Section 6(1)(a) Imports Exports

Question 1

Quote Section 6(1)(a) of MODA75 Dealing with controlled drugs

Answer 1

• *Section 6 Dealing with controlled drugs**
  (1) Except:
• as provided in section 8 of this Act,
• or pursuant to a licence under this Act,
• or as otherwise permitted by regulations made under this Act,

no person shall -

(a) Import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3 to this Act; or

Question 2

Custom and Excise Act 2018 s5

Define: Importation

Answer 2

(a) in relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside of New Zealand

Question 3

Saxton posted cannabis resin from London to New Zealand and he was charged with Importing a Class B controlled drug.

What is the case law that came out of this case?

Answer 3

Saxton v Police

To import includes:

• “to introduce from abroad or
• to cause to be brough in from a foreign country”.

Question 4

When does the importation process begin and end?

Answer 4

Importation commences at the point of origin and continues until the drugs have reached their ultimate destination in New Zealand.

Question 5

When does criminal liability arise during the importaion process?

Answer 5

As soon as the drugs cross the New Zealand border. The importer may be convicted under section 6(1)(a) at this point and it is not necessary that the drugs reach the addressee.

Question 6

When does the offence of importation end?

Answer 6

only concludes when the drugs have reached their final destinaion and are available to the consignee.

Question 7

Who is liable as a party to importation?

Answer 7

Anyone who knowingly assists in facilitating the process up until the drugs reach their final destination and are available to the consignee.

Question 8

R v Hancox

Answer 8

“…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 New Zealand’s territorial limits. Importing into New Zealand for the purpose of s (6)(1)(a) is a process. The elements of importing exist from the time the goods enter New Zealand 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”.

Question 9

The Actus Rea would be the defendants conduct that in some way contributed to the importation of the drug.

But to prove the Mens Rea the Crown would have to prove the following 3 things:

Answer 9

The defendant:

• Knew about the importation
• Knew the imported substance was a controlled drug, and
• Intended to cause the importation

or

• The defendant deliberately turned a blind eye to the facts. (Wanted to remain in ignorance).

Question 10

Section 2 MODA75

Definition of a Controlled Drug is?

Answer 10

Controlled Drug means any

• substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2, Shedule 3 to this Act; and
• any controlled drug analogue.

Question 11

According to Section 5 of Customs and Excise Act 2018, the definition of New Zealand is:

Answer 11

(a) Means the land and the warters enclosed by the limits of the territorial sea of New Zealand.

The outer limits of the territorial sea being 12 nautical miles from the land mass of New Zealand.

Question 12

The definition of a Controlled Drug is found under what Act and Section?

Answer 12

MODA75 s2

Question 13

How does MODA75 s2 define a Controlled drug analogue?

Answer 13

Any substance that is substantially similar to a controlled drug and that is not otherwise specified or approved such as medicines.

Question 14

Irrespective of the class that an analogue drug resembles, all analogues are regarded as class..

Answer 14

…regarded as Class C controlled drugs.

Question 15

MODA75 s2 Interpretation

A Class A controlled drug means…

Answer 15

…the controlled drugs specified in schedule 1 to this Act.

Poses very high risk of harm to individuals and society.

Question 16

Give some examples of Class A drugs:

Answer 16

• Cocaine
• Heroin
• Lysergide (LSD)
• Methamphetamine
• Psilocybine (found in magic mushrooms)

Synthetic drugs AMB-FUBINACA and 5F-ADB

Question 17

MODA75 s2 interpretation

Class B

Answer 17

…means the controlled drugs specified in schedule 2 to this Act.

Pose a high risk of har to individules and society.

Question 18

Some examples of Class B drugs:

Answer 18

• Amphetamine
• Cannabis preparations such as oil and hashish
• GBH(Fantacy)
• MDMA (Ecstasy)
• Morphine
• Opium
• Pseudoephedrine
• Ephedrine

Question 19

MODA75 s2 Interpretation

Class C:

Answer 19

…means the controlled drus specified in schedule 3 to this Act and includes any drug analogue.

Question 20

What are the drug exceptions for s6(1)(a) importing and exporting offences?

Answer 20

drugs found under Part 6 of Schedule 3.

Question 21

Is it a defence to genuinely believe that the substance was not a controlled drug?

Is it necessary for the Crown to prove that the defendant knew the substance was a controlled drug?

Answer 21

Yes, it is a defence not to know the substance is a controlled drug. But the onus is on the defendant to prove they were genuinely ignorant of this.

It is not necessary for the Crown to prove the defendant knew it was a controlled drug. In the absense of evidence to the contrary the presumption will be that they knew.

Question 22

R v Strawbridge

Answer 22

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 sone 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 beyound reasonable doubt that this was not so.

Question 23

Although guilty knowledge is a necessary element, is it necessary that the defendant knows that the substance is the drug they think it is?

What section provides this?

Answer 23

Section 29 says it is not a defence to not know the substance was something other than the controlled drug they thought it was.

In other words, believing it is a controlled drug is enough to form the guilty knowledge element.

Question 24

Police v Emirali

Answer 24

”..the serious offence of …possessing a narcotic does not extend to some minute and useless residue of the substance”.

Question 25

What section deals with usable quantity?

and

what does it say about whether the prosecution needs to prove it is of a useable quantity?

Answer 25

Section 29A

it is not necessary for the procecution to prove this unless it is brought into question by the defendant. The court will then grant the prosecution leave to bring a withness to provide this evidence.

Question 26

What drugs are not included in s6(1)(a)?

Answer 26

Those found in Part 6 of Schedule 3 of this Act.

Question 27

What is the liability for Importing, with the appropriate case law?

Answer 27

MODA75 6(1)(a)

No person shall:

import into (Saxton, Hancox)

or export from

New Zealand (NZ border, 12 nm teritorial waters - C&E Act2018 s5)

any controlled drug; (MODA75 Schedule 1,2, 3 or analogue, except Part 6 of 3) (for a defence use R v Strawbridge)