Drugs Flashcards
Section 6(1)(a)
Drug Dealing
Import into or export from New Zealand
Any controlled drug
Section 6(1)(b) MODA1975
Produce or Manufacture
Any Controlled Drug
6(1)(c)
Drug Dealing
- Supply or administer, or offer to supply or administer, or otherwise deal in
- any class A controlled drug or Class B controlled drug
- to any other person
6(1)(d) MODA1975
DRUG DEALING
- Supply or administer or offer to supply or offer to administer
- any class C controlled drug
- to a person under 18 years of age
S6(1)(e) MODA1975
DRUG DEALING
- Sell or offer to sell
- any class C controlled drug
- to a person of or over 18 years of age
S6 (1)(f) MODA 1975
DRUG DEALING
- Have in his possession
- any controlled drug
- for the purpose of supply
6(2) MODA
Sentences
2
(a) life imprisonment class A
(b) 14 years class B
(c) 8 years any other case
Import : Def
Import - the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand
Saxton v Police
To import includes “ to introduce or bring in from abroad or cause to be brought in from a foreign country.”
Criminal liability import
As soon as the drugs cross the New Zealand border you are criminally liable
(Even if the drugs are intercepted by customs)
Continues while goods are in transit until they reach the final destination. Anyone who knowingly assists in facilitating up to that point may be liable as party
R v Hancox
Importing
The bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters NZ. Importing into NZ is a process. The element of importing exists from the time goods enter NZ until they reach their immediate destination
Men’s Rea importing
Knew about the importation or was wilfully blind
Knew the imported substance was a controlled drug
Intended to cause the importation
Wilfully Blind
Proof that the defendant deliberately turned a blind eye to the facts will suffice
Controlled drug : Def
Any substance, preparation, mixture or article specified in Schedule 1,2 or 3 of the MODA and includes any controlled drug analogue
Class A drugs
- Schedule 1(Very High risk of harm)
-Cocaine - Heroin
- Lysergide (LSD)
- Methamphetamine
- Psyilocybine
Class B controlled drugs
- Schedule 2 (High risk of harm)
- Amphetamine
- Cannabis Preparations
- GHB
- MDMA
- Morphine
- Opium
- Pseudoephedrine
- Ephedrine
Class C controlled drugs
Cannabis plant/seed
BZP
Controlled drug analogues
Controlled drug analogues
- pharmacy only/restricted medicine
- an approved product within the meaning of Psychoactive Substances Act 2013
- any substance with a structure substantially similar to a controlled drug
Exceptions under 6(1)(a)
Importing related to any controlled drug irrespective of class
However the controlled drugs listed in Part 6 of schedule 3 are not included under paragraph (a)
R v Strawbridge
It is not necessary for the crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on there part will be presumed, but if there is some evidence that the accused honesty believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
Police v Emirali
“ the serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.”
Usable quantity
Depends on more than just size and weight; the nature of the drug and the condition in which it are found are relevant
(May provide circumstantial evidence of previous possession of larger quantities)
R v Rua
The words produce or manufacture in S6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug
Produce def:
To bring something into existence from its raw materials or elements
Manufacture Def:
The process of synthesis; combining components or processing raw materials to create a new substance
Produce/ Manufacture completion
The offence is complete once the prohibited substance is created, whether or not it is in a usable form
Supply def:
Distribute, give and sell
R v Maginnis
Supply involves more than the mere transfer of physical control…. It includes enabling the recipient to apply the thing… to the purposes for which he desires
Distribution Def:
The supply of drugs to multiple people
Giving
Handing over or in some other way transferring an item to another person
Selling
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration
Administering
Introducing a drug directly into another person’s system
Offering to supply or administer elements
- The communicating of an offer to supply or administer a controlled drug
- An intention that the other person believes the offer to be genuine
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
R v Brown
The defendant is guilty in the following instances
(1) offers to supply a drug that he has on hand
(2) offers to supply a drug that will be produced 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 the drug
R v Brown
Making such an intimation, with the intention that it should be understood as a genuine offer, is an offence
Possession proof
Physical element- has the drug in there custody or control ( includes potential custody/control)
Mental element- a sense of awareness that the substance is in his possession and that what is in his possession is a controlled drug
Possession- crown must prove
Knowledge that the drug exists
Knowledge that it is a controlled drug
Actual physical control or some degree of control over it
An intention to possess it
Intent
Deliberate act - specific result
R v COLLISTER
Intent
The surrounding circumstances
Nature of the act
Words/actions before, during and after
Statutory Presumption 6(6)
Person has a certain amount of drugs then it is presumed for supply
Heroin 0.5g
Cocaine 0.5g
LSD 2.5mg
Methamphetamine 5g
MDMA 5g
Cannabis resin (oil) 5g
Cannabis plant 28g (100+ cigarettes)
Where a controlled drug is not specified in schedule 5 the presumptive amount is 56grams
6(2A) MODA
Conspires
With any other person
To commit an offence against subsection (1) of this act
S12A(1) MODA
- Supplies, produces or manufactures
- Any equipment or material that is capable of being used in or for the commission of an offence against section 6(1)(b) or 9
- or any precursor substance
Knowing that the equipment, material or substance be used in or for the commission of an offence against those provisions
S12A(2)
- Has in his or her possession
- any equipment or material that is capable of being used in or for
- the commission of an offence against section 6(1)(b) or 9
- or 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
S9 MODA
Cultivates
Any prohibited plant
S12(1) MODA
Use of premises or vehicle
Knowingly
Permits any premises or any vehicle etc
To be used for the purpose of a commission against this act
Section 16 MODA
Obstruction of officers
Obstructs, hinders, resists or deceives
Any other person in the execution of powers on that other person
By or pursuant to the MODA
Section 9(4) defence
Papaver somniferum
Not intended to be a source of any controlled drug
Controlled delivery
Option 1 - clean controlled delivery (no drugs are left within consignment)
Option 2 - an amount of drugs are left within consignment
Clean controlled delivery
Adv - eliminates any risk of drugs being lost
- greater freedom re surveillance
Did adv - risk of alarming target
- only importation and conspiracy charges likely to be filed
R v Cox
Possession involves two elements. The first is the physical element, is actual or potential physical custody or control. The second is the mental element, is a combination of knowledge and intention. Knowledge in the sense of awareness by the accused that the substance is in his possession and an intention to exercise possession
Section 12 Misuse of Drugs Amendment act 1978
Special powers of police/customs
Allowing the delivery of unlawfully imported drugs for the purpose of detection etc Misuse of Drugs Amendment Act 1978
Section 81 Search and Surveillance
Searches of persons, places and vehicles relating to deliveries under section 12 of the Misuse of drugs amendment act, 1978
Controlled delivery
Initial Action
Initial action- appoint roles, liaise with customs, consider electronic interception, request customs manipulate track and trace, contact other squads (surveillance, photography, CMC and TSU), start planning operation
Controlled Delivery
Intel Phase
- profile the package
- profile the delivery address
- profile the addresses
- Observation post (place to watch address)
- OP profile and profile occupants
- Repackage controlled delivery packages
- Search Warrant and Search for evidence, Electronic interception
Controlled Delivery- Delivery
Control and risk
- Method of delivery
- Considerations
- opening device (PO Box)
- addressee not at delivery address (later, leave package in letterbox, card to call)
- addressee accepts package
(Monitor audio/tamper device, crunch when package opened, cordons, resources)
- package goes mobile (control, communication risk, tracking)
- target goes mobile without package
- written log should be maintained during this phase
Power to stop vehicle
121 - stop to search for package
SW should then be obtained or if impractical S81can be used
S9 - if suspect in vehicle and you want to arrest (package may no longer be there)
Tracking devices
- a device that allows you to ascertain the location of a person or thing
- a device used for detecting whether a thing has been handled ( this type only requires a warrant when installation involves trespass)
Surveillance Device
- interception device
- a tracking device
- a visual surveillance device
Visual surveillance device
Any electronic, mechanical, electromagnetic, magnetic or optical instrument etc that is capable of being able to observe or observe and record private activity
S46 S and S (Surveillance device Warrant)
Is needed
- intercept private conversations
- track people/ things
- observation of private activity in private premises
- use of surveillance device that involves trespass
- private activity on curtilage of private premises if exceeds below
Not needed
- Tracking Device that is only used to advise of handling and no trespass
- private activity on curtilage and time doesn’t exceed
3 hours in 24 hour period
8 hours total for the investigation
Situations of emergency
S48 S and S
RGTS - offence has/is/will be committed in relation to controlled drug
Believe surveillance device would obtain evidential material
RGTB person is in possession of things described in section 81(2)(a) to(d)
Believe use of surveillance device is necessary to facilitate the things seizure
Emergency or urgency
14+ offence
Arms Act
Risk to life and safety (surveillance necessary response)
Injury/ Serious property damage
S23 S&S
Internal search
Must be under arrest for section 6,7 or 11 of MODA in relation to class A, B or C drugs
S13A of MODA
Internal search of people believed to be concealing classified A or B drugs internally (not under arrest)
Evidential material def
In relation to an offence, means evidence of the offence or any other item, tangible or intangible of relevance to the investigation
Private communication def
A communication made under circumstances that may reasonably be taken that any party to the communication desires it to be confined to the parties involved
(Does not include where it may intercepted by some other person)
Surveillance Def:
Observing and recording of that observation, of people vehicles places and things
Ascertaining the location of a thing/person and whether it has been tampered with
Interception a private communication through use of a surveillance device
Serious offence
7 years +
Certain Arms Act offences
S47 activities do not require SW
- Being lawfully on private premises
Record what you hear or see - covert audio recordings where 1 person consents
R v McGinty
A judge was not required to refuse a warrant because the police had not exhausted every conceivable alternative technique of investigation
Section 57 S and S
Evidential material obtained as a result of SDW in relation to an offence that is not the offence that the Warrant was issued for is still admissible
SDW S51 S and S (conditions)
RGTS offence is/will/has been committed in respect of which this act or any enactment specified in column 2 of the schedule authorises an enforcement officer to apply for a warrant to obtain evidence about suspected offence
RGTB Surveillance device will obtain evidential material
S64 evidence act
Privilege to informers and protects their identity and extends to information likely to disclose there identity
Exception- if they are called as a witness by the prosecution
R v McGinty - CHIS CL
Disclosure of the identity of alleged informants was not required under the act ……… However the trial judge was entitled to insist on disclosure if he saw fit
S49 - S &S Application for SDW (requirements)
- name of applicant
- provision authorising application
- grounds for application
- suspected offences
- type of SD
-name, description, address of person place other thing - a description of evidential material
- period of warrant
Section 59 - reporting requirements
Written report to judge within 1 month after the expiry of the period for which the warrant is in force
Consensual interception
Taped evidence from private communications is admissible where one of the parties to the communication has previously consented
Relevant
Information or an exhibit that tends to support or rebut or has a material bearing on the case against the defendant
Disclosure of interception
The defendant is entitled to all interceptions (subject to grounds of withholding) of themselves
Interception communication transcript
Evidential transcript must be a verbatim copy of the recorded version
4 key activities telephone investigators
Trapping or pre loading phone data
TSP liaison
Draft a production order application early
Prove phone ownership
Clan lab - types
Extraction
Conversion
Synthesis
Children and young persons (clan labs)
Considered to be in imminent danger.
Immediate action must be taken to remove child to ensure safety and well being
Emergency
Actual or imminent danger to human health or safety
Offences against section 6
Category 3 offences
Importing & exporting
Producing & manufacturing
Supplying & administering
Selling or offering to sell
Possessing for the purpose of supply
Section 7 offences
Category 2
Possession and consuming drugs
Supply and administering Class C
Trial by Jury
Category 3 offences (2+ years) can elect trial by jury
If one charge is tried by jury all charges will be tried by jury
Likewise with high court
Drug offences prosecuted by the crown
- S6(1)(b) or (2A) production or manufacture of, or conspiracy to produce or manufacture methamphetamine
- S10 aiding offences against corresponding law of another country
-S12C commission of offences outside NZ
Other Crown Prosecution
- drugs 5x presumptive amount class A
- evidence of large scale dealing
- substantial evidence derived from SD
Drugs 10 x amount class B
Cannabis Cultivation
Category 1 - growing a small number for personal use
Category 2 - small scale cultivation for a commercial purpose
Category 3 - large scale commercial growing with a considerable degree of sophistication and organisation
Bail Act S16
Judge (district or high court) is the only one who can grant bail for drug dealing
17A restrictions on bail if charged with serious class A offence
18+ or 17 and charged in district/high court
No defendant should be granted bail unless they satisfy the judge that bail or remanded at large should be granted
Certificate of evidence
Analyst provides certificate instead of oral evidence
Requires
Chain of evidence is unbroken
Material to be analysed is not tampered with or contaminated
Defence is aware of analysis and results and given reasonable time to prepare defence ( minimum of 7 days before hearing)
Delivery of drug exhibit
In person (obtain name, signature of employee & package sealed)
Registered post or courier post with signature
Admissibility of Certificate
Certificate admissible if defendant served at least 7 clear days before hearing
The defendant does not at least three days before the hearing give written notice that the analyst be called
The court does not request oral evidence of analyst
S55 s and s
Outlines the form in which a SDW should be in
- prescribed form
- be directed to every enforcement officer who has the authority to carry the activities of a SDW
- specify a period up to 60 days
- contain a condition as to providing a report
- contain a condition as to privilege
