Section 6(1)(d), (e) and (f) Flashcards
How to prove age?
Producing birth certificate in conjunction with independent evidence that identifies the victim as the person named. Ideally a parent.
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
Explain Section 6 (5) and the effect of this provision:
For the purposes of paragraph (e) if it is proved that a person has supplied a controlled drug to another person unless proven otherwise he is proved be deemed to have sold that controlled drug.
The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale
Explain proof of age relating to Section 6(1)(e):
Where the recipient of Class C controlled drugs is 18 or over it is only a drug dealing offence under Section 6 if the drugs are SOLD or OFFERED FOR SALE
What 2 elements are required in proving possession of Controlled Drugs?
- Physical element
- Mental element
Explain the physical element for possession of controlled drugs:
Physical custody or control over the drugs. This can be either actual or potential.
Explain the mental element for possession of controlled drugs:
The mental element requires a combination of knowledge and intention.
Knowledge that it is in his possession and knowledge that it is a controlled drug.
Intended to exercise possession.
What 3 components could provide knowledge of existence?
- Aware that they possess the substance.
- They are aware it is a controlled drug
- Physical custody presumes knowledge, unless otherwise proven
What was held in the Court of Appeal in R v Cruse?
Where material was not recovered and the defendant admitted to the Police that he thought it was cannabis, there was no logical reason why circumstantial evidence might not be sufficient to prove identity of the substance
In considering whether a person knows the qualities of a substance, you need to establish that they what?
- Know they have the substance
- Know the substance’s nature or qualities
- Intend to use the substance in a way that allows you to charge them with possession
What was discussed in Police v Rowles?
A genuine lack of awareness would exclude ‘knowing possession’ and thereby intent.
Explain the case of Martin regarding lack of knowledge caused by memory lapse:
Martin deals with lack of knowledge caused by memory lapse rather than lacking initial knowledge.
Hid seeds and forgot.
The Court of Appeal held that it was essential to establish whether the defendant’s memory loss was complete or merely that knowledge of the seeds was not always at the forefront of the defendant’s mind.
Definition of potential possession:
Anything subject to his control which is in the custody of another
R v Cox
Possession involves two elements. The physical element, is actual or potential physical custody or control.
The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.
Explain control and having custody/control over items:
To exercise authoritative influence or command 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.
Explain joint possession for supply of drugs:
Where more than one person has access to drugs of saleable quantity, they may be charged jointly with possession.
Must prove that there was a shared intention to sell the drugs.
Explain attempted possession of controlled drugs:
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.
As the respondent had criminal intent and did act for the purpose of accomplishing his object he was guilty of an attempt to commit an offence.
What must the Crown prove that the defendant had in regards to possession for drug cases?
- Knowledge that the drug exists
- Knowledge that it is a controlled drug
- Actual physical control or some degree of control over it
- An intention to possess it
In criminal law context there are two specific types of intention in an offence, explain these:
- An intention to commit the act
- An intention to get a specific result
Definition of intent:
Intent means an act or omission done deliberately. Must be more than involuntary or accidental.
Define ‘a specific result’:
Aim, object or purpose
Who needs to prove an offenders intent and to what level?
Generally on the prosecution to prove an offenders intent beyond reasonable doubt.
Circumstantial evidence for which an offender’s intent may be inferred can include what?
- The offenders action or words before, during or after the event
- The surrounding circumstances
- The nature of the act itself
In drug cases additional evidence of intent to supply can be inferred from what?
- Admissions
- Circumstantial evidence (packaging, scales, cash, tick lists)
- The statutory presumption under Section 6(6).
Explain Section 6(6) - Presumptive supply
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 Section 6(1)(c), (d) or (e), unless they can prove otherwise
Explain a potential defence of presumptive supply:
May be rebutted if the person is able to prove, on the balance of probabilities, that they did not intend to supply.
The defence may say the suspect is heavily addicted.
Can a person in possession of less than the presumptive amounts still be charged with possess for supply?
Yes. A person can still be charged with possession for supply if other circumstances provide good cause to suspect the offence.
Explain the Tracy formula:
Where the particular purpose for possession cannot be proved, the charge should be drafted in the alternative, eg. In possession of Class C controlled drug for a purpose specified in paragraph (d) or (e).
Follow this only when the purpose is uncertain
What must the defendant rebut when the Tracy formula is applied?
Prove on the balance of probabilities, that they did not intend to supply, administer or sell the drug.
List presumptive amounts for:
Heroin
Cocaine
LSD
Methamphetamine
MDMA
Cannabis Resin and extract (oil)
Cannabis plant
Heroin: 0.5 grams
Cocaine: 0.5 grams
LSD: 2.5 mg or 25 tabs
Meth: 5 grams
MDMA: 5 grams
Cannabis resin: 5 grams
Cannabis plant: 28 grams or 100 or more cigarettes
Where a controlled drug is not specified in Schedule 5, presumptive amount is 56 grams.
