DRUG LIABILITES Flashcards
Section 6(1)(a), MODA 1975
Section 6(1)(a), MODA 1975 Import/Export controlled drug
- import into NZ OR export from NZ
- any controlled drug
Section 6(1)(b), MODA 1975
Section 6(1)(b), MODA 1975 Produce OR Manufacture and Controlled Drug
- produce OR manufacture
- any controlled drug
Section 6(1)(c), MODA 1975
Section 6(1)(c), MODA 1975 Supply/Administer/Offer to supply or administer Class A or Class B Controlled Drug
- supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
- any Class A controlled drug OR any Class B controlled drug
- to any other person
Section 6(1)(d), MODA 1975
Section 6(1)(d), MODA 1975 Supply/Administer/Offer Class C Controlled Drug to any person under 18 years of age
- supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
- any Class C controlled drug
- to a person under 18 years of age
Section 6(1)(e), MODA 1975
Section 6(1)(e), MODA 1975 Sells/Offers to Sell Class c Controlled Drug to persons of or over the age of 18 years
- Sell OR offer to sell
- Any Class C controlled drug
- to a person of or over the age of 18 years
Section 6(1)(f), MODA 1975
Section 6(1)(f), MODA 1975 Possession of a Controlled Drug for Supply / Administer / Offer / Sell
- have in his possession
- any controlled drug
- for any of the purposes set out in paragraphs (c), (d) or (e)
If you were given Section 6(1)(a), MODA 1975 as a liability, what case law and definitions would you need to include?
Discuss.
Section 6(1)(a), MODA 1975 Import/Export controlled drug
- import into NZ OR export from NZ
S2 of Customs and Excise Act 1996 - define import
Saxton v Police - define import
R v Hancox - defines process of imports
S53 of Customs and Excise Act 1996 - define export
Discuss proof of guilty knowledge / R v Strawbridge - any controlled drug
Define controlled drug - Section 2, MODA
Define Class A, B - Section 2, MODA
R v Emerali
If you were given Section 6(1)(b), MODA 1975 as a liability, what case law and definitions would you need to include?
Discuss.
Section 6(1)(b), MODA 1975 Produce OR Manufacture and Controlled Drug
- produce OR manufacture Define produce Define manufacture R v Rua Define when the offence is complete Discuss proof of guilty knowledge / R v Strawbridge
- any controlled drug
Define controlled drug - Section 2, MODA
Define Class A, B - Section 2, MODA
Police v Emerali
If you were given Section 6(1)(c), MODA 1975 as a liability, what case law and definitions would you need to include?
Discuss.
Section 6(1)(c), MODA 1975 Supply/Administer/Offer to supply or administer Class A or Class B Controlled Drug
- supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
Section 2 MODA - define supply, use R v Brown, R v During and R v Magginnis
define admintister
define offers to supply - can use R v During and R v Brown - any Class A controlled drug OR any Class B controlled drug
Define controlled drug - Section 2, MODA
Define Class A, B - Section 2, MODA - to any other person
define persons
If you were given Section 6(1)(d), MODA 1975 as a liability, what case law and definitions would you need to include?
Discuss.
Section 6(1)(d), MODA 1975 Supply/Administer/Offer Class C Controlled Drug to any person under 18 years of age
- supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
Section 2 MODA - define supply, use R v Brown, R v During and R v Magginnis
define admintister
define offers to supply - can use R v During and R v Brown
- any Class C controlled drug define controlled drug - Section 2, MODA define class C drug - Section 2, MODA R v Emerali - usable quantity explain guilty knowledge and R v Strawbridge
- to a person under 18 years of age
Define person
R v Forrest and Forrest
If you were given Section 6(1)(e), MODA 1975 as a liability, what case law and definitions would you need to include?
Discuss.
Section 6(1)(e), MODA 1975 Sells/Offers to Sell Class c Controlled Drug to persons of or over the age of 18 years
- Sell OR offer to sell Define sell, use 6(5) MODA1975 Define offer, including what crown must prove R v Strawbridge and guilty knowledge R v Emerali
- Any Class C controlled drug
Define controlled drug - Section 2, MODA
Define Class C - Section 2, MODA - to a person of or over the age of 18 years
Define person
R v Forrest and Forrest
If you were given Section 6(1)(f), MODA 1975 as a liability, what case law and definitions would you need to include?
Discuss.
Section 6(1)(f), MODA 1975 Possession of a Controlled Drug for Supply / Administer / Offer / Sell
- have in his possession
R v Cox - possession has two elements, mental and physical
Section 2, MODA - definition of possession - any controlled drug
Section 2, MODA - definition of controlled drug
R v Strawbridge - guilty knowledge must be proven
R v Emerali - usable quantity
Section 6(6), MODA - presumptive amounts
for any of the purposes set out in paragraphs (c), (d) or (e)
- define what the offence of 6(1)(c), (d) or (e) is - whichever the possession offence relates to i.e. for the purpose of 6(1)(c) - to supply a Class A drug to any person
R v Cox, possession
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is awareness by the accused that the substance is in his possession and an intention to exercise possession
Will be used in 6(1)(f) possession
Section 2, MODA - definition of 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.
Will be used in 6(1)(f) possession
Section 2, MODA - definition of controlled drug
Means any substance, preparation, mixture or article specified or described in schedule 1, 2 or 3 of the Act, and includes any drug analogue
Heroin is a Class A drug is defined in Schedule 1 of the Act etc etc
Will be used in all
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, the defendant’s guilty knowledge 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.
Guilty knowledge:
- the defendant knew they were in possession
- knew the substance was a controlled drug
- intended to carry out an offence against MODA
Will be used in 6(1)(f) possession, (e), class C sale
R v Emerali
The quantity of the drug must be measurable and Usable
’ … the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance’
Under section 29A, it is not necessary for the Prosecution to prove this unless the defendant puts the matter in issue.
Will be used in 6(1)(f) possession, (e), class C sale
Section 6(6), MODA - presumptive amounts
A person is presumed until the contrary is proven, to be in the possession of a CD for any of the purposes set out in 1(c), (d) or (e), if they rein possession of the CD in an amount, level or quantity at or over which the CD is presumed to be for supply
Will be used in 6(1)(f) possession, (e), class C sale
Guilty knowledge
- the defendant knew they were in possession
- knew the substance was a controlled drug
- intended to carry out an offence against MODA
Will be used in 6(1)(f) possession, (e), class C sale
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age
In practise this generally involves producing the victim’s brith certificate in conjunction with independent evidence to verify / identify the victim as the person named on the certificate
Will be used in 6(1)(d), supply to under 18, (e), class C sale
Class A/B/C controlled drug
Section 2, MODA 1975
Means the controlled drugs specified or described in schedule (1,2,3 as applies) of the Act
Shows up in all offences.
Person
Gender neutral term; proved by judicial notice or circumstantially
Offers
Express readiness to do something on behalf of another person
The prosecution must prove two elements
- the communication of the offer (actus reus)
- the intention that the other person would believe this offer to be genuine (mens rea)
R v During
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.
Will be used in 6(1)(c)(d) and (e)
Sell
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. This will commonly be money, but anything of value will suffice
Section 6(5), MODA 1975 - if it is proved that a person has supplied a CD to another person, he shall (until the contrary is proved) be deemed to have SOLD that drug to another person
Will be used in 6(1)(e)
Supply
Section 2, MODA 1975
Includes to distribute, give or sell.
To furnish or provide something that is needed or required, often in exchange for valuable consideration .
In the context of drug offending, the term ‘supply’ covers a wide range of activities designed to effect the transfer of CDs from one person to another, and to confer on the recipient that ability to use those drugs for their desired purposes
Use R v Brown, R v Maginnis, R v During
R v Magginnis
‘(Supply involves) more than the mere transfer of physical control … (it includes) enabling the recipient to apply the thing … to purposes for which he desires’
R v Brown
’ … the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence’.
(offering to supply) The defendant is guilty (of supply) in the following instances:
(1) Offers to supply a drug that he has on hand
(2) Offers to supply a drug that will be procured at some future 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 The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.
(guilt in relation to supply)
Think - caught Brown handed for supply
R v During
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.
Define administer
To direct and cause a drug to be taken into the system of another person
It is different to supply in that you are introducing the drug into another person’s system, not just providing it to them
No statutory definition; case law - R v During, R v Brown
R v Rua
The words ‘produce’ and ‘manufacture’ in Section 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug
(meaning of produce and manufacture of CD)
Think - aRe U A manufacturer or producer?
while in practise these terms are virtually synonymous, the Prosecution must specify one or the other int he charging document
Produce – changing the nature of the original substance
Manufacture – creating a different substance from the original materials
Define produce
Produce – bring something into being or to bring something into existence from its raw materials or elements.
Define manufacture
Manufacture – the process of synthesis; combining components or processing raw materials to create a new substance.
When is the offence of manufacturing complete
When the prohibited substance is created, whether or not it is in a usable form
IE methamphetamine suspended in liquid may be held to have been manufactured, though it may not be usable form
Define imports
Section 2, 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 NZ
Saxton v Police
To import includes ‘to introduce from abroad or to cause to be brought in from a foreign country’.
Define exports
Exportation is a process. It begins with the first act intended to exposit the drugs from NZ and ends when the drugs leave NZ for an overseas destination
S53 Customs and Excise Act 1996 contains the definition for exportation.
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 NZ.
R v Saxton
To import includes ‘to introduce from abroad or to cause to be brought in from a foreign country’.
(definition of importation)
Think = importing sax toys
R v Hancox
’ … The bringing of goods into the country or causing them to be bought 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 Section 6(1)(a) is a process. the element of importing exists from the time the goods enter New Zealand until they reach their immediate destination … (ie) when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee’
(definition of importation as a process)
Think = importation is a process that doesn’t cease until the courier han-d the cox to the addressee
