Crown’s defence in doctors’ JR on shaky ground

| 06/11/2020
Nigel Gayle

(CNS) A Grand Court judge raised concerns on Thursday about how the crown is presenting its defence to a judicial review brought by Doctors Express over the seizure of their legal medical cannabis last year. On a number of occasions Justice Robin McMillan pointed out to Nigel Gayle, the attorney from the Attorney General’s Chambers, that he was on shaky ground with the approach being taken to the challenges surrounding the raid by customs at the licensed surgery last year and the warrant used to support it.

Gayle has effectively created a very confusing defence by blaming the justice of the peace for anything that could be considered wrong with the warrant used in the raid, which the evidence is making increasingly clear was unlawful.

Customs officers applied for a warrant from a JP and not a court, despite evidence that it was not necessary for the law enforcement agency to seek a warrant, that no crime had been committed and that the officers misled that JP about why they needed the warrant.

As the crown’s attorney has sought to defend the customs and police officers who conducted the raid on the licensed medical clinic, he has pointed directly at the justice of the peace as the only person liable for the defective warrant. There are a catalogue of issues surrounding the warrant, from planning to execution, and even the alleged crime written on it, which was the unlawful possession of a controlled drug.

Setting aside the fact that the clinic was full of controlled drugs, since the licensed medical facility clinic has a pharmacy, there are many other problems with that alleged crime. There was no indication on the warrant what drug was being referred to and how its possession was illegal. The crown now claims that the reason for the raid was a stop notice issued by the chief medical officer in relation to the dispensation of legal cannabis oil via vaping machines. However, that was not set out on the warrant.

Gayle appears to have moved the goal posts on a number of occasions. He has filed reams of additional material, including speaking notes and skeleton arguments, in contrast to previous defences regarding the position of the attorney general. As a result he was probed intently by Justice McMillan, who struggled to establish from Gayle exactly what that position was.

But as the government lawyer stamped his feet in frustration and waived his papers at Justice McMillan, he argued that the attorney general’s position had not changed from the original submissions.

The judge implied, however, that if Gayle had been relying on what he had said while on his feet so far in this trial and not the written submissions, the crown’s case would have already collapsed. Justice McMillan also raised the question of whether or not the attorney general was actually aware of the arguments Gayle was now making: that the entire issue was the fault of the JP. However, the attorney claimed in court, “I am not throwing anybody under the bus.”

In his oral arguments Gayle has repeatedly claimed that the customs and police officers are not liable in any way for the rights or wrongs of the raid, contrary to the evidence, and that the chief medical officer, who is also party to the proceedings in relation to his role in issuing the stop notice, also did nothing wrong by issuing it.

The judge raised his concerns not just about the defence the crown was presenting but the attitude of counsel to what was a grave issue. He said the case was “heading in an alarming direction”, and the crown was simply not taking a very important public law issue seriously and making light of what had actually happened to the applicants.

In the first instance Doctors Express is seeking a declaration from the court that the entire episode was unlawful, from the warrant and the cease and desist notice to the raid and the seizure of their goods. If they are successful in that action they will be seeking damages.

Along with their legal costs and the replacement costs relating to the now damaged cannabis oil stock that was taken during the raid, the medical company will also be seek reputational damages, given the circumstances surrounding the very public raid on their surgery.

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Category: Courts, Crime

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