Drug and Sexual Offences - Definitions and Case Law Flashcards
Saxton v Police
(SaXton - importing Xtasy)
To import includes “to introduce or bring in from abroad or to cause to be brought in from a foreign country“.
R v Hancox
(Think of people being smuggled into NZ for sexual exploitation - all attractive Russian women - the smugglers continually have their hands on their c***s)
“Importation“ involves active conduct. It does not cease as the aircraft or vessel enters the 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 ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee“. Application: imports (drug dealing)
R v Strawbridge
(An innocent woman thinks she is growing straw (tomato plants) when she is acutally growing cannabis = not guilty)
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. However 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. Application: guilty knowledge
Police v Emerali
(Emerali sounds Spanish - imagine a Spanish drug trafficker with a tiny bit of cocaine in his pocket)
(Application: usable quantity (drug dealing)
“The serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.”
Application: usable quantity (drug dealing)
R v Rua
(Rua Bioscience produce OR manufacture medicinal cannabis)
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. Application: produce/manufacture (drug dealing)
R v Donald
(After investing in Wilson parking buildings, Donald Trump is now sitting in his Trump Towers with a mountain of cocaine for supply)
Supply includes the distribution of jointly owned property between its co-owners. Application: supply (drug dealing)
R v Knox
(Knox - No X - giving the X back to it’s original possessor)
“A person who is in unlawful possession of a controlled drug, which has been deposited for safekeeping, has the intent to supply that drug to another if his intention is to return the drug to the person who deposited it with him.” Application: Intent to supply (drug dealing)
R v Wildbore
(scenario - out in the WILD with the boar, shed on property, key in hiding spot, LSD kept in shed … tells offender where the key is and permits them to access the drugs)
A “passive custodian” who relinquishes custody of a drug to meet the needs of another, has the necessary intent for supply.
Application: intent to supply (drug dealing)
R v During
(During this time I can now offer to supply you drugs)
(Application: offer to supply (drug dealing)
“(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.”
Application: offer to supply (drug dealing)
R v Brown
(H G M C - High Girls Motorcycle Club)
“… The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.”
Offering to supply a controlled drug can arise in a variety of ways:
*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 that drug.
Application: Offer to supply (drug dealing)
Person
Proven by Judicial notice or circumstantial evidence.
Rape
CA.61 S.128(2)
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis-
a) without person B’s consent to the connection; and
b) without believing on RG that person B consents to the connection.
Penetration
Section 2 (1A). CA 61
Introduction to the slightest degree is enough to effect a connection.
Proof of penetration may be established by the complainant’s evidence, medical examination, defendant’s admissions.
Proof of penetration is required, 3 ways of proving:
- Complainant’s evidence
- Medical exam
- Accused’s admissions
Genitalia
R V KOROHEKE
The genetalia comprise the reproductive organs, interior and exterior … they include the vulva and labia, both interior and exterior at the opening of the vagina.
Penis S2 CA61:
Includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female or of indeterminate sex).
Consent
A person’s conscious and voluntary agreement to something desired or proposed by another.
The Crown must prove:
- That there was an intentional act by the offender involving sexual connection with the complainant, and;
- The complainant did not consent to the sexual act (a subjective test), and;
- The offender did not believe the complainant was consenting (a subjective test), or;
- If he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).
R v COX
Consent must be full, voluntary, free and informed . . . freely and voluntarily given by a person in a position to form a rational judgement.
Eight Matters that Do Not Constitute Consent CA.61 S.128A
- Lack of protest or resistence
- Force, threat or fear of force
- Asleep or unconscious
- Affected by alcohol or drugs
- Intellectual, mental or physical impairment
- Mistake as to identity
- Mistake as to nature and quality of act
- Sexual activity to which S128A applies and indecent assault.
Unlawful Sexual Connection CA.61 S128(3)
Person A has unlawful sexual connection with person B if person A has sexual connection with person B:
a) without person B’s consent to the connection AND
b) without believing on reasonable grounds that B consents to the connection
Sexual Connection
CA.61 S.2
a) connection effected by the introduction into the genitalia or anus of one person (otherwise than for genuine medical purposes) of
- a part of the body of another person
- an object manipulated by another person
b) connection between the mouth or tongue of one person and another person’s genitalia or anus
c) the continuation of connection in a kind described
Prove Age
R V FORREST AND FORREST
The best evidence possible in the circumstance should be adduced by the prosecution in proof of the victims age. In practice usually birth certificate and independent evidence that identifies victim as person named.
“Child” in relation to Crimes Act 1961
Person under 12 years.
Indecency
(R v Court)
R V COURT
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of (the complainant)” Application: indecency
“Young person” in relation to Crimes Act 1961
Person under 16 years.
Indecent Assault
(R v Leeson)
R V Leeson
Indecent assault is an assault accompanied with circumstances of indecency.
What must the prosecution prove for indecent assault
- Intentionally assaulted victim
- Circumstances were indecent
- Complainant did not consent
- Didn’t honestly believe the complainant was consenting
- The defendant intended the conduct, that a reasonable person would find indecent if consent is an issue
Sexual violation defined
Section 128, Crimes Act 1961
(1) Sexual violation is the act of a person who -
(a) rapes another person; or
(b) has unlawful sexual connection with another person.
R v Koroheke
The genitalia comprise the reproductive organs, interior and exterior … they include the vulva (and) the labia, both interior and exterior, at the opening of the vagina
Application: genitalia
R v Cox
(Lots and lots of Cox!)
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment
Application: consent
R v Gutuama
(Gutuama - Gucci - Gucci shoes - SHOES)
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting”. Application: consent
R v Forrest and Forrest
(Forest, trees, paper)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age Application: proving age
R v Court
(Court - tennis - A tennis coach holds his student’s bottom while she serves - says it helps with her serve)
(Application: indecency)
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of (the complainant)” Application: indecency
R v Dunn
(‘Dunn’ in light of the time, place and circumstances - and it didn’t involve trifle)
Indecency must be judged in light of the time, place and circumstances. It must be something more than trifling, and be sufficient to “warrant the sanction of the law” Application: indecency
R v Leeson
(Rhymes with Neeson - “I will find you. And I will kill you. For doing an indecent act on me.”)
The definition of ‘indecent assault’ “… is an assault accompanied with circumstances of indecency … Application: indecent assault
R v Norris
(Who would be brave enough to convict Chuck Norris of indecent assault?)
If a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable
Application: indecent assault: defence
