DRUG LIABILITES Flashcards by LUCY B

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

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Section 6(1)(b), MODA 1975

Section 6(1)(b), MODA 1975
Produce OR Manufacture and Controlled Drug

produce OR manufacture
any controlled drug

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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

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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

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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

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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)

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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