Flashcards in Dealing offences Deck (46):
S2 Customs and Excise Act 1996 - In relation to any goods, means the arrival of the goods in NZ in any manner, whether lawfully or unlawfully, from a point outside NZ
Which case law relates to Importing?
Saxton v Police - To import includes "to introduce from abroad or to cause to be brought in from a foreign country"
Common methods of drug importing include:
Drugs concealed on the person, or in their luggage
Have another person (a "mule") bring the drugs in
Send or have drugs sent by international mail or courier
Conceal drugs inside legitimate goods, for example within shipping containers
Which case law relates to the completion of importing?
R v Hancox - The element of importing exists from the time the goods enter NZ until they reach their immediate destination ...[ie] when they have ceased to be under control of the appropriate authorities and have become available to the the consignee or addressee.
How can you prove mens rea of importing?
Prove the defendant:
Knew about the importing
Know the imported substance was a controlled drug and
Intended to cause the importation
S53 Customs and Excise Act 1996 - For the purposes of this act, the time of exportation is the time when the exporting craft leaves the last customs place at which that craft calls immediately before proceeding to a point outside NZ.
Define a Controlled drug
S2MODA - Means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2, or Schedule 3 of this Act and includes any contolled drug analogue.
Define a controlled drug analogue
Means any substance, such as the substances specified or described in part 7 of schedules 3 to this act, that has a structure substantially similar to that of any controlled drug
Which case law relates to guilty knowledge (drugs)?
R v Strawbridge - 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 a jury is satisfied beyond reasonable doubt that this was not so.
Which case law relates to a Useable amount?
Police v Emirali - "...the serious offence of...possessing a narcotic does not extend to some minute and useless residue of the substance"
Which case law relates to Produce or manufacture?
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.
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 syntheses; combining components or processing raw materials to create a new substance
When is the offence of producing/manufacturing Complete?
The offence is complete once the prohibited substance is created, whether or not it is in a useable form.
Define Supply (MODA)
S2MODA1975 - supply includes distribute, give, and sell
Which case law relates to supply?
R v Maginnis - Supply involves "more than the transfer of physical control...[it includes] enabling the recipient to apply the thing...to purposes for which he desires..."
Explain Sells (drugs)
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Will commonly be money but anything of value will suffice.
What Is the difference between supplies and Administers?
Administering is distinguished from supplying in that it involves introducing a drug directly into another person's system
What is the definition of Administers
In the context of drug dealing, the appropriate meaning of "administer" is "to direct and cause a ...drug to be taken into the system" of another person.
Black's Law Dictionary
What two elements would the prosecution have to prove for Offers to sell
The prosecution must prove two elements:
The communicating of an offer to sell a controlled drug (the actus reus)
An intention that the other person believes the offer to be genuine (the mens rea)
Which two case laws relate to Offers to supply?
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 making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence".
Explain Otherwise dealing
Dealing in a drug by some means other than by distributing, giving or selling it, administering it or offering to supply or administer it.
What are the penalty and ingredients of S6(1)(a)?
Life - Imports into OR exports from NZ - any controlled drug
What are the penalty and ingredients of S6(1)(b)?
Life / 14 / 8 - Produces OR manufactures - any controlled drug
What are the penalty and ingredients of S6(1)(c)?
Life / 14 - Supplies OR administers OR offers to supply OR offers to administer or otherwise deals - a Class A OR Class B controlled drug - to any person
What are the penalty and ingredients of S6(1)(d)?
8 - Supplies OR administers OR offers to supply OR offers to administer or otherwise deals with- a Class C controlled drug - To any person under the age of 18 years old
What are the penalty and ingredients of S6(1)(e)?
8 - Sells OR offers to sell - a Class C controlled drug - To any person of or over the age of 18 years old
Which case law relates to Proof of age?
R v Forrest and Forrest - The best evidence possible in the circumstances should be adduced by the prosecution in the proof of [the victim's] age
What is the presumption around sale/supply? (S6(5))
For the purpose of s6(1)(e) if it is proved that a person has supplied a controlled drug to another person, he shall, until the contrary is proved, be deemed to have sold that controlled drug to that other person.
Which case law refers to Possession?
Warner v Metropolitan Police Commissioner - The term "possession" must be given a sensible and reasonable meaning in its context. Ideally, a possessor of a thing has complete physical control over it and knowledge of its existence, it's situation and it's qualities.
Sullivan v earl of Caithness
Possession includes not merely those who have physical custody of firearms, but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at another location
Define Possession (MODA)
S2(2) MODA 75 - For the purposes of this act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.
What elements of possession must the Crown prove in drugs cases?
The Crown must prove the defendant had:
- knowledge that the drug exists
- knowledge that it is a controlled drug
- some degree of control over it
- an intention to possess it
A person does something intentionally if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it
R v Mohan
A decision to bring about, so far as it lies within the accuseds power, the commission of the offence
R v Waaka
A fleeting or passing thought is not sufficient; there must be a firm intent, or a firm purpose to effect an act
Which case law relates to offering to supply
(R v Brown) The offence of offering to supply can arise in a variety of ways including where the defendant offers to supply or administer:
- a drug that he has on hand
- a drug that will be procured at some future date
- a drug that he mistakenly believes he can supply
- a drug deceitfully, knowing he will not supply the drug
Explain the provisions of statutory presumption?
s6(6) - Persons in possession of drugs over certain specified amounts are considered to have possession of those drugs for the purpose of supply unless they can prove otherwise.
Quantities are listed in Schedule 5:
- Heroin & Cocaine = 0.5g
- LSD = 2.5mg
- Meth, MDMA Cannabis Extract = 5g
- Cannabis plant = 28g/100 cigarettes
- Everything not specified in Schedule 5 = 56g
Along with statutory presumption what other evidence could be given to show possession for supply?
- Tick lists
- Other circumstantial evidence
S2 MODA1975 - any substance specified or described in part 1, 2(3) of schedule 4
Penalty 7yrs - supplies, produces or manufactures equipment or material capable of being used in the commission of an offence against s6(1)(b) or s9 or any precursor substance - knowing that the equipment, material or substance is going to be used in or for the commission of an offence against those provisions
What must the crown prove for a charge under MODA1975 S12A(2)
- that the defendant has equipment, material or precursors in his possession
- that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
- that the defendant has the intention that those items are to be used for such an offence, either by himself or another person
What is the Penalty for conspiring to deal with controlled drugs
What is a conspiracy?
A criminal conspiracy consists of an agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action
Includes implements, apparatus and other hardware used in the manufacturing