Day 7: Drugs Flashcards
What is a controlled drug?
SPAM
Any substance, preparation, mixture or article specified or described in schedule 1, 2 or 3. Includes temporary controlled drug analogue.
What is a controlled drug analogue?
Any substance (other than specified exceptions) with a structure substantially similar to a controlled drug.
Exceptions for controlled drug analogue
- Any substance in
schedule 1 and 2 or parts
1 - 6 in schedule 3 - prescription medicine
- approved product within
psychoactive substances
act 2013 - non - psychoactive THC
analogue
What are controlled drug analogues classed as?
All Class C controlled drugs, irrespective of the class of drug the resemble
Describe the risk levels for each Class of controlled drug
Risk of harm to individuals and society:
Class A = Very high risk
Class B = High risk
Class C = Moderate risk
Explain what must be proved in terms of ‘guilty knowledge’ regarding drugs offences (Mens Rea)
K - knew about offence or
was wilfully blind
K - knew it was a controlled
drug
I - Intent
What section talks about mistake as to the nature of the drugs?
Section 29 MODA
It is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.
When does criminal liability arise in terms of importing?
When the drugs cross NZ border.
Wilful blindness:
Deliberately turned a blind eye
Definition of produce:
To bring something into being, or to bring something into existence from its raw materials or element
*Change from the original form (cannabis oil)
Definition of manufacture:
The process of synthesis; combining components or processing raw materials to create a new substance
E.g. Using different products to create something new. Meth
What does creating cannabis oil constitute?
Producing.
Separating cannabis resin from the plant creates a new form. Chemical components have not been altered but would be concentrated and may change schedule.
Unrecognisable as plant material
When is the offence complete in terms of producing and manufacturing?
When the substance is created, whether or not it is in a usable form.
Definition of supply:
Means to “furnish or provide something that is needed or desired”
Includes distribute, give and sell.
Define distribution:
Supply to multiple people
R v Maginnis
More than transfer of physical control
Explain ‘give’ in terms of supply:
To hand over (does not need an active or physical transfer)
Giving will usually be complete when the recipient accepts possession.
Define to sell:
Involves the typical concept of sale - an exchange of goods in return for valuable consideration
Administers:
Introducing a drug directly into another persons system
What 2 elements must the prosecution prove to charge for ‘offering’?
- 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
R v During
Offer
An offer is an indication by the person charged to another that he is ready on request to supply drugs
R v Brown
Offering
The making of such an indication, with the intention that it should be understood as a genuine offer, is an offence.
How may an offer be conveyed?
Words, writing or gestures
Additional element the crown must prove when charging with ‘offers’:
That the defendant intended the other person to believe the offer, but it is not necessary to prove they actually had the capacity to supply the drugs.
4 ways offering to supply can arise:
- offers to supply drug he
has on hand - offers to supply a drug
that will be procured at
future date - offers to supply a drug he
mistakenly believes he
can supply - offers to supply a drug
deceitfully, knowing he
cannot supply
Otherwise deals meaning:
Dealing in a drug other than by distributing, giving or selling.
E.g. bartering
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
R v Cox
Possession
Possession requires 2 separate elements:
1) Physical. Actual or potential custody or control. (Actus Reus)
2) Mental. A combination of knowledge and intention. (Mens Rea)
What 4 elements of possession must be proved by the crown in drug cases?
- Knowledge that the drug exists
- Knowledge that it is a controlled drug
- Some degree or control over it
- An intention to possess it.
R v Cox
Examples for proving intent in supply cases:
- Admissions
- Circumstantial evidence
(packaging, scales, cash) - The statutory
presumption under
Section 6(6)
What is the purpose of statutory presumption?
Reverse the onus of proof (put on defendant to prove on balance of probabilities that the drugs were not intended for supply)
Presumption for supply:
Cocaine: 0.5 grams
LSD: 25 tabs or 2.5mg
Meth: 5 grams
MDMA: 5 grams
Cannabis resin: 5 grams
Cannabis oil: 5 grams
Cannabis plant: 28 grams or 100 cigarettes
Not specified in Schedule 5? 56 grams
Section 6(2A) MODA:
Conspire to deal in any controlled drug (offence involved is one against Section 6(1).
Class A 14 years
Class B 10 years
Class C 8 years
R v Strawbridge
Guilty knowledge
Guilty Knowledge is presumed unless there is evidence to the contrary. The accused must prove that they acted innocently and had no knowledge.
R v Emerali
Usable Quantity
Possession does not extend to some useless and minute residue of the substance
R v Rua
The words produce and manufacture broadly cover the creation of controlled drugs by some form or process which changes the original substance into a prohibited drug
