Dealing With Controlled Drugs

Question 1

Misuse of Drugs Act 1975
Drug dealing (Importing/Exporting any Controlled Drugs

Answer 1

Section 6(1)(a) MODA 1975

No person shall

Import into OR export from New Zealand

Any controlled drug

Question 2

Misuse of Drugs Act 1975
Drug dealing (Producing/Manufacturing any controlled drugs)

Answer 2

Section 6(1)(b) MODA 1975

No person shall

Produce Or Manufacture

Any controlled drug

Question 3

Misuse of Drugs Act 1975
Drug dealing (Supplying any Class A OR Class B controlled drug)

Answer 3

Section 6(1)(c) MODA 1975

No person shall

Supply OR administer OR offer to supply OR otherwise deal in

Any Class A controlled drug OR Class B controlled drug

To any person

Question 4

Misuse of Drugs Act 1975
Drug dealing (Supplying Class C controlled drug to person under 18 years)

Answer 4

Section 6 (1)(d) MODA 1975

No person shall

Supply OR administer OR offer to supply OR administer

Any Class C controlled drug

To a person under 18 years of age

Question 5

Misuse of Drugs Act 1975
Drug dealing (Sell/offer to sell any Class C controlled drug to person 18 +)

Answer 5

Section 6(1)(e) MODA 1975

No person shall

Sell OR offer to sell

Any Class C controlled drug

To a person of or over 18 years of age

Question 6

Misuse of Drugs Act 1975
Drug Dealing (Possession of controlled drug for supply)

Answer 6

Section 6(1)(f) MODA 1975

No person shall

Have in his possession

Any controlled drug

For any of the purposes set out in paragraphs (c), (d) or (e) of Section 6(1) MODA 1975

Question 7

Mistake as to nature of controlled drug

Answer 7

While guilty knowledge is an essential element, section 29 provides that it is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.

Question 8

Section 6(1)(b)
Producing-defined

Answer 8

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

(Cannabis oil from Cannabis plant material, the ethanol used is removed by distillation after process)

Question 9

Section 6(1)(b)
Manufacturing-defined

Answer 9

Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
Adding a whole bunch of stuff (not removing after process) to create something new.

Question 10

When offence is complete

Answer 10

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

Question 11

Supply

Answer 11

Supply includes distribute, give, and sell.

Distribute-The term “distribution” relates to the supply of drugs to multiple people.

Give-“To give” means to hand the substance over in order to enable the other person to use the drug for his use or her own purposes.
“Giving” will usually be complete when the recipient accepts possession or where the drug is placed under the control of a willing recipient.

Selling-“To sell” involves the typical concept of sale-an exchange of the goods in return for valuable consideration.

Question 12

Administers

Answer 12

Administering is distinguished from supplying in that it involves introducing a drug directly into another person’s system.

Question 13

Offering (Must know)

Answer 13

The prosecution must prove two elements:

The communicating of an offer to supply or administer a controlled drug (the Actus reus).
An intention that the other person believes the offer to be genuine (the Mens rea).

Question 14

Offering case law

Answer 14

“[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.” R v During

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

Question 15

Otherwise deals

Answer 15

The term “otherwise deals” in paragraph (c) is aimed at dealing in a drug by some means other than by distributing, giving or selling it, administering it or offering to supply or administer it.

Question 16

Controlled drug defined

Answer 16

Section 2(1) Misuse of Drugs Act 1975

Controlled drug means any substance, preparation, mixture, or article specified or described in Schedule 1, Schedule 2, Schedule 3; and includes any temporary class drug and any controlled drug analogue.

Question 17

Possession in drug cases

Answer 17

In drugs cases it will be necessary for the Crown to prove that the defendant had:
Knowledge that the drug exists.
Knowledge that it is a controlled drug.
Some degree of control over it.
An intention to possess it.

Question 18

Intent defined

Answer 18

Intention to commit the act.
Intention to obtain a specific result.

Question 19

Possession intent case law

Answer 19

Circumstantial evidence from which an offender’s intent may be inferred can include:
The offender’s actions and words before, during and after the event.
The surrounding circumstances.
The nature of the act itself.
R v Collister

Question 20

Statutory presumption for supply

Answer 20

Schedule 5 MODA 1975

Heroin 0.5 grams

Cocaine 0.5 grams

Lysergide (LSD) 2.5 milligrams or 25 flakes, tablets etc

Methamphetamine 5 grams

MDMA (Ecstasy) 5 grams or 100 flakes, tablets etc

Cannabis resin/oil 5 grams

Cannabis plant 28 grams or 100 or more cigarettes

Where a controlled drug is not specified in Schedule 5 the presumptive amount for that drug is 56 grams.

Question 21

Class A controlled drugs
Very high risk of harm

Answer 21

Cocaine
Heroin
Lysergic Acid (LSD)
Methamphetamine
Psilocybine (Magic Mushrooms)

Question 22

Class B controlled drugs
High risk of harm

Answer 22

Amphetamine
Cannabis preparations oil/hash
GHB (Fantasy)
MDMA (Ecstasy)
Morphine
Opium
Pseudoephedrine
Ephedrine

Question 23

Class C controlled drug
Moderate risk of harm

Answer 23

Cannabis plant material (Fruit/seeds/plant)
Benzylpiperazine (BZP)
Controlled drug analogues

Question 24

R v Strawbridge
Guilty knowledge

Answer 24

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.

Question 25

Police v Emerali
Usable quantity

Answer 25

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

Question 26

Saxton v Police
Import

Answer 26

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

Question 27

R v Hancox
Importation process

Answer 27

“Importation” in the Misuse of Drugs context means the introduction or bringing in from abroad or causing to be brought in from abroad.

“Importation” involves active conduct. It does not cease as the aircraft or vessel enters New Zealand territorial limits. The process of importation exists from the time the goods enter New Zealand until they reach their immediate destination or have have ceased to be under the control of the appropriate authorities and become available to the consignee or addressee.”

Question 28

Importation

Answer 28

Importation is a process that commences at the point of origin and continues until the drugs have reached their ultimate destination in New Zealand.

Question 29

Recklessness

Answer 29

Recklessness is the conscious and deliberate taking of an unjustified risk.

Cameron v R
R v Tipple

Subjective and objective tests

Question 30

Recklessness

Answer 30

Recklessness is the conscious and deliberate taking of an unjustified risk.

Cameron v R
R v Tipple

Subjective and objective tests

Question 31

R v Rua
Produce/manufacture

Answer 31

The words “produce” or “manufacture” in section 6(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 32

R v During
Offering

Answer 32

“[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 33

R v Brown
Offering

Answer 33

“…the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.”

Question 34

Defendant’s offer to supply controlled drug methods (as per R v Brown)

Answer 34

Offers to supply a drug that he has on hand.
Offers to supply a drug that will be procured 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 the drug.

Question 35

R v Forrest and Forrest
Proving age

Answer 35

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

Question 36

R v Cox
Possession

Answer 36

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.