Other Misc Must Knows Flashcards
Mens rea of importing
This will involve proof that the Defendant:
- Knew about the importation / exportation AND
- Knew the imported / exported substance was a controlled drug AND
- Intended to cause the importation / exportation
Useable quantity
In any drug offence, the quantity of drug involved must be measurable and useable.
When is the offence of 6(1)(b) complete?
The offence is complete once the prohibited substance is created whether or not it is in a useable form.
When is the offence of 6(1)(b) complete?
The offence is complete once the prohibited substance is created whether or not it is in a useable form.
When is the offence of distribution complete?
Is complete when the defendant has done all that is necessary to accomplish delivery of the drugs to others
When is the offence of giving complete?
The act of giving is complete when the recipient accepts position or where the drug is placed under the control of a willing recipient.
What must the prosecution prove in regards to offering to supply or administer?
1 - the communicating of an offer to supply administer a controlled drug (actus rea)
2- an intention that the other person believes the offer to be genuine(men’s rea)
s6(6) MODA 1975
For the purposes of subsection (1)(f), 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 (see section 2(1A)).
Examples of Class A
- Cocaine
- Heroin
- Lysergide (LSD)
- Methamphetamine
- Psilocybine (found in magic mushroom)
Examples of class b
- Amphetamine
- Cannabis preparations (such as cannabis oil and hashish)
- GHB (Fantasy)
- MDMA (Ecstasy)
- Morphine
- Opium
- Pseudoephedrine
Examples of class c
- Cannabis plant
- Cannabis seeds
- Benzylpiperazine (BZP)
- Controlled Drugs analogue
Attempted possession
It is an offence to attempt to gain possession of a drug, a charge which covers someone obtaining something innocuous in the mistaken belief that it is a drug.
Schedule 5 – MODA 1975 – Presumptive amounts
- Heroin – 0.5 grams
- Cocaine – 0.5 grams
- LSD – 2.5 milligrams or 25 flakes, tablets, etc
- Methamphetamine – 5 grams
- MDMA (Ecstasy) – 5 grams or 100 flakes, tablets
- Cannabis resin and extract (oil) – 5 grams
- Cannabis plant – 28 grams or 100 or more cigarettes
When not specified in the schedule, the presumptive amount for that drug is 56 grams.
Section 12A(1), MODA 1975 – The Crown must prove what 3 elements?
- That the Defendant has supplied, produced or manufactured 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), MODA 1975 – The Crown must prove what 3 elements?
- 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
Defence to Cultivating Prohibited Plants – s9, MODA 1975
- It is a defence to this charge s9(1) if the person charged proves that the prohibited plant to which the charge relates was of the species Papaver somniferum, and that it was not intended to be a source of any controlled drug or that it was not being developed as a strain from which a controlled drug could be produced.
Purpose of possession – presumptive quantity
Section 6(6) MODA 1975 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 can prove otherwise.
Rebuttal to Presumptive
The presumption that the drug is for sale or supply may be rebutted of the person is able to prove, on the balance of probabilities, that they did not intend to commit a “dealing” offence, notwithstanding the amount. (Example – Heavy addict, requires large amount for personal use.)
3 elements for knowledge and intent, s6(f)
- know they have the substance
- know the substances nature or qualities (section 29 deals with mistaken beliefs)
- And intend to use the substance in a way that allows you to charge them with possession
How will the crown prove that the defendant had possession in drug cases?
- knowledge that the drug exists
- knowledge that it is a controlled drug
- Actual physical control or some degree of control over
- In intention to possess it
