Drug Offences CIB011 Part 1 dealing Flashcards
Imports into or exports from NZ Section, Penalty and Liability
Section 6(1)(a)
Life imprisonment
1) Imports Into
OR
Exports From New Zealand
2) Any Controlled Drug
Imports - Legislative definition
Sec 2 Customs and Excise Act 1996
- Means the arrival of the goods in New Zealand in any manner,
- whether lawfully or unlawfully
- from a point outside New Zealand.
R v Hancox
- The element of importing exists from the time the goods arrive in New Zealand
- until they reach their immediate destination…
- i.e when they have ceased to be under the control of the appropriate authorities
- and have become available to the consignee or addressee.
Exports
Sec 53 Customs and Excise Act 1996
- For the purposes of the act, the time of exportation is the time when the exporting craft leaves the last customs place
- at which it calls immediately before proceeding to a point outside New Zealand.
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 knowledge on her part 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. R v Strawbridge
Saxton v Police
Saxton v Police [1981] 2 NZLR 186 (CA)
To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.
Section 6(1)(a) MODA 1975
To prove guilty knowledge
Crown must prove:
Must prove guilty knowledge: This will involve proof the defendant:
1) knew about the importation/exportation
AND
2) knew the imported/exported substance was a controlled drug
AND
3) intended to cause the importation/exportation
Useable amount & Police v Emerali + comment
In any drug offence, the quantity of the drug involved must be measurable and useable.
Police v Emerali [1976] 2 NZLR 476
“…the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance”.
Comment:
Whether or not the quantity of a drug is useable depends on more than just its size or weight;
- the nature of the drug and
- the condition in which it is found are relevant
Controlled drug- definition
Sec 2 Misuse of Drugs Act 1975
Means any substance, preparation, mixture or article specified or described in schedule 1, schedule 2, or schedule 3 of this act and includes any controlled drug analogue.
Class A controlled drug + examples
Sec 2 Misuse of Drugs Act 1975
Means any controlled drug as specified or described in schedule 1 to this act.
Some of the more well-known Class A controlled drugs include:
- Cocaine
- Heroin
- Lysergide (LSD)
- Methamphetamine
- Psilocybine (found in magic mushrooms)
Class B controlled drug + examples
Sect 2 Misuse of Drugs Act 1975
Means any controlled drug as specified or described in schedule 2 to this act.
- Amphetamine
- Cannabis preparations (such as cannabis oil and hashish)
- GHB (Fantasy)
- MDMA (Ecstasy)
- Morphine
- Opium
- Pseudoephedrine
Produces or manufactures a controlled drug
Section, penalty & liability
Section 6(1)(b)
Life, 14 years, 8 years imprisonments
1) Produce
OR
Manufacture
2) Any Controlled Drug
Produce
To produce means to bring something into being or to bring something into existence from its raw materials or elements
Manufacture
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
R v Rua
- The words “produce or manufacture” in section 6(1)(b)
- broadly cover the creation of controlled drugs
- by some form of process
- which changes the original substance into a controlled drug.
Section 6(1)(b) MODA 1975
Complete
The offence is completed once the prohibited substance is created, whether or not it is in a useable form.
Section 6(1)(b) MODA 1975
Proving Guilty Knowledge
This will involve proof that the defendant:
1) knew about the produce / manufacturing
and
2) knew the produce / manufacturing was a controlled drug
and
3) intended to cause the produce / manufacturing
Any controlled drug
Sec 2 Misuse Drugs Act 1975
Means any substance, preparation, mixture or article specified or described in schedule 1, schedule 2 or schedule 3 to the act and includes any controlled drug analogue.
Supplies Class A or Class B controlled drug
Section, Penalty & Liability
Section 6(1)(c)
Life, 14 years Imprisonment
1) Supplies or Administers OR Offers to supply or administer OR Otherwise deal in
2) Any Class A or B controlled drug
3) To any person
Supply
Sec 2, Misuse of Drugs Act 1975
Includes to distribute, give or sell.
R v Maginnis
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.
Administers
Black’s Law Dictionary
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.
Offers
Oxford dictionary
Express readiness to do something for or on behalf of someone.
Offering to Supply/Administer
Prosecution must prove + R v Marr and Wilkinson
Prosecution to prove:
- The communicating of an offer to supply or administer a controlled drug (actus reus)
- An intention that the other person believes the offer to be genuine
R v Marr and Wilkinson & four propositions regarding an ‘offer to supply’:
- ‘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. 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.
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.
In R v Brown offering to supply a controlled drug can arise in four different ways, they are…
The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence
- offers to supply a drug that he has on hand
- offers to supply a drug that will be procured at some future date
- offers to supply a drug that he mistakenly believes he can supply
- offers to supply a drug deceitfully, knowing he will not supply that drug
Section 6(1)(c) MODA 1975
Proof of guilty knowledge
This will involve proof the defendant:
1) knew about the supply / administering / offer and
2) knew that the supply / administering / offer substance was a controlled drug and
3) intended to cause the supply / administering / offer.
Supples, administers or offers to supply or administer to persons under 18 years
Section, Penalty & Liability
Section 6(1)(d)
8 Years Imprisonment
1) Supplies or Administers OR Offers to supply or administer
2) Any Class C Controlled Drug
3) To any person under 18 years of age
Class C Controlled Drug
Sec 2 Misuse of Drugs Act 1975
Means any drug specified or described in Schedule 3 to this Act, and includes any controlled drug analogue.
R v Forrest and Forrest and comment
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
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.
Sell, or offer to sell, any Class C controlled drug to person of or over 18years
Section, Penalty & Liability
Section 6(1)(e) Misuse of Drugs Act 1975
8 years
1) Sells OR Offers to Sell
2) Class C Controlled Drug
3) To any person of or over the age of 18 years old
Sell, Comment
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Will commonly be money, but anything of value will suffice.
Dealing with controlled drugs
Presumption of sale
Sec 6(5) Misuses of Drugs Act 1975
For the purposes of paragraph (e) of subsection (1) of this section, if it is proved that:
if you have supplied it, you have sold it.
Offers to Sell -prosecution to prove
The prosecution must prove two elements:
1) the communicating of an offer to sell a controlled drug (the actus reus)
and
2) an intention that the other person believes the offer to be genuine (the mens rea)
Proving guilty knowledge Section 6(1)(e) MODA 1975
This will involve proof the defendant:
1) knew about the sale / offer
and
2) knew that the substance for sale/offer was a controlled drug
and
3) intended to cause the sale/offer
Components of Knowledge
- 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.
Lockyer v Gibb24
a person cannot be said to be in possession of some article which he or she does not realise is in their possession.
Julian v Green26
physical custody (actual possession) raises an inference of concurrent knowledge of the contents.
R v Cox
R v Cox [1990] 2 NZLR 275
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.
To Control definition
To “control” something means to:
exercise authoritative or dominating influence or command over it.
Possession in drug cases
-crown to prove-
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
- some degree of control over it
- an intention to possess it
Intent - Criminal Law
In a criminal law context there are two specific types of intention in an offence.
Firstly there must be an intention to commit the act and
secondly, an intention to get a specific result.
Proving intent in drug cases
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).
Statutory Presumption
Section 6 Misuse of Drugs Act 1975
Dealing with controlled drugs (6)
- For the purposes of subsection (1)(f),
- a person is presumed to be in possession of a controlled drug
- for any of the purposes in subsection (1)(c), (d), or (e)
- if he or she is in possession of the controlled drug in an amount, level, or quantity at or over
- which the controlled drug is presumed to be for supply (see section 2(1A)) is a reference to the amount, level, or quantity specified in Schedule 5.
Unless that person is able to prove, on the balance of probabilities, that they did not intend to commit a ‘dealing’ offence, notwithstanding the amount.
For example, the suspect was heavily addicted and required large amounts for personal use.
Schedule 5 Misuse of Drugs Act 1975
Schedule 5 Misuse of Drugs Act 1975
The controlled drugs and specified amounts are listed in Schedule 5 to the Act.
Some examples of drugs and their presumptive amounts are:
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
Section 12A (1) Misuse of Drugs Act 1975
(1) Every person commits an offence against this Act 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 section 6(1)(b) or section 9 ; or
(b) Any precursor substance—
knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.
E.g Hydroponic suppliers or Pseudo shoppers
Section 12A (2) Misuse of Drugs Act 1975
(2) … 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 section 6(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.
E.g Meth cooks and cannabis cultivators.
Equipment
will include the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process.
Examples may include:
glassware, condensers, heating mantles etc used in the manufacture of methamphetamine; or
pots, lights, timers, water pumps etc used in cultivating cannabis.
Material
anything used in the process of producing, manufacturing or cultivating that cannot be properly described as equipment.
Examples may include:
chemicals (other than those classified as precursors); documents providing instructions on the manufacturing or cultivating process; or
fertilisers, nutrients etc used in cultivation.
Knowing & comment (12(a)(1)
Simester and Brookbanks
“knowing or correctly believing”
“the defendant may believe something wrongly, but cannot ‘know’ something that is false”.
In Kerr v R46
the term “knowing” for the purposes of s12A(1) was encapsulated by the use of the more precise word (in the context() of “believing”
12A(2) the Crown must prove three elements:
12A(2) the Crown must prove three elements:
- that the defendant has equipment, material or precursors in his possession
- 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 has the intention that those items are to be used for such an offence, either by himself or another person Has in his or her Possession
Joint Possession comment
Joint Possession:
Where more than one person has access to drugs of a saleable quantity, they may be charged jointly with possession.
However in such a situation you must prove there was a shared intention to sell the drugs
Controlled drug analogue
Controlled drug Analogue
Any substance with a structure substantially similar to a controlled drug.
All analogues are class C drugs
R v Martin
R v Martin
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.
Cultivating Prohibited Plants
Section, Penalty, Elements
S9(1) MODA 75
7 Years Imp
- Except pursuant to a license under this act, or as otherwise permitted by regulations under this act,
- no person shall cultivate any prohibited plant
Allowing Premises or Vehicles to be Used
Section, Penalty, Elements
S12(1) MODA 75
10, 7, 3 Years Imp
Every person commits an offence against this act 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
Obstruction of Officers
Section, Elements
S16 MODA 75
Every person commits an offence against this act who:
- wilfully obstructs, hinders, resists or deceives
- any other person in the execution of any powers
- conferred on that other person by or pursuant to this act
Can obstruct ANYONE
Different to Summary Offences Obstruction
Possessing Prescription Medicines
Section, Elements
S43(1) Medicines Act 1981
No person shall,
- without reasonable excuse,
- import, procure, receive, store, use or otherwise have in his possession,
- any prescription medicine
Offences relating to Use or Disposal of Needles and Syringes
Section & Elements
S11(1) Health Regulations 1998 - Relating to use or disposal
Every person commits an offence who-
(a) Offers to any person for use by that other person a used needle or syringe or
(b) Accepts for use a used needle or used syringe or
(c) Disposes of a needle or syringe in a public place
S12(1) Health Regulations 1998 - Relating to sale
Offences relating to Sale of Needles and Syringes
Health (Needles and Syringes) Regulations 1998
reg 11. Offering or accepting for use any used needle or syringe, or disposing of any needle or syringe in a public place:
reg 12. Selling or supplying, or attempting to sell or supply, any needle or syringe:
Note: Possession of the needle per se is not an offence, but will become so if the syringe contains a useable amount of a controlled drug. An offence is being committed in respect of the drugs, ie possession.
