Drugs Flashcards
Import into or export from New Zealand
Section 6 (1) (a), MODA 1975
* Import into or export from New Zealand
* any controlled drug
Produces or manufactures a controlled drug
Section 6 (1) (b), MODA 1975
* Produce or manufacture
* any controlled drug
Supply Class A or Class B controlled drug
Section 6(1) (c), MODA 1975
* Supplies or administer, or offer to supply or administer or otherwise deal in
* any class A controlled drug or class B controlled drug
* to any other person
Supplies, administers, or offers to supply or administer to a person under 18 years
Section 6 (1) (d), MODA 1975
* Supplies or administer, or offer to supply or 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 the person of or over 18 years
Section 6 (1) (e), MODA 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 in supply
Section 6 (1) (f), MODA 1975
* Have in possession
* Any controlled drug
* For any purpose set out in paragraphs (c), (d), or (e) of section 6 (1) MODA 1975
Conspiring to deal with controlled drug
Section 6 (2A), MODA 1975
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 to imprisonment for a term not exceeding 14 years for class A controlled drug, not exceeding 10 years imprisonment dealing with class B controlled drug and not exceeding 7 years imprisonment in any other case.
Supplies equipment/Precursors etc.
Section 12A, MODA 1975
Everyone 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
Possession of equipment/ Precursors etc.
Section 12A (2)
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.
Import
in relation to goods, means the arrival of the goods in New Zealand in any manner, whether lawful or unlawful, from a point outside New Zealand.
Controlled drug
controlled drug means any substance, preparation, mixture, or article specified or descried in schedule 1, schedule 2, or schedule 3 and includes any temporary class drug and any controlled drug analogue.
Controlled drug analogue
Controlled drug analogue means any substance, that is substantially similar to that of any controlled drug. It is a substance that has similar dangerous effects, but that is not specifically listed in the schedules to the act.
Produce
Produce means to bring something into being or 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.
Supply
supply means “to furnish or provide something that is needed or desired”. Supply includes distribute, give and sell.
Distribution
The term distribution relates to the supply of drugs to multiple people.
Distribution is complete when the Defendant has done all that is necessary to accomplish delivery of the drug to others.
Precursor substance
precursor substance means any substance that is the starting point in a chemical process that will result in the creation of a new drug.
Administering
administering is distinguished from supplying in that it involves introducing a drug directly into another person’s system.
Control
To control something means to exercise authoritative or dominating influence over it.
Conspiracy
is an agreement between two or more people to commit an offence.
For charges under section 12A (1) (supplies equipment/precursors etc), the crown must prove three elements:
- 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 the cultivation of prohibited plants
- That the defendant knows those items are to be used for such an offence by another person.
For charges under section 12A (2) (possession of equipment/precursors etc), 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.
Q. Circumstantial evidence from which an offender’s intent may be inferred can include
- The offenders’ actions and words before, during and after the event.
- The surrounding circumstances
- The nature of the act itself.
Q. In drugs cases, additional evidence of intent to supply may be inferred from?
- Defendant’s admissions
- Circumstantial evidence (packaging, scales, cash etc.)
- The statutory presumption under section 6 (6)
In drug cases it will be necessary for the crown to prove that the Defendant had? KICK
- Knowledge that the drug exists.
- Knowledge that it is a controlled drug
- Some degree of control over it
- An intention to possess it
Q. In relation to the importation charge, to proven guilty knowledge the crown must prove that the Defendant? KIK
- Knowledge about the importation
- Knowledge that the imported substance was controlled drugs
- Intended to cause the importation
Q. According to R v Cox, discuss types of possession? Or What must the crown demonstrate in order to prove that a defendant was in possession of a controlled drug?
- 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. (R v Cox)
Q. What activities does the term ‘supplying a drug’ cover?
- Supplying drugs includes distributing, giving or selling drugs
Q. When is the manufacturing or production of a controlled drug complete?
- The offence is complete once the prohibited substance is created, whether or not it is a useable form.
For example: R v Rua- Methamphetamine is suspension in two layered liquids, although not capable of being used in that state, was held to have been manufactured.
Q. What was held by High Court in relation to a “passive custodian” and their intent to supply a controlled drug?
The High court held that a “passive custodian” who relinquishes custody of a drug to meet the needs of another, has the necessary intent to supply. (R v Wildbore)
In simple words, where a person passively permits a person to help himself having access to the drug, with intent to supply.
Q. What are the two elements that the prosecution has to prove in relation to the offence of offering to supply?
- the intention to make the other person believe the offer that has been made is real.
- The offender need not have the drugs nor even intend to sell them to be guilty of the offence.
Q. What difference does age make to the offences involving Class C controlled drugs?
The difference in age regarding drug offences means that, when the receiver is: under 18 years of age, it is illegal to supply or administer, or offer to supply or administer, a Class C controlled drug to them over 18 years of age, the only offences are to sell, or offer to sell, them a Class C controlled drug.
Q. Mike has been charged with possession of 5 grams of methamphetamine. List the four things you have to prove in relation Mike’s possession of that drug?
To prove possession of a drug, the Crown must prove that Mike had:
* knowledge that the drug exists
* knowledge that it is a controlled drug
* actual physical control or some degree of control over it
* an intention to possess it.
Q. In relation to an offence against section 9, of MODA 1975, what must you prove?
- You must prove an identity of the suspect and he/she cultivated a prohibited plant.
Q. What is the difference between offence of obstruction committed in the summary offences act 1961 and the MODA 1975?
- The offence of obstruction in the MODA act relates specially to obstructing anyone who is executing powers under the MODA act 1975.
Q. Under section 9 (4), there is a defence to charge of cultivation of prohibited plant. What is the defence?
- If the person charged proves that the prohibited plant was of the species papaver somniferous, and that it was not intended to be source of any controlled drug nor that it was being developed as strain from which a controlled drug could be produced.
Q. Rose owns a rural property. John, her son, resides with her. John uses the spare bedroom to grow cannabis, which he then supplies to the locals. Rose is aware of John’s illegal activities but does not have any involvement in his activities whatsoever. What can Rose be charged with?
- Rose can be charged under section 12 (1), as she knowingly permitting her premises (spare room) to be used by john to cultivate and supply cannabis, which is an offence against the MODA 1975.
Saxton v Police
To import includes “to introduce or bring in from abroad or to cause to be brought in from a foreign country”.
R v Hancox
“Importation” involved active conduct. It does not cease as the aircraft or vessel enters NZ territorial limits. The process of importation exists from the time the goods enter NZ 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”.