s6 and 12A offences Flashcards
Who needs to Prove usable quantity
S29A,
Not necessary for prosecution to prove it was usable amount unless defence puts the matter into issue.
When is 6(1)(b) complete
once prohibited substance is created, whether or not it is in a usable form
i.e: meth suspended in 2 layer liquid (R v RUA)
6(5) MODA 1975 - presumption of sale for 6(1)(e)
S6(5) MODA 75:
‘for the purpose of (e) if it is proved a person has supplied a controlled drug to another, he shal until the contrary is proved be deemed to have sold that controlled drug to that other person’
in absence of evidence to contrary it shall be presumed the drugs were sold in 6(1)(e)
what is the meaning of potential custody or control
S2(2) MODA 75
‘has in his possession anything subject to his control which is in the custody of another’
-storing drugs at a friends house, he can exercise control through an agent - however exercise of control must be established
6(1)(f) - what must defendant have knowledge of?
Defendant must have knowledge that the substance is a controlled drug, but need not know its exact nature.
physical custody presumes knowledge unless otherwise proven
What needs to be proved for possession in drug cases?
prove the defednant had:
- knowledge the drug existed
- knowledge that it was a controlled drug
- some degree of control over it
- an intention to possess it
What circumstantial evidence can be used to Prove intent
- offenders actions and words before, during and after event
- surrounding circumstances
- nature of the act itself
Where can intent to supply be inferred from in drug cases?
- admissions
- circumstantial evidence
- statutory presumption under S6(6)
Does CHIS need to be named in a sw application?
no - s64 Evidence Act 2006 grants privilege to informers to protect ID.
-R V MCGINTY
Is attempted possession of controlled drugs an offence?
yes - R V JAY:
doing an act with criminal intent to possess controlled drugs is an offence.
What is a controlled delivery
The delivery of illicit drugs made under the control and surveillance of NZ customs and Police, with a view to identifiying and securing evidence against offenders involved in the importation/exportation.
option 1: clean controlled delivery - all drugs removed from the consignment. - only allows for imports / conspiracy charges to be laid.
option 2: small amount of the drug left with consignment - allows option of charging recipient with possession for supply.
when is some one liable and when does liability cease for importing
Liability begins as soon as drugs enter NZ border and exists until they reach their immediate destination.
Liability ceases when goods are available to addressee or consignee.
R V HANCOX
what must be proved for importation (mens Rea)
- they knew about importation AND
- knew imported substance was a controlled dug AND
- intended to cause the importation
What three things must be proven for an offence supplying equipment (s12A(1))?
- That the defendant has supplied, produced or manufactured equipment, material or precursors; and
- That those items are capable of being used in the production or manufacture of controlled drugs or the cultivation of prohibited plants; and
- That the defendant knows those items are to be used for such an offence by another person.
Rebuttal for presumption under s6(6) MODA 1975 -
The presumption that the drug is for sale or supply may be rebutted if the person is able to prove on the balance of probabilities, that they did not intent to commit a dealing offence, not withstanding the amount. For example the defence may argue that the suspect was heavily addicted and required large amounts for personal use.
what 3 things must be proven to satisfy charge under s12A(2)
- That the defendant has equipment, material or precursors in his possession; and
- That those items are capable of being used in the production or manufacture of controlled drugs or the cultivation or prohibited plants; and
- That the defendant has the intention that those items are to be used for such an offence, either by himself or another person
what 2 elements must be proven for a prosecution of offering to supply?
- The communication of an offer to supply or administer a controlled drug (actus reus)
- An intention that the other person believes the offer to be genuine (mens rea)
can two or more people be liable for joint possession of drugs?
Where more than one person has access to drugs of a saleable quantity, they may be charged jointly with possession. However in such situation you must prove there was a shared intention to sell the drugs.
penalties for conspiring to deal drugs
14, 10 and 7 years
class A = 14 yrs class B = 10 yrs class C = 7 yrs
what does prosecution needs to prove for an offer to sell a controlled drug?
- the communicating of an offer to supply a controlled drug (the actus reus) AND
- An intention that the other person belives the offer to be genuine, (the mens rea) AND
- Knows it is a controlled drug ( mens rea)
What does Sec 6(6) MODA 1975 relate to?
A person is presumed to be in possession of a drug for an offence against (c), (d) or (e) if they have it in an amount or quantity at or over which that controlled drug is presumed to be for supply.
What does sec 2(2) MODA 1975 relate to?
For the purposes of this act, the things a person has in his possession include anything subject to his control which is in the custody of another.
Equipment examples:
includes implements, apparatus and other hardware such as glassware, condensers heating mantles.
Material examples:
anything that cannot be properly defined as equipment:
eg: chemicals (not precursors), documents, instructions, fertilisers
Precursor substance definition
any substance specified in part 1 or part 2 of schedule 4. Sec 2, MODA 1975
precursors include: Lysergic acid (LSD) Acetic anhydride (Heroin) ephedrine / pseudo
