Drug offences 6

Question 1

Purpose of possession – presumptive quantity

Answer 1

Purpose of possession – presumptive quantity 
Section 6(6) MODA 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 2

Rebuttal to Presumptive

Answer 2

Rebuttal to Presumptive -

The presumption that the drug is for sale or supply

may be rebutted if the person is able to prove,

on the balance of probabilities,

that they did not intend to commit a “dealing” offence,

notwithstanding the amount.

(Example – Heavy addict, requires large amount for personal use.)

Question 3

Schedule 5 – MODA 1975 – Presumptive amounts

Answer 3

Schedule 5 – MODA 1975 – Presumptive amounts -

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

When not specified in the schedule, the presumptive amount for that drug is 56 grams.

Question 4

Conspiring to Deal – s6(2A) MODA 1975

Answer 4

Conspiring to Deal – s6(2A) MODA 1975 -

Where there is a conspiracy to import controlled drugs into NZ

and the agreement or unlawful acts are carried out in foreign territory,

there may be a problem regarding jurisdiction.

It will be necessary to prove that the Defendant

had done something to complete the conspiracy in NZ

for the offence to come within the jurisdiction of NZ Courts.

Question 5

Equipment, material and substances used in production or cultivation of controlled drugs – s12A, MODA 1975

Answer 5

Equipment, material and substances used in production or cultivation of controlled drugs – s12A, MODA 1975

1. Everyone who supplies, produces or manufactures –
   a. Any equipment or material that is capable of being used in, or for, the commission of an offence against s6(1)(b) or section 9 OR

b. Any precursor substance
Knowing that the equipment, material, or substance is used in or for, the commission of an offence against those provisions.

2. Everyone who has in his or her possession –
   a. Any equipment or material that is capable of being used in, or for, the commission of an offence against s6(1)(b) or section 9 OR

b. Any precursor substance
With the intention that the equipment, material or substance is to be used in or for the commission of an offence against that provision.

Section 12A(1), MODA 1975 – The Crown must prove 3 elements

Any “equipment” definition – s12A, MODA 1975

The term “equipment” is not defined by statute,

but will include the implements, apparatus and other hardware

used in the manufacturing, producing or cultivating process.

Question 6

Section 12A(1), MODA 1975 – The Crown must prove 3 elements

Answer 6

Section 12A(1), MODA 1975 – The Crown must prove 3 elements

Any “equipment” definition – s12A, MODA 1975

The term “equipment” is not defined by statute,

but will include the implements, apparatus and other hardware

used in the manufacturing, producing or cultivating process.

Question 7

Examples – Equipment

Answer 7

Examples – Equipment

Glassware, 
Condensers, 
heating mantles, 
pots, 
lights, 
timers, 
water pump

Question 8

Section 12A(2), MODA 1975 – The Crown must prove 3 elements

Answer 8

Section 12A(2), MODA 1975 – The Crown must prove 3 elements -

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

Question 9

Cultivating Prohibited Plants – s9, MODA 1975

Answer 9

Cultivating Prohibited Plants – s9, MODA 1975

4. It is a defence to this charge s9(1) if the person charged proves that the prohibited plant to which the charge relates was of the species Papaver somniferum,

and that it was not intended to be a source of any controlled drug or that it was not being developed as a strain from which a controlled drug could be produced.

Question 10

Allowing premises or vehicle to be used – s12, MODA 1975

Answer 10

Allowing premises or vehicle to be used – s12, MODA 1975

1. Everyone who knowingly permits any premises or (any vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance)

to be used for the purpose of the commission of an offence against this Act.