Dealing Offences Flashcards
MODA 1975 Section 6(1)(a)
- Import into or Export from NZ
- Any controlled Drug
MODA 1975 Section 6(1)(b)
- Produce or Manufacture
- Any controlled drug
MODA 1975 Section 6(1)(c)
- Supply, Administer Offer to supply or Administer, or otherwise deal in
- Any Class A or Class B controlled drug
- To any person
MODA 1975 Section 6(1)(d)
- Supply, Administer Offer to supply or Administer,
- Any class C controlled drug
- To any person under the age of 18
MODA 1975 Section 6(1)(e)
- Sell or offer to sell
- Any class C controlled drug
- To any person over the age of 18
MODA 1975 Section 6(1)(f)
- Has in her or his possession
- Any controlled drug
- for any of the purposes set out in paragraphs (c-e) in Section 6 MOD 1975
MODA 1975 Section 6(2)(a)
Penalty
Imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
MODA 1975 Section 6(2)(b)
Penalty
Imprisonment fro term not exceeding 14 years were paragraph (a) of this section does not apply but Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
MODA 1975 Section 6(2)(c)
Penalty
Imprisonment for term not exceeding 8 years in any other case
MODA 1975
Section 2A
Conspiring in relation to drug offences
MODA 1975 Section 6(2A)(a)
Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term (a) Not exceeding 14 years where a class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
MODA 1975 Section 6(2A)(b)
Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term
(b) Not exceeding 10 years where in paragraph (a) of this subsection does not apply but Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
MODA 1975 Section 6(2A)(c)
Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term
(c) Not exceeding 7 years in any other case
Customs and Excise Act 2018
Section 5
Importation Definition
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
Saxton v Police
To import includes ‘to introduce from abroad or to cause to be brought in from a foreign country’
Case Law
- Import Definition
Saxton v Police
To import includes ‘to introduce from abroad or to cause to be brought in from a foreign country’
Criminally liable - Importation
Criminal Liability arises as soon as the drugs cross New Zealand’s border
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
- Post office importation
’. . . the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand’s territorial limits. Importing into NZ for the purpose of s 6(1)(a) is a process. The element of importing exists from the time the goods enter NZ until they reach their immediate destination . . . [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee’
Case Law
- Importation process start/end
R v Hancox
‘. . . the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand’s territorial limits. Importing into NZ for the purpose of s 6(1)(a) is a process. The element of importing exists from the time the goods enter NZ until they reach their immediate destination . . . [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee’
Crown prove Mens rea - Importing
The crown must not only prove that the Defendant’s conduct in some way contributed to the actual importation of the drug but also their guilty knowledge
This will involve proof that the Defendant
- knew about the importation
- knew the imported substance was a controlled drug
- intended to cause the importation
Can include wilful blindness
- Proof the defendant deliberately turned a blind eye to the facts will suffice
Customs & Excise Act 2018
Section 5
New Zealand Definition
Means the land and waters enclosed by the outer limits of the territorial sea of NZ.
The outer limit of the territorial sea is 12 nautical miles from the land mass of NZ
MODA 1975 Section 2
Interpretation - Controlled drug
Controlled drug means any substance, preparation, mixture or article specified or described in Schedule 1, schedule 2, or schedule 3 to this Act and includes any controlled drug analogue
MODA 1975 Section 2
Interpretation - Controlled drug analogue
means any substance (other than the exceptions specified in the definition) with a structure substantially similar to a controlled drug.
It is a substance that has similar dangerous effects, but that is not specifically listed in the schedules in the Act
Controlled Drug Analogue Class?
All controlled drug analogues are classified as Class C controlled drugs irrespective of the class of drug they resemble
Class A - Schedule 1
MODA 1975
Very high risk of harm
- Cocaine
- Heroin
- Lysergide (LSD)
- Methamphetamine
- Psilocybine (found in magic mushrooms)
Class B - Schedule 2
MODA 1975
High risk of harm
- Amphetamine
- Cannabis Preparations (such as oil and hashish)
- GHB (fantasy)
- MDMA (Ecstasy)
- Morphine
- Opium
- Pseudoephedrine
- Ephedrine
Class C - Schedule 3
MODA 1975
Moderate risk of harm
- Cannabis Plant
- Cannabis Seeds
- Benzylpiperazine (BZP)
- Controlled drug analogues
Guilty Knowledge Proof
Guilty knowledge will be presumed, it is up to the Defendant to raise reasonable doubt as to their state of mind.
R v Strawbridge
- Guilty knowledge
It is not necessary for the crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
Case law
-Guilty Knowledge
R v Strawbridge
It is not necessary for the crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
Section 29 MODA 1975
Mistake as to the nature of controlled drug or precursor substance.
-Not a defence that Defendant thought it was another controlled drug (charged herion, thought was cocaine)
Useable Quantity
In any drug offence the quantity of drug involved must be measurable and useable.
Police v Emirali
’. . . the serious offence of . . .possessing a narcotic does not extend to some minute and useless residue of the substance’
Case Law - Uaseable Quantity
Police v Emirali
‘. . . the serious offence of . . .possessing a narcotic does not extend to some minute and useless residue of the substance’
R v Rua
The words ‘produce’ and ‘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
Case Law
MODA 1975 Section6(1)(b)
R v Rua
The words ‘produce’ and ‘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
Produce / Producing
Producing - changing the nature of the original substance
Produce - bring something into being or to bring something into existence from it raw materials or elements
Section 2 Interpretation includes compound
Compound- to create a whole by mixing or combining two or more elements or parts
Manufacturing
Manufacturing - creating a different or new substance from original materials
Is the process of synthesis; combining components or processing raw materials to create a new substance
Supply
To furnish or provide something that is needed or desired
Section 2 Interpretation
Supply includes distribute, give and sell
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
- Supply
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 . . ‘
Distributing / Distribute
relates to the supply of drugs to multiple people
Giving
involves handing over or in some other way transferring an item to another person.
The act is complete when the recipient accepts possession, or where the drug is placed under the control of a willing recipient
Selling
A sale occurs when a quantity or share of drug is exchanged for some valuable consideration
Administering
involves introducing a drug directly into another person’s system.
To direct and cause a . . drug to be taken into the system - Black’s Law Dictionary
Offering - Two elements
The prosecution must prove two elements:
- the communicating of an offer to supply or administer a controlled drug (the Act reus)
- an intention that the other person believes the offer to be genuine (the Mens rea)
R v During
‘[An offer is] an initimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by statute’
Case Law - Offering
R v During
‘[An offer is] an initimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by statute’
R v Brown (offence)
’. . . the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence’
Case Law - Offering Offence
R v Brown
‘. . . the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence’
R v Brown (scenarios)
The defendant is guilty in the following instances:
- Offers to supply a drug that he has on hand
- Offers to supply a drug that will be produced at some future date
- Offers to supply a drug that he mistakenly believes he can supply
- Offers to supply a drug deceitfully, knowing he will not supply that drug
Case Law - Offering scenarios
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 produced 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
MODA 1975 Section 6(1)(d)
Prosecution must prove. . .
The age of the person at the time of the alleged offending
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
Case Law - age
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
Possession
2x elements
Physical element
- Actual custody or control or Potential custody or control
AND
Mental element
- Knowledge and Intention: willingness to possess
Possession
MODA 1975 Section 2(2)
For the purpose of this Act, the things which a person has in his possession include anything subject to his control which is in custody of another
Possession for supply Knowledge (3)
Prosecution must establish the Defendant
- know they have the substance
- know the substance’ nature and qualities
- intend to use the substance in a way that allows you to charge them with possession
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.
Case Law - Possession
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.
To control
To control something means to exercise authoritative or dominating influence or command over it.
Can their be Joint possess for supply charges?
Yes
Prosecution must prove that there was a shared intention to sell the drugs.
It is unnecessary to show that the sale has to be made by the defendant personally.
In Possession charge the Crown must prove . .
That the Defendant had
- knowledge that the drug existed
- 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 result
Proving intent to supply in drug cases
Intent to supply maybe inferred from
- Admissions
- Circumstantial evidence (packaging, scales, cash, tick lists)
- the statutory presumption under section 6(6)
MODA 1975 Section 6 (6)
Statutory presumption Section 6(6) creates a presumption of law that if a person has possession of a specified amount of any drug, that person will be presumed to have that drug for one of the purposes set out in Section 6(1)(c, d or e) unless they can prove otherwise.
MODA 1975
Schedule 5
Controlled drugs and specified amounts
Examples:
Lysergide(LSD) - 2.5 Milligrams or 25 flakes, tablets etc
Methamphetamine - 5 grams
MDMA(ecstasy) - 5 grams or 100 tablets, flakes etc
Cannabis Plant - 28 grams or 100 or more cigarettes
Cannabis resin and extract (oil) - 5 grams
Heroin - 0.5 grams
Cocaine - 0.5 grams
Conspiracy
A criminal agreement consists of an agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action.
Conspiracy Complete?
Once the agreement has been made.
Must be at least two persons
R v Lambert held that there can be a conspiracy between two people, that one will supply the other.
MODA 1975 Section 12A(1)
Every person who supplies, produces or manufactures
a) any equipment or material that is capable of being used in, or for the commission of an offence against Section 6(1)(b) or Section 9
OR
b) Any precursor substance
Knowing that the equipment, material or substance is to be used in, or for, the commission of an offence against those provisions
MODA 1975 Section 12A(2)
Every person who has in his or her possession
a) any equipment or material that is capable of being used in, or for the commission of an offence against Section 6(1)(b) or Section 9
OR
b) Any precursor substance
With the intention that the equipment, material or substance is to be used in, or for the commission of an offence against that provision
MODA 1975 Section 12A(3)
Penalty
a) In the case of an offence against subsection (1), term of imprisonment not exceeding 7 years
b) In the case of an offence against subsection (2), term of imprisonment not exceeding 5 years
Prosecution to prove in relation to Section 12A(1)
Crown must prove 3 elements
- Defendant has supplied, produced or manufactured equipment, material or precursors
- Those items are capable of being used in production or manufacture of controlled drugs, or cultivation of plants
- the defendant knows those items are to be used for such an offence by another person
Precursor Substance
Precursor means Fore-runner - Something that comes before something else
Section 2 MODA 1975
Any substance specified or described in part 1 or part 2 of schedule 4
Prosecution to prove in relation to Section 12A(2)
Crown must prove 3 elements
- 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 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
Conspiracy within NZ jursdiction
Conspiracy to import drugs into NZ comes within NZ jurisdiction when you can prove the defendant has done something to complete the conspiracy in NZ
