Drug Offences - Misc Offences

Question 1

Cultivation of prohibited plants

Answer 1

Sec 9, Misuse of Drugs Act 1975

(1) Except pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall cultivate any prohibited plant.
(2) Subject to subsection (4) of this section, every person who contravenes subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term not exceeding 7 years.
(3) Repealed
(4) 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 2

Allowing premises or vehicles to be use

Answer 2

Sec 12, Misuse of Drugs Act 1975

(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.
(3) Repealed.

Question 3

Obstruction of officers

Answer 3

There is a specific offence of obstruction in Section 16 of the Misuse of Drugs Act 1975.

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.

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.

It should be noted that the offence of obstruction in the Misuse of Drugs Act 1975 is different from the offence of obstruction in the Summary Offences Act 1981.

Question 4

Medicines Act 1981, s43(1) and (5)

Answer 4

Often when search warrants are executed, Police find prescription medicines or medication that are in unnamed or unlabelled bottles or packets.

Offences relating to prescription medicines are found in the Medicines Act 1981.

S43:

(1) No person shall, without reasonable excuse, import, procure, receive, store, use, or otherwise have in his possession, any prescription medicine.
…
(5) Every person commits an offence against this Act who contravenes subsection (1) of this section.

Question 5

Needles and syringes

- general

Answer 5

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 6

Needles and syringes

- offences

Answer 6

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:

Question 7

Powers involved in controlled deliveries

Answer 7

Power to undertake a controlled delivery is vested in a Customs officer only, under s12 of the Misuse of Drugs Amendment Act 1978. Police assist Customs when a controlled delivery operation is undertaken. In the event that the controlled delivery operation is successful Police make the arrest and conduct the prosecution.

Question 8

Sec 12, Misuse of Drugs Amendment Act 1978

Answer 8

Allowing Delivery of Unlawfully Imported Drugs

(1) Where any Customs officer acting in the course of his or her official duties believes on reasonable grounds that there is in or on any craft, package, mail, vehicle, or goods any controlled drug [or precursor substance] that has been imported into New Zealand in contravention of section 6(1)(a) [or section 12AB] of the principal Act, he or she may, for the purpose of his or her investigation of the matter, leave or replace that drug [or precursor substance], or any portion of it, in or on the craft, package, [mail], vehicle, or goods and may, in the same manner as if there had been delivery from Customs control,—
(a) Allow the craft or vehicle to leave; or
(b) Allow the [[package, goods, or mail]] to be collected by or delivered to or on behalf of the consignee; or
- (ba) allow the package, goods, or mail to be delivered by a person who has agreed to co-operate with Customs; or
- (bb)deliver the package, goods, or mail; or
(c) Return the to the appropriate carrier for delivery to the addressee—as the case may require.

(2)No Customs officer who exercises any power conferred by subsection (1), and no officer or employee of any carrier who, in the course of his or her duties, does anything in respect of any [package, goods, or mail] returned to a carrier in accordance with that subsection (whether or not he or she knows that the [package, goods, or mail] contains a controlled drug [or precursor substance]), is under any criminal or civil liability in respect of the exercise of that power or, as the case requires, the doing of that thing.

Question 9

Controlled deliveries

- two options

Answer 9

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 10

Controlled deliveries

- emergency powers

Answer 10

Emergency powers of entry, search and seizure relating specifically to controlled deliveries are contained within section 81 of the Search and Surveillance Act 2012.

Question 11

Controlled deliveries

- Power to stop a vehicle

Answer 11

In the event the package or item involved in the controlled delivery operation is in a vehicle and you need to stop the vehicle to recover the package you need to be aware of your power to stop a vehicle to exercise a statutory power of search pursuant to section 121 of the Search and Surveillance Act 2012.

Question 12

Controlled deliveries

- suspect at large powers

Answer 12

If a suspect from a controlled delivery is in a vehicle which no longer contains the parcel containing the drugs and you want to arrest them you should use the power to stop the vehicle contained in section 9 of the Search and Surveillance Act 2012. This section allows you to stop a vehicle for the purpose of arresting an occupant of that vehicle.

Question 13

Tracking Device

- two main categories

Answer 13

• a device that can be used to help ascertain the location of a person or thing, whether or not it is installed in or on the thing being tracked or in the possession of a person being tracked
• a device used for detecting whether a thing has been handled, although under s 46(1)(b) of the Search and Surveillance Act 2012, the use of a device for this purpose requires a warrant only when its installation involves a trespass on land or trespass to goods

Question 14

Sec 23, Search and Surveillance Act 2012

- internal searches of people

Answer 14

Relates to conducting internal searches of people believed to be 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 15

Sec 13A, MoD Amendment Act 1978
- people believed to be concealing class A or B controlled drugs internally

Answer 15

Any member of Police or Customs may request a warrant from a District Court Judge to detain someone under this section.

Question 16

Interception device

Answer 16

(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 17

Visual surveillance device

Answer 17

(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 observe, or to observe and record, a private activity; but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

Question 18

Surveillance Device

Answer 18

means a device that is any 1 or more of the following kinds of devices:

(a) an interception device:
(b) a tracking device:
(c) a visual surveillance device.

Question 19

Tracking Device

Answer 19

(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:

(i) the location of a thing or a person:
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but

(b) does not include a vehicle or other means of transport, such as a boat or helicopter

Question 20

Serious Offence

- trespass surveillance

Answer 20

A serious offence in relation to trespass surveillance is an offence punishable by 7 years imprisonment or more (or against certain sections of the Arms Act).

Question 21

Specific provisions relating to drug offences in situations of emergency
- S&S Act 2012

Answer 21

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:”

Note that the surveillance device cannot be used for more than 48 hours without warrant in these circumstances (section 48(1)).

Question 22

R v McGinty

- alternate investigation techniques

Answer 22

The evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient. A Judge was not required to refuse a warrant because the Police had not exhausted every conceivable alternative technique of investigation.

Question 23

R v McGinty

- CHIS identity and info

Answer 23

Disclosure of the identity of alleged informants was not required under the Act, and 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 24

Clan Lab indicators

- outside

Answer 24

• 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 25

Clan Lab indicators

- inside

Answer 25

• 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 26

Clan Lab
- safety considerations
x 7

Answer 26

In addition to the action outlined in the NCLRT Manual you should remember the following:
• 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 27

Exposure to chemicals

- symptoms

Answer 27

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

Question 28

Types of Clan Labs (3)

Answer 28

There are three types of Clan Labs:
• Extraction,
• Conversion and
• Synthesis

All three types of Clan Labs can be found at one Clan Lab site, but this may not always be the case.

Question 29

Two types of Clan Lab investigations

Answer 29

• unplanned entry

* planned entry

Question 30

Sec 6, MODA 75

- category of offence

Answer 30

Category 3 - right to elect trial by jury

Question 31

Sec 7, MODA 75

- category of offence

Answer 31

Category 2 - no right to elect trial by jury

They include:
• possession and consuming controlled drugs
• supplying, administering or offering to supply or administer Class C controlled drugs

Question 32

Time limits for filing charging docs

Answer 32

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 33

Bail - drug dealing offence

Answer 33

Granted bail only by a Judge (High Court or District Court)

Question 34

Category 3 offences

Answer 34

All Under Section 6

*right to elect trial by jury

Question 35

Category 2 offences

Answer 35

Section 7:

• Possession/consuming controlled drogs
• supply/administer Class C controlled drug

*NO right to elect trial by jury

Question 36

Sec 16 Bail Act 2000

Answer 36

A defendant on drug dealing offences may only be granted bail by a High Court or District Court Judge

Question 37

Sec 17 Bail Act 2000

Answer 37

17+ yrs old and charged with Class A drug offence

• no bail/at large, unless judge satisfied it should be granted
• must satisfy the judge beyond the balance of probabilities that they will not commit drug dealing offences while bailed/at large

Question 38

Delivery of drug exhibits

Answer 38

• in person to analyst who is to issue certificate, or authorised by analyst to receive it
• by registered post or courier post with signature required in a sealed package