Questions 02 Flashcards
When is the offence of manufacturing complete?
Once the prohibited substance is created, whether or not it is in a useable form.
Cannabis preparation s29B
S29B MODA75
Special provisions where offence relating to cannabis preparations alleged, for the purposes in sec 6 or 7 of this Act shall apply:
(a) It shall be for the prosecution to prove that the preparation to which the charge relates contains any tetrahydrocannabinols;
(b) Subject to paragraph (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 of any plant (of whatever species);
(d) The question of whether or not any preparation is in a form that is clearly recognisable as plant material shall, in the event of dispute between the prosecutor and the defendant, be determined by the jury (or if no jury, by the Judge) by means of a visual inspection unaided by any microscope or magnifying glass or by any other device.
Definition of supply
To distribute, give or sell
Offers to supply or adminster – 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)
(SA) 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 durgs of a kind prohibited by the statute.
(SA) R v Brown
The defendant is guilty in the following instances:
- 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
The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence
How do you prove age for a victim?
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.
Is it possible to be charged with attempted possession?
It is an offence to attempt to gain possession of a drug, a charge which covers someone obtaining something innocuous in the mistaken belief that it is a drug.
In R v Jay the Police found the respondent J in possession of a plastic bag containing plant material. J admitted that he thought it was cannabis and that he had purchased it from another person. On analysis the plant material was found to be hedge clippings.
The court held that the commission of the offence of receiving cannabis was not legally impossible, although in the circumstances it was factually impossible. 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.
(MC) Presumption for supply –
- Herion
- Cocaine
- LSD
- Methamphetamine
- MDMA
- Cannabis resin/extract (oil)
- Cannabis plant
- Drugs not specified
- 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
7 Cannabis plant 28 grams or 100 or more cigarettes - Where a controlled drug is not specified in Schedule 5 the presumptive amount for that drug is 56 grams.
(SA) The presumption that a drug is for sale/supply may be rebutted if the person is able to prove
If the 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 defence may argue that the suspect was heavily addicted and required large amounts for personal use.
