2 Flashcards
(8 cards)
How do you prove age for a victim? R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in
proof of the victim’s age.
In practice this generally involves producing the victim’s birth certificate 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 regardingjurisdiction.
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 s9 MODA75
S9(4) MODA75. 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.
Ingredients of allowing premises
S12 MODA75. Every person commits an offence against this Act who knowingly permits any premises or any vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance to be used for the purpose of the commission of an offence against this Act.
Ingredients of obstructs
S16 MODA75. Every person commits an offence against this Act who wilfully obstructs, hinders, resists, or deceives any other person in the execution of any powers conferred on that other person by or pursuant to this Act.
