8. Drug Dealing Flashcards
Define “Controlled Drug” in relation to the Misuse of Drugs Act 1975.
Any SUBSTANCE, PREPARATION, MIXTURE, or ARTICLE specified in Schedule 1, 2 or 3.
Also includes and temporary class drug, or controlled drug analogue.
Acronym: SPAM CDA
Define “Controlled Drug Analogue” in relation to the Misuse of Drugs Act 1975.
Any substance (other than those specified under s2(1)) with a structure substantially similar to a controlled drug.
All controlled drug analogues (CDA) are treated as Class C.
Define “Imports” in relation to the Misuse of Drugs Act 1975.
Arrival of goods into NZ in any manner, lawfully or not, from a point outside NZ.
Define “Export” in relation to the Misuse of Drugs Act 1975.
A shipment of goods in any craft for a transport to a point outside NZ.
Define “produce” in relation to the Misuse of Drugs Act 1975.
Bring something into existence from it’s raw materials/elements.
Define “manufacture” in relation to the Misuse of Drugs Act 1975.
A process of synthesis. Combining components/processing raw materials to create a new substance.
Define “Supply” in relation to the Misuse of Drugs Act 1975.
Provide something that is needed/desired by the other party. Includes distributing, giving, selling.
Define “distribution” in relation to the Misuse of Drugs Act 1975.
Supply of drugs to multiple people. Can include joint owners.
Define “giving” in relation to the Misuse of Drugs Act 1975.
To hand the substance over in order to enable the other person to use the drug for their own purposes.
Define “sell” in relation to the Misuse of Drugs Act 1975.
Typical concept. An exchange of goods in return for valuable consideration.
Define “administers” in relation to the Misuse of Drugs Act 1975.
To direct or cause a drug to be taken into the system of another.
Define “offering” in relation to the Misuse of Drugs Act 1975.
Cite relevant case law.
Consists of two elements:
1) Communicating an offer to supply/administer a controlled drug (actus reus).
2) an intention that the other party believes the offer to be genuine.
R v During - an offer is an intimation by the person charged that he is ready to supply a controlled drug upon request.
R v Brown - offer is made with the intention that the other party believe it to be genuine.
Define “otherwise deals” in relation to the Misuse of Drugs Act 1975.
Any other deal not already covered in the definition. Typically relates to bartering/exchange.
Define “person” in relation to the Misuse of Drugs Act 1975.
Gender neutral. Proved by judicial notice or circumstantial evidence.
List the common Class A drugs defined in the Misuse of Drugs Act 1975.
- Cocaine
- Heroin
- Lysergic Acid (LSD)
- Methamphetamine
- Psilocybine (Magic Mushrooms)
- AMB-FUBINACA
List the common Class B drugs defined in the Misuse of Drugs Act 1975.
- Amphetamine
- Cannabis preparations (resin [AKA hashish] and oil)
- MDMA (ecstasy)
- Morphine
- Opium
- Fentanyl
- GHB (fantasy)
- Pseudoephedrine
List the common Class C drugs defined in the Misuse of Drugs Act 1975.
- Cannabis plant
- Cannabis fruit
- Cannabis seed
- BZP
- Codiene
- Control Drug Analogue
What are the common presumptive supply amounts set out in Schedule 5 of the Misuse of Drugs Act 1975?
[s6(6) Misuse of Drugs Act 1975]
Heroin - 0.5g
Cocaine - 0.5g
LSD - 2.5mg/ml (or 25 flakes/tablets)
Meth - 5g
MDMA - 5g (or 100 flakes/tablets)
Cannabis resin - 5g
Cannabis oil - 5g
Pseudoephedrine - 10g
Cannabis plant - 28g (or 100+ cigarettes)
When a scheduled drug is not listed in Schedule 5, the presumptive amount is 56g.
If a defendant is discovered with a controlled drug, in excess of the presumptive amounts listed in Schedule 5 of MODA75, what is the impact on court proceedings?
Reverse onus on the defendant to prove, on balance of probabilities, that the drugs were not meant for supply.
What are the 6 offences under s6(1) of the Misuse of Drugs Act 1975?
1(a) - Import/export controlled drug
1(b) - Produce/Manufacture controlled drug
1(c) - Supply/administer/offer/otherwise deal in Class A or B drug
1(d) - Supply class C drug to under 18YO
1(e) - Sell/offer class C drug to over 18YO
1(f) - Possession of control drug for Supply (for either 1c, d or e)
What is the penalty for dealing controlled substances specified in s6 of the Misuse of Drugs Act 1975?
Depends on the class of drug.
- Class A - life imprisonment
- Class B - 14 years imprisonment
- Class C - 8 years imprisonment
What does s6(1)(a) of the Misuse of Drugs Act 1975 relate to?
What are the elements to this offence?
Importing/Exporting Controlled Drugs.
- No person shall
- Import into OR Export from NZ
- Any controlled drug
What must the Crown prove in regards to guilty knowledge for importing a controlled substance?
- Knew about the importation (or was wilfully blind), and
- knew the imported substance was a controlled drug (or was reckless), and
- they intended to cause the importation.
What is “guilty knowledge” in relation to the Misuse of Drugs Act 1975, and what are its effects on proceedings?
Cite relevant case law.
Guilty knowledge (I.e. knowing that the substance was a controlled drug) is required to convict someone of a drug offence.
Crown does not need to prove the guilty knowledge. Guilty knowledge will be presumed unless there is evidence to the contrary.
Defendant must raise reasonable doubt regarding their knowledge/state of mind.
R v Strawbridge
What does s6(1)(b) of the Misuse of Drugs Act 1975 relate to?
What are the elements to this offence?
Production/Manufacture of a controlled drug.
- No person shall
- Produce OR Manufacture
- Any controlled drug.
What does s6(1)(c) of the Misuse of Drugs Act 1975 relate to?
What are the elements to this offence?
Supplying any Class A or B controlled drug.
- No person shall
- Supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
- Any Class A controlled drug OR Class B controlled drug
- To any person
What does s6(1)(d) of the Misuse of Drugs Act 1975 relate to?
What are the elements to this offence?
Supplying Class C controlled drug to person under 18 years
- No person shall
- Supply OR administer OR offer to supply OR offer to administer
- Any Class C controlled drug
- To a person under 18 years of age
What does s6(1)(e) of the Misuse of Drugs Act 1975 relate to?
What are the elements to this offence?
Sell/offer to sell any Class C controlled drug to person 18+
- No person shall
- Sell OR offer to sell
- Any Class C controlled drug
- To a person of or over 18 years of age
What does s6(1)(f) of the Misuse of Drugs Act 1975 relate to?
What are the elements to this offence?
Possession of controlled drug for Supply
- No person shall
- Have in his possession
- Any controlled drug
- For any of the purposes set out in paragraphs (c), (d), or (e) of section 6(1) of the Misuse of Drugs Act 1975.
What is required to prove “possession” in regards to the Misuse of Drugs Act 1975?
Cite relevant case law.
- KNOWLEDGE that the drug exists, and
- KNOWLEDGE that it is a controlled drug, and
- Some degree of CONTROL over it, and
- an INTENTION to possess it
R v Cox - Possession - 2 elements, Physical (custody/control), and Mental (Knowledge/intent).
What does s6(2A) of the Misuse of Drugs Act 1975 relate to?
What are the penalties associated with these offences?
Conspiring to deal with controlled drugs.
Conspire - agreement between 2 or more people to commit an offence.
Dealing - one of the offences listed in s6(1) of the Misuse of Drugs Act 1975.
Penalty depends on Class of controlled drug:
- Class A - 14 years
- Class B - 10 years
- Class C - 7 years.
Case law:
Saxton v Police
Regarding Importing
To bring in from abroad, or cause to be brought in from a foreign country.
Case law
R v Hancox
Regarding Importation
The process of importation exists from the time the goods enter NZ, until they reach their immediate destination, or become available to the addressee.
Case law
R v Strawbridge
Regarding Guilty Knowledge
The Crown does not need to establish guilty knowledge on behalf of the accused.
Knowledge is presumed unless evidence to the contrary is present.
The accused must prove they acted innocently and had no knowledge of the controlled drug.
Case law
Police v Emerali
Regarding Possession and Usable Quantities
Possession does not extend to some useless and minute residue of the substance.
Regarding court proceedings in relation to an offence listed in the Misuse of Drugs Act 1975.
Does the prosecution need to prove the controlled drug had enough to be a “usable quantity?”
No, unless it is raised as a matter in issue by the defence.
Then prosecution must prove beyond reasonable doubt that the controlled drug was a usable quantity.
Case law
R v Rua (Produce)
“Produce” or “manufacture” broadly cover the creation of controlled drugs by some form of process which changes the original substance into a particular controlled drug.
Case law
R v Rua (created)
Regarding the production/manufacturing of a controlled substance - s6(1)(b)
The offence is completed when the prohibited substance is created, whether or not it is in a usable form.
Case law
R v During
Regarding “offering” in MODA75 offences
An offer is an intimation by the seller that they are ready to supply the drug upon request.
Case law
R v Brown
Regarding “offering” in MODA75 offences
An offer is made with the intention that the other party believe it to be genuine.
Note: not necessary to prove that they had the ability to actually supply the drugs.
Case law
R v Forrest and Forrest
Regarding proving someone’s age in court
The best evidence possible in the circumstances should be adduced by prosecution to prove age.
Case law
R v Cox
Regarding “possession”
Two elements to prove possession:
1) Physical element (custody and control)
2) Mental element (intention and knowledge)
In regards to controlled drugs, R v Cox would look like:
- KNOWLEDGE the drug exists
- KNOWLEDGE it is a controlled drug
- Some degree of CONTROL over it
- An INTENTION to possess it.
Acronym: KKCI
Case law:
Cameron v R
Regarding recklessness
Recklessness is established if:
a) the defendant recognised there was a real possibility that:
i) his/her actions would bring about the proscribed result, and/or
ii) that the proscribed circumstances existed; and
b) having regard to that risk those actions were unreasonable.
In R v Brown, the Court of Appeal held that offering to supply a controlled drug can arise in a variety of ways.
What four circumstances were described?
Where the defendant:
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 he will not supply that drug.
What was held by the High Court regarding a “passive custodian” and their intent to supply a controlled drug?
Cite relevant case law.
A “passive custodian” who relinquished custody of a drug to meet the needs of another, has the necessary intent for Supply.
R v Wildbore - had LSD in a shed. Left the key in a rearranged spot so that a co-owner could access whenever she wanted. Held liable for Supply.
Case law
R v Wildbore
“Passive custodian” who relinquished custody of a drug to meet the needs of another, has the necessary intent for Supply.
Held LSD in a shed. Left the key in a rearranged spot so that a co-owner could access whenever she wanted. Held liable for Supply.
What does s29 of the Misuse of Drugs Act 1975 relate to?
Mistake as to the nature of a controlled drug.
When guilty knowledge is an essential element, it is not a defence that the defendant did not know the substance was a particular controlled drug.
I.e. not a defence to a charge of supplying heroin, if the defendant thought he had cocaine.
When does criminal liability arise regarding importation of a controlled drug?
As soon as the drugs cross the NZ border, and continues until they have reached their final destination.
Case law:
R v Martin
Wilful blindness
Suspicious about what they are carrying, but deliberately refrained from making further enquiries as she wanted to remain ignorant.
Importation of $4million in cocaine in her suitcase from Nigeria.
Define “New Zealand”
The land and waters enclosed by the outer limits of the territorial sea of NZ.
When a person has been charged with drug dealing (supply) charge, does the prosecution need to identify who the controlled drugs were handed to?
No. The prosecution must prove that the drugs were supplied to another person, although it’s not necessary to identify that person.
Discuss the physical element described in R v Cox (possession).
Physical element comprises of custody and control, which can be:
a) Actual custody or control - the person has that drug in their custody (I.e. in their pocket). Or
b) Potential custody or control - anything subject to his control which is in the custody of another (I.e. storing their own drugs at a friend’s house).
How do you prove intent in drug cases? Provide specific examples.
R v Collister - actions/words before, during/after, surrounding circumstances, mature of the act.
- Admissions
- Circumstantial evidence (packaging, scales, cash, tick lists)
- Statutory presumption under s6(6) MODA.
Case law
R v Maginnis
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.
Case law
R v Donald
Supply includes the distribution of jointly owned property between its co-owners.
What nuance is specific to s6(1)(e) of the Misuse of Drugs Act 1975?
Regarding Selling Class C Drug to Persons Over 18
Creates the presumption that in the absence of evidence to the contrary, a Class C drug supplied to a person over 18 has been sold to that person.
It is only an offence if the Class C drug has been sold or offered to have been sold.
What must the Crown prove with regards to “guilty knowledge” for drug dealing offences?
The defendant:
- KNEW about the offence
- KNEW the substance was a controlled drug
- Intended to commit the offence.
KKI
What does the acronym “KKI” relate to in drug dealing?
What is it used to prove?
Guilty knowledge.
- KNOWS about the offence,
- KNOWS the drug is a controlled substance.
- INTENDS to commit the offence.
Case law:
R v Knox
Regarding supply
A person who is in unlawful possession of a drug for purposes of safekeeping, has intent to supply that drug if they intend to return it to the owner.
