Drugs Flashcards
Define cannabis leaf
Section 3 drug misuse and trafficking act means any plant or part of a planet of the genus cannabis by whatever name that plant or part may be called and includes the achene and seed of any such plant but does not include:
A) cannabis oil
B) any fibre of any such plant or part from which the resin has been extracted or
C) cannabis plant
Define cultivate
Section 3 drug misuse and trafficking act
Cultivate in relation to a prohibited plant includes a) sow scatter the seed produced by the prohibited plant and
B) plant, grow, tend, nurture or harvest the prohibited plant
Define supply
Section 3 drug misuse and trafficking act
Supply includes sell and distribute and also includes agreeing to supply or offering to supply or keeping or having in possession for supply or sending forwarding delivering or receiving for supply or authorising direction causing suffering permitting or attempting any of those acts
What is a DDU?
A discrete dosage unit. And refers to an amount of prohibited drug not greater then the amount if any in column 6 of schedule 1 which is prepare or apparently prepared for the purpose of being administered as a single dose
Section 3 drug misuse and trafficking act
Define use and administer
Section 5 drug misuse and trafficking act means a reference to the ingestion, injection, inhalation of prohibits drug, the smoking of a prohibited drug, the inhalation of fumes caused by the hearing and burning of a prohibited drug and any other means of introducing a prohibited drug into the body of a person.
What is meant by cultivating a prohibited plant for a commercial purpose?
S23A drug misuse and trafficking act defines it as cultivating the plant a) with the intention of selling it or any of its products or
B) with the belief that another person intends to sell it or any of its products
Is watering a cannabis plant an offence?
Yes. R v Kirkwood held that it is sufficient to constitute the cultivating a prohibited plant that a person watered a plant so as to promote its growth. There was no suggestion that the engagement was other then for watering plants
What are the elements of the offence of possess prohibited drug?
R v Cottrell: police must establish that the substance was in their possession and the substance is a prohibited drug.
What is the possession?
Possession = knowledge and control (he kaw teh v the queen 1985)
What is important about he kaw teh v the queen?
It’s the leading authority on possession. Held: possession connotes knowledge in the existence of the thing possessed. In charges involving the possession of drugs prosecution bear the onus of providing that the accused knew of the existence of the foods which were in a suitcase or other container over which he had exclusive physical control.
If the suspicions of an incoming traveler are aroused and he deliberately refrains from making inquiries for fear he may learn the truth his wilful blindness may be treated as an equivalent to knowledge.
What is important about he kaw teh v the queen?
It’s the leading authority on possession. Held: possession connotes knowledge in the existence of the thing possessed. In charges involving the possession of drugs prosecution bear the onus of providing that the accused knew of the existence of the foods which were in a suitcase or other container over which he had exclusive physical control.
If the suspicions of an incoming traveler are aroused and he deliberately refrains from making inquiries for fear he may learn the truth his wilful blindness may be treated as an equivalent to knowledge.
What is important about he kaw teh v the queen?
It’s the leading authority on possession. Held: possession connotes knowledge in the existence of the thing possessed. In charges involving the possession of drugs prosecution bear the onus of providing that the accused knew of the existence of the foods which were in a suitcase or other container over which he had exclusive physical control.
If the suspicions of an incoming traveler are aroused and he deliberately refrains from making inquiries for fear he may learn the truth his wilful blindness may be treated as an equivalent to knowledge.
Do you have to prove knowledge that it was a particular drug?
No. R v Dunn 1988. If an offence of being in possession of a prohibited drug it is sufficient that the crow establishes the accused had in his possession a prohibited drug and that he knew or believed the thing which he had in possession was a prohibited drug. It is not necessary to establish that be knew it was a prohibited drug of the kind charged.
Do you need to prove exclusive possession.
You need to prove knowledge of the possession. r v fillepetti required exclusive possession because no knowledge was admitted and there was insufficient evidence to enable the jury to rule out the possibility that the buddha sticks were in the possession of one of the other occupants or enough evidence to conclude beyond reasonable doubt that the buddha sticks in the chair were in the exclusive control of the applicant.
What if you forget you had a drug in your possession?
Irrelevant had knowledge at the time of placing the drug in the location. R v Martindale held that possession does not depend on the alleged possesses powers of memory nor does possession come and go as memory revives or fails
How long does the person have to have possession for what if it was momentary?
Momentary physical control over a drug for the purpose of concealment can constitute possession in law e.g. drugs on kitchen table r v Todd and buddha sticks on verandah r v Thomas
What if they deny knowledge how can you prove it.
Pereira v public prosecution’s (1988) the question is knowledge of the accused not a hypothetical person. Prosecution must establish that from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rationale inference available.
This is for wilful blindness as well
Does returning drugs to the original owner constitute supply?
No. Carey SWCCA held that returning drugs to original owner by a person who was holding them for the purposes of safe keeping does not amount to supply or possession for purposes of supply.
Should police charge for minute quantities of drugs.
No. The act contemplates possession not if minute quantity incapable of discernment by the naked eye and detectable by only scientific means but a possession of such quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug which the person is presently in possession.
Williams v the queen “fluffy cannabis case”
Also r v warneminder (trace powder on scales)
Is there a statute of limitations on charges under the drug misuse and trafficking act?
Yes. Section 9 of the act provides that all offences outlined in part 1 are strictly summary offences a d there must be filed within 6 months from the date of the offence in accordance with s179(1) criminal procedure act)
Does the hamzy Principal apply to drug cases?
Yes r v hamzy applies and is a case where supply of drugs was alleged between dates
What are drugs for the purposes of the drug misuse and trafficking act?
All substances listed in schedule 1 of the act
What are 3 summary drug offences?
S9 drug misuse and trafficking act provides that the following offences are to be prosecuted summarily:
S10 DMTA possession of prohibited drug
S11 DMTA possession of equipment for the administration of prohibited drug
S12 DMTA self administration of prohibited drug
What is the penalty for a part 1 summary offence
S21 DMTA provides 20 penalty units or 2 years imprisonment or both
Is possession of a prohibited plant a summary or indictable offence?
Indictable. The offence of possess prohibited plant is an offence under s23(c) part 2 of the act. Section 22 DMTA provides that any offence under part 2 must be dealt with under indictment
What is section 23 DMTA?
Prohibited plant offences.
S23(1)a cultivate or knowingly take part jn cultivation
B) supply or knowingly take part in supply
C) possession of prohibited plant
S23(1)A cultivation by enhanced indoor means
Section 23(2) cultivate, supply or possession of not less then indictable quantity
What is section 24 DMTA?
Manufacture and production of prohibited drugs
What offences are set out in section 25 DMTA?
S25(1) supplying or knowingly takes part in the supply of a prohibited drug.
S25(1A) supply to person under age of 16 by person 18 years and above
S25(2) supply not less then commercial quantity
S25(2A) supply commercial quantity to person under 16 years
What offences is captured by 25A DMTA what is the criteria?
Supply prohibited drugs on ongoing basis
- three or more occasions over 30 consecutive days for financial/material reward
- Does not include cannabis
- can be different drugs
- strictly indictable (district court)
What is section 29 DMTA
Deeming provision, that more then traffickable quantity is deemed to be supply unless
A) the person proves in possession not for supply or
B) under a prescription.
If over the traffickable quantity what offence has been committed?
Either possession of a prohibited drug s10 or supply where other evidence of supply indicia available under section 25
What is the authority of O’Brien v Smith relevant for?
For deemed supply offences additional evidence of the motive for possession is required.
What does section 30 DMTA provide for.
Provides for summary disposal of the offences unless prosecution elect other wise making them table 2 offences.
Offences include supply of drug and prohibited plant offences where quantity is not more then small quantity
What is section 31 DMTA
Provides that offences are to be dealt with summarily unless elected by prosecution or defence (table 1 offence)
Offences include supply or prohibited drug or plant offences where quantity is not more than indictable quantity. 31(e)
What jurisdiction will matters involving above indictable quantities of prohibited drugs be held in.
Strictly indictable so must be district or supreme court.
What is s 43 DMTA
Analysis certificate is prima facie evidence of drug, weight, plant or weight.
What if someone says he is supplying heroin but it’s baby powder?
Section 40 DMTA provides that if the substance is proported to be a prohibited drug for purpose of supply then it will be deemed to be a prohibited drug
Which court will large commercial supplies of prohibited drugs be heard in?
Supreme court as carry life imprisonment s33(3)(a)
Possession of 35 cannabis plants.
Possess prohibited plant.
Section 23(1)(c) drug misuse and trafficking act
Table 1 due to section 31.
Local or district court
Supply 220 cannabis plants
Supply prohibited plant
Section 23(1)(b) DMTA supply prohibited plant
Strictly indictable
District court
Possession of 3.5grams of heroin
Possess prohibited drug more then small quantity less then indictable quantity.
Section 10 possession prohibited drug
Strictly summary
Local court
OR by virtue of deeming provision section 29 DMTA supply where other indicia under section 25(1)(c)
Table 1 offence (section 31(e))
Local or district court
Supply 0.9grams heroin
Supply prohibited drug less then small quantity
Section 25(1)(c) supply prohibited drug
Table 2 offence
Local court OR district court if election
25kg of cannabis leaf
Supply prohibited drug more then commercial quantity
Section 25(2) supply prohibited drug
Strictly indictable
District/Supreme local court
