Drugs

Question 1

Definition of ‘import’ using case law.

Answer 1

Saxton v Police

To import includes “to introduce from abroad or to cause to be brought in from a foreign country”.

Question 2

Discuss the findings in regards to the importing process using case law.

Answer 2

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.

Question 3

Define the terms producing and manufacturing using case law.

Answer 3

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.

Question 4

What is the difference between producing and manufacturing?

Answer 4

To produce means to bring something into being, or to bring something into existence from its raw materials or elements.

Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.

Question 5

Define the element of supply.

Answer 5

s2, Misuse of Drugs Act 1975
Includes to distribute, give or sell

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…”

Question 6

Define distribution.

Answer 6

The term distribution relates to the supply of drugs to multiple people.

Question 7

Discuss proving age using case law.

Answer 7

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

R v Forrest and Forrest

Question 8

Define the element of intent regarding drug dealing.

Answer 8

A person does something intentionally if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it.

R v Mohan
“[Intent involves] a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence…”

R v Waaka
A “fleeting or passing thought” is not sufficient; there must be a “firm intent or a firm purpose to effect an act”.

Question 9

Define conspiracy.

Answer 9

An agreement between two or more persons to commit an offence.

Question 10

Define importation from the Customs and Excise Act.

Answer 10

Importation
S2, Customs and Excise Acts 1996
(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.

Question 11

Discuss exportation from Customs and Excise Act.

Answer 11

Time of exportation
S53, Customs and Excise Act 1996
For the purpose 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.

Question 12

Define controlled drug.

Answer 12

s2, MODA 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.

Question 13

When is producing or manufacturing complete?

Answer 13

Complete

The offence is complete once the prohibited substance is created, whether or not it is in a useable form.

Question 14

Define otherwise deals in

Answer 14

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

Question 15

Define class A/Class B controlled drug.

Answer 15

s2, MODA 1975

Means any controlled drugs specified or described in Schedule 1/2 to this Act.

Question 16

Define person.

Answer 16

Gender neutral. Proven by judicial notice or circumstantially.

Question 17

Define class C controlled drug.

Answer 17

s2, MODA 1975

Means any controlled drugs specified or described in Schedule 3 to this Act, and includes any controlled drug analogue.

Question 18

Define sell from lesson notes.

Answer 18

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.

Question 19

What is the MODA definition of sell specific to s6(1)(e)?

Answer 19

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 another person.
s6(5), MODA 1975

Question 20

What 2 things need to be proved for offers to sell?

Answer 20

The prosecution must prove two elements
- the communicating of an offer to sell a controlled drug
AND
- an intention that the other person believes the offer to be genuine

Question 21

What is the MODA definition of possession?

Answer 21

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.
s2(2), MODA 1975

Question 22

Define actual possession from lesson notes and case law.

Answer 22

Actual possession
Actual possession arises where the thing in question is in a persons physical custody; it is on or about their person or immediately at hand.

Ideal possession (actual)
The term possession must be give a sensible and reasonable meaning in its context. Ideally a possessor of a thing has
- complete physical control over it
- knowledge of its existence, it’s situation and its qualities
Warner v Metropolitan Police Commissioner

Question 23

Define constructive possession.

Answer 23

Constructive possession arises when something is not in a persons physical custody, but they have ready access to it or can exercise control over it.

Question 24

Discuss the concept of presumption regarding dealing with controlled drugs.

Answer 24

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 s2(1A)).
s6, MODA 1975

Question 25

Outline the penalties for the different classes of drugs.

Answer 25

Class A = life
Class B = 14 yrs
Class C = 8 yrs

Question 26

List 5 Class A drugs.

Answer 26

Cocaine
Heroin
LSD
Methamphetamine
Magic mushrooms

Question 27

List 7 Class B drugs.

Answer 27

Amphetamine
Cannabis oil and hashish
GHB (fantasy)
MDMA (ecstasy)
Morphine
Opium
Pseudoephedrine

Question 28

Give 4 examples of Class C drugs.

Answer 28

Cannabis plant
Cannabis seeds
BZP
Controlled drug analogues

Question 29

Discuss the concept of ‘offering’ using case law.

Answer 29

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.
R v During

Offering to supply
- 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
R v Brown

Question 30

From which case does this come?

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.

Answer 30

R v During

Question 31

The offence is complete once the prohibited substance is created…

Answer 31

…whether or not it is in a useable form

Question 32

In the element of offering to administer, Brown and During make up part of the discussion. What is the other part of that discussion?

Answer 32

It is not necessary to show the person making the offer to supply actually intended to supply the drug.

Question 33

Define administers.

Answer 33

Blacks Law Dictionary
In the context of drug dealing, the appropriate meaning of administer is to direct and cause a drug to be taken into the system of another person.

Question 34

What are the three discussion points that appear in every liability?

Answer 34

Guilty knowledge
This will involve proof that the defendant:
- knew about the drug dealing
AND
- knew the drug was a controlled drug
AND
- intended to cause the drug dealing

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.

Police v Emerali
In any drug offence the quantity of drug must be measurable and useable.

“…the serious offences of…possessing a narcotic does not extend to some minute and useless residue of the substance.”