R v Perchard [2022] NSWDC 373

R v Perchard [2022] NSWDC 373

The Crown bore the onus of proving that the seeds were a prohibited drug, including that any applicable exception did not apply. On the proper construction of Schedule 1, the exception for THC in products for purposes other than internal human use applies where cannabis leaf, including seeds, is in products; the cannabis seeds themselves were not such products. Because the exception did not apply, the section 43 certificates establishing that the items were cannabis seeds were sufficient to establish that they were cannabis leaf and therefore a prohibited drug, so the magistrate’s decision was correct.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Criminal Conviction Appeal Under Section 18 of the Crimes (appeal and Review) Act 2001 / Appeal to the District Court of New South Wales From Convictions in the Ballina Local Court
Outcome
The conviction appeal was dismissed.
Legal Topics
['supply Prohibited Drug' 'cannabis Seeds' 'prohibited Drug Definition' 'statutory Interpretation' 'section 43 Certificate' 'proceeds of Crime']
['criminal Law' 'drug Offences' 'criminal Appeals'] ['supply Prohibited Drug' 'cannabis Seeds' 'prohibited Drug Definition' 'statutory Interpretation' 'section 43 Certificate' 'proceeds of Crime']

Case Brief

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Procedural Posture

Criminal Conviction Appeal Under Section 18 of the Crimes (appeal and Review) Act 2001 / Appeal to the District Court of New South Wales From Convictions in the Ballina Local Court

Legal Issues

  1. 1 ['Whether the prosecution proved beyond reasonable doubt that the cannabis seeds were a prohibited drug.' 'Whether satisfaction of that onus required the prosecution to prove the seeds did not fall within an exception in Schedule 1 of the Drug Misuse & Trafficking Act concerning Tetrahydrocannabinol.' 'Whether section 43 certificates proved that the seeds were a prohibited drug or did not fall within the exception.']

Ratio Decidendi

The Crown bore the onus of proving that the seeds were a prohibited drug, including that any applicable exception did not apply. On the proper construction of Schedule 1, the exception for THC in products for purposes other than internal human use applies where cannabis leaf, including seeds, is in products; the cannabis seeds themselves were not such products. Because the exception did not apply, the section 43 certificates establishing that the items were cannabis seeds were sufficient to establish that they were cannabis leaf and therefore a prohibited drug, so the magistrate’s decision was correct.

Court Disposition

The conviction appeal was dismissed.

Orders

  • ['The conviction appeal is dismissed.']