Definitions and Case Law Flashcards
Imports
Imports
Importation
(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
sec. 2 Customs and Excise Act 1996
Exports
Exports
Time of Exportation
For the purpose of this Act, the time of exportation is the time when the exporting craft leaves the las Customs place at which the craft calls immediately before proceeding to a point outside New Zealand
sec. 53 Customs and Excise Act 1996
Saxton v Police
To import includes “to introduce from abroad or to cause to be brought in from a foreign country”
Saxton v Police
R v Hancox
The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination… (i.e.) when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee
R v Hancox
Prove guilty knowledge (Imports/exports)
The Crown must prove not only that the defendants conduct in some way contributed to the actual importation of the drug, it must also prove the defendants guilty knowledge.
This will involve proof that the defendant
- knew about the importation and - knew the imported susbstance was a controlled drug, and intended to cause the importation
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.
R v Strawbridge
Police v Emerali
Usable Amount
IN any drug offence the quantity of the drug involved must be measurable and useable.
“….the serious offence of…. possessing a narcotic does not extend to some minute and useless residue of the substance…
Police v Emerali
Any Controlled Drug
Controlled Drug
Means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2, or Schedule 3 of this Act and includes any controlled drug analogue.
sec. 2 Misuse of Drugs Act 1975
Produce
Produce
To “produce” means to bring something into being, or bring something into existence from its raw materials or elements.
Manufacture
Manufacture
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance
R v Rua
The words “produce” or “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.
R v Rua
Complete
Complete
The offence is complete once the prohibited substance is created, whether or not it is in a useable form.
Must prove guilty knowledge (produce/manufacturing)
Must prove guilty knowledge
This will involve proof that the defendant:
- knew about the produce/manufacturing and
- knew the produce/manufacturing, substance was a controlled drug, and
- intended to cause the produce/manufacturing
Supply
Includes to distribute, give or sell
Sec 2 Misuse of Drugs Act 1975
R v Maginnis
Supply involves “more than the mere transfer of physical control… it includes enabling the recipient to apply the thing.. to the purpose for which he desires…”
Administer
In the context of drug dealing, the most appropriate meaning of “administer” is “to direct and cause a….drug to be taken into the system of” another person
Black Laws Dictionary
R v During
Offers to supply
“(An offer is) an intimation by the person charged to another that he is ready on request to supple to that other, drugs of a kind prohibited by the statue”
R v During
Offering to supply
- 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 that he will not supply that drug
Must prove guilty knowledge (supply/administering/offer)
This will include proof that the defendant:
- knew about the supply/administering/offer AND
- knew the supply/administering/offering substance was a controlled drug AND
- intended to cause the supply/administering/offer
Class A controlled drug
Class B controlled drug
Class C controlled drug
Class A controlled drug
Means any controlled drug specified or described in schedule 1 of this Act
Sec 2 Misuse of Drugs Act 1975
Class B = schedule 2 (as above)
Class C = schedule 3 (as above)
Proving Age
Proving age:
The best possible evidence in circumstances should be adduced by the prosecution in proof of (the victims) age
R v Forrest and Forrest
In practice, this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate
Sells
A sale occurs when a quantity or share in a drug is exchanged for valuable consideration. Will usually be money but anything of value will suffice
Dealing with controlled drugs
For the purposes of paragraph (e) subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person he shall be deemed until the contrary has been proved to have sold that controlled drug to that other person Sec 6(5) Misuse of Drugs Act 1975
Offers to sell
The prosecution must prove two elements
- the communicating of or offer to sell a controlled drug
- the intention that the other party believed the offer to be genuine
Actual possession
Actual possession arises where the thing in question is in a persons physical custody; it is in or on their person or immediately at hand.
Ideal possession
The term “possession” must be given a sensible and reasonable meaning in its context. Ideally a possessor of a thing has
- complete physical control over it
- knowledge of its existence, it’s situation and its qualities
Warner V Metropolitan Police Commissioner
Possession
Constructive
Possession
For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another
Sec 2(2) Misuse of Drugs Act 1975
Constructive Possession
Constructive possession arises when something is not in a persons physical custody, but they have ready access to it or can exercise control over it.
R v Brown
“… The making of such an intimation with intent that it be understood as a genuine offer, is an offence…”
Sullivan v Earl of Caithness
(Possession includes) not merely those who have physical custody of firearms….but those who have firearms under their control or behest, even though for one reason or another they may be kept at another location…”
