R v Gorton[2001] QCA 43

COURT OF APPEAL

WILLIAMS JA

AMBROSE J

DOUGLAS J

BRISBANE

DATE 19/02/2001

JUDGMENT

WILLIAMS JA:  The appellant faced charges of offences against the Drugs Misuse Act.

The first was that he unlawfully produced cannabis sativa, conduct made an offence by section 8 of that Act.  The second count was that he unlawfully had possession of cannabis sativa, conduct made an offence by section 9 of that Act.  And thirdly, that he had in his possession a quantity of equipment used in connection with the commission of the crime of producing a dangerous drug, conduct made an offence by section 10 of that Act.

Before the jury was sworn, a preliminary point was taken by the appellant, namely that those provisions of the Drugs Misuse Act were invalid because they contravened section 116 of the Commonwealth Constitution, or alternatively they were invalid by operation of section 109 of the Constitution given the provisions of the Psychotropic Substances Act 1976 (Commonwealth).

The appellant dismissed his counsel and argued the point himself before Mr Justice Mackenzie.  For reasons which he gave at the time, that learned Judge concluded there was no substance in the submissions of the appellant and ruled that there was no basis upon which the appellant was entitled to a defence on the ground that the statutory provisions in question were invalid.

In the light of that ruling the appellant pleaded guilty to the charges.  Various material was placed before the Judge on the question of sentence and ultimately the sentence imposed was 180 hours' community service.

The appellant has now appealed against his conviction, wishing by the appeal to reagitate the points taken before Justice Mackenzie with respect to the validity of the provisions of the Drugs Misuse Act.

The appellant placed in evidence before Justice Mackenzie an extract from the Indian Hemp Drugs Commission Report conducted in India.  That was apparently primarily concerned with social and religious customs in which marijuana and its derivatives were allegedly used.

The appellant asserts, and it can be accepted for purposes of the appeal, that he is an adherent of the Hindu religion. In accordance with what he claims are customs and practices of that religion he wants to use marijuana in his home as part of his religious worship.

So far as section 116 of the Constitution is concerned, he relies in particular on the words found therein, "The Commonwealth shall not make any law ... for prohibiting the free exercise of any religion."  That is the provision of the Constitution he submits is infringed by the sections in question of the Drugs Misuse Act. 

There are in my view two answers to that proposition.  Firstly, as was held by the Full Court of South Australia in Grace Bible Church v. Reedman (1984) 36 S.A.S.R. 376, section 116 by its terms only regulates the powers of the Commonwealth.  It does not prevent a State Parliament from passing a law which might have the effect, inter alia, of prohibiting the free exercise of a religion.

But even apart from that, as was pointed out by the High Court in Church of the New Faith v. The Commission for Payroll Tax (Victoria) (1983) 154 C.L.R. 120 at 135-6, section 116 does not necessarily prevent the Commonwealth from passing a law which would have the effect of making a particular aspect of a religious activity contrary to law. See also Adelaide Company of Jehovah's Witnesses Inc. v. Commonwealth (1943) 67 C.L.R. 116.

In my view, there is no inconsistency between the provisions in question of the Drugs Misuse Act and section 116 of the Constitution.  I agree with all that Justice Mackenzie said in that regard.

The Psychotropic Substances Act 1976 deals with the movement of drugs through the territory of the Commonwealth.  I can see no inconsistency between the provisions of that Commonwealth legislation and the provisions in question of the Queensland legislation, the Drugs Misuse Act.

In the circumstances, I am not satisfied that the appellant has advanced any argument to establish that the sections in question of the Drugs Misuse Act do not create offences which may be dealt with by Courts in Queensland.

In all the circumstances, the conviction should stand.  In my opinion, the appeal should be dismissed.

AMBROSE J:  I agree.

DOUGLAS J:  I agree.

WILLIAMS JA:  The order of the Court is appeal dismissed.