By Paul Gregoire and Ugur Nedim
The medicinal benefits of cannabis have become widely accepted in Australia. Indeed, the Turnbull government passed legislation in February 2016, which set up a licensing scheme for “the cultivation and production of cannabis and cannabis resin for medicinal and scientific purposes.”
However, the establishment of legalised medicinal cannabis has been a slow process, and many of the estimated 10,000 patients that use cannabis medicinally in this country are forced to source their medicines illegally.
Dr Andrew Katelaris is one of Australia’s leading medicinal cannabis advocates. And being such a forthright proponent of cannabis medicines, the doctor appeared on national television last year and revealed the clandestine medicinal cannabis laboratory he had in his North Shore home.
Following the airing of the program, NSW police raided the doctor’s home on 30 May last year and he was charged with a number of offences. As his wife, Maria, told Sydney Criminal Lawyer’s last December, “Andrew has managed to criminalise himself,” whilst trying to decriminalise the plant.
The charges laid
Amongst the seven charges that resulted from the raid, Dr Katelaris was charged with one count of the supply of an indictable amount of cannabis leaf contrary to section 25 of the Drug Misuse and Trafficking Act 1985 (DMT Act).
The maximum penalty for this offence is 10 years imprisonment and/or a fine of $22,000.
The doctor was also charged with one count of the supply of a large commercial quantity of cannabis oil again contrary to section 25 of the DMT Act. The maximum penalty for this offence is life imprisonment and/or a fine of $550,000.
In relation to the same cannabis oil, Dr Katelaris was charged with one count of the manufacture of a large commercial quantity of a prohibited drug contrary to section 24 of the DMT Act. This offence can lead to life imprisonment and/or a fine of $550,000.
And Dr Katelaris was further charged with one count of dealing with the suspected proceeds of crime contrary to section 193C of the Crimes Act 1900. As this was regarding around $10,000 found in the doctor’s premises, the offence carries a maximum penalty of up to 3 years behind bars.
Dr Katelaris is due to stand trial over these charges in the Sydney District Court on 5 November this year.
On 24 January this year, NSW District Court Judge Helen Syme granted Dr Katelaris conditional bail, after he’d been remanded in Parklea prison following an appearance in the court on 5 December last year, which resulted in his bail being revoked.
However, on 13 April, the doctor was arrested after being pulled over by police on the Central Coast. He was charged with a number of offences, including one count of supplying an indictable amount of cannabis oil contrary to section 25 of the DMT Act.
Dr Katelaris was charged with supply even though there was no evidence that he was engaged in supplying the oil to anyone.
Section 29 of the DMT Act stipulates that if a person is found with more than a traffickable amount of a prohibited drug, they can be found guilty of supply, even if there’s no evidence they were intending to provide the substance to another person. This is known as deemed supply.
The doctor appeared in the Newcastle Local Court in relation to his further charges on 23 August this year, at which time the case was adjourned.
Applying for bail
In accordance with subsection 16B(1)(h)(i) of the Bail Act 2013, it was now up to Dr Katelaris to show cause as to why he shouldn’t be kept in detention prior to appearing in court in relation to the offences that were committed whilst he was out on bail.
Dr Katelaris made a bail application to the Supreme Court of NSW on 14 June this year. It was initially refused six days later. But, a re-hearing of the matter took place on 30 July before Supreme Court Justices Margaret Beazley, Robert Hulme and Peter Hamill.
The case against
The NSW Director of Public Prosecutions opposed bail. He argued that Dr Katelaris’ attitude, his criminal record and his recent behaviour revealed that he represented “an unacceptable risk of committing serious offences and endangering individuals and the community” if he was released.
However, the three justice panel pointed out that none the doctor’s prior offences – which date back to 1992 – have resulted in anything more than small fines and show a longstanding interest in medicinal cannabis and a “cantankerous attitude.”
The defence of necessity
Dr Katelaris argued that he had a defence of necessity. This sort of defence posits that there are situations that warrant such urgency that a person must be allowed to respond to them by breaking the law.
In the doctor’s case, the argument is that it was necessary for him to break the law, so he could provide patients with the therapeutic benefits of medicinal cannabis in order to relieve their suffering and improve their quality of life.
A medicinal cannabis crusader
The Supreme Court Justices granted Dr Katelaris bail at the July hearing and they published their reasons on 3 September. Their honours found that a combination of three circumstances lead to their decision to grant bail.
The first reason was that the doctor doesn’t present as a typical criminal or drug dealer. But rather, the court found that Dr Katelaris is a legitimate “crusader for the cause of legalisation of cannabis for medical use,” who’s actions weren’t carried out in the pursuit of financial gain.
The fact that it appears likely that the doctor will be representing himself in court is another reason the justices saw fit to grant bail, as whilst he remained in custody he was facing great difficulty in accessing legal resources and consulting medical experts.
And the last reason the court granted bail boiled down to “the relatively benign nature of the breach of the bail.” Whilst the supply charge was serious, the justices outlined that there was no real evidence that the doctor was actually engaged in the activity of supply.
The three justice panel granted bail to Dr Katelaris on the conditions that he doesn’t communicate with others in relation to offering medicinal cannabis advice or treatment, that he doesn’t have anything to do cannabis or cannabis products in anyway, and that he is of good behaviour.
Their Honours conceded that there were bail concerns, but the circumstances surrounding Dr Katelaris’ case meant that they didn’t believe he posed an unacceptable risk, and for this reason bail was granted.