A defence against a drug charge

Introduction

1 I am a citizen of Australia accused by the State of New South Wales of cultivating a prohibited plant and possessing a prohibited drug.

2 Although it would appear that I an guilty under the law, in my heart I am innocent. It follows (for me) that the problem lies in the law.

3 I have been advised by many people, to plead guilty and suffer my punishment. I have been advised by a lawyer that if I mount a defence and fail my penalty will be greater than if I plead guilty.

4 To plead guilty, would however, signal my acceptance of the law. I cannot in conscience do this. Although as an Australian I have a duty to obey the law, I feel that as a human being my age, education and experience require me to take a critical and responsible view of the law and to say something when I encounter what appears to me to be bad law.

Qualifications

5 I am not a lawyer, but bring a lifetime of literary and scientific experience to this document,

6 When I was young I trained for the priesthood for five years in a Catholic religious order and made my perpetual profession. As a Catholic I was bound by the Code of Canon law. The Code evolved from Roman law, from which same root springs much of the Common law of England and NSW.

7 I was rejected from the Order and my vows annulled by Papal act because I was considered not to hold the Catholic Faith in a manner appropriate for a priest.

8 My rejection was a stunning blow, as my friends can attest. Since then I have reflected deeply upon the nature of law and sovereign power I estimate that over the past 40 years that I have spent at least four hours a day reading or writing. I have completed approximately ten years of formal post school education.

9 I normally consume a bottle of ale and, since I began to smoke cannabis about ten years ago, one cigarette of half cannabis leaf and half tobacco per day. In that period I have produced approximately ten thousand pages of hand written notes, and cannot differentiate those written under the influence of cannabis from the rest on the basis of style or content.

10 I feel that an essential component of modern law is scientific integrity. The foundation of science is experience. I feel that the law prohibiting Cannabis lacks scientific foundation, and those who uphold this law without experience of the drug are at risk of being deceived.

11 The prohibition of Cannabis by the State of NSW would appear to rest on moral foundation, derived, most probably , from Christianity. Christians use wine (alcohol) in their sacred ceremonies, and it is possible that the fact that Cannabis derives from another culture is an element in Christian fear of it.

12 The defence I wish to outline in this statement is based on my experience and on legal, theological and mathematical ideas as I have assimilated during my life.

Sovreignty

13 The fundamental question, as I see it is: does the State of New South Wales have sovereignty over my mind? I interpret mind here to mean the same as the canonical term internal forum (forum internum).

14 My belief is that State sovereignty extends to all acts in the external forum which are not removed from the jurisdiction of the State by the higher powers of the Commonwealth

15 The Commonwealth itself is bound by Treaty and by Divine and Natural Law, from which flow human rights. In particular, the sovereign right of the Commonwealth is limited by the sovereign right of the human individual.

16 I will argue from Divine and Natural Law, mathematics and science that the internal forum can, by right, be subject only to the individual in which it subsists . This conclusion appears to be accepted by the Common Law in its rules for trial, but rejected by some religious jurisdictions.

17 As I have experienced them, Roman Catholic Moral and Canon Law claim jurisdiction over the internal forum. This claim is based on the words of Jesus of Nazareth recorded in the New Testament of the Bible:

... Then Simon Peter spoke up, 'You are the Christ' he said 'Son of the living God'. Jesus replied, 'Simon, son of Jonah, you are a happy man! Because it is not flesh and blood that have revealed this to you, but my Father in heaven. So now I say to you: You are Peter and on this rock I will build my Church. And the gates of the underworld can never hold out against it. I will give you the keys of the kingdom of heaven: whatever you bind on earth shall be bound in heaven; whatever you loose on earth shall be considered loosed in heaven.' (Matthew 16:13-19)

18 Jesus is believed by the Catholic Church to be God. This belief was accepted by the Government of England when Henry VIII made himself head of the Church of England by the Act of Supremacy 1534 . The God of the Church of England is invoked in the preamble of the Australian Constitution, and so must be considered legally God and ultimate power in Australia.

19 This line of descent would appear to have created an anomaly in English law which has been inherited by Australian law. Whereas the processes of the Common Law do not allow the Sovereign to enter the internal forum, Henry and his successors (including Parliaments) have, by statute, sought to do so.

20 This issue was raised in the Trial of Sir Thomas More, 1535. More's plea was recorded by his great grandson, Cresacre More. He is reported to have said in part:

... I wish no harm to any, and if this will not keep me alive, I desire not to live; by all which I know I could not transgress any law or incur any crime of treason, for neither this statute nor any law in the world can punish any man for holding his peace; for they can only punish either words or deeds, God only being the judge of our secret thoughts.

21 S 116 of the Constitution prohibits the Commonwealth from legislating in respect of religion. Since we may argue that matters of religion are coextensive with the internal forum, this prohibition would seem to exclude the Commonwealth from the internal forum

22 This matter is obviously relevant in the question of psychoactive drugs, whose principal manifestations are in the internal forum.

23 These drugs can also have effects in the external forum, and there these effects and their direct physiological causes may properly be regulated by law. The fact that this can be done successfully with alcohol, a drug whose effects in the external forum are comparable to those of Cannabis, suggests that the regulation of the external forum is not a sufficient reason for the prohibition of Cannabis.

24 As a child I was confronted by and suffered deeply from the Church's claim that one could sin by thought alone. It seemed impossible to eliminate certain sinful thoughts from my mind, yet I was taught that each such thought was capable of sending me to hell.

25 As I became older I objected to the notion of God which would force me into such sin and said so. This led to a prolonged intellectual confrontation with my superiors

26 I lost my case against the Catholic Church. Canon 333 §3 provides that:

There is no appeal nor recourse against a judgement or a decree of the Roman Pontiff

27 This charges against me here raise the same questions as those made by the Church. Once again I am faced with a Sovereign power attempting to regulate my state of mind.

28 But I feel much safer now under the jurisdiction of English law, the most reasonable thing in all the world

Plea

29 I therefore plead not guilty to both charges:

that on the Fourth day of November 1992 at Elands in the State of New South Wales, [I] did cultivate a prohibited plant, to wit, 48 Cannabis plants [Act 226 1985 Section 23 (1)(a)] and that [I] did have in [my] possession a prohibited drug, to wit, cannabis. [ibid, S 10(1)]

30 On the day of my arrest I made the following written statement:

[I ... state] that the NSW Police today removed a number of cannabis plants from my front garden (immediately adjacent to my house) which I grew for my personal use. The plants were small and I intended to thin them to 2 or 3 as their quality and sex became evident. [signature] 4/11/92.

31 This is not inconsistent with the allegations made by the police.

32 I deduce from the penalties in the Act that this is a serious criminal offence. S 31(3) provides a penalty of $10 000 fine or imprisonment for two years or both.

33 I am entitled to a hearing under the common law of NSW, and therefore submit the following argument in my defence.

Summary of the defence

34 The ground for my defence is that Section 12 (1) of the Drug Abuse and Trafficking Act 1985 is not a valid law of the State of NSW insofar as it applies to my consumption of cannabis. This section reads:

12 (1) A person who administers or attempts to administer a prohibited drug to himself is guilty of an offence.

35 I hold that making and enforcing this law is beyond the legislative power of the State of NSW.

36 I argue first that it would be beyond the legislative power of the Commonwealth of Australia vested in the Federal Parliament to pass a law with the same wording as S 12(1).

37 I then argue that since the High Court of Australia is the ultimate Court of Appeal for an Australian citizen, this Court must find also that S 12(1) of the act is not a valid law.

38 I then argue that the only reasonable ground for prohibiting the cultivation and possession of Cannabis is to prevent its consumption. It follows that if S (12) 1 of the Act is not valid law, Ss 10(1) and 23(1)(a) also fail insofar as they apply to my cultivation and possession of Cannabis for my personal consumption.

39 Given the acceptance of these arguments, if the Court accepts the evidence that I grew and possessed Cannabis for personal consumption, it must accept my plea of not guilty.

Jurisdiction: The Constitution of NSW

40 The NSW Constitution Act 1902 No. 32 makes no mention of Courts or Judicial powers. The Supreme Court in NSW was established in 1824 . The Supreme Court is the superior court of record in New South Wales, with all jurisdiction that may be necessary for the administration of justice in New South Wales.

The Constitution of Australia

41The Commonwealth of Australia is constituted by The Commonwealth of Australia Constitution Act (63 & 64 Victoria, Chapter 12). The Constitution of Australia establishes the Commonwealth as supreme legislative and judicial authority in Australia.

42 The Constitution Act provides that

109 When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency.

43 The Australian Constitution provides that

71 The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the parliament creates, and in such other courts as it invests with federal jurisdiction. ...

44 Section 73 defines the appellate jurisdiction of the High Court:

73 The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders and sentences-

(i.) Of any Justice or Justices exercising the original jurisdiction
of the High Court;

(ii.) Of any other federal court, or court exercising federal
jurisdiction; or of the Supreme Court of any State, or any other court
of any State from which at the establishment of the Commonwealth
an appeal lies to the Queen in Council.

... and the judgement of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions and restrictions on appeals to the Queen in Council from the Supreme Courts of the Several States shall be applicable to appeals from them to the High Court.

45 Crawford writes:

Clearly the High Court's apellate jurisdiction was intended to be comprehensive, and any 'exceptions ' or 'regulations' under s 73 cannot prevent the High Court determining any matter if appeal lay from the Supreme Court to the Privy Council in 1900 in such a matter. This has been held include to include appeals by special leave of the Privy Council itself; since there was an appeal by special leave to the Privy Council from decisions by Supreme Courts at first instance, it follows that the High Court cannot be deprived of the power to hear appeals from decisions of state Supreme Courts, whether composed of a single judge or a Full Court.

46 Since 1984 appeals from Full Supreme Courts or Courts of Appeal are by special leave only . In deciding whether to grant special leave, the Court is directed to have regard, among other things, to:

(a) whether the proceedings ... involve a question of law

(i) that is of public importance, whether because of its general application or otherwise;

or

(ii) in respect of which the High Court, as the final apellate court, is required to resolve differences of opinion between different courts, or within the same court as to the state ofthe law;

and

(b) whether the interests of the administration of justice, whether generally or in the particular case, require consideration by the High Court of the judgement to which the application relates .

47 It is well established that decisions of the High Court on appeal from any jurisdiction bind all courts in Australia

The Judiciary Act 1903 (Cth) gives the High Court jurisdiction in all matters under the Constitution or involving its interpretation [s. 30(a)]. Crawford writes ... no part of this jurisdiction is now exclusive. Constitutional questions can be decided in any court (except a court composed of lay justices). It should be noted that s76(i) extends not only to matters arising under the Constitution but also to matters involving its interpretation. The distinction between the two is not entirely clear, but taken together they ensure that whenever a constitutional issue is genuinely raised in a case, it will bring the case within federal jurisdiction.

S 12(1) of the Act could not be a valid law of the Commonwealth

48 My argument that S 12(1) of the Act would not be found by the High Court to be a valid law of the Commonwealth has four grounds.

First: Freedom of speech

49 The High Court of Australia recently found that there is an implied guarantee of freedom of communications in the Australian Constitution.

50 The Court followed Windeyer J., in the opinion that

"implications have a place in the interpretation of the Constitution ... our avowed task is simply the revealing or uncovering of implications that are already there" .

51 Freedom of communication implies freedom of thought.

52 There can be no doubt from the overall tenor of the Act that Cannabis is a prohibited drug because of its psychoactive properties; that is it is believed to influence the mind, the seat of thought and the source of speech.

53 Prohibition of Cannabis is therefore a restriction on the freedom of thought, and by implication a restriction on freedom of speech. The reasoning of the High Court in the Australian Capital Television case therefore applies in this case, with the effect that S12(1) of the Act could not be a valid law under the Australian Constitution.

Second: The social consequences of the prohibition of Cannabis.

54 People have taken drugs from time immemorial, and we have more physically and psychologically active substances available to us now than at any other time in history.

55 Drugs are natural substances no different physically or chemically from the practical infinity of possible molecules. Drugs are active because they interact with elements of the molecular mechanisms of our bodies. They are therefore simply another part of the natural environment that we have to survive with. Since the law is an important element of our survival mechanism, it must respect the nature of drugs.

56 As I see it, the worst social effect of the prohibition of Cannabis is that it brings contempt upon the law and the Police. The second worst social effect is that by putting the drug and its consumers outside the law, it also puts them outside the public health system. Most of the health problems associated drugs result from the poor control over their production and administration and from the fact that those people who are suffering from their drug use have to face considerable legal and social hurdles to obtaining treatment.

57 I do not think it will be difficult to obtain expert witnesses to testify to these and many other social evils resulting from drug prohibition.

58 Prohibition is a clear source of violence and corruption, that is breaches of the peace.

59 The Encyclopaedia Brittanica has the following to say about the Prohibition of alcohol in the United States:

Prohibition, in the US, legal prevention of the manufacture, sale, transportation of alcoholic beverages except for medicinal purposes, attempted on a national scale between 1919 and 1933. The goal of total abstinence had been set by the temperance movement in the United States during the second quarter of the 19th century, and supporters of Prohibition sought abstinence through legal prohibitions.

...

... In 1917 the resolution for the submission of the Prohibition Amendment to the states received the necessary two-thirds vote in Congress; the amendment was ratified on January 16, 1919, and went into effect on January 16, 1920. On October 28, 1919, the National Prohibition Act ... was enacted, providing enforcement guidelines.

...

...Illegal manufacture and sale of liquor went on in the United States on a large scale. ...

60 Major supporters of Prohibition gradually became disenchanted with it, citing the increase in criminal liquor production and sale, the development of the speakeasy and the increased restriction on individual freedom as its results.

61 It seems to me that allowing for Constitutional differences, we have an exactly parallel case. It is notable that Congress did not prohibit the consumption of alcohol, perhaps because it considered such an act outside its power.

Third: the inability of the State of NSW to enforce s 12(1) effectively.

62 The NSW Government recently announced that it had seized some $200 million worth of Cannabis. I would be surprised if the Police Force manages to detect a fraction of the Cannabis grown in and imported into NSW.

63 As the Act implies (S. 11 A.) water pipes are a common method of administration of Cannabis. From observation of common waterpipes and knowledge of the bulk density of the common smoking mixture of Cannabis leaf and tobacco, we may deduce that one 'dose' ie one 'cone' of Cannabis is about 100 mg. The 'street price' of Cannabis is in the order of $10 per gram, or, on the above calculation, $1 per 'cone'.

64 These figures suggest that S 12(1) is violated in the order of 200 million times per annum in NSW. The Police detect an infinitesimal fraction of these offences.

65 The article Criminal Law in Encyclopaedia Brittannica states:

... Various large-scale inquiries have been made into the relation between the law and civil order: in the United States the President's Commission on Law Enforcement and Administration of Justice; in Europe, several research studies sponsored by the Council of Europe; in Germany the hearings of the Criminal Reform Commission of the Bundestag. One conclusion emerging from these enquiries is that criminal legislation ought to be restricted to acts that pose a serious threat to public order and that can be effectively dealt with by the police, the courts and various correctional institutions. The effort to punish all behaviour that is considered immoral or deviant , such as drunkenness, gambling, disorderly conduct, vagrancy and petty sex offenses multiplies the number of crimes without changing the norms of behaviour. (my emphasis).

66 Not only is S12(1) ultra vires in the strict physical sense that it cannot be effectively enforced, but brings the law into disrepute, therefore weakening the Sovereign power and contributing to the potential instability of the State and breach of the peace.

67 It is logically contrary to the nature of a sovereign power to legislate against its own stability and integrity. It follows that S 12(1) cannot be a valid law.

Fourth, Divine Law, Natural Law and mathematics

68 The Australian Constitution, the legal tradition supporting it and the laws made under it are all a human creation. These laws, like human beings in general are subject to the wider jurisdiction of the divine law and the natural law.

69 Divine and natural law are from a human point of view eternal and unrelenting. If we do not respect them we die. It is therefore essential to our survival to bring our Constitutional arrangements into harmony with divine and natural Law.

70 Natural law is discovered by the Sciences. The source of divine law, in this jurisdiction, is the Bible and the traditions surrounding it.

71 I believe, however, that the Bible, a very ancient document, is no longer an adequate source of divine law.

72 It is a common belief in our society, and a basic principle of our legal system, that the days when the Crown ruled by the sword are past. We now believe in the sovereignty of the law: The power of the Crown is limited by the power of the law .

73 In our legal history, the Sovereign is in some way God's visible representative. This arrangement became more formal when Henry VIII excluded the authority of the Pope from his realm and took upon himself the title Supreme Head of the Church of England.

74 One cannot limit the divinity. Ancient mystical and theological traditions tell us that the divinity is so far beyond our ken that we cannot say what it is. We can, however, deny the divinity those things which are inconsistent. The faith of our religion and science is that ultimately the universe of which we are part is a consistent whole.

75 Limiting the Sovereign, therefore, must have to do with removing from the Sovereign those powers which are not consistent with divinity.

76 If we accept this, a number of consequences follow. I will develop these consequences through the scientific method, that is by deploying and testing a mathematical model. I do this because I am trained as a scientist, not as a lawyer.

77 Science and law have much in common: both try to understand and put into effect realities expressed in language: the courts deal with human language; science deals with the language of nature.

78 Galileo who first expressed this community between law and science. He was judged according to the Canon law of the time and forced to recant. It has taken the successors of the same court three hundred years to acknowledge that the new scientific method is as powerful as its own legal method. It has been the last jurisdiction to declare this fact.

79 The earliest text in our legal history is the Bible. Much of that text is explicit law, and its context says that it is the law of God. Biblical law claims to be the law of the Sovereign.

80 In our present dispensation, the Sovereign does not make laws, but assents to them. Royal assent certifies that the sovereign power will be used to enforce the law, and all subjects should therefore hear and obey or suffer the consequences.

81 The Sovereign, being a supreme power, can assent to no restriction of its power that would put it into danger. Law that weakens the Sovereign power is therefore bad law.

82 The law is determined by the parliament and the courts, particularly the High Court of Australia. As I read the words of the High Court, it sees itself as declaring the law of Australia. In the Mabo case Brennan J said :

In discharging its duty to declare the common law of Australia this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. The Privy Council itself held that the common law of this country might legitimately develop independently of English precedent. Increasingly since 1968, the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation. Although this court is free to depart from English precedent which was earlier followed as stating the common law of this country, it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own. The peace and order of Australian society is built into the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. (emphasis added)

83 One does not declare something that does not exist, one invents it. It seems therefore to be a presumption of the court that the law exists.

84 Science is engaged on an identical mission. Natural law is presumed to exist, and the task of science is to discover this law and publish its discoveries in unequivocal language that can be understood by people experienced in the relevant field.

85 I therefore presume that the bounds on God (and therefore the Sovereign) exist, and are there to be discovered. I believe that the fundamental bound is consistency. Divinity does not contradict itself. This bound is recognised both by science and by the courts.

86 When contradictions surface in the operation of laws, it is for the lawmakers to decide what to change. Their decisions are based both on observation of the facts (which include existing laws and precedents) and on reason.

87 The notion of consistency is highly developed in mathematics. It is understood in contrast to completeness and computability.

88 I follow Hilbert in my understanding of mathematics: it is a formal game played with marks on paper, according to rules which may freely invented by mathematicians. The only requirement of mathematics is that its games do not lead to inconsistency.

89 This is similar to the prerogative of the Sovereign: it may freely make laws that are consistent among themselves. Unlike mathematics, the Sovereign is bound by the further requirement that its laws be consistent with Divine and natural law.

90 Among the more important discoveries of mathematics are theorems defining uncertain games. It was once believed that it was always possible, in a consistent mathematical game, to decide whether any given play was legal or illegal. The greatest mathematical discoveries of this century have shown us that this is not the case. There are situations where no decision is possible.

91 The God of the Church of England is a remote being whose only communication with humanity is through the Bible and the Church. I wish to replace this idea of God with another: that the world of experience is the manifestation of divinity. This idea of God is closer to Aboriginal thought than to Christian thought. The Mabo case suggests that this substitution is possible. First it recognises the Aboriginal system of laws as equivalent to our own and preexisting in this country; and second, as quoted above, it distances Australian Law from English law and establishes that the law that governs Australia is Australian law. We are therefore free to move toward more Aboriginal notion of God and away from the Imperial Divinity.

92 Our most powerful route to knowledge is the scientific method, whose history can be traced to the beginnings of human literature. The scientific method is a procedure for generating a reliable picture of our environment. The foundations of modern scientific method were formalised by Karl Popper in The logic of scientific discovery (Hutchinson, London 1959-80).

93 Science proceeds by constructing formal models of the world. A model is good if it accurately simulates the phenomena it is intended to model. A good model is not necessarily true, since other models may give an equally accurate simulation.

94 Although we cannot prove a scientific model true, we can prove it false by showing that it fails to give the correct outputs for certain inputs within its range. The mathematics of probability shows us that increasingly frequent application of a model without failure justifies greater confidence in it.

95 Scientific models give us great power by exposing the simple harmonies that lie beneath complex phenomena. The simple rules of arithmetic, for instance, provide us with deep insight into our economic system.

96 Religion is a natural phenomenon. The science corresponding to religion is theology. Theology develops and tests models of god.

97 Mathematics is our richest and most general source of scientific models. Mathematics was once concerned principally with number, but developments over the last century or so have extended our mathematical vision to cover everything that can be expressed in symbols, that is everything that can be communicated.

98 It would be plesant to be able to present a mathematical theology and the theory of sovereignty that derives from it as a coherent monograph. Unfortunately, this line of argument is still not complete in my own mind

...

December 1993

[After much delay, this case eventually came to court and the Judge found that I had a conscientious belief that the use of marijuana was permissible. I was put on a good behaviour bond for eighteen months.]

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