Must Knows Flashcards
The importing process
The offence doesn’t 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.
Class A controlled drugs
- Cocaine
- Heroin
- LSD (Acid)
- Methamphetamine
- Magic mushrooms
Class B controlled drugs
- Amphetamine
- Cannabis preparations (cannabis oil)
- GHB (fantasy)
- MDMA (ecstasy)
- Morphine
- Opium
- Pseudophedrine
- Ephedrine
Class C controlled drugs
- Cannabis plant
- Cannabis seeds
- BZP
- Controlled drug analogues
Mens rea of importing
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
Crown must prove the defendants ‘guilty knowledge’
Cannabis preparations
Section 29B
A cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material.
It is for the prosecution to prove that the preparation to which the charge relates contains any THC.
Possession 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 they have the keys for.
Potential custody or control:
Section 2(2) MODA “the things which a person has in his possession include anything subject to his control which is in the custody of another”. For example, a person is storing drugs at a mates place. A defendant can exercise control of property through an agent, however exercise of control must be established.
Possession 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 inferred or presumed)”. The defendant must also have knowledge “that what is in his possession in a controlled drug; although he need not know its exact nature”.
Intention: Willingness to possess
The defendant must have intended to exercise possession
Proving intent in drugs cases
Evidence of intent to supply may be inferred from:
- admissions
- circumstantial evidence (packaging, scales, cash, tick lists etc)
- the statutory presumption under section 6(6)
Schedule 5 of MODA75 (Presumptive)
Heroin - 0.5grams
Cocaine - 0.5grams
LSD - 2.5 milligrams (25 flakes, tablets)
Meth - 5grams
MDMA - 5 grams (100 flakes, tablets)
Cannabis resin and extract (oil) - 5 grams
Cannabis plant - 28 grams or 100+ cigarettes
If its not specified in Section 5 the presumption amount is 56 grams +
Conspiring to deal
Section 6(2A) MODA75 concerns conspiracy with one or more to commit drug dealing offences.
Where there is a conspiracy to import controlled drugs into NZ and the agreement or unlawful acts are carried out in a foreign territory, there may be a problem regarding jurisdiction.
It will be necessary to prove that the defendant had done something to complete the conspiracy in NZ for the offence to come within the jurisdiction of the NZ courts.
R v Johnson held that the use of NZ customs and postal service by the conspirators in posting cannabis resin from UK to NZ was sufficient to bring the matter within the jurisdiction of NZ courts.
Equipment / Procursors etc for Drug Dealing Offence
12A(1) MODA75
are often filed against businesses, such as hydroponics suppliers, who knowingly supply equipment for cultivating cannabis or against “pseudo-shoppers” those who acquire quantities of pseudoephedrine and supply them to meth cooks.
12A(2) MODA75
relate to those in possession of such items with intent that they are used by themselves or others for a specified purpose, such as meth cooks and cannabis cultivators.
Section 12A(2)(a) & (b)
Any equipment or material in their possession against section 6(1)(b) or 9 of MODA75 or any precursors with intention that it is used for commission of an offence
Supplies Equipment / precursors etc Section 12A(1)
Crown must prove three elements:
- that the defendant has supplied, produced or manufactured equipment, materials or precursors
- that those items are capable of being used in the production or manufacture of controlled drugs or the cultivation of prohibited plants
- that the defendant knows those items are to be used for such an offence by another person
Any equipment capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9
The term ‘equipment’ is not defined by statute but will the implements, apparatus and other hardware used in manufacturing, producing or cultivating process.
Examples may include glassware, condensors, heating mantles used in the manufacture of meth; or pots, lights, timers, water pumps etc used in cultivating cannabis.
