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Drug Offences > Drug Other > Flashcards

Drug Other Flashcards

1
Q

Controlled drugs are imported by a variety of methods including:

A
  • air and sea
  • having drugs concealed in or on their person, or in their luggage
  • have another person bring their drugs in for them
  • send or have drugs sent by international mail or courier
  • conceal drugs inside legitimate goods eg shipping containers
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2
Q

Importation process:

A

Is a process that commences at point of origin and continues until the drug has reached their ultimate destination in NZ

Importation continues while the goods are in transit and only concludes when they have reached their final destination and available to the consignee

Anyone who’ knowingly assists in facilitating the process up until that point may be liable as party to the importation

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3
Q

Criminal liability of importation:

A

Criminal liability arises as soon as the drugs cross NZ boarders, therefore the drug importer may be convicted under 6(1)(a) even if the drugs are intercepted by customs before reaching the intended recipient

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4
Q

Mens rea of importing:

A

The crown must prove the defendants conduct un some way contributed to the actual importation of the drug AND the defendants guilty knowledge. This includes proof that the defendant:
- knew about the importation
- knew the imported substance was a controlled drug
- intended to cause the importation

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5
Q

Wilful blindenss:

A

In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye will suffice. (R v Martin)

  • If crown can prove beyond reasonable doubt that the accused has their suspicions aroused as to what she was carrying but deliberately refrained from making further enquiries or confirming suspicion because she wanted to remain in ignorance. if that is proved, law assumes knowledge on her part
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6
Q

Guilty knowledge:

A

For a person to be guilty of an offence relating to controlled drugs they must have guilty knowledge, someone who innocently possess something they genuinely believed was not a controlled drug has a defence.

It is not necessary for the crown to prove such knowledge, it will be presumed in the absence of evidence to the contrary. It is therefore up to the defendant to raise reasonable doubt as to their state of mind.

R v Strawbridge

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7
Q

Mistake as to nature of controlled drug:

A

s29 provides that it is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged. for example supplying heroine if in fact defendant believed drug was cocaine.

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8
Q

Proving useable quantity:

A

While it is necessary that the amount of controlled drug is of a useable quantity, under s29A it is not necessary for the prosecution to prove that fact unless the defendant puts the matter in issue

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9
Q

Producing v Manufacturing a drug

A

Producing can be described as changing the nature of the original substance and;

Manufacturing as creating a different or new substance from the original materials

The offence is complete once the prohibited substance is created whether or not it is in a useable form

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10
Q

An analogue drug is:

A

Any substance (other specified 1,2,3) with a structure substantially similar to a controlled drug, has similar dangerous effects but is not specifically listed in the schedules act.

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11
Q

Cannabis preparations:

A

s29B deals specifically with cannabis preparations. Cannabis preparation is produced by subjecting plant to some kind of process that renders it unrecognisable as a plant material. It is up for prosecution to prove the preparation containing any THC.

Upgrades from class C controlled drug to class B cannabis preparation.

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12
Q

Offering to supply or administer drugs:

A

This provision prohibits arousing another persons interest in controlled drugs or tempting to use them; must 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 (mens rea)

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13
Q

Four propositions regarding an offer to supply:

A
  • offer to supply is to be given its ordinary meaning and not any technical meaning
  • there may be more then one person guilty of offering to supply in one transaction
  • Offer to supply has a wider meaning and includes an offer to arrange for someone else to hand over a drug to the person to be supplied
  • in criminal law, every party involved may actually offer to supply or be a party to such an offer, s66, includes intermediary agent,
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14
Q

Otherwise deals:

A

Is aimed at dealing in a drug in some means other than by distributing, giving or selling it, administering it, or offering to supply or administer it. eg barter or exchange

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15
Q

Person under 18:

A

Legislation recognises the vulnerability of the young people and the fact drug use is likely to have a greater impact on them than on a adult.

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16
Q

Proof of age:

A

Where age is an essential element of a charge, must prove victims age at time of offence. eg presenting birth cert and independent evidence identifying victim as person named on birth cert. R v Forrest and Forrest

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17
Q

Possession

A

Physical element; physical custody or control over drugs. Means person actually has drugs in custody or control. Potential custody or control: defendant can exercise control of property through agent, however this control must be established.

Mental element: combination of knowledge and intention. Knowledge in the sense of an awareness substance is in his possession and also have the knowledge that what is in his possession is a controlled drug. Intention; intended to have exercised possession.

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18
Q

Knowledge:

A
  • The defendant must be aware that they possess the substance
  • They identify the substance as a controlled drug, even if there is no substance to be analysed
  • physical custody presumes knowledge, unless otherwise proven
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19
Q

Knowledge and intent:

A
  • knows they have the substance
  • knows the substances qualities
  • intend to use the substance in a way that allows you to charge them with possession
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20
Q

Joint possession:

A

Where more then one person has access to the drugs of saleable quantity, however must prove that there was a shared intention to sell the drugs

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21
Q

Attempted possession:

A

It is an offence to attempt to gain possession of a drug, a charge which covers someone obtaining something innocuous in the mistaken belief that it is a drug

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22
Q

Possession in drug cases:

A
  • knowledge that drug exists
  • knowledge that it is a controlled drug
  • actual physical control or some degree of control over it
  • an intention to possess it.
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23
Q

Purpose:

A

aim or intention

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24
Q

Intention:

A

Two elements: intention to commit the act and secondly, an intention to get a specific result

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25
Q

Deliberate act:

A

Intent means the act or omission must be done deliberately, more then involuntary or accidental.

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26
Q

Intent to produce a specific result:

A

Means aim, object or purpose

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27
Q

Proving intent:

A

Onus is on prosecution to prove an offenders intent beyond reasonable doubt. Offenders admissions and circumstantial evidence (cash, scales, tick-list, packaging), statutory presumption under s6(6) in which intent can be inferred. including: R v Collister
- the offenders actions and words, before, during and after event
- the surrounding circumstances
- the nature of the act itself

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28
Q

Statutory presumption:

A

s6(6)- dealing with controlled drugs;
(6) a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c,d,e) if he or she is in possession of controlled drug in an amount level, or quantity at or over which the controlled drug is presumed to be for supply

Presumption that drug is for sale or supply may be rebutted if the person is able to prove they did not intend to commit a dealing offence, notwithstanding the amount. Can also be charged with possession for supply if other circumstances provide GCTS the offence. eg admissions, packaging, large amounts of money, tick lists etc

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29
Q

Schedule 5 MODA 1978: Presumptive amounts

A

Heroin 0.5g
Cocaine 0.5
LSD 2.5g 25 Tabs
Meth 5g
MDMA/Ecstacy E 5g or 100 tablets
Cannabis oil 5g
Cannabis plant 28g or 100+ tinies

Where not specified, presumptive amount is 56g

30
Q

Conspiracy:

A

Consists of an agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action
6(2A) concerns conspiracy with one or more people to commit drug dealing offences. conspiracy must be proved completed in NZ for conspiracy offence to come under jurisdiction in NZ courts.

31
Q

Any other person:

A

Must be at least two persons involved in the conspiracy

32
Q

For charges under 12A(1) supplies equipment/precursors must prove:

A
  • that the defendant has supplied, produced or manufactured equipment, material or precursors
  • that those items are capable of being used in the production or manufacture of controlled drugs or cultivation of plants
  • that they know those items are to be used for such an offence by another person
33
Q

Equipment includes:

A

implements, apparatus, and other hardware used in manufacturing producing, cultivating process eg glassware, heating mantles, pots, lights, timers, water pumps

(material- is anything used in the process of producing, manufacturing, or cultivating that cannot be described as equipment)

Must be proved these items are capable of being used

34
Q

Precusor substance means:

A

forerunner, something that comes before something else. Substance that is the starting point in a chemical process that will result in the creation of a new drug

means: any substance specified on described in part 1 or 2 or 3 of schedule 4 incl:
- acetic anhydride (heroin)
- Lysergic acid (LSD)
- ephedrine / pseudoephedrine (meth) (class B)

35
Q

For charges under 12A(2) must prove:

A
  • the defendant has equipment, material, or precursors in his possession
  • that they are capable of being used in the production, m of controlled drugs, or cultivation of plants
  • that defendant has intention that those items are to be used for such an offence either by himself or another person
36
Q

s9 MODA 1978

A

Cultivating prohibited plants
- 7 years imprisonment

37
Q

s12 MODA 1978

A

Use of premises of vehicle
- every person commits an offence against this act who knowingly permits any premises or vehicle, vessel, aircraft, hovercraft, for the purpose of the commission of offence against this act.
10yrs imprisionment class a
7yrs imprisionment class b
Not exceeding 3 years for any other type

38
Q

s16 MODA 1978

A

Obstruction of officers
- wilfully obstructs, hinders, resists, or deceived any other person in the execution of any powers conferred on that person by or pursuant to this act

39
Q

A controlled delivery occurs when:

A

illicit drugs are detected, often concealed in some other goods, in circumstances making it possible for the delivery of those goods to be made under the control and surveillance of NZ customs and police officers. aiming to identify and secure evidence against those involved with importation/exportation

best chance when drugs are detected concealed in goods that are moving unaccompanied.

40
Q

s12 MODA 1978

A

Allowing delivery of unlawfully imported drugs (or precursor substances) for purposes of detection

  • Controlled delivery is vested in customs officer only. Police assist by making arrest and prosecuting.
40
Q

s12 MODA 1978

A

Allowing delivery of unlawfully imported drugs (or precursor substances) for purposes of detection

  • Controlled delivery is vested in customs officer only. Police assist by making arrest and prosecuting.
41
Q

s81 of S&S Act

A

Searches of person, places, vehicles, relating to deliveries under s12 MODA 1978

42
Q

Methods of importation for controlled deliveries:

A

international mail centre- inside mail article
International airport- arriving courier using either body packaging or concealed within luggage
Imported air or sea freight- commercial or private freight
Arriving commercial vessel- hidden on board or attached to a vessel that is unloading or picking up cargo from NZ

43
Q

Option 1 controlled delivery:

A

A clean controlled delivery, where no drugs are left within the consignment. This eliminates any risk of the drugs being lost and reduces risk of counter surveillance. Termination phase only importation and/or conspiracy charges are likely

44
Q

Option 2 controlled delivery:

A

Leave an amount of the drug within the consignment to enable the option of charging with “possession of supply” - makes emergency powers available if drugs are not covered by SW. Remainder of drugs are substituted. Requires greater security and recovery on termination is paramount.

45
Q

Delivery of controlled consignment:

A

control and risk management, with the communication being key element to successful outcome.

46
Q

s19-24 S&S Act

A

Emergency powers for entering and searching addresses and searching people in relation to MODA 1975:

47
Q

s81 S&S Act

A

Emergency powers of entry, search and seizure relating to controlled deliveries

48
Q

s121 S&S Act

A

Stop a vehicle to exercise search power, in the event item or controlled package is in vehicle, get SW or can search under s81

49
Q

s9 S&S Act

A

Stop vehicle for purpose of arresting occupant of that vehicle- suspect from a controlled delivery is in vehicle which no longer contains package

50
Q

s23 S&S Act

A

Relates to conducting internal searches of people believed to be concealing drugs internally. Must be under arrest in relation to s6,7,11 MODA inrelation to class A,B,C drugs

51
Q

s13A of MODA 1978

A

is for dealing with people believed to be concealing class A and B controlled drugs who are not under arrest

52
Q

Evidential material is:

A

In relation to offence or a suspected offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the offence

53
Q

s48(2)(e) authorises Police to use a SV device warrant without warrant in certain emergency situations

A

The enforcement officer has reasonable grounds to
(i) suspect that an offence has been committed or is being committed or is about to be committed in relation to a control drug specified in schedule, 1, 2, 3 of the MODA or to a precursor substance
(ii) to believe that use of the SV device would obtain EM in relation to that offence

(Obtaining SW is impractical in the circumstances) cannot be used for longer then 48 hours in.

54
Q

Protection of CHIS identity and info:

A

s64 of the evidence Act 2006 grants privilege to informers that protects their identity and extends to information likely to disclose that identity. You are not required by law to name your CHIS, use registered Code number.

55
Q

Privilege under s64 must be disallowed:

A

where a prima facie case that the information was given for a dishonest purpose, or the enable or aid anyone to commit, or plan to commit, an offence. Also MAY be disallowed where judge is of the opinion that the evidence in the information is necessary to enable the defendant to present an effective defence

56
Q

Consensual interception:

A

taped evidence from intercepted private communication is admissible where one of the parties to the communication has previously consented to the interception taking place.

57
Q

s63 and s64 of S&S Act

A

s63- prescribes length of time for which SV data may be retained
s64- deals with SV device data that is not retained under s63 or as part of a court record. Must ensure the data is deleted or erased.

58
Q

Intercepted communication may be withheld by police as:

A
  • information is likely to prejudice the maintenance of law, including the prevention, investigation, detection of offences
  • likely to endanger the safety of any person or people
  • likely to prejudice the security or defence of NZ
  • personal and private information
  • privilege information
59
Q

3 stages relating to clan lab:

A
  • extraction
  • conversion
  • synthesis
60
Q

Large scale dealing means:

A

Suspected dealing in quantity of drugs 5x the presumption threshold. Proved by:
- offender admissions
- intercepted communications
- significant cash holdings and or movements
- amount of precursor chemicals and sophistication of equipment in defendants possession

61
Q

3 categories of cannabis cultivation:

A

1- small number of plants for personal use without any sale occurring or intended
2- small scale cultivation with object to derive profit
3- large scale commercial growing, sophistication and organisation

62
Q

Offers to sell:

A

Is an expression of readiness to do something for or on behalf of someone

63
Q

Presumption for supply rebuttal:

A

If person is able to prove, on balance of probabilities that they did not intend to commit a dealing offence, notwithstanding the amount. For example defence may argue that the suspect is heavily addicted web require large amounts for personal use

64
Q

Evidence in certificate of analysis to be admissible, you must follow these procedures:

A
  • the chain of evidence is unbroken
  • material to be analysed is not tampered with or contaminated
  • the defence is aware of the analysis and the results and is given a reasonable time to prepare a defence

(Produced instead of calling oral evidence, and cannot be cross examined. Saves money and time)

65
Q

Delivering drug exhibit to ESR:

A
  • in person to analyst who is to issue the cert, or to a Person authorised by the analyst to receive it
  • by registered post or by courier post with signature required in a sealed package to an employee who has been authorised by the analyst
66
Q

The certificate of evidence is admissible only if:

A
  • the defendant is served at least seven clear days of the hearing and provided with a Copy of the cert
  • the defendant does not, at least three days before the hearing give written notice that the analyst be called
  • the court does not request oral evidence of the analyst
67
Q

Catergory 3 offence, two years imprisonment defendant has right to elect trial by jury s6 offence

A

But doesn’t have right to elect jury trial for category 2 offences s7 offences

68
Q

Crown prosecutions include:

A
  • s6 1 b or 2A (conspiracy to produced or manufacture meth
  • S10 aiding offences against corresponding law of another country
    12C commission of offences outside NZ
69
Q

S34A protection of Police officers who commit and offence in the course of their duties

A

Drug Offences (4 decks)

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