Citation: R v Jenkinson (No. 1) [2022] NSWDC 286
Court: District Court of New South Wales
Date: 8 April 2022
Judge: Bennett SC DCJ
Background
The accused was found by police in a parked car in Nelsons Plains, NSW, late at night in May 2020. A search of the vehicle uncovered 12 plastic bags of mushrooms weighing a total of 98 grams, along with cannabis, weighing scales, and approximately $2,390 in cash. Analysis by the NSW Forensic and Analytical Science Service confirmed that the mushroom material contained the prohibited drugs psilocin and psilocybin.
The accused faced a charge on indictment of supplying a prohibited drug (psilocybin) in a commercial quantity, namely 98 grams. He pleaded guilty to the lesser alternative of simple supply under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown did not oppose that course.
The central dispute was resolved by way of a voir dire (a preliminary hearing to determine a question of law before trial). The question was whether the relevant quantity of drug for the commercial quantity charge should be measured as the total weight of the mushroom material, or only the weight of the pure psilocybin or psilocin extractable from that material.
Legal Issues
- Whether the total weight of the mushroom vegetable matter (98 grams) or only the isolated quantity of the active prohibited drug within it constitutes the relevant "quantity" for the purposes of the commercial quantity charge under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)
- Whether naturally occurring mushrooms containing psilocybin or psilocin constitute an "admixture" or "substance" within the statutory definitions in s 3(1) and s 4 of that Act
- Whether the statutory definitions should be read down so that only the pure drug content, and not the bulk vegetable matter, attracts criminal liability at the commercial quantity level
Decision
The accused argued that mushrooms are a naturally occurring plant form containing the prohibited drug, rather than a human-made blend or mixture. On that basis, his counsel submitted that the definitions of "substance," "admixture," and "preparation" in the Act were intended to capture artificial combinations of drugs with other materials, not naturally occurring vegetable matter. The accused's expert, Dr Robertson, confirmed that the pure psilocybin content could in principle be isolated through appropriate laboratory procedures.
Bennett SC DCJ rejected that argument. His Honour found that the statutory definition of "substance" in s 3(1) expressly includes "preparation and admixture," and that the weight of appellate authority supported the Crown's contention that the total weight of vegetable matter containing the prohibited drug is the relevant quantity. The reasoning of Leeming JA in the authorities cited was found to be consistent with the Crown's position.
His Honour also identified a practical flaw in the accused's reasoning: it would produce an anomalous result in cases involving the deliberate propagation and cultivation of psilocybin-containing mushrooms for distribution, where the argument would similarly insulate a supplier from liability based on the commercial quantity.
The court concluded that the ejusdem generis principle of statutory interpretation (a rule that general words take their meaning from specific words around them) and other interpretive arguments advanced for the accused did not lead to a contrary reading of the Act in context.
Orders Made
• The quantity of drug for the purposes of the prosecution should be presented as 98 grams of the bulk vegetable matter of which the specified prohibited drug was a part.
Key Takeaways
- The District Court held that the total weight of mushroom vegetable matter containing psilocybin or psilocin, and not the extracted or extractable quantity of the pure drug, is the relevant quantity for the purposes of commercial quantity drug supply charges under the Drug Misuse and Trafficking Act 1985 (NSW).
- The statutory definition of "substance" in s 3(1) of the Act includes "preparation and admixture," and this language is broad enough to encompass naturally occurring vegetable matter in which a prohibited drug is present.
- A preliminary question of law of this kind may be resolved by way of voir dire before a judge-alone trial, with expert evidence called and agreed facts tendered to assist the court.
- The absence of human intervention in creating the mushrooms and their active constituents did not, in this court's view, place them outside the statutory framework that governs quantity-based drug offences.
- Existing Court of Criminal Appeal authorities on the meaning of "admixture" and "substance," including cases involving LSD in cardboard and similar preparations, were found to support treating the entire bulk of drug-containing material as the relevant quantity.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 4, 25(1), 25(2), 25(3)
- Evidence Act 1995 (NSW), s 191
- Drugs and Poisons Legislation Amendment (New Psychoactive and other Substances) Act 2013 (NSW)
- Poisons Act 1952 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Police Offences Amendment (Drugs) Act 1927 (NSW)
Cases
- Cunningham v R [2017] NSWCCA 222
- El Kheir v R [2019] NSWCCA 288
- Finch v R [2016] NSWCCA 133
- Woods v R [2017] NSWCCA 5
- Woods v R [2020] NSWCCA 219
- Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132