Drug Offences CIB011 'B' Files

Question 1

Definition of exportation

Answer 1

It commences with the first act intended to export the drugs from their origin in New Zealand, and concludes at the time of actual exportation - ie, Section 53.

Section 53 Customs and Excise Act 1996 Time of exportation

For the purposes of this Act, the time of exportation is the time when the exporting craft leaves the last Customs place at which that craft calls immediately before proceeding to a point outside New Zealand.

Question 2

Controlled drug definition

Answer 2

Section 2 Misuse of Drugs Act 1975

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 any controlled drug analogue.

Question 3

Class A/B/C definition

Answer 3

Section 2 Misuse of Drugs Act 1975

Interpretation Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act

Class B- Schedule 2

Class C- Schedule 3

Question 4

Controlled drug analogue – which Class

Answer 4

Class C

Question 5

R v Strawbridge

Answer 5

R v Strawbridge [1970] NZLR 909

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.

Question 6

3 thing to prove Importation

Answer 6

This will involve proof that the defendant:
• knew about the importation, and
• knew the imported substance was a controlled drug, and
• intended to cause the importation

Question 7

In relation to importing, when is someone liable and when does liability cease?

Answer 7

• Criminal liability arises as soon as the drugs cross New Zealand’s border
• continues regardless of whether they reach their addressee/consignee or not
• continues while the goods are in transit,
• and only concludes when they have reached their final destination and are available to the consignee.

Question 8

Wilful blindness

Answer 8

Rv Martin

• “it will suffice if the Crown can prove beyond reasonable doubt that the accused (importer) had her suspicions aroused as to what she was carrying,
• but deliberately refrained from making further inquiries or confirming her suspicion
• because she wanted to remain in ignorance.
• If that is proved, the law presumes knowledge on the part of the accused.
• The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry”.

Question 9

R v Rua

Answer 9

R v Rua [2008] NZCA 38
The words “produce” or “manufacture” in s 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.

Question 10

Difference between produce and manufacture

Answer 10

• Producing can be described as changing the nature of the original substance, and
• Manufacturing as creating a different substance from the original materials.

Question 11

When is the offence of manufacturing complete?

Answer 11

The offence is complete once the prohibited substance is created, whether or not it is in a useable form.

For example in R v Rua, methamphetamine in suspension in a two-layered liquid, although not capable of being used in that state, was held to have been manufactured.

Question 12

Cannabis prep s29B

Answer 12

For an offence against any of the provisions of section 6 or section 7 of this Act in relation to any cannabis preparation the following provisions shall apply:

(a) It shall be for the prosecution to prove that the preparation to which the charge relates contains any tetrahydrocannabinols:
(b) Subject to paragraph (a) of this section, the preparation shall be deemed to have been produced by subjecting cannabis plant material to some kind of processing unless it is in a form that is clearly recognisable as plant material:
(c) Plant material means the whole or any part of the leaf, flower, or stalk of any plant (of whatever species):
(d) The question of whether or not any preparation is in a form that is clearly recognisable as plant material shall, be determined by the jury/ Judge by means of a visual inspection unaided by any microscope or device

Question 13

Definition of supply

Answer 13

“to furnish or provide something that is needed or desired”.

Section 2 Misuse of Drugs Act 1975
Interpretation
Supply includes distribute, give, and sell

However supply involves more than just handing drugs over; it includes conferring on the recipient the ability to use the drugs for his or her own purposes.

Question 14

Offers to supply or adminster – the prosecution must prove two elements

Answer 14

The prosecution must prove two elements:
• the communicating of an offer to supply or administer a controlled drug (the actus reus)
• an intention that the other person believes the offer to be genuine (the mens rea)

Question 15

R v During

Answer 15

R v During [1973] 1 NZLR 366 (CA)
“[An offer is] an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute”.

Question 16

R v Brown

Four ways an offer can be made

Answer 16

R v Brown [1978] 2 NZLR 174 (CA)
The defendant is guilty in the following instances:
(1) offers to supply a drug that he has on hand
(2) offers to supply a drug that will be procured at some future date
(3) offers to supply a drug that he mistakenly believes he can supply
(4) offers to supply a drug deceitfully, knowing he will not supply that drug

Question 17

How do you prove age for a victim?

Answer 17

R v Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.

In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.

Question 18

Is it possible to be charged with attempted possession?

Answer 18

Yes, provided that there was criminal intent + an act for the purpose of accomplishing his object

In R v Jay - guilty of an attempt

The Court in this matter held that the commission of the offence of receiving cannabis was not legally impossible, although in the circumstances it was factually impossible.

Question 19

Presumption for supply – LSD, Cannabis, Meth, Cocaine

Answer 19

Heroin 0.5 grams

Cocaine 0.5 grams

Lysergide (LSD) 2.5 milligrams or 25 flakes, tablets etc

Methamphetamine 5 grams

MDMA (Ecstasy) 5 grams or 100 flakes, tablets etc

Cannabis resin and extract (oil) 5 grams

Cannabis plant 28 grams or 100 or more cigarettes

Question 20

The presumption that a drug is for sale/supply may be rebutted if the person is able to prove

Answer 20

The presumption that the drug is for sale or supply may be rebutted if:

• the person is able to prove, on the balance of probabilities,
• that they did not intend to commit a ‘dealing’ offence, notwithstanding the amount.

For example, the defence may argue that the suspect was heavily addicted and required large amounts for personal use.

Question 21

Conspiracy if done in another country

Answer 21

It will be necessary to prove that:

• the defendant had done something to complete the conspiracy in New Zealand
• for the offence to come within the jurisdiction of the New Zealand courts.

Question 22

Defence to s9 MODA75

Answer 22

It shall be a defence to a charge under subsection (1) of this section if the person charged proves:

• that the prohibited plant to which the charge relates was of the species Papaver somniferum,
• and that it was not intended to be a source of any controlled drug or
• that it was not being developed as a strain from which a controlled drug could be produced.

Question 23

Ingredients of allowing premises

Answer 23

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.

Question 24

Ingredients of obstructs

Answer 24

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.

Question 25

Difference in obstruction in Summary Offences Act and MODA75

Answer 25

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

Question 26

Regulation 11 Health and Reulations Act 1998

Answer 26

11 Offences relating to use or disposal

(1) 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 27

Ingredients for 12A

Answer 27

(1) Every person commits an offence against this Act who supplies, produces, or manufactures—
(a) Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9 ; or
(b) Any precursor substance—

knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

Question 28

Term equipment and 4 examples

Answer 28

but will include the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process.
Examples:

• glassware,
• condensers,
• heating mantles etc used in the manufacture of methamphetamine; or
• lights, timers, water pumps etc used in cultivating cannabis.

Question 29

What is a controlled delivery?

Answer 29

• when a consignment of illicit drugs is detected,
• in circumstances making it possible for the delivery of those goods to be made under the control and surveillance of NZ Customs and Police officers,
• with a view to identifying and securing evidence against those involved for the importation/exportation.

Question 30

Option 1 & 2 for controlled deliveries

Answer 30

A “clean controlled delivery”, where no drugs are left within the consignment.

Positive: eliminates any risk of the drugs being lost, gives greater freedom in organising the surveillance of the consignment and reduces the risk of alarming the targets who may have arranged counter-surveillance.

Negative: only “importation” and/or “conspiracy” charges are likely to be filed on those apprehended.

B Leave an amount of the drug within the consignment.

POSITIVES: Ability to charge with “possession for supply” and also provides the availability of emergency powers should the drugs move to persons or places that are not covered by search warrants.

NEGATIVE: Any consignment with drugs still in it requires greater security, and recovery on termination is paramount.

Question 31

Who leads the controlled drug delivery operation?

Answer 31

Power to undertake a controlled delivery is vested in a Customs officer only, under s12 of the Misuse of Drugs Amendment Act 1978.

Question 32

4 things to consider with an Observation Post for controlled delivery

Answer 32

1. Identify a potential address based on location / proximity to target.
2. camera OP requirements versus intercept requirements (Forward Base)
3. whether surveillance device warrant required under the Search and Surveillance Act 2012. (see limitations below)
4. the staff having to occupy the OP.

Question 33

Points to consider when profiling the addressee of a controlled delivery

Answer 33

Consider:
• previous occupiers
• real person or false name?
• connections to delivery address
• relevant convictions / notings / associations
• travel / connections to country of origin
• police intelligence held (NIA, previous investigations, MO section, IMP, arresting officers)
• suspect’s knowledge surrounding covert enforcement techniques
• suspect’s knowledge / skill surrounding technology (phones, faxes, computers etc)
• suspect’s travel history including passport holdings
• Sanda -other agency intelligence held (Fisheries, Customs, Immigration, Internal Affairs etc)

Question 34

Internal search differences

Answer 34

Section 13A of the Misuse of Drugs Amendment Act 1978

• Person not under arrest
• dealing with people believed to be concealing class A or B controlled drugs internally.
• Any Police Constable or Customs Officer may request a warrant from a District Court Judge to detain someone under this section.
• Detention 7 days (max 21)

Section 23 SAS 2012

• Person must be under arrest
• Any class of drug
• Only a constable can request the search
• Medical practitioner conducts the search
• Decline bail, order search holding the person for 2 days

Question 35

Disclosure of evidential transcript at court

Answer 35

The defendant is entitled to disclosure of all interceptions (subject to grounds for withholding) involving themselves.

Intercepted communications may be relevant by definition but withheld by police on one or a combination of the following grounds:
• information which is likely to prejudice the maintenance of law, including the prevention, investigation, and detection of offences
• disclosure of the information is likely to endanger the safety of any person or people
• disclosure of the information is likely to prejudice the security or defence of New Zealand.

Question 36

4 things that must be done in the first 24 hours for O/C phone

Answer 36

• Trapping’ or ‘pre loading’ phone data
• TSP Liaison
• Draft a production order application early
• Utilise an analyst

Question 37

Evidential material definition

Answer 37

means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 38

Interception device definition?

Answer 38

Interception device-

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

Question 39

Requirement for using a surveillance device for interception or trespass

Answer 39

A serious offence – an offence punishable by 7 years of imprisonment or more

(or against certian sections of the Arms Act).

Question 40

How many days can a surveillance warrant be in force?

Answer 40

Specify a period up to 60 days for which the warrant may be in force

Question 41

Does a CHIS have to named in a warrant

Answer 41

S64 of the Evidence Act 2006 grants privilege to informers that protects their identity and extends to information that is likely to disclose that identity. It is good practice not to state the name of any CHIS.

R v McGinty [1983] NZLR 524 (CA)

• Disclosure of the identity of alleged informants was not required under the Act,
• the trial Judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants.
• However, the trial Judge was entitled to insist on disclosure if he saw fit.

Question 42

Criteria for a surveillance device warrant

Answer 42

In applying for a surveillance device warrant, you must convince the Judge you have 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
(iii) the restrictions in section 45 do not prevent the issuing of a surveillance device warrant in the circumstances

Question 43

Definition of an informer

Answer 43

Evidence Act 2006
64 Informers
(2) A person is an informer who -
(a) has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b) is not called as a witness by the prosecution to give evidence relating to that information.
(3) An informer may be a member of the police working undercover.

Question 44

Short Answer/ considerations for unplanned entry into a clan lab

Answer 44

• Immediately remove persons of interest from the premises
• Isolate the site and maintain a safety perimeter
• Preserve the crime scene
• Notify their duty Inspector or Duty NCO, contact the NCLRT and where appropriate the
• local fire service and ambulance
• Seek advice from a NCLRT member or the Fire Service about decontamination procedures
• Occupants of the address and staff who have entered the address are to remain separated until decontamination issues have been addressed
• Seek medical advice if you experience any adverse effects

Question 45

90 seconds rule

Answer 45

This rule assumes that:

• if offender(s) are present and moving inside the Laboratory then the atmosphere will sustain life.
• the IET (wearing the minimum level of PPE for the IET) may safely enter and extract suspects for a period of up to ninety seconds.

Question 46

Who can call a landslide in clab lab?

Answer 46

Any member of the Initial Entry Team

Question 47

Definition of emergency

Answer 47

Hazardous Substances & New Organisms Act 1996 135.

Unless the context otherwise requires, Emergency means:

(a) Actual or imminent danger to human health or safety; 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

Question 48

6 points for large scale commercial cultivation

Answer 48

1. Volume of cannabis found in the defendant’s possession;
2. Admissions made by the defendant;
3. Intercepted communications;
4. Observation evidence, particularly over extended periods;
5. Significant cash holdings and/or movements;
6. Evidence, including records, of proposed and/or actual sales;
7. Evidence of an extensive and sophiscated ongoing operation involving regular crop rotation;
8. Evidence of extensive crop yields;
9. Expected evidence at trial of co-offenders (ie taken after plea and sentence), informants or other Crown witnesses

Question 49

S16 of Bail Act

Answer 49

16. Judge only may grant bail for drug dealing offence
    “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 50

Definition of dealing offence

Answer 50

S3 Bail Act 2000

(a) any offence against s6 or 12C(1)(a) of the MODA75 in relation to a Class A controlled drug or a Class B controlled drug; or
(b) An attempt to commit an offence referred to in paragraph (a)

Question 51

Statutory limitation for drug charges

Answer 51

s28(a) allows you to file charging documents at any time for offence of:

• dealing (s6),
• cultivating (s9),
• aiding offences agianst corresponding law in another country (s10).

S28(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 52

Who proves drug is useable?

Answer 52

While it is necessary that the amount of the controlled drug is of a useable quantity, under s29A it is not necessary for the prosecution to prove that fact unless the defendant puts the matter in issue.

Question 53

Conspiracy if done in another country

Answer 53

It will be necessary to prove that the defendant had done something to complete the conspiracy in New Zealand for the offence to come within the jurisdiction of the New Zealand courts.

Question 54

What must the crown prove in relation to the mens rea for Importation?

Answer 54

The Crown must prove not only that:

the defendant’s conduct in some way contributed to the actual importation of the drug,

it must also prove the defendant’s guilty knowledge.
This will involve proof that the defendant:
• knew about the importation, and
• knew the imported substance was a controlled drug, and
• intended to cause the importation

Question 55

Time frame and best practice method for Disclosure of drug analysts certificate

Answer 55

The certificate is admissible evidence only if:

• the defendant is served at least seven days (7 clear days) of the hearing, and provided with a copy of the analyst’s certificate
• the defendant does not, at least three days before the hearing, give written notice that the analyst be called
• the Court does not request the oral evidence of the analyst.

Question 56

Section 46 SAS 2012

Answer 56

s46, Search and Surveillance Act 2012 -

(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds-

(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.”