Definitions

Question 1

Definition of New Zealand

Answer 1

New Zealand means the land and waters enclosed by the outer limits of territorial sea of NZ

The outer limit of the territorial sea is 12 nautical miles from the land mass of NZ.

Question 2

Class A definition

Answer 2

It means any controlled drug specified or described in schedule 1 to this act. Includes:

Heroin, cocaine, Meth, LSD, psilocybine

Question 3

Class B definition

Answer 3

It means any controlled drug specified or described in schedule 2 to this act Includes:

GHB, MDMA, Morphine, Opium, Pseudo, Amphetamine, Cannabis prep

Question 4

Class C

Answer 4

It means any controlled drug specified or described in schedule 3 of the act and includes any controlled drug analogue.

Includes:

Codeine, CDA, Marijuana leaf, BZP, Marijuana seed

Question 5

Produces or Manufactures a Controlled Drug, 6(1)(b)

Answer 5

Sec 2 MDA – Produce includes compound and production has a corresponding meaning

Compound means to create a whole by mixing or combining two or more elements or parts

For manufacturing or producing offence is complete once substance created whether or not in useable form

Question 6

Supply

Answer 6

• The term distribution means supplying the drug to multiple people
• Giving means handing over in some way or transferring to another person. Act of giving complete when recipient accepts possession. Giving can occur without an active transfer of the drugs e.g. where a person permits another to help themselves to a cache of drugs.
• Selling occurs when a quantity or share in drug exchanged for a valuable consideration, doesn’t have to be money.

Question 7

Offering to supply or administer:

Prosecution must prove two elements:

Answer 7

• The communicating of an offer to supply or administer controlled drug (actus)

• The intention that the other person believes the offer to be genuine (mens rea) Although crown must prove Defendant intended the other person believe the offer, not necessary to prove he actually had the capacity to supply the drugs.

Although crown must prove Defendant intended the other person believe the offer, not necessary to prove he actually had the capacity to supply the drugs.

Question 8

Actual custody or control:

Answer 8

Means person has the actual drug in their custody or control.

Question 9

Potential custody or control:

Answer 9

Section 2(2) MODA states that things which a person has in their possession include things that are subject to their control in the custody of another i.e. storing drugs at a friends house.

Question 10

Mental element – requires knowledge and intention.

Answer 10

Crown must prove in possession cases:

Knowledge drug exists

Knowledge controlled drug

Some degree of control over it

An intention to possess it

Question 11

Joint possession

Answer 11

Where more than one person has access to drugs of saleable quantity may be jointly charged however must prove shared intention to sell the drugs.

Question 12

Attempted possession

Answer 12

An offence to attempt to gain possession of a drug i.e. get grass clippings believing it is weed still can be charged.

Question 13

Intent two type

Answer 13

Intent to commit act, secondly intent to get specific result.

Proven by circumstantial evidence – offender’s actions, words, surrounding circumstances, nature of the act itself

Question 14

Proving intent in drug cases

Answer 14

Admissions, circumstantial evidence (scales, packaging, tick lists), the statutory presumption under 6(6) which states if they have a certain amount then it will be assumed it is for supply under 1(c), (d),(e).

If a person has less than the presumptive amounts then need circumstantial evidence to prove they had the intent to supply.

The presumption for supply may be rebutted if the person is able to prove on balance of probabilities they did not intend to commit a dealing offence i.e. heavy drug user

Question 15

Conspiring to deal with controlled drug, Section 6(2A

Answer 15

(a) Not exceeding 14 years where a class a controlled drug or one of the controlled drugs in relation to which the offence was committed

(b) 10 years class B

(c) 7 Years any other case Conspiracy consists of an agreed intention to commit the offence rather than any actual action.

Must be two persons involved

Question 16

Two options controlled deliveries

Answer 16

1. Clean controlled delivery – no drugs left within consignment, eliminates risk or drugs being lost and gives freedom for organising surveillance of consignment and reduces the risk of alarming targets who may have counter surveillance. At termination only importation and conspiracy charges like.
2. Leave amount of drug in consignment – leaves option of charging with possession for supply and provides emergency powers should drugs move to persons or places not covered by warrants. Remainder of drugs substituted. Any consignment with drugs requires greater security and recovery on termination is paramount.

Question 17

Intitial Action in Controlled Deliveries

Answer 17

1. Assume leadership and appoint O/C investigations, O/C Phone/Interceptions, O/C File, O/C exhibits, Customs liaison officer
2. Liaise early with Customs O/C exhibits (guidance over handling, labelling, unpacking, repacking)
3. Consider whether to conduct electronic interception to be part of controlled delivery. Must be Class A or B controlled drug or a cannabis offence under S6 MDA. If controlled delivery does not fall into these categories then will not get authority to conduct electronic interception.
4. Request customs to manipulate track and trace system
5. Contact following services ASAP – Surveillance, photography, CMC if doing electronic interception, TSU
6. Start planning operation, developing operation orders, rostering staff – once controlled delivery operation started needed staff for 24 hours

Question 18

Imports

Answer 18

(a) 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 …

Question 19

The importing process

Answer 19

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

Criminal liability arises as soon as the drugs cross New Zealand’s border, and an importer may therefore be convicted under section 6(1)(a) even if the drugs are intercepted by Customs and never reach the addressee (the intended recipient).

However the offence does not end at the 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.

Anyone who knowingly assists in facilitating the process up until that point may be liable as a party to the importation.

Question 20

Mens Rea of importing

Answer 20

The Crown must prove not only that the defendant’s conduct in some way contributed to the actual imporation of the drug , it must also prove the defendant’s guilty knowledge

This will involve proof that the Defendant:

Knew about the importation, and
Knew the important substance was a controlled drug and
Intended to cause the importation.

Question 21

Wilful blindness

Answer 21

In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice

Question 22

Any controlled drug

Answer 22

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.

Question 23

Controlled drug analogue

Answer 23

Controlled drug analogue means any substance, such as the substances specified or described in Part 7 of Schedule 3 to this Act, that has a structure substantially similar to that of any controlled drug; but does not include—

(a) Any substance specified or described in Schedule 1 or Schedule 2 or Parts 1 to 6 of Schedule 3 to this Act ; or

(b) Any pharmacy-only medicine or prescription medicine or restricted medicine within the meaning of the Medicines Act 1981; or

(c) an approved product within the meaning of the Psychoactive Substances Act 2013

Question 24

Class A controlled drugs

Answer 24

Section 2 Misuse of Drugs Act 1975
Interpretation
Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act

Class A controlled drugs are classified as such as their misuse poses a very high risk of harm to individuals and to society.

Some of the more well-known Class A controlled drugs include:
• Cocaine
• Heroin
• Lysergide (LSD)
• Methamphetamine
• Psilocybine (found in magic mushrooms)

Note - the synthetic drugs AMB-FUBINACA and 5F-ADB have now been classified as Class A controlled drugs

Question 25

Class B controlled drug

Answer 25

Class B controlled drug means the controlled drugs specified or described in Schedule 2 to this Act.

Class B controlled drugs are those that pose a high risk of harm and include:
• Amphetamine
• Cannabis preparations (such as cannabis oil and hashish)
• GHB (Fantasy)
• MDMA (Ecstasy)
• Morphine
• Opium
• Pseudoephedrine
• Ephedrine

Question 26

Class C controlled drugs

Answer 26

Class C controlled drug means the controlled drugs specified or described in Schedule 3 to this Act; and includes any controlled drug analogue

Class C controlled drugs pose a moderate risk of harm and include:
• Cannabis plant
• Cannabis seeds
• Benzylpiperazine (BZP)
• Controlled drug analogues

Question 27

Exceptions under section 6(1)(a

Answer 27

The offences of importing and exporting relate to any controlled drug, irrespective of class. However, note that the controlled drugs listed in Part 6 of Schedule 3 are not included under paragraph (a).

Question 28

Guilty knowledge

Answer 28

For a person to be guilty of an offence relating to controlled drugs they must have guilty knowledge; a person who innocently possesses something they genuinely believed was not a controlled drug has a defence.

However, although the defendant must know that the substance was a controlled drug (or at least that it had characteristics consistent with those of a controlled drug), it is not necessary for the Crown to prove such knowledge; guilty knowledge will be presumed in the absence of evidence to the contrary. It is therefore up to the defendant to raise reasonable doubt as to their state of mind.

In R v Strawbridge the defendant was convicted of cultivating a prohibited plant, claiming on appeal that she had not known the plants she had cultivated were cannabis. The Court of Appeal ordered a re-trial, holding that the offence is not absolute and that mens rea is an essential element.

Question 29

Mistake as to nature of controlled drug

Answer 29

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.

For example, it would not be a defence to a charge of supplying heroin if the defendant believed the drug he had supplied was in fact cocaine.

Question 30

Useable quantity

Answer 30

In any drug offence the quantity of drug involved must be measurable and useable.

In Police v Emirali the defendant was charged following a search warrant at his address in which minute quantities of cannabis were found. The Court of Appeal held that the purpose of the statute is not to prohibit the existence of controlled drugs per se, but to prevent their illicit use, and it was therefore necessary for the drugs found to be of a useable quantity.

Question 31

Proving useable quantity

Answer 31

While it is necessary that the amount of the controlled drug is of a useable quantity, under section 29A it is not necessary for the prosecution to prove that fact unless the defendant puts the matter in issue.

Question 32

Producing and manufacturing

Answer 32

The terms “producing” and “manufacturing” both relate to the process of creating controlled drugs. These terms have also been described as being similar. See R v Rua below;

In R v Rua6 the defendant was charged with manufacturing methamphetamine after Police located a clan lab at his address. The Court of Appeal reviewed section 6(1)(b) and held that it does not create two separate and distinct crimes – the words “producing and manufacturing” are to be read as complementary terms.

Question 33

Producing

Answer 33

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

The term is further defined in legislation as including “compound”.

To “compound” means to create a whole by mixing or combining two or more elements or parts.

Question 34

Manufacturing

Answer 34

Manufacturing is 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

Question 35

When is the offence of manufacturing complete?

Answer 35

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

For example in R v Rua8, methamphetamine in suspension in a two-layered liquid, although not capable of being used in that state, was held to have been manufactured.

Question 36

Cannabis preparations

Answer 36

Section 29B deals specifically with producing cannabis preparations.

It provides that a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material for example, producing cannabis oiI or baking a cannabis cake.

It is for the prosecution to prove that the preparation to which the charge relates contains any tetrahydrocannabinols. Further provisions are contained within the section itself.

Note : that this process has the effect of C cannabis plant to a Clas upg rading what was originally Class s B cannabis preparation. Drug Offences 16

Question 37

Section 6(1)(c)

Answer 37

Supplies Class A or Class B controlled drug

Question 38

Supply

Answer 38

To “supply” means “to furnish or provide something that is needed or desired”.

In the context of section 6(1)(c) it includes a broad range of activities designed to effect the transfer of controlled drugs from one person to another.

The term is further defined by statute:

Question 39

Distributing

Answer 39

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

In R v Donald10 the defendant was caught in the process of measuring out 35 grams of heroin into smaller quantities. He denied intending to supply the drug, claiming that he was simply dividing it up for distribution between several joint owners.

The Court in Donald11 held that supply includes the distribution of jointly owned property between its co-owners.

The distribution is complete when the defendant has done all that is necessary to accomplish delivery of the drug to others

Question 40

Giving

Answer 40

“Giving” involves handing over or in some other way transferring an item to another person.

The act of giving is complete when the recipient accepts possession, or where the drug is placed under the control of a willing recipient.

Question 41

Selling

Answer 41

A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.

Although the consideration will commonly be money, anything of value will suffice - for example exchanging a large quantity of cannabis for some real estate.

Question 42

Administering

Answer 42

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

In the context of drug dealing, the appropriate meaning of “administer” is “to direct and cause a … drug to be taken into the system” of another person. Black’s Law Dictionary

Examples of administering include: injecting a person with heroin; heating cannabis resin between two knife blades while another person inhales the smoke; causing a person to consume a “date rape” drug by slipping it into their drink without their knowledge.

Question 43

Offering to supply or administer

Answer 43

This provision prohibits the act of arousing another person’s interest in controlled drugs, or of tempting others to use them.

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).

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

Question 44

“Otherwise” deals

Answer 44

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.

When formulating a supply charge the prosecution must be as specific as the evidence allows - so, for example, where there is evidence of a sale the charge should be one of “selling a controlled drug”, rather than a generic charge of dealing in it.