Offence Flashcards
Importing/exporting offence
Section 6(1)(a) MODA 1975
Import into OR Export from New Zealand
Any controlled drug
Produce/manufacture offence
Section 6(1)(b) MODA 1975
Produce OR Manufacture
Any controlled drug
Supply Class A or B offence
Section 6(1)(c) MODA 1975
Supply OR Administer OR Offers to supply OR Offers to administer OR Otherwise deals in
Any class A or class B controlled drug
To any other person
Supply Class C controlled drug to persons under 18 offence
Section 6(1)(d) MODA 1975
Supply OR Administer OR Offers to supply OR Offers to administer
Any class C controlled drug
To any person under 18 years of age
Sell/Offer Class C controlled drug to person 18+ offence
Section 6(1)(e) MODA 1975
Sell OR Offer to sell
Any class C controlled drug
To any person of or over 18 years of age
Possession of controlled drug for supply offence
Section 6(1)(f) MODA 1975
Did have in his possession
Any controlled drug
For any purposes set out in paragraphs (c), (d) or (e) of section 6(1) MODA 1975
Importation definition
means any arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully from a point outside New Zealand
Methods of importation
- drugs concealed on their person or in their luggage
- have another person (mule) bring the drugs in for them
- send or have drugs sent by international mail or courier
- conceal drugs inside legitimate goods
Saxton v Police
To import includes to introduce from abroad or to cause to be brought in from a foreign country
Criminal liability for importation
Criminal liability arises as soon as the drugs cross NZ’s border, importer may be convicted even if the drugs are intercepted by customs.
Anyone who knowingly assists in facilitating the process is liable as a party to importation.
R v Hancox
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 NZ’s territorial limits. The element of importing exists from the time the goods enter NZ 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.
Mens rea for importing
- knew about the importation and
- knew the imported substance was a controlled drug and
- intended to cause the importation
Wilful blindness
Proof that the defendant deliberately turned a blind eye to the facts will suffice.
Controlled drug definition
Means 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.
Class A controlled drug
Schedule 1
Poses a very high risk of harm to individuals and society.
Cocaine, heroin, meth, LSD, psilocybine
Class B controlled drug
Schedule 2
Poses a high risk of harm.
Amphetamine, cannabis oil, GHB, MDMA, Morphine, Opium, Pseudoephedrine, ephedrine
Class C controlled drug
Schedule 3
Poses a moderate risk of harm
Cannabis plant/seeds, BZP, controlled drug analogues
R v Strawbridge
It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
Guilty knowledge will be presumed in absence of evidence to the contrary.
Mistake as to nature of controlled drug
It is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.
Police v Emerali
Possessing a narcotic does not extend to some minute and useless residue of the substance.
R v Rua
The words produce and manufacture in s6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
Produce definition
means to bring something into being or to bring something into existence from its raw materials or elements.
Manufacturing definition
process of synthesis, combining components or processing raw materials to create a new substance.
Cannabis preparations
Cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material - oil or cake.
It is for the prosecution to prove that the preparation to which the charges relates contains any tetrahydrocannabinols.
Supply definition
means to furnish or provide something that is needed or desired.
means to distribute, give or sell.
R v Maginnis
Supply involves more than the mere transfer of physical control, it includes enabling the recipient to use them for their own purpose.
Distribution definition
relates to the supply of drugs to multiple people.
Giving definiton
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.
Selling definiton
a sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.
Administering definiton
involves introducing a drug directly into another person’s system.
Offering to supply or administer must prove
- the communicating of an offer to supply or administer a controlled drug (actus rea) and
- an intention that the other person believes the offer to be genuine (mens rea)
R v During
An intimation that the person is ready on request to supply the drugs.
R v Brown
The defendant is guilty in the following instances:
- offers to supply a drug that he has on hand
- offers to supply a drug that will be procured at some future date
- offers to supply a drug that he mistakenly believes he can supply
- offers to supply a drug deceitfully, knowing he will not supply that drug
The making of such an intimation with the intention that it should be understood as a genuine offer is an offence.
Otherwise deals definition
dealing in a drug by some means other than by distributing, giving or selling it, administering it or offering to supply or administer it. Eg.- barter or exchange
To any other person
a person is generally accepted by judicial notice or proved by circumstantial evidence.
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
Possession
Physical element - requires physical custody or control over the drugs. This can be actual or potential.
Mental element - combination of knowledge and intention.
Knowledge
- the defendant must be aware that they possess the substance
- the defendant identifies the substance as a controlled drug even if there is no substance to be analysed to prove their assertion
- physical custody presumes knowledge, unless otherwise proven
Knowledge and intent
- know they have the substance
- know the substances nature and qualities (s29 deals with mistaken beliefs)
- intend to use the substance in a way that allows you to charge them with possession
Lack of knowledge
A genuine lack of awareness would exclude knowing possession and thereby intent. A person cannot knowingly be in possession of an article which he mistakenly but honestly believes he does not possess.
Lack of knowledge caused by memory lapse
Forgotten about the drugs existence meant that there cannot be a conviction because there is no longer a requisite knowledge.
Potential possession of drugs
The things which a person has in his possession include anything subject to his control which is in the custody of another.
R v Cox
Possession involves two elements. The first the physical element is actual or potential physical custody or control. The second the mental element is a combination of knowledge and intention; knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
Joint possession
Where more than one person has access to drugs of a saleable quantity they may be charged jointly with possession. However, in such a situation you must prove that there was a shared intention to sell the drugs. It is unnecessary to show that the sale has to be made by the apellant personally.
Possession in drugs cases
- 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
Intent
to do a deliberate act to get a specific result.
R v Collister
Other circumstanial evidence - admissions, packaging/scales/cash, the statutory presumption under section 6(6)
Statutory presumption s6(6)
Creates a presumption of law that if a person has possession of a specified amount of any drug, that person will be presumed to have that drug for one of the purposes set out in s6(1)(c), (d) or (e) unless they prove otherwise.
Dealing amounts (schedule 5)
Heroin - 0.5grams
Cocaine - 0.5grams
LSD - 2.5mg or 25 flakes/tablets
Meth - 5grams
MDMA - 5grams or 100 flakes/tablets
Cannabis resin/oil - 5grams
Cannabis plant - 28grams or 100+ cigarettes
Where a controlled drug is not specified in Schedule 5 the presumptive amount is 56 grams.
Section 6(2A) - Conspiring to deal with controlled drugs
Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act
Conspiracy
Agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action. The conspiracy is complete once the agreement has been made.
Section 12A(1) - must prove
- that the defendant has supplied, produced or manufacturer equipment, material 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
Section 12A(2) - must prove
- that the defendant has equipment, material or precursors in his possession
- 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 has the intention that those items are to be used for such an offence, either by himself or another person
Section 9 - must prove
identity of the suspect and that he/she cultivated a prohibited plant
Defence to section 9
if the person charged proves that the prohibited plant was of the species Papaver somniferum and that it was not intended to be a source of any controlled drug nor that it was being developed as a strain from which a controlled drug could be produced.
Section 12
Use or premises or vehicle to be used for the purpose of the commission of an offence against this act.
Section 16
Obstruction of officers who is executing powers pursuant to MODA 1975.
Section 29B
Cannabis preparations
Prosecution to prove that the preparation contains tetrahydrocannabinols. The preparation shall be deemed to have been produced by subjecting cannabis plant material to some kind of processing.
