Drugs Flashcards
What is section 6(1)(a) MODA 1975
Import into or export from NZ any controlled drug, other than a controlled drug specified or described in part 6 of schedule 3 to this act.
What is section 6(1)(b) MODA 1975
Produce or manufacture any controlled drug
What is section 6(1)(c) MODA 1975
Supply or administer, offer to supply or administer, any class A or B controlled drug to any person or otherwise deal in any such controlled drug or;
What is section 6(1)(d) MODA 1975
Supply or administer, or offer to supply or administer, any class C controlled drug to a person under 18yrs of age, or;
What is section 6(1)(e) MODA 1975
Sell or offer to sell any class C controlled drug to a person over 18yrs of age;
What is section 6(1)(f) MODA 1975
Have any controlled drug in his/her possession for any purpose set out in paragraphs (c), (d) or (e) of this subsection
What is section 6(2)(a) MODA 1975
Imprisonment for life where a class A controlled drug was used or one of the controlled drugs to which the offence was committed
What is the punishment for section 6(2)(b) MODA 1975
Imprisonment for a term not exceeding 14years where paragraph (a) of this subsection does not apply but a class B controlled drug was the controlled drug
What is the punishment for section 6 (2)(c) of this act
Imprisonment for term not exceeding eight years in any other case
What is section 6 (2A) of this act
Every person who conspires with any other person to commit an offence against subsection one of the section commits an offence against the act and is liable on conviction to imprisonment for term of
What is the punishment for section 6(2A)(a) MODA 1975
Not exceeding 14 years where a class A controlled drug was a controlled drug or one of the controlled drugs in relation to which the offence was committed
What is the punishment for section 6(2A)(b) of this act
Not exceeding 10 years where paragraph (a) of this subsection does not apply but a class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
What is the punishment for section 6 (2A)(c) of this act
Not exceeding seven years in any other case
Controlled drugs are imported into New Zealand by air and sea using a variety of methods, what are they?
- have drugs concealed in or on the person or in their luggage
- have another person (mule) bring the drugs in for them
- send or have drugs sent by international mail or courier
- conceal drugs inside legitimate good for example within shipping container’s
Define customs and excise act 1996 section 2 interpretation; importation
In relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully for unlawfully, from a point outside New Zealand.
Case law “Saxon v police 1981”
Saxon v police: to import includes to introduce from abroad or to cause to be brought in from a foreign country
What is the importation process
Importation is a process that commences at the point of origin and continues until the drugs have reached their ultimate destination in New Zealand
When does criminal liability arise for importation
As soon as the drugs cross New Zealand’s border
What section is an importer charged with
Section 6(1)(a) MODA 1975
When does the process of importation conclude
When the goods have reached their final destination and are available to the consignee
Prior to reaching the final destination can I person be charged with importation if they interfere with the package before it reaches its destination
Yes, anyone who assists or facilitates the process up until that point can be charged with party to importation
R v Hancock 1989
The element of importing exists from the time the goods enter into New Zealand until they have reached their immediate destination
What is Men’s Rea of importing
The crown must prove not only that the defendants conduct in someway contributed to the actual importation of the drug, it must also prove the defendant’s guilty knowledge
How can you prove Mens Rea? This would involve proof that the defendant?
- New about the importation and
- New the imported substance was a controlled drug and
- intended to cause the importation
Define wilful blindness
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice
Caselaw for wilful blindness
R v Martin 2007
Define exporting
It commences with the first act intended to export the drugs from the origin in New Zealand and concludes at the time of actual exportation
What is section 53 customs and Excise act 1996
Time of exportation; The time of exportation is the time when the exporting craft leaves the last customs place at which the aircraft calls immediately before proceeding to a point outside New Zealand
Interpretation section to customs and excise act 1996; define New Zealand
Means the land and the waters enclosed by the outer limits of the territorial sea of New Zealand
How far out is the territorial sea for New Zealand
12 nautical miles from the land mass of New Zealand
Define any controlled drug
Section 2 interpretation MODA 1975;
Controlled drug means any substance preparation, mixture, or article specified or described in schedule one, schedule two, Schedule 3 to this act and includes any controlled drug analogue
What is a controlled drug analogue
Means any substance, specified or described in part seven of schedule three of this act, that has the structure substantially similar to that of any controlled drug;
When dealing with controlled drugs what does section 6(6) MODA 1975 say
For the purpose of subsection 6(1)(f), A person is presumed, until the contrary is proved, to be in possession of a controlled drug for any of the purposes set out in subsection 1(c), (d), (e) if he or she is in position of the controlled drug in an amount, level, or quantity at or wover which the controlled drug is presumed to be for supply
What number of LSD tablets are required for presumption to supply
2.5 mg or 25 flakes or tablets
Who can bail the person charged with Manufacturing methamphetamine
High Court judge only
What is the time limit for laying charges for a section 6 dealing offence
There is no time limit
When is importation complete
Once it has crossed New Zealand’s border and is available to the consignee “irrelevant”
What is the difference between produce and manufacture
To produce means to bring something into being, or to bring something into existence from raw materials all elements
Manufacturing is the process of synthesis; combining components for processing raw materials to create a new substance
What is the definition of supply
To supply means to furnish or provide something that is needed or desired and includes distribute give and sell
Who proves if a drug is usable
It is not necessary for the prosecution to prove that fact unless the defendant put the matter in issue
Short answer; explain it to methods of delivery for drugs to the ESR
Section 31 subsection 2 provides two methods of delivering a drug exhibit to the ESR so that certificate evidence can be used you can deliver the exhibit:
- 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 Korea post with signature required in a sealed package to employee who has been authorised by the analyst in charge at the lavatory
What are the ingredients for section 16 obstruction
Every person commits an offence against this act who wilfully, obstructs, resists, hinders or deceives any other person in the execution of any powers conferred on that other person by or pursuant to this act
R v Strawbridge
It is not necessary for the crown to establish knowledge on the part of the accused. But if there is some evidence that the accused honestly believed on reasonable grounds that they were innocent and they are in titled to be acquitted Unless the jury is satisfied Beyond reasonable doubt it that this was not so
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 a statute
R v Brown
The defendant is guilty in the following instances;
- Offers to supply drug that he has on hand
- Offers to supply drug that will be procured at some stage
- Offers to supply drug he mistakenly believes he can supply
- Offers to supply drug deceitfully, knowing he will not supply drug
What three things do you need to prove for guilty knowledge
- Must know that the substance was a controlled drug
- Intended to deal in controlled drug
- Evidence to the contrary
Ingredients for 6(1)(d) - supply class c under 18 yrs
Did supply any class c controlled drug to a person under 18years of age
What are 5 clan lab signs from the outside
- Chemical odours coming from building - sweet, bitter, ammonia or solvent smells.
- Exhaust fans running at odd times
- Frequent visitors at odd times
- Blackened out windows, curtains always drawn
- Expensive security and CCTV gear
- Plastic containers, bottles with labels removed
- People coming outside only to smoke
Ingredients for allowing a premise or vehicles to be used section 12(1) MODA 1975
Every person commits an offence against this act who knowingly permits any premise or 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
Ingredients for section 12A (1)(a) and (b) MODA 1975 - pre cursors
- Every person commits an offence against this act who supplies 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 pre cursor substance
Knowing that the equipment, material, or substance is to be used not,or for, the commission of an offence against those provisions.
Ingredients for section 12A(2) MODA - in possession of equipment
Every person commits an offence against this Act who has in his or her possession -
12A (2)(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
12A (2)(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
Controlled deliveries - Option 1
A “clean controlled delivery”
- where no drugs are left in the consignment which eliminates risk of drugs being lost.
- provides greater freedom in organising the surveillance
- reduces risk of alarming targets
- importation charges and or conspiracy charges are likely to be filed
Controlled delivery - Option 2
- where u leave an amount of the drug in the consignment to enable a “possession for supply” charge
- provides option of emergency powers should they travel to other places not covered by search warrant
- Remainder of drugs are substituted
- requires greater security to recover drugs on termination
3 things to prove guilty knowledge
- Knowledge substance was a controlled drug
- Defendant to raise reasonable doubt to their state of mind
- Absence of evidence to the contrary
What are the criteria for section 51 S&S - Surveillance device warrant
Section 51 - conditions for issuing a SDW are that -
- there are reasonable grounds to suspect an offence has been committed, or is being committed, or will 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 evidence about the suspected offence, and
- to believe that the proposed use of the SDW will obtain information that is evidential material in respect of the offence
- the restrictions in section 45 do not prevent the issuing of a SDW in the circumstances.
Differences between section 13A MODA and section 23 S&S - relating to internal searches are;
Section 13A
Section 13A -
- reasonable cause to believe (and not arrested)
- must be class A and B
- only search for class A and B
- any constable or customs officer may request search
- request to a D/C Judge for detention warrant
- medical practitioner approved by Commissioner of police, CEO of customs
Differences between section 13A MODA and section 23 S&S - relating to internal searches are;
Section 23 S&S
- must be arrested for offence against sec 6’ 7 or 11 of MODA
- reasonable grounds to believe person has secreted within body any property may be evidence of offence which person is charged
- any class of drug
- class a, b and c and any prop of which possession is an offence
- require suspect to permit M/D to do internal
- nominated by constable
Practical -
Clan lab safety considerations
- Leave area immediately
- Never touch, taste or smell any chemical or equipment
- Don’t attempt to stop chemical reaction or turn lights or fans off
- don’t shut off water supply to the house or chemical reaction
- don’t smoke in or near clan lab
- don’t use cellphones, radios, torches or devices that produce spark or friction
- don’t re enter premise
What are the three steps for using the ESR certificate of analysis instead of calling the expert to give evidence in chief
- the defendant is served at least 7days clear of the hearing and provided with a copy of he analysts certificate
- the defendant does not, at least 3days before the hearing, give written notice that the analyst be called
- the court does not request the oral evidence of the analyst.
LIABILITY
Import class B controlled drug - pseudoephedrine
- imports
- class b controlled drug
- into NZ
Definition of a controlled drug
Controlled drug means any substance, preparation, mixture or article specified or described in schedules 1’ 2 or 3 of this act and includes any controlled drug analogue
Define class C controlled drug
Any drug specified or described in schedule 3 of this act and includes any controlled drug analogue
When is the offence of manufacturing complete
The offence is complete once the prohibited substance is created whether or not it is in useable form.
R v Rua
Time limit for laying charges for section 6 dealing offences
Can be laid at anytime
What requirements are needed for admissibility of an analyst certificate
- within 7 days of hearing and copy provided to defendant
- defendant does not provide written objection within 3 days of hearing requesting analyst give evidence
- court does not request analyst give evidence
Who can call a landslide in clan lab op
Any member of the IE team
Three types of clan lab
- extraction
- conversion
- synthesis
SHORT ANSWERS
4 things to consider with an OP for controlled delivery
- suitable location
- camera OP requirements vs intercept requirements
- whether a SDW is required
- staff having to occupy OP
Ingredients of obstructs 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
SHORT ANSWERS
R v Strawbridge
It is not necessary for the crown to establish knowledge on the part of the defendant. In the absence of evidence to the contrary knowledge on her part will be presumed. If there is evidence that the defendant 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.
SHORT ANSWERS
What is the 90 second rule - clan labs
- you have 90 seconds to get out without knocking any chemicals over
- extract injured persons only if safe to do so
- leave aggressive people if confronted
- don’t turn anything off
- secure address
- cordon address at least 50 meters
- ## call fire department clan lab team
SHORT ANSWERS Presumption for supply - LSD - Meth - Cannabis - cocaine
LSD - 2.5mg or 25 flakes or tablets
Cannabis - 28 grams or 100 or more cigarettes
Meth - 5 grams
Cocaine - half a gram
SHORT ANSWERS
4 ways a controlled delivery could come about from
- international mail centre
- international airport
- imported airfreight
- imported sea freight
- transhipped air or sea freight
- arriving commercial vessel
SHORT ANSWERS
Ingredients of allowing premise for drugs
12(1) every person commits an offence against the act who knowingly permits any premise or, vessel, aircraft, motor vehicle, hover craft or other mode of conveyance to be used for the purpose of the commission of an offence against this act.
SHORT ANSWERS
For charges under 12A(1) - supplies equipment - the crown must prove the following
- that the defendant has supplied, manufactured or produced equipment, materials or precursors
- that those items are capable of being used in the production, manufacture of controlled drugs, or cultivation of prohibited plants.
- that the defendant knows the items are to be used for such an offence by another person
SHORT ANSWERS
Internal search section 13(a) and 23 S&S act
Section 23 S&S act only applies to person who is under arrest.
Section 13A applies to a person not under arrest however there is reasonable cause to believe are concealing any class A or B controlled drug internally
SHORT ANSWERS
Activities for which a SDW is required - section 46 S & S act
- to intercept private communications
- use of a tracking device
- use of a surveillance device that involves trespass to land or goods
- observation of private activity in the cartilage of a private premise for 3 hours in a 24 hour period or
8 hours in total
SHORT ANSWERS
Section 16 bail act 2000
Judge only may grant bail for a drug dealing offence
A defendant who is charged or convicted of a drug dealing offence may be granted bail by order of a high court or district court judge but not otherwise
SHORT ANSWERS
Regulation 11 - needles and syringes.
Offering or accepting for use any used needle or syringe or disposing of any needle or syringe in a public place.
LIABILITY
Supply class C controlled drug to person under 18yrs
- Did supply
- class C controlled drug
- person under 18yrs
Meaning of controlled drug
Any substance, preparation, mixture or article specified or described in schedules 1, 2 or 3 of this Act and includes any controlled drug analogue.
R v Rua - the word produce or manufactures
The words produce or manufacture in section 6(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug
Ingredients of permits a premise section 12
Every person commits an offence against the act who, knowingly allows any premise, vessel, hovercraft, motor vehicle or other method of conveyance, to be used for the purpose of the commission of an offence against this act.
Does a CHIS have to be named in a warrant
No. Section 64 of the evidence act 2006 grants privilege to informers that protects their identity and extends to information that is likely to expose their identity. R v McGinty,
Is it possible to be charged with attempted possession?
Yes. It is an offence to attempt to gain possession of a drug, a charge which covers someone obtaining a substance which they believe is a drug, Police v Jay
What is a controlled delivery
A controlled delivery is when a consignment of illicit drugs is detected, often concealed in some other goods, making it possible for the delivery of those goods to be controlled by customs and Police in order to identify and secure evidence against the importers/exporters.
In the matter of importing, when is someone liable and when does the LIABILITY cease?
Liability arises as soon as the drugs cross NZ borders and continues whilst they are in transport, liability ceases when the drugs have reached their final destination and are available to the consignee.
What must be proved for importation (mens Rea)
- knew about the importation
- knew the substance being imported was a controlled drug
- intended to cause the importation
4 things to be done in first 24hours as o/c phones
- trap the data to be requested
- establish an effective relationship with the telco - use 1 person
- draft early production order
- cell phone attribution
- identify an analyst
How do you prove age for children under 14
- produce birth certificate
- with independent evidence ie parent who can identify person as named in birth certificate.
R v Forest and Forest
What is the criteria for issuing a surveillance device warrant section 51 S & S
To suspect that an offence has been committed, or is being committed, or will 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 premise for the purpose of obtaining evidence about the suspected offence and
To believe that the proposed use of the SDW will obtain information that is evidential material in respect to the offence and
The restrictions in section 45 do not prevent the issuing of a SDW in the circumstances
What are 4 points for an unplanned entry to a clan lab (initial action)
- leave area immediately
- never touch, taste, smell, any chemicals
- do not shut off the water supply to house or chemical reactions
- do not smoke in or near clan lab
- do not re enter clan lab
- do not attempt to stop chemical reaction or turn off y electronic devices
Section 6(1)(a) MODA 1975
Import into or export from NZ any controlled drug other than a controlled drug species or described in part 6 of schedule 3 to this act
Section 6(1)(b)
Produce or manufacture any controlled drug
Section 6(1)(c)
Supply or administer or offer to supply or administer any class a or b controlled drug to any other person, or otherwise deal in any controlled drug
Section 6(1)(d)
Supply or administer or offer to supply or administer any class C controlled drug to any person under the age of 18
Section 6(1)(e)
Sell or offer to sell any class C controlled drug to a person of or over the age of 18
Section 6(1)(f)
Have any controlled drug in his or her possession for any of the purposes set out in paragraph (c), (d) or (e) of this subsection
R v Forest and Forest
The best possible evidence in the circumstances should be adduced by the prosecution in proof of the victims age
Define “Person”
Gender neutral, proved by judicial notice or circumstantial evidence
Proof of age 6(1)(d)
Done by production of a birth certificate along with evidence given to identify them as the person named in the certificate
P v EMERALI - useable amount
In any drug offence the quantity of drug involved must be measurable and useable
R v Donald - supply includes
The distribution of jointly owned property amongst co owners
R v Knox - giving
Includes giving back
R v Maginnis - supply involves
More than a mere transfer of physical control,it includes enabling the recipient to apply the thing to purposes for which he desires
Actual possession
Arises when the thing in question is in a persons physical custody, it is on their person or immediately at hand
Warner v Metropolitan police commissioner- a possessor of a thing has,
- complete physical control over it
- knowledge of it’s existence, its situation and it’s qualities.
Possession section 2(2) MODA 1975- 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
Dealing with controlled drugs. Section 6 MODA 1975
For the purposes of subsection (1)(f) a person is presumed, u til the contrary is proved, to be in possession of a controlled drug for any of the purposes in subsections c, d or e, if he or she is in possession of a controlled drug in an amount, level or quantity at or over which it is presumed to be for supply.
Proof of intent to supply by way of
- offender admissions
- circumstantial evidence ie, digital scales, zip lock bags, tick list
- Statutory presumption amounts for supply
