Dealing Offences Flashcards
Dealing With Controlled Drugs - section 6(1)(a)
- Import into or export from
- New Zealand
- Any controlled Drug
Importation Methods
Common methods: concealed in or on their person, or in their luggage; a mule bringing the drugs in for them; sent by international mail or courier; conceal drugs inside legitimate goods.
*Imports Definition
The arrival of goods in NZ in any manner, whether lawfully or unlawfully, from a point outside NZ
Saxton v Police - Importation
To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.
*The Importing Process
Criminal liability arises as soon as the drugs cross the NZ border, conviction is possible even if the drugs are intercepted by customs.
The process of importation continues while the goods are in transit, and only concludes when they have reached their final destination and are available to the consignee.
R v Hancox - Importation
The element of importing exists from the time the goods enter NZ until they reach their immediate destination. 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
Crown to Prove that the defendants conduct contributed to the actual importation of the drug, as well as guilty knowledge.
That the defendant:
- knew about the importation, and
- knew the imported substance was a controlled drug, and
- intended to cause importation
Wilful Blindness
Deliberately turning a blind eye to the facts.
R v Martin - the Crown to prove beyond reasonable doubt that the accused had suspicion about what they were carrying but deliberately refrained from making inquiries because they wanted to remain in ignorance. If that is proved, the law presumes knowledge on the part of the accused. The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry.
*Class A Controlled Drug
Classified as such as their misuse poses a very high risk of harm to individuals and to society.
Includes:
- Cocaine
- Heroin
- LSD
- Methamphetamine
- Psilocybine
*Class B Controlled Drug
Classified as such as their misuse poses a high risk of harm to individuals.
Includes:
- Amphetamine
- Cannabis oil and hashish
- GHB
- MDMA
- Morphine
- Opium
- Pseudoephedrine
- Ephedrine
*Class C Controlled Drug
Classified as such as their misuse poses a moderate risk of harm to individuals
Includes:
- Cannabis plant
- Cannabis seeds
- Benzylipiperazine
- Controlled drug analogues
*Any Controlled Drug
Controlled Drug means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2, or Schedule 3 of this Act
Controlled Drug Analogue - Any substance, with a structure substantially similar to a controlled drug as it has similar dangerous effects, but that is not specifically listed in the schedules Act.
*R v Strawbridge - Guilty Knowledge
Not necessary for the crown to establish knowledge on the part for the defendant. In the absence of evidence to the contrary knowledge on their part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that their act was innocent, then they are entitled to be acquitted.
Mistake as to Nature of Drug
Not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.
Usable Quantity
Measurable and usable. Depends on more than just its size and weight; the nature of the drug and condition in which it is found are all relevant.
*Police v Emirali - Usable Quantity
The serious offence of… possessing a narcotic does not extend to some minute and useless residue.
Dealing With Controlled Drugs - section 6(1)(b)
- Produce or manufacture
- Any controlled drug
Producing and Manufacturing
Both relate to the process of creating controlled drugs. The Court of Appeal held that the words are to be read as complementary terms. You must specify one or the other in a charging document.
The offence is completed once the prohibited substance is created, whether or not it is in a usable form.
*Producing
Changing the nature of the original substance. Means to bring something into being or to bring something into existence from its raw materials or elements.
Includes ‘compound’ to compound means to create a whole mixing or combining two or more elements or parts.
*Manufacturing
Creating a different or new substance from the original materials. 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.
*R v Rua - Produce v Manufacture
Produce or manufacture broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
Cannabis Preparations (Section 29B)
Deals specifically with producing cannabis. Produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material - for example producing cannabis oil or baking a cannabis cake.
This process has the effect of upgrading what was originally Class C cannabis plant to a Class B cannabis preparation.
Dealing With Controlled Drugs - section 6(1)(c)
- Supply or administer or offer to supply or administer
- Any Class A or Class B controlled drug
- To any other person or otherwise deal in any such controlled drug
Supply
To furnish or provide something that is needed or desired. Includes a broad range of activities designed to effect the transfer of controlled drugs from one person to another.
R v McGinnis - Supply
[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.
Distributing
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.
R v Donald - denied intending to supply the drug, claiming that he was simply dividing it up for distribution between several joint owners.
Giving
Involves handing over or in some other way transferring an item to another person. It is complete when the recipient accepts possession, or where the drug is placed under the control of a willing recipient.
Giving can occur without an active transfer of the drugs, where a person permits another to help themselves from a cache of drugs.
Selling
Occurs when a quantity or share in a drug is exchanged for some valuable consideration.
Administering
Administer - is to direct and cause a drug to be taken into the system of another person. Distinguished from supplying in that it involves introducing a drug directly into another persons system.
Examples - injecting a person with heroin, heating cannabis resin between two knife blades while another person inhales smoke, causing a person to consume a date rape drug by slipping it into their drink without their knowledge.
Offering to Supply or Administer
Prohibits the act of arousing another persons interest in controlled drugs, or of tempting others to use them.
Prosecution to prove two elements:
- the communicating of an offer to supply or administer a controlled drug
- an intention that the other person believes the offer to be genuine
*R v During - Offer
An offer is an intimation by the person charged to another that he is read on request to supply drugs of a kind prohibited by the statue.
R v Brown - Supply
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 - Offer
“The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.”
Crown must prove the defendant intended the other person to believe the offer, it is not necessary prove that he actually had the capacity to supply drugs.
Otherwise Deals
Dealing in a drug by some means other than by distributing, giving, or selling it, administering it or offering to supply or administer it.
Hooper & Another - ‘barter and exchange’
To Any Other Person
The prosecution must prove that the drugs were supplied to another person although it is not necessary to identify that person.
Gender neutral, accepted by judicial notice or proved by circumstantial evidence.
Dealing With Controlled Drugs - section 6(1)(d)
- Supply or administer or offer to supply or administer
- Any Class C controlled drug
- To a person under 18 years of age
Person Under 18yo
The prosecution must prove the age of the person to whom the drugs were supplied.
Proof of Age
Prosecution must prove the victims age at the time of the alleged offence, using the best evidence available to do so.
Generally this involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
*R v Forrest & Forrest - Proof of Age
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
Dealing With Controlled Drugs - section 6(1)(e)
- Sell, or offer to sell
- Any class C controlled drug
- To a person, of or over 18 years of age
Sells
Section 6(5) - creates the presumption that in the absence of evidence to the contrary a drug supplied to a person over 18 years of age has been sold to that person.
The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale.
Dealing With Controlled Drugs - section 6(1)(f)
- Have any controlled drug in his possession
- For any of the purposes set out in paragraphs (c), (d), (e)
Knowledge
Components to Prove Knowledge:
- the defendant must be aware that they possess the substance
- the defendant identifies the substance as a controlled drug, even if there is no substance to be analysed to prove their assertion
- physical custody presumes knowledge, unless otherwise proven
In R v Cruse - the Court of Appeal believed that proof that a substance is cannabis is not limited to scientific evidence.
Knowledge & Intention
In considering whether a person knows the qualities of a substance, you need to establish they:
- know they have the substance
- know the substances nature or qualities
- intended to use the substance in a way that allows you to charge them with possession.
Lack of Knowledge
Police v Rowles discusses the situation in which someone can possess a substance without being aware that they do. A genuine lack of awareness would exclude ‘knowing possession’ and thereby intent.
Control
Exercise authoritative or dominating influence or command over it.
R v Cox - Possession
Possession involves two elements - physical, is actual or potential physical custody or control. Mental, is 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.
Joint Possession
Where more than one person has access to drugs of saleable quantity, they may be charged jointly with possession. You must prove that there was a shared intention to sell the drugs.
Attempted Possession
R v Jay - the commission of the offence of receiving cannabis was not legally impossible, although in the circumstances it was factually impossible. As the respondent had criminal intent and did an act for the purpose of accomplishing his object he was guilty of an attempt to commit an offence.
Possession in Drugs Cases
Crown must prove:
- knowledge that the drugs exist
- knowledge that it is a controlled drug
- actual physical control or some degree of control over it
- an intention to possess it
Intent
Deliberate Act - Specific Outcome
R v Collister - circumstantial evidence from which an offenders intent may be inferred can include:
- the offenders actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself
Evidence of Intent to Supply
- admissions
- circumstantial evidence (packaging’s cases, cash, tick lists)
- the statutory presumption under section 6(6)
*Possession - Presumptive Quantity
Section 6(6) of MODA creates a presumption of law that if a person has possession of a specified amount of a drug, that person will be presumed to have that drug for one of the purposes set out in 6(1)(c), (d), (e), unless they can prove otherwise. Can include the environment in which the drugs were found, packaged, admissions, large amounts of money and tick lists.
Tracy Formula
Suggested that where the particular purpose for possession cannot be proved or is uncertain, the charge should be drafted in the alternative, e.g. ‘in possession of a Class C controlled drug for the purpose specified in paragraph (d), (e) of section 6 MODA 1971’.
In cases where the Tracy Formula is applied, the defendant must rebut the presumptions by proving, on the balance of probabilities, that they did not intend to supply, administer or sell the drug, or attempt to supply, administer or sell the drug.
*Schedule 5 Misuse of Drugs Act 1975
Presumptive Amount for Supply:
- 0.5 grams - Heroin, Cocaine
- 2.5mg or 25 flakes - LSD
- 5 grams - Meth, MDMA (or 100 flaskes/tablets), Cannabis resin/oil
- 28 grams or 100 cigarettes - Cannabis plant
Penalties
Class A controlled drugs - Life Imprisonment
Class B controlled drugs - 14 Year Imprisonment
Class C controlled drugs - 8 Year Imprisonment
Conspiracy to Deal With Controlled Drugs - Section 6(2A)
- Conspires
- With any other person
- To commit an offence against subsection 1 of this section
- Commits an offence against this Act
Conspires Penalties
Class A controlled drugs - 14 Year Imprisonment
Class B controlled drugs - 10 Year Imprisonment
Class C controlled drugs - 7 Year Imprisonment
Conspiracy
Agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action.
Conspiring to Deal
The conspiracy is complete once the agreement is made. There can be a conspiracy between two people that one will supply the other.
Where there is a conspiracy to import controlled drugs into NZ and the agreement or unlawful acts are carried out in foreign territory… It will be necessary to prove that the defendant had done something to complete the conspiracy in NZ for the offence to come within the jurisdiction of the NZ courts.
Equipment & Precursors
Section 12A MODA 1975 creates the offence of supplying, producing or manufacturing equipment, material or precursors or possessing such items for the purpose of producing/manufacturing controlled drugs.
This charge is often filed against businesses who knowingly supply equipment for cultivating cannabis, or against ‘pseudo-shoppers’.
*Supplied Equipment - Section 12A(1)
- Supplies, produces or manufactures
- Any equipment or material
- That is capable of being used in, on, for, the commission of an offence against MODA
- Knowing that it is to be used for the commission of an offence against MODA
*12A(1) Crown to Prove
- the defendant has supplied, produced or manufactured equipment, material or precursors
- that those items are capable to being used in the production or manufacture of controlled drugs
- the defendant knows those items are to be used for such an offence by another person
Equipment
Implements, apparatus and other hardware: e.g. glassware, condensers, heating mantles, pots, lights, timers, water pumps for cultivating cannabis.
Material
Anything used int he process of producing, manufacturing or cultivating that cannot be properly described as equipment e.g. chemicals, documents of instructions, fertilisers.
Precursor
Forerunner
- Acetic Anhydride (heroin)
- Lysergic Acid (LSD)
- Ephedrine / Pseudoephedrine (Methamphetamine)
To be Used
Offending that will occur in the future
*12A(2) Crown to Prove
- the defendant has equipment, material or precursors in his possession
- that those items are capable to being used in the production or manufacture of controlled drugs or 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
(Not necessary to prove that the offence was actually committed or even attempted).
Cultivation of Prohibited Plants - Section 9(1) MODA 1975
- Except pursuant to a licence under this Act
- Or as Otherwise permitted by regulations made under this Act
- No person shall cultivate any prohibited plant
*Use of Premises or Vehicle - Section 12(1) MODA 1975
- Knowingly permits
- Any premises or (vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance)
- to be used for the purpose of the commission of an offence against this Act
*Obstruction of Officers - Section 16 MODA 1975
- Wilfully obstructs, hinders, resists, or deceives
- Any other person in the execution of any powers conferred on that other person by or pursuant to this Act
The offence of obstruction in MODA relates specifically to obstructing anyone who is executing powers pursuant to the MODA.
Ulrich v Police held that the ordinary meaning of obstruct is to impede or to make more difficult. Words can be effective It is not necessary for an accused to raise his fists.
