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Drugs Module > Misc 1 - Pg 1 - 34 > Flashcards

Misc 1 - Pg 1 - 34 Flashcards

1
Q

In relation to guilty knowledge (importing), what must the Crown prove?

A

The Crown must prove that the defendant:

• knew about the importation,
and
• knew the imported substance was a controlled drug, and
• intended to cause the importation.

(Proof that the Defendant deliberately turned a blind eye will suffice).

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2
Q

Definitions of New Zealand (S.5 Customs and Excise Act 2018?

A

New Zealand—

(a) Means the land and the waters enclosed by the outer limits of the territorial sea of New Zealand.

The outer limit of the territorial sea is 12 nautical miles from the landmass of New Zealand.

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3
Q

What is the definition of a Controlled Drug?

A

Controlled drug means SPAMA:

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.

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4
Q

What is a Controlled Drug Analogue?

A

So an analogue is any substance (other than the exceptions specified in the definition) with a structure substantially similar to a controlled drug.

It is a substance that has similar dangerous effects, but that is not specifically listed in the schedules to the Act.

CLASS C

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5
Q

What are Controlled Drug Analogue’s classed as?

A

All controlled drug analogues are classified as Class C controlled drugs irrespective of the class of drug they resemble.

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6
Q

Define Class A?

What risk level do Class A pose on individuals and society?

A

Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act.

Class A controlled drugs are classified as such as their misuse poses a very high risk of harm to individuals and to society.

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7
Q

What are some examples of Class A drugs?

A

Some of the more well-known Class A controlled drugs include:

  • Cocaine
  • Heroin
  • Lysergide (LSD)
  • Methamphetamine
  • Psilocybine (found in magic mushrooms)
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8
Q

Define Class B?

What risk level do Class B pose on individuals and society?

A

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

Class B controlled drugs are those that pose a high risk of harm.

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9
Q

What are some examples of Class B drugs?

A
  • Amphetamine
  • Cannabis preparations (such as cannabis oil and hashish)
  • GHB (Fantasy)
  • MDMA (Ecstasy)
  • Morphine
  • Opium
  • Pseudoephedrine
  • Ephedrine
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10
Q

Define Class C?

What risk level do Class C pose on individuals and society?

A

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

Class C controlled drugs pose a moderate risk of harm.

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11
Q

What are some examples of Class C drugs?

A
  • Cannabis plant
  • Cannabis seeds
  • Benzylpiperazine (BZP)
  • Controlled drug analogues
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12
Q

If the person is mistaken as to the controlled drug is that a defence?

A

While guilty knowledge is an essential element,

section 29 provides that it is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.

For example, it would not be a defence to a charge of supplying heroin if the defendant believed the drug he had supplied was in fact cocaine.

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13
Q

In relation to any drug offence, the quantity of the drug must be…?

A

In any drug offence the quantity of drug involved must be measurable and useable.

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14
Q

What is Producing and what is Manufacturing?

A

As such ‘producing’ can be described as changing the nature of the original substance, and

‘manufacturing’ as creating a different or new substance from the original materials.

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15
Q

Producing MODA definition?

A

Produce includes compound; and production has a corresponding meaning.

To “compound” means to create a whole by mixing or combining two or more elements or parts.

EXAMPLE:
The separating out of component parts may amount to production, such as separating cannabis resin (oil) from cannabis plant, as this creates a new form of the drug.

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16
Q

Manufacturing MODA definition?

A

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

Common examples include manufacturing methamphetamine from pseudoephedrine, or manufacturing heroin from morphine.

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17
Q

When is the offence of producing or manufacturing complete?

A

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

For example in R v Rua, methamphetamine in suspension in a two-layered liquid, although not capable of being used in that state, was held to have been manufactured.

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18
Q

What does Section 29B deal with?

A

Cannabis preparations

Section 29B deals specifically with producing cannabis preparations.

It provides that a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material – for example, producing cannabis oil or baking a cannabis cake.

It is for the prosecution to prove that the preparation to which the charge relates contains any tetrahydrocannabinols.

This process has the ability to change a class C to B.

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19
Q

What is the definition of supply?

A

Furnish or provide something that is needed or desired.

Supply includes distribute, give, and sell

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20
Q

What is the definition of distribution?

A

The term “distribution” relates to the supply of drugs to multiple people

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21
Q

What is the definition of giving and when is it complete?

A

“Giving” involves handing over or in some other way transferring an item to another person.

The act of giving is complete when the recipient accepts possession, or where the drug is placed under the control of a willing recipient.

22
Q

What is the definition of selling?

A

A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.

commonly money, however other examples are exchanging cannabis for real estate.

23
Q

What is the definition of administering?

A

Administering is distinguished from supplying in that it involves introducing a drug directly into another person’s system.

24
Q

What are the 2 elements that the prosecution must prove in relation to offering to supply or administer?

A

The prosecution must prove two elements:

  • the communicating of an offer to supply or administer a controlled drug (the actus reus)
  • an intention that the other person believes the offer to be genuine (the mens rea).
25
Q

Possession definition (Physical element)

A

Physical Element:

This element requires physical custody or control over the drugs. This can be either actual or potential.

Actual custody or control:
Means that the person actually has the drug in their custody or control. For example, if the drug is found in their pocket, or in a vehicle that person has the keys for.

Potential custody or control:
Section 2(2) of MODA states that “For the purposes of this Act, the things which a person has in his possession include anything subject to his control which is in the custody of another.” An example of this is if a person is storing their drugs at a friend’s house. A defendant can exercise control of property through an agent, however exercise of control must be established.
26
Q

Possession definition (Mental element)

A

Mental Element:

The mental element requires a combination of knowledge and intention.

Knowledge:
Knowledge requires that the defendant had “knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed)”. The defendant must also have knowledge “that what is in his possession is a controlled drug; although he need not know its exact nature”23.

Intention: Willingness to possess
The defendant must have intended to exercise possession.

27
Q

Define Control?

A

Control

To “control” something means to exercise authoritative or dominating influence or command over it.

28
Q

Possession in drugs cases it will be necessary for the Crown to prove that the defendant had?

A
  • knowledge that the drug exists
  • knowledge that it is a controlled drug
  • actual physical control or some degree of control over it
  • an intention to possess it
29
Q

What is purpose?

A

An aim or intention

30
Q

Define intention?

A

In a criminal law context there are two specific types of intention:

Firstly there must be an intention to commit the act and secondly, (act or omission must be done deliberately must be more than involuntary or accidental.)

an intention to get a specific result (aim, object, or purpose)

31
Q

Penalty for contravening subsection (1) of section 6 MODA 75?

A

Class A - Life
Class B - 14 Years
Class C - 8 Years

Conspires:
Class A - 14 Years
Class B - 10 Years
Class C - 7 Years

32
Q

If a person is proved to have supplied a drug to another person, are they deemed to have sold that controlled drug to the other person?

A

Yes, section 6(5) MODA 75

33
Q

Discuss the presumption, section 6(6) MODA 75?

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

34
Q

Controlled drugs are imported into NZ via a variety of methods, what are some examples?

A
  • Drugs on person or in their luggage
  • Using another person (mule)
  • Send of have drugs sent by international mail or courier.
  • conceal drugs in legitimate goods, eg. shipping container.
35
Q

What is the definition of imports/importation?

A

importation,—
(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 …

36
Q

Importation, when does criminal liability arise?

A

As soon as the drugs cross the NZ border, even if the drugs are intercepted by customs.

Concludes when they have reached their final destination and are available to the consignee.

37
Q

In terms of wilful blindness, what proof do you need against the defendant?

A

That the defendant turned a blind eye.

Had suspicion but deliberately refrained from making further enquiries.

38
Q

Must the prosecution prove usable quantity?

A

not necessary for the prosecution to prove

that fact unless the defendant puts the matter in issue.

39
Q

When is the offence of manufacturing or producing complete?

A

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

40
Q

Distributing, does it include supply to co-owners? and when is distribution complete?

A

Supply includes the distribution of jointly
owned property between its co-owners.

The distribution is complete when the defendant has done all that is necessary to accomplish delivery of the drug to others

41
Q

In relation to offering to supply or administer, what 2 elements must the prosecution prove?

A

The prosecution must prove two elements:
• the communicating of an offer to supply or administer a controlled drug
(the actus reus)
• an intention that the other person believes the offer to be genuine (the
mens rea).

R v During supports this.

42
Q

If a defendant intends to rip off another person by offering something that is not really a drug, what are they guilty of?

A

Sentencing will be based on the equivalent dishonesty offence.

43
Q

How can an offer be conveyed?

A

In any manner, including by words, writing or

gestures

44
Q

If a person makes an offer, is it necessary to prove that the person making the offer actually had the capacity to supply the drug?

A

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

45
Q

The prosecution must prove drugs were supplied to another person, is it necessary to ID that person? Also what is the definition of any other person?

A

The prosecution must prove that the drugs were supplied to another person,
although it is not necessary to identify that person.

The offence is gender neutral, and the fact that the person supplied is a “person” is generally accepted by judicial notice or proved by circumstantial
evidence.

46
Q

Proof of age, what is the best way to prove a persons age?

A

generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person
named in the certificate.

47
Q

In relation to, if it is proved a person has supplied a controlled drug they shall until the contrary is proved deemed to have sold that controlled drug, at what level of proof must the defendant prove the sale didn’t occur?

A

The effect of this provision is to require the defendant to prove on the balance
of probabilities that there was no sale.

48
Q

What is the definition of potential custody of control?

A

The things which a person has in his possession include anything subject to his control which is in the custody of another.”

49
Q

In considering whether a person knows the qualities of a substance, you need to establish that they?

A
  • Know they have the substance
  • Know the substance nature and qualities
  • Intend to use the substance in a way that allows you to charge them with possession

A genuine lack of awareness (cannabis growing by mother who didnt know plants were that), this exludes knowing possession and thereby intent.

50
Q

Potential possession of drugs?

A

The things which a person has in his possession include anything subject to his control which is in the custody of another.

51
Q

In relation to joint possession, where more then one person has access to drugs of saleable quantity, what must you prove prior to prosecuting for such charge?

A

That there was a shared intention to sell the drugs.

Drugs Module (6 decks)

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