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CIB Drugs > Drug Definitions and Case Law > Flashcards

Drug Definitions and Case Law Flashcards

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1
Q

Controlled Drug

A

S2 MODA75

Controlled drug means any substance, preparation, article or mixture, specified or described in schedules 1, 2 and 3 of this act, and includes any controlled drug analogue

SPAM + CDA

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2
Q

Controlled Drug Analogue

A

Any substance with a structure substantially similar to a controlled drug.

All analogues are class C drugs

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3
Q

Examples of Class A Drugs

A

Cocaine
Heroin
LSD
Methamphetamine
Psilocybin
AMB-FUBINACA

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4
Q

Examples of Class B Drugs

A

Morphine
Opium
MDMA
GHB
Methadone
Cannabis oil or resin

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5
Q

Examples of Class C Drugs

A

Cannabis plant
Cannabis seeds
BZP
Controlled drug analogues

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6
Q

Statutory Presumptive Amount

LSD
Heroin
Cocaine
Meth
MDMA
Cannabis Oil
Cannabis Plant

A

Schedule 5 MODA 1975

LSD - 2.5mg or 25 tablets
Heroin - 0.5g
Cocaine - 0.5g
Meth - 5g
MDMA - 5g or 100 flakes, tablets
Cannabis Oil - 5g
Cannabis Plant - 28g or 100 cigarettes

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7
Q

Joint Possession

A

Where more than one person has access to drugs of a saleable quantity, they may be charged jointly with possession. However in such a situation you must prove there was a shared intention to sell the drugs

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8
Q

Intent

A

In a criminal law context there are two specific types of intention in a offence.

Firstly there must be an intention to commit the act, and secondly an intention to get a specific result.

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9
Q

Saxton v Police (1981)

A

To import includes “to introduce or bring in from abroad or to cause to be brought in from a foreign country“.

The Court of Appeal held that “to import” includes “to bring in” but that the term also has a wider definition.

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10
Q

R v Hancox

A

” … The bringing of goods into the country or causing them to be brought into the country does not 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“.

The Court of Appeal held that delivery into the post office box was the final step in the transit process and that the importation had ended.

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11
Q

R v Strawbridge

A

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.

A person who innocently possesses something they genuinely believed was not a controlled drug.

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12
Q

Police v Emirali

A

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

The purpose of the statute is to limit illicit drug use, and it was therefore necessary for the drugs found to be of a usable quantity.

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13
Q

R v Rua

Produce manufacture

A

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.

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14
Q

What is the difference between producing and manufacturing?

A

Producing: To bring something into being or existence from its raw materials or elements.

Manufacturing: The process of synthesis; combining components or processing raw materials to create a new substance.

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15
Q

Rua

Offence complete

A

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

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16
Q

R v Re Park

A

The High Court held that although he had prepared and preserved the mushroom material, he had not produced psilocybine in the sense of having brought something new into existence.

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17
Q

How is supply defined in S2 of MODA?

A

Supply includes distribute, give or sell.

It includes conferring on the recipient the ability to use the drugs for his or her own purposes.

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18
Q

R v Maginnis

A

“[Supply involves] more than the mere transfer of physical control … [it includes] enabling the recipient to apply the thing … to purposes for which he desires …”

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19
Q

What is distribution?

A

The supply of drugs to multiple people.

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20
Q

R v Donald

A

Supply includes the distribution of jointly owned property between its co-owners.

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21
Q

What is giving?

When is it complete?

A

Giving involves the handing over or in some other way transferring an item to another person.

When the recipient accepts possession, or where the drug is placed under the control of a willing recipient.

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22
Q

R v Knox

A

“A person who is in unlawful possession of a controlled drug, which has been deposited for safekeeping, has the intent to supply that drug to another if his intention is to return the drug to the person who deposited it with him.”

Application: Giving

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23
Q

R v Wildbore

A

A “passive custodian” who relinquishes custody of a drug to meet the needs of another, has the necessary intent for supply.

Application: intent to supply (drug dealing)

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24
Q

What is selling?

Study These Flashcards
A

When a quantity or share in a drug is exhanged for some valuable consideration.

Anything of value will suffice - for example exhanging a large quantity of cannabis for some real estate.

25
What is administering? Examples
” … to direct and cause a … drug to be taken into the system” of another person. - Injecting with Heroin - Burning cannabis so another person can inhale it. - Slipping date rape drug into a drink
26
What two elements must the prosecution prove regarding offering to supply or administer?
- 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).
27
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.” Application: offer to supply
28
R v Brown Examples of Offering
Offers to supply a drug that 2. He has on hand 2. Will be procured at some future date 3. He mistakenly believes he can supply 4. He deceitfully knows he will not supply that drug.
29
How can an offer to supply be conveyed?
In any manner including by words, writing or gestures.
30
Is it necessary for the Crown to prove the defendant had the capacity to supply the drugs?
No
31
What is the purpose of ‘otherwise deals with’ and give an example.
This is aimed at dealing in a drug by some means other than by distributing/giving etc. Example: barter or exchange.
32
Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”
33
What is the presumption created in S6(5)?
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.
34
What essential element must the prosecution prove when someone is charged with selling or offering to sell a Class C controlled drug to a person of or over 18 years of age?
The prosecution must prove the age of the person to whom the drugs were supplied.
35
What is the caveat around proof of age and someone 18 years or over receiving Class C controlled drugs?
It is only a drug dealing offence under S6 if the drugs are sold or offered for sale to that person.
36
R v Cox
Possession involves two elements. The first, 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.
37
Define what actual and potential custody is.
Actual custody: Means that the person actually has the drug in their custody or control. Potential custody or control: S2(2) MODA - the things which a person has in his possession include anything subject to his control which is in the custody of another.
38
What must be shown to prove knowledge of existence
- The defendant must be aware that they possess the substance. - The defendant identifies the substance as a controlled drug, even if there is no substance to be analysed to prove their assertion. - That physical custody presumes knowledge, unless otherwise proven.
39
What do you need to establish when considering whether a person knows the qualities of a substance?
- That they know they have the substance - That they know the substance’s nature or qualities - That they intend to use the substance in a way that allows you to charge them with possession.
40
What would be an example of potential custody or control?
A person storing their drugs at a friend’s house.
41
What does proof of possession require?
Proof of both a physical element (actus reus) and a mental element (mens rea).
42
What does control mean?
To exercise authoritative or dominating influence or command over it.
43
What do you need to prove regarding joint possession and what is the alternative charge if you can’t?
You must prove that there was a shared intention to sell the drugs. Consider a charge of possession if joint possession cannot be shown.
44
R v Searle Common stock
The Court addressed the issue where a common stock of drugs exists, from which a number of people may draw at will, they may all be in common possession of all of the drug. The Court held that it is not enough to show the ‘others’ knew the drugs existed or that one person held them, a common pool or joint enterprise must be shown.
45
R v Jay - attempted possession
J admitted that he thought it was cannabis and that he had purchased it from another person. On analysis it was found to be hedge clippings. 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.
46
What four criteria must be shown to prove a charge of possession?
1. Knowledge that the drug exists 2. Knowledge that it is a controlled drug 3. Actual physical control or some degree of control over it 4. An intention to possess it
47
Define purpose with regard to S6(1)(f)
Aim or intention. The relevant intention on the part of the defendant is to supply a controlled drug to others in one of the ways specified in 6(1)(c), (d), or (e).
48
How do you prove intent to supply?
- Admissions - Circumstantial evidence (packaging, scales, cash, tick lists etc - The statutory presumption under S6(6)
49
What does S6(6) say regarding statutory presumption?
That a person is presumed, until the contrary is proved, to be in possession of a controlled drug for any of the purposes in ss(1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply.
50
What standard of proof is required by defence to show their client did not possess drugs over the presumptive amount for supply?
Balance of probabilities
51
If the amount of drugs found is under the presumptive level, what other evidence may be available to prove otherwise?
- The environment in which the drugs were found - The way in which they were packaged - The suspect’s admissions - Presence of large amounts of money or ‘tick-lists’ showing sales.
52
What is the presumptive amount for a drug not specified?
56 Grams
53
Presumptive amounts of drugs 6(6)
Heroin - 0.5g Cocaine - 0.5g LSD - 2.5g or 25 tabs Meth - 5g MDMA - 5g or 100 tabs Cannabis oil - 5g Cannabis plant - 28g Other - 56g
54
Section 29B Cannabis Preparation What must the crown prove
The prosecution must prove that the preparation to which the charge relates contains THC
55
R v Martin Wilful blindness
Guilty knowledge also includes Proof that the defendant deliberately turned a blind eye to facts will suffice Importer had suspicions but deliberately refrained from confirming suspicions
56
Crown to prove regarding importation
1. Defendant knew about the importation 2. Knew the imported substance was a controlled drug 3. Intended to cause the importation.
57
Mistake as to nature of drug Section 29
It is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.
58
Proving usable quantity Section 29A
It is not necessary for the prosecution to prove the quantity is of useable quantity unless the defendant puts the matter in issue
59
R v Brown Offer
“… The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.”

CIB Drugs (6 decks)

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