A 45-year-old Colombian man who tried to treat his cancer with dried cactus plant as used by indigenous tribes of the Amazon was prosecuted for having the drug for sale or supply at his home in Cork.

Defence senior counsel Elizabeth O’Connell said it was an unusual drugs case in that the defendant had the material sent to his home believing it was perfectly legal and intending to use it for entirely medicinal purposes. [..]

In all the circumstances of the unusual case, the judge agreed to give the accused the benefit of a dismissal under the Probation of Offenders Act. Ms O’Connell SC said: “He has no convictions — before or since.” [..]

A lot of the facts of the case were not disputed between the parties. The key issue between them was whether or not the substance was a proscribed drug. The verdict was successfully appealed and listed for retrial but the defendant indicated a guilty plea at that stage.

He later appealed the conviction on the grounds that Judge McCourt had erred by “refusing to determine as a matter of law whether the substance the defendant was in possession of was a controlled drug as defined by the Misuse of Drugs act”.

It was further claimed the judge should not have allowed the jury “to decide on a question of law as to whether the substance the appellant was in possession of” was prohibited under the legislation.

In a judgement delivered today by Ms Justice Isobel Kennedy, the Court of Appeal quashed the conviction.

The trial judge, according to the ruling, should not have permitted the jury to “decide a question of law whether the substance in the appellant’s possession was a controlled substance”.
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However, Ms Justice Kennedy stated it was the court’s belief that Judge McCourt failed to inform the jury that “in order to determine whether this particular substance was mescaline, they had to decide if the powdered substance found had been extracted from its naturally occurring form and rendered useable”. [emphasis added]

In the judgment, it was noted Judge McCourt told the jury that the powder, according to the defence, “was not a controlled drug under the law”. Ms Justice Kennedy observed:

Therefore, it was necessary for the judge to direct the jury that mescaline is a controlled substance (which he did) and the jury had to determine whether the substance in the appellant’s possession was in fact mescaline.

“That is, whether the substance had been rendered consumable or ingestible by some alteration from its natural state.

“However, when we look at the charge… the judge did leave to the jury, albeit in broad terms the issue as to whether the substance was a controlled drug,” she added.