5. Prosecution Procedure

Question 1

With reference to category 3, and 2 offences, who can elect trial by jury?

Answer 1

S6 offences - Cat 3 - can elect jury trial

if the offence is a category three offence (punishable by imprisonment of two years or more) the defendant will have the right to elect trial by jury

S7 offences - Cat 2 - cannot elect jury trial

if the offence is a category two offence (punishable by imprisonment of less than two years or a community based sentence) the defendant doesn’t have the right to elect trial by jury.

Question 2

Offences against s6 of the Misuse of Drugs Act 1975 are category three offences. These include:

Offences against s7 of the Misuse of Drugs Act 1975 are category two offences. These include:

Answer 2

S6 - Category three offences
• importing or exporting
• producing or manufacturing
• supplying or administering, or offering to supply or administer
• selling or offering to sell (Class C only)
• possessing for any of the above purposes any controlled drug.

S7 - Category two offences
• possession and consuming controlled drugs
• supplying, administering or offering to supply or administer Class C controlled drugs.

Question 3

Section 139 of the Criminal Procedure Act outlines the procedure if charges are to be held together, what occurs when more than one offence is tried by a jury?

Answer 3

If one charge is to be tried by a jury, then all charges must be tried by a jury.

• If one Defendant elects to be tried by a jury on one charge, all charges against the Defendant’s must be tried by jury.
• For example, if a defendant is charged with cultivation of cannabis (a category three offence) and possession of utensils (a category two offence), and the defendant elects trial by jury for the cultivation charge, both charges will go to trial by jury.
• Likewise, if one charge is to be tried in the High Court, all charges must be tried in the High Court.

Question 4

As per the Crown Prosecution Regulations 2013, the only drug offences that are automatically prosecuted by the Crown following plea are:

Answer 4

• s6(1)(b) or (2A) production or manufacture of, or conspiracy to produce or manufacture, methamphetamine
• Aiding offences against corresponding law of another country corresponding to section 6, 9, 12A or 12AB.
• Commission of offences outside New Zealand.

Question 5

Define “Large-scale dealing”

Answer 5

“Large-scale dealing” means suspected dealing in a quantity of drugs that is more than 5 times the presumption threshold.

Question 6

The prosecution of Class A drug offences (Dealing or Conspiring to deal) will only be Crown prosecutions if three criteria are met:

Answer 6

(a) the quantity of drugs is more than 5 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or
(b) there is evidence of large-scale dealing beyond the actual quantity seized; or
(c) there is substantial evidence derived from a surveillance device involving audio interception.

Question 7

The prosecution of Class B drug offences (Dealing or Conspiring to deal) will only be Crown prosecutions if three criteria are met:

Answer 7

a) the quantity of drugs is more than 10 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or
(b) there is evidence of large-scale dealing beyond the actual quantity seized; or
(c) there is substantial evidence derived from a surveillance device involving audio interception.

Question 8

The prosecution of Class C drug offences (Dealing or Conspiring to deal) will only be Crown prosecutions if three criteria are met:

Answer 8

(a) evidence of large-scale commercial dealing; or
(b) substantial evidence derived from a surveillance device involving audio interception.

Question 9

For sentencing purposes, cannabis cultivation is divided into three broad categories, define them.

Answer 9

• Category 1: growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended.

• Category 2: small-scale cultivation of cannabis plants for a commercial purpose, ie, with the object of deriving profit.

• Category 3: large-scale commercial growing, usually with a considerable degree of sophistication and organisation.

Note: Alleged offending falling within category 3 above is a Crown prosecution.

Question 10

Large-scale commercial cultivation may be substantiated by the following three factors:

Answer 10

(i) Volume of cannabis found in the defendant’s possession;
(ii) Evidence of an extensive and sophisticated ongoing operation involving regular crop rotation;
(iii) Evidence of extensive crop yields;

Question 11

What factors would substantiate large scale dealing?

Answer 11

Admissions made by the defendant

Evidence of chemical purchases
Intercepted communications

Significant cash holdings and/or movements

Question 12

What are the time limits surrounding filing charging documents?

Answer 12

S28 MODA 75

(a) Dealing, cultivating or aiding offences against corresponding law in another country - No Time Limit
(b) Any other offence against the act - Four Years After the date on which it was Committed

Question 13

Outlined what is stipulated in Section 16 of the Bail Act 2000

Answer 13

S16 Bail Act 2000

“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 District Court Judge but not otherwise.”

Question 14

Outlined what is stipulated in Section 17 of the Bail Act 2000

Answer 14

S17A Bail Act 2000

(1) This section applies to a defendant of or over the age of 17 years who is charged with a serious Class A drug offence.
(2) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.

Question 15

Outline the four key steps in relation to the Bail Application Process for drug dealing offences.

Answer 15

• Application for bail must be made before District or High Court Judge by defendant’s lawyer
• OC to have forwarded instructions on bail to prosecutor
• Full and detailed reasons for bail to be opposed
• Judge will remand defendant for CRH or whatever is considered appropriate

Question 16

For the evidence in the certificate to be admissible, certain procedures must be strictly followed. These procedures ensure that:

Answer 16

• 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.

Question 17

Section 31(2) provides two methods of delivering a drug exhibit to the ESR so that certificate evidence can be used. You can deliver the exhibit:

Answer 17

• in person to the analyst who is to issue the certificate, or to a person authorised by the analyst to receive it
• by registered post or by courier post with signature required in a sealed package to an employee who has been authorised by the analyst in charge at the laboratory.

Question 18

Admissibility of Certificate, the certificate is admissible evidence only if:

Answer 18

Admissible only if:

− you notify the defendant of your intention at least seven days before the hearing, and give them a copy of the analyst’s certificate
− the defendant does not request, at least three days before the hearing and in writing, that the analyst be called
− the Court does not request the oral evidence of the analyst.

Question 19

Name two common examples of instruments of crime in drug dealing cases.

Answer 19

S142B Sentencing Act 2002

Court to be notified of any instruments of crime so forfeiture can be considered. Eg:

• House used to manufacture Methamphetamine
• Motor vehicle used to deliver drugs

Question 20

Section 3 Bail Act 2000
drug dealing offence means—

Answer 20

(a) any offence against section 6 or 12C(1)(a) of the MODA1975 in relation to a Class A&B controlled drug or
(b) an attempt to commit an offence referred to in paragraph (a)]