The defence of “Extraordinary emergencies” is not open to a person using cannabis to self-medicate.

Case Note QLD - Lynch v Commissioner of Police [2021] QDC 213

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Facts: The appellant was charged with Possessing and Producing a dangerous drug namely cannabis. The appellant was afflicted with several very serious and debilitating physical illnesses. After trying various medications to treat her pain and legal routes for acceptance into the medical cannabis scheme in QLD, the appellant turned to the production of cannabis for her own consumption. After a hearing where the defence of emergency was raised, the court at first instance decided there was no emergency, finding the appellant guilty, imposing a single $1,000.00 fine and not recording a conviction.

Finding: The appellant advanced an argument that R v Dimitropoulos [2020] QCA 75 was wrongly decided where it was found for the defence of emergency to exist (Dimitropoulous is another produce and possess cannabis where “medical emergency” as a defence was raised) there must be a temporal element to the extraordinary emergency and actions taken. The appellant concedes the court had no jurisdiction to divert from the Court of Appeal finding, in any event the appellant in this case was not faced with a “sudden emergency” as the defence requires.

When looking at the interplay between Criminal Code defence of mistake of fact and s 129(d) of the Drugs Misuse Act, it was not objectively reasonable to the appellant to possess and produce cannabis.

The appeal failed.

Notes for practice:

• From paragraph 78 the court looks at the statutory construction of the defences of “Mistake of fact” and “Extraordinary emergencies” under the Criminal Code and the necessity for there to be a temporal connection.
• A reminder, for section 24 mistake of fact under the Criminal Code to apply to a drug offence, the defendant must overcome section 129(d) of the Drugs Misuse Act, the belief was both “subjectively honest & objectively reasonable”.
• Even in the face of distressing and persistent pain and trauma, the defence of emergency under the s 25 of the Criminal Code will fail as it lacks the temporal element required.

More case notes can be found?here.

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