Definitions

Question 1

Define Importation

Answer 1

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 2

Define New Zealand

Answer 2

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

Question 3

Define Controlled Drug

Answer 3

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 4

Define Controlled Drug Analogue (CDA)

Answer 4

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

So an analogue is 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 to the Act.

For example, a substance with a very similar chemical structure to that of methamphetamine, and which therefore poses a very similar risk to the user, would not on analysis be methamphetamine, but would be an analogue of methamphetamine, and therefore would itself be a controlled drug.

CDA are classified as class C

Question 5

Define Producing

Answer 5

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 6

Define Manufacturing

Answer 6

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 7

Define Supply

Answer 7

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

Supply includes distribute, give, and sell

Question 8

Define Distributing

Answer 8

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

Includes distributing to joint owners.

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

Question 9

Define Giving

Answer 9

“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.

Giving can occur without an active transfer of the drugs. E.G Where a person passively permits another to help themselves from a cache of drugs.

Question 10

Define Selling

Answer 10

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 11

Define Administering

Answer 11

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

E.G 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 12

Define Otherwise Deals

Answer 12

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 13

Define Person

Answer 13

The prosecution must prove that the drugs were supplied to another person, although it is not necessary to identify that person.

The offence is gender neutral, and the fact that the person supplied is a “person” is generally accepted by judicial notice or proved by circumstantial evidence.

Age is relevant for class C offences (d) and (e)

Question 14

Define Potential Possession

Answer 14

For the purposes of this Act, the things which a person has in his possession include anything subject to his control which is in the custody of another.

Question 15

Define Control

Answer 15

To “control” something means to exercise authoritative or dominating

influence or command over it. A person can control an item that is not in their physical custody, and conversely can have something in their physical custody that they have no control over - for example, a person does not have control over something that has been slipped into his pocket without his knowledge, although he has custody of it.

Question 16

Define Joint Possession

Answer 16

Where more than one person has access to drugs of saleable quantity, they may be charged jointly with possession. However, in such a situation you must prove that there was a shared intention to SELL the drugs.

Question 17

Define Attempted Possession

Answer 17

It is an offence to attempt to gain possession of a drug, a charge which covers someone obtaining something innocuous in the mistaken belief that it is a drug.

The Court in this matter held that 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.

Question 18

Define equipment in relation to 12A MODA75

Answer 18

The term “equipment” is not defined by statute, but will include the
implements, apparatus and other hardware used in the manufacturing, producing or cultivating process.

Examples may include: glassware, condensers, heating mantles etc used in the manufacture of methamphetamine; or pots, lights, timers, water pumps etc used in cultivating cannabis.

Question 19

Define Material in relation to 12A MODA75

Answer 19

“Material” is also not defined; in practice the term is likely to include
anything used in the process of producing, manufacturing or cultivating that cannot be properly described as equipment.

Examples may include: chemicals (other than those classified as precursors); documents providing instructions on the manufacturing or cultivating process; or fertilisers, nutrients etc used in cultivation.

Question 20

Define Precursor substance

Answer 20

The word “precursor” means “fore-runner” - something that comes before something else. In this context it refers to a substance that is the starting point in a chemical process that will result in the creation of a new drug.

Precursor substance means any substance specified or described in Part 1 or Part 2 [[or Part3]] of Schedule 4

Examples of some of the precursors listed in Schedule 4 are:
Acetic anhydride (precursor to heroin) Lysergic acid (precursor to LSD) Ephedrine / pseudoephedrine (precursors to methamphetamine)

Note that ephedrine and pseudoephedrine are scheduled both as Class B controlled drugs in Schedule 2, and as precursors in Schedule 4.

Question 21

Define Evidential Material

Answer 21

In relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 22

Define Private Communication

Answer 22

Private communication-

(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but

(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so

Question 23

Define Interception Device

Answer 23

Interception device-

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but

(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

Question 24

Define Visual Surveillance Device

Answer 24

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but

(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

Question 25

Define Surveillance Device

Answer 25

means a device that is any 1 or more of the following kinds of devices:
(a) an interception device:
(b) a tracking device:
(c) a visual surveillance device.

Question 26

Define Tracking Device

Answer 26

(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or a person:
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but

(b) does not include a vehicle or other means of transport, such as a boat or helicopter