DRUGS Flashcards
1
Q
Saxton v Police
A
To import includes ‘to introduce from abroad or to cause to be brought in from a foreign country’.
(definition of importation)
Think = importing sax toys
2
Q
R v Hancox
A
’ … The bringing of goods into the country or causing them to be bought into the country does not cease as the aircraft or vessel enters New Zealand’s territorial limits. Importing into New Zealand for the purposes of Section 6(1)(a) is a process. the element of importing exists from the time the goods enter New Zealand 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 or addressee’
(definition of importation as a process)
Think = importation is a process that doesn’t cease until the courier han-d the cox to the addressee
3
Q
R v Strawbridge
A
it is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary, the defendant’s guilty knowledge 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.
(guilty knowledge is presumed, and the one sis on the defendant to disprove this)
Think - straw tries to build a bridge over his guilty knowledge
Can use in conjunction with Simmester and Brookbanks - knowledge is knowing or correctly believing; you cannot know something that is false
4
Q
Police v Emerali
A
’ … the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance’
(in any drug offence, the quantity of the drug must be both measurable and usable)
Think - e-measurable -e-merali
5
Q
R v Rua
A
The words ‘produce’ and ‘manufacture’ in Section 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
(meaning of produce and manufacture of CD)
Think - aRe U A manufacturer or producer?
while in practise these terms are virtually synonymous, the Prosecution must specify one or the other int he charging document
Produce – changing the nature of the original substance
Manufacture – creating a different substance from the original materials
6
Q
R v Magginnis
A
‘(Supply involves) more than the mere transfer of physical control … (it includes) enabling the recipient to apply the thing … to purposes for which he desires’
(definition of supply)
Think - Magginnis gives this to you
7
Q
R v During
A
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.
(definition of an offer to supply drugs)
Think - a dur-able offer
8
Q
R v Brown
A
’ … the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence’.
The defendant is guilty (of supply) 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 The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.
(guilt in relation to supply)
Think - caught Brown handed for supply
9
Q
What must be proved for the charge of importation?
A
The Crown must prove that the defendant’s conduct contributed in some way tot he importation of the drugs. 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
10
Q
Define exportation
A
Exportation is a process. It begins with the first act intended to exposit the drugs from NZ and ends when the drugs leave NZ for an overseas destination
S53 Customs and Excise Act 1996 contains the definition for 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 NZ.
11
Q
What 3 things must you prove, to prove guilty knowledge in the context of drug offending
A
- the defendant knew they were in possession
- knew the substance was a controlled drug
- intended to carry out an offence against MODA
= KKI
R v Strawbridge applies - It is not necessary for the Crown to establish knowledge on the part of the accused.
In the absence of evidence to the contrary, the defendant’s guilty knowledge 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.
12
Q
Define wilful blindess
A
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.
In R v Martin the defendant was arrested when she arrived at Auckland Airport with over $4 million worth of cocaine in her suitcase. She claimed she had no knowledge of the drugs despite the highly suspicious circumstances in which she had obtained the suitcase from Nigerian organised criminals.
In this matter the Judge stated “…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”.
13
Q
Explain the difference between produce and manufacture
A
Produce – bring something into being or to bring something into existence from its raw materials or elements.
Manufacture – the process of synthesis; combining components or processing raw materials to create a new substance.
14
Q
Define importation
A
Section 2, Customs and Excise Act 1996
Importation, in relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside NZ
Saxton v Police
To import includes ‘to introduce from abroad or to cause to be brought in from a foreign country’.
15
Q
Controlled drug analogues are what class?
A
Class C
Section 2, MODA 1975
Controlled drug analogue means any substance … that has a structure substantially similar to that of any controlled drug
It will have similarly dangerous effects but is not specifically listed in the schedules of the Act (schedules, 1, 2 or 3). Does not includes prescription medication.
16
Q
How are Class A/B/C drugs defined
A
Means the controlled drugs specified or described in Schedule 1/2/3 to this Act; and includes any controlled drug analogue.
A = schedule 1 of the Act - very high risk of harm
B = schedule 2 of the Act - high risk of harm
C = schedule 3 of the Act - moderate risk of harm
17
Q
In relation to importation of drugs, when is someone liable and when does liability cease?
A
Criminal liability arises as soon as the drugs cross NZ’s border (ie a plane or boat with the drugs enters NZ territorial limits). An importer may therefore be convicted under s6(1)(a), even if the drugs are intercepted by Customs and never reach the addressee (the intended recipient).
Anyone who knowingly assists in facilitating the process of importation from the time the drugs enter NZ, up until the point that the drugs have reached their final destination and are available to the consignee may be liable as a party to the importation.
The offences of importing and or exporting a controlled drug relate to any controlled drug, irrespective of class.
18
Q
In any drug offence, the quantity of the drug must be what two things?
A
Measurable and Usable
Police v Emerali
‘ … the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance’
Under section 29A, it is not necessary for the Prosecution to prove this unless the defendant puts the matter in issue.
19
Q
Explain the difference between produce and manufacture
A
Produce – changing the nature of the original substance; to bring something into being or to bring something into existence from its raw materials or elements.
(ie - making cannabis resin oil from cannabis plant material)
Manufacture – to create a new substance from the original materials; the process of synthesis; combining components or processing raw materials to create a new substance
(ie - manufacturing meth from pseudoephedrine, or heroin from morphine)
20
Q
When is the offence of 6(1)(b) complete? (manufacturing or producing a controlled drug)
A
When the prohibited substance is created, whether or not it is in a usable form
IE methamphetamine suspended in liquid may be held to have been manufactured, though it may not be usable form
21
Q
In relation to importation of drugs, when is importation complete?
A
The offence does not end at the border; the process of importation continues while the goods are in transit, and only concludes when they have reached their final destination and are available to the consignee.
R v Hancox - case law that defines importation as a process.
22
Q
What does Section 29B cover?
A
Special provisions relating to cannabis preparation
This section applies where a cannabis preparation is produced by subjecting the cannabis plant material to some kind of processing, that renders it then unrecognisable as plant material
ie - producing cannabis oil from cannabis plant material
23
Q
Definition of controlled drug
A
Section 2, MODA 1975
Means any substance, preparation, mixture or article (SPAM) specified or described in schedule 1, 2 or 3 of the Act, and includes any drug analogue
24
Q
Where a defendant has been charged with offering to supply or administer a controlled drug, the prosecution must prove what two elements?
A
- The communicating of an offer to supply or administer a controlled drug (the actus reus)
AND - An intention that the other person believes the offer to be genuine (the mens rea)
25
Definition of supply
Section 2, MODA 1975
Includes to distribute, give or sell.
To furnish or provide something that is needed or required, often in exchange for valuable consideration .
In the context of drug offending, the term 'supply' covers a wide range of activities designed to effect the transfer of CDs from one person to another, and to confer on the recipient that ability to use those drugs for their desired purposes
26
How do you prove age for a victim, where age is a factor in a drug offending matter?
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.
R v Forrest and Forrest
27
Is it possible to be charged with attempted possession of a controlled drug?
Yes.
It is an offence to attempt to gain possession of a drug - a charge which covers someone obtaining something innocuous in the mistaken belief that it is a drug. If you have intent and act to fulfil it, you can be guilty of an attempt.
In R v Jay the Police found the respondent J in possession of a plastic bag containing plant material. J admitted that he thought it was cannabis and that he had purchased it from another person. On analysis the plant material was found to be hedge clippings. 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. As the respondent had criminal intent and did an act for the purpose of accomplishing his object he was guilty of an attempt to commit an offence.
28
Where a defendant has been charged with offering to supply or administer a controlled drug, the prosecution must prove what two elements?
The Crown doesn't have to prove that the defendant had the capacity to supply the drugs, but must prove
- 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)
R v Brown
29
The presumption that a drug is for sale/supply may be rebutted if the defendant is able to prove what?
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.
30
Define distribution
Relates to the supply of drugs to multiple people.
31
Define selling
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. This will commonly be money, but anything of value will suffice
Section 6(5), MODA 1975 - if it is proved that a person has supplied a CD to another person, he shall (until the contrary is proved) be deemed to have SOLD that drug to another person
32
Define administer
To direct and cause a drug to be taken into the system of another person
It is different to supply in that you are introducing the drug into another person's system, not just providing it to them
Case law - R v During, R v Brown
33
If there is a conspiracy to import drugs into New Zealand, but the accused are outside NZ, what must be proven for the offence to come within the jurisdiction of our Courts?
```
Section 6(2A) of MODA75 concerns conspiracy with one or more people to commit drug dealing offences.
Where there is a conspiracy to import controlled drugs into NZ, and the agreement or unlawful acts are carried out in foreign territory, there may be a problem regarding jurisdiction.
```
It will be necessary to prove that the defendant had done something to complete the conspiracy in NZ for the offence to come within the jurisdiction of the NZ courts.
In R v Johnston the Court of Appeal held tha tthe used of the NZ Customs and postal service by the conspirators in posting cannabis resin from England to NZ was sufficient to bring the matter within the jurisdiction of the NZ courts.
34
Explain a defence to Section 9, MODA75
Section 9(4) MODA75.
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.
35
Ingredients of allowing premises
Section 12, MODA75.
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.
36
Ingredients of obstructs
Section 16 MODA75.
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.
37
Explain the difference in obstruction in Summary Offences Act and MODA75
The offence of obstruction in MODA relates specifically to obstructing anyone who is executing powers pursuant to MODA.
38
Explain regulation 11 of Health Regulations 1998 (relating to offering, accepting, disposing of needles and syringes)
When is an offence committed?
Section 11 Health (Needles and Syringes) Regulations 1998.
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.
39
What are the ingredients for 12A
Section 12A MODA75 - equipment supplied or possessed with capacity, and the knowledge or intention to use said equipment, to manufacture controlled drugs.
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.
Every person commits an offence against this Act who has in his or her possession-
(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
with the intention that the equipment, material, or substance is to be used in, or for, the commission of an offence against that provision.
40
Define the term equipment an give 4 examples
The term equipment is not defined by statute, but will include the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process.
Examples may include: glassware, condensers, heating mantles etc used in the manufacture of meth; or pots, lights, timers, water pumps etc used in cultivating cannabis.
41
Define controlled delivery
A controlled delivery occurs when a consignment of illicit drugs is detected, often concealed in some other goods, 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
The controlled delivery is often made with a view to identifying and securing evidence against those involved for the importation/exportation of controlled drugs. This could also incorporate couriers caught body packing or travelling with drugs concealed within their luggage.
42
# Define the two types of controlled deliveries.
What are the advantages and risks of each type?
- A clean controlled delivery.
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.
- Leave an amount of the drug within the consignment.
This gives authorities the option of charging an offender with a possession for supply charges, 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.
However, the consignment with drugs still in it requires greater security, and recovery on termination is paramount.
43
Who leads the controlled drug delivery operation?
The power to undertake a controlled delivery is vested in a Customs Officer only, under Section 12 of the MODA. 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
44
Give 4 ways controlled deliveries can come about
- International Mail (inside a mail article)
- International Airport (arriving on a physical person, couriered using either body packing, internal concealment or concealed within luggage)
- Imported air freight (concealed 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
45
Give 4 things to be considered when setting up an Observation Post for a controlled delivery
- Proximity to target address – close enough to be effective, far enough away to be unobstructive
- Unobstructed line of sight to target address
- Access to and from address without arousing suspicion (consider equipment and staff that will need to discretely enter and leave the address)
- Ability to beam signals and/or tap into Telecom cables (video and audio interception)
- Phone lines available in street
- Other conditions relating to the vicinity of the OP, eg parking, schools, other neighbourhood activities, lighting and animals.
PLAPS - proximity, line of sight, access, phone lines, signals to be beamed or intercepted
46
Give points to consider when profiling the addressee of a controlled delivery
Previous occupiers
Real person or false name
Connexion to delivery address
Relevant convictions/notings/associations
Travel/connexions to country of origin
Bank accounts – large deposits, overseas transfers
Full ID of target if possible
Photographs (casual/formal surveillance)
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
Other agency intelligence held (Fisheries, Customs, Immigration, Internal Affairs etc) Financial profile
Family members/associates/vehicles/addresses and places frequented
General lifestyle (sports and other interests)
Business associations
Tracking device for vehicles – variety of options
Risk assessment – firearms required
47
Internal search differences
revise / acronym
Standard of proof
S13A - Reasonable cause to believe (and not arrested)
S23 - Must be under arrsted for offences against s6, 7 or 11 of MODA. Constable must have reasonable grounds to believe person has secreted within body any property that may be evidence of the offence with which person is charged or other offence against s6, 7 or 11 MODA (s23(2)(b)).
Class of drugs
S13A - Must be Class A or B.
S23 - Any Class. Arrestable under s6, 7, 11 (ie. A, B or C).
Search for
S13A - Only Class A or B drugs secreted for unlawful purpose.
S23 - Class A, B or C and any property that may be evidence of offence for which charged, or property of which possession constitutes offence against s6, 7 or 11.
Who may request?
S13A - Any Constable or Customs Officer.
S23 - Constable.
Who do they request?
S13A - District Court judge for a Detention Warrant.
S23 - Require suspect to permit medical practitioner to conduct internal examination.
Type of medical practitioner
S13A - Aproved by Commissioner of Police or Chief Executive of Customs. S23 - Nominated for the purpose by the constable.
Detention time limit
S13A - 7 days – renewable in periods of 7 days to maximum of 21 days.
S23 - 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.
48
Discuss the disclosure of evidential transcripts of intercepted communications at court
Analysis of the intercepted communications, (also referred to as ‘sessions’), are painstaking, and require patience, dedication and attention to detail. Each session is carefully analysed and a transcript of all relevant evidence is made.
The transcript must be a verbatim copy of the recorded version of the conversation. However, when it is presented to the Court, the recording will be played back in such a manner that extraneous or inadmissible evidence is not disclosed.
49
What are 4 things that must be done in the first 24 hours by the O/C phone
Trapping or pre loading phone data
TSP (telecommunications service provider) liason
Draft a production order application early
No Search Warrant required for Emergency situations
Analysts
Proving phone ownership
50
Define evidential material
In relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
tangible - physical, can be touched
intangible - not physical ie phone data
51
Define interception device
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.
52
Requirement for using a surveillance device for interception or trespass
A serious offence (punishable by 7 years of imprisonment or more) or an offence against certain sections of the Arms Act.
53
Explain times when a surveillance device warrant is required
-Use of an interception device to intercept a private communication.
-Use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods.
-Observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance deivce.
-Use of a surveillance device that involves trespass to land or trespass to goods. -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-
-3 hours in any 24-hour period; or
8 hours in total.
54
How many days can a surveillance warrant be in force?
Specify a period up to 60 days for which the warrant may be in force.
55
Does a CHIS have to named in a warrant? Discuss
| legislation s64 Evidence Act, or case law R v McGinty
R v McGinty - Disclosure of the identity of alleged informants is 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.
Section 64 of the Evidence Act 2006 grants privilege to informers, in order to protect their identity. This extends to information that is likely to disclose that identity. It is good practice not to state the name of any CHIS and good practice to use a registered code number for them. You are not required by law to name your CHIS. If the application is subsequently disclosed, the informer’s anonymity will be protected.
56
What are the criteria for a surveillance device warrant
Section 51 Search & Surveillance Act
Suspect the offence has been committed, believe you will find evidential material of that offence, and have grounds to apply for a warrant
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 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 used of the surveillance device will obtain information that is evidential material in respect of the offence; and
(b) The restrictions in s45 do not prevent the issuing of a surveillance device warrant in the circumstances.
57
What is the definition of an informer?
Evidence Act 2006, Section 64 - Informers
(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
(2) A person is an informer for the purposes of this section if the person-
(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.
58
Give initial action for unplanned entry into a clan lab
- 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
RIPSAMO - Remove people, Isolate and cordon, preserve the crime scene, supervisor to be called, advice to be sought from fire/specialists, medical advice sought for you or anyone effected, occupants who may be contaminated to be separated
59
What is the 90 second rule?
This rule assumes that if offender(s) are present and moving inside the Laboratory then the atmosphere will sustain life. It assumes that 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.
60
Who can call a landslide in clab lab?
Any member of the Initial Entry Team.
61
Definition of emergency
| Hazardous Substances & New Organisms Act 1996, Section 135
Hazardous Substances & New Organisms Act 1996, Section 135.
In this part of this Act, 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
The danger mentioned, arising from a hazardous substance or new organism.
62
Give examples which indicate large scale commercial cultivation
(i) Volume of cannabis found in the defendant’s possession;
(ii) Admissions made by the defendant;
(iii) Intercepted communications;
(iv) Observation evidence, particularly over extended periods;
(v) Significant cash holdings and/or movements;
(vi) Evidence, including records, of proposed and/or actual sales;
(vii) Evidence of an extensive and sophiscated ongoing operation involving regular crop rotation;
(viii) Evidence of extensive crop yields;
(ix) Expected evidence at trial of co-offenders (ie taken after plea and sentence), informants or other Crown witnesses
VACOCIC - Volume, Admissions, Communications, Observations, Cash, Informants, Crops
63
Section 16 of Bail Act
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.
The Judge must be satisfied by the defendant that they will not commit drug related offending whilst remanded on bail
64
Definition of dealing offences, as per the Bail Act 2000
Section 3 Bail Act 2000
(a) any offence against Section 6 or Section 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)
65
What are the statutory limitations for filing charging documents for drug charges?
Section 28(a) allows you to file charging documents at any time for certain offences; dealing (s6), cultivating (s9), aiding offences against corresponding law in another country (s10).
Section 28(b) limits the period for any other offence against the Act. A charging document must be filed within four years, after the date on which the offence was alleged to have been committed.
66
What evidence should you look for in a search warrant involving controlled deliveries
```
Track and trace receipts
Correspondence
Computers, faxes and cellphones
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
```
TECPPPEF
tracking receipts, emails, correspondence, packaging, passports, PO box, electronics, financial records
67
Signs of a clan lab (exterior and interior)
FRESCOWS
- Chemical odours, coming from the building, rubbish or detached buildings. The odours can be sweet, bitter, ammonia or solvent smells.
- Exhuast 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.
- baking dishes w chalky residue
- coffee filters
- distilled water
FRESCOWS - Frequent visitors, Rubbish, Exhaust running all the time, Security and surveillance installed, Chemical odours, Occupants are secretive/paranoid, Windows are blacked out, Smokers are the only people you see outside.
68
Give some clan lab safety considerations
- 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 spark or friction. Do not re-enter premises.
DO - leave/ evacuate
DON'T 'do anything SUUSS' - Stop, Shut off, Smoke, Use senses, Use transmitting equipment
69
Discuss things you must do for initial action at clan labs where a child is located
- Remove the child from scene. the
- Assign an officer to look after the child
- Provide age appropriate explanations to the child
- Photograph the child at the scene.
- Record the physical condition and mental condition of the child
- Assessment of the child by ambulance staff for injury, illness or respiratory distress.
- Decontamination as appropriate
- Place the child in a Tyvek suit or having them wrapped in a blanket
- Consider securing the clothing worn by the child or YP as an exhibit.
- Preliminary interview of the child
- Request OT attendance
- Distribute PPE to OT staff, together with a Decontamination Kit for CYPs’
- Inform the Social Worker of the power/authority used to remove and detain the child before placing them in the custody of OT
- Furnish the Social Worker with a copy of the s39 warrant or a copy of the completed s42 placement form.
- Brief the Social Worker of any relevant information gained from the preliminary interview, including any known medical conditions or medications required, and or health and safety concerns
remove them, assess OT, medical assessment, preliminary interview
70
Discuss things to cover in initial interview with C/YP at clan lab
- Basic health questions such as: headaches, nausea, breathing difficulty, dizziness, fatigue etc.
- The occupant’s details.
- Details of other siblings, children or YP’s at the address.
- The sleeping arrangements.
- The playing and eating areas.
- School or pre school details.
- The name of their doctor.
- Knowledge of drugs, manufacturing, dealing activities.
71
What are the steps for using certificate of analysis instead of calling ESR analyst to give evidence
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.
s31(3)(a) of the MODA75 says that the defendant must be given a copy of the analyst’s certificate, and written notice that the analyst will not be called, at least 7 clear days before the hearing at which it is to be presented as evidence. If they do not wish to accept the certificate as evidence, the defendant has to give notice in writing, at least 3 days before the hearing, that they wish the analyst to be called as a witness by the prosecution.
72
What offence is this and what are the elements:
Section 6(1)(a), MODA 1975
```
Section 6(1)(a), MODA 1975
Import/Export controlled drug
```
- import into NZ OR export from NZ
- any controlled drug
73
What offence is this and what are the elements:
Section 6(1)(b), MODA 1975
```
Section 6(1)(b), MODA 1975
Produce OR Manufacture and Controlled Drug
```
- produce OR manufacture
- any controlled drug
74
What offence is this and what are the elements:
Section 6(1)(c), MODA 1975
```
Section 6(1)(c), MODA 1975
Supply/Administer/Offer to supply or administer Class A or Class B Controlled Drug
```
- supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
- any Class A controlled drug OR any Class B controlled drug
- to any other person
75
What offence is this and what are the elements:
Section 6(1)(d), MODA 1975
```
Section 6(1)(d), MODA 1975
Supply/Administer/Offer Class C Controlled Drug to any person under 18 years of age
```
- supply OR administer OR offer to supply OR offer to administer OR otherwise deal in
- any Class C controlled drug
- to a person under 18 years of age
76
What offence is this and what are the elements:
Section 6(1)(e), MODA 1975
```
Section 6(1)(e), MODA 1975
Sells/Offers to Sell Class c Controlled Drug to persons of or over the age of 18 years
```
- Sell OR offer to sell
- Any Class C controlled drug
- to a person of or over the age of 18 years
77
What offence is this and what are the elements:
Section 6(1)(f), MODA 1975
```
Section 6(1)(f), MODA 1975
Possession of a Controlled Drug for Supply / Administer / Offer / Sell
```
- have in his possession
- any controlled drug
- for any of the purposes set out in paragraphs (c), (d) or (e)
78
R v Cox
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is awareness by the accused that the substance is in his possession and an intention to exercise possession
79
Section 2, MODA - define possession
For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.
80
What does section 6(6) of MODA say about presumption for supply?
A person is presumed (until the contrary is proven) to be in the possession of a CD for any of the purposes set out in 1(c), (d) or (e), if they are in possession of the CD in an amount, level or quantity at or over which the CD is presumed to be for supply
81
Define offers
Express readiness to do something on behalf of another person
The prosecution must prove two elements
- the communication of the offer (actus reus)
- the intention that the other person would believe this offer to be genuine (mens rea)
R v During
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.
82
What are the elements of conspiracy to sell drugs
Conspires
With any other person
To deal with any controlled drug
A conspiracy is an agreement between two or more people - there is agreed intent to commit the offence
The conspiracy is complete when the agreement is made with intent to commit the offence
83
Give examples of Class B drugs
Amphetamines, MDMA, Morphine, pseudoephedrine, ephedrine, GHB, Cannabis oil
84
Give examples of Class C drugs
Cannabis plants and seeds, BZP, analogues
85
Give the presumptive amounts for drugs
0.5g - cocaine and heroin
3.5mg - LSD
5g - meth, MDMA and cannabis oil/resin
28g - cannabis (or 100+ cigarettes)
56g - if the drug is not otherwise specified
86
What are the penalties for crimes against 6(1) MODA 1976
```
Life - class A
14 years - class B
8 Years - class C
```
87
During the intel phase for a controlled drug delivery, what tasks should be considered?
Profile the package
Profile the delivery address
Profile the addressee
Observation post
88
What initial actions should Polie take where notified by Customs that drugs have been located in a package, and Police intend to conduct a controlled delivery?
Appoint roles
Liase with customs
Consider electronic interception
Request customs manipulation of track and trace
Contact specialist squad (surveillance, CMS)
Plan operation
89
What initial actions should Police take where notified by Customs that drugs have been located in a package, and Police intend to conduct a controlled delivery?
Appoint roles
Liase with customs
Consider electronic interception
Request customs manipulation of track and trace
Contact specialist squad (surveillance, CMS)
Plan operation
90
What are the 3 type of clan labs
Extraction
Conversion
Synthesis
91
What are chemical and physical risks of clan labs?
Chemical
- fire/explosion, inhalation/ingestion/exposure to chemicals
Physical
- armed offenders, explosives, traps, electric shock
92
Give 4 safety considerations for planned entry into a clan lab
- Is this an active or inactive lab
- number of offenders present
- proximity to other persons and property
- type and size of lab
93
What are symptoms of clan lab exposure?
headaches
watery, burning eyes
nausea
burning itchy skin
94
What is the minimum level of PPE for a planned entry to a clan lab?
```
fire retardant overalls
fire retardant coveralls
boots
fire resistant gloves
balaclava
```
95
What do Sections 136 and 137 of the Hazardous Substances and New Organisms Act give enforcement officers power to do
136 - an EO can declare an emergency under this Act if they have RGTB an emergency exists, and no other emergency under any other enactment has been declared
137 - when an emergency has been declared, the EO may
- enter the scene at any time
- direct people to leave the scene
- direct people to stop any activities that may contribute to the emergency
96
What is the bail application process for drug dealing?
Application for bail made in front of judge
OC case forward bail instructions to prosecutor
If bail opposed, explain why
judge can remand until CRH / when appropriate
97
Give 4 ways to evidence large scale dealing
admissions by defendant
sophistication of equipment
volumes of precursor materials
evidence of chemical purchases
98
Section 31(2) of MODA refers to the delivery of exhibits to ESR, to enable the later use of an analysts certificate
what are the 2 ways you can deliver drugs to ESR so an analysts certificate can be used
- in person to the analyst, who will issue the certificate
| - by registered post / courier, in a sealed, signed package to an employee authorised by the analyst
99
Define surveillance device
A device which assists and enhances your normal capabilities to carry out surveillance; any electronic, mechanical, electromagnetic or optical instrument, apparatus, equipment or device capable of being used to record or observe private activity
It may be one or more of the following
- a visual surveillance device
- an interception device
- a tracking device
100
Define surveillance
Police surveillance is planned and directed activity, either open or covert, for the purposes of
- observing / recording
- tracking or ascertaining whether tampering has occurred
- intercepting private communications
101
Section 20, S & S
Warrantless entry and search of places and vehicles in relation to some MODA 1975 offences.
RGTSuspect a MODA offence has occurred
RGTBelieve it is impractical to obtain a warrant
RGTBelieve CADD will occur
Only to be used when a search warrant is impracticable to obtain, and there are reasonable grounds to believe CADD will occur.
102
Section 21, S & S
The power to search a person in a place or vehicle while conducting a section 20 search.
103
Section 22, S & S
Warrantless power to search for controlled drugs and precursor substances if an offence is suspected against MODA 1975.
Search person in public place if RGTB they have drugs/precursor.
104
Section 48, S & S
Surveillance Device Warrant need not be obtained in some situations of emergency or urgency
You may use a SDW for a period not exceeding 48 hours (from the time of first use), if you have grounds for an SDW and it is impracticable in the circumstances to get the warrant immediately
The circumstances are:
- RGTS an offence 14+ has, is or will be committed and RGTB evidential material will be gained through surveillance
- RGTS threat to life under S14 and RGTB that surveillance will prevent this
- RGTS an Arms Act offence and RGTB the surveillance is necessary to effect the seizure of arms
- RGTS a Category 3 or 4 Arms Act offence has, is or will be committed and RGTB the surveillance will obtain evidence of this offending
- RGTS an offence against MODA and RGTB evidence will be obtained through surveillance
Any officer using a device in accordance with this section may
- use reasonable force to install the device
- access electricity to install the device
- enter any premises, are or vehicle
- break open or interfere with any vehicle or other thing
- temporarily remove a vehicle or thing and return it
105
Section 121, S & S
Stopping vehicles with or without warrant for the purpose of search
You may stop a vehicle with or without warrant to exercise a power under the Act
106
What three elements must be proved for a charge under s12A(1)?
- that the defendant has supplied, produced or manufactured 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
107
What three elements must be proved for a charge under s12A(2)?
- 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
108
Outline s46, Search and Surveillance Act 2012. (Activities for which SDW required)
Apart from the exceptions in s47 and 48, a surveillance device warrant is required for:
- use of interception device to intercept private communication
- use of tracking device, except where it's installed solely for ascertaining whether a thing has been opened, tampered with AND installation doesn't involve trespass
- observation of private activity in private premises and any recording of it with visual surveillance device
- use of surveillance device that involves trespass
- observation of private activity in curtilage of private premises and any recording of it exceeding 3 hrs in 24 hr period OR 8 hrs total.
109
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what is the difference in standard of proof?
```
MODA - RGTB and NOT arrested. Must be class A or B. Can be requested by any member of Police or Customs. The medical examiner is one approved by Commissioner of Police or Chief Executive of Customs
The medical examiner is nominated for the purpose by Constable
```
S&S - Under arrest for offence against s6, 7 or 11 of MODA. RGTB person has secreted within body any property that may be evidence of the offence. Any class of drug. Constable only can request. The medical examiner is nominated by the Constable
110
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what are the differences in detention time limits?
MODA - 7 days. Renewable in periods of 7 days to maximum of 21 days.
S&S - If suspect fails to permit and the Court satisfied there are reasonable grounds then bail may be declined and order made for detention in Police custody, until earlier of: 2 days after day on which exam required OR person permits exam.
111
How does the S&S Act define drug dealing offence?
At what point does dealing become large scale?
Any offence against s6, MODA which involves Class A or B drugs.
More than 5 times the presumption threshold.
112
Outline the key time limits for filing of charging documents from s28, MODA 1975.
s28(a)
Can file charging documents at any time for dealing, cultivating, aiding offences against corresponding law in another country.
s28(b)
Limitation for any other offence is 4 years after the date on which the offence was committed.
113
A certificate of analysis may be produced in Court instead of calling oral evidence. The certificate is only admissible evidence if...
- Defendant is served with copy of analyst's certificate and written notice that they won't be called at least 7 clear days of hearing
- Defendant does not at least 3 days before hearing give written notice that analyst be called
- Court does not request oral evidence of analyst.
There certificate can be delivered to a member of the defendant's family or solicitor
It must be dated at least seven clear days before the hearing
It must be proved to have been served either by oral evidence or a constable's endorsement
114
What is s12(1), MODA 1975?
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.
115
Outline s16, MODA 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.
Relates specifically to obstructing anyone who is executing powers pursuant to the MODA 1975.
116
What needs to be proved in regards to the delivery of drugs to ESR?
- the name of the person to whom delivered
- the recipient was a person who works in an approved laboratory and who is authorised by the analyst in charge at that lab to receive it
- the package was sealed
117
In what situations MUST the privilege under s64, Evidence Act 2006 be disallowed?
In what situations MAY the privilege under s64, Evidence Act 2006 be disallowed?
In what situations does privilege NOT APPLY
MUST - Where there is a prima facie case the information was given for a dishonest purpose or to enable or aid anyone to plan or commit an offence.
MAY - Where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.
NOT APPLY - Where the person is called as a witness
