1. Dealing Offences Flashcards
Imports
Customs and excise act 1996
S2 interpretation
Importation-
(A) in relation to any good, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawful from a point outside NZ
Saxton caselaw (imports)
To import includes to introduce from abroad or to cause to be brought in from a foreign country
The importing process
Hancox caselaw
Hancox
The bringing of good into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters nz. The element of importing exists from the time the goods enter nz until they reach their immediate destination. ie when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee
Mens rea of importing - what must crown prove
The crown must prove not only that the defendants conduct in some way contributed to the actual importation of the drug, it must also prove the defendants guilty knowledge.
This will involve proof that the defendant
- knee aboht the importation and
- knew the imported substance was a controlled drug and
- intended to cause importation
Exports
Section 53 customs and excise act 1996
For the purposes of this act, the time of exportation is the time when the exporting craft leaves the last customs places at which that craft calls immediately before proceeding to a point outside NZ
Any controlled drug definition
Section 2 MODA
Controlled drug means any substance, preparation, mixture or article specified or described in schedule 1, 2 or 3 of this act and includes any controlled drug analogue
Class a controlled drug definition
Section 2 moda
Class a controlled drugs means the controlled drugs specified or described in schedule 1 to this act
Cocaine Heroin LSD methamphetamine Magic mushrooms
Class b controlled drugs definitions
Section 2 moda
Class b controlled drugs means the controlled drugs specified or described in schedule 2 to this act
Amphetamine Cannabis oil GHB MDMA Morphine Opium Pseudoephedrine
Class c controlled drugs definition
Section 2 moda
Class c controlled drugs means the controlled drugs specified or described in schedule 3 to this act and includes any controlled drug analogues
Cannabis plant
Cannabis seedBZP
Controlled drug analogues
Guilty knowledge caselaw
Strawbridge
It is not necessary for the crown to establish knowledge on the part of the accused.
In the absence of evidence to the contrary knowledge on her part will be presumed.
But if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent,
Then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
Useable quantity caselaw
Emerali
The serious offence of possessing a narcotic does not extend to some minute or useless residue of the substance
Rua caselaw
The words produce or manufacture in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug
Produce definition
To produce means to bring something into being or to bring something into existence from its raw materials or elements
S2 moda
Produce includes compound, and production has a corresponding meaning
Manufacturing definition
Process of synthesis, combing components or processing raw material to create a new substance
Supply definition
S2 moda
Supply includes distribute, give and sell
Maginnis caselaw
Supply involves more than the mere transfer of physical control, it includes enabling the recipient to apply the thing to purposes for which he desires
Administers caselaw
Blacks law dictionary
In the context of drug dealing, the appropriate meaning of administer is to direct and cause a drug to be taken into the system of another person
Offering to supply or administer what must prosecution prove
The communicating of an offer to supply or administer a controlled drug (actus reus)
An intention that the other person believes the offer to be genuine (the mens rea)
During caselaw (offer to supply or administer)
An offer is an intimation by the person charged to another that he is ready in request to supply to that other drugs of a kind prohibited by the statute
Caselaw Brown (offer to supply or administer)
The defendant is guilty in the following circumstances:
- Offers to supply a drug that he has on hand
- Offers to supply a drug that will be procured at some future date
- Offers to supply a drug that he mistakenly believes he can supply
- Offers to supply a drug deceitfully knowing that he will not supply that drug
To any person definition
The offence is gender neutral, and the fact that the person supplied is a person is generally accepted by judicial notice or proved by circumstancial evidence
Forrest and Forrest caselaw
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
Possession
Physical and mental elements in r v Cox
Physical is the actual physical custody or control over the drugs. Eg the drug is found in their pocket or in a vehicle that the person has the keys for
Mental
Requires combination of knowledge and intention
The defendant must have intended to exercise possession
Knowledge and intent
Know they have the substance
Know the substances nature and quality
Intend to use the substance in a way that allows you to charge them with possession
Attempted possession
It is an attempt to gain possession of a drug, a charge which covers someone obtaining something innocuous in the mistaken belief that is is a drug
R v jay caselaw - hedge clipping
Possession in drug cases - what crown must prove
Knowledge that the drug exists
Knowledge that it is a controlled drug
Some degree of control over it
An intention to possess it
Proving intent in drug cases
Admissions
Circumstantial evidence
The statutory presumption under section 6(6)
Statutory presumption
S6(6) moda
A person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c) (d) or (e) if he or she is in possession of the controlled drug in and amount, level or quantity at or over which the controlled drug is presumed to be for supply
Drug presumptive amounts are:
Heroin - 0.5 grams Cocaine - 0.5 LSD - 2.5 or 25 flakes or tablets Meth - 5 grams MDMA - 5 grams or 100 flakes or tablets Cannabis resin or oil - 5 grams Cannabis plant - 28 grams or 100 or more cigs
Any other - 56 grams
For charges under 12A(1) what must the crown prove - supplies equipment/precursors
- that the defendant has supplied, produced or manufactured equipment, material or precursors
- that those items are capable of being used in the production or manufacture of controlled drugs or cultivation of prohibited plants
- that the defendant knows those items are to be used for such an offence by another person
Define - equipment
Not defined by statute but will include the implements, apparatus and other hardware used in the manufacturing producing or cultivating process
Maybe include glassware, condensers, heating mantles, pots, lights, timers, water pumps etc used in cultivating cannabis
For charges under 12A(2) what must the crown prove - possession of equipment
- that the defendant has equipment, material or precursors in his possession
- that those items are capable of being used in the production or manufacture of controlled drugs or cultivation
- that the defendant has the intention that those items are to be used for such an offence either by himself or another person
Potential possession s2(2)
2(2) of moda states that “for the purposes of this act the things which a person has in his possession include anything subject to his control which is in the custody of another”. An example of this is if a person is storing their drugs at a friends house. A defendant can exercise control of property through an agent, however exercise of control must be established.
How may a Defendant rebut a charge of “Possession for Supply 6(1)(f)” if the charge is based on S6(6) - Amount presumed to be for supply?
The charge may be rebutted by the Defendant if the person is able to prove, on the balance of probabilities, that they did not intend to commit a “dealing” offence, despite the amount. E.g. the Defendant had a large addiction problem and required a large amount for personal use
Section 6(2A) covers “Conspiracy to deal…” what must Police prove if the offence was to be committed in another country?
Police must prove that the Defendant had done something to complete the conspiracy in New Zealand
What crown must prove for import/export
Proof the defendant
- knew about the importation
- knew the imported substance was a controlled drug
- intended to cause the importation
