Drug Offences CIB011 Part 1 dealing

Question 1

Imports into or exports from NZ Section, Penalty and Liability

Answer 1

Section 6(1)(a)

Life imprisonment

1) Imports Into
OR
Exports From New Zealand

2) Any Controlled Drug

Question 2

Imports - Legislative definition

Answer 2

Sec 2 Customs and Excise Act 1996

• Means the arrival of the goods in New Zealand in any manner,
• whether lawfully or unlawfully
• from a point outside New Zealand.

Question 3

R v Hancox

Answer 3

• The element of importing exists from the time the goods arrive in New Zealand
• until they reach their immediate destination…
• i.e when they have ceased to be under the control of the appropriate authorities
• and have become available to the consignee or addressee.

Question 4

Exports

Answer 4

Sec 53 Customs and Excise Act 1996

• For the purposes of the act, the time of exportation is the time when the exporting craft leaves the last customs place
• at which it calls immediately before proceeding to a point outside New Zealand.

Question 5

R v Strawbridge

Answer 5

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. R v Strawbridge

Question 6

Saxton v Police

Answer 6

Saxton v Police [1981] 2 NZLR 186 (CA)

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

Question 7

Section 6(1)(a) MODA 1975

To prove guilty knowledge

Answer 7

Crown must prove:

Must prove guilty knowledge: This will involve proof the defendant:

1) knew about the importation/exportation

AND

2) knew the imported/exported substance was a controlled drug

AND

3) intended to cause the importation/exportation

Question 8

Useable amount & Police v Emerali + comment

Answer 8

In any drug offence, the quantity of the drug involved must be measurable and useable.

Police v Emerali [1976] 2 NZLR 476

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

Comment:

Whether or not the quantity of a drug is useable depends on more than just its size or weight;

• the nature of the drug and
• the condition in which it is found are relevant

Question 9

Controlled drug- definition

Answer 9

Sec 2 Misuse of Drugs Act 1975

Means any substance, preparation, mixture or article specified or described in schedule 1, schedule 2, or schedule 3 of this act and includes any controlled drug analogue.

Question 10

Class A controlled drug + examples

Answer 10

Sec 2 Misuse of Drugs Act 1975

Means any controlled drug as specified or described in schedule 1 to this act.

Some of the more well-known Class A controlled drugs include:

• Cocaine
• Heroin
• Lysergide (LSD)
• Methamphetamine
• Psilocybine (found in magic mushrooms)

Question 11

Class B controlled drug + examples

Answer 11

Sect 2 Misuse of Drugs Act 1975

Means any controlled drug as specified or described in schedule 2 to this act.

• Amphetamine
• Cannabis preparations (such as cannabis oil and hashish)
• GHB (Fantasy)
• MDMA (Ecstasy)
• Morphine
• Opium
• Pseudoephedrine

Question 12

Produces or manufactures a controlled drug

Section, penalty & liability

Answer 12

Section 6(1)(b)

Life, 14 years, 8 years imprisonments

1) Produce
OR
Manufacture

2) Any Controlled Drug

Question 13

Produce

Answer 13

To produce means to bring something into being or to bring something into existence from its raw materials or elements

Question 14

Manufacture

Answer 14

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

Question 15

R v Rua

Answer 15

• The words “produce or manufacture” in section 6(1)(b)
• broadly cover the creation of controlled drugs
• by some form of process
• which changes the original substance into a controlled drug.

Question 16

Section 6(1)(b) MODA 1975

Complete

Answer 16

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

Question 17

Section 6(1)(b) MODA 1975

Proving Guilty Knowledge

Answer 17

This will involve proof that the defendant:

1) knew about the produce / manufacturing

and

2) knew the produce / manufacturing was a controlled drug

and

3) intended to cause the produce / manufacturing

Question 18

Any controlled drug

Answer 18

Sec 2 Misuse Drugs Act 1975

Means any substance, preparation, mixture or article specified or described in schedule 1, schedule 2 or schedule 3 to the act and includes any controlled drug analogue.

Question 19

Supplies Class A or Class B controlled drug

Section, Penalty & Liability

Answer 19

Section 6(1)(c)

Life, 14 years Imprisonment

1) Supplies or Administers OR Offers to supply or administer OR Otherwise deal in
2) Any Class A or B controlled drug
3) To any person

Question 20

Supply

Answer 20

Sec 2, Misuse of Drugs Act 1975

Includes to distribute, give or sell.

Question 21

R v Maginnis

Answer 21

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.

Question 22

Administers

Answer 22

Black’s 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.

Question 23

Offers

Answer 23

Oxford dictionary

Express readiness to do something for or on behalf of someone.

Question 24

Offering to Supply/Administer

Prosecution must prove + R v Marr and Wilkinson

Answer 24

Prosecution to prove:

1. The communicating of an offer to supply or administer a controlled drug (actus reus)
2. An intention that the other person believes the offer to be genuine

R v Marr and Wilkinson & four propositions regarding an ‘offer to supply’:

1. ‘Offer to supply’ is to be given its ordinary meaning and not any technical meaning.
2. There may be more than one person guilty of ‘offering to supply’ in any one transaction.
3. An intermediary/agent may be guilty of ‘offering to supply’ his/her own principal. In the criminal law every party involved may actually ‘offer to supply’ or be a party (section 66 of the Crimes Act 1961) to such an offer.
4. ‘Offer to supply’ in sections 6 and 7 of the Misuse of Drugs Act 1975 has a wide meaning and includes an offer to arrange for someone else to hand over a drug to the person to be supplied.

Question 25

R v During

Answer 25

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.

Question 26

In R v Brown offering to supply a controlled drug can arise in four different ways, they are...

Answer 26

The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence * offers to supply a drug that he has on hand * offers to supply a drug that will be procured at some future date * offers to supply a drug that he mistakenly believes he can supply * offers to supply a drug deceitfully, knowing he will not supply that drug

Question 27

Section 6(1)(c) MODA 1975 Proof of guilty knowledge

Answer 27

This will involve proof the defendant: 1) knew about the supply / administering / offer and 2) knew that the supply / administering / offer substance was a controlled drug and 3) intended to cause the supply / administering / offer.

Question 28

Supples, administers or offers to supply or administer to persons under 18 years Section, Penalty & Liability

Answer 28

Section 6(1)(d) 8 Years Imprisonment 1) Supplies or Administers OR Offers to supply or administer 2) Any Class C Controlled Drug 3) To any person under 18 years of age

Question 29

Class C Controlled Drug

Answer 29

Sec 2 Misuse of Drugs Act 1975 Means any drug specified or described in Schedule 3 to this Act, and includes any controlled drug analogue.

Question 30

R v Forrest and Forrest and comment

Answer 30

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.

Question 31

Sell, or offer to sell, any Class C controlled drug to person of or over 18years Section, Penalty & Liability

Answer 31

Section 6(1)(e) Misuse of Drugs Act 1975 8 years 1) Sells OR Offers to Sell 2) Class C Controlled Drug 3) To any person of or over the age of 18 years old

Question 32

Sell, Comment

Answer 32

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.

Question 33

Dealing with controlled drugs Presumption of sale

Answer 33

Sec 6(5) Misuses of Drugs Act 1975 For the purposes of paragraph (e) of subsection (1) of this section, if it is proved that: if you have supplied it, you have sold it.

Question 34

Offers to Sell -prosecution to prove

Answer 34

The prosecution must prove two elements: 1) the communicating of an offer to sell a controlled drug (the actus reus) and 2) an intention that the other person believes the offer to be genuine (the mens rea)

Question 35

Proving guilty knowledge Section 6(1)(e) MODA 1975

Answer 35

This will involve proof the defendant: 1) knew about the sale / offer and 2) knew that the substance for sale/offer was a controlled drug and 3) intended to cause the sale/offer

Question 36

Components of Knowledge

Answer 36

1. the defendant must be **aware** that they possess the substance 2. the defendant **identifies** the substance as a controlled drug, [even if there is no substance to be analysed to prove their assertion] 3. **Physical custody** presumes knowledge, unless otherwise proven. Lockyer v Gibb24 a person cannot be said to be in possession of some article which he or she does not realise is in their possession. Julian v Green26 physical custody (actual possession) raises an inference of concurrent knowledge of the contents.

Question 37

R v Cox

Answer 37

R v Cox [1990] 2 NZLR 275 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.

Question 38

To Control definition

Answer 38

To “control” something means to: **exercise** **authoritative** or **dominating influence** or **command** over it.

Question 39

Possession in drug cases -crown to prove-

Answer 39

*it will be necessary for the Crown 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

Question 40

Intent - Criminal Law

Answer 40

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 41

Proving intent in drug cases

Answer 41

In drugs cases additional evidence of intent to supply may be inferred from: * admissions * circumstantial evidence (packaging, scales, cash, tick lists etc) * the statutory presumption under section 6(6).

Question 42

Statutory Presumption

Answer 42

Section 6 Misuse of Drugs Act 1975 Dealing with controlled drugs (6) * For the purposes of subsection (1)(f), * a person is presumed to be in possession of a controlled drug * for any of the purposes in subsection (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 (see section 2(1A)) is a reference to the amount, level, or quantity specified in Schedule 5. Unless that 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 suspect was heavily addicted and required large amounts for personal use.

Question 43

Schedule 5 Misuse of Drugs Act 1975

Answer 43

Schedule 5 Misuse of Drugs Act 1975 The controlled drugs and specified amounts are listed in Schedule 5 to the Act. Some examples of drugs and their presumptive amounts are: Heroin 0.5 grams Cocaine 0.5 grams Lysergide (LSD) 2.5 milligrams or 25 flakes, tablets etc Methamphetamine 5 grams MDMA (Ecstasy) 5 grams or 100 flakes, tablets etc Cannabis resin and extract (oil) 5 grams Cannabis plant 28 grams or 100 or more cigarettes

Question 44

Section 12A (1) Misuse of Drugs Act 1975

Answer 44

(1) Every person commits an offence against this Act who **s**upplies, **p**roduces, or **m**anufactures— (a) 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 ; or (b) 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. E.g Hydroponic suppliers or Pseudo shoppers

Question 45

Section 12A (2) Misuse of Drugs Act 1975

Answer 45

(2) ... has in his or her possession— (a) 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 ; or (b) Any **precursor substance**— with the **intention** that the **equipment, material, or substance** is to be used in, or for, the _commission of an offence against_ that provision. E.g Meth cooks and cannabis cultivators.

Question 46

Equipment

Answer 46

will include the **implements, apparatus** and other **hardware** used in the manufacturing, producing or cultivating process. Examples may include: glassware, condensers, heating mantles etc used in the manufacture of methamphetamine; or pots, lights, timers, water pumps etc used in cultivating cannabis.

Question 47

Material

Answer 47

**anything** used in the process of producing, manufacturing or cultivating that **cannot be properly described as equipment**. Examples may include: chemicals (other than those classified as precursors); documents providing instructions on the manufacturing or cultivating process; or fertilisers, nutrients etc used in cultivation.

Question 48

Knowing & comment (12(a)(1)

Answer 48

Simester and Brookbanks “knowing or correctly believing” “the defendant may believe something wrongly, but cannot ‘know’ something that is false”. In Kerr v R46 the term “knowing” for the purposes of s12A(1) was encapsulated by the use of the more precise word (in the context() of “believing”

Question 49

12A(2) the Crown must prove three elements:

Answer 49

12A(2) the Crown must prove three elements: * 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 Has in his or her Possession

Question 50

Joint Possession comment

Answer 50

Joint Possession: 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

Question 51

Controlled drug analogue

Answer 51

Controlled drug Analogue Any substance with a structure substantially similar to a controlled drug. All analogues are class C drugs

Question 52

R v Martin

Answer 52

R v Martin it will suffice if the Crown can prove beyond reasonable doubt 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.

Question 53

Cultivating Prohibited Plants Section, Penalty, Elements

Answer 53

S9(1) MODA 75 7 Years Imp * Except _pursuant to a license_ under this act, or as otherwise permitted by _regulations_ under this act, * no person shall cultivate any prohibited plant

Question 54

Allowing Premises or Vehicles to be Used Section, Penalty, Elements

Answer 54

S12(1) MODA 75 10, 7, 3 Years Imp 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

Question 55

Obstruction of Officers Section, Elements

Answer 55

S16 MODA 75 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 Can obstruct ANYONE Different to Summary Offences Obstruction

Question 56

Possessing Prescription Medicines Section, Elements

Answer 56

S43(1) Medicines Act 1981 No person shall, * without reasonable excuse, * import, procure, receive, store, use or otherwise have in his possession, * any prescription medicine

Question 57

Offences relating to Use or Disposal of Needles and Syringes Section & Elements

Answer 57

S11(1) Health Regulations 1998 - Relating to use or disposal Every person commits an offence who- (a) **Offers** to any person for use by that other person a used needle or syringe or (b) **Accepts** for use a used needle or used syringe or (c) **Disposes** of a needle or syringe in a public place S12(1) Health Regulations 1998 - Relating to sale

Question 58

Offences relating to Sale of Needles and Syringes

Answer 58

Health (Needles and Syringes) Regulations 1998 reg 11. Offering or accepting for use any used needle or syringe, or disposing of any needle or syringe in a public place: reg 12. Selling or supplying, or attempting to sell or supply, any needle or syringe: Note: Possession of the needle per se is not an offence, but will become so if the syringe contains a useable amount of a controlled drug. An offence is being committed in respect of the drugs, ie possession.