5. Drug Offences - Prosecution Flashcards
What are the prosecution differences between offences against s6 vs s7?
Offences against Section 6 – these are category 3 offences and include: importing or exporting, producing or manufacturing, supplying or administering, selling or offering to sell (Class C only), possessing for any of the above purposes any controlled drug.
Offences against Section 7 – these are category 2 offences and include: possession and consuming controlled drugs, supplying, administering Class C drugs.
What can be elected by defendants, dependant on category of offence?
category 3 - right to elect trial by jury
category 2 - defendant doesn’t have this right.
What are the only drug offences automatically prosecuted by the Crown?
- S6(1)(b) or (2A) – production or manufacture of, or conspiracy to produce or manufacture, methamphetamine.
- S10 – aiding offences against corresponding law of another country corresponding to section 6, 9, 12A or 12AB.
- S12C – commission of offences outside NZ.
Other drug offences will only be Crown prosecutions if certain criteria are met i.e. quantity of drugs is more than 5 times the presumptive threshold, there is evidence of large scale dealing or there is substantial evidence derived from a surveillance device.
What is meant by large scale dealing?
means suspected dealing in a quantity of drugs that is more than 5 times the presumption threshold.
This factor operates when the quantity of drugs seized is not a reliable indication of the size of the dealing operation. There must be admissible evidence that substantiates the real nature and scale of the dealing operation.
What are some examples of evidence of large scale dealing?
- Admissions by the defendant
- Amount and sophistication of equipment found
- Intercepted communications
- Volume of precursor materials found in defendants possession
- Significant cash holdings or movements
- Evidence of records or sales
- Expected evidence of co-offenders
What are the time limits set out in MoDA for filing of charging documents?
S28(a) - no time limits for offences of dealing (s6), cultivating (s9), and aiding offences against corresponding law in another country (s10).
S28(b) - 4 year limit for all other offences since date of offence
What procedures needs to be followed for a certificate of analysis to be admissable?
- The chain of evidence is unbroken
- The material to be analysed is not tampered with or contaminated.
- The defence is aware of the analysis and the results and is given reasonable time to prepare a defence.
A certificate is admissable evidence only if…?
- The defendant is served at least 7 days of the hearing, and provided with a copy of the analyst’s certificate.
- The defendant does not, at least 3 days before the hearing, give written notice that the analyst be called.
- The Court does not request the oral evidence of the analyst.
What is held regarding officers credibility and permissible activities?
where the defence raises doubt as to the credibility of the undercover officers evidence, the trial judge is to decide on the facts.
There is a broad distinction between the use of police agents to present opportunity to commit offences to those disposed to such an activity, on the one hand, and the encouragement or stimulation of offences which would not otherwise be committed, on the other hand. The trial judge has a discretion to exclude prosecution evidence if police conduct in obtaining that evidence has extended into the area of unacceptable encouragement.
What does s142B of the sentencing act hold regarding instruments of crime?
it places mandatory obligations for the court to be notified of any relevant property that is an instrument of crime so that forfeiture of that property can be considered as part of the sentencing process e.g. a house used to make meth or a vehicle used to deliver drugs. The obligation to notify the court is on the prosecutor, so it will be up to the O/C of the file to notify the counsel for the Crown Solicitor.
what does s16 of the bail act say?
a defendant who is charged with or convicted of a drug dealing offence may be granted bail by a district or high court judge but not otherwise.
what are the acceptable methods of delivering drugs to ESR?
- in person in a secured package to the analyst examining the exhibit
- registered post in secure package to person authorised by the analyst to receive the package
