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Drug Offences > Definitions > Flashcards

Definitions Flashcards

1
Q

Imports

A

In relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand

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2
Q

Importing process, when does it commence, when does criminal liability arise?

A

Importation is a process that commences at the point of origin and continues until the drugs have reached their ultimate destination in NZ.

Criminal liability arises as soon as the drugs cross NZ border. Can still be convicted if drugs intercepted by Customs.

Offence does not end at the border, the process of importation continues while the goods are in transit, and concludes when they have reached their final destination.

Anyone who knowingly assists in facilitating the process up until that point may be liable as a party to the importation.

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3
Q

Mens rea of importing drugs, 3 things

A

Must prove the defendants conduct in some way contributed to the actual importation of the drug, and must prove his guilty knowledge.

Will involve proof that the defendant:

  • Knew about the importation
  • Knew the imported substance was a controlled drug and
  • Intended to cause the importation
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4
Q

Explain wilful blindness

A

In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.

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5
Q

Exports

A

For the purposes of the Act, the time of exportation is the time when the exporting craft leaves the last Customs place at which that craft calls immediately before proceeding to a point outside New Zealand. In all other respects the elements of exporting a controlled drug correspond to those of importing.

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6
Q

New Zealand

A

Means the land and waters enclosed by the outer limits of the territorial sea of New Zealand.

The outer limit of the territorial sea is 12 nautical miles from the land mass of New Zealand

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7
Q

Controlled drug

A

Controlled drug means 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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8
Q

Controlled drug analogue

A

means any substance, such as the substances specified or described in Part 7 of Schedule 3, that has a structure substantially similar to that of any controlled drug; but does not include—
(a)
any substance specified or described in Schedule 1 or Schedule 2 or Parts 1 to 6 of Schedule 3; or
(b)
any pharmacy-only medicine or prescription medicine or restricted medicine within the meaning of the Medicines Act 1981; or
(c)
an approved product within the meaning of the Psychoactive Substances Act 2013

So an analogue is any substance with a structure substantially similar to a controlled drug. It has similar dangerous effects but is not listed in the schedules in the Act.

All analogues are Class C

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9
Q

Class A controlled drug

A

means the controlled drugs specified or described in Schedule 1.

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

Examples:

  • Cocaine
  • Heroin
  • Meth
  • LSD
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10
Q

Class B controlled drug

A

means the controlled drugs specified or described in Schedule 2

Pose a high risk of harm to individuals and to society

Examples

  • Ampthetamine
  • Cannabis oil
  • GHB
  • Fantasy
  • Opium
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11
Q

Class C controlled drug

A

means the controlled drugs specified or described in Schedule 3; and includes any temporary class drug and any controlled drug analogue

Pose a moderate risk

Examples:

  • Cannabis plant and seeds
  • BZP
  • Controlled drug analogues
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12
Q

What is guilty knowledge, explain the defence

A

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

R v Strawbridge

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13
Q

Useable quantity

A

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

It is not necessary for the prosecution to prove the fact unless the defendant puts the matter in issue.

Police v Emerali

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14
Q

Producing

A

Produce includes compound; and production has a corresponding meaning

Means to bring something into being from its raw materials or elements

To compound means to create a whole by mixing or combining two or more elements or parts

Example, separating cannabis resin (oil) from cannabis plant

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15
Q

Manufacturing

A

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

Examples include manufacturing meth from pseudo or heroin from morphine.

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16
Q

Producing vs manufacturing

A

Producing is changing the nature of the original substance, and manufacturing as creating a different substance from the original materials.

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17
Q

When is the offence of producing or manufacturing complete?

A

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

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18
Q

Supply

A

Supply includes distribute, give or sell.

It means to furnish or provide something that is needed or desired. Includes a broad range of activities designed to effect the transfer of controlled drugs from one person to another.

R v Maginnis

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19
Q

Distribution

A

Relates to the supply of drugs to multiple people

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

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20
Q

Giving

A

Involves handing over or in some other way transferring an item to another person.

Giving can occur without an active transfer of the drugs - for example where a person passively permits another to help themselves from a cache of drugs (passive custodian)

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21
Q

Selling

A

A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.

Anything of value will suffice

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22
Q

Administering

A

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

Ie, injecting someone else with heroin

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23
Q

Offering to supply or administer, must prove two elements

A

This provision prohibits the act of arousing another persons interest in controlled drugs, or of tempting other to use them.

Prosecution must prove two elements:

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

Such an offer may be conveyed in any manner, including by words, writing or gestures.

R v During
R v Brown

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24
Q

To any other person

A

Prosecution must prove that the drugs were supplied to another person, although it is not necessary to identify that person. ‘Person’ is generally accepted by judicial notice or proved by circumstantial evidence.

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25
Q

Proof of age

A

For 6(1)(d) charges, Prosecution must prove victims age at time of alleged offending. Generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.

R v Forrest and Forrest

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26
Q

Sells 6(1)(e)

A

In relation to 6(1)(e), 6(5) states - for the purposes of (e) of subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person, he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.

It is only a drug dealing offence under Section 6 if Class C drugs are sold or offered for sale to that person. Supply of Class C without sale comes under Section 7.

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27
Q

Physical and mental elements of possession

A

Physical element:
Requires physical custody or control over drugs. Either actual or potential.
Actual - Drugs in their pockets or in their vehicle they have keys for.
Potential - Anything subject to their control which is in the custody of another. Ie storing drugs at a friends house.

Mental element:
Requires a combination of knowledge and intention
Knowledge - Knowledge that substance is in his possession, and knowledge that it is a controlled drug.
Intention - The defendant must have intended to exercise possession.

28
Q

Knowledge and intent

A

In considering whether a person knows the qualities of a substance, you need to establish that they:

  • Know they have the substance
  • Know the substances nature or qualities
  • intend to use the substance in a way that allows you to charge them with possession.

Is is assumed that a person knows the nature of their actions unless they produce evidence that raises reasonable doubt about their guilty intent.

29
Q

Control

A

To control something means to exercise authoritative or dominating influence or command over it.

30
Q

Joint possession

A

If more than one person has access to drugs of saleable quantity, they may be charged jointly with possession. Must prove that there was a shared intention to sell the drugs.

31
Q

Attempted possession

A

Can be charged when someone obtains something in the mistaken belief that it is a drug. Ie, purchasing plant like material believing it is cannabis.

32
Q

4 things Crown must prove for possession

A

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
33
Q

Intent

A

Must be an intention to commit the act and an intention to get a specific result.

34
Q

Proving intent to supply

A

Defendants intent can be inferred from the circumstances

Circumstantial evidence includes:

  • Offenders actions and words before, during and after the event
  • the surrounding circumstances
  • the nature of the act itself

(R v Collister)

Additional evidence of intent to supply (drugs cases) may be inferred from:

  • admissions
  • circumstantial evidence (packaging, scales, cash, tick lists)
  • Statutory presumption under section 6(6)
35
Q

Statutory presumption

A

For the purposes of subsection 1(f), a person is presumed until the contrary is proved, 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.

36
Q

Presumptive amounts

A

Heroin - 0.5 grams
Cocaine - 0.5 grams
LSD - 2.5 milligrams or 25 flakes, tabs etc
Meth - 5 grams
MDMA - 5 grams or 100 flakes, tabs
Cannabis resin - 5 grams
Cannabis plant - 28 grams or 100 or more cigarettes

For controlled drugs not specified in Schedule 5, presumptive amount is 56 grams

37
Q

What is a conspiracy?

A

A criminal conspiracy consists of an agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action.

Conspiracy is complete once agreement has been made.

38
Q

Issues with conspiring to deal and importing

A

It will be necessary to prove that the defendant had done something to complete the conspiracy in New Zealand for the offence to come within the jurisdiction of the New Zealand courts

39
Q

What 3 things must the Crown prove under 12A(1) charge?

A
  • that the defendant has supplied, produced or manufactured equipment, material or precursors
  • 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 knows those items are to be used for such an offence by another person
40
Q

Equipment

A

Not defined by statute, includes implements, apparatus and other hardware used in manufacturing producing or cultivating.

Glassware, condensers, heating mantles etc for meth, or lights, timers, water pumps etc for cannabis

41
Q

Material

A

Not defined by statute. Anything used in the process of producing, manufacturing or cultivating that cannot be properly described as equipment. Eg chemicals, documents with instructions or fertilisers

42
Q

Precursor substance

A

Means any substance specified or described in Part 1 or Part 2 of Schedule 4.

Some listed in Schedule 4 are:

Acetic anhydride (precursor to heroin)
Lysergic acid (precursor to LSD)
Ephedrine / pseudoephedrine (precursor to meth, and scheduled as Class B controlled drugs)
43
Q

What 3 things must the Crown prove under 12A(2) charge?

A
  • 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
44
Q

Intent for a 12A(2) charge?

A

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 the items to be used by another person.

Necessary to prove defendants intention, not necessary to prove that offence actually committed or attempted.

45
Q

Sections 19-24 of Search and Surveillance Act 2012

A

19 - Search of persons in relation to Misuse of Drugs Act 1975 offence search warrants
A constable may search any person found in or on a place or vehicle, in relation to which a search warrant is issued under section 6, if the offence that was specified in the application for the search warrant is an offence against the Misuse of Drugs Act 1975.

20 - Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a)
to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i)
a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii)
a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii)
a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv)
a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b)
to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c)
to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.

21 - Warrantless searches of people found in or on places or vehicles.
A constable conducting a search of a place or vehicle under section 20 may, without a warrant, search any person found in or on the place or vehicle.

22 - Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975
(1)
A constable may, in the circumstances set out in subsection (2), search a person without a warrant.
(2)
The circumstances are that the constable has reasonable grounds—
(a)
to believe that the person is in possession of—
(i)
a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii)
a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii)
a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv)
a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b)
to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.
(3)
This section does not—
(a)
limit section 20 or 21; or
(b)
authorise a constable to enter or search a place or vehicle except in accordance with those sections.

23 - Internal search of person under arrest for offence against section 6, 7, or 11 of Misuse of Drugs Act 1975
(1)
In the circumstances set out in subsection (2), a constable may require a person to permit a medical practitioner, nominated for the purpose by the constable, to conduct an internal examination of any part of the person’s body by means of—
(a)
an X-ray machine or other similar device; or
(b)
a manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice.
(2)
The circumstances are that—
(a)
the person is under arrest for an offence against section 6, 7, or 11 of the Misuse of Drugs Act 1975; and
(b)
the constable has reasonable grounds to believe that the person has secreted within his or her body any property—
(i)
that may be evidence of the offence with which the person is charged; or
(ii)
the possession of which by the person constitutes any other offence against section 6, 7, or 11 of the Misuse of Drugs Act 1975.
(3)
A medical practitioner must not conduct an internal examination if he or she—
(a)
considers that to do so may be prejudicial to the person’s health; or
(b)
is satisfied that the person is not prepared to permit an internal examination to be conducted.
(4)
This section does not limit or affect sections 13A to 13M of the Misuse of Drugs Amendment Act 1978.

24 - Effect of not permitting internal search under section 23 on bail application.
(1)
In the circumstances set out in subsection (2), a court may decline to consider a bail application by a person, and may order that the person continue to be detained in Police custody, until the earlier of the following occurs:
(a)
the expiry of 2 days after the day on which the person was required under section 23(1) to permit an internal examination by a medical practitioner:
(b)
the person permits the examination to be conducted.
(2)
The circumstances are that—
(a)
the person fails to permit an internal examination to be conducted under section 23; and
(b)
the court is satisfied that the requirement under section 23(1) was properly made on reasonable grounds.
(3)
Nothing in subsection (1) limits a court’s discretion to refuse bail.
(4)
This section overrides any contrary provisions about bail in any of the following:
(a)
the Bail Act 2000:
(b)
the Misuse of Drugs Act 1975:
(c)
the Criminal Procedure Act 2011.

46
Q

Recovering controlled delivery package from a vehicle, what is your power to stop?

A

Section 121 Search and Surveillance Act

47
Q

Emergency powers of entry and search for controlled deliveries?

A

Section 81 Search and Surveillance Act

48
Q

Stopping a suspect for controlled delivery that no longer has the package?

A

Section 9 S&S Act

49
Q

Tracking devices discussion

A

Fall into two categories:
- Device that can be used to help ascertain location of a person or thing. For example, the use of technology to determine the whereabouts of a person through their cellphone when it is turned on, or the use of thermal imaging from the air to track person on the ground.

  • Device used for detecting whether a thing has been handled. Although under S46(1)(b) of S&S, the use of a device for this purpose requires a warrant only when its installation involves a trespass on land or trespass to goods.
50
Q

Audio device discussion

A
  • SDW is required where an interception device will be used to intercept a private communication
  • Installation can only be done by Police, which will be TSU.
  • Audio device must be monitored.
  • Allow sufficient time for installation.
51
Q

Internal concealment

A

See book

52
Q

What is a drug dealing offence?

A

Any offence against Section 6 MODA 1975, which involves Class A or B

53
Q

What is evidential material?

A

In relation to offence or suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation

54
Q

Private communication

A

a)
means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b)
does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so

55
Q

Interception device

A

(a)
means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
(b)
does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing

56
Q

Visual surveillance device

A

(a)
means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but
(b)
does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision

57
Q

Visual trespass surveillance

A

trespass surveillance involving the use of a visual surveillance device.

58
Q

Surveillance device - 3 types

A 
means a device that is any 1 or more of the following kinds of devices:
(a)
an interception device:
(b)
a tracking device:
(c)
a visual surveillance device
59
Q

Tracking device

A

(a)
means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i)
the location of a thing or a person:
(ii)
whether a thing has been opened, tampered with, or in some other way dealt with; but
(b)
does not include a vehicle or other means of transport, such as a boat or helicopter

60
Q

Serious offences

A

Where trespass surveillance is involved, a visual surveillance device can only be used for obtaining evidential material for serious offences (7 years plus)

Can only use interception device for serious offences, whether or not trespass surveillance occurs.

61
Q

Activities for which SDW is required

A

Section 46
Activities for which surveillance device warrant required
(1)
Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(a)
use of an interception device to intercept a private communication:
(b)
use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(c)
observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d)
use of a surveillance device that involves trespass to land or trespass to goods:
(e)
observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i)
3 hours in any 24-hour period; or
(ii)
8 hours in total.

62
Q

Activities for which SDW not required

A

Section 47
Some activities that do not require warrant under this subpart
(1)
No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities:
(a)
the enforcement officer—
(i)
being lawfully in private premises; and
(ii)
recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device):
(b)
covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(c)
activities carried out under an authorisation issued under Part 4 of the Intelligence and Security Act 2017:
(d)
activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.
(2)
Subsection (1)(b) does not prevent an enforcement officer from applying for a warrant authorising covert audio recording in the circumstances set out in that subsection.

63
Q

When can S48 be used?

A
  • Punishable by 14 years or more
  • Arms Act 1983 offence
  • A drug offence
  • Likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending
  • Risk to life and safety
64
Q

Criteria for issuing SDW

A

Section 51
Conditions for issuing surveillance device warrant
The conditions for issuing a surveillance device warrant are that—
(a)
there are reasonable grounds—
(i)
to suspect that an offence has been committed, or is being committed, or will be committed in respect of which this Act or any enactment specified in column 2 of the Schedule authorises the enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the suspected offence; and
(ii)
to believe that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence; and
(b)
the restrictions in section 45 do not prevent the issuing of a surveillance device warrant in the circumstances.

65
Q

Reporting requirements for a SDW

A

Have to provide a written report to the judge within 1 month of SDW expiring

Drug Offences (8 decks)

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