R v Quint [2023] NSWDC 190

District Court New South Wales

Medium Neutral Citation: R v Quint [2023] NSWDC 190 Hearing dates: 17 April 2023 – 20 April 2023 Date of orders: 19 April 2023 Decision date: 07 June 2023 Jurisdiction: Criminal Before: Coleman SC DCJ Decision: Defence of necessity not left to the jury Catchwords: CRIME – Drug offences – Cultivate prohibited plant – Defences – Necessity – Whether defence of necessity should be left to the jury Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 23 Evidence Act 1995 (NSW), s 184 Cases Cited: 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 Category: Procedural rulings Parties: Director of Public Prosecutions (Crown) Jesse Quint (Accused) Representation: Counsel: Mr L Wiggins (Solicitor Advocate – Crown) Mr D Pullinger (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) McGowan Lawyers (Accused) File Number(s): 2019/00065408

JUDGMENT

Background 1. The accused, Jesse Quint, stood indicted on one count of cultivate a prohibited plant, namely 58 cannabis plants, in Armidale. This is an offence by reason of s 23(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 2. The trial of the accused before a jury of twelve commenced in Armidale on 18 April 2023. Counsel for the accused had raised with the Court that the accused would, by admissions or agreed facts, accept that he had cultivated the stated number of cannabis plants and was not licenced to do so, but relied on the defence of necessity. 3. In summary, the "necessity" was said to be that the accused had, for some time, been receiving cannabis products, originally unlawfully sourced from the "black market" but subsequently from a Dr Katelaris. These cannabis products dramatically assisted the management or eradication of pain he suffered as a result of several medical conditions. Dr Katelaris was not a licenced medical practitioner at the time he supplied cannabis products to the accused, so that supply was also unlawful. 4. The accused became aware that Dr Katelaris may (or would) not be able to continue to provide him with the cannabis products. He said he feared becoming suicidal as a result of not having the cannabis products to medicate his pain. He said it was therefore necessary for him to cultivate the cannabis so he could have access to it for the pain relief. 5. After the close of the defence case, the Crown made an application that the accused had not discharged his evidential onus with respect to the elements of the defence of necessity such that the defence should not be left to the jury. 6. I heard submissions from each party. I formed the view that the Crown's submissions should be accepted such that the defence of necessity should not be left to the jury. I was not able to give detailed reasons for that decision. 7. The trial continued and the accused was convicted of the count in the indictment. He has been sentenced. 8. These are my reasons for not allowing the defence of necessity to go to the jury.