in cultivating the cannabis in the circumstances was a necessary response to the threat of the return of the pain and potential suicidal ideations. In my opinion, there were no reasonable grounds for any such belief, taking the evidence at its highest in his favour.
10. He had the time to explore other lawful alternatives or return to the prescription medicine, even though it was not as effective as the cannabis. He had the option and time to obtain treatment for his suicidal thoughts.
11. He had the option and time to apply for legally prescribed cannabis through Dr Martin or other medical practitioners. Even though he thought this would cause financial hardship, that is not enough to justify him turning to criminal conduct in cultivating his plants (see B v R, ibid).
12. The evidence at its highest did not establish that he had no real choice other than to criminally cultivate his own cannabis. The formulation of the defence by him in this case, if allowed, would be allowing him (and others) to do exactly what Gleeson CJ said the defence cannot do (see Rogers at 546). That is, it would have been allowing him to choose for himself which laws he was to obey, and to construct and apply his own set of values inconsistent with those implicit in the law. His conduct was not reasonable or proportionate to the harm that was threatened or its imminence. He had no reasonable grounds to believe that it was.
13. It was for those reasons that I refused to leave the defence to the jury.

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