Should Ford be issued with a Cannabis Infringement Notice?

Answer

The cannabis plant is one of the genus cannabis which is illegal in Australia. Therefore, being found in possession of one, or cultivating it generally equals to a simple crime, especially when the individual is not authorized to do so. The law relating to cannabis is complex with specific stipulations which must be followed to determine the kind of action that one must be subjected to. Some of the factors which are considered include the total number of cannabis plants found, the age of the offender, the place of residence and many others. This paper features a case study which determines when an individual may be found guilty of the offense, and which course of action is permitted under the law.

Should Ford be issued with a Cannabis Infringement Notice?

            Ford’s situation presents specific elements which can be used to determine whether or not she qualifies to be issued with a Cannabis Infringement Notice. First of all, there are several factors under Misuse of Drugs Act (1981) which indicate that Ford qualifies to be issued with a cannabis infringement notice[1]. Ford has already attained the age of 18. This means that she is an adult who can be issued with the noticed if found in possession of or cultivating cannabis without authorization[2]. Additionally, the police officer has been watching Ford attend to the plant on the roof for some time. This qualifies for the required period of 21 days as the activity has not been going on for so long¹. The cannabis plants are located on the same premise which is also considered her principal place of residence.

It is easy to assume that it is not her principal place of residence since it is her grandmother’s house. However, it is the place she currently calls home as she has moved here with all her clothes and even has her own room[3]. She does not get along with her mother, which is why she stays with her grandmother Grace. The law defines principal place of residence as “the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person”³. However, if this was not considered her principal place of residence, such as if she was only visiting and going back home, then she would not be considered liable for her actions and the notice would not be issued.

Another important element from the scenario is that Ford lives with Grace who has no idea what cannabis is, meaning that she has never cultivated one. Therefore, Ford qualifies for the notice since there is no one else cultivating cannabis in the premise. Also, she only has 1 cultivated cannabis plant which makes it a simple offence that is dealt with through the cannabis infringement notice1. 

            According to the Criminal Code Act (1995), it is required that the police officer believes on reasonable grounds that there is enough evidence or information to support their legal actions[4]. In the scenario, there is enough evidence because the policeman is the witness to the crime. He has been watching Ford for quite some time, and he even identified the plant as cannabis. Therefore, he is sure, or rather has reasonable ground to believe that a crime has been taking place. He also witnessed Grace watching Ford go up the ladder, thus he has reason to believe that she may truly not know what was going on.

            Although Ford’s case is a minor offense, it may be likened to Davies -V- the State of Western Australia [2006]. According to this case law, it must be proved that there was possession to the drug before the individual is found guilty[5]. In this case scenario, Ford is guilty of possession as she has even been tending to the plant. Knowledge must also be proved in by considering whether the individual knew that it was wrong and is in the right state of mind. From the case scenario, Ford had knowledge as she knew that it was illegal to cultivate the cannabis. It is the reason why she even kept it on the roof where no one would have suspected.

            The State Of Western Australia -V- "R" [2009] also supports the argument made if at all Ford tried to deny knowing that the plant was indeed cannabis[6]. This is because she made specific statements that indicate she actually knew about it. For instance, when the police confronted them, she stated that Grace did not know about it, and would not even know how cannabis looks like. This implies that she knows how the plant looks like and has even been hiding the fact from her grandmother.

            Therefore, in light of the law, several facts are identified in this case scenario. First, Ford has attained the required age to be held accountable for her actions. Second, she has been found in possession of cannabis with knowledge that it was indeed an illegal drug. Third, she grows the plant in her principal residence which further supports the fact that she is guilty.

Is Ford Growing Cannabis Hydroponically Legal?

            Although Ford also has another plant in her room which she is hydroponically cultivating, the one on the roof is enough for her to be given the notice1. Therefore, the answer above does not change. This is because there is still reasonable proof that she was cultivating the other one in secret, despite knowing that it was illegal. This occurrence further suggests that she actually knew that the plant was cannabis; hence it removes any doubts and acts as additional proof to the charges by the policeman.

            According to Misuse of Drugs Act (1981), Cannabis Infringement Notices may be issued when a cannabis plant is under cultivation, other than those under hydroponic cultivation1. This clause means that the notice should not be given to individuals found cultivating the cannabis plant hydroponically. However, in the current case scenario, Ford was already found cultivating another plant outside, which is the reason why she should be given notice. However, if Ford did not have the other plant growing outside, she would not have qualified for the notice as it is exempted in the act.

What if the Police had not witnessed the Situation First Hand?

            Issuing a cannabis infringement notice may not have been warranted if the police officer had not seen Ford’s activities or the plant. This is because being told by neighbors that such an activity is taking place is not enough proof. This argument is based on the “reasonable grounds to believe” test. In the Criminal Code Act (1995), there are two tests including the reasonable grounds to believe and the reasonable grounds to suspect4. Therefore, before the policeman takes any action, he must be satisfied at this time that there are reasonable grounds to suspect that the accused has indeed committed the crime. The difference between reasonable grounds to believe and grounds to suspect is based on the level of knowledge. The previous requires higher levels of knowledge while the latter requires minimum knowledge[7]. Therefore, the grounds for suspicion do not require admissible evidence.

            In this scenario, the cannabis infringement notice would not be issued even on the basis of reasonable grounds to suspect. This is because the words of a neighbor are not enough to cause the policeman to suspect Ford. First of all, it may have been simply a misunderstanding and the plant she is caring for is not actually cannabis. Therefore, the policeman has no knowledge at all but still cannot rely on hearsay from neighbors. Probably, the effect would have been different if the police had also witnessed the weird activity but was just unsure of the plant. This would have proved that he actually had something to suspect.

 However, since this is not a major crime requiring arrest, the policeman cannot simply offer the cannabis infringement notice as his arguments do not qualify under the Misuse of Drugs Act (1981)1. The best step, therefore, would have been to conduct minor investigations and get the information first hand. In addition, according to Davies -V- the State of Western Australia [2006] once an action is taken based on reasonable ground for suspicion; the prosecution will have to prove the suspicion right in court5. At this point, the accused would either prove that he is guilty or innocent.

Unfortunately, if a cannabis infringement notice is given based on suspicions only, the accused may end up suffering wrongfully incase the crime was not actually committed. This is why it is better to act on the reasonable ground to believe. For example, in the case Solway v R (1984), if the police simply arrested Solway on basis for suspicion, he would have suffered for a crime he did not actually commit[8].

Should Grace be issued with a Cannabis Infringement Notice?

            Before analyzing the situation deeply, one may easily assume that Grace should also be issued with the Cannabis Infringement Notice since the drug had been found in her place of principal residence. There are specific elements which support that she be issued with the notice, but with a deeper understanding of the scenario, it becomes evident that she cannot be held accountable. For instance, before one is charged and found guilty of the simple crime, he or she must have been in possession of the drug, as well as knowledge that it was an illegal substance.

            According to Davies -V- the State of Western Australia [2006], to be found guilty of the offense, Grace should have assumed control of the drug5. Therefore, since the drug is in her premise, she may be found guilty of possession, but this alone is not sufficient. There must be proof that she had control, dominion or the order or disposition of the prohibited drug. In the scenario, Grace had her suspicions that Ford was caring for a cannabis plant at the roof. However, she never touched the product or tried to move it, meaning that she did not take control over it as suggested in a similar case in Solway v R (1984)8.

There are many reasons why this could be possible. First, she is elderly and has poor vision. Therefore, it was impossible for her to do anything about the situation especially since she was not even sure that the plant was cannabis. In relation to knowledge that she indeed had a cannabis plant growing in her premise, the case Davies -V- the State of Western Australia [2006] salvages her situation because it indicates that an exception may be made where the person in possession had no knowledge that it was indeed a drug5.

In this current situation, Grace has no idea what cannabis looks like, and was only warned that it could possibly be one. Therefore, there is no sufficient knowledge in the presence of the drug. In addition, the argument that she did not know that it was actually a drug can be proved by the fact that she has no proper vision. Therefore, it would have been impossible to actually move around and prove that it is indeed cannabis.

            Also, before Grace can be issued with the notice, there must be proof of intention to possess the drug. Proof of possession in Grace’s case is negative under this clause because it is argued that for proof of possession to be proved, there must be knowledge, control and intention to possess. In this case, Grace had none of the above, but Ford did. Grace did not have any intentions of possessing the drug, she does not use it neither does she sell it. She never even went near it even after suspecting that it could be cannabis. The case Davies -V- the State of Western Australia [2006] indicates that the proof of knowledge does mean intention to possess5. This is because having knowledge will mean that the individual had it in possession knowingly.

Conclusion

            Considering the analysis of the case study conducted, it is evident that the law works differently. For one to be accused of possessing a drug, he or she must be in possession of the drug. For there to be proof of possession, the police officers must ensure that there was knowledge of the drug, control over the drug, and an intention to possess it. Despite having similar principal place of residence, there are specific reasons why Ford should be issued with the Cannabis Infringement Notice and not Grace. As noted in the discussion above,  Ford had knowledge of the drug, as evidence by the other plant growing hydroponically in her room and being seen taking care of the other one hidden at the roof. Grace, on the other hand, had no knowledge as she only wondered what Ford was doing at the roof before it was mentioned that she could be growing cannabis. She also has no idea of what the drug looks like and could not confirm because of poor vision. While Ford actually came into contact and handled the drug, Grace did not assume control as she never touched it. Lastly, Ford had the intention to possess while Grace did not.

[1] Misuse of Drugs Act 1981 (WA) s. 7(2)

[2] Poisons Act 1964 s. 5

[3] Duties Act 1997 s. 162A(1)

[4] Criminal Code Act 1995 s. 105.43(2)(b)

[5] Davies -V- The State Of Western Australia [2006] WASCA 151

[6] The State Of Western Australia -V- "R" [2009] WASCA 49 

[7] Crimes Act 1914 s. 3W(1)

[8] Solway v R (1984) 11 A Crim R 449