Drugs Flashcards
Saxton v Police
Import includes “to introduce from abroad or cause to be brought in from a foreign country”
What is the definition of importation?
Any goods, means the arrival of the good in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand
What are four ways drugs can be brought into NZ?
- concealed in or on their person or in their luggage
- have another person (mule) bring the drugs in
- send or have drugs sent by international mail or courier
- conceal drugs inside legitimate goods e.g. in shipping containers
What is the story behind Saxton v Police?
Saxton sent a parcel to himself from London to Dunedin containing cannabis resin. Customs intercepted it and he was charged with importation. The court of appeal held that import includes “to bring in” but it also has a wider definition
What section is importing?
6(1)(a)
When does importation start and when does criminal liability arise in relation to importation?
- Importation begins at the point of origin and continues until the drugs have reached their destination
- Criminal liability arises as soon as the drugs cross the NZ border even if the drugs are intercepted by customs
R v Hancox
Bringing the goods into the country, i.e. importing them exists from the time the good enters NZ until they reach their immediate destination, when they have become available to the consignee or addressee.
In relation to importation, what does the Crown need to prove?
- the defendants conducts contributed to the actual importation of the drug
- the defendant knew about the importation AND
- knew the imported substance was a controlled drug AND
- intended to cause importation
What is wilful blindness?
Deliberately turning a blind eye to the facts. Deliberately refraining from making further inquiries or confirming their suspicion in order to remain ignorant
R v Martin
What is the definition of New Zealand under the customs and excise Act 2018
The land and the waters enclosed by the outer limits of the territorial sea of NZ. The outer limits of the territorial sea is 12 nautical miles form the land mass of New Zealand
What is the definition of ‘Any controlled drug’
Any substance, preparation, mixture or article specified or described in schedule 1, 2,3 to this act and includes any analogue
What is a controlled drug analogue?
Any substance other than the exceptions specified in the definition, with a structure substantially similar to a controlled drug. A substance that has similar dangerous effects but that is not specifically listed in schedules in the act
In relation to a drug analogue, what does it not include?
- Any substance specified or described in schedules 1 or 2 or parts 1-6of schedule 3 in Moda
- Any pharmacy only medicine, prescription medicine or restricted medicine within the meaning of the medicines Act 1981
- An approved product within the meaning psychoactive substances Act 2013
What class is a drug analogue?
It will always be Class C no matter which drug it resembles
What are 5 examples of Class A drugs?
- methamphetamine
- cocaine
- heroin
- lysergide
- AMB-FUBINACA
For class A B and C what is the risk to individuals and society?
A=very high risk
B=High Risk
C=Moderate
What are five examples of a class B controlled drug?
Cannabis oil MDMA pseudoephedrine Ephedrine Amphetamine
What are four examples of a class C controlled drug?
Cannabis plant
Cannabis seed
BZP
Controlled drug analogues
What are the exceptions for the importing of ‘any controlled drug’
Controlled drugs listed in part 6 of schedule 3
R v Strawbridge
Guilty knowledge. It is not necessary for the crown to establish guilty knowledge on the part of the defendant. Guilty knowledge will be presumed unless the defendant can prove beyond reasonable doubt that they honestly believed on reasonable grounds that their act was innocent i.e. growing cannabis plants but not knowing they’re cannabis
If the defendant makes a mistake as to the nature of the drug what happens?
Section 29 states that it would not be a defence that the defendant believed the drug was a different substance to what it is
R V Emerali
There serious offence of possessing a narcotic does not extend to some minute amount and useless residue of the substance
Do you have to prove the quantity of the controlled drug is useable?
Under section 29A is is not necessary to prove it’s usable unless the defendant brings it up as an issue
What is the section for producing and manufacturing?
6(1)(b)
R v Rua in relation to producing and manufacturing
That producing and manufacturing are not two separate and distinct crimes they should be read as complementary terms
R v Rua
The words produce or manufacture broadly cover the creation of controlled drugs by some form of process which changes the original substance into a controlled drug
What is the definition of produce?
To bring something into existence from raw materials or elements and includes compound
What is the story behind Re Parke?
The defendant was charged with producing psilocybine when he crushed magic mushrooms and put the powder into capsules. This did not count as producing as he did not ‘bring something new into existence’
Does the separating of component parts count as producing?
Yes. Think of the process of separating cannabis oil from cannabis plants
What is the definition of manufacturing?
The process of synthesis, combining components or processing raw materials to create a new substance
When is the offence of manufacturing complete and what is the case law that relates?
Once the prohibited substance is created whether or not it’s in a usable form.
R v Rua - methamphetamine is suspended state is a two layered liquid. It can’t be used in this state but it is meth
Section 29B deals with producing cannabis preparations, what does this include?
Cannabis preparations is subjecting the plant to a process that renders it unrecognizable as a plant such as cannabis oil or brownies.
What class drug is cannabis preparations?
Class B. It is up to the prosecution to prove that the preparations include tetrahydrocannabinol
What is the definition for supply?
To furnish or provide something that is needed or desired and includes distribute, give and sell
Supply includes more than just handing the drugs over, what is it?.
It includes conferring on the recipient the ability to use the drugs for their own purpose
R v Maginnis in relation to supply?
Holding drugs for a friend and expecting that at some stage they will collect them is enough to satisfy supply because it restores the friends ability to use the drugs for their own purpose
What does distribution mean and what is the case law that relates?
Distribution means to supply drugs to multiple people and can include joint owners
R v Donald
What is the definition of giving?
Handing over or in some other way transferring and item to another person. The act of giving is complete when the recipient accepts possession or when the drug is placed under the control of a willing recipient
What is R v Knox?
Safe keeping of drugs with the intent to return it back to the person is enough to count as giving
What is held in R v Wildbore?
Left a key for a joint owner of LSD to access the shed whenever they wanted. A passive custodian who relinquishes custody of a drug to meet the needs of another is enough to have intent to supply
When does a sale occur?
When drugs a quantity or share of drugs are exchanged for some valuable consideration
What is the definitions of administering?
Introducing the drug directly into a person’s system. To direct and cause a drug to be taken directly into the system
What are three examples of administering?
- Injecting someone with heroin
- slipping a date rape drug into a drink without the person’s knowledge
- heating cannabis resin between two knives while someone inhales the smoke
What are the two elements of offering to supply or administer?
- communicating the offer (Actus Reus)
- an intention that the other person believes the offer is genuine (mens Rea)
What must an offer to supply or administer do?
Arouse a person’s interest in the drug or tempt another person to use them
What is 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 person a controlled drug
What are the four things found in R v Brown?
The defendant is guilty of offering to supply in the following circumstances;
- offers to supply a drug they have on had
- offers a drug they will get in the future
- offers a drug they mistakenly think they can get
- offers a drug deceitfully knowing they will not supply that dryg
If a defendant deceitfully offers a drug with the intent to rip them off (selling sugar instead of meth) what will sentencing be based off?
The equivalent dishonesty offence
What are the four things in R v Marr and Wilkinson?
-Offering to supply is to be given it’s ordinary meaning
-more than one person may be guilty of ‘offering to supply’s in any one transaction
-an intermediary/agent may be guilty of offering to supply or could be a party as per section 66 CA 1961
-offers to supply under 6 and 7 of MODA can include an offer to arrange for someone else to hand over the drug
-
R v Brown
The making of an intimation, with the Intention that is should be understood as genuine offer, is an offence
What does the Crown need to prove in relation to an offer to supply?
The defendant intended the offer was interpreted as genuine but do not need to prove they had the ability to supply the drugs
What is the definition of otherwise deals in?
Drug dealing other than distribution, giving, selling, administering, offering to supply or administer.
What is the example in ‘Hooper and another’ ?
Otherwise dealing could mean a barter or exchange
To any other person?
A person is proven by circumstantial evidence and judicial notice
R v Forrest and Forrest?
The best evidence possible needs to be given by prosecution to prove the victims age
R v Clancy?
Victims birth certificate was not produced but the victims mother gave evidence as to the victims age
R v Cox in relation to possession?
Physical element- physical custody or control over the drugs
Mental element - knowing that they are in possession, that it is a controlled drug and intend to exercise possession
What is potential custody or control?
Can include things in their possession or something subject to their control i.e. storing drugs at a friend’s house where they can exercise their control
Lockyer v Gibb
A person cannot be in possession of something is they do not realise it is in their possession
R v Cruze?
Proof that a substance is cannabis is not limited to scientific evidence. If the material is not recovered and the defendant admits to police that they thought it was cannabis, circumstantial evidence would be sufficient to prove identity of the substance
What is knowledge and intention?
Know they’re in possession
Know the substances nature or qualities
Intend to use the substance in a way that allows you to charge them with possession
Police v Rowles (lack of knowledge)
A person cannot knowingly be in possession of something which they mistakenly but honestly believe they do not possess
Martin v Police
Lack of knowledge because of a memory lapse. It needs to be established that the defendant had completely forgotten about the drugs or that the drugs were just not at the forefront of the defendants mind
Joint possession
Where one or more person’s has access to a saleable amount of drugs they can be jointly charged with possession. You must prove a shared intention to sell
R v Rees?
If you cannot prove a combined intent to sell, you should file separate charges for possession
R v Searle?
Where a common stock of drugs exist that multiple people can take stuff from they can be in common possession. However a common pool or joint enterprise must be established it cannot only be the others knew of the drugs
Is attempted possession an offence and what is the case law?
Yes, it is a charge that covers someone obtaining something with the mistaken belief that it is a drug
-R v Jay - he obtained hedge clippings believing it was cannabis
What must the Crown prove in drug possession cases?
- Knowledge the drug exists
- knowledge it is a controlled drug
- actual physical control or some degree of control over it
- intention to possess it
Define intention
A deliberate act with intention to produce a prescribed result
R v Collister
Circumstantial evident where an offenders intent can be inferred;
- words and actions before during and after
- surrounding circumstances
- nature of the act itself
How do you prove intent in drug cases?
- admissions
- cicumstantial evidence (packages, scales, ticklists, cash)
- presumptive amount
What is section 6 of MODA?
Presumptive amount
With the presumptive amount what must the person that was in possession prove?
On the balance of probabilities that they did not intend to commit a dealing offence. I.e. they are heavily addicted and it was for personal use
R v Hooper
In relation to class C controlled drugs the charge should be specified based on the evidence produced, like sale, supply or dealing
R v Tracy
Class C drugs only where the purpose for possession cannot be proven or is uncertain the charge should be drafted in the alternative
R v Paterson
Where there is no evidence of supply or intended supply to any person under 18 years of age the charge should use the words ‘for the purpose of supply’
Where the Tracy formula is used what does the defendant need to prive
On the balance of probabilities that they did not intend to supply, administer or sell
Give 5 examples of presumptive amounts listed in schedule 5
- Heroin .5grams
- cocaine .5grams
- meth 5grams
- cannabis resin 5grams
- cannabis plant 28grams or 100 or more cigarettes
If a drug is not listed in section 5 the presumptive amount is 56 grams
What is the section of conspiring to deal with controlled drugs?
6(2A)
What is a conspiracy?
An agreement between two or more people to form a common intention to commit the offence
R v Johnston
The use of NZ customs and postal service by the conspirators in posting cannabis resin from England to NZ was enough to bring the matter into NZ jurisdiction
R v Greenfield
The conspiracy is complete once the agreement has been made
R v Lambert
There can be a conspiracy if one person agrees to supply another
What is the penalty for 12A (1) and 12A (2)?
1 is 7 years imprisonment
2 is 5 years imprisonment
For charges under section 12A(1) what must the Crown prove?
The defendant supplies, produced manufactured equipment, material or precursors
Those items are capable of being used to produce or manufacture controlled drugs or cultivate prohibited plants
The defendant knows they can be used for that purpose by another person
What are examples of equipment capable of being used to produce or manufacture?
Glassware, condensers, heating mantles or pots, lights, timers, water pumps
Define ‘material’ in relation to supplying equipment under 12A(1)
Anything that cannot be classed as equipment it could be documents with instructions, fertilizers nutrients or chemicals that aren’t precursors
What is the definition or precursors?
Forerunner, the thing that comes before something else. The starting point in the chemical process
What are examples of precursors in schedule 4?
Acetic anhydride (heroin) Lysergic acid (LSD) Ephedrine and pseudoephedrine (meth)
Ephedrine and pseudoephedrine are class B (schedule 2) and precursors in schedule 4
Define knowing
Knowing or correctly believing. You can believe something wrongly but you cannot know something that is false
Kerr v R
The term knowing for the purposes of 12A(1) was encapsulated by the more precise word of believing
What are the ingredients for 12A(2)
-Posession of equipment/precursors etc
- Has in his or her possession
- Equipment or material etc
- precursors
- intent that it is to be used etc
Ingredients for 12A(1)
Supplies equipment/precursors etc
- supplies or Produces or manufactures
- any equipment ormaterial capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9
- precursor substance
- knowing that equipment, material or substance is the be used in, or for the commission of an offence against 6(1)(b) or section 9
Under 12A(2) what are the three elements the crown must prove
- The defendant has equipment, material or precursors in his possession
- those items are capable of being used in the production or manufacture of controlled drugs or cultivation of prohibited plants
- the defendant had the intention those items are to be used for that offence either himself or another person
Moore V Police
In section 12A(2) offences it must be proves that the defendant intended the items to be used sometime in the future
What activities doe supplying a drug include?
Distribution, giving or selling
What two elements must prosecution prove in relation to offering to supply?
The words that convey an offer
An intention by the defendant that the offer is perceived by the other person as genuine
What is section 9 of MODA? And what is the penalty?
Cultivation of prohibited plants, max 7 years
What is section 12 and what is the penalty?
Allowing premises or vehicle to be used in the commission of an offence of MODA. Penalty 10 years class A, 7 years class B, and 3 years any other circumstance
What is a defence under section 9 or MODA?
Of the person charged proves that the prohibited plant was of the species papaver somniferum and that it was not intended to a source of a controlled drug or not being developed as a strain which a controlled drug could be produced
What is section 16 of MODA?
Obstructing ANYONE who is executing powers pursuant to MODA. Any person who wilfully obstructs, hinders, resists or deceives any other person in the execution of any powers conferred on that person pursuant to this act
Ulrich v Police
Obstruction is an action complained of makes it more difficult for the police to carry out their duties. Words alone,provided they are uttered in circumstances under which they are believed can amount to obstruction
What can you do if during a search warrant you find prescription medicines or medicines that are unnamed or unlabeled bottles or packets?
Be aware of the offences under sections 43 44 and 45 of the medicines Act 1981
Is possession of a needle or syringe an offence?
No but if it contains a useable amount of a controlled drug then you can charge with possession of controlled drug
What must you prove in relation to a section 9 offence?
The identity of the suspect and that he or she cultivated cannabis
What is the difference between MODA obstruction and SO obstruction?
Moda obstruction is specifically set out for people acting in the execution of powers under MODA
Under section 12 of MODA amendment act 1978, what is polices role?
The power to undertake a controlled delivery is only given to a customs officer. Police support customs in a controlled delivery and if it’s successful police arrest and prosecute the offender
Where do the best opportunities for controlled deliveries come from?
Customs staff detect unaccompanied goods in freight, unaccompanied baggage, unaccompanied motor vehicles and international post items
What are the two options for a controlled delivery?
- Clean controlled delivery, where all drugs are taken from the package and the risk is less.
- leave an amount of the drug within the consignment to enable an option to charge the offender with possession for supply. This option is riskier.
What is the priority when deciding which method of controlled delivery?
Seizure of the drugs is the priority. Sometimes it is not possible to substitute a portion of the drug or all of the drugs
What roles should you assign when you get a notification of a controlled delivery?
Oc file Oc investigation Oc exhibits Oc phones/interception Customs liaison officer
What is step 2 of initial action in relation to a controlled delivery?
Liaise early with customs o/c exhibits and where necessary take control. Provide advice on handling etc as being the lead Investigation agency exhibit handling has to be done properly
What is step 3 in relation to a controlled delivery?
Consider an interception phase. It must be an offence under section 6 of MODA or an identified offence in the psychoactive substances act 2013. If it’s not in these categories you will not get an electronic interception approved
What is step 4 in relation to a controlled delivery?
Request customs manipulate the trace and trace system. It’s unlikely that a person will pick up or accept the package if they know it’s been intercepted by customs
What is step 5 in relation to a controlled delivery?
Contact the following services ASAP;
- surveillance
- Photography
- crime monitoring centre (CMC)
- technical support unit (TSU)
Customs have their own technical unit CTU but sometimes TSU might have to work in conjunction with them
What is step 6 in relation to a controlled delivery?
Planning the operation
Make op orders
Roster staff
During the intel phase of a controlled delivery, what are the three things?
Profile the package
Profile the address
Profile the adressee
How do you profile the package?
Consider the sender details
- any phone number attached or accompanying documentation
- DNA, fingerprints
- multiple packages including dummy runs to target address
- IMEI or sim information undertaken at an early stage
How do you profile a delivery address?
- occupants
- owner/rate payer details city council
- HNZ
- electricity/gas suppliers
- landlord/owner of property
- CHIS
How do you profile the addressee?
Real person or false name?
Suspects knowledge around covert enforcement techniques
Financial profile
Risk assessment
How to identify a good OP for the address?
Consider friendlies (family friend of officers) and consider
- SDW
- Do we need to staff the OP?
- Does the OP need a camera?
Under section 46 S&S what are the requirements?
- Observations of private activity in private premises and recording that activity with visual surveillance device
- use of SD that involves trespass to land or goods
- Observations of private activity in the curtilage of private premises and recording of that with a VSD -duration
When you have identified an OP you must profile it, list four things you need to do
- Assess proximity to the target address, close enough to be effective and far enough to be unobtrusive
- Unobstructed line of sight to target address
- Phone lines available in street
- access from street without arousing suspicion
What checks do you do when profiling occupants of an OP?
NIA for convictions and associates Employment Credit checks power account CUSMOD checks
What are things to consider when approaching occupants of your potential OP?
Cover story
Protection of identity
Room available 24/7
Preferably no children
Preferably no visitors for duration of investigation
Thank you at the end of the investigation
What are the steps you take when repackaging a package for controlled delivery
- Liaise with CTU
- Consider options for repackaging such as tracking devices, audio device dye trap, covert marking.
- Seek advice from document examiner in relation to recreating the packaging
- leave appropriate quantity of drug and replace the rest with something similar
- photograph package layer by layer, use scale rule and photo labels
What are examples of evidence you could find in relation to importation
- track and trace receipts
- correspondence
- emails
- contact lists/numbers
What are the key things that will ensure a successful controlled delivery?
Control and risk management with the key element being communication.
Ensure the roster has 24 hour coverage, staff at the forward OP and deploy SV, crunch teams with TSU/CDIU monitors for mobile audio and tracking
What are four methods of delivery?
- reintroduce to postal system
- delivery by courier company
- police/customs staff pose as postie/courier
- consider recording the interaction
What should you consider if a delivery is for a PO box?
An opening device and camera watching the PO box
What to consider if the addressee is not at the delivery address?
Leaving package at the door or letter box
Attempting delivery later
Leave a card to call
What to do if the addressee accepts the package?
- monitoring audio/tamper devices and crunch when package is open
- decide length of time to hold cordons
- staff/resources
- other operational commitments
What to consider if the package goes mobile?
- control, communication and risk
- proximity of tracking/monitoring vehicles to target
- crunch cars out of mix to let SV do their shit
- neednfor repeaters to ensure no loss of communication
What to consider if the package goes mobile without the target or vice versa
- control communication and risk
- splitting resources and SV
- keeping obs on package location at all times to avoid loss of evidence
What section contains an emergency power of entry, search and seizure specifically relating to controlled deliveries
Section 81 S&S
What is section 121 S&S
Power to stop a vehicle if you have a SW or intend to use a warrantless search power
Section 9 S&S
Stop a vehicle to arrest a person
What are the two categories of a tracking device?
- Something that helps ascertain the location of the thing being tracked
- device for detecting if a thing has been handled or tampered with, this only requires a SW when the installation involves trespass on land or trespass to goods
Why is an early notification to TSU essential?
- allow for secure installation in tight timeframe
- discuss operational requirements to ensure correct device is used
- obtain SDW if time permits and it is believes the tracking device cannot be retrieved within 48 hours
- Ensure TSU Staff are fully briefed
If an audio device is installed in the delivery, what do you need to be aware of?
- a SDW is required to intercept private communication
- by law an audio device can only be installed by police members which is normally TSU
- the audio device must be monitored even when it is mobile
- allow sufficient time for the device to be installed. This is case by case
Do you use GPS evidence in Court?
Try not to so it can remain a covert tool
When is a SDW required for a tracking device?
Section 46;
(b) - use of a tracking device except where the device is used solely for ascertaining whether a thing has been opened or tampered with or in some way dealt with and the installation does not included trespass to land or goods
(d) - use of SDW that involves trespass to land or goods
What are the requirements for section 48 (2) (e)
RGTS that an offence has been, is being or is about to be committed in relation to specified drugs in schedule 1, part 1 of schedule 2, part 1 of schedule 3 of MODA or a precursor substance in part 3 of schedule 4 of MODA And
-to believe that use of a SD would obtain evidential material in relation to the offence:
The officer has RGTB that a person is in possession of 1 or more of the things in 81(2)(a) to (d) AND
-Believe that the use of the SDW is necessary to facilitate the things seizure
Section 23 of S&S relates to internal searches of who?
Person’s under arrest pursuant to sections 6,7 or 11 of MODA 1975 and relates to class A,B and C Drugs
What is section 13A of Misuse of drugs amendment act 1978?
Relates to people you have reasonable cause to believe is concealing Class A or B controlled drugs but are NOT under arrest
What is section 19 of S&S
You can search any person found in or on a place or vehicle if the SW is issued under section 6 in relation to an offence of MODA
Section 20 S&S
RGTB impractical to get a SW
Will locate drugs from schedule 1, part 1 of schedule 2, part 1 of schedule 3, precursor mentioned in part 3 of schedule 4
RGTS an offence against MODA has been, is being or is about to be committed And believe if delayed CADD will occur
Section 21
If searching under 20 you can search any person found in or on the place or vehicle
Section 22 S&S
Search of a person same as 20
Powers under section 81
If a constable or customs officer is executing their power under section 12 of misuse of drugs amendment act 1978 they may without warrant:
-search any person involved in the delivery
-enter and search any place, vehicle or craft
-seize anything they have RGTB is set out in subsection 2 a-d
If the officer has RGTB that the person is in possession or located at the place etc is a
-controlled drug
-precursor substance
-a package where a customs officer has replaced some or all of the drugs
-EM in relation to an offence 6(1)(a) or 12AB
What is the definition of evidential material?
In relation to an offence or suspected offence, means the evidence of the offence, or any other item, tangible or intangible of relevance to the investigation or offence
Define private communication?
Communication whether oral or in written form or telecommunications made under the circumstances that may reasonably taken that any party to the communication desires it to be confined to the parties of the communication But
Does not include communication of that kind where any party to the communication can ought to reasonably expect that the communication may be intercepted by some other person without have express or implied consent to do so
What is the definition of an interception device?
Means any electronic, mechanical electromagnetic, or electro optical apparatus instrument, equipment or other device used that is capable of being used to intercept or record private communication but
Does not include a hearing aid that enhances subnormal hearing to no more than normal hearing
What is the definition of visual surveillance device
Means any electronic, mechanical electromagnetic, or electro optical apparatus instrument, equipment or other device used that is capable of being used to observe or record and observe a private activity
Does not include spectacles or contact lenses that corrects subnormal vision to no more than normal vision
What is a surveillance device?
Interception device
Tracking device
Visual surveillance device
What is a tracking device?
A device that is used to help ascertain by electronic or other means
- the location of a thing and/or person
- whether the things has been opened, tampered with, or in some way dealt with but does not include a vehicle or other means of transport such as a boat or helicopter
What does surveillance include?
- observing and any recording of that observation of people, vehicles, places and things
- trackinng the location of things or a person and/or ascertaining whether a thing has been tampered with or
- intercepting private communication by use of a surveillance device
What is a serious offence in relation to trespass surveillance?
7 years or more imprisonment
Some arms Act offences
Under section 46 when is a SDW required?
Interception device
Tracking device but not when only tracking whether it has been opened tampered with or dealt with and installing the device doesn’t involve trespass or trespass to goods
Observing and recording with VSD of private activity in private premises
Trespass to land or goods
Observation of private activity in curtilage for longer than time limits
What activities do not require a SDW?
An Enforcement officer
- Being lawfully in a private premises and recording what they observe or hear (provided the use of the device does not enhance hearing of seeing)
- voluntary oral communication
- use of a SD authorised under any other enactment
Under section 48 what are the requirements?
Punishable 14 years or more
Arms act
Drugs offence
Likely to cause injury or serious property loss or damage and the use of a SD is necessary to prevent further offending
-risk to life and safety necessary as an emergency response
R v McGinty
The judge is not required to refuse the issuing of a SDW if all other methods of investigation have not yet been exhausted
Section 57 S&S
If during your execution of a SDW you come across EM in relation to another offence it will be admissable if a SDW could have been issued or a SD could have been lawfully used
What is the criteria for issuing a SDW?
RGTS an offence has been, is being or is about to 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 em about the suspected offence
-RGTB that the use of a SDW will obtain information that is EM in relation to the offence
-section 45 restrictions do not prevent the issuing of a SDW in the circumstances
Section 64 of the evidence act 2006
Grants privilege to informers that protects their identity and extends to information likely to disclose that identity
R v McGinty (CHIS)
Disclosure of the identity of alleged informants is not required under the Act and the judge was correct in deleting certain parts from the application. However the judge could insist on it being disclosed if they saw fit
Section 64, definition of informer
A person that has supplied information for any reason to any enforcement agency or to a representative of an enforcement agency about an offence and has a reasonable expectation their identity will not be disclosed
Not called as a witness by prosecution
Includes a member of police who is undercover
R v Hallett
Evidence as to the identity of the informant is excluded unless the judge concludes that it is necessary to override the rule and admit the evidence to prevent a miscarriage of justice
R v rankine
It is in the public interest that nothing should discourage the public from coming forward to provide information to the police. This also equally includes the identity of the owner of the premises where surveillance was conducted and the premises themselves
R v McFarlane
The onus is on the defendant to satisfy the courts that a good reason exists for disclosing the information. The location of the audio devices was deemed not necessary
What are exceptions to the status of being an informer?
If the person is called as a witness to give evidence by prosecution
If they’re a UC they may still have their identity protected by virtue of section 108 and 109 of evidence act
What will privilege under section 64 be disallowed?
It MUST be disallowed by the judge when there is prima facie case that the information was given for dishonest purposes OR to commit an offence
It MAY be disallowed if the judge is of the opinion that evidence of the information is necessary the enable the defendant to present an effective defence
Section 55, what should the SDW application contain?
- Be in the prescribed form
- be directed to any enforcement officer who has authority to carryout the activities in the SDW
- time period of up to 60 days
- has a condition to providing a SDW report
- condition as to privilege
What are other particulars a SDW application must contain?
- name of judge and date
- type of surveillance device
- provisions of entry and force
- EM in relating to the specified offence that may be obtained if the SD is used
Under section 59, how long do you have to write a report for the judge?
1 months from the export of the period the warrant is in force
What action can a judge take once you have completed your SDW report?
Give directions on destruction and retention of the material obtained as a result of the SDW.
Report any breaches of the conditions to the chief executive of the relevant agency
R v stack
Where a party to the communication knows an interception is taking place, this is no longer a private communication and is therefore not covered by the terms of an interception warrant
Section 63 and 64 of s&s
Retention periods for raw data
Must not be retained as part of a court record, and is deleted or erased
Who must be consulted prior to applying for a SDW
Must have the approval of the district commander and legal services must be consulted
Intercepted communications may be relevant but with held by police for what reasons
- Likely to endanger the safety of any person
- privileged information
- personal or private information
- prejudice the security or defence of NZ
Define relevancy
Relevant, in relation to information or an exhibit, means information or an exhibit, that tends to support or rebut, or has a material bearing on the case against the defendant
Barry v R
Experts can enhance intercepted communications to enable the jury to be able to understand them better
What are the first 6 things a telephone investigator should consider in the first 24 hours?
- trapping or preloading phone data
- TSP liaison
- draft a production order app early
- no SW required for emergency situations
- analysts
- proving phone ownership
What is the commissioner of polices responsibility around the interception of private communications?
That all irrelevant info be destroyed as soon as practicable and other information be destroyed as soon as it appears that no proceedings or further proceedings will be taken regarding the information
What should you consider in electronic operations?
Logistical support
Analysis of evidence
CHIS protection
Implications of disclosure and legal grounds for with holding
What are indicators of clan labs from outside the property?
- windows blackened out or curtains always drawn
- exhaust fans running at odd times
- chemical odours, they can be sweet, bitter, ammonia or solvent smells
- frequent visitors at odd hours
What are indicators of clan labs from inside?
- laboratory glassware, equipment and documents
- hot plates near chemicals
- used coffee filters with a white pasty or reddy brown substance
- containers with a two layered liquid, one dark colour and one clear or pale yellow layer
What should you do if you discover a clan lab?
- leave the area immediately
- never touch taste or smell anything
- do not re enter the premises
- do not smoke in or near the clan lab
- do not attempt to stop the chemical reaction, this may cause an explosion
What symptoms should you look out for as a result of exposure to a clan lab?
Headaches Watery burning eyes Nausea Burning skin Coughing or choking
What are the three processes or stages relating to clan labs?
Extraction
Conversion
Synthesis
What are two types of clan lab investigations?
Planned entry and unplanned entry
What is the definition of emergency as per 135 of the hazardous substances and new organisms act 1996?
Actual or imminent danger to human health or safety OR
A danger to environment or chattels so significant that immediate action is required to remove the danger arising from hazardous substances or new organism
What category offence is a section 6 MODA offence?
Category 3
Offences against section 7 of MODA are what category and name two examples
Category 2
Possession controlled drugs
Consuming controlled drugs
What offences can a defendant elect a trial by jury?
Category three four and five
Section 139 of the criminal procedures act outlines what?
If charges are to be held together. If someone is charged with different category offences they will all be heard at the same time be it by jury high court etc
What are three examples of drug charges that will automatically be prosecuted by the crown?
6(1)(b) or (2A) produce or manufacture or conspiracy to produce or manufacture meth
Section 10 Aiding offences against corresponding law of another country corresponding to section 6,9 12A or 12B
12c commission of offences outside NZ
What are three reasons why the crown would prosecute dealing class A drugs?
Quantity of drugs is more than 5 times the presumptive amount including in combination with any other charges held
Evidence of large scale drug dealing beyond the quantity seized
The is substantial evidence derived from a surveillance device involving audio interception
What are some indications you’re dealing with large scale drug dealing?
Admissions by the defendant Intercepted communications Evidence of chemical purchases Significant cash holdings or movements Volumes of precursors in the defendant possession
What are three reasons why the crown would prosecute dealing class B drugs?
Quantity of drugs is more than 10 times the presumptive amount including in combination with any other charges held
Evidence of large scale drug dealing beyond the quantity seized
The is substantial evidence derived from a surveillance
What are three reasons why the crown would prosecute dealing class C drugs?
Evidence of large scale commercial dealing OR
substantial evidence gained from a surveillance device involving audio interception
Under section 28 of MODA what are the time limits for filing charging documents?
Dealing section 6, cultivating section 9 and aiding offences against corresponding law in other countries section 10 there are no time limits
Section 28b states that anything else is four years from the date of the offence
Section 16 of the bail act
Only a district court judge or a high court judge can grant bail. No one else
What is section 3 of the bail act
Any offence against section 6 or 12C(1)(a) of MODA in relation to class or or class B controlled drugs Also includes an attempt
What are some conditions a judge can put on a defendant under section 30 of the bail Act?
Electronic monitoring with agreement from prosecution
Any condition the judge deems necessary
What are the four stages of a bail application for drug dealing?
- Application made before a high or district court judge
- O/C to forward bail information to prosecutions and include potential bail conditions
- If bail is opposed full and detailed reasons for opposing bail,
- judge will remand defendant for crh
When a certificate of analysis is produced under section 31 of MODA what are the procedures that must be followed?
The chain of evidence is unbroken
Material to be analysed is not tampered with or contaminated
Defence lawyer is aware of the analysis and the result and it given reasonable time for defence
What are the two ways you can deliver a drug exhibit to esr?
In person to the analyst or authorised person
By registered post of courier post with signature required
What must the defendant be given when deciding how analytical evidence should be given?
A copy of the certificate AND
written notice that the analyst will not be called AND
At least seven clear days before the hearing at which it is to be presented as evidence
The defendant has to give notice in writing at least three days before the hearing that they wish the analyst to give evidence in person
