011 Flashcards
Imports/exports
Sec 6(1)(a) MODA 1975 Life imprisonment -imports into OR -exports from nz -any controlled drugs (other than a controlled drug specified or describes in part 6 of schedule 3 to this act)
Produce or Manufacture any controlled drug
Sec 6(1)(b) MODA 1975 Life/14years/8 years imprisonment
- produce or manufacture
- Any controlled drug
Supply/Administer/offer to supply or administer class a or B
Sec 6 (1)(c) MODA 1975 Life/14 years imprisonment
- Supplies or
- Administers or
- Offers to supply or
- Offers to administer
- Any class A or B controlled drug
- To any other person OR
- Otherwise deals in such a drug
Supply/administer/offer class c controlled drug to person under 18
Sec6(1)(d) MODA 1975 8 years imprisonment
- Supplies OR
- Administers OR
- Offers to supply OR
- Offers to administer OR
- Class C controlled drug
- To any person under 18 years of age
Sells/offers to sell class C controlled drug to person of or over 18
Sec 6(1)(e) MODA 1975 8 years imprisonment
- Sells OR
- Offers to sell
- Class C controlled drug
- To any person of or over 18 years of age
Possession of a controlled Drug for supply/administer/sell/offer
Sec 6(1)(f) MODA 1975 Life/14 years/ 8 years
- Has in his possession
- Any controlled drug
- For any purposes set out in para. (c), (d) or (e):
(c) supply administer etc any class A or B
(d) supply, administer, offer to supply or administer class C (under 18)
(e) sell, offer to sell, class C or or over 18
Sec 6(2)(a) Conspiracy
- Anyone who
- Conspires with any other person to commit an offence against subsection (1) of this section is liable :
(a) 14 years (Class a)
(b) 10 years (class B)
(c) 7 years any other case
An agreed intention
Define import
Sec 2 Customs and Exercise Act 1996
a) In relation to any goods, means the arrival of the goods in NZ in any manner, whether lawfully or unlawfully from a point outside NZ
Saxton v Police
To import includes “to introduce from abroad or to cause to be brought in from a foreign country
Importing Process
- Offence complete even if drugs are intercepted by customs and never reach the addressee (intended recipient)
- However offence doesn’t end at border continues while goods are in transit and only concludes when they have reaches their final destination and are available to the consignee.
***R V Hancox
- The bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters NZ territorial limits
- Importing in to NZ for the purposes of 6(1)(a) is a process- the element of importing.
The element of importing exist from the time the goods enter nz until they reach the immediate destination… (ie) when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addresses
Must prove guilty knowledge (mens Rea)
Import/export/supply/administer/offer/sell/produce/manufacture
This will include proof that the Defendant..
- Knew about the Import/export/supply/administer/offer/sell/produce/manufacture
- AND
- Knew the Imported/exported/supplied/administered/offered/sold/produced/manufactured substance was a controlled drug
- AND
- Intended to cause the Import/export/supply/administer/offer/sell/produce/manufacture
*includes wilful blindness
Export
For the purpose of this act, the time of exportation is the time when the exporting craft leave the last customs place at which the craft calls immediately before proceeding to a point outside of nz
Sec 53 customs and Excise Act 1996
Controlled Drug
Sec 2 MODA 1795
- Means any substance, preparation, mixture or article specified or describes in schedule 1,2,3 of this act and includes any controlled drug analogue
Controlled drug analogue
- Any substance eg as specified in part 7, schedule 3
- With a structure substantially similar to a controlled drug but does not include:
- Any substance specified/described in schedule 1 or 2 or Part 1-6 of Schedule 3 OR
- Pharmacy only medicine
- Approved psychoactive substance
Class A Controlled drug
As specified /described in schedule 1 to this act
- Heroin
- Cocaine
- LSD
- Meth
- Psilocybive (magic mushrooms)
Class B controlled drug
As specified/ described schedule 2 to this act
- Amphetamine
- Cannabis preparations
- GHB (fantasy)
- MDMA (ecstasy)
- Morhphine/opium/pseudoephedrine
Class C controlled drug
As specified /described in schedule 3 to this act AND
- Includes any drug analogue
- Cannabis plant/seeds
- BZP
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 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
Police V Emerali
In any drug offence the quantity of drug involved must be measureable and useable
Police v Emerali
…the serious offence of..possessing a narcotic does not extend to some minute and useless residue of the substance
Produce
To ‘produce’ means to bring something into being or to bring something into existence from its raw materials or elements
*Includes compound
***Manufacture
Manufacturing is the process of synthesis, combining components or processing raw materials to create a new substance
Ie manufacturing meth from pseudo
***R v RUA
The words “Produce or Manufacture” in sec 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the orgincal substance into a particular controlled drug
Produce/Manufacture
Offence complete when..
The offence is complete once the prohibited substance is created, whether or not it is in a useable form
***Cannabis prep
Sec29B
- For the purpose of proceeding for offence against sec 6 or 7 following provisions apply..
a) Prosecution to prove preparation contains tetrahydro cannabinols
b) Subject to a) the prep. Is deemed to have been produced by subjecting plant material to some kind of processing unless it is clearly recognisable as plant material
c) Plant material means leaf, flower, stalk
d) Question of whether the prep is recognisable as plant material be determined by jury or judge by visual inspection
Supply
Includes to distribute give or sell
Sec 2 MODa 1975
Definitions –
Distribute
Give
Sell
Distribute- supply drugs to multiple people
- Includes distributing to co-owners
Give - Handing over, transferring to another
-can occur without active transfer ie permitting another to help themselves
Sell - A sale occurs when a quantity or share in a drug is exchanged to some V/C??
- Normally money but anything of value will suffice
***Maginnis (supply)
(supply involves) “more than the mere transfer of physical control .. (it includes) enabling the recipient to apply the thing.. for purposes for which he desires..
**Drugs- offer to supply class A and B Adminitser
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
Black law dictionary
Drug dealing- offer to supply
Offers
Express readiness to do something for or on behalf of someone
Oxford dictionary
R v During
(An offers is) an intimation by the person charged to another that he is ready on a request to supply to that other, drug of a kind prohibited by the statute
Offers to supply/administer
Sec 6 (1)(c)
Must prove..
- The communicating of an offer to supply or administer a controlled drug (actus reus)
- AND
- An intention that the other person believes the offer to be genuine (mens rea)
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 the drug
The making of such an intimation, with the intention that is should be understood as a genuine offer, is an offence
“Otherwise deals” Sec 6(1)(c)
Dealing by some means other than distributing, giving or selling, administering, offering to supply or administer eg to barter or exchange
Sell
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
Sell 18+
Proving age
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
In practice this generally involves the victim birth cert, in conjunction with independent evidence that identifies the victim as the person named in the cert.
Sell 18+
Dealing with controlled drugs Sec 6(5)
Presumption of Sale
Dealing with controlled drugs for the purpose of paragraph (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
“ideal possession”
R v Cox
- Possession involves two elements
- The first, the physical element, is actual or potential physical custody or control
- The second, the mental element is a combo 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.
Possession (4)
Crown must prove
- Knowledge that the drug exists
- Knowledge that it is a controlled drug
- Some degree of control over it
- An intention to possess it
Potential possession
Define
Include anything subject to his control which is in the custody of another. Sec 2 (2) MODA 1975
Circumstantial evidence form which an offender’s intent may be inferred can include (3) Sec 6(1)(f)
- The offenders actions and words before, during and after the event
- The surrounding circumstances
- The nature of the act itself
Proving intent in drug cases (intent to supply)
Additional evidence of intent to supply may be inferred from
- Admissions
- Circumstances (packaging, scales, cash, tick list)
- Statutory presumption Sec 6(6)
***R V Cox
“Control”
To control something means to exercise authoritative or dominating influence over it.
Statutory presumption
Sec 6(6)
For the purposes of Sec 6(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)(e)
- If s/he is in possession of the controlled drug in any amount, level or quantity at or over which the controlled drug is presumed to be for supply (see sec 2(1)(a))
Schedule 5 MODA Presumptive amounts (7)
- Heroin .5grams
- Cocaine .5grams
- LSD 2.5 mg or 25 tablets/flakes
- MDMA (ecstasy 5g or 100 tablets
- Meth 5grams
- Cannabis resin/oil 5gram
- Cannabis plants 28grams/100 cigarettes
- *where not specified 56grams
Components that provide knowledge of existence for possession
- The defendant must be aware that they possess the substance
- The defendant identifies the substance as a controlled drug
- Physical custody presumes knowledge, unless otherwise proven
Supply/Posses Equipment, precusors etc
Sec 12A
1. Everyone who
Supplies, produces, manufactures (7 years)
2. Everyone who
Has in his/her possession (5 years)
a) Any equipment or material that is capable of being used in or for the commission of an offence against sec 6(1)(b) or section 9 OR
b) Any precursor substances- knowing that the equipment, material or substance is to be used in or for the commission of an offence against those provisions
**Sec 12A(1)
Crown must prove (3)
- The defendant supplied, produced or manufactured equipment, material or precursors
- Those items are capable of being used in the production or manufacturing of controlled drug or cultivation of prohibited plants
- The Defendant knows those items are to be used for such an offence by another person
**Sec 12A(2)
Crown must prove
- The Defendant has equipment, material or precursor in his possession
- Those items are capable of being used in the production manufacture of controlled drug or cultivation
- The Defendant has the intention that those items are to be used for such an offence, either by himself or another person
Sec 12A(1) “Equipment”
Includes implements, apparatus and other hardware eg - Glassware - Condensers - Heating mantels - Pots - Lights - Timers - Water pumps
Sec 12A(1) “Material”
Anything used in the process of producing, manufacturing or cultivating that is not equipment Eg - Chemicals (other than precursors_ - Documents (instructions) - Fertilisers/nutrients etc
Examples of Precursors
- Acetic anhydride (heroin)
- Lysergic acid (LSD)
- Ephedrine/pseudoephedrine (meth)(are also controlled drugs)
**Cultivation
Sec 9
1) Except pursuant to licence or otherwise permitted by regs under this act
- No person shall cultivate any prohibited plant
2) 7 years
**Permits permises
Sec 12
1) Everyone who
- Knowingly permits any premises, vessel, aircraft, hovercraft, M/V or other conveyance
- To be used for the purpose of the commission of an offence against this act
10 years-class A
7 years class B
3 years any other
**Obstruction
Sec 16
- Everyone who
- Wilfully obstructs, hinders, resists, deceives any person in the ex. Of any powers conferred on that person by or pursuant to this act
• Obstructing anyone who is ex. Powers under MODA
• Is different than SOA obstruction
**Medicines Act
Sec 43 Medicines Act 1981
1) No Person shall, without reasonable excuse, import, procure, receive, store, use or otherwise have in his possession, any prescription medicine.
4) Every person commits an offence against this act who contravenes subsection (1)
**Reg 11
Health (needles and syringes) Reg 1998
Reg 11
Note- possession of a needle per se is not an offence, but will become so if the syringe contains a useable amount of a controlled drug offence committed re the drugs ie possession
Reg 11
1) Everyone who
a) Offers to any person for use by that person, a used needle or used syringe OR
b) Accepts for use a used needle or used syringe OR
c) Disposes of a needle in a public place
Reg 12
Health (needles and syringes) Reg 1998
Reg 12
1) Everyone who
Not being a pharmacist, pharmacy employee an approved medical practitioner or authorised rep
Sells or supplies OR
Attempts to sell or supply
A needle or syringe to any other person who
a) Is not a pharmacist, pharmacist employee, approved medical practitioner, authorised rep OR
b) Is a pharmacist or pharmacy employee who is prohibited from selling new needles and syringes
***Internal concealment MODA
Sec 13a MODA amendment Act 1978
- Reasonable cause to believe (and not arrested)
- Must be class A or B
- Any constable/customs officer may-
- Request District court judge for detention warrant
- Doctor approved by commissioner of police/chief executive of customs
- Detention: 7 days renewable in periods of 7- max 21 days and can search for class A + B only
***Internal search S + S
Sec 23 s+ s act 2012
- Must be under arrest for offence against sec 6,7,11 MODA
- Constable- reasonable grounds to believe
- Person has secreted within body property that may be evidence of offence charged or other offence against sec 6,7,11 MODA
- Any class
- Constable can require suspect to permit doctor to conduct exam- any doctor nominated for purpose and can search for property and drugs
*if suspects fails to permit exam and court satisfied that requirements for internal exam made on reasonable grounds, court may decline to consider bail application and order continued detention in police custody until the earlier of 2 days after the day on which internal exam was required or the person permits exam to occur
***Controlled delivery
Define
- Consignment of illicit drugs detected often concealed in some other goods, in circumstances making it possible for delivery to be made under control/surveillance of nz customs, police with a view to ID and securing evidence against those involved etc… This could also incorporate couriers caught body packing or travelling with drugs concealed in luggage.
***Controlled delivery
Methods (6)
- international mail centre (inside mail)
- International airport (body packing, internal, luggage)
- Imported air freight – commercial or private
- Imported sea freight – A/a
- transhipped air or sea freight (transiting through NZ)
- Arriving commercial vessel (hidden on board)( attached to vessel)
Controlled delivery
2 options
1) ‘clean controlled’
- No drugs left within consignment
- Eliminates risk drugs being lost
- Greater freedom organsing surveillance
- Less risk alarming targets
- However only importation/conspiracy charges likely
2)
- Leave an amount of drug
- Gives option of possess for supply
- Provides emergency powers if need be
- Remainder of drugs substituted
- Requires greater security, recovery on termination paramount
***controlled delivery
Initial action phase (6)
1) Assume ownership/leadership and appoint roles
2) Liaise early with customes O/C exhbits and take control
3) Consider electronic interception (must be class A or B or sec 6 cannabis off.)
4) Request customs manipulate “track and trace” system
5) Contact specialist services eg photo/surveillance/CMC/TSU
6) Start planning ie rostering, ops order
***Controlled delivery
Intel phase 1 profile package (6)
- Sender location
- Any phone # attached
- IMEI/Sim info
- Telecomms services providers portability of cell phones
- DNA/Fingerprints/handwriting/impressions etc
- Multiple packages including- dummy runs to target address etc
***Controlled delivery
Intel phase 2 –profile delivery address
- NIA
- Occupants
- Local council- owners/plans
- Rubbish delivery deets
- Housing NZ
- Telco services
- Power/gas
- Timing of mail
- Previous occupants/neighbours
- Landlord/owner
- Previous police dealings
- CHIS
- Security/surveillance/photos/custom powers
- Mail top/flag address
- Suspect maybe monitoring
• Customes can use CUSMOD to back capture deliveries to address
• Other agencies
***controlled delivery
Intel phase 3- profile the addressee
- Real name?
- Connection to address
- Previous history
- Travel history/connection to country of orgin
- Back account etc
- Ful ID of target
- Photos
- NIA intel
- Suspects knowledge/skill
- Other agencies
- Finances
- Family members/associates etc
- General lifestyle
- Business associations
- Tracking devices- vehicles?
- Risk assessment
Controlled delivery
O.P
Considerations (3)
- Camera O.P requirements vs intercept requirements (forward base)
- Whether survellaince device warrant required
- Staff to occupy
- Profile address
o Then once suitable address
o Proximity to target
o Unobstructed line of sight
o Access to and form without arousing suspicion - Profile occupants- phone lines, parking, schools , lighting, animals etc
Controlled delivery
Evidence of importation (10)
- Track and trace receipts
- 4C
- Computers/faxes/cell phones/emails
- Contact list/numbers
- Previous packaging
- Money, financial records
- Scales, packaging etc re supply
- PO box docs
- Travel dos
- Passports
***Controlled deliveries
Emergency powers re deliveries
Sc 81 S and S Act 2012
1) Constable/customs may during the course of delivery (sec 12 Misuse of Drugs Amendment Act 1978)
a) Search a person invlolved in a delivery
b) Enter and search any place, vehicle, aircraft
c) Seize anything if Reasonable grounds to believe is a thing described in (a) to (d) of subsection (2)
2) If: reasonable grounds to believe in possession of, or the place, vehicle, aircraft contains any 1 or more of the following:
a) A controlled drug
b) A precursor substance
c) A package re which customs has replaced all or some controlled drug OR
d) Evidential material re an offence under 6 (1)(a) or 12AB
Electronic ops
Evidential material
(sec 3 S+S)
Re an offence or suspected offence, means evidence of the offence or any other item, tangible or in tangible or relevance to the investigation of the offence
***Electronic Ops
Conditions for issuing a surveillance Device warrant
“Complete the sentence. When applying for a surveillance device warrant you must convince the judge that you…” (or similar)
S&S 51
a) Reasonable grounds
i) To suspect offence commission/is being/will be in respect of which or this act any enactment specified in column 2 of the schedule authorises the enforcement offence to apply for a warrant to enter premises for the purpose of ob. Evidence re the offence AND
ii) To believe the proposed use of the surveillance device will obtain info that is evidential material re the offence AND
b) Restrictions of sec 45 don’t prevent issue of surveillance device warrant.
***Electronic Ops
Emergency/urgency
Sec 48 (2)(e)
Sec 48 (2)(e) S&S
- Enforcement officer has reasonable grounds
i) To suspect offence been/is being/about to be committed re a controlled drug specified/describes in schedule 1, part 1 of schedule 2, pr part 1 of schedule 3 or a precursor as per part 3 schedule 4 AND
ii) To believe that the use of a surveillance device would obtain evidence re the offence - max 48 hours
Electronic Ops
“drug dealing offences”
Define
- offence against sec 6 MODA
- Class A and B
Cant run electronic ops unless above
Criteria apply
Electronic ops
Private communication
Define
a) A comms (oral or written) or telco etc
Made in circumstances that may reasonable be taken to indicate that any party to the comm. Desires it to be confined to the parties to the comm.
BUT
b) Does not include a comm of a kind in circumstances in which any party to the comm. Ought reasonable to expect that the comm may be intercepted by some other person without having the express or implied consent of any party to do so.
***S&S
Define Surveillance Device
Sec 3
Means a device that is any 1 or more of the following kinds of devices:
a) An interceptions device
b) A tracking device
c) A visual surveillance device
• Assists and enhances normal capabilities
S&S
Define interception device
a) Any elec. Mech. Electromagnetic, optical or electro optical instrument, apparatus, equipment or other device used/capbale to intercept or record a private communication (inc. telco)
BUT
b) Does not include a hearing aid or similar to correct sub normal hearing to no better than normal hearing
***S&S
Define tracking device
A) 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 person
ii) Whether a thing has been opened, tampered with, or in some other way dealt with
BUT
D) Does not include a vehicle or other or other trans eg boat/helicopter
S&S
Define visual surveillance device
a) Means any electronic, mechanical, electro magnetic, optical or eletcro –optical intsurment, apparatus, equipmement 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 similar device used to correct subnormal vision of the user to no better than normal vision
Tracking Device
Two main types
- Becon – parcel size
- GPS- motor vehicles
S&S
Surveillance
Don’t need a warrant if (3)
Sec 47
- Observe private activity without the use of a surveillance device from a public areas
- Lawfully on private premises and recording what you observe or hear there
- You are making a covert audio recording of voluntary oral communication between 2 or more people with consent of at least one of them
- Surveillance using a device authorised by another enactment
S&S
Emergency/urgency
General situations
Sec 48
- 14+ year offences
- Arms act offence
- Drug offence
- Likely to cause injury/serious property loss/damage and surveillance necessary to prevent offending from being committed/continuing
- Preventing risk to life and safety and surveillance necessary as an emergency response
- Max 48 hours
Electronics
Alternate techinques
Case Law
Case law- R v McInty
The evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient. A judge was not required to refuse a warrant because police had not exhausted every conceivable alternate technique of investigation.
Electronics
Protection of CHIS
Case law
R v McGinty
Disclosure of the ID of alleged informants was no required under the act and the trial judge was correct in deleting from the application certain parts which would have been likely to lead to the ID of informants. However the trail judge was entitled to insist on disclosure if he saw fit.
***Electronic ops
Telco
O/C 1st 24 hours (6)
- “trap’ or pre load data
- Establish TSP liaison early
- Draft a production order early
- No search warrant needed if urgent – sec 48
- Liaise with analyst
- ID and link numbers, IMEI or CAD to a person for a particular period
Electronic Ops
Considerations
- Logistical support
- Analysis of evidence
- CHIS protection
- Implications of disclosure and legal grounds for withholding
***Electronic Ops
Evidential transcripts
The transcripts must be a verbatim copy of the recorded version of the conversation. However when it is presented to the court the recording will be played back in such a manner that extraneous or inadmissible evidence is not disclosed.
***Activities for which surveillance device warrant needed
Sec 46 (1)
a) Use of an interception device to intercept a private communication
b) Use of a tracking device, except where a tracking device is installed soley for ascertaining whether thing has been opened etc & don’t involve trespass to land/goods
c) Obs of private activity in private premises and any recording of it by visual surveillance device
d) Use of surveillance device that involves trespass to land/goods
e) Obs of private activity in the curtilage of private premises and any recording if obs or recording obs made by visual surveillance device and duration exceeds 3 hours in a 24 hours period or 8 hours total.
***Electronic ops
Emergency
Sec 48(2)(a)
- Enforcement officer has reasonable grounds-
i) To suspect an offence 14+ has, is being, about to be committed AND
ii) To believe that use of a surveillance device would obtain evidential material re that offence
***Informers Sec 64(1) Evidence Act
An informer has a privilege in respect of information that would disclose or is likely to disclose the informer identity.
***Informers Sec 64 (2) Evidence Act
(2) a person is an informant for purposes of this section if the person
a) has supplied, gratuitously or for reward, information to an enforcement agency or to a rep of an enforcement agency concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation t5hat their ID will not be disclosed; AND
b) is not called as a witness by the prosecution to give evidence relating to that information
***Informers Sec 64 (3)
An informer maybe a member of police working undercover
***Clan labs
90 second rule
This rule assumes that if offenders are present and moving inside the lab then the atmosphere will sustain life. It assumes that the IET (wearing the minimum level of PPE for the IET) may safely enter and extract suspects for a period of up to 90 seconds.
***Clan labs
Kids in labs
Initial action
- Remove form immediate scene
- Assign officer to monitor/look after
- Age appropriate explanation as to what will happen
- Assessment by ambo-any immediate medical needs taking priority over decontamination
- Request CYF attendance at scene
- Distribution of suitable PPE to CYF staff/de con kit for the CYP
- Place CYP in a Tyrek suit or wrap in blanket – must occur before handover to CYF
- Most appropriate de con for the CYP
- Photo CYP at scene
- Recording physical condition and any injuries, mental state
- Consider securing clothing
- Prelim interview
***Clan labs
Different types
- EXTRACTION- Finished drug or precursor removal from raw material by use of chemical solvents eg morphine from opium, pseudoephedrine from meds
- CONVERSION- one form of a drug changed into a more desirable form eg meth hydrochloride to “ice’ hydro to ‘crack’
- SYNTHESIS- raw materials combined through chemical process to produce the drug, materials may already be controlled substances eg meth form pseudo, heroin from morphine
***Clan labs
Indicators (outside)
- Chemical odours (sweet, bitter, ammonia, solvent)
- Exhaust fans running at odd times
- Frequent visitors at odd hours
- Blacked out windows etc- curtains drawn
- People coming outside only to smoke
- Unfriendly/secretive, paranoid neighbours etc
- Access to landlord, neighbours denied etc
- Security/ surveillance gear
- Rubbish- cold meds, bottles, containers, boxes with labels removed
***Clan labs
Indicators (inside) (6)
- Lab glassware, equipment, docs
- Containers with clear liquids in them with a chalky coloured solid on the bottom or similar
- Containers with two layered liquids, one dark coloured layer and one clear or pale yellow layer
- Used coffee filters containing either a white pasty or reddish brown substance
- Banking dishes or similar containing white crystalline substance
- The presence of hot plates near chemicals
***Clan labs Unplanned entry (8)
- Don’t touch anything
- Immediately remove POI from premises
- Isolate site and maintain a safety perimeter
- Preserve the crime scene
- Notify duty NCO/inspector/NCLRT/Fire/Ambo
- Seek advice from NCLRT/fire re decontamination (occupants and staff kept separate until decontamination issues address)
- Seek medical advice
Clan labs Safety considerations (7)
- Leave the area immediately
- Never taste, touch, or smell
- Don’t attempt to turn on/off anything lights, fans etc/ stop chemical reaction
- Don’t shut off water supply
- Don’t smoke in or near
- Don’t use tools, radios, phones, torches etc (sparks/friction)
- Don’t re-enter
Clab labs
Exposure to chemical
Symptoms
- Headaches
- Watery/burning eyes
- Nausea
- Burning skin
- Coughing/choking
- Pain in diaphragm
- Feeling of coldness/weakness
- Shortness of breath/dizzy
- In cognitive function (decrease) vertigo, convulsions etc
***Clan labs
Planned entry
Factors (6)
- **must consult with NCLRT prior
- Whether it is an active or inactive lab
- Number/nature of offenders/other present
- Location
- Proximity to person and property
- Type/size of lab
- Firearms/weapons/booby traps
***clan labs
Minimum safety equipment
- Flame retardant overalls
- Chemical and flame resistant coveralls
- Boots
- Fire resistant gloves
- Balaclavas
- Police SRBA vests
- APRs with air filters
Clan Labs – Kids in Labs
Prelim Interview
- Basic health questions
- Occupants details
- Details of other siblings/YP’s at address
- Sleeping arrangements
- Playing and eating areas
- School/preschool/Drs details
- Knowledge of drugs/manufacturing/dealing activities
Clan Labs – Kids in Labs
Follow Up – O/C Investigation
- Together with O/T Give priority to locating any child absent from the address at the time
- Ensure any C/YP exposed to a lab is checked by a doctor ASAP/within 24 hours
- Ensure exam completed and hair/urine samples taken
- Refer all cases where consent is an issue to legal section.
- Ensure tox kits/hair samples collected to ESR – POL 143
- Ensure tox results to OT and Doctor
- Liaise with CPT re whether an interview is required
*** Clan Labs – Declaration of Emergency
Emergency means
Sec 135 Haz Substance and New Organisms Act 1996
Emergency means …
a) Actual or imminent danger to human health OR
b) A danger to the environment or chattels so significant that immediate action is required to remove the danger.
Arising from a hazardous substance or new organism.
Prosecution
Manner of Proceeding
Cat 2 / Cat 3
Cat 2 Offences against Sec 7 Less than 2 yrs imp No election Cat 3 Offences against Sec 6 2 years or more Electable
Prosecutions – Crown
Only drug offences automatically prosecuted by Crown
Following plea
Sec 6(1)(b) or (2A)
- Produce / manufacture, Conspiracy to produce / manufacture- Methamphetamine
Sec 10
- Aiding offences against corresponding law of another country corresponding to Sec 6, 9 12A or 12AB
Sec 12C
- Commission of offences outside NZ
Prosecutions – Crown
Criteria for Other Offences Class A
Except prod/man or conspiracy to prod/man meth IF
a) Quantity is more than 5 times presumption including in combination with any other charges being heard together in the proceeding OR
b) There is evidence of large scale dealing beyond actual quantity seized OR
c) There is substantial evidence derived from a surveillance device involving audio interception
Prosecution
Cannabis cultivation categories for Sentencing
Cat 1 Small number of plants for personal use without sale
Cat 2 Small scale for commercial purpose
Cat 3 Large scale commercial – usually with sophistication / organisation
Prosecutions – Crown
Criteria for Other Offences
Class B &C
a) Quantity more than 10 times presumption OR
b) Evidence of large scale dealing beyond actual quantity seized OR
c) There is substantial evidence derived from a surveillance device involving audio interception
Prosecutions
Large Scale Dealing
- Individualise for class of drug
More than 5 times presumption threshold / substantiated by:-
- Admissions
- Amount / sophistication of equipment found in possession
- Volumes of pre-cursors found
- Evidence of chemical purchases
- Intercepted comms
- Observation evidence
- Significant cash holdings /movements
- Evidence of proposed / actual sales
- Other evidence eg. Travel organised / sophisticated / large scale
- Expected evidence of co-offenders etc. informants / witnesses
*** Prosecutions
Section 16 – Bail Act
A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of a High Court Judge or DCJ but not otherwise.
*** Prosecutions
Bail Application Process (4)
1) Application made to Judge by Counsel
2) O/C Case should have forwarded instructions re bail (whether or not bail opposed)
3) If bail opposed, full and detailed reasons needed, consider affidavits in support
4) Judge will then remand defendant for CRH or whatever is considered appropriate
*** Prosecutions
Delivery of Drug Exhibit
Responsibility re Chain of Evidence
• Always use standard drugs envelope (SDE) or attach one to the article
You will need to:-
- Describe packaging to prove chain of evidence, by sealing and labelling with file reference
- Quote the registered article number and other details of registered mail
- Produce the receipt of it’s delivery to ESR
*** Prosecutions – Sentencing
Instruments of Crime
Ie. A house used to manufacture meth / a motor vehicle used to deliver drugs
Section 142B Sentencing Act 2002
- If a person is convicted of a qualifying instrument forfeiture offence and any property was used to commit, or to facilitate commission of that offence
- Prosecutor must, if in prosecutors opinion the court should consider whether to make an instrument forfeiture order in respect of that property, notify the court in writing of:-
a) the details of that property
b) Name and ID details of any person (other than the offender) who, to the knowledge of the prosecutor has an interest in the property
*** Prosecutions
Time limits for filing charges
Section 28(a) - Dealing (s6) - Cultivation (s9) - Aiding offences against corresponding law in another country (s10) ANYTIME Section 28(b) any other offence - 4 years
*** Prosecution
Section 17 Bail Act
Restriction on bail if defendant charged with serious Class A drug offence
1) Applies to def of or over 17 yrs, charged with serious Class A
2) No bail unless def satisfies bail / RMAL should be granted
3) In particular, must satisfy Judge on probabilities that def will not commit any drug dealing offence
4) Serious Class A means 6(1)(a), (b)(c) or (f) etc. or b) an attempt
*** Prosecutions
Analyst certificate
Admissibility of certificate
- Defendant is served at least 7 days before hearing and provided with a copy of analyst certificate (and notice that analyst will not be called)
- The def does not, at least 3 days before the hearing, given written notice that the analyst be called
- The court does not request the oral evidence of the analyst
*** Prosecutions
Delivery of Drug Exhibit
Two methods of delivery to ESR so that certificate evidence can be used
- In person to analyst or to person authorised to receive it
- Registered post or courier post with signature required to an employee authorised by analyst in charge at lab.
*** Prosecutions
Evidence in certificate only admissible if the following procedures must be followed
- Chain of evidence is unbroken
- Material to be analysed is not tampered with or contaminated
- The defence is aware of the analyses and the results and is given reasonable time to prepare a defence
Which drug offences against sec 6 are Cat 3
import/export produce/manufacture Supply etc Selling or offer class C Posses for any of above
Intent
In a criminal law context there are two types of intention in an offence, the 1st is to commit the act and secondly an intention to get a specific result
Knowledge
Simiester and Bookbanks
Knowledge means knowing or correctly believing. The belief must be a correct one, where the belief is wrong someone cannot know something.
Person
Gender neutral proven by judicial notice or circumstantial evidence
Who can call a land slide in clan lab?
any member of initial entry team
Who proves if a drug is usable?
It is necessary or a drug to be in a usable quantity, under section 29A it is not necessary for the prosecution to prove that fact unless the defendant puts the matter in issue
Requirement for using a surveillance device for interception or trespass
serious offence… 7 years or more
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 they did not intend to commit a ‘dealing’ offence, despite the large amount of drugs. E.g the defence may argue that the suspect was heavily addicted and required large amounts for personal use.
Who leads the controlled drug delivery operation?
Customs
How many days can a surveillance warrant be in force?
60 days.
John gave his mate an analogue of meth. Is he guilty of supplying class A or class C or something else?
Class C, all controlled drug analogues are classified as class C controlled drugs.
Jenny met new boyfriend overseas who later gave her a new suitcase with drugs inside but she did not bother to check it before went through customs - is she guilty of importation (related to wilful blindness)?
Need to prove that the defendant deliberately turned a blind eye to the facts.
The fault lies in the deliberate failure to inquire when the accused knows there is a reason for inquiry.
A person is arrested for a drug dealing related offence, suspect that he is possibly concealing drugs internally, can you search that person under 13A moda75?
No, not under 13A of MODA, has to be not under arrest and class A / B.
Who can bail a person charged with manufacturing meth who also has a previous conviction for manufacturing meth?
High Court Judge only
Is it possible to be charged with “Attempted Possession”? (Use case law)
Yes - attempted possession of a drug covers obtaining something innocuous mistakenly believing it’s a drug.
Police v Jay
Man bought hedge clipping believing it was cannabis. The offence of possession was legally possible although 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.
Difference between Produce and manufacture
Producing is changing the nature of the original substance
Manufacturing is creating a different substance from original materials
Time limit to remove tracking device installed without warrant
72 hours
Protection of informers
Case Law 2
Rv RANKINE
It is in public interest that nothing should be done to discourage members of public from coming forward to provide information to Police.
Informer not to be identified or owner or occupier of a premises used for surveillance
Joint Possession
Must prove there was a shared intention to sell the drug
Possession Guilty Knowledge must prove:
- Know they have the substance
- Know the substance nature or qualities
- Intend to use the substance in a way that allows you to charge them with possession
Method of Service of certificate and notice that the analysis will not be called
- Served to a member of defendant’s family, pr solicitor
- Dated at least 7 days clear of hearing
- Proved to be served by oral evidence or constable endorsement
Rv MARTIN
Willful Blindness
it will suffice if the crown can prove beyond reasonable doubt that the accused had her suspicions as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicions because she wanted to remain ignorant.
