New South Wales Consolidated Acts

DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 23

23 Offences with respect to prohibited plants

(1) A person who--

(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant,

(b) supplies, or knowingly takes part in the supply of, a prohibited plant, or

(c) has a prohibited plant in his or her possession,

is guilty of an offence.

(1A) A person who--

(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is--

(i) not less than the small quantity applicable to the prohibited plants, and

(ii) less than the commercial quantity applicable to those prohibited plants, and

(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose,

is guilty of an offence.

(1B) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the small quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly.

(1C) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly.

(2) A person who--

(a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants,

(b) supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or

(c) has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants,

is guilty of an offence.

(3) If, on the trial of a person for an offence under subsection (2) (other than in relation to the cultivation of prohibited plants by enhanced indoor means), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly.

(3A) If, on the trial of a person for an offence under subsection (2) in relation to the cultivation of prohibited plants by enhanced indoor means, the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of--

(a) an offence under subsection (1A), if the jury is satisfied that the person contravened subsection (1A), or

(b) an offence under subsection (1) (a), if the jury is not satisfied that the person contravened subsection (1A), but is satisfied that the person contravened subsection (1) (a),

and the person is liable to punishment accordingly.

(4) Nothing in this section renders unlawful any act relating to the cultivation, supply or possession of a prohibited plant by--

(a) a person--

(i) who informs the court before which the person is prosecuted that the person proposes to adduce evidence as referred to in subparagraph (ii), and

(ii) who adduces evidence which satisfies the court that, having regard to all the circumstances, including the person's conduct, in which the act constituting the offence was done or preparatory to the doing of the act, the person did not know or suspect and could not reasonably be expected to have known or suspected that the prohibited plant was a prohibited plant, or

(a1) a person acting under a poppy licence or poppy permit under the Poppy Industry Act 2016 , or

(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the cultivation, supply or possession of the prohibited plant is for the purpose of scientific research, instruction, analysis or study, or

(c) a person acting in accordance with a direction given by the Commissioner of Police under section 39Q.

(5) Where a person informs a court as referred to in subsection (4) (a) (i), evidence of any previous conviction of the person for any offence, being evidence which may intend to rebut the evidence referred to in subsection (4) (a) (ii), may, with the leave of the court, be adduced by the prosecutor.

(6) In this section and section 23A,
"cultivating a prohibited plant for a commercial purpose" includes cultivating the plant--

(a) with the intention of selling it or any of its products, or

(b) with the belief that another person intends to sell it or any of its products.