CIB 011 - Drug Offences

Question 1

Define ‘Controlled Drug’.

Answer 1

s2 Misuse of Drugs Act 1975
Controlled drug means any substance, preparation, mixture, or article specified or described in Schedule 1, Schedule 2, or Schedule 3 to the Misuse of Drugs Act 1975; and includes any temporary class drug and any controlled drug analogue.

Question 2

What is a Class A controlled drug?

Answer 2

s2 Misuse of Drugs Act 1975
Class A controlled drug means the controlled drugs specified or described in Schedule 1 to the Misuse of Drugs Act 1975.

Some of the well known Class A controlled drugs include:
• Cocaine
• Heroin
• Lysergide (LSD)
• Methamphetamine
• Psllocybine (found in magic mushrooms)

Question 3

What is a Class B controlled drug?

Answer 3

s2 Misuse of Drugs Act 1975
Class B controlled drug means the controlled drugs specified or described in Schedule 2 to the Misuse of Drugs Act 1975.

Class B controlled drugs are those that pose a high risk of harm and include:
• Amphetamine
• Cannabis preparations (such as cannabis oil and hashish)
• GHB (Fantasy)
• MDMA (Ecstasy)
• Morphine
• Opium
• Pseudoephadrine
• Ephadrine

Question 4

What is a Class C controlled drug?

Answer 4

s2 Misuse of Drugs Act 1975
Class C controlled drugs means the controlled drug specified or described in Schedule 3 to the Misuse of Drugs Act 1975; and includes any controlled drug analogue.

Class C controlled drugs pose a moderate risk of harm and include:
• Cannabis plant
• Cannabis seeds
• Benzylpiperazine (BZP)
• Controlled drug analogues

Question 5

What was held in Saxton v Police in relation to importation?

Answer 5

To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.

Question 6

Define ‘control’.

Answer 6

‘Control’ involves the physical ability to:
• determine how the drug is dealt with; or
• arrange or invite its presence; or
• act in any way as its owner.

‘Control’ also involves a mental attitude that includes:
• knowing that the drug is present
• intending to act as its owner
• wanting to act as its owner.

Question 7

What was held in Police v Emirali in relation to useable quantity?

Answer 7

“ … the serious offence of … possessing narcotics does not extend to some minute and useless residue of the substance”.

Question 8

What was held in R v Rua in relation to ‘Producing and manufacturing’?

Answer 8

R v Rua
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.

Question 9

Define ‘produce’ and support with legislation.

Answer 9

To “produce” means to bring something into being, or to bring something into existence from its raw materials or elements.

s2 Misuse of Drugs Act 1975
Produce includes compound; and production has a corresponding meaning.

To “compound” means to create a whole by mixing or combing two or more elements or parts.

Question 10

What is manufacturing?

Answer 10

Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.

Common examples include manufacturing methamphetamine from pseudoephedrine, or manufacturing heroin from morphine.

Question 11

When is the offence of ‘Produces or manufactures a controlled drug’ complete?

Answer 11

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

For example, in R v Rua, methamphetamine is suspension in a two-layered liquid, although not capable of being used in that state, was held to have been manufactured.

Question 12

Define “supply” and support with legislation.

Answer 12

To “supply” means to “furnish or provide something that is needed or desired”.

s2 Misuse of Drugs Act 1975
Supply includes distribute, give, and sell.

Question 13

What was held in R v Maginnis in relation to supply?

Answer 13

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 …”

Question 14

What was held in R v During in relation to “Offering to supply or administer”?

Answer 14

R v During
“[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”.

Question 15

The prosecution must prove two elements in relation to “Offering to supply or administer”. What must the prosecution prove?

Answer 15

• 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 (mens rea)

Question 16

What was held in R v Brown in relation to “Offering to supply or administer”?

Answer 16

R v Brown
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 he will not supply that drug

R v Brown
“… the making of intimation, with the intention that it should be understood as a genuine offer, is an offence

Question 17

What was held in R v Forrest and Forrest in relation to proof of age?

Answer 17

R v Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.

Question 18

What was held in R v Cox in relation to possession?

Answer 18

R v Cox
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.

Question 19

In drug cases it will be necessary for the Crown to prove that the defendant had:

Answer 19

• knowledge that the drug exists
• knowledge that it is a controlled drug
• actual physical control or some degree of control over it
• an intention to possess it.

Question 20

What is intent and support with Case Law.

Answer 20

In a criminal law context there are two specific types of intention in an offence.
Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

R v Collister
Circumstantial evidence from which an offender’s intent may be inferred include:
• his or her actions before, during, or after the event
• the surrounding circumstances
• the nature of the act itself

Question 21

Name the section, act, and elements for the offence Produce/Manufacture and Controlled Drug.

Answer 21

Produce/Manufacture any Controlled Drug
s6(1)(b) Misuse of Drugs Act 1975
• Produces OR manufactures
• Any controlled drug

Top tips:
• It is important to know when the act of producing is complete i.e. once the prohibited substance is created, whether or not it is in a useable form.
• It is important to distinguish between producing and manufacturing. Producing is changing the form or state of the existing drug, manufacturing is creating a new substance.

Question 22

Name the section, act, and elements for the offence “Supplying any Class A or Class B Controlled Drug”.

Answer 22

Supplying any Class A or Class B Controlled Drug
s6(1)(c) Misuse of Drugs Act 1975
• Supplies OR administers OR offer to supply OR offer to administer OR otherwise deal in
• Any Class A controlled drug OR any Class B controlled drug
• To any person

Top tips:
• An example of administering would be injecting another with a syringe.
• Supply would include distributing, giving, or selling.

Question 23

Name the section, act, and elements for the offence “Supplying Class C Controlled Drug to Person Under 18”.

Answer 23

Supplying Class C Controlled Drug to Person Under 18
s6(1)(d) Misuse of Drugs Act 1975
• Supply OR administer OR offer to supply OR offer to administer
• Any Class C controlled drug
• To any person under 18 years

Question 24

Name the section, act, and elements for the offence “Sell/Offer to sell Class C Controlled Drug to any person over 18”.

Answer 24

Sell/Offer to sell Class C Controlled Drug to any person over 18
s6(1)(e) Misuse of Drugs Act 1975
• Sell OR offer to sell
• Any Class C controlled drug
• To any person of or over 18 years

Top tip:
• A medium of exchange doesn’t need to be cash e.g. trading PlayStation or bodily services for weed.

Question 25

Name the section, act, and elements for the offence “Possession of Controlled Drugs for Supply”.

Answer 25

Possession of Controlled Drugs for Supply
s6(1)(f) Misuse of Drugs Act 1975
• Have in their possession
• Any controlled drug
• For any purpose set out in paragraph (c) OR (d) OR (e) of s6(1) Misuse of Drugs Act 1975.

Question 26

Name the section, act, and elements for the offence “Importation of any Controlled Drug”.

Answer 26

Importation of any Controlled Drug
s6(1)(a) Misuse of Drugs Act 1975
• Imports into OR exports from New Zealand
• Any controlled drug.

Question 27

Define “Imports” as outlined in legislation.

Answer 27

s5 Customs and Excise Act 2018
importation, —
(a) in relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand …

Question 28

Controlled drugs are imported into New Zealand by air and sea using a variety of methods. Name four methods commonly used.

Answer 28

• have drugs concealed in or on their person, or in their luggage
• have another person (a mule) bring the drugs in for them
• send or have drugs sent by international mail or courier
• conceal drugs inside legitimate goods, for example within shipping containers

Question 29

Proving intent in drug cases. In drugs cases additional evidence of intent to supply may be inferred from what?

Answer 29

• admissions
• circumstantial evidence (packaging, scales, cash, tick lists etc)
• the statutory presumption under s6(6).

Question 30

What must the Crown prove in relation to possession of a drug?

Answer 30

The Crown must prove that the defendant had:
• knowledge that the drug exists
• knowledge that it is a controlled drug
• actual physical control or some degree of control over it
• an intention to possess it.

Question 31

Possession include 3 types of offences. Name the 3 types of offences.

Answer 31

• Possession
• Joint possession
• Attempted possession.

Question 32

Define ‘New Zealand’ as described in s5 Customs and Excise Act 2018.

Answer 32

s5 Customs and Excise Act 2018
New Zealand means the land and waters enclosed by the outer limit of the territorial sea of New Zealand. The outer limit of the territorial sea is 12 nautical miles from the land mass of New Zealand.

Question 33

Who can grant bail for drug dealing offences. Support with legislation.

Answer 33

s16 Bail Act 2000
A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of a High Court Judge or District Court Judge but not otherwise.

Question 34

Name the section, act, and elements for the offence ‘Possession and use of controlled drugs”

Answer 34

Possession and use of controlled drugs
s7(1)(a) Misuse of Drugs Act 1975
• Procure OR have in his possession OR consume OR smoke OR otherwise use
• Any controlled drug.

s7(1)(b) Misuse of Drugs Act 1975
• Supply OR administer OR offer to supply OR offer to administer
• Any Class C controlled drug
• To any other person
• Or otherwise deal in any such controlled drug.

Question 35

For charges under s12A(1) Misuse Drugs Act 1975 (Supplies equipment / precursors etc), the Crown must prove three elements. What are these elements?

Answer 35

• 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 the cultivation of prohibited plants
• that the defendant knows those items are to be used for such an offence by another person.

Question 36

For charges under s12A(2) Misuse Drugs Act 1975 (Possession of equipment / precursors etc), the Crown must prove three elements. What are these elements?

Answer 36

• 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 the cultivation of prohibited plants
• that the defendant has the intention that those items are to be used for such an offence, either by himself or another person.

Question 37

What activities does the term ‘supplying a drug’ cover?

Answer 37

Supplying drugs includes distributing, giving, or selling drugs.

Question 38

What are the two elements that the prosecution has to prove in relation to the offence of offering to supply?

Answer 38

The two elements of the offence of offering to supply are:
• the use of words that convey an offer
• the intention to make the other person believe the offer that has been made is real.

Question 39

What difference does age make to the offences involving Class C controlled drugs?

Answer 39

The difference in age regarding drug offences means that, when the receiver is:
• under 18 years of age, it is illegal to supply or administer, or offer to supply or administer, a Class C controlled drug to them
• over 18 years of age, the only offences are to sell, or offer to sell, them a Class C controlled drug.

Question 40

Mike has been charged with possession of 5 grams of methamphetamine. List the four things you have to prove in relation to Mike’s possession of that drug.

Answer 40

To prove possession of a drug, the Crown must prove that Mike had:
• knowledge that the drug exists
• knowledge that it is a controlled drug
• actual physical control or some degree of control over it
• an intention to possess it.

Question 41

Controlled drugs are generally delivered in one of 6 situations. Name four methods of transportation.

Answer 41

• International mail centre
• International airport
• Imported air freight
• Imported sea freight
• Transhipped air or sea freight
• Arriving commercial vessel.

Question 42

In relation to an offence against s9 of the Misuse of Drugs Act 1975, what must you prove?

Answer 42

You must prove the identity of the suspect and that he or she cultivated a prohibited plant.

Question 43

What is the difference between the offence of obstruction contained in the Summary Offences Act 1981and the Misuse of Drugs Act 1975?

Answer 43

The offence of obstruction in the Misuse of Drugs Act relates specifically to obstructing anyone who is executing powers under the Misuse of Drugs Act 1975.

Question 44

Under s9(4) there is a defence to a charge of cultivation of a prohibited plant. What is this defence?

Answer 44

It shall be a defence to a charge of cultivation of a prohibited plant if the person charged proves that the prohibited plant was of the species Papaver somniferum, and that it was not intended to be a source of any controlled drug nor that it was being developed as a strain from which a controlled drug could be produced.

Question 45

Rose owns a rural property. John, her son, resides with her. John uses the spare bedroom to grow cannabis, which he then supplies to the locals. Rose is aware of John’s illegal activities but does not have any involvement in his activities whatsoever. What can Rose be charged with?