Study notes Flashcards
Controlled drug definition
Controlled drug means 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.
Class A/B/C definition
Class A/B/C controlled drug means the controlled drugs specified or described in Schedule 1/2/3 to this Act; and includes any controlled drug analogue (C only).
R v Strawbridge
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.
3 things to prove guilty knowledge
Knew about … (importation, supply, etc.), and
Knew the … substance was a controlled drug, and
Intended to cause the …
In realtion to importing, when is someone liable and when does liability cease? / When is importation complete? / What must be proved for importation?
Criminal liability arises as soon as the drugs cross NZ’s border, and an importer may therfore be convicted under section 6(1)(a) even if the drugs are intercepted by Customs and never reach the addressee (the intended recipient).
Hoever, the offence does not end at the border; the process of importation continues while the goods are in transit, and only concludes when they have reached their final destination and are available to the consignee.
Anyone who knowingly assists in facilitating the process up until that point may be liable as a party to the importation.
The Crown must prove not only that the defendant’s conduct in some way contributed to the actual importation of the drug, it must also prove the defendant’s guilty knowledge.
Thie will involve proof that the defendant:
- knew about the importation, and
- knew the imported substance was a controlled drug, and
- intended to cause the importation.
Wilful blindness
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.
In R v Martin the defendant was arrested when she arrived at Auckland airport with over $4 milion worth of cocaine in her suitcase. She cliamed she had no knowledge of the drugs despite the highly suspicous circumstances in which she had obtained the suitcase from Nigerian organised criminals.
In this matter the Judge stated “… it will suffice if the Crown can prove beyond reasonable doube that the accused (importer) had her suspicions aroused as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance. If that is proved, the law presumes knowledge on the part of the accused. The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry”.
R v Rua
The words “produce” or “manufacture” in s6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
Produce vs manufacture
To “produce” means to bring something into being, or to bring something into existence from its raw materials or elements.
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
When is the offence of manufacturing complete?
The offence is complete once the prohibited substance is created, whether or not it is in a useable form.
Cannabis preparations (s29B)
Section 29B deals specifically with producing cannabis preparations.
It provides that a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material – for example, producing cannabis pol or baking a cannabis cake.
It is for the prosecution to prove that the preparation to which the charge relates contains any tetrahydrocannabinols.
Definition of supply
Supply includes distribute, give, and sell.
Offers to supply or administer - proof
- The communicating of an offer to supply or administer a controlled drug (the actus reus)
- An intention that the other person believes the offer to be genuine (the mens rea).
R v During
“An offer is an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute”.
R v Brown
The defendant is guilty in the following instances:
(1) offers to supply a drug that he has on hand
(2) offers to supply a drug that wil be procured at some future date
(3) offers to supply a drug that he mistakenly believes he can supply
(4) offers to supply a durg deceitfully, kniwng he will not supply that drug
“… the making of such an intimation, with the intention that is should be understood as a genuine offer, is an offence”.
Proof of age
The best evidence possible in the circumstances should be aduced by the prosecution in proof of the victim’s age.
In practice this generally involves producing the victim’s birth certifiate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Is it possible to be charged with attempted possession?
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.
In R v Jay the Police found the respondent J in possession of a plastic bag containing plant material. J admitted that he thought it was cannabis and that he had purchased it from another person. On analysis the plant material was found to be hedge clippings.
The Court in this matter held that the commission of the offence of receiving cannabis was not legally impossible, although in the circumstances it was factually impossible. As the respondent had criminal intent and did an act for the purpose of accomplishing his object he was guilty of an attempt to commit an offence.
Presumption for supply - LSD, Cannabis, Meth, Cocaine
LSD - 2.5 milligrams or 25 flakes, tablets etc.
Cannabis resin and extract (oil) - 5 grams
Cannabis plant - 28 grams or 100 or more cigarettes
Meth - 5 grams
Cocaine - 0.5 grams
The presumption that a drug is for sale/supply may be rebutted if the person is able to prove
If the person is able to prove, on the balance of probabilities, that they did not intend to commit a ‘dealing’ offence, notwithstanding the amount. For example, the defence may argue that the suspect was heavily addicted and required large amounts for personal use.
Conspiracy if done in another country
s6(2A) of the MODA75 concerns conspiracy with one or more people to commit drug dealing offences.
Where there is a conspiracy to import controlled drugs into NZ and the agreement or unlawful acts are carried out in foreign territory, there may be a problem regarding jurisdiction.
It will be necessary to prove that the defendant had done something to complete the conspiracy in NZ for the offence to come within the jurisdiction of the NZ courts.
In R v Johnston the Court of Appeal held that the used of the NZ Customs and postal service by the conspirators in posting cannabis resin from England to NZ was sufficient to bring the matter within the jurisdiction of the NZ courts.
R v Greenfield reinforced that the offence of conspiracy turns on the agreement and does not necessitate any further involvement in the commission of the crime. The conspiracy is
complete once the agreement has been made.
In R v Lambert the Court held that there can be a conspiracy between two people, that one
will supply the other.
Defence to Misuse of Drugs Act 1975, Section 9
Misuse of Drugs Act 1975, Section 9(4)
It shall be a defence to a charge under subsection (1) of this section if the person charged proves that the prohibited plant to which the charge relates was of the species Papaver somniferum, and that it was not intended to be a source of any controlled drug or that it was not being developed as a strain from which a controlled drug could be produced.
