DRUGS Flashcards
Saxton v Police
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
R v Hancox
’ … 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
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, 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 is presumed, and the one sis on the defendant to disprove this)
Think - straw tries to build a bridge over his guilty knowledge
Can use in conjunction with Simmester and Brookbanks - knowledge is knowing or correctly believing; you cannot know something that is false
Police v Emerali
’ … the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance’
(in any drug offence, the quantity of the drug must be both measurable and usable)
Think - e-measurable -e-merali
R v Rua
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
R v Magginnis
‘(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’
(definition of supply)
Think - Magginnis gives this to you
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.
(definition of an offer to supply drugs)
Think - a dur-able offer
R v Brown
’ … the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence’.
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
What must be proved for the charge of importation?
The Crown must prove that the defendant’s conduct contributed in some way tot he importation of the drugs. It must also prove the defendant’s guilty knowledge.
This will involve proof that the defendant:
- Knew about the importation, and
- Knew the imported substance was a controlled drug, and
- Intended to cause the importation
Define exportation
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.
What 3 things must you prove, to prove guilty knowledge in the context of drug offending
- the defendant knew they were in possession
- knew the substance was a controlled drug
- intended to carry out an offence against MODA
= KKI
R v Strawbridge applies - 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.
Define wilful blindess
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.
In R v Martin the defendant was arrested when she arrived at Auckland Airport with over $4 million worth of cocaine in her suitcase. She claimed she had no knowledge of the drugs despite the highly suspicious circumstances in which she had obtained the suitcase from Nigerian organised criminals.
In this matter the Judge stated “…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. If that is proved, the law presumes knowledge on the part of the accused. The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry”.
Explain the difference between produce and manufacture
Produce – bring something into being or to bring something into existence from its raw materials or elements.
Manufacture – the process of synthesis; combining components or processing raw materials to create a new substance.
Define importation
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’.
Controlled drug analogues are what class?
Class C
Section 2, MODA 1975
Controlled drug analogue means any substance … that has a structure substantially similar to that of any controlled drug
It will have similarly dangerous effects but is not specifically listed in the schedules of the Act (schedules, 1, 2 or 3). Does not includes prescription medication.
How are Class A/B/C drugs defined
Means the controlled drugs specified or described in Schedule 1/2/3 to this Act; and includes any controlled drug analogue.
A = schedule 1 of the Act - very high risk of harm
B = schedule 2 of the Act - high risk of harm
C = schedule 3 of the Act - moderate risk of harm
In relation to importation of drugs, when is someone liable and when does liability cease?
Criminal liability arises as soon as the drugs cross NZ’s border (ie a plane or boat with the drugs enters NZ territorial limits). An importer may therefore be convicted under s6(1)(a), even if the drugs are intercepted by Customs and never reach the addressee (the intended recipient).
Anyone who knowingly assists in facilitating the process of importation from the time the drugs enter NZ, up until the point that the drugs have reached their final destination and are available to the consignee may be liable as a party to the importation.
The offences of importing and or exporting a controlled drug relate to any controlled drug, irrespective of class.
In any drug offence, the quantity of the drug must be what two things?
Measurable and Usable
Police v Emerali
‘ … 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.
Explain the difference between produce and manufacture
Produce – changing the nature of the original substance; to bring something into being or to bring something into existence from its raw materials or elements.
(ie - making cannabis resin oil from cannabis plant material)
Manufacture – to create a new substance from the original materials; the process of synthesis; combining components or processing raw materials to create a new substance
(ie - manufacturing meth from pseudoephedrine, or heroin from morphine)
When is the offence of 6(1)(b) complete? (manufacturing or producing a controlled drug)
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
In relation to importation of drugs, when is importation complete?
The offence does not end at the border; the process of importation continues while the goods are in transit, and only concludes when they have reached their final destination and are available to the consignee.
R v Hancox - case law that defines importation as a process.
What does Section 29B cover?
Special provisions relating to cannabis preparation
This section applies where a cannabis preparation is produced by subjecting the cannabis plant material to some kind of processing, that renders it then unrecognisable as plant material
ie - producing cannabis oil from cannabis plant material
Definition of controlled drug
Section 2, MODA 1975
Means any substance, preparation, mixture or article (SPAM) specified or described in schedule 1, 2 or 3 of the Act, and includes any drug analogue
Where a defendant has been charged with offering to supply or administer a controlled drug, the prosecution must prove what two elements?
- The communicating of an offer to supply or administer a controlled drug (the actus reus)
AND - An intention that the other person believes the offer to be genuine (the mens rea)
Definition of supply
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
How do you prove age for a victim, where age is a factor in a drug offending matter?
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.
R v Forrest and Forrest
Is it possible to be charged with attempted possession of a controlled drug?
Yes.
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. If you have intent and act to fulfil it, you can be guilty of an attempt.
In R v Jay the Police found the respondent J in possession of a plastic bag containing plant material. J admitted that he thought it was cannabis and that he had purchased it from another person. On analysis the plant material was found to be hedge clippings. The court in this matter held that the commission of the offence of receiving cannabis was not legally impossible, although in the circumstances it was factually impossible. As the respondent had criminal intent and did an act for the purpose of accomplishing his object he was guilty of an attempt to commit an offence.
Where a defendant has been charged with offering to supply or administer a controlled drug, the prosecution must prove what two elements?
The Crown doesn’t have to prove that the defendant had the capacity to supply the drugs, but must prove
- The communicating of an offer to supply or administer a controlled drug (the actus reus)
- An intention that the other person believes the offer to be genuine (the mens rea)
R v Brown
The presumption that a drug is for sale/supply may be rebutted if the defendant is able to prove what?
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.
For example, the defence may argue that the suspect was heavily addicted and required large amounts for personal use.
Define distribution
Relates to the supply of drugs to multiple people.
Define selling
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
Define administer
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
Case law - R v During, R v Brown
If there is a conspiracy to import drugs into New Zealand, but the accused are outside NZ, what must be proven for the offence to come within the jurisdiction of our Courts?
Section 6(2A) of MODA75 concerns conspiracy with one or more people to commit drug dealing offences. 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 the NZ courts.
In R v Johnston the Court of Appeal held tha tthe used of the NZ Customs and postal service by the conspirators in posting cannabis resin from England to NZ was sufficient to bring the matter within the jurisdiction of the NZ courts.
Explain a defence to Section 9, MODA75
Section 9(4) MODA75.
It shall be a defence to a charge under subsection (1) of this section 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.
Ingredients of allowing premises
Section 12, MODA75.
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.
Ingredients of obstructs
Section 16 MODA75.
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.
Explain the difference in obstruction in Summary Offences Act and MODA75
The offence of obstruction in MODA relates specifically to obstructing anyone who is executing powers pursuant to MODA.
Explain regulation 11 of Health Regulations 1998 (relating to offering, accepting, disposing of needles and syringes)
When is an offence committed?
Section 11 Health (Needles and Syringes) Regulations 1998.
Every person commits an offence who-
(a) Offers to any other person, for use by that other person, a USED needle or used syringe; or
b) Accepts for use a USED needle or used syringe; or
(c) Disposes of a needle or syringe in a public place.
What are the ingredients for 12A
Section 12A MODA75 - equipment supplied or possessed with capacity, and the knowledge or intention to use said equipment, to manufacture controlled drugs.
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.
Every person commits an offence against this Act 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 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.
Define the term equipment an give 4 examples
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.
Examples may include: glassware, condensers, heating mantles etc used in the manufacture of meth; or pots, lights, timers, water pumps etc used in cultivating cannabis.
Define controlled delivery
A controlled delivery occurs when a consignment of illicit drugs is 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
The controlled delivery is often made with a view to identifying and securing evidence against those involved for the importation/exportation of controlled drugs. This could also incorporate couriers caught body packing or travelling with drugs concealed within their luggage.
Define the two types of controlled deliveries.
What are the advantages and risks of each type?
- A clean controlled delivery.
No drugs are left within the consignment. This eliminates any risk of the drugs being lost, but also gives greater freedom in organising the surveillance of the consignment and reduces the risk of alarming the targets who may have arranged counter-surveillance.
However, at the termination of the operation only importation and/or conspiracy charges are likely to be filed on those apprehended.
- Leave an amount of the drug within the consignment.
This gives authorities the option of charging an offender with a possession for supply charges, and also provides the availability of emergency powers should the drugs move to persons or places that are not covered by search warrants. The remainder of the drugs are substituted.
However, the consignment with drugs still in it requires greater security, and recovery on termination is paramount.
Who leads the controlled drug delivery operation?
The power to undertake a controlled delivery is vested in a Customs Officer only, under Section 12 of the MODA. Police assist Customs when a controlled delivery operation is undertaken. In the event that the controlled delivery operation is successful Police make the arrest and conduct the prosecution
Give 4 ways controlled deliveries can come about
- International Mail (inside a mail article)
- International Airport (arriving on a physical person, couriered using either body packing, internal concealment or concealed within luggage)
- Imported air freight (concealed within a freight consignment which can be either commercial or private)
Imported sea freight (as with air freight but arrive via sea) - Transhipped air or sea freight (transiting through New Zealand with a final destination in another country)
- Arriving commercial vessel (hidden on board or attached to a vessel that is either unloading or picking up cargo from New Zealand before continuing onto another country
Give 4 things to be considered when setting up an Observation Post for a controlled delivery
- Proximity to target address – close enough to be effective, far enough away to be unobstructive
- Unobstructed line of sight to target address
- Access to and from address without arousing suspicion (consider equipment and staff that will need to discretely enter and leave the address)
- Ability to beam signals and/or tap into Telecom cables (video and audio interception)
- Phone lines available in street
- Other conditions relating to the vicinity of the OP, eg parking, schools, other neighbourhood activities, lighting and animals.
PLAPS - proximity, line of sight, access, phone lines, signals to be beamed or intercepted
Give points to consider when profiling the addressee of a controlled delivery
Previous occupiers
Real person or false name
Connexion to delivery address
Relevant convictions/notings/associations
Travel/connexions to country of origin
Bank accounts – large deposits, overseas transfers
Full ID of target if possible
Photographs (casual/formal surveillance)
Police intelligence held (NIA, previous investigations, MO section, IMP, arresting officers) Suspect’s knowledge surrounding covert enforcement techniques
Suspect’s knowledge/skill surrounding technology (phones, faxes, computers etc) Suspect’s travel history including passport holdings
Other agency intelligence held (Fisheries, Customs, Immigration, Internal Affairs etc) Financial profile
Family members/associates/vehicles/addresses and places frequented
General lifestyle (sports and other interests)
Business associations
Tracking device for vehicles – variety of options
Risk assessment – firearms required
