What are the laws which make cultivation of cannabis illegal?

by The FindLaw Team

According to a 2010 study conducted by the Australian Institute of Health and Welfare, 10.3% of Australians had used cannabis in the 12 months preceding the publication of the study, and furthermore, 35.4% of Australians over the age of 14 admitted to using cannabis over the course of their lives. To put it another way, over 7 million Aussies, 14 years of age and older have used cannabis according to government numbers, with those aged 30-39 being the most prolific users with half of that age bracket admitting to having used the drug. Essentially, what the study is demonstrating is that a lot of people would have some familiarity with cannabis, and with that in mind, all readers should be aware that cannabis use is illegal, and by extension, the cultivation of the plant: But how is cultivation defined in the law? And when is it deemed to be an offence? Well, read on to find out.

Cultivation in legislation

Unsurprisingly, the cultivation of cannabis plants is outlawed in all jurisdictions and for the most part, ‘cultivate’ is defined in a similar manner across all jurisdictions and for our legislative example, we can turn to s 4 of South Australia’s Controlled Substances Act that defines ‘cultivate’ in the following way:

“(a) plant a seed, seedling or cutting of the plant or transplant the plant; or 
 (b) nurture, tend or grow the plant; or
 (c) harvest the plant (including pick any part of the plant or separate any resin or   other substance from the plant); or
 (d) dry the harvested plant or part of the plant; or
 (e) take part in the process of cultivation of the plant;”

On a related aside, the use of indoor hydroponics is also outlawed and s 3 of Victoria’s Drug Misuse and Trafficking Act defines “cultivation by enhanced indoor means”, as cultivation which occurs:

  • inside a building or a structure;
  • involves any one or more of the following: the nurturing of a plant with the use of nutrient rich water with or without mechanical support; application of artificial source of light or heat; suspension of the root of the plant, and spraying the plant with nutrient solution.

It’s worth reinforcing the point, that legislation which makes reference to cultivation, generally refers to the sowing, planting, growing, tending, nurturing or harvesting of a plant, and that the variations between the different statutes are for the most part, slight.

How the courts define cultivation

Because the practice of law is a precise exercise, the courts have had to grapple with the question of the process of cultivation and have stated that it encompasses the whole process: But what does that mean? Well, in R v Stratford and McDonald the Queensland Court of Criminal Appeal had to define what constitutes cultivation, with Macrossan J saying that the whole of the act of cultivation would themselves be acts of cultivation, however, it may be necessary to distinguish “… non-purposive or accidental applications of water and other acts which might be performed having an unintended effect of encouraging growth of plants.”

His Honour later added:

“The concept of cultivation involves taking seeds or plants for the purpose of fostering growth or further growth from them, most frequently with a view to harvesting the plants. When the plants are taken into care in this sense, I would not consider that relevant acts of cultivation cease when the harvest is over. In my opinion, it would be an unduly narrow view to suggest that a farmer’s activity of cultivation ceases with his last act of tiling, fertilising, irrigating etc occurring before he commences to gather his crop. He holds himself ready to tend his crop and supply their needs as they become manifest. He remains engaged in cultivation until he takes his crop.”

Additionally, it’s also important to add, that individual acts can also be considered as cultivation, as we can see via s 3 of Victoria’s Drug Misuse and Trafficking Act, and also in case law, such as the matter of R v Giorgio and Romeo, where King CJ said; “The prohibition… includes in my opinion, all activities associated with production from the soil, including preparing the soil, sowing, fertilising, tending and caring for the plants, and finally harvesting the crop.”

Does cultivation also mean trafficking?

The question of whether cultivation equates to trafficking is an interesting enquiry to explore – and also an important one.

Essentially, if a person is found to have in their possession less than a commercial quantity, the onus is then on the prosecution to prove the intent of a person to cultivate not less than a commercial quantity (R v W (1993) 32 NSWLR 348 (CCA)).

Possession of items as evidence in proving cultivation

Many matters put before the courts rely on the admitting of evidence that an accused had within their possession the necessary equipment to commit a criminal offence. The admissibility of such evidence usually turns on whether the equipment in the person’s possession is capable of use in the committing of an offence.

Therefore, in certain instances, possession of cannabis related material has been held as relevant in proving cultivation – such as the possession of seeds as was the case in R v Taouk and Henna, where the appellants were found in possession of Indian hemp seeds and the New South Wales Court of Criminal Appeal (NSWCCA) had to determine whether possession of the seeds was admissible as evidence. In Taouk and Henna, the NSWCAA ultimately held that the possession of the seeds was admissible as evidence of implements which were capable of being used in the commissioning of a crime.

Furthermore, in the matter of R v Hofer, the Court of Criminal Appeal of Victoria considered that possession of a book on how to cultivate marijuana was also admissible as evidence. The majority held that the chapter referring to marijuana cultivation and the method used by the applicant in the cultivation of the plants was done in such a manner, that it was plainly open to the jury that the chapter used might assist with the crime.



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