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Lynch v Commissioner of Police[2021] QDC 213

Lynch v Commissioner of Police[2021] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

Lynch v Commissioner of Police [2021] QDC 213

PARTIES:

DEBRA LEIGH LYNCH

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

D20/20

DIVISION:

Appeals

PROCEEDING:

Appeal pursuant to s 222 of the Justice Act 1886

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

10 September 2021

DELIVERED AT:

Beenleigh

HEARING DATE:

31 May 2021

JUDGE:

Chowdhury DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL FROM MAGISTRATES COURT – DRUG OFFENCES – WHETHER EXTRAORDINARY EMERGENCY – WHETHER MISTAKE OF FACT

LEGISLATION:

Commonwealth Criminal Code Act 1995 (Cth)

Criminal Code 1899 (Qld)

Drugs Misuse Act 1986 (Qld)

Justices Act 1886 (Qld)

CASES:

Graham v Queensland Nursing Council [2009] QCA 280

R v Dimitropoulos [2020] QCA 75

R v Gardner [2012] QSC 73

R v Quayle & Ors [2005] 1 WLR 3642

R v Rogers (1996) 86 A Crim R 542

Warnakulasuriya v The Queen (2012) 261 FLR 260

COUNSEL:

M. Horvath with S. Lamb for the appellant

A. Baker-Smith for the respondent

SOLICITORS:

Kingsley Lawson Lawyers for the appellant

The Commissioner of Police for the respondent

Introduction

  1. [1]
    On 10 November 2020, the appellant was convicted in the Beenleigh Magistrates Court of the following offences:
  1. That on the 19th day of June 2017 at Cornubia in the state of Queensland, [the appellant] unlawfully produced a dangerous drug, namely cannabis.
  2. That on the 19th day of June 2017 at Cornubia in the State of Queensland, [the appellant] unlawfully had possession of a dangerous drug, namely cannabis.
  3. That on the 19th day of June 2017 at Cornubia in the Magistrates Court District at Beenleigh in the State of Queensland [the appellant] had in her possession an ultra-sonic cleaner, 2 x grinders, a heat lamp, a capsule manufacturer, a Magical Butter Machine that she had used in connection with the commission of a crime as defined in Pt II of the Drugs Misuse Act 1986 namely producing a dangerous drug.
  4. That on the 19th day of June 2017 at Cornubia in the Magistrates Court’s District at Beenleigh in the State of Queensland [the appellant] unlawfully had in her possession a thing namely two vaporisers that she had used in connection with the administration of a dangerous drug.
  5. That on the 19th day of June 2017 at Cornubia in the Magistrates Court’s District Court at Beenleigh in the State of Queensland [the appellant] unlawfully had in her possession a thing namely 2 water pipes she had used in connection with the smoking of a dangerous drug.
  1. [2]
    A single fine of $1,000 was imposed for the five offences and no convictions were recorded.
  2. [3]
    By way of a notice of appeal filed on 8 December 2020, the appellant appeals against her convictions on the following grounds:
  1. In the course of the judgment, her Honour made the following findings (collectively Ground 1);
  1. (a)
    the appellant’s Buerger’s disease was not diagnosed until after the day of the offences (reasons page 3, line 5). The appellant gave evidence that she was diagnosed with Beurger’s disease at around the same time that she was diagnosed with scleroderma, which was in 2013;
  1. (b)
    for producing and possessing of cannabis, and possessing of items was for medical, habitual or recreational purposes (reasons page 7, line 8). The appellant did not give that evidence;
  1. (c)
    that there was limited evidence about the Queensland Medical Cannabis Scheme with the appellant believing she qualified for it from May 2016 after a change in the law, while Dr Lotz considered the scheme was not available at the time (reasons page 7, lines 12-17). The scheme became available for the appellant’s conditions in August 2018. This was mentioned in oral submissions and stated in the written submissions at page 4, paragraph [25];
  1. (d)
    The appellant believed that she exhausted all her medical options (reasons page 8, line 9). It is unclear whether either that belief was accepted, or that fact was accepted;
  1. (e)
    It was an option for the appellant to move to New South Wales to access a scheme (reasons page 8, line 14), contrary to the appellant’s evidence that she couldn’t afford it (being on a pension) and it would move her away from her support network (T1.27.19-21) (reasons page 4, line 12);
  1. (f)
    there was vague evidence by the appellant, no supporting evidence and no timeframe regarding her attempts to obtain a medical cannabis prescription in Queensland (reasons page 8, lines 15-18). The appellant gave evidence of her attempts to access medical cannabis, including applying to NSW, applied to various doctors in Queensland and lodging appeals which were rejected;
  1. (g)
    the appellant had a longstanding cannabis addiction over and above pain relief and mental health issues (reasons page 8, line 21). There was no evidence of addiction. The appellant gave evidence that she only took cannabis for her medical conditions;
  1. (h)
    the appellant seemed to accept that sometimes she combined cannabis and medication (reasons page 8, line 28). While that is true, on such occasions, she was nauseous and would vomit from the opiates and even anti-nausea medication did not stop the vomiting. To her, the side effects of medication were overwhelming;
  1. (i)
    the appellant was living independently, there is little evidence on that issue and it was of little weight (reasons page 8, lines 35-38). This is a misunderstanding of this factor. It was to be a comparison to how Mr Dimitropoulos was living at the time of his offending;
  1. (j)
    rejecting that medical cannabis was the appellant’s only option, because it did not cure her medical or physical conditions, and that there was no medical evidence to support this (reasons page 8, lines 40-42). The appellant gave evidence that she had no other options for her medical and psychiatric conditions. The cannabis did not need to cure her conditions. There is medical evidence to support that it controlled her pain and reduced her suicidal thoughts;
  1. (k)
    there was no medical evidence that the cannabis was a lifesaving substance in the medical sense (reasons page 8, line 44). The cannabis did not need to cure her conditions. There was medical evidence to support that it controlled her pain and reduced her suicidal thoughts;
  1. (l)
    the suicidal ideations were long standing even before the use of cannabis (reasons page 9, line 1), which is correct but was misunderstood as being a factor against the appellant
  1. Her Honour ought to have found that, as at the date of the alleged offending:
  1. (a)
    the appellant was suffering from several physical conditions causing her extreme pain daily;
  1. (b)
    the appellant required painkilling medication for the pain;
  1. (c)
    the painkilling medication was not effective in controlling the pain;
  1. (d)
    cannabis was effective in controlling the pain;
  1. (e)
    the painkilling medication was causing side effects resulting in a reduction of the appellant’s quality of life;
  1. (f)
    the appellant was suffering from a series of psychiatric conditions;
  1. (g)
    the appellant tried various psychiatric medications but they were causing side effects including suicidal thoughts;
  1. (h)
    independently of psychiatric medication, the appellant was suffering from suicidal thoughts that were pain related;
  1. (i)
    cannabis was controlling the appellant’s suicidal thoughts;
  1. (j)
    without the cannabis [sic] the plaintiff would have committed suicide;
  1. (k)
    the appellant sought medical cannabis from NSW, obtained support from Dr Landsberg for that application, but was rejected from the scheme because she was not a resident of NSW;
  1. (l)
    the appellant could not move to NSW due to the cost and the loss of support network that would bring;
  1. (m)
    the appellant sought medical cannabis in Queensland, was rejected and appealed unsuccessfully;
  1. (n)
    the appellant was not eligible for medical cannabis in Queensland until August 2018;
  1. (o)
    the appellant could not afford the cost of the medical cannabis, given its cost to her being a pensioner;
  1. (p)
    the appellant had exhausted her medical options;
  1. (q)
    cannabis was the appellant’s only option for pain relief, and control of suicidal thoughts.
  1. In concluding, her Honour found that:

I do not accept the factual circumstances for Ms Lynch are substantially different to those of Mr Dimitropoulos. The evidence does not raise the possibility of a sudden or extraordinary emergency, or that there are reasonable grounds to believe that the circumstances of an extraordinary emergency existed. Therefore, I find that the element of unlawfulness has been established.” (reasons page 9, lines 2-7)

  1. In that passage, her Honour erred that:
  1. (a)
    the evidence did not raise the possibility of sudden or extraordinary emergency;
  1. (b)
    there were not reasonable grounds to believe that the circumstances of an extraordinary emergency existed;
  1. (c)
    the factual circumstances for the appellant were not substantially different to Mr Dimitropoulos.
  1. Her Honour ought to have found that the appellant’s circumstances were sufficiently different to Mr Dimitropoulos and that:
  1. (a)
    the possibility of extraordinary emergency was raised by the appellant not negatived by the prosecution beyond a reasonable doubt; or
  1. (b)
    on balance, the appellant held an honest, reasonable but mistaken belief that there was an extraordinary emergency.
  1. The findings and conclusions above are a combination of:
  1. (a)
    findings contrary to the evidence;
  1. (b)
    failing to make adequate findings;
  1. (c)
    misunderstanding of the relevance of the findings made;
  1. (d)
    failing to provide adequate reasons;
  1. (e)
    reaching a verdict that is unreasonable.[1]

Evidence given before the Magistrate

Exhibit 1 was a two page admissions of fact document, in which the appellant admitted the elements of each offence apart from the element of unlawfulness.

  1. [4]
    Nathan Bedley, a constable of police, gave evidence that at about 5.30pm on 19 June 2017 he and his partner, Ken Iverson, another constable were detailed to attend a job at 40 Beacon Drive, Cornubia in relation to a domestic violence incident in progress.  En-route to that address he received communications over the police radio that a person at the house may be armed with a compound bow.  Consequently, he attended the address with a number of other police crews.  As he entered the dwelling, he was immediately struck with the strong smell of cannabis, and he observed a grinder with residue in it.  Consequently, a search of the dwelling was done.  The results of the search are set out in Exhibit 1, namely that in respect of Charge 1, production of cannabis, the appellant had grown four plants weighing 18 grams in total.  In respect of Charge 2, the appellant was in possession of 178 grams of cannabis.  In respect of Charge 3, the appellant had in her possession an ultrasonic cleaner, two grinders, heat lamp, capsule manufacturer and a magic butter machine that she had used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986 (“DMA”).  In respect of Charge 4, the appellant had in her possession two vaporisers that were used in connection with the administration of cannabis.  In respect of Charge 5, the appellant had in her possessions two water pipes that had been used in connection with the smoking of cannabis.
  2. [5]
    During the search Constable Bedley became suspicious that the appellant was hiding something in a room.  He declared an emergent search of the dwelling in relation to dangerous drugs.  He had a body camera and he activated that to film the search.  This recording became Exhibit 2.  Eighty-eight photographs taken by the police became Exhibit 3.  The drug analysis certificate became Exhibit 4.   The post search approval order became Exhibit 5.
  3. [6]
    In cross-examination, Constable Bedley agreed that the appellant told him that she was using the vaporiser for pain relief.  He also agreed that the appellant spoke to him about lesions on her skin and that she had been put back on opioids because the cannabis was not “killing the pain”.[2]  Constable Bedley agreed that the appellant told him that she was using cannabis “for pain relief and medical reasons…and that she had exhausted all her other options.”[3]
  4. [7]
    The appellant gave evidence that she is currently on a disability support pension.  She saw a rheumatologist, Dr Landsberg, around 2010 until 2014 when she could no longer afford to see him.  She saw Dr Lotz, a psychiatrist, in respect of the prosecution.  She said that she had seen him within the last two weeks.
  5. [8]
    She was asked what medical conditions she had on the day of the police search on 19 June 2017.  She said that in 1988 she had a spinal injury, at L5 and S1.  Her disc had been crushed, as well as “spreading out, it was crushing my spinal cord.”[4]  She said that she had experienced “multiple symptoms from the pain, spasming.  Leg - my leg was twitching.  I was, actually, losing the use of that leg from the pressure on my spinal cord.” She said that she had had a laminectomy and discectomy in hospital for that condition.[5]  She still suffered back pain and sciatic pain and back spasming after the operation.  The sciatic pain resulted in “nerve pain down my legs all the way to my toes”.  She said that that pain is intermittent, and she still suffers from it today.  On the day of the search she had back pain.
  6. [9]
    She said that she was diagnosed with scleroderma in 2013.  She described it as an auto-immune disease, and that she experienced multiple symptoms of it, including connective tissue spaces filling with collagen.  The following exchange took place:

“Q: So tell me like a non-doctor then.  I want to understand.

A: My lungs are stiff.  I get lesions and hard skin areas all over my skin.  I have trouble with my oesophagus.  I have spasming to the point where I couldn’t swallow solid food.  Calcinosis of all the tendons in my body.

Q: So what does that mean?

A: All my tendons are becoming hard and stiff.  I’ve got lots of pain.  Lots of mobility issues.

Q: Have you been given a prognosis for your condition?

A: It’s terminal.  Eventually it will kill me.”[6]

  1. [10]
    She said that between 2013 and 19 June 2017 she was suffering multiple symptoms of scleroderma.  She said that she experienced “extreme levels of pain and so many different types of pain that it’s – it’s difficult to explain all the different types but everything from muscle and – and tendon pain to – at that – prior to – to being arrested, I had an ulcer on my index finger that had gone to the bone and the pain with that – the multiple different pains with that were so bad that I’d even considered whether it would hurt less to cut my arm off.”[7]
  2. [11]
    She said that she experienced that ulcer on her finger in 2015.
  3. [12]
    As a result of scleroderma, the appellant said that she had Raynaud’s disease.  She said that that condition results in the nervous system cutting off her circulation to the vascular systems of extremities.  She put it thus:

Basically, my fingers or my – my feet or whatever is – is flaring at the time will go white when the blood supply is reduced and that as the oxygen is depleted, I’ll go purple or blue and then as the – the blood supply comes back again, I’ll turn bright red as it starts to re – you know, like, put more blood flow back through the – the tissues.  It causes ongoing – each time the circulation’s cut off, it causes tissue and nerve damage.  So it’s cumulative over time as well.”[8]

  1. [13]
    The appellant said that she first had those symptoms in 2013 or 2014.  In 2014 she said that she had “multiple digital losses”.  She had symptoms for eight months that the doctors could not get to heal.  She said that the doctors talked about cutting off the end of her finger.  She went to hospital and had a prostaglandin infusion over three days, and she had a PICC line inserted into her heart as the substance they used “was too harsh to put through a vein”.[9]
  2. [14]
    The appellant said she also had been diagnosed with Buerger’s disease.  She described it as a vascular disease that affected her peripheral vascular system and her extremities.  She said that she was diagnosed with this “around the same time as the scleroderma, I believe. Round about the time I had the prostaglandin infusion”.[10]
  3. [15]
    The appellant said that the Buerger’s disease was separate from the scleroderma and Raynaud’s disease.  She said the symptoms of Buerger’s disease were pain and ulceration on her extremities, whether it be her hands and feet.
  4. [16]
    The appellant said that she has one kidney, as she had a carcinoma in her left kidney that had to be removed.  That occurred in 2016.
  5. [17]
    In respect of her lower back pain following the surgery, she said that she received multiple opiate painkillers, anti-inflammatory drugs, and Rohypnol for sleep.  She said that none of them worked, and “all the side effects were just horrid”.[11]
  6. [18]
    She said the side effects she experienced with the medication were vomiting and nausea with Panadeine Forte, as well as severe constipation.  She was psychologically agitated, her emotional state was heightened all the time, and she was not able to sleep because she was in constant pain.[12]
  7. [19]
    In respect of scleroderma, she received medication over the years such as nitro-glycerine patches and Viagra.  She said she received “all different types of pain reliefI was on a – I was on a roundabout of different types of opioidsOne wouldn’t work, so they’d switch me onto the next one and then the next one I was just going round in circles”.[13]
  8. [20]
    She said that the opioids that she received to treat scleroderma were different from the opioids prescribed for back pain.  She said that she was given Tramadol, Tapentadol, Endone, Palexia and Lyrica.  She said the last named medicine gave her seizures.  She later mentioned that she was also given Duloxetine, another pain killer for nerve pain.
  9. [21]
    When asked if the pain killers assisted with her symptoms of scleroderma, she said:

No.  Most of those – most of those had a really bad psychological effect on me and I was suicidal through taking those.  I had no quality of life, and they weren’t, really, doing much for the pain.  Nausea, vomiting, some of them I was getting a racing heart or chest pains.[14]

  1. [22]
    In respect of Raynaud’s disease, she said that she did not get any specific medication to treat that.  She said she was given a calcium blocker, Norvasc.  On that drug she said she was sleeping 18 hours a day, so they switched her to Nifedipine.  She was not sleeping as much on that drug but “I was just flat all of the time … no energy.  I’d pretty much just sit in a chair all day and do nothing.”[15]
  2. [23]
    She said she had no specific treatment for Buerger’s disease before 19 June 2017.  She said that she had significant pain from Buerger’s disease because she had ulcers and neuropathy in her fingers, following the loss of circulation.
  3. [24]
    Since 19 June 2017, the appellant said that she had her right leg amputated below the knee.  The combination of the Buerger’s disease, Raynaud’s disease and scleroderma had led to gangrene in a toe which resulted in the amputation.[16]
  4. [25]
    The appellant said that she had been diagnosed with post-traumatic stress disorder in 1996.  Before that, she had been diagnosed with manic depression, which was then diagnosed as post-traumatic stress disorder.[17]
  5. [26]
    The appellant said that she was treated for anxiety and depression in 1997.  She said that the symptoms of her post-traumatic stress disorder are “heightened emotional state.  Basically, my normal emotional state is hysteria …  I’m agitated all the time.  I’m – I’m hypervigilant.  I am alert.  So – I don’t sleep.  Sometimes I can’t even eat because I am so anxious.”[18]
  6. [27]
    The appellant said that she had these psychological symptoms around June 2017, because she had not long separated from her husband.
  7. [28]
    The appellant said that at some point before 19 June 2017 she was diagnosed with chronic pain disorder.  She has also been diagnosed with obsessive compulsive disorder, which she has experienced all her life.
  8. [29]
    The appellant said that she had suicidal thoughts while she was on “all of those psych drugs and all of the opioids.  It was just there all of the time and sometimes it was worse than others.”  The appellant then said that those symptoms stopped when she ceased taking the prescribed drugs and commenced using cannabis oil.[19]
  9. [30]
    The appellant said that she started smoking cannabis in 1988 following her spinal injury.  She said that: “it reduced the – the pain, reduced the spasming and by chance, I found that it helped with my emotional issues.  I started sleeping – I found that I could fall asleep using it, so I was able to wean myself off the Rohypnol.  It helped with the pain levels, it helped with the muscle spasming and – I also found that it helped with things like I have social anxiety for which I was using alcohol as a crutch at that time and … up until 2000 for about 10 years prior to that and then I found I could substitute cannabis and I – I was – was calm.  I could, actually, enter a room and – and not have a – an automatic panic attack and I could interact with people on the social level which I wasn’t able to do prior to that.[20]
  10. [31]
    The appellant said she started using cannabis oil in 2014 after she had exhausted her treatment options for scleroderma.  She said that she ingested the oil orally.  She said that the cannabis oil “reduced my symptoms, it reduced my pain and it pretty much eliminated all of my psychological problems that I was having or at least made them bearable and controllable.[21]
  11. [32]
    The appellant said that the scleroderma causes lesions on her skin, from calcium deposits bursting through her skin, or for no obvious reason.  She had a lesion on her arm at the time she gave evidence.  Sometimes she had hundreds of the lesions at the same time and “decades of ointments and steroid creams which did – gave me little – little – little improvement at all.”[22]  It’s not clear, but it appears that the appellant was using a balm made from cannabis oil to treat these lesions.
  12. [33]
    Exhibit 6 was a letter the appellant received from the New South Wales government in response to an application to access that government’s “Terminal Illness Cannabis Scheme”.  That letter is dated 24 February 2015 and advised the appellant that her application to register under the scheme was unsuccessful as she was not eligible for registration as she did not reside in New South Wales.
  13. [34]
    The appellant said that it was not practical for her to move to New South Wales, as she did not have a support network in New South Wales and she could not afford to move there.
  14. [35]
    The appellant said that she became aware that she was eligible for medicinal cannabis in Queensland when the laws changed in 2016.  She said she has been to “every doctor I’ve ever seen, be it from a GP all the way to all of my specialists”, asking for a prescription for medicinal cannabis.  She set out the various hospitals and medical centres she visited at.[23]  She said that she had “tried dozens and dozens” of doctors in Queensland.  She sometimes got the response “I don’t want to be known as the pot doctor” and “the indemnity insurance has threatened to remove my indemnity insurance if I write a prescription.”[24]
  15. [36]
    Exhibit 7 was an invoice for legal cannabis prescription that the appellant obtained about a week before the summary trial.  The total of the prescription was $1,920 for a month’s supply.  The appellant said that she could not afford that, as she only receives $1,002 a fortnight for her pension.  Back in June 2017 she was receiving $600 a fortnight.
  16. [37]
    The appellant was asked this final question in evidence-in-chief:

“Q Just one other issue, if we go back to 19th June 2017, up to that point in time, if you – at that point in time on that day, did you consider you had any other options for your medical and psychiatric conditions other than using cannabis?

  1. No.  None whatsoever and I – I – I explored and exhausted whatever options had been – you know, had been offered to me.”
  1. [38]
    A report from a consultant psychiatrist, Dr Trevor Lotz, became Exhibit 8 in the proceedings before the Magistrate.  Relevantly, he stated the following:
  • the appellant had been smoking cannabis since 1988 following a spinal injury and residual pain.  Initially cannabis consumption was for anxiety (social and general), and subsequently for pain management;
  • the appellant is actively involved with the Medicinal Cannabis Users Association of Australia, being the President of that Association for three years;
  • the appellant had a pre-existing history of complex post-traumatic stress disorder due to childhood trauma, developed features of anxiety including generalised anxiety, social anxiety and some obsessive compulsive disorder and chronic suicidal ideation;
  • the appellant has found that cannabis oils have helped with the dermatological pathology of scleroderma, and oral use of cannabis had helped with pain management;
  • the appellant did not have any overt psychiatric symptoms, but she did describe ongoing features of anxiety, unresolved relationship issues with her parents and a younger brother who sexually molested her daughter;
  • there is unlikely to be any change in her psychiatric condition or pain;
  • scleroderma is generally a progressive disorder, and there is a distinct possibility of worsening dermatological conditions and other pathology related to it, resulting in potentially a worsening of pain;
  • the pain symptoms do fluctuate, but it appeared the cannabis use had managed the appellant’s pain and slowed the deterioration related to scleroderma;
  • the appellant’s psychiatric and medical conditions would be considered extreme circumstances. There was no response to allopathic treatment modalities including anti-depressants, anti-psychotics and mood stabilizers;
  • the appellant did try conventional treatment, both psychiatric and medical, but found that cannabis preparations were of more use.  She found these conventional treatments not to be effective;
  • while he could not comment which were the most effective treatments for the appellant’s psychiatric and medical conditions, from her experience it appeared that conservative treatment was not of any benefit, but cannabis oils and oral preparations had been of assistance;
  • had the appellant presented to him for medicinal cannabis scripts, he would not have hesitated to prescribe it for her;
  • he could not see a medical reason why the appellant had been denied medicinal cannabis.  In public hospitals, there was no experience with medicinal cannabis, and specialist treatment through medical practitioners experienced in dispensing medical cannabis would be more appropriate.
  1. [39]
    Dr Lotz in evidence-in-chief said that the appellant described the side effects of the conventional medicine she had been prescribed.  She felt that her anxiety was worse, it increased suicidal feelings, and that she felt “doped out and a bit spaced out, which is typical with opiate medications but anti-depressants can do that too.  So can mood stabilizers and anti-psychotics[25]
  1. [40]
    Dr Lotz in cross examination said that he had done a training course for medical cannabis with a view to prescribing it for chronic pain, but he stopped doing it because there was too much paperwork.  He does not prescribe medicinal cannabis himself; he would refer the patient on to another doctor.[26]
  2. [41]
    Dr Lotz said that he would prescribe cannabis for treatment of the psychiatric conditions with medicinal cannabis, “after I would have tried a normal or conventional medicine”.[27]
  3. [42]
    Dr Peter Landsberg, a qualified rheumatologist, provided a report which became Exhibit 9.  He first saw the appellant on 15 January 2010.  It was suspected she had a connective tissue disorder, possibly with a mixture of inflammatory arthritis.  At that time there were no signs of scleroderma.  It was noted she had a 40 year smoking history.  She had also had previous spinal surgery and gynaecological surgery.  The main issue at that time was sore joints.  A medication called Plaquenil was prescribed, which she took for a few months.  When he last saw her on 10 September 2010, she reported being well with no joint pain.
  4. [43]
    Dr Landsberg reported that the appellant presented to him again in August 2013.  She had gone on to develop symptoms typical of limited scleroderma, with episodes of marked pallor of her fingers, which verged on Raynaud’s phenomenon.  He saw her again on 27 August 2014 and again in October 2014, when he referred her to a specialist vascular physician, Dr Connors.  Dr Connors suggested a prostaglandin infusion to prevent circulation damage to her fingers.  Dr Connors wrote a letter in October 2014 to Dr Landsberg confirming that the appellant’s circulation issues were complex; as well as having Raynauds phenomenon, she also had probable Buerger’s disease, which was often seen in smoking, both normal smoking and marijuana smoking.  She had a prostaglandin infusion that helped temporarily with the circulation.  He had not seen her since.
  5. [44]
    In addition to scleroderma and Buerger’s disease, it was observed that she experienced pain from a surgical mesh for her bladder.  There was a diagnosis of cancer of the kidney with a left nephrectomy, severe gastro-oesophageal disease and possible interstitial lung disease.  The appellant also experienced frequent episodes of calcific tendonitis.  He considered the major issue was severe vascular disease, and consequently she had a below knee amputation of the right leg.
  6. [45]
    He reported that the appellant’s symptoms progressed dramatically from when he saw her in 2014 to when she had the below knee amputation in December 2018.  She had terrible ischaemia and gangrene of her right foot requiring amputation.  He considered that her pain must have been unbearable before that.  He said that many patients suffer severe ongoing pain following an amputation.  Her circulation looked a little more stable at the moment.  At the time of the report the appellant’s circulation appeared more stable, her fingertips and left foot were reasonably healthy, certainly better than before she lost her right foot.
  7. [46]
    He considered that the appellant’s symptoms seemed to have fluctuated.  At the time of the report it was not clear what caused an exacerbation of her condition.  He considered that atherosclerosis, smoking and Raynaud’s disease all affected her circulation.  She would also be affected by colder weather and changes in temperature.
  8. [47]
    Dr Landsberg reported that sometimes the pain experienced by her conditions would be unbearable.  The pain could be overwhelming, and the appellant felt exhausted by it and often felt suicidal because of the pain.
  9. [48]
    Dr Landsberg stated that the appellant had all the known treatments to improve circulation.  For pain relief, she had been prescribed narcotics to synthetic narcotics like Tramadol and Palexia.  She had also had anti-depressant drugs and pain-relieving nerve drugs like Lyrica.  None of those were helpful.  The appellant developed seizures on Lyrica and felt suicidal on narcotics. 
  10. [49]
    He considered that conventional treatments, apart from surgery, had not been effective for the appellant.  He was hopeful that the prescription of a statin, aspirin and blood-thinning drugs would maintain her circulation, preventing further damage.  He was not aware of any reason why she should not receive conventional treatments. 
  11. [50]
    He said that there are no specific treatments for scleroderma per se.  There were treatments that could improve circulation which involved blood-pressure drugs and circulation clearing drugs.  There is no treatment for Buerger’s disease, and many patients with that disease end up with amputations of limbs or digits.  Medicines that lower cholesterol and keep the blood flowing help slow the progression of Buerger’s disease.  He considered the main issue was to treat her pain, which was considerable.
  12. [51]
    In response to the question asked by the appellant’s lawyers in their requesting letter, whether medicinal cannabis was an effective treatment for the appellant’s condition, Dr Landsberg said the following:

I am not aware of any strong evidence-based science where cannabis is effective in treating circulation, but there are certainly papers in the literature suggesting improvements in patients with forms of scleroderma, and there are records showing evidence for improving pain.  There are very few formal trials of medical cannabis present.  Most of it is anecdotal or small numbers.  However, there is an increasing body of evidence that it does relieve severe untreatable pain.  Many scleroderma patients swear that it helps the symptoms of their scleroderma, but there have not been big trials yet to prove this.

  1. [52]
    Dr Landsberg stated that he was not an expert in medicinal cannabis.  He was aware that many patients experienced pain relief with it.  He considered that it appeared to be safer than narcotics and many other pain killers.  He could not answer why it might be more effective in the appellant’s case, and he stated that he did not know if it was the most effective treatment in her case. 
  2. [53]
    Dr Landsberg provided the following conclusion in his report:

My conclusions are that Debra has been using medicinal cannabis to treat intractable pain caused by her combined medical problems.  She has an underlying auto immune disorder called scleroderma which led to Raynaud’s.  She also developed a condition called Buerger’s disease, made worse by smoking, that blocks arteries and leads to ischemia and damage to circulation.  This became so bad that in December 2018, she required a below knee amputation to cut off her gangrenous right lower leg.  She has ongoing pain as a result of the surgery, and pain due to circulation issues in her fingers and remaining leg.  She also has pain from her oesophagus, pain from her surgical mesh and pain from cancer surgery.  She has failed therapy with narcotics, anti-depressants and anti-epileptic drugs for her pain.  Medical cannabis is now a recognised and approved treatment for intractable pain, and is able to be legally prescribed in Queensland by registered practitioners.  I believe that medicinal cannabis is a safe option for her than the other available painkillers we have.

I have no knowledge of the benefits of marijuana over medicinal cannabis.  I am not an expert in this.  I know that there are no case-controlled studies looking at medicinal cannabis and marijuana in scleroderma.  I would recommend a review by a medical cannabis expert for more information regarding this.  Perhaps a pharmacologist would have the most expertise.  I do not routinely prescribe medical cannabis, but I do refer some of my patients with chronic intractable pain to those practitioners who do.

  1. [54]
    Dr Landsberg in evidence-in-chief said that he had prescribed medication for early arthritic symptoms.  The appellant then became a vascular patient, and he was not really involved in her care after that.  He said that the Buerger’s disease can result in unbearable pain.  He also said that there is phantom limb pain following the amputation.  He considered that the pain could be “one of the worst pains a person can have.”[28]
  2. [55]
    Dr Landsberg stated that he became involved in an application for medicinal cannabis, which was not available in Queensland at that time.  He thought it was a reasonable thing to try and it appeared safer than “being hooked on Endone or morphine or Oxycontin and things like that.”[29]
  3. [56]
    In cross-examination, Dr Landsberg said that pain relief would start off with simple paracetamol, to mild narcotics, stronger narcotics and nerve-blocks.  He said that there was not a large range of painkillers for different patient conditions.  He said that scientists need to invent a better painkiller. 
  4. [57]
    Dr Landsberg considered that medical cannabis is quite controversial in that some of its advocates even suggest it improves inflammation, in things like inflammatory bowel disease and even inflammatory arthritis.  However, there are two main recommendations at the moment, for relief of intractable pain.  He considered that pharmacologists would know a lot more about its potential effects.  He said:

So it’s certainly an inexact science, but at the moment we have a huge hole in our therapies for intractable pain.  It may be helpful, and it certainly saves them needing morphine all the time.[30]

  1. [58]
    Dr Landsberg said that medicinal cannabis is very expensive, between $200.00 and $300.00 a bottle per month, so many people could not afford it.  In response to a question in cross-examination whether he would encourage patients to self-medicate on cannabis, he gave the following answer:

No, no.  Because I’m not really aware of the toxicity [indistinct].  I still think it’s probably a lot safer than people self-medicating with narcotics, but it’s still a bit of a – at the moment, we’re still learning, feeling our way with how it works in what doses, so I hope a person who is under the care of a pain doctor or a medical cannabis prescriber.  You know, that would be my hope.[31]

  1. [59]
    In the report of Dr Landsberg, Exhibit 9, he indicated that the appellant’s symptoms fluctuate, stating at (g): “her symptoms seem to have travelled fairly slowly when I first met her, but then she developed gangrene and rapid progression of ischemia of her right foot prior to the amputation. It seems more stable now.”
  2. [60]
    The fluctuating nature of the pain was further highlighted by Dr Landsberg at (ii) of his report, observing that “sometimes her pain can be unbearable”. In that paragraph it was indicated that Raynaud’s disease was episodic.
  3. [61]
    Dr Landsberg observed that “there are very few formal trials of medical cannabis present. Most of it is anecdotal or small numbers. However, there is an increasing body of evidence that it does relieve severe untreatable pain. Many scleroderma patients swear that it helps the symptoms of their scleroderma, but there have not been big trials yet to prove this.”

Decision of the Magistrate

  1. [62]
    As the appellant submitted, the learned Magistrate did make a factual error in her reasons.  She stated that the appellant was diagnosed with Buerger’s disease after 9 June 2017, the date of the offences, which was incorrect.
  2. [63]
    Aside from that, the learned Magistrate gave a detailed summary of the evidence before her, and a detailed discussion of the relevant law.  In particular, she had regard to the decision of the Court of Appeal in R v Dimitropoulos [2020] QCA 75.
  3. [64]
    Relevantly, the learned Magistrate said this:

Her issues are many, varied and complex, and Ms Lynch gave evidence that without cannabis she would have killed herself as a result of the pain and psychological symptoms she suffered.  Ms Lynch said she first used cannabis in a medicinal sense from October 2014, however, she said she had smoked cannabis from 1988.  She used it then, she said, to calm anxiety and address social difficulties.  At that point she was aged 28 years.  She is now 60 years of age and she admitted to using cannabis still.  It is clear from her evidence that Ms Lynch has used cannabis then for at least 32 years.  Whether the use of the drug is purported to be for medicinal purposes or habitual or recreational purposes Ms Lynch produced cannabis, possessed cannabis, and possessed items associated with those offences.

There is a scheme by which people in Queensland are able to be prescribed medicinal cannabis and thereby lawfully possess products which contain it.  That scheme is underpinned by legislation.  There is limited evidence before me of the scheme.  Ms Lynch said she believed her conditions qualified for such prescription from May 2016, when the law was changed.  Dr Lotz spoke of the scheme not being available at the time of the offences, which contradicts this.  In any event I can only assume the scheme tightly controls the production of cannabis, the manufacturing of cannabis products, the prescription of it and its distribution.  No doubt it is overseen by experts in the field of those areas, including medical specialists and psychiatrists.  It does not contemplate an untrained person self-prescribing toxic substances for various medical and/or psychiatric conditions.

  1. [65]
    The learned Magistrate then considered whether the defendant had a defence of sudden or extraordinary emergency, under s 25 Criminal Code (“the Code”).  Her Honour said the following:

Reliance is had as an alternative defence to a combination of ss 24 and 25, that is that, Ms Lynch was under an honest and reasonable but mistaken belief that an emergency existed.  I’m going to make specific reference to paragraphs 62, 63, 66 and 67 of the decision of Dimitropoulos.  I’m not going to read that out but I set out, for the purposes of my consideration, those particular paragraphs which set out clear legal issues relating to these defences.  It is sought to factually distinguish the situation in Dimitropoulos from that of Ms  Lynch.  In Dimitropoulos, it was said firstly that, the defendant had not exhausted all of his medical options.  Certainly Ms Lynch gave evidence that she believes she had so exhausted all of her medical options.

However, on her own evidence she was deemed ineligible for the New South Wales scheme because of her geographic location, and she dismissed the option of moving to New South Wales to access that scheme however.  This would seem to be an option open to her.  She said she continually asked medical practitioners for a prescription but there was no supporting evidence to that contention, and I found the vagueness of that evidence troubling.  There was no timeframe before me of those attempts, or any other supporting documentation.  It was said that the defendant in Dimitropoulos did not use cannabis for a period of time.  The argument being, he could survive without it.  He and Ms Lynch would seem to have had a longstanding addiction to the drug over and above for pain relief, but also to manage anxiety and mental health issues which seemed to be co-existing with the medical conditions and the pain associated with those.

Another factor that’s said to be distinguished is that, the defendant in Dimitropoulos was mixing cannabis with alcohol and prescription medication at times.  Certainly he and Ms Lynch did have prescribed medication.  She thought it was Palexia in her home at the time police found the cannabis.  She seemed to accept she did sometimes combine the cannabis and the medication.  We’re also talking about a very long period over which the medication would have been prescribed, all different types no doubt, and for all different purposes.  It was said in Dimitropoulos that that defendant was capable of pursuing business interests.  It is accepted here that Ms Lynch was in receipt of a disability support pension.

It was said in Dimitropoulos that the defendant had a self-sufficient lifestyle during the period of the offending.  It’s clear that Ms Lynch was living independently at the time police were at her home, but there’s really little evidence before me relating to this particular issue.  I’m not sure that it really turns on this argument.  It was said in Dimitropoulos that he considered cannabis to be the best rather than the only option.  Ms Lynch stated that she considered it – it was the only option for her.  However, presumably it does not cure her medical or psychiatric conditions.  She states it controls pain and other symptoms but there is not medical evidence regarding this.  Both doctors seem to acknowledge cannabis is an effective option for her, based on her reports to them.  But there was certainly no evidence that it was a lifesaving substance in a medical sense.

Also, Ms Lynch’s suicidal ideations were clearly longstanding, and Dr Lotz stated that they existed even before cannabis use commenced.  I do not accept the factual circumstances for Ms Lynch are substantially different to those of Mr Dimitropoulos.  The evidence does not raise the possibility of a sudden or extraordinary emergency, or that there are reasonable grounds to believe that circumstances of an extraordinary emergency existed.  Therefore, I find that the element of unlawfulness has been established.  I have considered the contentions of the defendant with respect to each individual charge.  As the other elements of the charges are admitted by the defendant I find the defendant therefore guilty of each of the six [sic] offences.

Submissions of the appellant

  1. [66]
    The appellant in her written outline at [23] set out what was contended to be numerous errors in the reasons of the learned Magistrate.  At [25], the appellant submitted that on the evidence there were six options open to the appellant to deal with her significant physical and psychiatric conditions, which caused a variety of debilitating symptoms:
    1. (a)
      get medical cannabis in Queensland – the appellant tried even though she was ineligible;
    2. (b)
      get medical cannabis in New South Wales – the appellant tried but was rejected because she was not a resident.  In theory,  she had the option of moving to NSW, but she was on a pension, so couldn’t afford it, and moving would have meant losing her support network;
    3. (c)
      take prescription medication – the appellant tried all variety of prescription medications for her physical and psychiatric conditions, but the medications were either ineffective at treating her extreme pain or increased her anxiety and suicidal feelings;
    1. (d)
      take nothing – neither medication nor cannabis and put up with the symptoms;
    2. (e)
      Commit suicide – that cannot be seen as a reasonable option;
    1. (f)
      Break the law – and do what the appellant did by producing and possessing cannabis to treat her conditions and symptoms.
  2. [67]
    The appellant specifically submitted that the decision in R v Dimitropoulus, supra, was wrongly decided, in that it stated that there was a temporal element to the defence of extraordinary emergency, and that the words in s 25 of the Code carry their ordinary meaning. It was submitted that this was inconsistent with the decision in Warnakulasuriya v The Queen (2012) 261 FLR 260. The appellant concedes it is not open to the District Court in its appellate jurisdiction under s 222 Justices Act 1886 (“Justices Act”) to determine this issue, as of course this court is bound by decisions of the Court of Appeal of the Supreme Court of Queensland.
  3. [68]
    Ultimately, it was submitted at [39] of the appellant’s  outline that the learned Magistrate ought to have found that the appellant’s circumstances were sufficiently different to Dimitropoulus, and that;
    1. (a)
      The possibility of an extraordinary emergency was raised by the appellant and not negatived by the prosecution beyond a reasonable doubt; or
    2. (b)
      On balance, the appellant held an honest, reasonable but mistaken belief that there was an extraordinary emergency.

Submissions of the respondent

  1. [69]
    It was submitted that the learned Magistrate was not obliged to accept the evidence of the appellant that she believed she had exhausted all her medical options. It was further submitted that the learned Magistrate was correct when she stated that there was no supporting evidence concerning her applications for medicinal cannabis in Queensland. It was pointed that the appellant gave vague evidence about this, that she was unable to name the doctors she applied to at the Gold Coast University Hospital, for example. No supporting evidence was produced.
  2. [70]
    The respondent disputed the submission on behalf of the appellant that the only options that were left to her were to take prescription medication that did not work, or to do nothing and put up with her symptoms, or to commit suicide as she was ineligible for medicinal cannabis. It was pointed out that the appellant provided no supporting documents to prove that she had actually had attempted to get medicinal cannabis in Queensland. There was nothing in the evidence to suggest that being a disability pensioner prevented the appellant from moving to New South Wales. While that may have meant that she moved away from her “support network”, that did not mean that moving to New South Wales was not an option.
  3. [71]
    The following specific submissions were made by the respondent:

6.14 The acts of the appellant were not done under circumstances that would touch upon an ordinary person’s self-control and were not urgent and immediate. The appellant’s actions had ‘the character of deliberate choice rather than emergency action, and therefore were not under the compulsion of emergency.’[32] The ordinary person possessing ordinary powers of self-control would not have reasonably behaved in the way of the appellant.

6.15 The fundamental flaw in the appellant’s claim to s 25 defence is that the ‘need’ for cannabis did not arise suddenly or quickly but had existed for many years before the appellant started to grow cannabis. The continuous and lengthy breach of the law also prevents the classification of the appellant’s actions as responding to an imminent threat of harm. Further, the appellant’s response was not compelled by the circumstances but was a deliberate choice to break the law rather than suffer the side effects of the lawful methods of pain relief or take other alternative action. The defence was not successfully raised on the evidence and her Honour did not err in concluding that the element of unlawfulness was met and there was no extraordinary circumstances.

6.16 When considering s 25 in combination with s 24 the Court of Appeal confirmed in Dimitropoulus that the defences may work in combination. In Dimitropoulus it was found that ‘even if the appellant held an honest but mistaken belief that an emergency existed, such a belief could not, on any view, be said to be held on reasonable grounds in the circumstances’. By the time the appellant was charged with producing a dangerous drug she’d been suffering from the medical condition for a number of years, there was no sudden or extraordinary escalation in her condition. The appellant admitted in cross-examination that  her pain that day was no different to any other day and that she had been experiencing pain since 1988. There was evidence that her pain had increased over the years but nothing to suggest that during the time of production it was any worse than before.”

Principles relating to an appeal from the Magistrates Court

  1. [72]
    This appeal is brought to this court pursuant to s 222 Justices Act. Pursuant to s 223, the appeal is by way of rehearing on the original evidence. The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, though such an analysis may sometimes be helpful; it is to decide the case for itself. That will often be done by considering only the evidence admitted at first instance, subject to any question of leave to admit fresh evidence. The appellate court must draw its own inferences from the facts established by the evidence while respecting the advantage of the court at first instance in seeing and evaluating the witnesses: Graham v Queensland Nursing Council [2009] QCA 280, per Fryberg J at [69].
  2. [73]
    Where findings of fact depend on an assessment of conflicting evidence, it is the duty of the appellate court to conduct a “real review” of the evidence; it is obliged of course to respect of the decision of the trial Magistrate and to bear in mind any advantage the trial court had in seeing and hearing witnesses give evidence. The appellate court is to weigh conflicting evidence and draw its own inferences and conclusions: Fox v Percy (2003) 214 CLR 118 at 124-129.
  3. [74]
    On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and law as they stand at the date of the decision on appeal: Teelow v Commissioner of Police [2009] QCA 84.

Relevant law

  1. [75]
    Section 129 Drugs Misuse Act 1986 (“DMA”) states relevantly as follows:

(1) In respect of a charge against a person of having committed an offence defined in Part 2 —

(c) Proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place; and

(d) The operation of the Criminal Code, s 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge; and

(e) The burden of proving any authorisation to do any act or make any omission lies on that person.”

  1. [76]
    Relevantly, s 24 Criminal Code states as follows:

(1) A person who does or omits to do an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

  1. [77]
    Section 25 of the Code states as follows:

Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

  1. [78]
    The leading authority in Queensland on s 25 of the Code is R v Dimitropoulus, supra.  Brown J gave the leading judgment, with whom Fraser JA and Henry J agreed.  Importantly, Her Honour said the following:

[56] The defence provided under s 25 of the Criminal Code bears similarities to other statutory defences in other Australian states and territories and the defence of necessity at common law, but differs in some significant respects.

[57] An emergency can be actual or the product of an honest and reasonable, but mistaken, belief.  As such, the defences available under s 24 and s 25 of the Criminal Code may work in combination.

[58] The defendant to criminal proceedings bears the evidential burden of raising a defence under s 25 of the Criminal Code.  The test of whether there is ‘evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived’.  Once raised, the onus then falls on the Crown to negative the defence beyond reasonable doubt.

  1. [79]
    Brown J then went onto consider the judgment of Atkinson J in R v Gardner [2012] QSC 73.              Her Honour said:

[60] In R v Gardner Atkinson J referred to the decision of R v GV,[33] in which this Court found that there were facts establishing a defence of extraordinary and sudden emergency.  In that case, the defendant was charged with dangerous driving causing grievous bodily harm, in circumstances where he was being chased by ‘skinheads’ and ‘he and the passengers in the vehicle had been attacked and threatened’, including while stopped at a red light.  This case was described by Atkinson J as ‘extremely unusual’.  Her Honour accepted the submission of the Crown that the cases which followed R v GV in the Court of Appeal ‘show the limitations on the defence, that it is limited to cases where the defendant is confronted by sudden and extreme circumstances and where the danger is imminent and extreme.”

 Her Honour stated that the submission was further supported by the ordinary meaning of the words and by the common law.  In particular, Her Honour referred to the definition of ‘emergency’ appearing in the Oxford English dictionary as being ‘a juncture that arises or turns up, especially a state of things unexpectedly arising and urgently demanding immediate attention’.  Her Honour ruled that the defence was not available.  She found that the growing of cannabis over a period of four and a half years was not done under circumstances of sudden or extraordinary emergency…

  1. [80]
    Brown J then went onto consider the phrase “sudden or extraordinary emergency”.  She said the following:

[61] The learned trial judge, in the present case, accepted that the phrase ‘sudden or extraordinary emergency’ in s 25 of the Queensland Criminal Code may be read disjunctively, such that sudden is separate from extraordinary, however, he considered that there must still be an emergency which requires immediate action, applying the principles outlined in R v Gardner.

[62] There is in my view a temporal element imported by the reference to ‘emergency’ in respect of both a ‘sudden emergency’ or ‘extraordinary emergency’, which is supported by the context of the section which also requires that ‘an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise’.  The ordinary meaning of ‘extraordinary’ relevantly refers to ‘of a kind not usually met with; exceptional; unusual; out of control’.  The ordinary meaning of ‘emergency’ relevantly means ‘a sudden state of danger, conflict, requiring immediate action’.  The reference in s 25 to ‘extraordinary’ does support the fact that the emergency may develop over time for example, rising flood waters, unlike ‘a sudden emergency’.  However, there must be an emergency of such a scale that it requires immediate action, commensurate with the consideration of self-control.  As Atkinson J stated, it is a section which is directed to a person reacting to imminent danger.

[63] Whether the emergency is a sudden or an extraordinary one, it must in either case be an emergency, as established by applying an objective test to the facts, or the defendant must honestly and reasonably, albeit mistakenly, have believed that the emergency was real.” (Emphasis added; references omitted).

  1. [81]
    Brown J considered that while s 25 of the Code was similar to the common law defence of necessity, among other points of distinction that common law defence did not have a temporal element.  Her Honour referred to the decision of the New South Wales Court of Criminal Appeal in R v Rogers (1996) 86 A Crim R 542.  Gleeson CJ, then Chief Justice of the Supreme Court of New South Wales, said the following at 546:

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct or apply their own set of values inconsistent with those implicit in the law.”

  1. [82]
    Gleeson CJ further stated at 547:

The relevant concept is of necessity, not expediency, or strong preference.  If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgements different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of our coherent legal system would be undermined.

  1. [83]
    The decision of the Court of Appeal of Western Australia in Warnakulasuriya v The Queen, supra, concerned a defence of sudden or extraordinary emergency as provided by s 10.3 of the Commonwealth Criminal Code.  While the first paragraph of that section has some similarity to s 25 of the Queensland Code, the whole section has significant differences.  As the appellant accepts, I am bound to follow the law as set out by the Queensland Court of Appeal, particularly in the judgment of R v Dimitropoulus, supra.

Consideration

  1. [84]
    It is clear on the evidence that in the years up to the commission of the drug offences on 19 June 2017, the appellant had a combination of significant physical illnesses, which at times manifested in severe symptoms and pain.  Dr Landsberg considered that the appellant had some form of vascular disease since about 2014.  She developed scleroderma, Raynaud’s Phenomenon and Buerger’s disease, which Dr Lansberg stated in Exhibit 9 was “often seen in smoking, both normal smoking and marijuana smoking.[34]
  2. [85]
    Dr Lotz stated that the appellant reported to him that she had been smoking cannabis since 1988 following spinal surgery, and consequent residual pain.  She found that cannabis oils for topical and oral use had been helpful to her to manage dermatological problems and pain issues, and that they managed her general anxiety and calmed down features of post-traumatic stress disorder.
  3. [86]
    Dr Lotz considered that the appellant suffered from a formally diagnosed complex post-taumatic stress disorder, with a history of social and general anxiety, obsessive compulsive disorder and an undiagnosed attention deficit disorder.  She had no overt psychiatric symptoms, but the appellant did describe ongoing features of anxiety, and unresolved relationship issues.  At page 8 of his report, he observed that the appellant’s symptoms of pain fluctuated, and that it appeared that the cannabis use had managed her pain and slowed deterioration related to scleroderma.
  4. [87]
    Dr Lotz, in Exhibit 8, stated that the appellant had been struggling with anxiety, including social and generalised anxiety disorder, and depression since the age of 17.  Significantly, the appellant described to him chronic suicidal ideation and intention, prior to cannabis use.  In his evidence, Dr Lotz stated that the appellant reported to him that her anxiety was worse when taking prescription medication, and it also increased her suicidal feeling.  She also “felt doped out and a bit spaced out which is typical with opiate medications but anti-depressants can do that too.  So can mood stabilizers and anti-psychotics.”[35]
  5. [88]
    Dr Lotz said that the appellant stated that she had suicidal ideations when she started taking the prescription medication.  He considered that suicidal ideation was an issue that needed to be dealt with, as it was an emergency.  He said:

Well, firstly, I’d get the patient off the medication and depending on how determined they are to hurt themselves as whether they should be admitted either voluntarily or involuntarily into a place of safety such as a hospital.[36]

  1. [89]
    There was no evidence that the appellant acted on any suicidal ideation, nor that she made an attempt at suicide.  There was no evidence that the appellant required hospitalisation, voluntary or involuntary, as a result of the suicidal ideation she said she had as a result of the prescription medication.  It is apparent that the suicidal ideation was chronic and had existed for some time.
  2. [90]
    The appellant gave evidence that before the police search on 19 June 2017, she had made an application for medicinal cannabis through the TICS scheme in New South Wales.  She added that she was unable to apply for a prescription for medicinal cannabis if doctors were not prepared to prescribe it.  She claimed to have seen a doctor and was denied medicinal cannabis “multiple times”.  She claimed she appealed those decisions, by appealing to the Health Ombudsman.  She also said she wrote to the Gold Coast Hospital at least once.  She could not say when the appeal decisions were made.[37]
  3. [91]
    In my view the magistrate was entitled to find this evidence troubling, due to the vagueness of it.  No evidence was produced about these various medical requests, when they occurred and the results of any decision by the Health Ombudsman, nor any communication from the Gold Coast Hospital.  Given that the appellant had been consuming cannabis since 1988, it was open for the magistrate to conclude that the appellant had a long-standing addiction to the drug over and above the need for pain relief.  Unfortunately, no questions were asked of the doctors concerning psychological addiction to cannabis.
  4. [92]
    Exhibit 6 was the letter from the New South Wales Department of Justice, Community Relations Unit, to the appellant, dated 24 February 2015.  It stated that the appellant was not eligible for registration under their New South Wales terminal illness cannabis scheme (TICS) because she did not reside in New South Wales.  Further information was provided about accessing information about the scheme, including eligibility.  The appellant said that it was not practical for her to move to New South Wales because she did not have a support network down there, and that she did not have the money to move to New South Wales.  No evidence was given about the precise costs of relocating to New South Wales, or whether she would be eligible for some government assistance for a relocation.
  5. [93]
    Exhibit 7 was an invoice for legal cannabis dated 19 October 2020, which indicated the total cost for three prescriptions for various “Cannatrek” products was $1,920.00. 
    The appellant indicated that she could not afford that on a fortnightly pension of $1,002.00 at the time she gave evidence.[38]
  6. [94]
    It should be noted that limited finances has never been an excuse to commit criminal offences.  Of course it may be a powerful mitigating feature on sentence.
  7. [95]
    The appellant in her outline filed 13 January 2021 submitted at [25] that her options were limited.  As at 19 June 2017 she could not obtain legal medicinal cannabis in Queensland.  She could not afford to move to New South Wales, and in any event, such a move would mean she would lose her support network, which she needed.  All of the varieties of prescription medication she had taken were either ineffective at treating her extreme pain, or had intolerable side effects that increased her anxiety and suicidal feelings.  In effect, it was submitted it was unrealistic that she simply take nothing, and simply put up with the extreme pain she felt.  It was further submitted that committing suicide was not a reasonable option, and therefore the only option she had was to break the law by producing and possessing cannabis.
  8. [96]
    As discussed above, despite the chronic suicidal ideation, there is no evidence that the appellant acted on any suicidal ideation in the year or so leading up to 19 June 2017.  There was no evidence of any attempt, serious or otherwise, and no evidence that she required hospitalisation to deal with such ideation.  On the evidence, the appellant had been living with such ideation for most of her adult life.
  9. [97]
    One should feel extraordinary sympathy for the appellant, due to her psychological and physical illnesses.  On the evidence, it is possible that the appellant honestly believed that she had no choice to deal with her afflictions other than to break the law.  However, on the evidence it cannot be said that that was reasonable.  In order for the appellant to meet the onus placed on her by s 129 DMA, it must be established that the appellant’s belief was both subjectively honest and objectively reasonable.[39]
  10. [98]
    In my view, there was not an emergency of such a scale that it required immediate action, nor that an ordinary person possessing ordinary power of self-control could not reasonably be expected to do otherwise.
  11. [99]
    I accept that the appellant’s circumstances are different from the circumstances of Mr Dimitropoulos, in that her physical and psychological conditions were serious, and the nature of the pain, albeit fluctuating, was extreme.  Like Mr Dimitropoulos, however, cannabis was seen by the appellant as the optimal form of pain control; it did not have the serious side effects of other prescription medication.
  12. [100]
    Significantly, during the police search of the appellant’s house on 19 June 2017, the appellant said that she had been placed back on opioids because the cannabis oil “wasn’t killing the pain”.[40]
  13. [101]
    On the evidence it cannot be said that the appellant was faced with a sudden emergency; the appellant contends that she was faced with an extraordinary emergency, namely unbearable physical pain that could not be adequately treated with prescription medication, without causing severe side effects. She had no other option as at 17 June 2017 to meet that extraordinary emergency other than to illegally produce and possess cannabis, as it was the only substance that provided her with adequate pain relief without the extreme side effects.
  14. [102]
    The appellant correctly submits that the onus is on her to show she had an honest and reasonable belief as to the existence of an extraordinary emergency, by operation of s  129(1)(d) DMA.
  15. [103]
    I accept that the appellant had a serious combination of severe illnesses, both physical and psychological at the time the offences were committed.
  16. [104]
    The appellant could have enquired whether she could get financial assistance to move to New South Wales, whether from a government agency, or from her support network.  She also had the option to persist with prescription medication which did relieve the pain, and to endure the side effects, with guidance from doctors, including a psychiatrist, until such time as she was eligible to receive lawful medicinal cannabis. It was not objectively reasonable for the appellant to illegally produce and possess cannabis.
  17. [105]
    The respondent referred the court to the decision of the Court of Appeal of England and Wales in R v Quayle & Ors [2005] 1 WLR 3642.  Like Rogers, this case concerned the common law defence of necessity, which is different from sudden and extraordinary emergency under s 25 of the Criminal Code.  In that case, Mr Quayle had received a bilateral below-knee amputation as a result of operations in 1997 and 2000.  He suffered significant pain.  An expert doctor, Dr Reynolds, provided a report that observed that Mr Quayle:

is a man with an extensive history of severe pain, which a long succession of doctors has accepted as genuine.  He has received incomplete relief of this symptom despite appropriate conventional medication.  Part of his problem is that his sleep is disturbed despite prescription of regular night sedation.  Smoking cannabis gives some assistance with his pain and insomnia.  Without entering into the debate around legality, there is no question in my mind that this patient has taken cannabis with benefit to his chronic symptoms.”

  1. [106]
    Quayle was charged with the cultivation of cannabis in contravention of the Misuse of Drugs Act 1971 (UK).   In addition to the severe pain he experienced, it was also observed that Quayle was at risk of suicide.  However on the evidence it was not suggested that the taking of cannabis was necessary to avoid a risk of suicide.
  2. [107]
    Other appellants had different circumstances.  Two of them, Taylor and Lee, imported cannabis illegally to provide a clinic with cannabis.  The clinic supported HIV positive patients, patients suffering AIDS and multiple sclerosis.  The judgment of the court was delivered by Mance LJ.   His Lordship said this at 3676-3677:

The necessitous medical use on an individual basis which is at the root of the defences suggested by all the appellants and Mr Ditchfield is in conflict with the purpose and effect of the legislative scheme.  First, no such use is permitted under the present legislation, even on doctor’s prescription, except in the context of the ongoing trials for medical research purposes.  Secondly, the defences involve the proposition that it is lawful for unqualified individuals to prescribe cannabis to themselves as patients or to assume the role of unqualified doctors by obtaining it and prescribing and supplying it to other individual ‘patients’.  This is contrary not only to the legislative scheme, but also to any recommendation for its change made by the Select Committee and Runciman Reports.  Further, it would involve obvious risks for the integrity and the prospects of any coherent enforcement of the legislative scheme.  A parallel but lawful market in the importation, cultivation, prescription, supply, possession and use of cannabis would have come into existence, which would not only be subject to no medical safeguards or constraints, but the scope and legitimacy of which would in all likelihood be extremely difficult to ascertain or control.

  1. [108]
    I endorse these comments.
  2. [109]
    There were powerful mitigating factors in favour of the appellant.  However they did not amount to an actual extraordinary emergency in the circumstances, nor as I have said above, an objectively reasonable belief that such an extraordinary emergency existed.
  3. [110]
    The appeal is dismissed.

Footnotes

[1]I have not included all of the transcript references that are contained in the notice of appeal. I have had full regard to those passages.

[2]R1-13, l 45.

[3]R1-14, l 20.

[4]R1-17, l 23.

[5]R1-17, l 35.

[6]R1-18, l 32.

[7]R1-18, l 45.

[8]R1-19, l 20.

[9]R1-19, l 34.

[10]R1-20, l 6.

[11]R1-20, l 35.

[12]R1-21, l 6.

[13]R1-21, 1 20.

[14]R1-22, l 10.

[15]R1-22, l 20.

[16]R1-23, l 20.

[17]R1-24, l 3.

[18]R1-24, l 15.

[19]R1-25, l 20.

[20]R1-25, l 40 to R1-26, l 5.

[21]R1-26, l 20.

[22]R1-26, l 30.

[23]R1-28.

[24]R1-28, l 30.

[25]R1-43, l 25.

[26]R1-45, l 40.

[27]R1-46, l 8.

[28]R1-51, l 32.

[29]R1-51, l 40.

[30]R1-52, l 35.

[31]R1-53, l 25.

[32]Osborne v Dent, ex parte Dent [1982] QSCFC 68, at page 7.

[33][2006] QCA 394.

[34]Another disturbing warning about the dangers of smoking, if any further warning was actually needed.

[35]R1-43, l 25.

[36]R1-44, l 20.

[37]R1-33, l 35.

[38]R1-29, l 10.

[39]R v Wilson [2009] 1 Qd R 476, per McMurdo P at [20] of her judgment.

[40]Exhibit 2, disc or police search.

Close

Editorial Notes

  • Published Case Name:

    Lynch v Commissioner of Police

  • Shortened Case Name:

    Lynch v Commissioner of Police

  • MNC:

    [2021] QDC 213

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    10 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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