Drugs

Question 1

Dealing with controlled drugs - Section 6 Misuse of Drugs Act 1975

Answer 1

(1) no person shall—
(a) import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3; or
(b) produce or manufacture any controlled drug; or
(c) supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(d) supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e)

Question 2

Dealing with Controlled drugs - Section 6 (2A) MODA 1975

Answer 2

Every person who conspires with any other person to commit an offence against subsection (1) commits an offence against this Act and is liable on conviction to imprisonment for a term—

(a) not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) not exceeding 10 years where paragraph (a) does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) not exceeding 7 years in any other case.

Question 3

Supplies equipment / precursors - Section 12A (1) MODA

Answer 3

(1)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.

(3) Every person who commits an offence against this section is liable on conviction,—
(a) in the case of an offence against subsection (1), to imprisonment for a term not exceeding 7 years:

Question 4

Possession of equipment / precursors - Section 12A (2) MODA

Answer 4

(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.

(3) Every person who commits an offence against this section is liable on conviction,—
(b) in the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.

Question 5

What was held in R v STRAWBRIDGE

Answer 5

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 she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.

Question 6

What was held in Police v EMERALI

Answer 6

In any drug offence the quantity involved must be measurable and useable, The serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.

Question 7

What was held in R v RUA

Answer 7

The words produce or manufacture broadly covers the creation of controlled drugs by some process which changes the original substance into a particular controlled drug.

Question 8

What was held in R v DURING

Answer 8

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 statute.

Question 9

What was held in R v BROWN in regard to genuine offer

Answer 9

The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence

Question 10

What was held in R v BROWN in regards to ways offer could arise

Answer 10

• Offers to supply a drug he has on hand
• Offers to supply a drug that will be procured at some future date
• Offers to supply a drug he mistakenly believes he can supply
• Offers to supply a drug deceitfully, knowing he will not supply that drug.

Question 11

What was held in Warner v Metropolitan Police Commissioner - possession

Answer 11

The term possession must be given a sensible and reasonable meaning in its context. Ideally a possessor of a thing has:

• Complete physical control over it
• Knowledge of its existence, its situation and its qualities

Question 12

What was held in R v MAGINNIS - supply

Answer 12

Supply involves more than a mere transfer of physical control and includes enabling the recipient to apply the thing to purposes for which he desires.

Question 13

Define imports - Section 2 Customs and Excise Act 1996

Answer 13

In relation to goods, means the arrival of goods into NZ in any manner, whether lawfully or unlawfully from a point outside of NZ.

Question 14

What must be proved to show guilty knowledge

Answer 14

• Knew about the drug offending; and
• Knew the substance was a controlled drug; and
• Intended to cause the drug offending

Question 15

Define controlled drug - Section 2 MODA

Answer 15

Any substance, preparation, mixture or article, specified or described in schedules 1, 2, or 3 of this act, and includes any controlled drug analogue.

Question 16

Define Produce

Answer 16

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

Question 17

Define manufacture

Answer 17

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

Question 18

When is the offence of manufacturing/producing complete

Answer 18

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

Question 19

Define possession

Answer 19

Possession may be actual or constructive.
Actual possession arises when the thing in question is in a person’s physical custody, it is on or about their person or immediately at hand.

Question 20

Define supply - Section 2 MODA

Answer 20

Includes to distribute give or sell

Question 21

Define sells

Answer 21

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 22

Dealing with controlled drugs - Section 6(5) MODA

Answer 22

For the purposes of paragraph (e) of subsection (1), 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

Question 23

Presumption for supply - Section 6(6) MODA

Answer 23

Section 6(6) –For the purpose 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 section (1)©(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.

Question 24

Rebuttal of presumption for supply.

Answer 24

The presumption that the drug is for sale or supply may be rebutted if the person is able to prove on the balance of probabilities, that they did not intent to commit a dealing offence, not withstanding the amount. For example the defence may argue that the suspect was heavily addicted and required large amounts for personal use.

Question 25

Define Class A controlled drug

Answer 25

Means any controlled drug specified or escribed in Schedule 1 to this Act.

Question 26

Define purpose - drug dealing

Answer 26

in this context can be equated to aim or intention

Question 27

Define Exports - Section 53 Customs and Excise Act 1996

Answer 27

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 28

Define Controlled drug analogue - Section 2 MODA

Answer 28

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 –

(a) Any substance specified or described in Schedule 1 or 2 or parts 1 to 6 of schedule 3 to this act, or
(b) Any pharmacy only medicine or prescription medicine within the meaning of the medicines Act 1981, or
(c) An approved product within the meaning of the psychoactive substances act 2013

Question 29

Define Administers - Blacks law Dictionary

Answer 29

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 30

What needs to be proven for an offer to sell/supply

Answer 30

The prosecution must prove two elements
• The communication of an offer to sell a controlled drug (the actus reus) and
• An intention that the other person believes the offer to be genuine (mens rea)

Question 31

Define otherwise deals

Answer 31

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.

R v Hooper and another – the example which readily comes to mind is barter or exchange

Question 32

Define Class B controlled drug - Section 2 MODA

Answer 32

Class B controlled drug means the drugs specified or described in Schedule 2 to this act.

Question 33

Define Class C controlled drug - Section 2 MODA

Answer 33

Class C controlled drug means the drugs specified or described in Schedule 3 to this act and includes any controlled drug analogue.

Question 34

Intent to supply - what needs to be proved

Answer 34

Although the Crown must prove the defendant intended the other person to believe the offer, it is not necessary to prove that he had the capacity to supply the drugs.