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Drugs > Liabilities > Flashcards

Liabilities Flashcards

1
Q

What are the 6 liability offences for drugs?

A
  • Imports into or exports from New Zealand any controlled drug
  • Produces or Manufactures a controlled drug
  • Supplies Class A or Class B controlled drug
  • Supplies, administers or offers to supply or administer class C controlled drug to persons under 18 years
  • Sell or offer to sell any class C controlled drug to person of or over 18 years
  • Possession of controlled drug for supply
  • Conspiring to deal with controlled drugs
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2
Q

What are the section and elements for Imports into or exports from New Zealand any controlled drug?

A

s6(1)(a) MODA 1975

  • Import into OR Export from New Zealand
  • Any controlled drug
  • Other than a controlled drug specified or described in Part 6 of Schedule 3 to this Act
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3
Q

Definition of import

A

The arrival of goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand

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4
Q

Case law for import

A

Saxton v Police states to import includes to introduce from abroad or to cause to be brought in from a foreign country

R v Hancox states importing 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… when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee

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5
Q

Discuss the process of importing

A

Importing in a process beginning at the point of origin and continuing to the ultimate destination in NZ. Criminal liability arises when the drugs cross NZ’s territorial limit however the offence does end there, it carries on until the final destination.

Anyone knowingly assisting up to that point is liable.

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6
Q

What parts make up the mens era for importing?

A
  • Knew of the importation
  • Knew the imported substance was a controlled drug
  • intended to cause the importation
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7
Q

Discuss wilful blindness as it relates to importation

A

For knowledge/intent Wilful Blindness will suffice, that is if the persons suspicious were aroused as to what they were importing, but they deliberately refrain from further enquires to retain their “ignorance”

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8
Q

Define New Zealand (for a s6(1)(a) offence)

A

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

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9
Q

Definition of controlled drug

A

Any substance, preparation, mixture or article specified or described in schedule 1, schedule 2 or schedule 3 to this Act, and includes any controlled drug analogue

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10
Q

Definition of controlled drug analogue

A

Any substance that has a structure substantially similar to that of any controlled drug

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11
Q

What class are controlled drug analogues?

A

Class C

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12
Q

What are Class A controlled drugs and give some examples

A

They are listed in schedule 1 to this Act.

Their misuse poses a very high risk of harm to individuals and society.

Examples:
- Meth
- Heroine
- LSD
- Cocaine
- Psilocybine

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13
Q

What are Class B controlled drugs and give some examples

A

They are listed in schedule 2 to this Act.

Their misuse poses a high risk of harm.

Examples:
- Amphetamine
- Cannabis preparations (hashish or oil)
- GHB
- MDMA
- Opium
- Pseudoephedrine and ephedrine

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14
Q

What are Class C controlled drugs and give some examples

A

They are listed in schedule 3 to this Act and includes any controlled drug analogue.

Their misuse poses a moderate risk of harm.

Examples:
- Cannabis plant and seeds
- BZP

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15
Q

What drug classes are included under s6(1)(a) MODA 1975?

A

Any controlled drug regardless of class

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16
Q

For controlled drug in liabilities what must be covered?

A
  • Definition including class
  • Guilty knowledge and associated case law
  • Usable quantity and associated case law
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17
Q

Define guilty knowledge as required for liabilities

A

Guilty knowledge must be proved, that is the defendant didn’t innocently posses something they genuinely believed wasn’t a controlled drug.

Guilty knowledge is presumed in the absence of evidence to the contrary.

s29 MODA 1975 states it is not a defence that the defendant did not know the substance was the PARTICULAR controlled drug alleged.

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18
Q

Case law for guilty knowledge

A

R v Strawbridge: 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 their part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds their act was innocent, they are entitled be to acquitted

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19
Q

Define usable quantity

A

In any drug offence the quantity must be useable.

It is not necessary for the prosecution to prove usable quantity unless the defence raise the issue.

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20
Q

Case law for usable quantity

A

Police v Emirali: the seriousness of the offence of possessing a narcotic does not extend to some minute and useless residue

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21
Q

Section and elements of Produces or Manufactures a Controlled Drug

A

s6(1)(b) MODA 1975

  • Produce OR Manufacture
  • Any controlled drug
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22
Q

Definition of produce

A

Bring something into existence from its raw materials or elements. Includes to compound which is to create a whole by mixing or combining two or more elements or parts.

Think cannabis oil

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23
Q

Definition of Manufacture

A

Process of synthesis, invovling combining components or processing raw materials to create a new substance.

Think meth or heroin

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24
Q

Case law for Produce OR Manufacture

A

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

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25
Q

When is the offence of Produces or Manufactures a controlled drug complete?

A

When the prohibited substance is created, whether or not is is in usable form (R v Rua)

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26
Q

For alleged cannabis preparation under s6(1)(b) what does s29B outline?

A
  • It defines cannabis preparation as prepared by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material
  • Also states the prosecution must prove the preparation contains THC
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27
Q

Section and elements of Supplies Class A or Class B Controlled Drug

A

s6(1)(c) MODA 1975

  • Supply OR Administer OR Offer to supply OR offer to administer
  • Any class A OR class B controlled drug
  • To any other person
    OR
  • Otherwise deals in any such controlled drug
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28
Q

Definitions of Supply

A

Includes to distribute, give and sell.

It is more than mere handing over though, it includes conferring ability to use the drugs

29
Q

Case law for supply

A

R v McGinnis: Supply involves more than mere transfer of physical control, it includes enabling the recipient to apply the thing to purposes for which he desires

30
Q

Define distribute

A

Supply to multiple people.

Includes distributing jointly owned property (R v Donald)

31
Q

Define Give

A

Handing or transferring over item to another person.

This is complete when the recipient accepts possession or where the drug is placed under the control of a willing recipient

32
Q

There are 3 non-essential points defined by case law related “supply”. What are they?

A

R v Donald states splitting jointly owned property is distributing.

R v Wildbore states passive custodians who hold on to drugs for another and return them give them.

R v Knox states people safekeeping drugs for another give them when they return the drug to the owner.

33
Q

Define sell

A

Exchanged for some valuable consideration

34
Q

Definition of offer

A

Arousing another person’s interest in controlled drugs, or tempting others to use them

35
Q

Case law for offer

A

R v During: An offer is an intimation by the person charged to supply to that other drugs of a kind prohibited by the statute

R v Brown: A person is guilty of offering in the following circumstances:
- 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

36
Q

If a controlled drug is supplied and the drug is a fake, how will conviction and sentencing be adjusted?

A

The defendant is still guilt of supplying the controlled drug, however their sentencing will be based on an equivalent dishonest offence

37
Q

What must the prosecution prove for the charge of supplying a controlled drug if the drug is a fake?

A

That the defendant intended the receiver to believe the offer, even if it was disingenuous

38
Q

What “meaning” (not definition) does offer to supply have?

A

Its ordinary, not technical meaning

39
Q

Can multiple people be guilty of offering to supply in a single transaction?

A

Yes

40
Q

Can an intermediary/agent of the principal supplier be found guilty of supplying a controlled drug?

A

Yes

41
Q

Can someone who organises for someone else to hand over a controlled drug to the recipient be found guilty of supplying a controlled drug?

A

Yes

42
Q

Definition of otherwise deals

A

Dealing other than supply, administer or offer to supply or administer

An example could be barter or exchange

43
Q

Key points for any other person

A

Must be a person other than the defendant.

It is not necessary to identify them.

44
Q

Section and elements of Supplies, administer or offers to supply or administer class C controlled drug to person under 18 years

A

s6(1)(d) MODA 1975

  • Supply OR administer OR offer to supply OR offer to administer
  • Any class C controlled drug
  • To a person under 18 years of age
45
Q

Case law for person under 18 years of age

A

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

46
Q

Definition of person

A

This is gender and age neutral and is proven by judicial notice and circumstantial evidence

47
Q

In practice, how will a person’s age be proven in court

A

By producing their birth certificate in conjunction with independent evidence identifying them as the person named in the certificate

48
Q

Section and elements of Sell or Offer to Sell any class C controlled drug to a person of or over 18 years

A

s6(1)(e) MODA 1975

  • Sell OR offer to sell
  • Any class C controlled drug
  • To a person of or over 18 years of age
49
Q

For s6(1)(e) discuss the presumption created by s6(5)

A

s6(5) states that for s6(1)(e) it is presumed that in the absence of evidence to the contrary a drug supplied to a person over 18 has been sold to that person.

The defendant must prove on the balance of probabilities there was no sale.

50
Q

If a class C drug is supplied to someone of or over 18 but it is shown the drug was not sold to them, what is the suppliers liability?

A

They are not liable for a s6(1)(e) offence.

They are liable under s7 for a possession related offence.

51
Q

Section and elements of Possession of controlled drugs for supply

A

S6(1)(f) MODA 1975

  • Have any controlled drug
  • In his possession
  • For any of the purposes set out in paragraphs (c), (d) or (e) of this subsection
52
Q

Definition of possession

A

Possession has two elements, a physical and a mental element element.

The Physical element is the actual or potential physical custody or control of the the controlled drug.

The mental element is a combination of knowledge and intent. Knowledge as in an awareness of the substance in their possession and intent to exercise that possession

It includes anything subject to their control which is in the custody of another

53
Q

Discuss what the prosecution must cover to establish knowledge of possession of a controlled drug

A

It must be shown they knew they posses the substance and knew of its nature or qualities.

R v Strawbridge however states physical custody presumes knowledge unless the defendant proves otherwise.

54
Q

Can a defendant be charged with possession for supply if none of the supply was analysed

A

Yes if the defendant identifies it as a controlled drug

55
Q

If a person does not knowingly possess a controlled drug, can they be charged in relation?

A

No, not so long as they mistakenly but honestly believe they do no possess it

56
Q

Discuss lack of knowledge of possession of a controlled drug caused by memory loss

A

Memory loss caused by memory lapse rather than lack of initial knowledge must be differentiated. It must also be distinguished between complete memory loss vs knowledge not always being at the forefront of the defendant’s mind

57
Q

Case law for possession

A

R v Cox states possession has two elements. The first, the physical element, is the actual or potential physical custody or control. The second, the mental elements, is a combination of knowledge and intention: knowledge in a sense of awareness by the accused that the substance is in his possession: and an intention to exercise possession

58
Q

Define control

A

Authoritative or dominating influence or command

59
Q

Is joint possession possible for s6(1)(f)?

A

Yes but you must show a joint intention to sell, that is a joint enterprise must be shown for a shared common stock that multiple people draw from.

It is not necessary to show a sale was made by the defendant personally

60
Q

Can a person be charged with possession for supply if the defendant is mistaken and the drug is not really a controlled drug?

A

Yes so long as they believe it was it is an attempted offence. They had the criminal intent and did an act for the purpose of accomplishing their object,

61
Q

Definition of purpose

A

Aim or intent

62
Q

Define intent

A

Intent has two parts, intent to commit the act and intent to get a specific result.

The act or commission must be deliberate.

63
Q

Case law for intent

A

R v Collister states intent may be inferred by:
- The offenders actions before, during and after the event
- The surrounding circumstances
- the nature of the act itself

64
Q

What is a statutory presumption?

A

s6(6) creates a presumption of law that a controlled drug is for supply if it is over a certain amount.

This can be rebutted on the balance of probabilities

65
Q

What are the statutory presumption amounts for common drugs?

A

Heroin/cocaine - 0.5g
LSD - 2.5mg or 25 flakes/tablets
Meth/cannabis preparation - 5g
MDMA - 5g or 25 flakes/tablets
Cannabis plant - 25g
All other drugs - 56g

66
Q

Is a statutory presumption required for a drug dealing charge?

A

No, but it helps

67
Q

If a defendant challenges the a s6(6) presumption was is the key consideration?

A

Practical consequences of actions taken to distribute the drug are of more weight than technical questions of changes of ownership

68
Q

Discuss possession for supply, where the purpose cannot be established

A

Be as specific as possible with he charge.

If a particular purpose cannot be established and s6(6) is relied on, use the Tracey formula, that is draft the charge in the alternative.

Drugs (6 decks)

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