Dealing Offences Flashcards
When is the offence of producing/manufacturing complete
Once the prohibited substance is created, whether or not it is in a useable form
How to prove mens rea of importing
Prove the defendant:
• know about the importing
• knew the imported substance was a controlled drug
• intended to cause the importation
What are the common methods of drug importing
- concealed on the person or in their luggage
- have another person (mule) bring the drugs in
- send or have drugs sent by international mail or courier
- conceal drugs inside legitimate goods, eg. within shipping containers
What is the difference between supplies and administers
Administering involves introducing a drug directly into another persons system
whereas supply is giving it to them
What two elements would the prosecution have to prove for offers to sell / supply / administer
- the communicating of an offer to sell a controlled drug (actus reus)
- intention that the other person believes the offer to be genuine (mens rea)
What is the presumption around sale/supply
s6(5)
For the purpose of s6(1)(e) if it is proved that a person has supplied a controlled drug to another person, he shall, until the contrary is proved, be deemed to have sold that controlled drug to that other person
In relation to importing when is someone liable and when does liability cease
Criminal liability arises as soon as the drugs cross the NZ boarder
Criminal liability ceases when the drugs have reached their final point in transit and are available to the addressee
List Class A controlled drugs, schedule 1
- Cocaine
- Heroine
- LSD
- Methamphetamine
- Magic mushrooms
Pose very high risk of harm
List Class B controlled drugs, schedule 2
- Amphetamine
- Cannabis preparations (oil, hashish)
- GHB (fantasy)
- MDMA (ecstasy)
- Morphine
- Opium
- Pseudoephedrine
Pose high risk of harm
List Class C controlled drugs, schedule 3
- cannabis plant
- cannabis seed
- BZP
- controlled drug analogues
Pose moderate risk of harm
Explain guilty knowledge
For a person to be guilty of an offence relating to drugs they must have “guilty knowledge”.
A person who innocently possesses something they genuinely believed was not a controlled drug has a defence.
It is not necessary for the crown to prove such knowledge, guilty knowledge will be presumed in the absence of evidence to the contrary.
R v Strawbridge
Does the prosecution have to prove that a drug is “usable”
No it is not necessary for the prosecution to prove the drugs were of a useable quantity unless the defendant puts the matter in issue.
Wilful blindness
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice
Can a person be charge with attempted possession
Yes
It is an offence to attempt to gain possession of a drug.
Received hedge clippings believing them to be cannabis:
R v JAY
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 achieving his object he was guilty of an attempt to commit an offence.
Presumption that the drug is for sale or supply may be rebutted
Presumption for supply may be rebutted if the person is able to prove, on the balance of probabilities, that they did not intend to commit a dealing offence. Ie if the defendant is addicted to the substance and requires large amounts for personal use.
Presumptive amounts
- Cocaine - 0.5 grams
- Heroine - 0.5 grams
- Methamphetamine - 5 grams
- Ecstasy - 5 grams or 100 flakes/tablets
- Cannabis plant - 28 grams or 100 or more cigarettes
- Cannabis Resin and Oil - 5 grams
- LSD - 2.5 milligrams or 25 tabs
What must the prosecution prove for possession
That the defendant had: • knowledge that the drug existed • knowledge that is a controlled • some degree of control over it • an intention to possess it
Intent to supply may be inferred from
- admissions
- circumstantial evidence (packaging, scales, cash, tick lists etc)
- the statutory presumption for supply 6(6)
In general for any offence:
• offenders actions and words, before, during and after the event
• surrounding circumstances
• nature of the act
What are the penalties for conspires to deal 6(2A)
14yrs - Class A
10yrs - Class B
7yrs - any other
What three elements must the crown prove in relation to Section 12A(1) relating to the supply of equipment, material or pre cursors
- That the defendant has supplied, produced or manufactured equipment, materials 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
Define equipment and list examples
The term “equipment” is not defined by statue, but will include the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process
Examples: • glasswear • condensers • heating mantles or pots • lights • timers • water pumps
What is the difference between 12A(1) and 12A(2) MODA 1975
Equipment/precursor
12A(1)
often filed against businesses such as hydroponic suppliers who knowingly supply equipment for cultivating cannabis or against “pseudo-shoppers” who acquire quantities of pseudo and supply it to meth cooks
12A(2)
relates to those in possession of such items with intent that they be used by themselves or others for a specified purpose such as meth cooks and cannabis cultivators
What three elements must the crown prove in relation to Section 12A(2) MODA 1975 relating to the supply of equipment, material or pre cursors
- 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
