Drug Dealing

Question 1

The importing process

Answer 1

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.

Question 2

Mens rea of importing

Answer 2

The Crown must prove not only that the defendant’s conduct in some way contributed to the actual importation 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 imported substance was a controlled drug, and
 intended to cause the importation.

Question 3

Wilful blindness meaning

Answer 3

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

In this matter the Judge stated “… it will suffice if the Crown can prove beyond reasonable doubt that the accused (importer) 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 reason for inquiry”.

Question 4

Examples of Class A controlled drugs

Answer 4

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

Question 5

Examples of Class B controlled drugs

Answer 5

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 6

Examples of Class C controlled drugs

Answer 6

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

Question 7

Guilty knowledge

Answer 7

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.

Question 8

Mistake as to nature of controlled drug`

Answer 8

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 9

Usable Quatity

Answer 9

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

Traces of a controlled drug may also provide circumstantial evidence of previous possession of larger quantities of the drug.

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 10

Producing vs Manufacturing

Answer 10

Prosecution MUST specify one or the other in any charging document. Therefore from an investigation point of view Police should treat ‘produce’ or ‘manufacture’ as separate offences using the definitions and examples that follow.

As such ‘producing’ can be described as changing the nature of the original substance and ‘manufacturing’ as creating a different or new substance from the original materials.

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

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

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 11

Cannabis preparations

Answer 11

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 oil 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 upgrading what was originally Class C cannabis plant to a Class B cannabis preparation.

Question 12

Distributing meaning

Answer 12

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 13

Giving meaning

Answer 13

“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 14

Selling meaning

Answer 14

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 15

Administering meaning

Answer 15

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 Dictionary16

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 16

Offering to supply or administer

Answer 16

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).

 ‘Offer to supply’ is to be given its ordinary meaning and not any technical meaning.
 There may be more than one person guilty of ‘offering to supply’ in any one transaction.
 An intermediary/agent may be guilty of ‘offering to supply’ his/her own principal. It is not correct to use civil law analyses, which would indicate that only the two principal parties contract or deal with each other. In the criminal law every party involved may actually ‘offer to supply’ or be a party (section 66 of the Crimes Act 1961) to such an offer.
 ‘Offer to supply’ in sections 6 and 7 of the Misuse of Drugs Act 1975 has a wide meaning and includes an offer to arrange for someone else to hand over a drug to the person to be supplied.

Question 17

“Otherwise” deals meaning

Answer 17

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.

In Hooper and Another19 the Court said “in terms of ‘otherwise dealing’ [in a drug] the example which readily comes to mind is barter or exchange”.

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.

Question 18

To any other person meaning

Answer 18

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.

The age of the person is not relevant to offences involving Class A and B controlled drugs under paragraph (c), but is relevant under paragraphs (d) and (e) involving Class C controlled drugs.

Question 19

Person under 18 meaning

Answer 19

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.

It is therefore an offence to provide or offer Class C controlled drugs to a person under 18 by any means, whether by distributing, giving, selling or administering the drugs.

As age is an essential element of a charge under paragraph (d) the prosecution must prove the age the person to whom the drugs were supplied.

Question 20

Proof of age

Answer 20

Where age is an essential element of a charge, the prosecution must prove the victim’s age at the time of the alleged offence, using the best evidence available to do so.

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

Ideally the independent evidence will be that of a parent, but that will not always be possible.

Question 21

Possession meaning

Answer 21

Proving possession of controlled drugs in New Zealand requires proof of two separate elements. R v Cox22 held the two separate elements to be proved are the physical and mental elements.

Physical Element:
This element requires physical custody or control over the drugs. This can be either actual or potential.

Actual custody or control:
Means that the person actually has the drug in their custody or control. For example, if the drug is found in their pocket, or in a vehicle that person has the keys for.

Potential custody or control:
Section 2(2) of MODA states that “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.” An example of this is if a person is storing their drugs at a friend’s house. A defendant can exercise control of property through an agent, however exercise of control must be established.

Mental Element:
The mental element requires a combination of knowledge and intention.

Knowledge:
Knowledge requires that the defendant had “knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed)”. The defendant must also have knowledge “that what is in his possession is a controlled drug; although he need not know its exact nature”23.

Intention: Willingness to possess
The defendant must have intended to exercise possession.

Question 22

knowledge meaning

Answer 22

The components that provide knowledge of existence, and the significance of such knowledge, are discussed in the following case law. They include:

 the defendant must be aware that they possess the substance
 the defendant identifies the substance as a controlled drug, even if there is no substance to be analysed to prove their assertion
 physical custody presumes knowledge, unless otherwise proven.

Question 23

Knowledge and intent

Answer 23

This phrase relates to the illegal intent of the person. In considering whether a person knows the qualities of a substance, you need to establish that they:

 know they have the substance
 know the substance’s nature or qualities (s29 deals with mistaken beliefs)
 intend to use the substance in a way that allows you to charge them with possession.

Knowledge and intent are the crucial elements. Take, for example, the situation in which a woman cultivates her son’s cannabis plants in the genuine belief that they are merely house plants.

Question 24

Lack of knowledge caused by memory lapse

Answer 24

The case of Martin deals with lack of knowledge caused by memory lapse rather than lacking initial knowledge. In this case, the defendant was convicted of possession of cannabis seeds which were discovered in boots belonging to him. He acknowledged that he had placed the seeds there, but had forgotten about them. He did however; remember that he had placed the 200 seeds in four different bags because they were from different crops and plants.

On appeal, it was argued that the fact that he had forgotten their existence meant that he should not have been convicted because he no longer had the requisite knowledge.

The Court of Appeal held that it was essential to establish whether the defendant’s memory loss was complete, or merely that knowledge of the seeds was not always at the forefront of the defendant’s mind. Because this had not been clearly established at the initial trial, the Court of Appeal ordered a retrial to determine these issues.

Question 25

Control meaning

Answer 25

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 26

Joint possession meaning

Answer 26

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 27

Attempted possession meaning

Answer 27

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.

Question 28

Possession in drugs cases

Answer 28

In drugs cases it will be necessary for the Crown to prove that the defendant had:

 knowledge that the drug exists
 knowledge that it is a controlled drug
 actual physical control or some degree of control over it
 an intention to possess it

Question 29

Intent in criminal law

Answer 29

Deliberate act:
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”. Simester and Brookbanks34

Question 30

Proving intent in drugs cases

Answer 30

In drugs cases additional evidence of intent to supply may be inferred from:

 admissions
 circumstantial evidence (packaging, scales, cash, tick lists etc)
 the statutory presumption under section 6(6).

Question 31

Purpose of possession - presumptive quantity

Answer 31

Section 6(6) of the Misuse of Drugs Act 1975 creates a presumption of law that if a person has possession of a specified amount of any drug, that person will be presumed to have that drug for one of the purposes set out in s6(1)(c), (d) or (e), unless they can prove otherwise.

Question 32

Schedule 5 Misuse of Drugs Act 1975

Answer 32

Heroin 0.5 grams
Cocaine 0.5 grams
Lysergide (LSD) 2.5 milligrams or 25 flakes, tablets etc
Methamphetamine 5 grams
MDMA (Ecstasy) 5 grams or 100 flakes, tablets etc
Cannabis resin and extract (oil) 5 grams
Cannabis plant 28 grams or 100 or more cigarettes

Question 33

Conspiracy meaning

Answer 33

A criminal conspiracy consists of an agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action.

Question 34

Equipment / Precursors etc for Drug Dealing Offence

Answer 34

Section 12A creates the offences of supplying, producing or manufacturing equipment, material and precursors, or possessing such items, for the purpose of producing/manufacturing controlled drugs, or of cultivating prohibited plants.

Question 35

What crown need to prove for Supplies equipment / precursors charge

Answer 35

 that the defendant has supplied, produced or manufactured equipment, material or precursors
 that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
 that the defendant knows those items are to be used for such an offence by another person.

Question 36

Precursor Substance meaning

Answer 36

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.

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)

Question 37

Intent that it is to be used meaning

Answer 37

The case of Moore v Police47 provides some useful guidelines on a person’s intent in relation to section 12A(2) offences. It must be proved that the defendant intended the items to be used some time in the future.

It is not necessary that the defendant intends to use the items himself - it is sufficient if he intends the items to be used by another person.

While it is necessary to prove the defendant’s intention that the items be used in a specified offence, it is not necessary to prove that the offence was actually committed or even attempted.