MODA Drugs Flashcards
S6 MODA 75
6(1)
No on shall
a) IMPORT/EXPORT any controlled drugs.
b) MANUFATURE/PRODUCE any controlled drugs.
c+d) SUPPLY / ADMINISTER / OFFER Class A or B drugs to anyone OR Class C Drugs to under 18 year olds
e) SELL/OFFER Class C drugs to over 18 year olds
f) POSSESS for sale/supply (to c-e)
2A Conspire to do any of the above
Controlled Drug
any SPAM (substance, preparation, mixture or article) specified in Schedules 1, 2 and 3. Includes temporary class drugs and CDAs (Controlled Drug Analogues).
Controlled Drug Analogue
any substance that has a chemical structure substantially similar to that of any controlled drug.
Classified as Class C
Class A Controlled Drugs
Schedule 1 – cocaine, heroin, LSD, methamphetamine, psilocybine
Penalties
List
Class B Controlled Drugs
Schedule 2 – amphetamine, cannabis preparations (resin/oil), MDMA, morphine, opium, fentanyl
Class C Controlled Drugs
Schedule 3 – cannabis fruit/plant/seed, BZP, codeine
R v Strawbridge
In the absence of evidence to the contrary, knowledge on the part of the accused will be presumed.
In the absence of evidence to the contrary, knowledge on the part of the accused will be presumed.
R v Strawbridge
Police v Emerali
the serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.
Traces are circumstantial evidence.
the serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.
Traces are circumstantial evidence.
Police v Emerali
Saxton v Police
imports includes to cause something to be brought in from outside NZ, a letter being posted.
R v Hancox
Importing is complete when the drugs reach the NZ Customs – border, don’t need to reach the importer’s address. Importation charge inappropriate if innocent person picks up parcel at Customs.
Importing is complete when the drugs reach the NZ Customs – border, don’t need to reach the importer’s address. Importation charge inappropriate if innocent person picks up parcel at Customs.
R v Hancox
R v Rua (Produce/Manufacture)
Produce or manufacture means the creation of controlled drugs by some form of PROCESS which changes the original substance into a particular controlled drug.
Offence is complete when the prohibited substance is created, whether or not it is usable in its form eg meth in liquid was still manufactured.
R v During
an intimation by the defendant to another that he is ready on request to supply a controlled drug.
an intimation by the defendant to another that he is ready on request to supply a controlled drug.
R v During
R v Brown
the offence is the intimation with the intention that it should be understood to be a genuine offer. Offering covers drugs that would be procured, that one mistakenly believed he could supply, or that were offered for supply deceitfully knowing they would not be supplied.
the offence is the intimation with the intention that it should be understood to be a genuine offer. Offering covers drugs that would be procured, that one mistakenly believed he could supply, or that were offered for supply deceitfully knowing they would not be supplied.
R v Brown
R v Forrest and Forrest
In attaining proof of age, the Prosecution should use the best evidence possible in the circumstances.
In attaining proof of age, the Prosecution should use the best evidence possible in the circumstances.
R v Forrest and Forrest
R v Cox
proving possession requires proof of both the physical element of actual/potential possession (eg eg in their pocket or in a house he had keys for), and the mental element of knowledge that the substance is in his possession AND is a controlled drug, and an intention to exercise possession.
proving possession requires proof of both the physical element of actual/potential possession (eg eg in their pocket or in a house he had keys for), and the mental element of knowledge that the substance is in his possession AND is a controlled drug, and an intention to exercise possession.
R v Cox
Cameron v R
R is established if the defendant recognises there was a real possibility that something COULD happen and whether his actions were reasonable (Objective Test) given the understood risk, and the risk was unreasonable.
R is established if the defendant recognises there was a real possibility that something COULD happen and whether his actions were reasonable (Objective Test) given the understood risk, and the risk was unreasonable.
Cameron v R
Control
To exercise authoritative or dominating influence over it. Can control an item NOT in their physical custody
Imports
the lawful or unlawful arrival of a good in NZ from a point outside of NZ.
Saxton v Police
R v Hancox
Export
shipment of the goods in any craft to a point outside of NZ. Commences with the first act intended to export the drugs, and concludes when the drugs leave NZ. NZ – the land and waters enclosed by the outer limits of the territorial sea of NZ.
Intent
In relation to (1)(a) – means an act/omission was done deliberately, must be more than involuntary or accidental.
Need to show Defendant:
-Knew about the importation or was wilfully blind
-Knew or was reckless as to the imported substance being a controlled drug
-Intended to cause the importation
R v Colister
Knowledge
Being free from doubt.
R v Strawbridge
Mistakes as to drug type – s29
not a defence that defendant didn’t know the substance was the particular controlled drug.
Willful Blindness
Goes towards proving guilty knowledge, that the defendant deliberately turned a blind eye to the facts.
R v Martin
R v Martin
Defendant claimed she didn’t know $4 million of drugs from Nigerian criminals in her suitcase. Sufficient for Crown to prove BRD that she had suspicions but deliberately refrained from asking.
Defendant claimed she didn’t know $4 million of drugs from Nigerian criminals in her suitcase. Sufficient for Crown to prove BRD that she had suspicions but deliberately refrained from asking.
R v Martin
Recklessness
Recklessness – conscious and deliberate taking of an unjustified risk.
Objective Test – were his actions those of a law abiding citizen.
Cameron v R
Produce
to bring something into existence from its raw materials/elements eg dried magic mushrooms pills =/ “produce”, but making cannabis oil is.
Manufacture
the process of synthesis; combining components or processing raw materials to create a new substance.
R v Rua
Supply
To distribute, give and sell.
Must confer on the recipient the ability to use the drugs for his own purpose.
R v Maginnis
R v Maginnis
supply involves more than the mere transfer of physical control, it means enabling the recipient to use the drugs for his intended desires. Eg giving drugs to a drug dealer = supply.
supply involves more than the mere transfer of physical control, it means enabling the recipient to use the drugs for his intended desires. Eg giving drugs to a drug dealer = supply.
R v Maginnis
Distribute (within “supply”)
supply to multiple people.
R v Donald
R v Donald
Supply includes the distribution of drugs between joint owners.
Supply includes the distribution of drugs between joint owners.
R v Donald
Give (within “supply”)
To hand over to enable another person to use the drug for his own purposes. Is completed when the willing recipient accepts possession/control.
R v Wildbore
R v Wildbore
Giving can occur without the active transfer of the drug. A passive custodian who relinquishes custody of drugs to meet the needs of another has the necessary intent for supply (drugs co-owned in shed).
Giving can occur without the active transfer of the drug. A passive custodian who relinquishes custody of drugs to meet the needs of another has the necessary intent for supply (drugs co-owned in shed).
R v Wildbore
Sell (within “supply”)
exchange of goods in return for valuable consideration. Anything of value will suffice, eg services.
c) and d) Administer
introducing a drug directly into another person’s system, to cause a drug to be taken into the system eg drink, blowing smoke.
e) Offer
Requires the communication (words, gestures or writing) of an offer to supply/administer a controlled drug (actus reus) AND the intention that the other person believes the offer to be genuine (mens rea). Does not require the capability to do so.
Ie don’t need to actually give drugs, just offer them causing the recipient to believe they will be sold drugs eg from prior dealings.
R v During
R v Brown
Sell within e) Sell/Offer
s6(5) in this instance, if it is proved that a person supplied a controlled drug to another person, it shall be deemed to have been sold (until proven otherwise)
Possession
R v Cox – proving possession requires proof of both the physical element of actual/potential possession (eg eg in their pocket or in a house he had keys for), and the mental element of knowledge that the substance is in his possession AND is a controlled drug, and an intention to exercise possession.
Otherwise deals with
other than by distributing, giving or selling, administering or offering to do so – eg bartering
Purpose (as in “For the purpose of c), d) and e)”)
aim, intention specified in c to e.
Intents in c to e must be: intended to commit the act AND intended to get a specific purpose.
To any person
gender neutral.
The person is a person accepted by Judicial Notice or proven by circumstantial evidence.
Persons under 18
requires proof of age at the time of alleged offence using the best evidence available eg birth certificate and independent evidence identifying the victim eg from a parent.
R v Forrest & Forrest
Residual vs Usable Quantity
traces will not be sufficient, however may provide circumstantial evidence.
s29A - That a substance IS of usable quantity is for the Defence to question, at which point the Prosecution may get expert evidence to prove it is.
Police v Emerali
Statutory Presumption for Supply
S6(6) – for c to e, a person is presumed to be in possession for supply if they possess drugs at or over levels shown in Schedule 5.
Heroin - 0.5g
Cocaine - 0.5g
LSD - 2.5g/25 tabs
Meth - 5g
MDMA - 5g/100 tabs
Cannabis resin - 5g
Cannabis oil - 5g
Cannabis plant - 28g / 100+ cigarettes
Penalties
Dealing/Selling etc:
Class A - life (Conspires - 14 years)
Class B - 14 years (Conspires - 10 years)
Class C -8 years (Conspires - 7 years)
