Possession of Controlled Drugs for Supply

Question 1

POSSESSION OF CONTROLLED DRUGS FOR SUPPLY

Answer 1

The Misuse of Drugs Act 1975 criminalises the possession of any controlled drug for any of the following purposes:
* the supply or administration of any Class A or B controlled drug (or to offer to do so);
* the supply of any Class C controlled drug to a person under 18 years of age (or to offer to do so); or
* the sale of any Class C controlled drug to a person of or over 18 years of age (or to offer to do so).

Question 2

HAS IN HIS POSSESSION

Answer 2

Proving possession of controlled drugs in New Zealand requires proof of two separate elements. R v Cox19 held the two separate elements to be proved are the physical and mental elements.

Question 3

PHYSICAL ELEMENT:

Answer 3

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

Question 4

Actual custody or control:

Answer 4

Means that the person 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.

Question 5

Potential custody or control:

Answer 5

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.”

Question 6

Potential Custody Example

Answer 6

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.

Question 7

Knowledge:

Answer 7

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”20.

Question 8

Intention: Willingness to possess

Answer 8

The defendant must have intended to exercise possession.

Question 9

PROOF OF POSSESSION

Answer 9

Proof of possession requires proof of both a physical element (the actus reus) and a mental element (the mens rea).

Question 10

CONTROL

Answer 10

To “control” something means to exercise authoritative or dominating influence over it.
A person can control an item that is not in their physical custody, and conversely can have something in their physical custody that they have no control over – for example, a person does not have control over something that has been slipped into his pocket without his knowledge, although he has custody of it.

Question 11

POSSESSION IN DRUGS CASES

Answer 11

In drugs cases it will be necessary for the Crown to prove that the defendant had:
* knowledge that the drug exists
* knowledge that it is a controlled drug
* some degree of control over it
* an intention to possess it.

Question 12

FOR THE PURPOSE OF SUPPLY

Answer 12

“Purpose” in this context can be equated to “aim” or “intention”.
The relevant intention on the part of the defendant is to supply a controlled drug to others in one of the ways specified in section 6(1)(c), (d), or (e).

Question 13

INTENT

Answer 13

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 14

Deliberate act:

Answer 14

“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Question 14

Intent to produce a result:

Answer 14

The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”. Simester and Brookbanks21

Question 14

PROVING INTENT

Answer 14

The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt.
While an offender’s admissions as to their intent are potentially good evidence, it is good practice to support these with circumstantial evidence from which their intent can also be inferred.
In R v Collister22 two Police officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money. Although no express demand for money was made, it was held that the defendants’ intent could be inferred from the circumstances.

Question 15

PROVING INTENT IN DRUGS CASES

Answer 15

In drugs cases additional 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).