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CIB Selection & Induction Course Lesson Notes > Drug Dealing > Flashcards

Drug Dealing Flashcards

1
Q

Name the Act, Section, Penalty and Ingredients for Import/Export Controlled Drug.

A

Import/Export Controlled Drug

S6(1)(a) MODA 1975
Penalty: Life Imp

Imports into or exports from New Zealand / Any controlled drug

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2
Q

Name the Act, Section, Penalty and Ingredients for Produce or Manufacture Any Controlled Drug.

A

Produce or Manufacture Any Controlled Drug

S6(1)(b) MODA 1975
Penalty: Life Imp (A) / 14 Years (B) / 8 Years (C)

Produce or manufacture / any controlled drug

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3
Q

Name the Act, Section, Penalty and Ingredients for Supply/Administer/Offer to supply or Administer Class A or B Controlled Drug.

A

Supply/Administer/Offer to supply or Administer Class A or B Controlled Drug

S6(1)(c) MODA 1975
Penalty: Life Imp (A) / 14 Years (B)

Supplies or Administers Or Offers to Supply Or Administer Or Otherwise deals in / Class A or B controlled drug / to any person

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4
Q

Name the Act, Section, Penalty and Ingredients for Supply/Administer/Offer Class C Controlled Drug to persons under 18 years of age.

A

Supply/Administer/Offer Class C Controlled Drug to persons under 18 years of age

S6(1)(d) MODA 1975
Penalty: 8 Years

Supplies or Administers Or Offers to Supply Or Administer Or Otherwise deals in / Class C controlled drug / to any person under the age of 18 years old

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5
Q

Name the Act, Section, Penalty and Ingredients for Sells or offers to sell Class C Controlled Drug to persons of or over 18 years of age.

A

Sells or offers to sell Class C Controlled Drug to persons of or over 18 years of age

S6(1)(e) MODA 1975
Penalty: 8 Years

Sells OR offers to sell / Class C Controlled drug / to any person of or over the age of 18 years old

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6
Q

Name the Act, Section, Penalty and Ingredients for Possession of a Controlled Drug for Supply/Administer/Sell/Offer.

A

Possession of a Controlled Drug for Supply/Administer/Sell/Offer.

S6(1)(f) MODA 1975
Penalty: Life (A) / 14 Years (B) / 8 Years (C)

Has in his possession / any controlled drug / for any of the purposes set out in paras (c), (d) or (e).

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7
Q

What are the ‘must know’ case laws for drug dealing?

A 
Saxton v Police
R v Hancox
R v Strawbridge
Police v Emerali
R v Rua
R v Maginnis 
R v During
R v Brown
R v Forrest and Forrest
Warner v Metropolitan Police Commissioner
R v Mohan
R v Waaka
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8
Q

What are the ‘relevant’ case laws for drug dealing?

A 
R v Martin
Re Parke
R v Donald
R v Knox
R v Wildbore
R v Hooper and Another
R v Clancy
Sullivan v Earl of Caithness
R v Cox
R v Wentworth
R v Collister
Moore v Police
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9
Q

What is the definition of ‘importation’ and where is it found?

A

S2 Customs and Excise Act 1996

Importation 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.

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10
Q

What does Saxton v Police state regarding importation?

(Def posted parcel containing cannabis resin from England to New Zealand, argued he had not imported as he did not bring them into NZ himself)

A

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

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11
Q

When does criminal liability arise with regard to the drug importation process?

A

As soon as the drugs cross New Zealand’s border, even if they are intercepted and never reach the addressee.

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12
Q

What does R v Hancox state regarding drug importation?

Defendant was arrested when she cleared a postbox containing two parcels of MDMA tablets

A

The bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand’s territorial limits. Importing into New Zealand for the purposes of S6(1)(a) is a process. The element of importing exists from the time the goods enter New Zealand until they reach their ultimate 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.

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13
Q

What three things must the Crown prove with regard to the Defendant’s mens rea when importing drugs?

A
  1. They knew about the importation
  2. They knew the imported substance was a controlled drug AND
  3. Intended to cause the importation.
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14
Q

Is willful blindness sufficient to prove guilty knowledge?

A

Yes - proof that the Defendant deliberately turned a blind eye to the facts will suffice.

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15
Q

What does R v Martin state regarding willful blindness?

(The Defendant was arrested at AKL airport with $4mil of cocaine in her suitcase and claimed to have no knowledge it was there, despite receiving it in suspicious circumstances from Nigerian organized criminals)

A

It will suffice if the Crown can prove beyond reasonable doubt that the accused had her suspicions aroused as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance. If that is proved, the law presumes knowledge on the part of the accused. The fault lies in the deliberate failure to inquire when the accused knows there is a reason for inquiry.

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16
Q

What is the definition of the time of exportation, and where is it found?

A

S53 Customs and Excise Act 1996

For the purposes of this Act, the time of exportation is the time when the exporting craft leaves the last customs place at which that craft calls immediately before proceeding to a point outside New Zealand.

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17
Q

What is the definition of New Zealand, and where is it found?

A

S2 Customs and Excise Act 1996
New Zealand means the land and the waters enclosed by the outer limits of the territorial sea of New Zealand.

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

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18
Q

What is the definition of ‘controlled drug’ and where is it found?

A

S2 MODA 1975
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.

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19
Q

What is a controlled drug analogue? What are they classed as?

A

A substance with a structure substantially similar to a controlled drug, but is not specifically listed in schedules to MODA 1975. Controlled drug analogues are classified as Class C irrespective of the class of drug they resemble.

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20
Q

What is a Class A controlled drug? List 5 examples.

A

A controlled drug specified or described in Schedule 1 to MODA 1975.

The misuse of Class A controlled drugs poses a very high risk of harm to individuals and to society.

  1. Cocaine
  2. Heroin
  3. Lysergide (LSD)
  4. Methamphetamine
  5. Psilocybine (Magic Mushrooms)
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21
Q

What is a Class B controlled drug? List 7 examples.

A

A controlled drug specified or described in Schedule 2 to MODA 1975.

The misuse of Class B controlled drugs poses a high risk of harm to individuals and to society.

  1. Amphetamine
  2. Cannabis preparations (Oil, hashish)
  3. GHB (Fantasy)
  4. MDMA (Ecstasy)
  5. Morphine
  6. Opium
  7. Pseudoephedrine
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22
Q

What is a Class C controlled drug? List 4 examples.

A

A controlled drug specified or described in Schedule 3 to MODA 1975, and includes any controlled drug analogue.

The misuse of Class C controlled drugs poses a moderate risk of harm to individuals and to society.

  1. Cannabis plant
  2. Cannabis seeds
  3. Benzylpiperazine (BZP)
  4. Controlled drug analogues
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23
Q

Are there any class exceptions to the import/export of controlled drugs?

A

No - the offences apply to any controlled drug, except those in part 6 of Schedule 3.

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24
Q

Is it a defence to possess something that you genuinely believe is not a controlled drug?

A

No - for a person to be guilty they must have guilty knowledge. BUT it is not necessary for the Crown to prove such knowledge, guilty knowledge will be presumed in the absence of evidence to the contrary. The Defendant must raise reasonable doubt as to their state of mind.

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25
Q

What does R v Strawbridge state regarding guilty knowledge?

(Defendant claimed upon conviction for cultivating cannabis that she did not know the plants she had cultivated were cannabis)

A

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.

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26
Q

Is a mistake as to the nature of the controlled drug a defence?

A

No - it is not a defence, for example, to a charge of supplying heroin if the defendant believed the drug was in fact cocaine.

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27
Q

What is the threshold for quantity of drugs in a drug offence?

A

The quantity must be useable and measureable, however the prosecution does not have to prove a ‘useable’ quantity unless the defendant puts the matter in issue.

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28
Q

What does Police v Emerali state regarding drug quantities?

Defendant was charged for possessing minute quantities of cannabis following a search warrant at his home address

A

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

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29
Q

What does R v Rua state regarding manufacturing controlled drugs?

(Defendant was charged with manufacturing methamphetamine after Police located a clan lab at his address)

A

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.

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30
Q

What is the difference between ‘producing’ and ‘manufacturing’?

A

Producing can be described as changing the nature or the original substance, and manufacturing as creating a different substance from the original materials.

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31
Q

What is the definition of ‘producing’ and where is it found?

A

S2 MODA 1975

Produce includes compound, and production has a corresponding meaning.

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32
Q

What does Re Parke state regarding producing controlled drugs?

(The defendant was charged with producing Psilocybine after drying and pulverising magic mushrooms and placing the powdered material into capsules)

A

The accused dried the mushroom material and pulverised it for easier consumption but he produced nothing new and brought nothing into being - he did not “produce” psilocybine.

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33
Q

What are two examples of manufacturing drugs?

A

Manufacturing methamphetamine from pseudoephedrine, or heroin from morphine.

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34
Q

When is the offence of producing or manufacturing complete?

A

When the prohibited substance is created, whether or not it’s in a useable form.

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35
Q

What are the provisions of S29B of MODA 1975, in relation to cannabis preparations?

A

That a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognizable as plant material, e.g. producing cannabis oil or baking a cannabis cake, which effectively upgrades Class C cannabis plant to a Class B cannabis preparation.

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36
Q

What is the definition of ‘supply’ and where is it found?

A

S2 MODA 1975

Supply includes distribute, give and sell.

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37
Q

What does R v Maginnis state regarding possession for supply?

(Defendant claimed package containing 227g of cannabis resin in his car had been left there by a friend and was later to be collected by that friend)

A

Supply involves more than mere transfer of physical control, it includes enabling the recipient to apply the thing to purposes for which he desires.

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38
Q

What does the term ‘distribution’ mean? When is distribution complete?

A

Distribution relates to the supply of drugs to multiple people. It is complete when the defendant has done all that is necessary to accomplish delivery of the drug to others.

39
Q

What dose R v Donald state regarding distribution?

(Defendant caught measuring out 35g of heroin into smaller quantities. Claimed he was dividing it up for several joint owners)

A

Supply includes the distribution of jointly owned property amongst it’s co-owners.

40
Q

What is ‘giving’? When is giving complete?

A

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 drugs are placed under the control of a willing recipient.

41
Q

What does R v Knox state regarding giving?

(The defendant received LSD in the mail from his girlfriend in Amsterdam and claimed he was holding the drugs to give back to her)

A

‘Giving’ includes ‘giving back’

42
Q

Can giving occur without an active transfer of drugs? How?

A

Yes - where one person passively permits another to help themselves from a cache of drugs.

43
Q

What does R v Wildbore state regarding giving?

(Def kept a supply of LSD in a locked shed on her property and left key in pre-arranged location, allowing a friend to help herself)

A

It is unnecessary that the accused be shown to perform some positive act of transmission… It is sufficient if there is a transfer of physical custody for the purpose of meeting the wants or requirements of the other person.

44
Q

What is a ‘sale’ of drugs? Must there be money exchanged?

A

When a quantity or share in a drug is exchanged for some valuable consideration, most commonly money but anything of value will suffice.

45
Q

What does Black’s Law Dictionary state regarding the definition of administering?

A

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.

46
Q

What are some examples of ‘administering’ controlled drugs?

A
  • Injecting a person with heroin
  • Heating cannabis resin while another person inhales the smoke
  • Slipping date rape drugs in the drink of another
47
Q

What two things must the prosecution prove in a charge of offering to supply or administer?

A
  1. The communicating of an offer to supply or administer a controlled drug (actus reus)
  2. An intention that the other person believes the offer to be genuine (mens rea)
48
Q

What does R v During state regarding offering to supply or administer drugs?

A

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.

49
Q

What does R v Brown state regarding offering to supply or administer drugs?

A

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

50
Q

When offering to supply or administer drugs, is it necessary that the crown prove the defendant had the actual capacity to supply the drugs?

A

No, as per R v Brown.

51
Q

What are four ways in which the offence of offering to supply a controlled drug can arise?

A
  1. Offers to supply a drug on hand
  2. Offers to supply a drug that will be procured at some later 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.
52
Q

What does R v Brown state regarding offering to supply tablets?

A

If the offerer shows some tablets to the offeree and intends the offeree to believe they are a certain drug, the reality of the matter is that it is the drug that is being offered, not the tablets irrespective of their true nature. The representation that it is the drug is the whole point of the offer.

53
Q

What is sentencing based on when the defendant intend to rip off a person by offering something that is not really a drug?

A

Sentencing will be based on the equivalent dishonesty offence.

54
Q

What does R v Hooper and Another state regarding ‘otherwise deals’?

A

In terms of ‘otherwise dealing’ in a drug the example which readily comes to mind is barter or exchange.

55
Q

Why are there specific offences for persons under 18 with regard to drug dealing?

A

The legislation recognises the vulnerability of young people and the fact that drug use is likely to have a greater impact on them than on an adult.

56
Q

How is proof of age adduced by the prosecution?

A

In practice this generally involves producing the victim’s birth certificate in conjuction with independent evidence that identifies the victim as the person named in the certificate.

57
Q

What does R v Forrest and Forrest state regarding proof of age?

A

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

58
Q

What does R v Clancy state regarding proof of age?

A

The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother… Production of the birth certificate, if available, may have added to the evidence but was not essential.

59
Q

What is the presumption under S6(5) MODA 1975 when a drug is supplied to person over 18? What is the effect of this provision?

A

The presumption is that it has been sold to that person in the absence of evidence to the contrary. The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale.

60
Q

What are the two distinct types of possession?

A

Actual, when the thing in question is in a person’s physical custody.

Constructive, when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.

61
Q

What does Warner v Metropolitan Police Commissioner state regarding possession?

A

Ideally, a possessor or a thing has complete physical control over it, he has knowledge of it’s existence, it’s situation and it’s qualities, he has recieved it from a person who intends to confer possession of it, and he has himself the intention to possess it exclusively of others.

62
Q

What does Sullivan v Earl of Caithness state regarding possession?

(Defendant was convicted of being in possession of firearms without a licence, even though his firearms were stored at his mother’s house in another county).

A

Possession includes “not merely those who have physical custody of firearms… but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at another location”

63
Q

What is the definition of constructive possession with regard to drugs cases and where is it found?

A

S2 MODA 1975

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.

64
Q

What does proof of possession require?

A

A physical element (actus reus) and a mental element (the mens rea)

65
Q

What does R v Cox state regarding possession?

A

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 an intention: knowledge in the sense of an awareness by the accused that the substance is in his possession, and an intention to exercise possession.

66
Q

What does to control mean?

A

To control something means to exercise authoritative or dominating influence over it. A person can control an item that is not in their physical custody, and also have something in their physical custody that they have no control over.

67
Q

What four things must be proven by the prosecution in possession of drugs cases?

A
  1. Knowledge that the drug exists
  2. Knowledge that it is a controlled drug
  3. Some degree of control over it
  4. An intention to possess it
68
Q

What does Simester & Brookbanks: Principles of Criminal Law state regarding intent?

A

A person “intends to do an action (or to bring about some consequence) if he;

  1. Wants to do that action
  2. Believes that it is possible for him to achieve something he wants by doing that action (or by bringing about that consequence) and;
  3. Behaves as if he does because of his desire or belief.
69
Q

What is the meaning of intent?

A

A person does something intentionally if they mean to do it, they desire a specific result and act with the aim or purpose of achieving it.

70
Q

What does R v Mohan state regarding intent?

A

Intent involves a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence.

71
Q

What does R v Waaka state regarding intent?

A

A fleeting or passing thought is not sufficient, there must be a firm intent or a firm purpose to effect an act.

72
Q

Can secondary outcomes be seen as to have been intended?

A

Yes, if that outcome was foreseen as certain to occur.

73
Q

What does R v Wentworth state regarding secondary intent?

A

Intention is normally taken to embrace both ultimate (desired) consequences and incidental (undesired but foreseen) consequences so long as the latter are foreseen with sufficient certainty when the course of action is deliberately embarked upon.

74
Q

Who proves the offender’s intent? How is this done?

A

The onus is generally on the prosecution to prove the offender’s intent beyond reasonable doubt. Admissions are potentially good evidence, however it is good practice to support these with circumstantial evidence from which their intent can also be inferred.

75
Q

What does R v Collister state regarding intent?

(Two Police Officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money. Although no express demand for money was made, it was held that the defendant’s intent could be inferred from the circumstances).

A

The demeanor of the prisoner and the circumstances of the case are such that an ordinary reasonable man would understand that a demand for money was being made on him.

76
Q

What three things can circumstantial evidence from which an offender’s intent may be inferred include?

A
  1. The offender’s actions and words before, during and after the event.
  2. The surrounding circumstances.
  3. The nature of the act itself.
77
Q

What three additional measures can be used to prove intent in drugs supply cases?

A
  1. Admissions
  2. Circumstantial evidence (packaging, scales, tick book)
  3. Statutory presumption under S6(6) (quantities for supply)
78
Q

What is the statutory presumption made in S6(6) of MODA 1975?

A

For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d) or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).

79
Q

What is the effect of the statutory presumption made in S6(6)?

A

The effect is to reverse the onus of proof - it is up to the defendant to prove on the balance of probabilities that the drugs were not intended for supply.

80
Q

What are some examples of drugs and their presumptive amounts? Where is this found in MODA 1975?

A 
Schedule 5 to MODA 1975
Heroin - 0.5g
Cocaine - 0.5g
Lysergide (LSD) - 2.5mg or 25 flakes, tabs etc
Methamphetamine - 5g
MDMA - 5g or 100 flakes, tabs etc
Cannabis resin/extract (oil) - 5g
Cannabis plant - 28g or 100 or more cigarettes.
81
Q

Where a controlled drug is not specified in Schedule 5 to MODA, what is the presumptive amount for supply?

A

56g.

82
Q

What are the provisions of S6(2A) of MODA?

A

Everyone who conspires to commit an offence against S6(1) is liable on conviction to imprisonment for 14 years (A), 10 years (B) or 7 years (any other case)

83
Q

What three elements must the Crown prove for a charge under S12A(1) (Supplying Equipment/Precursors etc)

A
  1. That the defendant has supplied, produced or manufactured equipment, material or precursors
  2. That those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants,
  3. That the Defendant knows those items are to be used for such an offence by another person.
84
Q

What does it mean to produce or manufacture, in the context of supplying equipment and precursors?

A

In this context they are not defined, but are wide terms that cover the making or creating of the relevant items or substances, and may range from skilled, commercial productions to constructing homemade items from ad hoc parts.

85
Q

Is the term ‘equipment’ in the context of supplying equipment and precursors defined by statute? What does it mean?

A

No. It will include the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process.

86
Q

Is the term ‘material’ in the context of supplying equipment and precursors defined by statute? What does it mean?

A

No. 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.

87
Q

In the context of supplying equipment and precursors, what must be proven in relation to the items and their capability?

A

That they are capable of being used in the process of producing or manufacturing controlled drugs or of cultivating prohibited plants.

88
Q

What is the Oxford English Dictionary definition of ‘precursor’?

A

A substance from which another is formed, especially by metabolic reaction.

89
Q

What is the MODA definition of precursor substance, and where is it found?

A

S2 MODA 1975

Precursor substance means any substance specified or described in Part 1 or Part 2 or Part 3 of Schedule 4.

90
Q

What are some examples of precursors listed in Schedule 4 of MODA?

A 
Acetic anhydride (heroin)
Lysergic acid (Lysergide (LSD))
Ephedrine/Pseudoephedrine (Meth)
91
Q

In the context of supplying equipment and precursors, what must be proven with regard to the supplier’s guilty knowledge?

A

It must be proved that the accused knew the items were to be used (in the future) in the commission of a specified offence.

92
Q

What does Simester and Brookbanks: Principles of Criminal Law state regarding knowledge?

A

Knowing means ‘correctly believing’ the defendant may believe something wrongly, but cannot ‘know’ something that is false.

93
Q

What three elements must the Crown prove for charges under S12A(2) - Possession of equipment/precursors?

A
  1. That the defendant has equipment, material or precursors in his possession.
  2. That those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants.
  3. That the defendant has the intention that those items are to be used for such an offence, either by himself or another person.
94
Q

What were the three findings in Moore v Police relevant to S12A(2) - Possession of equipment/precursors offences?

A
  1. The necessary intention relates to something which is to be done in the future… Proof of use in the past does not constitute an offence under the section.
  2. The intention of the person in possession may be to use the equipment or material personally for the specified offences or that someone else will do so.
  3. The 12A(2) offence… may be proved whether or not the equipment or material is actually used for the specified offences and whether or not there is proof of steps taken which would be sufficient to constitute an attempt.

CIB Selection & Induction Course Lesson Notes (22 decks)

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