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Flashcards in Drug dealing Deck (60):
1

What section do does drug offending come under in the misuse of drugs act 1975?

Section 6

2

What are the six offences listed under section 6(1) of the Misuse of Drugs Act 1975?

(a) Import or export from New Zealand any controlled drug, other than those in part 6, schedule 3 of this act.

(b) Produce or manufacture any controlled drug.

(c) Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person or otherwise deal in any such controlled drug.

(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age.

(e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years or age

(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d) or (e) of this subsection.

3

What are the ingredients of the offence under section 6(1)(a) of the Misuse of Drugs Act 1975?

- Imports into or exports from New Zealand

- Any controlled drug

4

Saxton v Police (1981) - MUST KNOW

To import includes "to introduce from abroad or to cause to be brought in from a foreign country". In this example the defendant sent a package to himself from overseas. When he collected it he claimed that he had only exported the drug and not imported it. His appeal was dismissed.

5

R v Hancox (1989) - MUST KNOW

The bringing of goods into the country or causing them to be brought into the country does no 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. In this example a female picked up a parcel containing ecstasy from a po box. It was said that the parcel was no longer being imported and therefore a charge of party to the importation process was dismissed.

6

What are the three elements needed to prove the mens rea needed for in importation?

The defendant:

- Knew about the importation. AND

- Knew the imported substance was a controlled drug, AND

- Intended to cause the importation.

7

Define: Exports

As with importing, the offence of exporting is a continuing process. It starts with the first act intended to export the drugs from NZ, and finishes at the time of export. ie the point at when the drugs have left NZ for overseas

8

Define: New Zealand (as in when something would be classed as 'in New Zealand'

Means the land mass of New Zealand and the waters enclosed by the outer limits of the territorial sea of New Zealand. (12 nautical miles from land mass). 

9

Define: Controlled drug analogue

A controlled drug analogue means any substance, that has a structure similar to that of any controlled drug. 

But does not inlcude: 

Some drugs listed in the Misuse of Drugs Act 1975, Medicines Act 1981 and Psychoactive Substances act 2013. 

10

Define Class A Drug and give examples

Class A drug means the controlled drugs specified or described in schedule 1 of the Misuse of Drugs act 1975. 

Examples: 

- Cocaine

- Herion

- Lyserglide (LSD)

- Methamphetamine

- Psilocybine (found in magic mushrooms)

11

Define Class B controlled drug and give examples

Class B controlled drug means the controlled drugs specified or described in schedule 2 of the Misuse of Drugs act 1975. 

Examples: 

- Amphetamine

- Cannabis preparations (oil, hashish)

- GHB (Fantasy)

- MDMA (Ecstasy)

- Morphine

- Opium

- Pseudoephedrine

 

12

Define a Class C controlled drug and give examples

Class C drug means the controlled drugs specified or described in schedule 3 of the Misuse of Drugs act 1975. 

Examples:

- Cannabis plant

- Cannabis seeds

- Benzypeperazine (BZP)

- Controlled drug analogues (all)

13

R v Strawbridge (1970) - MUST KNOW

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 satsified beyond reasonable doubt that this was not so. 

14

Police v Emerali (1976) - MUST KNOW

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

 

Ie - to support  a charge of possessing a controlled drug, the amount found must be a useable quantity. 

15

What are the ingredients of the offence under section 6(1)(b) of the Misuse of Drugs Act 1975?

- Produces or manufactures

- Any controlled drug

16

R v Rua (2008) - MUST KNOW

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. 

 

Although when formulating a charge they should be used correctly: produced means changing the nature of the original substance (making cannabis oil from cannabis plant).  Manufacture means creating something new from original substances (making meth from pseudo). 

17

When is the offence of producing/manufacturing any controlled drug completed?

The offence is complete once the prohibited substance is created, whether or not it is in a useable form. 

 

Ie, methamphetamine in a two layered liquid, while not useable is said to have been manufactured (R v Rua)

18

Describe section 29B and how it deals with cannabis preparations

Section 29B regards to cannabis preparations such as producing cannabis oil or baking a cannabis cake. 

(a) It will be for the prosecution to prove that the preparation contains tetrehydrocannabinols

(b) As per (a) of this section the preparation shall be deemed to have been produced by subjecting cannabis plant material to some kind of processing unless it is in a form that is clearly recognisable as plant material. 

(c) Plant material means the whole or any part of the leaf, flower, or stalk or any part of the plant. 

(d) If the question of whether or not any preparation is in a form clearly recongnisable as plant material shall be a question for the jury or judge. 

19

Is any cannabis preparation classed as class B or C

Class B (higher than just cannabis plant/seeds)

20

What are the ingredients of the offence under section 6(1)(c) of the Misuse of Drugs Act 1975?

- Supplies

- Administers

- Offers to supply or administer

- Otherwise deals in

- Any Class A or Class B controlled drug

- To any other person

21

Define: "supply" in regards to s6(1)(c)

To supply means to "furnish or provide to something that is needed or desired". It includes; distribute, give, and sell. 

22

R v Maginnis (1987) - MUST KNOW

Supply involves more than the mere transfer of physcial control. It includes enabling the recipient to apply the thing. To purposes for which he desires. 

23

Define distributing

Distribution relates to the supply of drugs to multiple people. 

24

Define: Giving

Giving involves handing over or in some other way transferring an item to another person. The act of giving is complete when the recipient accepts possession, or where the drug is placed under the control of a willing recipient. 

25

Define: Selling

A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Although usually the valuable consideration is usually money, real estate will also suffice. 

26

Define: Administering

Administering is distinguished from supplying in that it involves introducing a drug directly into another person's system. 

Blacks law dictionary: 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. 

27

Define: offering

The act of arousing another person's interest in controlled drugs, or of tempting others to use them. 

28

What must the prosecution prove to satisfy the term "offering" in a charge under s6(1)(c)?

The prosecution must prove two elements:

- 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)

29

R v During (1973) - MUST KNOW

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. 

30

R v Brown (1978) - MUST KNOW

The making of such intimation, with the intention that it should be understood as a genuine offer, is an offence.

Further, the court of appeal went on to state the following would all class as an offence of offering: 

- Offers to supply a drug that he has on hand

- Offers to supply a drug that will be produced at some future date. 

- Offers to supply a drug that he mistankenly believes he can supply

- Offers to supply a drug deceitfully, knowing he will not supply that drug (ie, salt instead of meth, but making the recipient believe it to be meth) 

31

Define: otherwise deals in

The term "otherwise deals in" in paragraph (c) is aimed at dealing in a drug by some means other than distributing, giving, selling, administering, or offering to supply or administer it. 

R v Hooper and Another (1975): In terms of otherwise dealing in a drug the example which readily comes to mind is a barter or exchange. 

32

Discuss the term 'to any other person' in regards to a charge under s6(1)(c)

The prosecution must prove that the drugs were supplied to another person, although it is not necessary to identify that person. Age is not relevant for this charge, however it is for s6(1)(d) and (e). 

33

What are the ingredients of the offence under section 6(1)(d) of the Misuse of Drugs Act 1975?

- Supplies, administers, or offers to supply or administer

- Any Class C controlled drug

- To a person under 18 years of age

34

R v Forrest and Forrest (1970) - MUST KNOW

In regards to proving the age of the victims for a charge under s6(1)(d):

"The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age". 

The best possible evidence in these cases is usually a parent of the victim. If that is not available then have the victim give evidence about her age, ie when she started school, what day of the year she celebrates her birthday each year. 

35

What are the ingredients of the offence under section 6(1)(e) of the Misuse of Drugs Act 1975?

- Sells or offers to sell

- Any class C controlled drug

- To a person of or over 18 years of age

36

In regards to s6(1)(e), define: sells

for the purposes of this offence, the presumption is that in the absence of evidence to the contrary a drug supplied to a person over 18 years of age has been sold to that person. 

 

The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale. 

37

What are the ingredients of the offence under section 6(1)(f) of the Misuse of Drugs Act 1975?

- Has in his possession

- Any controlled drug

- For the purpose of supply

38

Define: 'Has in his possession' in regards to s6(1)(f)

Possession may be 'actual' or 'constructive'. 

Actual possession arises where the thing in question is in a perons's physical custody; it is on or about their person, or imediately at hand. 

Constructive possession arises when something is not in a person's physical custody, but they have ready access to it or can exercise control over it. 

39

Warner v Metropolitan Police Commissioner (1969) - MUST KNOW

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. 

- Knowledge of its existence, its situation and its qualities. 

40

Desribe s2 of the Misuse of Drugs Act 1975, in relation to constructive possession of a drug

'For the purpose 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.' 

41

Describe what is required for proof of possession in drugs cases?

Proof of possession requires proof of both a physical element (actus reus) and a mental element (the mens rea). 

The prosecution will need to prove that 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

42

Define: control

To 'control' something means to exercise authoritive or dominating influence over it. 

A person can control an itemt that is not in their physical custody, and conversely can have something in their physical custody but not have control over it. Ie - someone slipping an item into a lady's purse without her knowledge. 

43

Define: for the purpose of supply

also 

Intention

'Purpose' in this context can be equated to 'aim' or 'intention'. 

regarding intention: 

A person intends to do an action if he:

- Wants to do that action

- Believes it is possible for him to achieve something he was by doing that action

- Behaves as he does because of his desire or his belief. 

44

R v Mohan (1976) - MUST KNOW

Intent involves a decision to bring about, in so far as it lies within the accused's power, the commission of the offence. 

45

R v Waaka (2001) - MUST KNOW

 A "fleeting or passing thought" is not sufficient, there must be a "firm intent or a firm pupose to effect an act". 

46

Describe secondary intent in regards to s6(1)(f)

 A person may also have intended a secondary  outcome, albeit a collateral one to his primary aim, if that outcome was foreseen as certain to occur. 

ie, boming a plane to claim insurance money, an obvious outcome is that people will die. 

or: a pharmacist that sold large quantities of coeine to a woman, knowing it was to be used in the manufacture of homebake heroin. -R v Wentworth (1993)

47

Describe four ways to prove intent

1. Defendants admissions

2. offenders actions/words before, during and after the incident

3. the surrounding circumstances

4. the nature of the act itself

48

describe ways of proving intent with drugs cases specifically

- Admissions

- circumstantial evidence (packaging, scales, cash, tick list etc)

- the statutory presumption under section 6(6)

49

What is the statutory presumption in regards to controlled drugs?

Under section 6(6) persons in possession of controlled drugs over certain specified amounts are considered to have possession of those drugs for the purpose of supply. 

The effect of the statutory presumption is to reverse the onus of proof. It is up to the defendant to prove on the balance of probabilities that the drugs were not intended for supply. 

50

Give examples of amounts in the statutory presumptions in s6(6)

Heroin: 0.5 grams

Cocaine: 0.5 grams

Lyserglide: 2.5 milligrams or 25 flakes, tabs etc

Methamphetamine: 5 grams

MDMA: 5 grams or 100 tabs

Cannabis oil: 5 grams

Cannabis plant: 28 grams or 100 tinnies. 

51

What are the ingredients of the offence under section 6(2A) of the Misuse of Drugs Act 1975?

- Conspires

- With any other person

- To deal with any controlled drug

52

What are the ingredients of the offence under section 12A(1) of the Misuse of Drugs Act 1975?

- Supplies, produces or manufactures

- Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b), or section 9.

- Any precursor substance

- Knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

53

For a conviction under s12A(1), the prosecution must prove three elements, what are they?

1. That the defendant has supplied, produced or manufactured equipment, material or precursors. 

2. That those items are capable of being used in teh production or manufacture of controlled drugs, or the cultivation of prohibited plants. 

3. That the defendant knows those items are to be used for such an offence by another person. 

54

Define: equipment

Equipment is not defined by statute, but will include the implements, apparatus and other hardware used in teh manufacturing, producing or cultivating process. 

55

Define: material

Material is also not defined, in practice the term is likely to include anything used in the process of producing etc, that cannot properly be described as 'equipment'. 

examples could include: chemicals, or fertilisers, nutrients. 

56

Define: precursor

Precursor means 'fore-runner' - something that comes before something else. In this context it refers to a substance that is the starting point in a chemical process that will result in the creation of a new drug. 

57

Define: 'knowing' in regards to 12A(1) 

The defendant must "know" they are to be used in the commission of an offence agasinst those provisions. 

Note: "know" is more than "intent".

58

What are the ingredients of the offence under section 12A(2) of the Misuse of Drugs Act 1975?

- Has in his or her possession

- Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b), or section 9.

- Any precursor substance

- Knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

59

To prove an offence under s12A(2), the prosecution must prove three elements, what are they?

1. That the defenddant has equirment, material or precursors in his possession. 

2. That those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants. 

3. That the defendant has the intention that those items are to be used for such an offence, either by himself or another person. 

60

Define: 'intent' in regards to 12A(2)

See previous descriptions of intent, but further

- It must be proved that the defendant intended the items to be used some time in the future. 

- It is not necessary that the defendant intends to use the items himself, it is sufficient if he intends someone else to use them. 

- While it is not necessary to prove the defendant's intention that the items be used in a specified offence, it is not necessary to prove that the offence was actually committed or even attempted.