Drugs Flashcards
Section 6(1)(a), Misuse of Drugs Act 1975
Import/ Export controlled drug
‘Import/ Export controlled drug’ penalty
Life imprisonment
‘Import/ Export controlled drug’ elements
- Import into OR exports from New Zealand
- Any controlled drug
‘Imports’ definition
s2 Customs and Excise Act 1996
Importation
(a) 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 New Zealand
‘Imports’ Case law
Saxton v Police
To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.
R v Hancox
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.
Saxton v Police
To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.
R v Hancox
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.
‘Exports’ definition - Time of exportation
s53 Customs and Excise Act 1996
Time of 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 New Zealand.
Import/Export - proving guilty knowledge
Must prove Guilty Knowledge
This will involve proof that the defendant:
- knew about the importation/exportation, AND
- knew the imported/exported substance was a controlled drug, AND
- intended to cause the importation/exportation
Import/Export - establishing knowledge Case Law
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.
‘Useable amount’ definition
In any drug offence the quantity of drug involved must be measurable and useable.
‘Useable amount’ Case law
Police v Emerali
“… the serious offence of … possessing a narcotic does not extend to some minute and useless residue fo the substance”.
‘Controlled drug’ definition
s2 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.
Section 6(1)(b), Misuse of Drugs Act 1975
Produce or Manufacture any controlled drug
‘Produce or Manufacture any controlled drug’ penalty
Life imprisonment / 14 years / 8 years
‘Produce or Manufacture any controlled drug’ elements
- Produce or Manufacture
- Any controlled drug
‘Produce’ definition
To “produce” means to bring something into being, or to bring something into existence from its raw materials of elements.
‘Manufacture’ definition
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
‘Produce’ and ‘Manufacturing’ Case law
R v Rua
The words “produce” or “manufacture” in s6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
‘Produce or manufacture any controlled drug’ - completion
The offence is complete once the prohibited substance is created, whether or not it is in a useable form.
Section 6(1)(c), MODA 1975
Supply/Administer/Offer to supply or administer Class A or B controlled drug
‘Supply/Administer/Offer to supply or administer Class A or B controlled drug’ penalty
Life imprisonment / 14 years
‘Supply/Administer/Offer to supply or administer Class A or B controlled drug’ elements
- Supplies OR Administers OR Offers to supply OR Offers to administer OR Otherwise deals in
- Class A or B controlled drug
- To any person
‘Supply’ definition
s2 MODA 1975
Includes to distribute, give or sell.
‘Supply’ Case law
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’ definition
Black’s Law Dictionary
In the context of drug dealing, the appropriate meaning of “administer” is “to direct and case a … drug to be taken into the system” of another person.
‘Offers’ definition
Oxford Dictionary
Express readiness to do something for or on behalf of someone.
‘Offers to supply’ Case law
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 to supply’ Case law
R v Brown
- 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 suppy that drug
‘Otherwise deals in’ definition
The term “otherwise deals in paragraph (c) is aimed at dealing in a drug by some means other than by distributing, giving or selling it, administering it, or offering to supply or administer it.
‘Class A controlled drug’ definition
s2 MODA 1975
Means any controlled drugs specified or described in Schedule 1 to this Act.
‘Class B controlled drug’ definition
s2 MODA 1975
Means any controlled drugs specified or described in Schedule 2 to this Act.
Section 6(1)(d), MODA 1975
Supply/Administer/Offer Class C controlled drug to persons under 18 years of age
‘Supply/Administer/Offer Class C controlled drug to persons under 18 years of age’ Penalty
8 years
‘Supply/Administer/Offer Class C controlled drug to persons under 18 years of age’ elements
- Supplies OR Administers OR Offers to supply OR Offers to administer OR Otherwise deals in
- Class C controlled drug
- To any person under the age of 18 years old
‘Class C controlled drug’ definition
s2 MODA 1975
Means the controlled drugs specified or described in Schedule 3 to this Act and includes any controlled drug analogue.
Proving Age (Case law and process)
R v Forrest and Forrest
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.
Section 6(1)(e), MODA 1975
Supply/Administer/Offer Class C controlled drug to persons over 18 years of age
‘Supply/Administer/Offer Class C controlled drug to persons over 18 years of age’ penalty
8 years
‘Supply/Administer/Offer Class C controlled drug to persons over 18 years of age’ elements
- Sells OR Offers to sell
- Class C controlled drug
- To any person of or over the age of 18 years old
‘Sell’ definition
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.
S6(5) MODA 1975 - ‘Dealing with controlled drugs’
For the purposes of paragraph (e) of subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.
Section 6(1)(f), MODA 1975
Possession of a controlled drug for supply/administer/sell/offer
‘Possession of a controlled drug for supply/administer/sell/offer’ penalty
Life imprisonment / 14 years / 8 years
‘Possession of a controlled drug for supply/administer/sell/offer’ elements
- Has in his possession
- Any controlled drug
- For any of the purposes set out in paragraphs (c), (d), or (e)
‘Possession’ Case law
R v Cox [1990] 2 NZLR 275
Possession involves two elements. The first, the physical elements, 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.
‘Possession’ - ‘Actual possession’ definition
Actual possession means that the person actually has the drug in their custody or control.
‘Possession’ - ‘Potential possession’ definition
Potential possession arises when the person has the potential to have the thing in question in their control.
‘Has in his possession’ definition
s2(2) MODA 1975
For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.
‘Dealing with controlled drugs’ - Presumption
s6(6) MODA 1975
For the purposes of subsection (1)(f), 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), 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)).
