Citation: R v Quint [2023] NSWDC 190
Court: District Court of New South Wales
Date: 7 June 2023
Judge(s): Coleman SC DCJ
Background
An accused stood trial on one count of cultivating 58 cannabis plants without a licence, contrary to section 23(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He did not dispute the cultivation or his lack of a licence. Instead, he relied on the defence of necessity.
The accused suffered from severe, life-altering pain caused by trigeminal neuralgia and prior spinal conditions. From around 2016 he had used cannabis to manage his pain, first sourced illegally and later supplied by a doctor whose medical registration had been cancelled. He was aware of the lawful medicinal cannabis scheme but had not applied for access, believing the cost would be prohibitive. When he feared that supply from the unlicenced doctor might end, he began growing his own cannabis plants, concerned that losing pain relief would cause suicidal ideations.
After the defence case closed, the Crown applied for the necessity defence to be withdrawn from the jury on the basis that the accused had not discharged his evidential burden. The trial judge agreed, the jury convicted the accused, and these reasons explain why the necessity defence was not left to the jury.
Legal Issues
- Whether the accused had discharged his evidential burden to establish the defence of necessity, such that it should be left to the jury.
- Whether the evidence, taken at its highest in the accused's favour, disclosed an imminent or sufficiently serious threat of death or serious injury.
- Whether lawful alternatives were available to the accused, and whether his conduct was a reasonable and proportionate response to the threatened harm.
Decision
The Evidential Burden for Necessity
The judge confirmed that an accused bears the evidential burden of establishing a basis for the defence of necessity. That burden is discharged only where the evidence, 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. Whether the evidential burden has been discharged is a question of law for the trial judge, as confirmed in Braysich v The Queen (at [22]).
No Imminent Threat of Death or Serious Injury
The judge found the accused's evidence did not disclose an imminent threat of death or serious injury. Even accepting, consistently with R v Rogers, that imminence is a factual consideration relevant to belief and proportionality rather than a strict element of the defence, the judge found there was not even a present threat of the required character (at [29]). The prospect the accused faced was the eventual cessation of supply from the unlicenced doctor, with consequent pain and potential suicidal ideations. Prescription medications remained available and did provide some relief, even if less effectively than cannabis (at [33]).
Reasonable Alternatives Were Available
The judge held that the accused had not exhausted, or even meaningfully explored, lawful alternatives. He could have returned to prescribed medications, sought psychiatric or psychological treatment for suicidal ideations, or applied for legally prescribed cannabis through Dr Martin or another practitioner (at [35]-[37]). The financial burden of legal cannabis was not a sufficient justification for resorting to criminal cultivation, consistent with the approach taken in B v R (at [38]).
Conduct Was Not Reasonable or Proportionate
The judge concluded that no reasonable grounds existed for a belief that cultivating cannabis was a necessary response to the threatened harm (at [36]). The accused had both the time and the opportunity to pursue lawful options before plants could even be ready to harvest, a process he estimated would take approximately three months (at [34]-[35]). Allowing the defence on these facts would, in the judge's view, permit the accused to select which laws he would obey and substitute his own values for those embedded in the law, precisely the outcome that Gleeson CJ cautioned against in R v Rogers (at [39]).
Orders Made
- Defence of necessity not left to the jury.
Key Takeaways
- The District Court confirmed that the evidential burden for necessity requires the accused to point to evidence that, taken at its highest, could lead a reasonable jury properly instructed to have a reasonable doubt. Falling short of that threshold is a question of law for the trial judge, not the jury.
- Severe chronic pain and anticipated loss of a preferred pain management method did not, on the facts here, constitute a threat of death or serious injury sufficient to enliven the defence of necessity, even when applying the less rigid approach to imminence approved in R v Rogers.
- Where lawful alternatives exist, including prescribed medications, psychiatric treatment, and pathways to legal medicinal cannabis, an accused who does not genuinely explore those options cannot establish that criminal conduct was a necessary response to threatened harm (at [35]-[38]).
- Financial hardship in accessing lawful alternatives does not satisfy the high threshold required by the necessity defence, consistent with the Court of Criminal Appeal's approach in B v R (at [38]).
- Permitting a necessity defence in circumstances where an accused simply preferred an unlawful source over available lawful ones would allow individuals to choose which laws to obey, a result the court found inconsistent with the proper scope of the defence (at [39]).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23
- Evidence Act 1995 (NSW), s 184
Cases
- B v R [2015] NSWCCA 103
- Braysich v The Queen (2011) 243 CLR 434
- R v Loughnan [1981] VR 443
- R v Rogers (1996) 86 A Crim R 542
- Veira v Cook [2021] NSWCA 302