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Study Modules > DRUG LIABILITES > Flashcards

DRUG LIABILITES Flashcards

1
Q

Section 6(1)(a), MODA 1975

A 
Section 6(1)(a), MODA 1975
Import/Export controlled drug
  • import into NZ OR export from NZ
  • any controlled drug
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2
Q

Section 6(1)(b), MODA 1975

A 
Section 6(1)(b), MODA 1975
Produce OR Manufacture and Controlled Drug
  • produce OR manufacture
  • any controlled drug
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3
Q

Section 6(1)(c), MODA 1975

A 
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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4
Q

Section 6(1)(d), MODA 1975

A 
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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5
Q

Section 6(1)(e), MODA 1975

A 
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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6
Q

Section 6(1)(f), MODA 1975

A 
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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7
Q

If you were given Section 6(1)(a), MODA 1975 as a liability, what case law and definitions would you need to include?

Discuss.

A 
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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8
Q

If you were given Section 6(1)(b), MODA 1975 as a liability, what case law and definitions would you need to include?

Discuss.

A 
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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9
Q

If you were given Section 6(1)(c), MODA 1975 as a liability, what case law and definitions would you need to include?

Discuss.

A 
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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10
Q

If you were given Section 6(1)(d), MODA 1975 as a liability, what case law and definitions would you need to include?

Discuss.

A 
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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11
Q

If you were given Section 6(1)(e), MODA 1975 as a liability, what case law and definitions would you need to include?

Discuss.

A 
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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12
Q

If you were given Section 6(1)(f), MODA 1975 as a liability, what case law and definitions would you need to include?

Discuss.

A 
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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13
Q

R v Cox, 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 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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14
Q

Section 2, MODA - definition of possession

A

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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15
Q

Section 2, MODA - definition of controlled drug

A

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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16
Q

R v Strawbridge

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, 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

17
Q

R v Emerali

A

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

18
Q

Section 6(6), MODA - presumptive amounts

A

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

19
Q

Guilty knowledge

A
  • 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

20
Q

R v Forrest and Forrest

A

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

21
Q

Class A/B/C controlled drug

A

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.

22
Q

Person

A

Gender neutral term; proved by judicial notice or circumstantially

23
Q

Offers

A

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)

24
Q

Sell

A

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)

25
Q

Supply

A

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

26
Q

R v Magginnis

A

‘(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’

27
Q

R v Brown

A

’ … 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

28
Q

R v During

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.

29
Q

Define administer

A

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

30
Q

R v Rua

A

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

31
Q

Define produce

A

Produce – bring something into being or to bring something into existence from its raw materials or elements.

32
Q

Define manufacture

A

Manufacture – the process of synthesis; combining components or processing raw materials to create a new substance.

33
Q

When is the offence of manufacturing complete

A

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

34
Q

Define imports

A

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’.

35
Q

Define exports

A

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.

36
Q

R v Saxton

A

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

37
Q

R v Hancox

A

’ … 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

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