Drugs Flashcards
What is a class A drug
Section 2, Misuse of drugs act 1975
Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this act.
A drug that poses a very high risk of harm to individuals and society.
Cocaine Heroin LSD Meth Magic mushrooms
What is a class B controlled drug
Section 2, Misuse of Drugs Act 1975
Class B controlled drug means the controlled drugs specified or described in Schedule 2 to this act.
Class B controlled drugs pose a high risk of harm to individuals or society.
Amphetamine Cannabis prep such as resin and oil MDMA Morphine Opium
What is a class C controlled drug
Section 2 misuse of drugs act 1975
Class C controlled drug means the controlled drugs specified or described in Schedule 3 to this act; and includes any controlled drug analogue.
They pose a moderate risk of harm to individuals or society.
Cannabis plant
Cannabis seed
Cannabis fruit
BZP
R v Strawbridge
It is not necessary for the crown to establish knowledge on part of the accused. In the absence of evidence to the contrary knowledge on their part will be presumed, but if there is evidence they honestly believed on reasonable grounds that their act was innocent, then they are entitled to be acquitted.
(Guilty knowledge)
Guilty knowledge
For a person to be guilty, they must have guilty knowledge; a person who innocently possesses something they genuinely believed was not a controlled drug has a defence.
Useable quantity
In any drug offence the quantity of drug involved must be measurable and useable.
Police v Emerali
… The serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance.
(Useable quantity)
Proving useable quantity
While it is necessary the amount is of a useable quantity, it is not necessary to prove that fact unless the defendant puts the matter in issue.
Importing/exporting any controlled drug liability
Importing/exporting any controlled drug Section 6(1)(a), Misuse of Drugs Act 1975
- import into OR export from New Zealand
- any controlled drug
Producing/manufacturing any controlled drug liability
Producing/manufacturing any controlled drug Section 6(1)(b) Misuse of Drugs Act 1975
- produce OR manufacture
- any controlled drug
Supplying any class A or class B drugs
Supplying any class A or class B drugs Section 6(1)(c) Misuse of drugs act 1975
- supply OR administer OR offer OR offer to supply OR offer to administer OR otherwise deal in
- any Class A controlled drug OR class B controlled drug
- to any other person.
Supplying any class C controlled drug to person under 18 years liability
Supplying any class C controlled drug to person under 18 years Section 6(1)(d) Misuse of drugs act 1975
- Supply OR administer OR offer to supply OR offer to administer
- Any class C controlled drug
- To a person under 18 years of age.
Sell, or offer to sell, any class C controlled drug to person of or over 18 years liability
Section 6(1)(e) Misuse of drugs act 1975
- sell OR offer to sell
- any Class C controlled drug
- to a person of or over 18 years of age
Possession of controlled drugs for supply liability
Section 6(1)(F) Misuse of drugs act 1975
- have in his possession
- any controlled drug
- for any of the purposes set out in paragraphs (c), (d), or (e) of section 6(1) moda75
Examples of drug importation
- have drugs concealed in or on their person, or in their luggage.
- have another person (‘a mule’) bring the drugs in for them.
- send or have drugs sent by international mail or courier
- conceal drugs inside legitimate goods, for example within shipping containers.
Saxton v Police
To import includes to “introduce or bring in from aboard or to cause to be brought in from a foreign country”
(Importing)
R v Hancox (bringing in)
“Importation” in the Misuse of Drugs context means the introduction or bringing in from aboard or causing to be brought in from aboard
(Importing)
R v Hancox (active conduct)
“Importation” involves active conduct. It does not cease as the aircraft or vessel enters New Zealand territorial limits. The process of importation exists from the time the goods enter New Zealand until they reach their immediate destination or have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee.
(Importing)
Mens Rea of importing
The crown must prove not only that the defendant’s conduct in some way contributed to the actual importation of the drug, it must also prove the defendants guilty knowledge.
This will involve proof:
- knew about the importation or was wilfully blind, AND
- knew the imported substance was a controlled drug (or was reckless Cameron v R) AND
- intended to cause the importation.
Wilful blindness
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.
R v Martin
It will suffice if the crown can prove beyond reasonable doubt that the accused 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.
(Wilful blindness)
Importing
Inporting is a continuous process. Criminal liability arises as soon as the drugs cross New Zealands border.
Producing
To produce means to bring something into being, or bring into existence from its raw materials or elements. Example - Cannabis
Compound
To “compound” means to create a whole by mixing or combining two or more elements or parts.
R v Parke
The defendant was charged with producing psilocybine after drying and pulversing magic mushrooms and placing powdered material into capsules. Although he had prepared them, he had not produced psilocybine.
(Producing)
Manufacturing
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance. Most commonly methamphetamine.
When is the manufacturing offence complete?
The offence is complete once the prohibited substance is created, whether or not in a useable form.
Supply
Supply means to furnish or provide something that is needed or desired.
Cannabis preparations
Cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material - for example, producing cannabis oil or baking a cannabis bake.
Provisions for cannabis preparation
A) it shall be for the prosecution to prove that the preparation to which the charge relates contains THC.
B) Subject to paragrah A of this section, the prep shall be deemed to have been produced by subjecting cannabis plant material to some kind of processing unless it is in a form that is clearly recognisable as plant material.
C) plant material means the whole or any part of the leaf, flower, or stalk of any plant (of whatever species)
D) the question of whether or not any preparation is in a form that is clearly recognisable as plant material shall, in the event of a dispute, be determined by the jury or judge by unaided visual inspection.
Selling
To sell involves the typical concept of sale - an exchange of goods in return for valuable consideration
Administers
Administer is to direct and cause a drug to be taken into the system of another person
Distributing
Distribution relates to the supply of drugs to multiple people.
R v Donald
Defendant caught measuring out heroin into smaller quantities. He denied intending to supply the drug, claiming he was simply dividing it up for joint owners. The court held that this was also supply.
(Distributing)
Giving
To give means to hand the substance over in order to enable the other person to use the drug.
R v Knox
The defendant received LSD in the mail. He said he was picking it up for his girlfriend. High Court held he had the intent to supply the drug to another.
(Giving)
R v Maginnis
Said a package of cannabis resin in his car has been left there by his friend and his friend would come get it. Held this is supply, restoring the friends ability to use the drugs.
(Supply)
R v Wildbore
Defendant kept a supply of LSD in a locked shed. Left the key in a pre arranged location and allowed a friend and joint owner of the LSD, to access the shed and help herself when ever she wanted. Although no active transfer of drugs, this is still giving.
(Giving)
Offering
This provision prohibits the act of arousing another person’s interest in controlled drugs, or of tempting others to use them.
Prosecution must prove two elements:
- 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)
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.
(Offering)
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)
Offering to supply can arise a variety of ways
- 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.
Otherwise deals
Otherwise deals is aimed at dealing in a drug by means other than by distributing, giving or selling it, administering it or offering to supply or administer it.
Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
(Age)
Proving age
Mother can give victims date of birth in court to prove age. Birth certificate.
The misuse of drugs act 1975 criminalises possession of any controlled drug for any of the following purposes
- the supply or administration of any class A or class B controlled drug (or offer to do so)
- the supply of any class c controlled drug to a person under 18 years of age (or to offer to do so)
- the sale of any class C controlled drug to a person of or over 18 years of age (or offer to do so).
Potential custody or control
For the purpose of this act, the things which a person has in his possession include anything subject to his control which is in the custody of another
Crown must prove what in relation to possession
- knowledge the drug exists
- knowledge that it is a controlled drug
- some degree of control over it
- an intention to possess it
Additional evidence for intent
- admissions
- circumstantial evidence (packaging, scales etc)
- the statutory presumption
Statutory presumption
Under section 6(6) people in possession of controlled drugs over certain specified amounts are considered to have possession of those drugs for supply, unless they can prove otherwise. It is a reverse onus of proof.
Schedule 5 MODA 1975
Presumptive amounts:
Heroin - 0.5grams. Cocaine - 0.5grams. LSD - 2.5 milligrams or 25 flakes Meth - 5grams MDMA - 5 grams or 100 flakes Cannabis resin - 5 grams Cannabis oil - 5 grams Cannabis plant - 28 grams or 100 or more cigarettes.
Conspiring to deal with controlled drugs
Section 6, MODA 1975
2A - every person who conspires with any other person to commit an offence against subsection 1 of this section commits an offence against this act and is liable on conviction on indictment to imprisonment for a term
A) not exceeding 14 years where a class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed.
B) not exceeding 10 years where paragraph A of this subsection does not apply but a class B controlled drug was the drug in question
C) not exceeding 7 years in any other case.
