DRUGS Flashcards
Section 6(1)(a) MODA 1975
Imports/Exports
- no person shall
- import into or export from New Zealand
- any controlled drug
Section 6(1)(b) MODA 1975
Produce/Manufacture
- no person shall
- produce or manufacture
- any controlled drug
Section 6(1)(c) MODA 1975
Supply Class A/B
- no person shall
- supply or administer or offer to supply or administer
- any Class A or Class B controlled drug
- to any other person
Section 6(1)(d) MODA 1975
Supply Class C Under18
- no person shall
- supply or administer or offer to supply or administer
- any Class C controlled drug
- to a person under 18 years of age
Section 6(1)(e) MODA 1975
Sell Class C Over18
- no person shall
- sell or offer to sell
- any Class C controlled drug
- to a person of or over 18 years of age
Section 6(1)(f) MODA 1975
Possession For Supply
- no person shall
- have in his possession
- any controlled drug
- for any of the purposes set out in paragraphs (c), (d) or (e) of s6(1) of MODA1975
Imports definition
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 (Saxton v Police) (R v Hancox)
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 bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters NZ territorial limits. Importing is a process. The element of importing exists from the time goods enter NZ 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 consigned or addressee.
What must Crown and prove in relation to imports?
- that they knew about the importation
- that they knew it was a controlled drug
- that they intended to cause importation
R v Martin (wilful blindness)
“It will suffice if Crown can prove beyond reasonable doubt that the accused had suspicions aroused but deliberately refrained from making further enquiries or confirming suspiciouns because they wanted to remain in ignorance. The fault lies in the deliberate failure to enquire when the accused knows there is reason for enquiry”
New Zealand
means the land and waters enclosed by the outer limits of the territorial sea of New Zealand. Outer limit is 12 nautical miles from the land mass of New Zealand.
Any controlled drug
means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2 or Schedule 3 to this Act, and includes any controlled drug analogue
Controlled drug analogue
means any substance, such as the substances specified or described in Part 7 of Schedule 3 to this Act, that has a structure substantially similar to that of any controlled drug but does not include;
- any substance specified or described in Schedule 1, 2 or 3 to this Act or,
- any pharmacy only medicine or prescription medicine or restricted medicine within the meaning of the Medicines Act 1981 or
- an approved product within the meaning of the Psychoactive Substances Act 2013
Class A
drugs specified or described in Schedule 1 of the Act
very high risk of harm
- cocaine, heroin, LSD (lysergide), methamphetamine, psilocybin (magic mushrooms)
Class B
drugs specified or described in Schedule 2 of this Act
high risk of harm
- amphetamine, cannabis preparations (oil + hashish), GHB, MDMA (ecstasy), morphine, opium, ephedrine
Class C
drugs specified or described in Schedule 3 of this Act, and includes any controlled drug analogue
moderate risk of harm
- cannabis plant and seed, benzylpiperazine, controlled drug analogues, pseudoephedrine
R v Strawbridge (guilty knowledge)
It is not necessary for the crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary 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.
Police v Emirali (useable quantity)
The serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance
Produce definition
means to bring something into being, or bring into existence from its raw materials or elements.
Includes compounds: to create a whole by mixing or combining two or more elements or parts
Manufacture definition
process of synthesis, combining components or processing raw materials to create a new substance. (Manufacturing meth from pseudoephedrine or heroin from morphine)
R v Rua (producing or manufacturing)
The words produce or manufacture in s6(1)(b) broadly cover the creation of controlled drugs by some form of process that changes the original substances into a particular controlled drug.
(Must specify one or the other tho)
Supply definition
To furnish or provide something that is needed or desired, includes to distribute, give and sell.
R v Maginnis (supply)
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.
Distribution definition
Supply of drugs to multiple people.
R v Donald held supply includes distribution of jointly owned property between co-owners.
Distribution is complete when defendant has done all necessary to accomplish delivery of drugs to others.
Giving definition
Involves handing over or in some way transferring an item to another person.
Can occur without an active transfer of drugs - ie a person passively permits another to help themselves from a cache of drugs.
Selling definition
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration
Administering definition
Different to supplying as it involves introducing a drug directly into another persons system
What must be proved in offer to supply/administer?
- communication of an offer to supply or administer
- intention that the other person believes the offer to be genuine
R v During (offer)
An offer is an intimation by the person charged to another that he is ready on request to supply that other, drugs of a kind prohibited by the statute
R v Brown (supply)
The defendant is still guilty in the following instances:
- offers to supply a drug that he has on hand
- offers to supply a drug that will be procured at a later 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
R v Brown (supply intimation)
The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence
What does “otherwise deals” mean in terms of drugs?
Bartering or exchanging
“To any other person”
Must prove that the drugs were supplied to another person, however you do not have to identify that person
R v Forrest and Forrest
Prosecution must adduce best evidence possible in the circumstances of proof of the victims age
“Sells” for s6(1)(e)
In absence of evidence to the contrary, a drug supplied to a person over 18 is presumed to be sold
R v Cox (possession)
Possession involves two elements. Physical element is the actual or potential physical control. The mental element is a combination of knowledge and intent. Knowledge in the sense of awareness by the accused that it is in his possession and an intention to exercise that possession
What must be proved for possession?
- knowledge the drug exists
- knowledge it is a controlled drug
- actual physical control or some degree of control over it
- intention to possess it
Control definition
Means to exercise authority or dominating influence or command over it. Can control an item not in their custody and can have something in their custody not under their control
What else can prosecution prove intent from?
- defendant admissions
- circumstantial evidence (packaging; scales, tick books)
- statutory presumption
Presumptive amounts
Heroin and cocaine 0.5g
LSD 2.5mg or 25 flakes/tabs
Meth and MDMA 5g or MDMA 100flakes/tabs
Cannabis resin/oil 5g
Cannabis plant 28g or 100 or more cigarettes
Section 6(2A) MODA 1975
Conspiring to deal with controlled drugs
- everyone who
- conspires with any other person
- to commit an offence against subsection (1) of this section
Conspiracy definition
An agreed intention which is common to the mind of conspirators and a common design to commit the offence, rather than any actual action.
Must be at least two persons involved in conspiracy.
Section 12A MODA 1975
Equipment, material and substances used in production or cultivation of controlled drugs
(1) supplying/producing/manufacturing equipment or material capable of being used or any precursor substance
(2) has in their possession the above with intention it is used in/for the commission of an offence
What must crown prove for offences under 12A(1)?
- defendant supplied/produced/manufactures equipment/material/precursors
- items are capable of being used in production or cultivation of controlled drugs or plants
- defendant knew those items are to be used for such an offence by another person
Precursor definition
Substance that is a starting point in chemical process that will result in the creation of a new drug.
(Acetic anlydride - heroin, lysergic acid - LSD, ephedrine/pseudoephedrine - meth)
What must the crown prove for charges under 12A(2)?
- defendant had equipment/material/precursors in his possession
- items are capable of being used in production/manyfacture or cultivation of controlled drugs or plants
- defendant has intention items are used for such an offence, by himself or another person
Section 9 MODA1975
Cultivation of prohibited plants
- no person shall
- cultivate
- any prohibited plants
(7 years)
What is a defence to section 9 MODA1975?
- proves plant was a species of palaver so nicer um and not intended to be source of a controlled drug
Section 12 MODA1975
Use of premises or vehicle
- knowingly permits
- any premises/vehicle/aircraft etc
- to be used for commission of an offence against this act
(Class A 10 years, Class B 7 years, any others 3 years)
Section 16 MODA1975
Obstruction of officers
- wilfully
- obstructs/hinders/resists or deceives
- any other person in the execution of any powers pursuant to this act
Urlich v Police (obstruction)
Obstruction is to impede or make more difficult, can be words.
What are the two types of controlled deliveries?
- “Clean controlled delivery” - no drugs left in consignment, only importing or conspiracy charges likely to result
- Leave an amount of drugs within consignment - enable option of possession for supply charges, provided ability to use emergency powers, remainder of drugs substituted, higher risk, recovery on termination is paramount
Where do the powers for controlled deliveries come from?
Section 12 of Misuse of Drugs Amendment Act 1978
- vested in customs officers only
- allowing delivery of unlawfully imported drugs or precursor for purposes of detection.
What Police powers to we have in relation to controlled deliveries?
Section 81 Search and Surveillance Act 2012
- searches of persons, places, vehicles relating to deliveries under s12 of misuse of drugs amendment act 1978
