1. Dealing Offences

Question 1

What is the definition of a controlled drug?

Answer 1

any substance, preparation, mixture, or article specified or described in Schedule 1, Schedule 2, or Schedule 3 to this Act; and includes any controlled drug analogue.

Question 2

What is the definition of a controlled drug analogue?

Answer 2

any substance that has a structure substantially similar to that of any controlled drug.

Question 3

Define Class A, B and C drugs and examples

Answer 3

Class A controlled drugs – the controlled drugs specified or described in Schedule 1 of this Act (pose a very high risk of harm to individuals and society) e.g. cocaine, heroin, LSD, meth, psilocybin.

Class B controlled drugs – the controls drugs specified or described in Schedule 2 of this Act (pose a high risk of harm) e.g. amphetamine, cannabis oil and hash, GHB, MDMA, morphine, opium, pseudoephedrine.

Class C controlled drugs – the controlled drugs specified or described in Schedule 3 of this Act, and includes any controlled drug analogue (moderate risk of harm) e.g. cannabis plant or seed, BZP, controlled drug analogues.

Question 4

What are the elements of s6(1)(a) - imports/exports?

Answer 4

• Imports into or exports from New Zealand

* Any controlled drug

Question 5

What is the definition of importation?

Answer 5

means the arrival of goods in NZ in any manner, whether lawfully or unlawfully, from a point outside NZ.

Question 6

What is the case law regarding importing (definition)?

Answer 6

To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.
(Saxton v Police)

Question 7

What is the case law regarding the importing process?

Answer 7

The element of importing exists from the time the goods enter NZ until they reach their immediate destination i.e. when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee.
(R v Hancox)

Question 8

What is the definition of exportation?

Answer 8

when the exporting craft leaves the last Customs place at which that craft calls immediately before proceeding to a point outside NZ.

Question 9

What is the definition of NZ?

Answer 9

New Zealand – means the land and waters enclosed by the outer limits of the territorial sea of NZ. The outer limit of the territorial sea is 12 nautical miles from the land mass of NZ.

Question 10

What is meant by guilty knowledge?

Answer 10

For a person to be guilty of an offender they must have guilty knowledge. May involved proof of:

• knowledge of controlled drug
• knowledge of intended use
• knowledge of import/export
• knowledge of produce/manufacture
• knowledge of sale, etc
• knowledge of possession

Question 11

What is the case law regarding knowledge?

Answer 11

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 do.
(R v Strawbridge)

Question 12

What is meant by useable quantity?

Answer 12

the quantity of the drug involved must be measurable and useable.

Question 13

What is the case law regarding useable quantity?

Answer 13

The serious offence of… possessing a narcotic does not extend to some minute and useless residue of the substance.

Question 14

What are the elements of s6(1)(b) - produce/manufacture?

Answer 14

• Produce or manufacture

* Any controlled drug

Question 15

What is the definition of produce vs manufacture?

Answer 15

Produce – to produce means to bring something into being, or to bring something into existence from its raw materials or elements (involves changing the nature of the original substance e.g. separating cannabis resin from the plant).

Manufacturing – is the process of synthesis; combining components or processing raw materials to create a new substance. (involves creating a different substance from the original material e.g. meth).

Question 16

What is the case law for produce/manufacture?

Answer 16

The words “produce” or “manufacture” in s6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
(R v Rua)

Question 17

When is the offence of produce/manufacture complete?

Answer 17

the offence is complete once the prohibited structure is created, whether or not it is in a useable form.

Question 18

What are the elements of s6(1)(c) - supplies Class A/B?

Answer 18

• Supply or administer, or offers to supply or administer
• Any Class A or Class B controlled drug
• To any other person

Question 19

What is the definition of supply?

Answer 19

Supply – includes distribute, give or sell.

Question 20

What is the case law regarding supply?

Answer 20

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.
(R v Maginnis)

Question 21

What are the definitions of distribute, give, sell, or administer?

Answer 21

Distributing – relates to the supply of drugs to multiple people. Distribution is complete when the defendant has done all that is necessary to accomplish delivery of the drug to others.

Giving – involves handing over or in some other way transferring an item to another person. The act of giving is complete when the recipient accepts possession, or when the drug is placed under the control of a willing recipient. Giving can occur without an active transfer of drugs e.g. when a person passively permits another to help themselves from a cache of drugs.

Selling – a sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.

Administering – to direct and cause a drug to be taken into the system of another person.

Question 22

What is the case law regarding offering to supply/intimation?

Answer 22

An offer is an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute. The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.
(R v During)

Question 23

What is the case law regarding ways that drugs can be offered?

Answer 23

The defendant is guilty in the following instances:
1. offers to supply a drug that he has on hand
2. offers to supply a drug that will be procured at some future date
3. offers to supply a drug that he mistakenly believes he can supply
4. offers to supply a drug deceitfully, knowing that he will not supply that drug.
(R v Brown)

Question 24

What is meant by otherwise deals in?

Answer 24

“Otherwise” deals – this is aimed at dealing in drugs by some other method than by distributing, giving or selling it, or administering it e.g. barter or exchange.

Question 25

What are the elements of 6(1)(d) - supply Class C to a person under 18?

Answer 25

• Supply or administer, or offer to supply or administer
• Any Class C controlled drug
• To a person under 18 years of age

Question 26

What is the case law regarding proof of age?

Answer 26

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
(R v Forrest and Forrest)

Question 27

What are the elements of s6(1)(e) - sell/offer to sell Class C to person over 18

Answer 27

• Sell or offer to sell
• Any Class C controlled drug
• To a person of or over 18 years of age

Question 28

What are the elements of s6(1)(f) - possession of controlled drugs for supply?

Answer 28

• Have any controlled drug
• In his possession
• For supply, administer, sell, offer

Question 29

What is the case law regarding possession?

Answer 29

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.
(R v Cox)

Question 30

What are the definitions of actual and potential possession?

Answer 30

Actual possession means that the person actually has the drug in their custody or control.

Potential possession means the person has the potential to have the thing in question in their control. The things which a person has in his possession include anything subject to his control which is in the custody of another.

Question 31

What does s6(6) outtline regarding presumptive quantity?

Answer 31

It creates a presumption of law that if a person has possession of a specified amount of any drug, that person will be presumed to have that drug for one of the purposes set out in 6(1)(c), (d), or (e), unless they can prove otherwise.
• Heroine – 0.5 grams
• Cocaine – 0.5 grams
• LSD – 2.5 mg or 25 flakes, tablets, etc
• Meth – 5 grams
• MDMA (ecstasy) – 5 grams or 100 flakes, tablets, etc
• Cannabis resin and extract (oil) – 5 grams
• Cannabis plant – 28 grams or 100 cigarettes
• Where a controlled drug is not specified the presumptive quantity is 56 grams

Question 32

What are the elements of s6(2A) - conspiring to deal drugs?

Answer 32

• Every person
• Conspires with any other person
• To commit an offence against subsection (1)

Question 33

What is the definition of conspiracy?

Answer 33

an agreed intention which is common to the mind of the conspirators and a common design to commit the offence

Question 34

What is the exception for import/export controlled drugs?

Answer 34

other than a controlled drug specified or described in Part 6 of Schedule 3

Question 35

What does s6(5) state re s6(1)(e)?

Answer 35

until the contrary is proved, he shall be deemed to have sold that controlled drug to that other person

Question 36

What is some circumstantial evidence to prove intent?

Answer 36

• the offenders action and words, before during and after
• the surrounding circumstances
• the nature of the act itself
• admissions, packaging, scales, cash, tick lists, statutory presumption

Question 37

What are the imprisonment terms for s6(1) vs (2A)?

Answer 37

Class A = life vs 14
Class B = 14 vs 10
Class C = 8 vs 7

Question 38

What does s29 state regarding proving usable quantity?

Answer 38

it is not necessary for the prosecution to prove the amount of the drug is of a usable qty unless the defendant puts this matter in issue.

Question 39

What is the actus and mens rea of offering to supply?

Answer 39

Actus reus - the communicating of an offer to supply a controlled drug.
Mens rea - an intention that the other person believes the offer to be genuine.

Question 40

What does s2(2) state re potential custody or control?

Answer 40

the things which a person has in his possession include anything subject to his control which is in the custody of another.

Question 41

What proof is required for possession?

Answer 41

That the defendant had:

• knowledge the drug exists
• knowledge its a controlled drug
• a degree of control over it
• an intention to posses it