Drug Offences Flashcards
Define CONTROLLED DRUG
Any substance, preparation, mixture, or article specified or described in Schedule 1, Schedule 2, or Schedule 3 to this Act; and includes any controlled drug analogue.
R v Strawbridge
Application - Knowledge/controlled drug (all offences)
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 Emirali
Application - Usable amount/controlled drug (all offences)
The serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.
Section and elements - Import or export
S6(1)(a) MODA 75
-Import into OR export from NZ
-Any controlled drug
Case laws for S6(1)(a) - excluding Strawbridge and Emirali
Saxton v Police
R v Hancox
Define IMPORT
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
Application - Import
To import includes “to introduce from abroad or to cause to be brought in from a foreign country”
R v Hancox
Application - Import
The element of importing exists from the time the goods enter NZ until they reach their immediate destination [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee of the addressee.
Section and elements - Producing/manufacturing
S6(1)(b) MODA 75
-Produce OR manufacture
-Any controlled drug
Case law for S6(1)(b) - excluding Strawbridge and Emirali
R v Rua
Define PRODUCE
To bring something into being, or to bring something into existence from its raw materials or elements.
Define MANUFACTURE
The process of synthesis; combining components or processing raw materials to create a new substance.
R v Rua
Application - Manufacture
the words produce or manufacture in 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
Section and elements - Supplying any class A or B
S6(1)(c) MODA 75
-Supply OR administer, OR offer to supply OR administer, OR otherwise deal in
-Any Class A controlled drug or Class B controlled drug
-To any other person
Case law for S6(1)(c) - excluding Strawbridge and Emirali
R v Maginnis
R v During
R v Brown
Define SUPPLY
Includes distribute, give and sell.
Define ADMINISTER
To direct and cause a drug to be taken into the system of another person
Define OTHERWISE DEAL IN
Dealing in drugs by some means other than by distributing, giving or selling, administering it or offering to supply or administering it.
R v Maginnis
Application - Supply
supply involves more than mere transfer of physical control. it includes enabling the recipient to apply the thing to purposes for which he desires.
R v During
Application - Offer
An offer is an intimation by the person charged to another that he is ready on request to supply that other drugs of a kind prohibited by statute.
R v Brown (4 points)
Application - offer to supply
The defendant is guilty if he/she offers to supply a drug;
(1) That the defendant has on hand
(2) That will be procured at some future date
(3) That he mistakenly believes he can supply
(4) Deceitfully, knowing he will not supply that drug.
R v Brown
Application - Offer
the making of such intimation, with the intention that it should be understood as a genuine offer, is an offence.
Section and elements - Supply Class C controlled drug to person under 18
S6(1)(d) MODA 75
-Supply OR administer, OR offer to supply OR offer to administer
-Any Class C controlled drug
-To a person under 18 years of age
Case law for S6(1)(d) - excluding Strawbridge and Emirali
R v During
R v Brown
R v Forrest and Forrest
Section and elements - Sell/Offer to sell any class C controlled drug to person 18+
S6(1)(e) MODA75
-Sell OR offer to sell
-Any Class C controlled drug
-To a person of or over 18 years of age
R v Forrest and Forrest
Application - under 18
the best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
Define SELL
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.
Section and elements - Possession of controlled drugs for supply
S6(1)(f) MODA75
-Have in his possession
-Any controlled drug
-for any purposes set out in paragraphs (c)(d) or (e) of Section 6(1) MODA75
Define POSSESSION (in relation to (6)(1)(f))
For the purposes of this Act (MODA 75), the things which a person has in his possession include anything subject to his control which is in the custody of another.
R v Cox
Application - Possession
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention; knowledge in the sense of an awareness by the accused that the substance is in his position; and an intention to exercise possession.
Sentences when dealing with drugs under Section 6(1)
Class A - Life
Class B - 14 yrs
All else - 8 yrs
Sentences when conspiring to deal with drugs
Class A - 14 yrs
Class B - 10 yrs
All else - 7 yrs
What must the crown prove in importing
The defendant’s guilty knowledge (mens rea), this will involve proof that the defendant
-Knew about the importation
-Knew the imported substance was a controlled drug
-Intended to cause the importation
What is a controlled drug analogue
Means any substance (other than the exceptions specified in the
definition) with a structure substantially similar to a controlled drug. It is a
substance that has similar dangerous effects, but that is not specifically listed in the schedules to the Act.
Controlled drug analogue class
All controlled drug analogues are classified as Class C controlled drugs irrespective of the class of drug they resemble.
Well known Class A controlled drugs
-Cocaine
-Heroin
-Lysergide/LSD (Acid)
-Methamphetamine
-Psilocybine
Acronym CHAMP
Well known Class B controlled drugs
-Morphine
-Opium
-Pseudoephedrine
-Ephedrine
-Cannabis preparations (such as cannabis oil and hashish)
-Amphetamine
-GHB
MOPECAG
Well known Class C controlled drugs
-Cannabis plant
-Cannabis seeds
-Benzylpiperazine (BZP)
-Controlled drug analogues
3C+B
Risks levels for drug classes
A - Very high risk of harm to individuals and to society
B - High risk of harm
C - Moderate risk of harm
Which drugs are not included under S6(1)(a)
Drugs listed in Part 6 of Schedule 3
Onus of guilty knowledge
Although the defendant must know that the substance was a controlled drug, it is not necessary for the Crown to prove such knowledge. Guilty knowledge will be presumed in the absence of evidence to the contrary. It is therefore up to the defendant to raise reasonable doubt as to their state of mind.
S29 MODA 75
Section 29 provides that it is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.
S29A MODA75
While it is necessary that the amount of the controlled drug is of a useable quantity, under section 29A it is not necessary for the prosecution to prove that fact unless the defendant puts the matter in issue.
S29B MODA 75
Section 29B deals specifically with producing cannabis preparations.
It provides that a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders it unrecognisable as plant material – for example, producing cannabis oil or baking a cannabis cake.
What must prosecution prove for supplying or administering
-The communicating of an offer to supply or administer a controlled drug (actus reus)
-An intention that the other person believes the offer to be genuine (mens rea)
Explain S6(5)
For the purpose of selling Class c to a person of or over 18 years, if it is proved that 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.
What must be established for knowledge of qualities of substance (guilty intent posession)
-Know they have the substance
-Know the substance’s nature or qualities
-Intent to use the substance in a way that allows you to charge them with possession
In drug cases additional evidence of intent to supply may be inferred from -
-Admissions
-Circumstantial evidence (packaging, scales, cash, tick lists etc)
-The statutory presumption under Section 6(6)
Section 6(6)
for S6(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 subsections (1)(c), (d), or (e) if in possession of the controlled drug in an amount which the controlled drug is presumed to be supply.
Presumptive amounts under Schedule 5
Heroin - 0.5g
Cocaine - 0.5g
LSD - 2.5mg or 25 flakes, tablets etc
Meth - 5g
MDMA - 5g or 100 flakes, tablets etc
Cannabis preparations - 5g
Cannabis plants - 28g or 100 or more cigarettes
Where not specified under Schedule 5 - 56g
Punishment for conspiring to deal with controlled drugs
Class A - 14 yrs
Class B - 10 yrs
All else - 7 yrs
When is the offence of manufacturing complete
When the prohibited substance is created whether usable or not.
Explain Section 12A
(1) Charges usually against businesses who provide manufacturing equipment or against pseudo shoppers
(2) Possession of equipment with intent they be used for specified purposes.
S12 MODA 75
(1) Every person commits an offence against this Act who knowingly permits any premise or any vessel, aircraft, hovercraft, MV or other mode of conveyance to be used for the purpose of the commision of an offence against this act.
Class A - 10 yrs
Class B - 7 yrs
All else - 3 yrs
Three elements to prove for supplying equipment - S12A(1)
-That the defendant has supplied, produced or manufacture equipment, material or precursors.
-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 knows those items are to be used for such an offence by another person.
Cultivation of prohibited plants
S9 MODA75
-7 yrs imprisonment
-Except for papaver somniferum (poppy) when not being grown to develop controlled drug.
Obstruction of officers
Every person commits an offence against this Act who wilfully obstructs, hinders, resists or deceives any other person in the execution of any powers conferred on that other person by or pursuant to this Act.
Offences relating to prescription medicines are found in
Medicines Act 1981
Offences relating to needles and syringes are found in
Health (needles and syringes) regulations 1998
Notes on controlled deliveries
-Powers to undertake a controlled delivery is vested in a Customs officer ONLY.
-Police assists Customs when a controlled delivery is undertaken.
-In the event a controlled delivery is successful, Police make the arrest and prosecute.
Circumstances in which controlled deliveries will generally occur
-International mail - 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 via sea.
Two methods of controlled delivery
1 - Clean controlled delivery where no drugs are left within the consignment.
2 - Leaving an amount of the drug within the consignment to enable the option of charging an offender with a “possession for supply” and also provide the availability of emergency powers.
Initial action when notified by Customs of import
1 - Assume ownership and leadership of investigation and appoint roles
2 - Liaise early with Customs
3 - Consider whether to conduct an electronic interception as part of controlled delivery
4 - Request Customs to manipulate “track and trace” if parcel is in a track and trace system.
5- Contact SV, Photography, CMC, TSU ASAP.
6 - Start planning OP.
Four things to consider for OP (Observation post) in an import investigation (controlled delivery chapter)
-Camera requirements versus intercept requirements
-Whether SDW required under S&S 2012
-The staff having to occupy the OP
-Finding a suitable location.
SDW considerations S46 S&S 2012
(c) observation of private activity on private premise -using visual surveillance device.
(d) use of a surveillance device that involves trespass to land or goods.
(e) observation of private activity in the curtilage of private premise if exceeds
(i) 3 hours in any 24 hour period or
(ii) 8 hours total
When can a surveillance device be used without SDW
In situations of emergency or urgency for up to 48 hours if entitled to apply for warrant but would be impractical to apply for the warrant.
48(2)(e) S&S 2012
If suspect offence has been committed, being committed or about to be in relation to drugs specified (class a b c) and a surveillance device would obtain evidential material.
Section 23 S&S 2012 (Internal concealment)
Internal searches only applies to a person under arrest pursuant to S6, 7 or 11 of MODA75 and relates to class A B C controlled drugs.
Three types of surveillance device
-Interception
-Tracking
-Visual
What is a controlled delivery
Occurs when consignment of illicit drugs detected in circumstances making it possible for goods to be delivered under control/surveillance of customs and Police. Permitted under S12 MD Amendment Act 1978.
Intel phase steps
-Profile package
-Profile delivery address
-Profile addressee
-Set up observation post
What to consider when profiling package (intel phase)
- Sender location
- Phone number attached to package/other documentation
- IMEI/SIM
- Telecommunications service providers
- DNA/fingerprinting/handwriting
What to consider when profiling delivery address (intel phase)
- Occupants and previous occupants
- Owner/rate payer details from council
- Housing NZ/Kaianga Ora
- Electricity/gas providers
- CHIS
- Police staff who previously visited address
What to consider when profiling addressee (intel phase)
- Real or false name
- Connections to delivery address
- Convictions/notings/associations
- Bank accounts
- Travel history
- Business associations
What to consider when setting up OP (intel phase)
- ID staff or friendlies who live in vicinity of target address
- Once find suitable address profile it and consider;
1) proximity to target address
2) Unobstructed line of sight of target address
3) Access to address without arousing suspicion
4) Phone lines available in street
5) Lighting
What to consider after identifying OP (intel phase)
Once find suitable address profile occupants and consider;
1) Convictions/associations
2) Employment
3) Credit checks
4) Cover story
Steps to follow to repack controlled delivery package
-Liaise with customs technical unit.
-Consider options EG tracking device, audio device, dye trap.
-Consider seeking advice from document examiner about recreating the package.
-Leave appropriate quantities of drugs in the package.
-Photograph.
Relevant evidence relating to importation
-Track and trace receipts.
-Correspondence.
-Computers/faxes/cell phone.
-Emails.
-Money and financial records.
What are 3 things emphasised in delivery?
-Control
-Risk management
-Communication (key element)
Method of delivery during controlled delivery
-Reintroduce into postal system for delivery by postie
-Delivery by courier
-Police/Customs pose as postie/courier
S9 S&S 2012
Constable may stop vehicle without warrant to arrest person if;
- RGTS person is unlawfully at large OR committed offence punishable by imprisonment AND
- RGTB person is in/on the vehicle
If target in a controlled delivery is in vehicle no longer has consignment and want to arrest use S9.
S19 S&S 2012
Constable can search any person found in place/vehicle if SW issued under S6 and the offence specified in SW was against MDA 1975.
S20 SSA 2012
-Enter and search place/vehicle without warrant if RGTB not practicable obtain warrant and in/on place/vehicle is;
- Controlled drug specified in schedule 1
- Controlled drug specified in part 1 schedule 2
- Controlled drug specified in part 1 schedule 3
- Precursor substance specified in part 3 schedule 4
-AND RGTS offence against MDA been/being/about committed in place/vehicle in relation to the controlled drug/precursor substance
-AND RGTB if entry and search not carried out immediately CADD will occur
S121 SSA 2012
Enforcement officer can stop vehicle to search without out warrant if satisfied has grounds to OR with
warrant if satisfied warrant issued and in force.
Must on request of person affected; (RAN)
- ID self my name or QID
- State name of enactment search under and reason unless impracticable
- If not in uniform produce ID
What is a tracking device
Device used to help ascertain by electronic/other means;
- Location of thing or person
- Whether thing opened/tampered with/some other way dealt with.
Doesn’t include vehicle or other means of transport such as boat or helicopter.
What is evidential material
In relation to an offence or suspected offence means evidence of the offence OR any other item tangible/intangible of relevance to the investigation.
What is trespass surveillance
Surveillance is unlawful if it involves trespass (which is unauthorised entry onto private land or unauthorised handling of goods).
What is private communication
- Communication (oral/written/telecommunication/otherwise) made under circumstances reasonably taken to indicate any party to communication desires it to be confined to the parties of the communication BUT
- Doesn’t include communication in circumstances any party to communication ought reasonably expect communication may be intercepted without express/implied consent.
What is an interception device
-Electronic, mechanical, electromagnetic, optical, electro optical instrument/apparatus/equipment, or other device used or capable being used intercept or intercept/record private communication (incl telecommunication) BUT
-Doesn’t include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
R v McGinty - Alternative investigative technique
A judge is not required to refuse a warrant because Police had not exhausted every conceivable alternative technique of investigation
Disclosure of interceptions
Defendant is entitled to disclosure of all intercepts regardless of admissibility or relevance
When can an interception be withheld
-Likely to prejudice maintenance of of law
-Endanger safety of another person
-Prejudice security or defence of NZ.
What are the three processes or stages of clan labs
EXTRACTION - drug rmeoved from raw material by use of chemical solvents
CONVERSION - one form of drug changed into a more desirable form
SYNTHESIS - raw materials combined by chemical process to produce desired drugs
Clan lab indicators
OUTSIDE - chemical odours, exhaust fans running at odd times, blacked out windows, expensive security.
INSIDE - lab glass ware or equipment, hot plates near chemicals, coffee filters, distilled water, rock salt
Risk of clan labs
CHEMICAL - inhaled, absorbed, ingested, danger of fire
PHYSICAL - armed/drug affected offenders, explosives, man traps
Clan lab safety considerations
-Leave immediately
-Do not touch, taste, smell chemical or equipment
-Do not attempt to stop chemical reaction or turn lights off
-Do not shut off water supply
-Do no re-enter
90 second rule
If people are moving inside the clan lab, the atmosphere will sustain life. If wearing minimum level of safety equipment, can safetly enter/extract suspects for 90 seconds.
Minimum level of safety equipment
-Fire retardant overalls
-Chemical and flame resistant coveralls
-Boots
-Fire resistant gloves
-Balaclava
Automatic Crown prosecution drug offences
- Quantity is (5x for Class A and 10x for Class B) presumption threshold OR
- Evidence of large scale dealing OR
- Substantial evidence derived from surveillance device
***Meth is automatic Crown
How to prove large scale dealing
-Admissions by defendant
-Sophistication of equipment
-Volumes of precursor materials
-Evidence of chemical purchases
Breakdown the categories 1 2 3 for cannabis cultivation for sentencing
1 - growing small number for personal use
2- smalls scale for commercial purpose
3- large scale commercial growing with degree of sophistication
S28 Misuse of Drugs Act 1975 - Time limits for filing charging documents
S6, 9 and 10 - no limit
All else - 4 years
