Drug offences: substantive and procedural criminal law relating to the Misuse of Drugs Act 1975

Abstract

This study of the law relating to drug offending, now covered by the Misuse of Drugs Act 1975 as amended, begins with a historical survey of corresponding legislation. The combined pressures of endemic social needs and international demands for tighter drug control measures inevitably raise questions as to whether certain criminogenic effects were produced by this legislative activity. They include: Did premature restrictions cause amplification of the range of substances that became the subjects of abuse? Do the restraints that are now imposed have a scope and severity disproportionate to the social harm threatened by the proscribed conduct? These questions cannot be conclusively answered in a study of this nature, but the historical approach illustrates the complex relationship, both on a domestic and an international scale, between legislative action and conduct which is deemed criminal. An attempt is made to evaluate the assistance available to New Zealand courts from overseas judicial interpretations of legislation enacted within the same context of international obligation. As is then demonstrated, the major drug offences provide fertile ground for nurturing the technical requirements of proof of guilt. Already in New Zealand, in response to the demands and resources of accused persons faced with high penalties upon conviction, the concept of possession has been judicially analysed in great depth and detail. A comparative study is made of the requirements of the corresponding possessory offences in some other jurisdictions; each of the major offences against the Act is then analysed by analogy with the elements of possession. The statutory defences are also examined in relation to this analysis. Although an appraisal of the morality of current legislative policy is not seen as being within the scope of this study, an attempt is made to gauge the effect of Parliament's extension of police powers of search and seizure, and of the power to use listening devices, on the ways by which the courts have weighed socially important contending interests in the most delicate of balances. The courts' evident acceptance of the need for 'undercover' police detective operations in relation to drug offences is documented, as are the judicial restraints applied to the use of evidence so obtained. Sentencing policy in this context is a subject of increasing public interest and concern. An analysis is made of the principles of sentencing as they emerge from New Zealand Court of Appeal judgments over the period 1970-1979. It will be shown that aspects of that policy received recognition in the 1975 Act. However, because of the apparent emphasis on deterrence, many problems continue to tax the sentencing tribunal. This study does not purport to be exhaustive. It excludes detailed consideration of the administrative provisions in the Act and eschews analysis of offences against sections 11, 15 and 16 (concerning theft, etc., of controlled drugs, false statements, and obstruction of officers). The discussions of liability for secondary participation, and the inchoate offences, are confined to such points as are seen to be directly related to the context of drug offences. With some exceptions where subsequent information has come to hand, the law is stated on the basis of the materials available to the writer on 1 May 1980.