Drugs Flashcards
Drug Dealing (import/export)
(Act & Section)
Section 6(1)(a), Misuse of Drugs Act 1975
Drug Dealing (import/export)
(elements)
- import into or export from New Zealand
- any controlled drug
Drug Dealing (produce/manufacture)
(Act & Section)
Section 6(1)(b), Misuse of Drugs Act 1975
Drug Dealing (produce/manufacture)
(elements)
- produce or manufacture
- any controlled drug
Drug Dealing (Supply Class A or B)
(Act & Section)
Section 6(1)(c), Misuse of Drugs Act 1975
Drug Dealing (Supply Class A or B)
(elements)
- 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
Drug Dealing (supplying class C to under 18)
(Act & Section)
Section 6(1)(d), Misuse of Drugs Act 1975
Drug Dealing (supplying class C to under 18)
(elements)
- supply or administer or offer to supply or administer
- any Class C controlled drug
- to a person under 18 years of age
Drug Dealing (supplying class C to person over 18)
(Act & Section)
Section 6(1)(e), Misuse of Drugs Act 1975
Drug Dealing (supplying class C to person over 18)
(elements)
- sell or offer to sell
- any Class C controlled drug
- to a person of or over the age of 18
Drug Dealing (possession for supply)
(Act & Section)
Section 6(1)(f), Misuse of Drugs Act 1975
Drug Dealing (possession for supply)
(elements)
- have in his or her possession
- any controlled drug
- for any or the purposes set out in paragraphs (c), (d), or (e) of Section 6(1) MODA.
Importation
(define)
importation -
(a) 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 New Zealand…
Imports
(case law)
Saxton v Police
Saxton v Police held
To import includes “to introduce from abroad or to cause to be be brought in from a foreign country”
Importation ends
(case law)
R v Hancox
R v Hancox held
…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 New Zealand’s territorial limits. Importing into New Zealand for the purposes of 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… when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee.
Mens rea of importing
(3 must proves)
- knew about the importation
- knew the imported substance was a controlled drug
- intended to cause the importation
Wilful blindness for importation
In terms of providing guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice
R v Martin - had a suitcase from Nigerians, didn’t know the contents.
New Zealand
(define)
New Zealand -
(a) means the land and the waters enclosed by the outer limits of the territorial seas of New Zealand.
The outer limit of the territorial seas is 12 nautical miles from the land mass of New Zealand.
Controlled drug
(define)
controlled drug means any substance, preparation, mixture, or article specified or described in Schedule 1, Schedule 2, or Schedule 3 of the Act; and includes any controlled drug analogue.
Controlled Drug Analogue
(define)
Controlled drug analogue means any substance, that has a structure substantially similar to that of any contolled drug.
such as the substances specified or described in Part 7 of Schedule 3 to this Act,
Contolled Drug Analogue exceptions
(a) Any substance specified in Schedule 1 or Schedule 2 or Parts 1-6 of Schedule 3 of this Act.
(b) Any pharmacy only medicine or prescription medicine or restricted medicine within the meaning of the Medicines Act 1981
(c) an approved product within the meaning of the Psychoactive Substances Act 2013
Class A controlled drugs
(define)
Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act
Why are Class A drugs classified Class A
their misuse poses a very high risk of harm to individuals and to society.
Class A drug examples
- Cocaine
- Heroin
- Lysergide (LSD)
- Methamphetamine
- Psilocybin (found in magic mushrooms)
recently
- AMB-FUBINACA (synthetic cannabis)
- 5F-ADB (synthetic cannabis)
Class B controlled drug
(define)
Class B controlled drug means the controlled drugs specified or described in Schedule 2 to this Act
Why are Class B drugs classified Class B?
Class B controlled drugs are those that pose a high risk or harm
Class B drug examples
- Amphetamine
- Cannabis preparations (eg cannabis oil and hashish)
- GHB (fantasy)
- MDMA (Ecstasy)
- Morphine
- Opium
- Pseudoephedrine
- Ephedrine
Class C controlled drug
(define)
Class C controlled drug means the controlled drugs specified or described in Schedule 3 to this Act; and includes any temporary class drug, and any controlled drug analogue.
Why are Class C drugs classified Class C?
Class C controlled drug pose a moderate risk of harm
Class C drug examples
- Cannabis plant
- Cannabis seed
- Benzylpiperazine (BZP)
- Controlled drug analogues
Guilty knowledge
(case law)
R v Strawbridge
R v Strawbridge held
It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary, knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
Usable quantity
(case law)
Police v Emirali
Police v Emirali held
…the seriousnes offence of… possessing a narcotic does not extend to some minute and useless residue of the substance.
Proving usable quantity
S29A, not necessary for the prosecution to prove usable quantity unless the defendant puts the matter in issue.
Producing and manufacturing
(case law)
R v Rua
R v Rua held
The words “produce” or “manufacture” in s6(1)(b) broadly covers the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.
To Compound
(define)
To “compound” means to create a whole by mixing or combining two or more elements or parts
Manufacturing
(define)
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
When is the offence of manufacturing complete
Once the prohibited substance is created, whether or not it is in a usable form
Cannabis preparations
(must prove)
S29B
Makes the plant matter unrecognizable, eg cannabis oil or cannabis cake.
So prosecution must prove contains tetrahydrocannabinols.
Upgrades it from Class C to Class B
Supply
(define)
Supply includes distribute, give, and sell.
Supply
(case law)
R v Maginnis
R v Maginnis held
“[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…”
Distribute
(define)
The term “distribution” relates to the supply of Drugs to multiple people.
Giving to multiple joint owners still counts
Giving
(define)
“Giving” involves handing over or in some other way transferring an item to another person
Selling
(define)
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration.
Administering
(define)
To direct or cause a… drug to be taken into the system of another person
Administering
(examples)
- injucting a person with heroin
- heating knives so another person can spot
- slipping a date rape drug into a drink
Offering to supply/administer
(case law)
R v During
R v During held
“[an offer is] an intimation by the person charged to another that he is ready on request to supply that other drugs of a kind prohibited by statute”
Offering to supply/administer
(must prove)
- the communicating of an offer to supply or administer a controlled drug (actus reus)
- an intention that the other person believes the offer to be genuine (mens rea)
Offering to supply drugs
(case law)
R v Brown
R v Brown held
(4 situations)
The defendant is guilty in the following instances:
(1) offers to supply a drug that he has on hand
(2) offers to supply a drug that will be procured at some future date
(3) offers to supply a drug that he mistakenly believes he can supply
(4) offers to supply a drug deceitfully, knowing he will not supply that drug
4 propositions regarding offering to supply
- ‘offer to supply’ is to be given its ordinary meaning.
- there may be more than one person guilty of offering to supply in any one transaction
- an intermediary may also be guilty of offering to supply their own principal. No just the start and end people.
- ‘offering to supply’ in MODA has a wide meaning and includes an offer to arrange for someone else to hand over the drugs to the other person to be supplied.
The offence of offering
(case law)
R v Brown
R v Brown held
(the offence of offering)
… the making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence.
Proof of age
(case law)
R v Forrest & Forrest
R v Forrest & Forrest held
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age
Possession in 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 a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
Knowledge for possession
(3 important points)
- the defendant must be aware that they possess the substance
- the defendant identifies the substance as a controlled drug, even if there is no substance to be analyzed to prove their assertion
- physical custody presumes knowledge, unless proven otherwise.
Knowledge and intent for possession
(3 points)
- know they have the substance
- know the substance’s nature or quality
- intend to use the substance in a way that allows you to charge them with possession.
Proof of possession
(case law)
R v Cox
Potential possession in drug cases
(s2 MoDA1975)
(2) For the purposes of this Act, the things which a person has in his possession include anything subject to his control which is in the custody of another.
Control
(define)
To “control” something means to exercise authorative or dominating influence or command over it.
Joint Possession (for sale)
Where more than one person has access to a saleable quantity, they can be jointly charged with possession. Must prove a shared intention to sell.
Each accused must have entertained the idea.
Attempted possession
R v Jay (hedge clippings)
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.
Possession in Drug cases
(4 points)
- 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
(define)
A deliberate act, and intent to produce a result
Deliberate Act
(define)
“Intent” means that the act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Intent to produce a result
(define)
The second type of intent is an intent to produce a specific result. In this context result means “aim, object or purpose”
Proving intent
(case law & held)
R v Collister
The circumstantial evidence from which an offender’s intent may be inferred can include:
- the offender’s actions and words before, during and after the event
- the surrounding circumstamces
- the nature of the act itself
Proving intent (for supply) in drug cases
(3 ways)
- admissions
- circumstantial evidence (packaging, scales, cash, tick lists etc)
- the statutory presumption under section 6(6)
Statutory presumption
(Section and says)
Section 6(6),
for 6(1)(f) for purposes in 6(1)(c),(d), or (e) see presumptive amounts in 2(1A)
The charge (possession for supply)
R v Hooper the charge should be as specific as the evidence allows. If sale then sale, not just supply or generally dealing
R v Tracy if too vague then draft “… a class C controlled drug for purposes specified in paragraph (d) or paragraph (e) of subsection (1) of Section 6 of MODA ‘75.
R v Patterson on above when in doubt. If not evidence of supply to under 18, then use “for the purpose of sale”.
Presumptive amounts
Heroin
0.5 grams
Presumptive amounts
Cocaine
0.5 grams
Presumptive amounts
Lysergide (LSD)
2.5 milligrams or 25 flakes/tabs etc
Presumptive amounts
Methamphetamine
5 grams
Presumptive amounts
MDMA
5 grams or 100 flakes/tablets etc
Presumptive amounts
Cannabis resin and extract (oil)
5 grams
Presumptive amounts
Cannabis plant
28 grams or 100 or more cigarettes
Presumptive amounts
not specified
56 grams
Conspiring to deal with controlled drugs
(Act & Section)
Section 6(2A), Misuse of Drugs Act 1975
Conspiring to deal with controlled drugs
(elements)
- Everyone who
- conspires with any other person
- to commit an offence against subsection (1)
Conspiring to deal with controlled drugs
(penalties)
Class A - 14 years
Class B - 10 years
All other - 7 years
Conspiracy
The agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts which will make up the full offence and the object of the conspiracy.
Equipment, material, and substances used in production or cultivation of controlled drugs
(Act & Section)
Section 12A, Misuse of Drugs Act 1975
Equipment, material, and substances used in production or cultivation of controlled drugs 12A(1)
(elements)
- supplies, produces, or manufactures
- any equipment or material capable of being used in the commission of an offence against 6(1)(b) or 9 or
- 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.
Equipment, material, and substances used in production or cultivation of controlled drugs 12A(2)
(elements)
- has in his or her possession
- any equipment or material capable of being used in the commission of an offence against 6(1)(b) or 9 or
- any precursor substance
- with intent that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.
Precursor Substances
(examples)
Acetic anhydride (heroin precursor)
Lysergic acid (LSD precursor)
Ephedrine/Pseudoephedrine (meth precursor)
NB: ephedrine and pseudoephedrine are both Class B in Schedule 2 & precursors in Schedule 4.
“Knowing” in 12(1A)
In 12(1A) “Knowing” is equal to “believing”
Cultivating Prohibited Plants
(Act & Section)
Section 9, Misuse of Drugs Act 1975
Cultivating Prohibited Plants
(elements)
- cultivate
- any prohibited plant
Cultivating Prohibited Plants
(penalty)
7 years imprisonment
Cultivating Prohibited Plants
(exception)
Papaver somniferum (poppy)
If you prove not intended to be a source of a controlled drug, and not developing a strain to be a source of a controlled drug.
Allowing Premises or Vehicle to be used
(Act & Section)
Section 12(1), Misuse of Drugs Act 1975
Allowing Premises or Vehicle to be used
(elements)
- knowingly permits
- any premises (or any vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance)
- to be used for the purposes of the commission an offence against this Act.
Allowing Premises or Vehicle to be used
(penalties)
10 years imprisonment for Class A
7 years imprisonment for Class B
3 years imprisonment for Class C
Obstruction of officers (MODA)
(Act & Section)
Section 16, Misuse of Drugs Act 1975
Obstruction of officers (MODA)
(Elements)
- wilfully obstructs, hinders, resists or deceives
- any other person
- in the execution of any powers conferred on that person by or persuant to this Act
Obstruction of officers (MODA)
(case law)
Urlich v Police
Urlich v Police held
… There is no reason why words alone, provided they are uttered in circumstances under which they can be believed, cannot amount to obstruction. A firm verbal refusal to be searched, uttered in a way which can be believed, certainly would result in a constable pausing before commencing a search, or even deter him from undertaking a search. Words can be effective. It is not necessary for an accused to raise his fists.
Controlled Delivery
who has the powers
s12, Misuse of Drugs Ammendment Act 1978
Customs officer only. Police assist Customs in the operation. If successful then Police make the arrest.
Controlled delivery situations
- International Mail Centre
- International Airport
- Imported air/sea freight
- Transhipped air/sea freight
- Arriving commercial vessel
Two options for controlled delivery
Option 1. “clean controlled delivery”
Option 2. Leave some of the drug within the consignment.
Controlled deliver Option 1
(benefits and drawbacks)
Benifit:
eliminates the risk of Drugs being lost
greater freedom in surveillance
Drawback:
Only able to charge with importation and conspiracy.
Controlled delivery Option 2
(benefits and drawbacks)
Benifit:
Able to charge with possess for supply
Emergency powers if drugs moved to place w/o SW
Drawback:
Requires greater security
Recovery at termination is paramount
Phases of a controlled delivery
- Initial Action Phase
- Intel phase (huge)
- Delivery
Controlled Delivery
(initial Action steps 1 - 6)
- Assume ownership and assign roles (O/C exhibits etc)
- Liaise with Customs O/C Exhibits
- Consider electronic interception (must be s6 MODA or Psychoactive Substances Act)
- Request Customs manipulate ‘Track and Trace’
- Contact specialists (Surveillance, Photography, CMC, TSU)
- Start planning. (op orders and rostering)
Controlled delivery
(Intel phase, 11 parts)
- profile package & sender details
- profile delivery address
- profile addressee
- Identify an OP
- Considerations (SDW)
- Profile OP address
- profile OP occupants
- considerations on approaching occupants
- repackaging
- Search Warrants
- Searching for evidence
- Electronic interception
Controlled delivery
(Profile the sender, consider 5)
- any phone number on package
- IMEI/SIM info
- telco providers portability
- Forensics (DNA/Fingerprint/handwriting/impressions/mechanical fit
- multiple packages incl dummy runs
Controlled delivery
(Profile delivery address, consider 19)
- occupants
- local council - owner/rate payer
- council plans
- rubbish delivery date/time
- Housing NZ
- telco providers
- power/gas supplier
- timing of mail delivery
- previous occupants & neighbors
- landlord/owner
- previous 4Qs
- CHIS
- fixed or mobile surveillance
- photo/video of address
- security (locks, alarms, cameras, dogs)
- if P.O. Box, holder details
- Customs power v Police powers to gather intel
- mail stop/flag address to catch further deliveries
- suspects may be surveilling the delivery address
Controlled delivery
(Profile addressee, consider 19)
- previous occupiers
- real person or fake name?
- connection to address
- relevant history/notings
- travel/connection to county of origin
- bank accounts - large deposits/overseas transfers
- full ID if possible
- photographs
- Police Intel held (NIA etc)
- Suspect’s knowledge of covert police techniques
- Suspect’s knowledge/skill around tech
- Suspect’s travel history
- other agency Intel held
- financial profile
- links
- general lifestyle
- business associates
- tracking device for vehicles
- risk assessment
Controlled delivery
(OP, consider 3)
- camera OP v intercept OP requirements (forward base)
- do you need a SDW
- staffing to occupy OP
Controlled delivery
(considerations, activities that require a SDW)
s46 S&S Act
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device
(d) use of a surveillance device that involves trespass to land or trespass to goods
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds-
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.
Controlled delivery
(profiling a potential OP address, consider 6)
- proximity to target address
- unobstructed line of sight
- Access to and from without arousing suspicion
- ability to beam signals and/or tap into telephone cables
- phone line available in the street
- other conditions, eg parking, schools, lighting
Controlled delivery
(profiling the OP occupants, consider 5)
- NIA checks for convictions/associates
- employment
- credit checks
- power account
- CUSMOD checks
Controlled delivery
(approaching OP occupants, consider 6)
- cover story
- protection of ID
- room with 24 hr access
- preferably no children
- preferably no visitors to address during op
- gratuity ‘thank you’ at the end
Controlled delivery
(repackaging delivery pack, 5 steps)
- Liase with Customs Technical Unit (CTU)
- Consider options like:
- multiple packages
- tracking device
- audio device
- opening device
- dye trap
- covert marking - Consider advice from the document examiner to recreate packaging or ID photocopier.
- Leave appropriate quantity of drug but replace the rest
- Photograph the package, layer by layer, and:
- use a scale rule
- use photo lables
Controlled delivery
(SW can include, 4)
- Known addresses
- vehicles
- Post Office boxes
- cell phones (including data)
Controlled delivery
(searching for evidence, search for 11)
- track and trace receipts
- correspondence
- computers, cell phones
- emails
- contact lists/number
- packaging from previous importations
- money and financial records
- scales and packaging etc for supply
- PO Box doccuments
- travel documentation
- passports
Controlled delivery
(methods of delivery, 3 +1)
- re-introduce into postal system for delivery by postie
- delivery by a courier company
- police/customs pose as a postie/courier
- consider recording the interaction
MODA emergency powers are contained in which sections?
Sections 19-24 of Search and Surveillance Act 2012
Controlled delivery emergency powers are contained in which section
s81, Search and Surveillance Act 2012
s81 Search and Surveillance Act 2012
(paraphrased)
(1) If circumstances in (2) A constable or customs officer may during a controlled delivery, without warrant
(a) search a person involved in the delivery
(b) enter and search any place, craft, or vehicle
(c) seize anything RGB is in (2)(a) - (d)
(2) RGB a person in possession of or in vehicle, place, thing is:
(a) a controlled drug
(b) a precursor substance
(c) a package where all or some of the drugs have been replaced (by customs officer)
(d) evidential material of 6(1)(a) or 12AB
Evidential Material
(define)
In relation to an offence or suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
Private Communication
(define)
(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) Does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
Interception Device
(define)
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, 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 to no better than normal
Surveillance device
(define)
(a) an interception device
(b) a tracking device
(c) a visual surveillance device
Tracking Device
(define)
(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or a person
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but
(b) Does not include a vehicle or other means of transport, such as a boat or helicopter
Visual Surveillance Device
(define)
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or capable of being used to observe, or to observe and record, a private activity; but
(b) Does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
When is an SDW required
must if
(a) use an interception device to intercept a private conversation
(b) use a tracking device, except if a tamper alert only and not trespass to land/goods
(c) observe private activity in private premises, and any recording of that observation, by means of a visual surveillance device
(d) use of surveillance device involving trespass to land or trespass to goods
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of that observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purpose of a single investigation, or connected series of investigations, exceeds-
(i) 3hrs in any 24hr period; or
(ii) 8hrs in total
Activities not requiring an SDW
(a) the enforcement officer-
(i) being lawfully in private premises; and
(ii) recording what he or she observes or hears there (provided is without use of surveillance device)
(b) covert audio recording of a voluntary oral communication between 2 or more persons made withe the consent of at least 1 of them
(d) activities carried out by the use of a surveillance device, if authorized under any enactment.
SDW alternative investigative techniques
(case law)
R v McGinty
R v McGinty held
(alternative investigative techniques)
The evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient. A judge was not required to refuse a warrant because Police had not exhausted every conceivable alternative technique of investigation.
CHIS ID protection
(case law)
R v McGinty
R v McGinty held
(CHIS)
Disclosure of the identity of alleged informants was not required under the Act, and the trial Judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants. However, the trial Judge was entitled to insist on disclosure if he saw fit.
Informer
(define)
- has supplied information to an enforcement agency
- concerning the possible or actual commission of an offence
- in circumstances he has a reasonable expectation his identity will not be disclosed
AND - is not called as a witness
can be member of Police under cover
SDW application must contain?
- name of applicant
- provision authorizing the application
- grounds for application
- suspected offence
- type of surveillance device
- name, address, or other description of person, place, other thing that is object of surveillance
- description of evidential material
- period
(if unable to all of above, then info to state circumstances of proposed surveillance in enough detail to “identify the parameters of, and objectives to be achieved by, the proposed use of the surveillance device”
Telephone investigation activities to do in first 24h
- ‘trapping’ or ‘pre loading’ phone data
- TSP Liaison
- draft a production order
- no SW required in emergencies
- Analysts
- proving phone ownership
