Section 6(1)(a) - Imports into or exports from NZ any controlled drug

Question 1

What is the section and penalty for importing or exporting controlled drugs?

Answer 1

Section 6(1)(a) Misuse of Drugs Act 1975

Class A - Life imprisonment

Class B - 14 years

In any other case - 8 years

Question 2

What are the ingredients of 6(1)(a)?

Answer 2

1. No person shall -
2. Import into

OR

3. Export from New Zealand
4. Any controlled drug

Question 3

What is the definition of imports and where is it found?

Answer 3

Sec 2 Customs and Excise Act 1996

Importation, -

(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 New Zealand.

Question 4

Saxton v Police (1981)

(SaXton - importing Xtasy)

Answer 4

To import includes “to introduce or bring in from abroad or to cause to be brought in from a foreign country“.

Question 5

What is the gist of Saxton v Police?

Answer 5

The Court of Appeal held that “to import” includes “to bring in” but that the term also has a wider definition.

Question 6

Detail the importing process and describe when it is considered to have ended.

Answer 6

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

Criminal liability arises as soon as the drugs cross the NZ border. An importer may be convicted even if the drugs never reach the addressee (aka the intended recipient).

Question 7

When would a person be liable for parties to importation?

Answer 7

Anyone who knowingly assists in its importation up until the goods reach their final destination and become available to the consignee.

Question 8

R v Hancox (1989)

(Think of people being smuggled into NZ for sexual exploitation - all attractive Russian women - the smugglers continually have their hands on their c***s)

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 purposes of S6(1)(a) is a process. The element of importing exists 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“.

Application: the importing process

Question 9

What is the gist of R v Hancox?

Answer 9

The Court of Appeal held that delivery into the post office box was the final step in the transit process and that the importation had ended.

Question 10

What is the mens rea for importing?

Answer 10

Proof of the defendant’s guilty knowledge - that the defendant:

• knew about the importation, and
• knew the imported substance was a controlled drug, and
• intended to cause the importation.

Question 11

What is wilful blindness?

Answer 11

A deliberate failure to inquire when one knows there is a reason for inquiry.

Question 12

What is a controlled drug?

Answer 12

Section 2 MODA:

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.

Question 13

What is a controlled drug analogue and what class of drug are they?

Answer 13

Any substance with a structure substantially similar to a controlled drug.

Class C.

Question 14

List some examples of the different types of classes of controlled drugs.

Answer 14

Class A:

• Cocaine
• Heroin
• LSD
• Methamphetamine
• Psilocybin

Class B:

• Cannabis oil
• GHB
• MDMA
• Morphine
• Opium

Class C:

• Cannabis plant
• Cannabis seeds
• BZP
• Controlled drug analogues

Question 15

What is the defence for possession of a controlled drug and state the relevant case law.

Answer 15

A person who innocently possesses something they genuinely believed was not a controlled drug.

R v Strawbridge (1970).

Question 16

R v Strawbridge (1970)

(An innocent woman thinks she is growing straw (tomato plants) when she is acutally growing cannabis = not guilty)

Answer 16

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.

Application: guilty knowledge

Question 17

What is the gist of R v Strawbridge?

Answer 17

That the offence of cultivating a prohibited plant is not absolute and that mens rea is an essential element.

Question 18

Police v Emirali (1976)

(Emirali sounds Spanish - imagine a Spanish drug trafficker with a tiny bit of cocaine in his pocket)

Application: usable quantity

Answer 18

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

Application: usable quantity

Question 19

What is the gist of Emirali?

Answer 19

The purpose of the statute is to limit illicit drug use, and it was therefore necessary for the drugs found to be of a usable quantity.

Question 20

What are some other considerations that will determine whether or not a drug is usable?

Answer 20

• The nature of the drug and the condition in which it is found.
• Whether it might reasonably be used to supplement any other small samples found to create a larger useable quantity as a whole.