Importing/Exporting - 6(1)(a)

Question 1

“Importation”

Answer 1

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.

~ Customs and Excise Act 2018, Section 5

Question 2

Saxton v Police

Answer 2

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

Question 3

Saxton v Police (Example)

Answer 3

In Saxton v Police, the defendant posted a parcel containing cannabis resin from London to an address in Dunedin. The parcel was intercepted by Customs, and on his return to New Zealand Saxton was charged with importing a Class B controlled drug. In his defence he argued that although he had exported the drugs from England, he had not imported the drugs into New Zealand, as he did not bring them in himself. The Court of Appeal held that “to import” includes “to bring in” but that the term also has a wider definition.

Question 4

Ways drugs are imported…

Answer 4

Controlled drugs are imported into New Zealand by air and sea using a variety of methods. Commonly drug importers will:

• have drugs concealed in or on their person, or in their luggage
• Have another person (a ‘mule’) bring the drugs in for them
• Send or have drugs sent by international mail or courier
• Conceal drugs inside legitimate goods, for example within shipping containers

Question 5

The Importing Process

Answer 5

Importation is a process that commences at the point of origin and continues until the drugs have reached their ultimate destination in New Zealand.

Criminal liability arises as soon as the drugs cross New Zealand’s border, and an importer may therefore be convicted under section 6(1)(a) even if the drugs are intercepted by Customs and never reach the addressee (the intended recipient).

However the offence does not end at the border; the process of importation continues while the goods are in transit, and only concludes when they have reached their final destination and are available to the consignee.
Anyone who knowingly assists in facilitating the process up until that point may be liable as a party to the importation.

In R v Hancox2 two parcels containing MDMA (Ecstasy) tablets were mailed from overseas to a post office box in Auckland. The defendant was arrested when she went to uplift one of the parcels, claiming that she had simply been asked to clear the box and had intended to deliver the parcel to the addressee. The Court of Appeal held that delivery into the post office box was the final step in the transit process and that the importation had ended; the woman’s involvement after that point could therefore not have aided or assisted in the importation.

Question 6

R v Hancox

Answer 6

“… 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 New Zealand’s territorial limits. Importing into New Zealand for the purposes of s 6(1)(a) is a process. 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 7

Guilty Knowledge in Importing

Answer 7

The Crown must prove not only that the defendant’s conduct in some way contributed to the actual importation of the drug, it must also prove the defendant’s guilty knowledge.

This will involve proof that the defendant:
- Knew about the importation, and
- Knew the imported substance was a controlled drug, and
- Intended to cause the importation.

Question 8

Wilful Blindness

Answer 8

In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.

In R v Martin3 the defendant was arrested when she arrived at Auckland airport with over $4 million worth of cocaine in her suitcase. She claimed she had no knowledge of the drugs despite the highly suspicious circumstances in which she had obtained the suitcase from Nigerian organised criminals.

In this matter the Judge stated “… it will suffice if the Crown can prove beyond reasonable doubt that the accused (importer) had her suspicions aroused as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance. If that is proved, the law presumes knowledge on the part of the accused. The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry”.

Question 9

Exportation

Answer 9

(a) in relation to goods, means the shipment of the goods in any craft for transportation to a point outside New Zealand, except where otherwise expressly provided;

Question 10

Time of exportation

Answer 10

Section 93, Customs and Excise Act 1996

(1) For the purposes of this Act, the time at which goods are treated as exported is the time when the exporting craft departs from the last Customs place at which the craft calls before proceeding to a point outside New Zealand.

Question 11

Exceptions Under Section 6(1)(a) Miss use of Drugs Act 1975

Answer 11

The offences of importing and exporting relate to any controlled drug, irrespective of class. However, note that the controlled drugs listed in Part 6 of Schedule 3 are not included under paragraph (a).