Dealing Drugs - Lesson Notes

Question 1

Imports

Answer 1

To import also means to bring in

Question 2

Mens rea for importing

Answer 2

the defendant
knew about the importation
knew the imported substance was a controlled drug
intended to cause the importation

Question 3

Some of the more well known class A controlled drugs

Answer 3

Cocaine, Heroin, Lysergide (LSD) Methamphetamine, Psilocybine (found in magic mushrooms)

Question 4

Some of the more well known class B controlled drugs

Answer 4

Amphetamine, Cannabis preparations (oil and hashish) GHB (fantasy) MDMA (ecstasy) Morhine, Opium, Pseudoephedrine

Question 5

Some of the more well known class C controlled drugs

Answer 5

Cannabis Plant, Cannabis seeds, Benzylpiperanzine (BZP)

Controlled drug analogues

Question 6

Controlled drug definition

Answer 6

Section 2 Misuse of Drugs Act
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 and controlled drug analogue

Question 7

Controlled drug analogue

Answer 7

It is not practical to list every conceivable substance capable of causing harm to users, and the legislation therefore recognises the existence of controlled drug “analogues”
So an analogue is any substance with a structure substantially similar to a controlled drug. It is a substance that has similar dangerous effect, but that is not specifically listed in the schedules to the act.

Question 8

Possession in drugs cases

What must the crown prove

Answer 8

The crown must prove that the 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

Question 9

Proving intent in drugs cases

Answer 9

admissions
circumstantial evidence (packaging, scales, cash,tick lists, etc)
the statutory presumption under section 6(6) (in possession of controlled drugs over certain specified amounts)

Question 10

What activities does the term ‘supplying a drug’ cover?

Answer 10

Supplying drugs includes distributing, giving or selling drugs.

Question 11

What difference does age make to the offences involving Class C controlled drugs?

Answer 11

The difference in age regarding drug offences means that, when the receiver is:
− under 18 years of age, it is illegal to supply or administer, or offer to supply or administer, a Class C controlled drug to them
− over 18 years of age, the only offences are to sell, or offer to sell, them a Class C controlled drug.

Question 12

List the four things you have to prove to convict someone of possessing a controlled drug.

Answer 12

To convict someone of possessing a controlled drug, you must prove, beyond reasonable doubt, that the offender:
− had complete physical control of the drug
− knew that the drug existed, where it was and what its qualities were
− received the drug from a person who intended to hand over possession
− held the drug with the intention to possess it exclusively of others.

Question 13

What is the difference between the offence of obstruction contained in the Summary Offences Act 1981 and the Misuse of Drugs Act 1975?

Answer 13

The offence of obstruction in the Misuse of Drugs Act relates specifically to obstructing anyone who is executing powers under the Misuse of Drugs Act 1975.

Question 14

In relation to a charge of possession of a prescription medicine, who does the burden of proof lie with?

Answer 14

The burden of proof that he or she was lawfully entitled to be in possession of the prescription medicine lies with the defendant.

Question 15

Who is exempt from charges relating to the sale or supply of needles or syringes?

Answer 15

Pharmacies, medical practitioners and authorised representatives of the Health Department.

Question 16

Describe the two different types of controlled deliveries

Answer 16

There are two options with controlled deliveries. One is a “clean controlled delivery”, where no drugs are left within the consignment. This eliminates any risk of the drugs being lost but also gives greater freedom in organising the surveillance of the consignment and reduces the risk of alarming the targets who may have arranged counter-surveillance. However, at the termination of the operation only “importation” and/or “conspiracy” charges are likely to be filed for those apprehended.
The second option is to leave an amount of the drug within the consignment to enable the option of charging an offender with a “possession for supply” charge and also provides the availability of emergency powers should the drugs move to people or places that are not covered by search warrants. The remainder of the drugs are substituted.

Question 17

Name the two main types of tracking devices.

Answer 17

The two main forms of tracking devices are Beacon and GPS.

Question 18

If a tracking device is installed without a warrant, what is the time period in which it either needs to be removed or a tracking device warrant should be obtained?

Answer 18

72 hours.

Question 19

In which schedule of the Misuse of Drugs Act 1975 would you find the pre-cursor substance pseudoephedrine?

Answer 19

Pseudoephedrine is found in Part 3 of Schedule 4.

Question 20

What is meant by the term ‘private communication’?

Answer 20

Private communication-

(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

Question 21

Of what does the judge need to be satisfied before granting you a surveillance device warrant?

Answer 21

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.

Question 22

Name the three types of Clan Labs.

Answer 22

Extraction, Conversion and Synthesis.

Question 23

Name six symptoms that may result from exposure to a Clan Lab.

Answer 23

Any six of the following:
− headaches
− watery or burning eyes
− nausea
− burning skin
− coughing or choking
− pain in diaphragm
− feeling of coldness or weakness
− shortness of breath / dizziness
− decrease in cognitive function, vertigo and convulsions.

Question 24

Which drug offences are deemed to be category three offences?

Answer 24

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

Question 25

When can a defendant charged with a drug offence elect trial by jury?

Answer 25

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.

Question 26

What are the general time limits for filing charges regarding drug offences?

Answer 26

The general rule regarding offences against the Misuse of Drugs Act 1975 or Regulations is that you must file charging documents within four years of the offence being committed (section 28(b))
Section 28(a) allows you to file charging documents at any time for offences of:
• dealing (s6)
• cultivating (s9)
• aiding offences against corresponding law in another country (s10).

Question 27

List the criteria that must be satisfied for an Analyst’s Certificate to admissible at court

Answer 27

For the evidence in the certificate to be admissible, certain procedures must be strictly followed. These procedures ensure that:
• 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 28

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

Answer 28

Two common examples of instruments of crime in drug dealing cases are;
• a house used to manufacture methamphetamine;
• a motor vehicle used to deliver drugs.

Question 29

Examples of equipment

Answer 29

Examples may include: glassware, condensers, heating mantles etc used in the manufacture of methamphetamine; or pots, lights, timers, water pumps etc used in cultivating cannabis.

Question 30

Examples of some of the precursors listed in Schedule 4 are:

Answer 30

Acetic anhydride (precursor to heroin)
Lysergic acid (precursor to LSD)
Ephedrine / pseudoephedrine (precursors to methamphetamine)

Question 31

For charges under section 12A(2) the Crown must prove three elements: (possession)

Answer 31

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

Question 32

Intent that it is to be used etc

Answer 32

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.
While it is necessary to prove the defendant’s intention that the items be used in a specified offence, it is not necessary to prove that the offence was actually committed or even attempted.

Question 33

Dealing offences include the offences of:

Answer 33

− importing
− producing or manufacturing
− supplying
− administering
− offering to supply
− otherwise dealing.

Question 34

To prove possession of a drug, the Crown must prove that the defendant had:

Answer 34

− knowledge that the drug exists
− knowledge that it is a controlled drug
− some degree of control over it
− an intention to possess it

Question 35

Possession offences include:

Answer 35

− possession
− joint possession
− attempted possession.

Question 36

Allowing premises or vehicles to be used - Section, penalty

Answer 36

Section 12 of the Misuse of Drugs Act 1975 outlines the offence of allowing premises or vehicles to be used for the purpose of the commission of offences against the Misuse of Drugs Act.
12 Use of premises or vehicle
(1) Every person commits an offence against this Act who knowingly permits any premises or [any vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance] to be used for the purpose of the commission of an offence against this Act.
(2) Every person who commits an offence against this section is liable on conviction to imprisonment for a term—
(a) Not exceeding 10 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) Not exceeding 7 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) Not exceeding 3 years in any other case.

Question 37

Restrictions on possession of prescription medicines

Answer 37

No person shall, without reasonable excuse, import, procure, receive, store, use, or otherwise have in his possession, any prescription medicine.

Question 38

Needles and syringes

Answer 38

Legislation relating to needles and syringes is found in the Health (Needles and Syringes) Regulations 1998. Two offences are relevant:
• reg 11.Offering or accepting for use any used needle or syringe, or disposing of any needle or syringe in a public place:
• reg 12.Selling or supplying, or attempting to sell or supply, any needle or syringe:
Possession of the needle per se is not an offence, but will become so if the syringe contains a useable amount of a controlled drug. An offence is being committed in respect of the drugs, ie possession.

Question 39

Offences relating to use or disposal of syringes

Answer 39

Every person commits an offence who—

(a) Offers to any other person, for use by that other person, a used needle or used syringe; or
(b) Accepts for use a used needle or used syringe; or
(c) Disposes of a needle or syringe in a public place.

Question 40

Who is allowed to sell needles and syringes

Answer 40

pharmacist, a pharmacy employee, an approved medical practitioner, or an authorised representative,

Question 41

Methods of Importation

Answer 41

International Mail Centre
Inside a mail article
International Airport
Arriving courier using either body packing, internal concealment or concealed within luggage.
Imported air freight
Within a freight consignment which can be either commercial or private
Imported sea freight
As with air freight but arrive via sea
Transhipped air or sea freight
Transiting through New Zealand with a final destination in another country
Arriving commercial vessel
Hidden on board or attached to a vessel that is either unloading or picking up cargo from New Zealand before continuing onto another country

Question 42

Two options with controlled deliveries

Answer 42

Option 1
A “clean controlled delivery”, where no drugs are left within the consignment. This eliminates any risk of the drugs being lost but also gives greater freedom in organising the surveillance of the consignment and reduces the risk of alarming the targets who may have arranged counter-surveillance. However, at the termination of the operation only “importation” and/or “conspiracy” charges are likely to be filed on those apprehended.

Option 2
Leave an amount of the drug within the consignment to enable the option of charging an offender with a “possession for supply” charge and also provides the availability of emergency powers should the drugs move to persons or places that are not covered by search warrants. The remainder of the drugs are substituted. Consequently any consignment with drugs still in it requires greater security, and recovery on termination is paramount.

Question 43

Profile the package by considering the sender details, in particular:

Answer 43

• sender location
• any phone number attached to the package or accompanying documentation
• IMEI / SIM information undertaken at early stage (call data)
• telecommunications service providers portability of cell phones
• DNA / fingerprinting / handwriting / impressions / mechanical fit
• multiple packages, including dummy runs to target address or associated addresses.

Question 44

Profile the delivery address by considering:

Answer 44

• Police intelligence applications
• occupants
• local council – owner / rate payer details
• council plans of street and target premises (includes aerial)
• rubbish delivery – date / time
• Housing New Zealand
• telecommunications service providers – eg Telecom, Vodafone, 2 degrees
• electricity / gas suppliers to address
• timing of mail to address
• previous occupants& neighbours
• landlord / owner of property
• Police staff who have previously visited premises
• CHIS for historical information or whom to be tasked
• fixed or mobile surveillance (Police and Customs)
• photographs / video of premises
• security – including locks, alarms, camera / video surveillance and animals
• photographs / video of premises
• security – including locks, alarms, camera / video surveillance and animals
• in the case of a PO Box, obtain box-holder details
• Customs powers versus Police powers for obtaining information expediently
• mail stop / flag address to capture further deliveries
• suspect(s) may be monitoring / surveilling the delivery address
• Task Customs to back-capture previous deliveries to the address via CUSMOD (the INTERPOL managed border alert system) enquiries and also consider other agencies holding intelligence (Fisheries, Immigration, Internal Affairs etc).

Question 45

Searching for evidence

Answer 45

• Search for evidence relating to the importation:
• track and trace receipts
• correspondence
• computers, faxes and cell phones
• emails
• contact lists / numbers
• packaging from previous importations
• money and financial records
• scales and packaging etc in relation to supply charges
• PO Box documentation
• travel documentation
• passports.

Question 46

Method of delivery

Answer 46

Consider method of delivery (Misuse of Drugs Amendment Act 1978, section 12 refers):
• Re-introduce into postal system for delivery by postie
• Delivery by a courier company
• Police / Customs staff pose as postie / courier
• Consider recording the interaction.

Question 47

If the addressee is not at the delivery address

Answer 47

Consider:
• leaving the package in letter box or at the door
• attempting delivery at a later time
• leaving a “Card to Call” and wait for contact from the addressee.

Question 48

If the addressee accepts the package

Answer 48

Consider:
• monitoring audio/tamper devices and crunch when package is opened
• deciding on length of time to hold cordons
• staff/resources
• other operational commitments.

Question 49

Detention time limit for internal search

Answer 49

7 days – renewable in periods of 7 days to maximum of 21 days
Suspect fails to permit examination and Court satisfied that requirement for internal examination properly made on reasonable grounds. Then Court may decline to consider bail application and order continued detention in Police custody until the earlier of 2 days after day on which internal examination was required or the person permits the examination to occur.

Question 50

Section 23 of the Search and Surveillance Act 2012 relates to conducting internal searches of people believed to be

Answer 50

concealing drugs internally. These people must be under arrest for specific offences and any request for an internal search must be made by a constable.

Question 51

Section 13A of the Misuse of Drugs Amendment Act 1978 is for dealing with people believed to be

Answer 51

concealing class A or B controlled drugs internally. Any member of Police or Customs may request a warrant from a District Court Judge to detain someone under this section.

Question 52

electronic operations cannot be conducted, under this section, for any offences other than those in

Answer 52

s6, and then only if the drugs involved are Class A or Class B controlled drugs.

Question 53

Private communication-

Answer 53

(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

Question 54

The specific provision relating to drug offences in situations of emergency states:

Answer 54

Section 48(2)(e) “the enforcement officer has reasonable grounds—

(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:”

Question 55

Warrants are granted for a specified period of time up to

Answer 55

60 days. The Judge may issue further surveillance device warrants. in respect of the same suspected offence.

Question 56

Clan Lab indicators Outside

Answer 56

• Chemical odours, coming from the building, rubbish or detached buildings. The odours can be sweet, bitter, ammonia or solvent smells.
• Exhaust fans running at odd times.
• Frequent visitors at odd hours.
• Windows blackened out or curtains always drawn.
• People coming outside only to smoke.
• Occupants unfriendly, appear secretive about their activities, exhibit paranoid or odd behaviour.
• Expensive security and surveillance gear.
• Access denied to landlords, neighbours, other visitors.
• Rubbish containing a large amount of cold medication containers or packaging.
• Also bottles, plastic containers and boxes with labels removed.

Question 57

Clan Lab indicators inside

Answer 57

• Laboratory glassware, equipment and documents.
• Containers with clear liquids in them with a chalky coloured solid on the bottom or similar.
• Containers with two layered liquids in them, one dark coloured layer and one clear or pale yellow layer.
• Used coffee filters containing either a white pasty or reddish brown substance.
• Baking dishes or similar containing white crystalline substance.
• The presence of hot plates near chemicals.

Question 58

Safety considerations

Answer 58

• Leave the area immediately, your safety is paramount.
• Never touch, taste or smell any chemicals or equipment.
• Do not attempt to stop the chemical reaction, or turn any electrical devices such as lights or fans on or off. The simple act of turning on an electrical switch may cause an explosion.
• Do not shut off the water supply to the house or the chemical reaction.
• Do not smoke in or near a Clandestine Laboratory.
• Do not use tools, radios, cellphones, torches or devices that produce sparks or friction.
• Do not re-enter the premises.

Question 59

There are three types of Clan Labs:

Answer 59

• Extraction,
• Conversion and
• Synthesis.

Question 60

There are two types of Clan Lab investigations:

Answer 60

• unplanned entry and

* planned entry.

Question 61

Large-scale dealing may be substantiated by:

Answer 61

(i) Admissions made by the defendant;
(ii) The amount and sophistication of equipment found in the defendant’s possession;
(iii) Volumes of precursor materials found in the defendant’s possession;
(iiv) Evidence of chemical purchases;
(v) Intercepted communications;
(vi) Observation evidence, particularly over extended periods;
(vii) Significant cash holdings and/or movements;
(viii) Evidence, including records, of proposed and/or actual sales;
(vix) Other evidence of sophisticated, organised or large-scale dealing – eg, travel movements;
(v) Expected evidence at trial of co-offenders (ie, taken after plea and sentence), informants or other Crown witnesses

Question 62

Dealing or conspiring to deal in a Class B controlled drug if –

Answer 62

• (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 63

Dealing or conspiring to deal in a Class C controlled drug where there is -

Answer 63

• (a) evidence of large-scale commercial dealing; or

* (b) substantial evidence derived from a surveillance device involving audio interception

Question 64

Large Scale Commercial dealing may be substantiated by:

Answer 64

(i) Volume of drugs found in the defendant’s possession;
(ii) Admissions made by the defendant;
(iii) Intercepted communications
(iv) Significant cash holdings and/or movements;
(v) Evidence, including records of proposed and/or actual sales, including detailed and/or extensive supply lists
(vi) Other evidence of sophisticated, organised, or large-scale dealing, e.g. travel movements;
(vii) Expected evidence at trial of co-offenders (i.e. taken after please and sentence), informants or other Crown witnesses;
(viii) Evidence that suggests a continuing course of conduct.

Question 65

For sentencing purposes, cannabis cultivation is divided into three broad categories:

Answer 65

− 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 organisation1
− Sentencing judges commonly adapt those categories to the dealing context. .
− Alleged offending falling within category 3 above is a Crown prosecution. There must be admissible evidence that substantiates the real nature and scale of the dealing operation.

Question 66

Time limits for charging

Answer 66

Section 28(a) allows you to file charging documents at any time for offences of:
• dealing (s6)
• cultivating (s9)
• aiding offences against corresponding law in another country (s10).
Section 28(b) states the limitation period for any other offence against the Act or any regulations made under it, is four years after the date on which the offence was committed

Question 67

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

Answer 67

• 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 68

Certificates are only admissible evidence if:

Answer 68

− 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 69

Instead of calling the expert analyst of a drug exhibit to give evidence in Court, you can

Answer 69

can produce a certificate of their findings.