DRUGS Flashcards
Outline s.23 SSA12 re internal searches
Person under arrest for s.6,7,11 offence in respect of any class drug.
Reasonable grounds to beleive internal concealment of any property which may afford evidence against the suspected ofence or any other offence against 6,7 or 11.
Any constable may request susepct to permit to search conducted by Medical practioner nominated by the constable to search for property which may be evidential material.
Court may decline to consider bail untill the earliest of 2days after the request was made or the person permits to search.
outline s 16 Bail Act
S.16 A defendant charged or convicted of a drug dealing offence may only be granted bail by a district/high court judge.
(Drug dealing offence means any offence against .6 or s.12C(1)(a) (offences against corresponding law outside NZ) in respect of a Class A or B drug)
What must be done for a analyst certificate to be admissible and For evidence in the certificate to admissible what procedures must be strictly followed?
The certificate is only admissible if: 1. Served on defendant at least 7 clear days prior to hearing 2. Defendant does not at least 3 days prior to hearing give written notice that the analyst is to be called. 3. The court does not request the oral evidence of the analyst. For evidence in the certificate to admissible what procedures must be strictly followed: 1. Chain of evidence unbroken 2. Material to be analyzed not contaminated/tampered with 3. Defence is aware of the analysis and results and is given a reasonable time to prepare a defence
What MODA offences are cat 2 and cat 3 And what Charges are automatically CROWN prosecutions:
s.6 offences are category 3. (electable trial by jury) s.7 offences are category 2. (JAT only (no election)) Possession and consumption of CD Supply, administer offer to supply/administer Class C In a situation with multiple charges If one charge is elected Jury trial all charges with follow. Similarly with multiple defendants charged together unless in exceptional circumstances. Charges that are automatically CROWN prosecutions are: o 6(1)(b) and (2A) manufacture/produce and conspiracy to manufacture/produce. o S.12C Commission of offences outside NZ o S.10 aiding offences against corresponding law of another country corresponding to s.6, 9, 12A or 12AB
What activities require a surveillance device warrantL
1) use of an interception device to intercept private communications. 2) Use of a tracking device except where it is installed purely for the purpose of ascertaining whether a thing has been opened, tampered with or in some other way dealt with and the installation does not involve trespass to land or goods. 3) Observation of private activity in private premises and any recording of that observation by means of a surveillance device. 4) use of a surveillance device that involves trespass to land or goods. 5) Observation and recording of private activity in the curtilage or private premises, if any part of the observation or recording is by means of a surveillance device and exceeds 3 hours in 24 or 8 hours in total.
If an Audio device is required in a controlled delivery what should you be aware of?
• ALLOW SUFFICIENT TIME FOR INSTALLATION • A SDW is re. to intercept private comms • Installation of audio device can only be done by Police TSU member • Audio device must be monitored even when mobile, discuss requirement early with TSU • For audio device installation involve TSU involving TSU early will result in earliest release of package for delivery.
What 4 things must be done by OC phones in the first 24 hours?
• Trapping or pre-loading phone data at the telecommunications service provider, this is a daily continuous process for new numbers. • TSP Liaison; establish an effective working relationship with the TSP find one person to deal with the inquiry- ownership is critical. • Draft a Production order application early, the application outlines the backbone of the enquiry and will form the basis of all future PO’s and search Warrant applications, ensure it is updated as the enquiry progresses, including the results of previous PO’s and 4X’s.
Discuss proving age? S.6(1)(d)
• Proof of Age o In practice this generally involves producing the victims birth certificate in conjunction with independent evidence that identifies the victim as the person so named. o Ideally the best evidence will be that of a parent. o R v FORREST and FORREST • “The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
Discuss s.64 Evidence Act 2006 in relation to the protection of informer identity?
S. 64 grants privilege to informers that protects their identity and extends to information that could likely expose their identity. In essence you are not required to identify your informant.
Define ingredient: Produces
Produce: to produces means to bring into being or cause to be brought into existence from its original ingredients of elements COMPLETE: the offence is complete once the prohibited substance is created whether or not it is in its useable form R v RUA: the offences of manufacture and produce in 6(1)(b) broadly cover the creation of controlled drugs by some for of process which changes the original substances into a particular controlled drug.
What must the crown prove in terms of the Mens rea of Importing?
• The crown must prove the defendants conduct contributed to the import/export in some way as well as guilty knowledge that they: o knew about the import, o know the imported substance was a CD, o intended to cause the import. • Proof the defendant turned a blind eye (willful blindness) will suffice in proving guilty knowledge.
What is it unacceptable for undercover officers to do?
It is not acceptable for an undercover officer in the course of his duty to make initial approaches which may result in the commission of an offence
What are the 3 offences under s.11 of the Health regulations act
Every person commits an offence who; * offers to any person for that persons use a used needle or syringe * Accepts for use a used needle or syringe * Disposes of a needle or syringe in a public place
How many days can a surveillance device warrant be in force?
60 days.
Define a serious offence in respect to trespass surveillance?
7 years or more and certain arms act offences.
what is the minimum level of PPE for the initial entry team?
Boots, SRBA, Balaclave, fire resistant gloves, flame resistant overalls, fire and chemical resistant overalls
What are the emergency powers under the Hazardous substances and new organisms Act 1995?
1) power to enter and dwelling or premise at any time
2) exercise any powers in s.103 and 119(5)
3) direct any person to cease activity that could contribute to the emergency
4) requisition ay property to use in the emergency
4) Direct any person to refrain from entering the vicinity of the emergency
Where does the power come to stop a vehicle to exercise a statutory power of search (controlled delivery execution) and to k9 a suspect at large ?(suspect without drugs on him)
Power to stop a vehicle to exercise stat power of search SSA12: s.121 Power to stop vehicle to k9 suspect at large (no longer with drugs); s.9 SSA12
What evidence can an intent to supply can be inferred from?
o Admissions o Circumstantial evidence; scales, packaging, cash, tick lists, o Presumptive amounts s.6(6) MODA75 • “For the purpose of s6(1)(f) a person is presumed until the contrary is proven to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d) or (e) if he or she is in possession of the controlled drug in an amount, level or quantity at or over which the controlled drug is presumed to be for supply.” • The presumption may be rebutted by the defendant proving on the balance of probabilities that they did not intend to commit a drug dealing offence notwithstanding the amount. • A person who is in possession of a CD under the presumptive amounts can still be charged with possession for supply if there is other circumstantial evidence such as; the environment in which the drugs were found, the way in which they were packaged, the suspects admissions, the presence of large amounts of money, or tick lists showing sales. • R v PATTERSON in relation to a Class C where there is not evidence of intent to supply to a person under 18 (1)(d) then the charge wording should stipulate “for the purpose of sale” • R v TRACEY in relation to a Class C when the particular purpose of possession is uncertain or cannot be proved then the charge should be written in the alternative ie: for the purpose of 6(1)(d) OR 6(1)(e).
outline s 17A Bail Ammendment act
S.17 A defendant over 17 charged with a serious Class A drug offence
may only be granted bail if they satisfy the judge on the balance of probabilities
that they will no commit any further dealing offences
Serious Class A Drug Offence means any offence against s.6 or 12C(1)(a) involveing a Class A drug and includes any attempt to commit such an offence
(12C(1)(a) commission of an offence outside NZ)
What was held in Police v EMERALI
• In any drug offence the quantity of the drug involved must be measurable and useable. o It is not necessary for the prosecution to prove a quantity is useable unless the defence puts the matter in issue. Police V EMERAL “The serious offence of possession of a narcotic does not extend to some minute and useless residue of the substance”
When is the offence of manufacturing complete?
The offence is complete once the prohibited substance is created whether or not it is in its useable form
What are the ingredients of the offence s.12A(1) and what three elements must be proven? (Manufacture Equipment or precursors 7 years)
Every person commits an offence who supplies, produces or manufactures (a) any equipment or material capable of being used for or in the commission of an offence against s.6(1)(b) MODA75 (produce/manufacture) or s.9 (cultivation of a prohibited plant) OR (b) Any precursor substance Knowing that equipment, material or substance is to be used in or for the commission of an offence against s.6(1)(b) or s.9. • The crown must prove 3 elements; o That the defendant supplied, manufactured or produced equipment, materials or presursors. o That those items were capable of being used in the production or manufacture of CD or the cultivation of a prohibited plant. o That the defendant knew those items are to be used for such an offence by another person.
Outlines 2 methods of delivering an exhibit to ESR ad to ensure the chain of custody what must an OC be able to do?
- In person to analyst who is to issue the certificate or a person authorized by the analyst to receive it
- By registered post or courier with signature required in a sealed package to an employee authorized by the analyst in charge of the lab.
• To ensure chain of custody OC must be able to;
o Describe packaging by sealing and labeling with file reference
o Quote registered mail number and other details of registered mail
o Provide receipt of its delivery to ESR
Explain S.6(5)
• s.6(5)MODA75 o Creates a presumption that in the absence of evidence to the contrary a drug supplied to a person of or over 18 has been sold to that person. • The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale. • It is only a drug dealing offence under s.6, if the CD is sold or offered for sale, simple supply, administering or offering to administer or supply a CD will incur liability under s.7.
What activities do not require a Surveillance Device Warrant?
• Being lawfully in a private premise and recording what he of she hears (providing it is only recorded what they could see or hear without a SD) • Covert audio recording of a voluntary oral communication between two or more people with the consent of at least one of them. • Activities carried out authorized by any other enactment.
what is the definition of an evidential transcript
A verbatim copy of the recorded version of the conversation
When profiling the addressee of a controlled delivery what should you consider?
• Previous occupiers • Ascertain if name is real or fake • Connections to the delivery address • Relevant convictions/noting’s/associations • Travel or connections to country of origin • Bank accounts and any large deposits or overseas transactions • Full identification of targets • Photographs; casual, formal and surveillance • Police intelligence holdings; NIA, previous investigations, MO section, IMP, arresting officers. • Suspects knowledge surround covert techniques • Suspects skill and knowledge surround technology; phones faxes, computers etc. • Suspects travel history including passports held. • Intelligence held by other agencies • Financial profile • General lifestyle; sports and hobbies • Business associations. • Tracking device • Risk assessment
In what circumstances would the privilege of informer annomiity be disallowed by a judge
where there is a prime facie case that: the info was given for a dishonest purpose or to enable or aid a person to commit or plan to commit an offence or if it is necessary for the defendant to present an effective defence.
At what point does dealing become large scale?
At more then 5 times the presumptive threshholds
What is the definition of a controlled Drug
Controlled Drug s.2 MODA75 Means any substance preparation mixture or article specified or described in Schedule, 1, 2 or 3 of this Act and includes any controlled drug analogue. Class A schedule 1 etc
What is a controlled delivery and who has the power to undertake one?
• Power to undertake a controlled delivery is vested in Customs only. A controlled delivery occurs when a consignment of illicit drugs is detected often concealed in some other goods in circumstances making it possible for delivery of those goods to be made under the control and surveillance OF NZ CUSTOMS or Police with the view to identifying and securing evidence against those involved in the importation or exportation.
How can the presumption a drug is for supply be rebutted
If the defendant is able to prove on the balance of probabilities that they did not intend to commit a dealing offence for example the defence proving the suspect was heavily addicted and required large amounts for their personal use.
What was held in R v BROWN
• R v BROWN held that the defendant is guilty in the following situations o Offers to supply a drug he has on hand. o Offers to supply a drug that will be procured in the future o Offers to supply a drug he mistakenly believes he can supply o Offers to supply a drug deceitfully knowing he will not supply the drug. • Such an offer may be conveyed in any manner including by words, writing or actions. • It is not necessary to prove the defendant had the capacity to supply the drugs.
What is the definition of an emergency under s.135 of the Hazardous substances and new organisms act 1996
• S135 • Emergency means; o Actual or imminent danger to human health or safety OR o A danger to the environment or chattels so significant that immediate action is required to remove the danger arising from a hazardous substance or new organism.
What evidence should look for in a search warrant for a controlled delivery?
Evidential Material to be sought for evidence of Importing; • Track and trace receipts • Correspondence • Computers, faxes and cell phones • Emails • Contact lists and numbers • Packaging from previous importations • Money and financial records • Scales and packaging in relation to supply of drugs • PO Box documentation • Travel documents and passports
Define administer and provide an example
• Administering involves introducing a drug directly into the system of another, common examples being; injecting another with heroin, heating resin between two knives, causing a person to consume a date rape drug.
With respect to an offer to supply what two things must the prosecution prove:
*An offer to supply a controlled drugs occurred *and an an intention that the other person believe the offer to be genuine. o If an offeree offers tablets as a drug which in fact are not they are still liable as it is the drug that is being offered not the tablets. The representation that it is a drug is the whole point of the offer. o
When profiling the address of a controlled delivery shat should you consider?
- Occupants
- Owner and rate payer details
- Council plans of address and street
- Rubbish delivery date and time
- Housing new Zealand
- Telco service providers
- Electricity/gas providers
- Timing of mail to address
- Suspects maybe surveiling or monitoring address.
- Previous occupants and neighbors
- Landlord or owner of property • Police staff who have previously visited address • CHIS for historic info or tasking’s • Fixed or mobile surveillance • Photography and video of address • Customs and Police powers for expediently obtain information • Mail stop or flag to capture further deliveries. • Suspects maybe surveiling or monitoring address.
Define the 3 paragraphs contained in every drug liability
MUST PROVE GUILTY KNOWLEDGE This will involve proof that the defendant: * Knew about the supply/offering/Administering/Possession AND * Knew the substance was a Controlled Drug AND * Intended to cause the supply/administer/possession AND Police V EMERALI In any drug offence the quantitity of the drug involved must be useable and measurable. The serious offence of possession of a narcotic does not extend to some minute useless residue of a substance Police V STRAWBRIDGE It is not necessary for the prosecution to establish knowledge on the part of the accused, in the absence of evidence to the contrary knowledge on her her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds her act was innocent then she is entitled to be acquitted unless the jury find beyond reasonable doubt that it was not so.
What are some clan lab indicators (outside)
• Chemical odours coming from the building, rubbish or detached buildings, odours can be bitter, sweet, ammonia or solvents. • Exhaust fans running at odd times. • Frequent visitors at odd hours. • Windows blackened out or curtains always drawn • People coming outside only to smoke • Occupants unfriendly, appear secretive about activities, exhibit paranoid or odd behavior • Expensive security and surveillance gear • Access denied to landlords, neighbours and visitors. • Rubbish containing a large amount of cold medicine packaging • Bottles, plastic containers and boxes with labels removed.
define class (c) controlled drug
means the controlled drugs specified or described in Schedule 3 of this act and includes any controlled drug analogue
In relation to importing, when is someone liable and when does liability cease. Discuss being a party and R v HANCOX
• Liability arises as soon as the drugs cross NZ borders • The offence continues until the point that the drugs have reached their final destination and are available to the consignee. • Anyone who knowingly assists in facilitating the process up to that point may be liable as a party to 6(1)(a). • R v HANCOX held that delivery to a post office box was the final step in the import process. Any movement from then onwards would be possession for supply.
Explain “Equipment” s.12A(1) and give examples?
• The term equipment is not defined by statute but will include the implements, apparatus and other hardware used in the manufacturing, producing or cultivation process. o Eg; glassware, condensers, heating mantles used in meth manufacture OR o pots, lights, timers and water pumps used I cannabis cultivation. • Material is also not defined but will include anything used in the process of producing, manufacturing or cultivating that cannot be properly described as equipment. o EG; chemicals (not precursors) documents providing instructions on the manufacture or cultivation process, fertilizers for cultivation.
what is the definition of an interception device
means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication including a telecommunication but does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
