Drugs Flashcards
How the drugs getting imported in NZ:
- By air and sea
- Concealed in a person or in a luggage
- Concealed in the legitimate goods
- Sent by international mail/courier
Importation
In relation to any goods, means the arrival of the goods in NZ in any manner, whether lawfully or unlawfully from a point outside NZ.
Importation starts at the point of origin and continues until the drugs have reached the ultimate destination in NZ. Liability to starts as soon as the drugs cross NZ border (even if intercepted by Customs)
Anyone who knowingly assists in facilitating the process may be liable as a party.
Saxton v Police
R v Hancox
Saxton v Police
To import includes to introduce from abroad or to cause to be brought in from a foreign country
R v Hancox
The bringing the goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters NZ territorial limits. Importing into NZ for the purpose of s.6(1)(a) is a process.
The element of the process exists from the time the goods enter NZ until they reach their immediate destination, i.e. 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
Guilty knowledge must exist.
Involve the proof that the defendant:
• Knew about importation
• Knew the imported substance was a controlled drug
• Intended to cause importation
Guilty knowledge will be presumed in the absence of evidence to the contrary.
Defence – Defendant genuinely believed what they possessed was not a controlled drug.
R v Strawbridge
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 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.
Wilful Blindness
Proof that the defendant deliberately turned a blind eye to the facts will suffice
Exportation
Exportation starts with an act intended to export the drugs from their origin in NZ and continues until the time when the drugs leave NZ for an overseas destination.
Time of exclusion is the time when the exporting craft leaves the last customs place before proceeding to a point outside NZ.
Controlled Drug
Any substance, preparation, mixture or article specified or described in Schedule 1, 2 or 3 of MODA 1975 and includes any controlled drug analogue.
Controlled Drug Analogue
Any substance that has a structure substantially similar to that of any controlled drug but does NOT include:
• Any substance specified in Schedule 1, 2 or 3 of MODA 1975
• Any prescription medicine
• Any approved product within three meaning of PSA 2013
All control drug analogue are classified as Class C drug.
Class A Controlled Drug:
Controlled drugs specified in Schedule 1 and include: • Cocaine • Heroin • LSD • Meth • Psilocybin (magic mushrooms)
Class B Controlled Drug:
Controlled drugs specified in Schedule 2 and include: • Amphetamine • Cannabis oil / Hashish • Fantasy • Ecstasy • Opium / Morphine
Class C Controlled Drug:
Controlled drugs specified in Schedule 3 and include: • Cannabis plant • Cannabis seeds • BZP • Controlled drug analogue
Mistake as to nature of the controlled drug
It is not a defence these the defendant did not know these the substance in question was a particular controlled drug.
Usable quantity
Police v Emerald
Usable quantity
In any drug offence, the drug quantity must be measurable and usable.
Police v Emerald
The serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance
It is not necessary for the prosecution to prove these the quantity was usable unless the defendant the matter in issue.
R v Rua (Producing and manufacturing controlled drug)
The words “produce” and “manufacture” broadly cover the creation of controlled drugs by some form of process which changes the original substance into a particular controlled drug.
Producing Controlled Drug
To produce – to bring something into being, to bring something into existence from its raw material or element.
Producing – changing the nature of the original substance.
To produce includes to compound.
To compound – to create a whole by mixing two or more ingredients.
Manufacturing Controlled Drug
To manufacture – to combine components or to process raw material to create a new substance. It is a process of synthesis.
Manufacturing – creating a different substance from the original substance.
The offence is complete once the new substance is created (whether or not in usable form)
Supply
R v Maginnis
To supply – to furnish, to provide something that is needed or desired.
To supply includes to distribute, to give, to sell.
R v Maginnis
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.
Distributing
To distribute – to supply drugs to multiple people (including distribution of jointly owned property between the co-owner)
The distribution is complete when the defendant has done all that is necessary to accomplish delivery of drugs to others.
Giving
To give – to hand over an item to another person.
The giving is complete when the recipient accepts possession, or when the drugs placed under his/her control (includes allowing others to help themselves with drugs)
Selling Controlled Drug
To sale – to share a quantity of drug for some valuable consideration.
Does not have to be money – anything of value will suffice.
S.6(5) For the purpose of paragraph (e) of subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug
Administering Controlled Drug
To administer – to direct and cause a drug to be taken into the system of another person.
Offering to supply or administer
What must be proved
The prosecution must prove:
• The communication of an offer to supply/administer (actus reus)
• The intention that the other person believed the offer to be genuine (mens rea)
The defendant must intent the other person to believe the offer is genuine, but it is not necessary to prove that the defendant was capable of supplying drugs.
There may be more than one person guilty of offering to supply.
Offer includes an offer to arrange for someone else to hand over the drugs.
Offer may be conveyed in any manner (verbally, writing, gesture)
R v During
R v Brown
R v Brown (offer)
R v During
An offer is 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:
• Offers to supply a drug that he has on hand
• Offers to supply a drug that will be produced at some future date
• Offers to supply a drug that he mistakenly believes he can supply
• Offers to supply a drug deceitfully, knowing he will not supply that drug
R v Brown (offer)
The making of such intimation, with the intention that it should be understood as a genuine offer, is an offence
To any other person
Person – gender neutral, proven by judicial notice or circumstantially
It is not necessary to prove the identity of the other person
Age is not relevant for Class A & B
Age is relevant for Class C
Proof of age
R v Forrest and Forrest
The prosecution must prove the age of the victim at the time of the offence, using the best evidence possible.
Proof of age may include the producing birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age
Possession
R v Cox
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 awareness by the accused that the substance is in his possession and intention to exercise possession.
Actual custody or control means the person actually has the drug in their custody or control (drugs in the pocket).
Potential possession – (2) for the purpose of this act, a thing which a person has in his possession include anything subject to his control which is in custody of another (storing drugs at friend’s house)
The defendant must also know that the substance is a controlled drug but need not know its exact nature. Physical custody presumes knowledge unless otherwise proven.
To consider whether a person knows the qualities of the substance you need to establish:
• The defendant knows they have the substance
• The defendant knows the nature and quality of the substance
• The defendant intends to use the substance in a way they can be charged with possession
Proof of possession
Both physical (actus reus) and mental (mens rea) elements must be proved.
The Crown must prove that the defendant had:
• Knowledge that the drug exists
• Knowledge that it is a controlled drug
• Some degree of control of it
• Intention to possess it
Knowledge of qualities
It assumed that the person knows the nature of their action unless they produce evidence raising a reasonable doubt about their guilty intent.
Lack of knowledge
A genuine lack of awareness would exclude ‘knowing possession’ and therefore the intent.
A person cannot knowingly possess something they mistakenly but honestly believe they do not possess.
Lack of knowledge caused by memory lapse
If a person forgot about the existence of the substance, they no longer have a requisite knowledge.
Control
To control something – to exercise authoritative and dominating influence over it.
Joint possession
Where two or more found in possession of saleable quantity of drugs, they may be jointly charged with possession, however a shared intention to sell the drugs must be proved.
Attempted possession
It is an offence to attempt to gain possession of the drugs (when a person obtained something in a mistaken belief it was a drug)
Intent
In a criminal law context, there are two specific types of intention.
Firstly, there must be an intention to effect an act.
Secondly, the must be an intention to get a specific result.
Deliberate act – act or omission must be done deliberately and must be more than involuntary or accidental.
Intent to produce a result – aim, object or purpose.
Proving intent
While the offender’s admission is a good evidence, it is a good practice to support these with circumstantial evidence from which the intent can be inferred.
• Action/Words of the offender before/during/after an event
• Surrounding circumstances
• Nature of the act itself
Additional evidence of intent to supply may be inferred from:
• Admission
• Circumstantial evidence (cash, scales, packaging, etc)
• Statutory presumption under 6(6)
Statutory presumption under 6(6)
(6) For the purpose of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any purposes in subsection (1)(c), (d) or (e) if he or she is in possession of the controlled drug in the amount, level of quantity at or over which the controlled drug is presumed to be for supply
In summary, if a person is found in possession of specified quantity of any drug, the person will be presumed to have the drug for one of the purposes of s.6(1)(c), (d) or (e) unless they can prove otherwise.
If the charge can not be specified
Charge should be drafted in the alternative
(possession of Class C Controlled drug for a purpose specified in paragraph (d) or paragraph (e) of subsection (1) of section 6 of MODA 1975)
Schedule 5 MODA 1975 presumptive amounts:
- Heroin/Cocaine = 0.5g
- LSD = 2.5mlg / 25 tabs
- Meth / Ecstasy / Cannabis extract = 5g
- Cannabis plant = 28g / 100 cigarettes
- All other drugs = 56g
Conspiring to deal with controlled drugs
6(2A) Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction to imprisonment for a term –
a. Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the control drugs in relation to which the offence was committed
b. Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class But controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
c. Not exceeding 7 years in any other case
Conspiracy
Agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action.
Conspiracy is complete once the agreement has been made.
Conspiracy can be between two people that one will supply drugs to another.
Conspiring to deal
Conspiracy with one or more people to commit drug dealing offence
In case of conspiracy in foreign country, it must be proved that the defendant has done something to complete the conspiracy in NZ for the offence to come under NZ jurisdiction
Supplying Equipment
To charge someone with supplying equipment the following must be proved:
• The defendant has supplied, produced, manufactured equipment, material, precursors
• Those items are capable of being used to produce or manufacture the controlled drugs or to cultivate a prohibited plant
• The defendant knew this items are to be used for such an offence by another person
Equipment
Implements, apparatus of other hardware used in manufacturing/producing/cultivating process
Material
Anything used in manufacturing/producing/cultivating process but cannot be described as an equipment
Capable of being used
It must be proved that the items are capable of being used in manufacturing/producing/cultivating process
Precursors substance
Substance that is the starting point in a chemical process that will result in the creation of a new drug.
Any substance specified or described in Part 1 or Part 2 of Schedule 4.
(Acetic Anhydride, lysergic acid, ephedrine, etc)
Knowing that the equipment is to be used in the commission of an offence
The defendant must have knowledge, mere suspicion is insufficient.
Knowing means knowing our correctly believing, the defendant may believe something wrongly but cannot know something that is false.
Possessing Equipment
To charge someone with possessing equipment the following must be proved:
• The defendant has equipment/material/precursors in his possession
• Those items are capable of being used to produce or manufacture the controlled drugs or to cultivate a prohibited plant
• The defendant has intention for this items to be used for such an offence by either himself or any other person
Intent for the equipment to be used in the commission of the offence
Intent must be proved, but it’s not necessary to prove that the offence was actually committed or attempted
It’s sufficient if the defendant intents the equipment to be used by another person
Dealing offences include:
- Importing
- Producing / Manufacturing
- Supplying
- Administering
- Offering to supply
- Otherwise dealing
Possession offences include:
- Possession
- Joint possession
- Attempted possession
Restriction on possession of prescription medicine
Medicine Act 1981
(1) No person shall, without reasonable excuse, import, produce, receive, store, use or otherwise have in his possession any prescription medicine
(5) Every person commits an offence against this Act who contravenes subsection (1) of this section
Burden of proof lies with the defendant that he or she was lawfully entitled to possess a prescription medicine
Obstruction offence under MODA 1975
Relates to anyone who is executing powers pursuant to the MODA 1975
(different to Summary Offences Act 1981)
Needles
Possession of needle is not an offence unless the syringe contains a usable quantity of drugs
It is an offence:
• To offer for use a used needle/syringe
• Accept for use a used needle/syringe
• Dispose a needle/syringe in a public place
Allowed to supply needle/syringe:
• Pharmacies
• Medical practitioners
• Authorised representatives of the Health Department
Cultivation of prohibited plants
Section 9 MODA 1975
- Except pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall cultivate any prohibited plant
- Subject to subsection (4) of this section, every person who contravenes subsection (1) of this section commits an offence against third Act and is liable on conviction to imprisonment for a term not exceeding 7 years
- Repealed
- It shall be a defence to a charge under subsection (1) of this section if the person charged proves that the prohibited plant to which the charge relates was of species papaver somniferum and these it was not intended to be a source of any controlled drug or that it was not being developed as a strain from which a controlled drug could be produced
Cultivation of prohibited plant – what must be proved:
- Identify of the suspect
* He / She cultivated a prohibited plant
Use of premises or vehicle
Section 12 MODA 1975
- Every person commits an offence against this Act who knowingly permits any premises or vehicle to be used for the purpose of the commission of an offence against this Act
- Every person who commits an offence against third section is liable on conviction to imprisonment for a term
a. Not exceeding 10 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed
b. Not exceeding 7 years where paragraph (a) of this section 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
c. Not exceeding 3 years in any other case
Controlled Delivery
Occurs when illicit drugs are detected to make it possible for the delivery to be made under control of NZ Customs and Police to identify and secure evidence against those who involved in importation/exportation.
Powers involved in controlled deliveries
- S.12 MODAA 1978 – Allowing delivery of unlawfully imported drugs for purpose of detection
- S.81 SSA 2012 – Searching of persons, places, vehicles relating to deliveries under s.12 MODAA 1978
Opportunity for controlled delivery
The best opportunity is when Customs detected drugs in an unaccompanied freight or luggage.
Methods of importation (when controlled deliveries occur)
- International mail centre (inside mail article)
- International airport (secured on body / luggage)
- Imported air freight (within freight)
- Imported sea freight (within freight)
- Transhipped air/sea freight (transit through NZ to another country)
- Arriving commercial vessels (hidden on board / attached to vessel)
Controlled delivery options
Option 1 – Clean Delivery – no drugs are left within the consignment.
• Eliminates risk of drugs being lost
• Gives greater freedom in organising surveillance
• Reduces risk of alarming the target
But only importation and/or conspiracy charges can be filled.
Option 2 – Amount of drugs are left within the consignment.
• Possession for supply charge can be filled
• Availability of emergency powers
Recovery on termination is paramount
Initial Acton Phase
- Assume ownership/leadership and appoint the roles (O/C investigation, O/C file, O/C exhibits, etc)
- Liaise with the Customs O/C exhibits and take control
- Consider electronic interception
- Request Customs to manipulate ‘Track and Trace’
- Contact the services (surveillance, photography, CMC, TSU)
- Start planning operation, orders, rosters, etc
Profile the package by considering the sender details, in particular:
- Any phone numbers
- SIM / IMEI numbers
- Telco enquiries
- F/P, DNA, handwriting
- Multiple packages including dummy run to a target address
Profile delivery address by considering:
- Occupants
- Previous occupants
- Landlord details
- Local council enquiries (owner, rates, etc)
- Rubbish collection
- Mail deliveries
- Previous mail delivery (CUSMOD)
- PO box owner details
- Electricity and gas
- Telco
- Housing NZ
- CHIS info
- Police staff who dealt with the address
- Police & Customs surveillance
- Security at the address (gates, CCTV, etc)
Profile a potential OP address
Once identified as suitable address, consider:
• Proximity to the target address
• Unobstructed line of sight
• Ability to beam a signal or tap into Telecom cables
• Access to/from without arising any suspicion
• Phone line on the street
• Other conditions relation to the vicinity of OP
Observation Point (consideration)
Consider:
• Camera requirements Vs interception requirements
• Whether Surveillance Device Warrant is required
• Staff having to occupy the OP
Ideally OP is to be set up at ’frienflies’ location
Profile occupants of suitable OP address
- NIA check (convictions, associations)
- Credit check
- Employment
- Power bills
- CUSMOD check
Consideration when approaching occupants of suitable OP address
- Cover story
- Identity protection
- 24 hours access to the room
- No children (if possible)
- No visitors during the operation (if possible)
- Thank you at the conclusion of the operation
Surveillance Device Warrant is required when (Section 46 SSA 2012:)
Section 46 SSA 2012:
(c) observation of private activities in private premises, and any recording of that observation, by means of visual surveillance device,
(d) use of a surveillance device the 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 of recording is by means of visual surveillance device, and the duration of observation, for the purpose of a single investigation, or a connected series of investigations exceeds –
(i) 3 hours in any 24 hours period, or
(ii) 8 hours in total
Repackaging controlled delivery package
Customs responsible for reintroduction of the package
- Liaise with Customs (CTU)
- Consider options for repacking (tracking, audio, opening devices, etc)
- Consider document examiner
- Leave the appropriate quantity of drugs and replace the rest
- Photograph layout by layout
Search Warrant
Issued for places, vehicles, other things:
- Known addresses
- Vehicles
- Post office boxes
- Cell phone (including text messages and call data)
Searching for evidence in relation to importation
- Track/Trace receipt
- Correspondence
- Computers & cell phones
- Emails
- Contact lists
- Packaging, scales, etc
- Money and financial records
- Passports
- Travel documents
Surveillance Device Warrant must contain subject information
- Name
- Address
- Description of the person
- Description of the place
- Description of the vehicle
- Description of other things
Method of delivery
- Re-introduced into mail system and delivered by postie
- Delivered by courier company
- Delivered by Customs/Police posed as postie/courier
- Consider record of interaction
If delivery is to the PO box, consider opening device and Canberra on the box
Addressee is not at the delivery address
Consider:
- Leaving the package in the letter box or at the door
- Attempt delivery at later time
- Leave ‘Card to Call’ and await for further contact
Addressee accepts the package
Consider:
- Monitor temper device and crunch when the package is opened
- Decide on length of time to hold the cordon
- Staff/Resources
- Other operational commitments
Package goes mobile
Consider:
- Control, communication, risk
- Proximity to the target
- Crunch cast is to hold back, surveillance is to relay target activity
- Ensure no lost of communication
Target goes mobile with no package (or visa versa)
Consider:
- Control, communication, risk
- Surveillance on both (target and package)
- Observation on package all the times to avoid loss
Emergency powers – controlled delivery
Emergency powers – stop the vehicle
Emergency powers – suspect at large
Emergency powers – controlled delivery
S.81 – entry, search and seizure relating specifically to controlled delivery
Emergency powers – stop the vehicle
S.121 – stop the vehicle to exercise statutory power of search (to recover the package)
Emergency powers – suspect at large
S.9 – stop the vehicle to arrest an occupant (in case there is no package in the vehicle)
Early notification to TSU is essential to:
- Discuss operational requirements
- Allow secure installation of the device
- Ensure TSU staff/equipment is available
- Obtain a tracking device warrant if the tracking device cannot be retrieved within 72 hours
Audio device
- Surveillance device warrant is required to intercept a private communication
- Allow secure installation of the device
- Can only be installed by the Police (TSU)
- Notify TSU early
- Must be monitored
Legal authority to install tracking device
Section 46 SSA 2012 requires a surveillance device warrant where:
(b) use of tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods,
(d) use of a surveillance device that involves trespass to land or trespass to goods
Surveillance device induce tracking device
Urgency/Emergency use of surveillance device
In urgent situation a surveillance device can be installed for up to 48 hours without obtaining a warrant if entitled to apply for such warrant but impracticable in circumstances.
Internal search or internal concealment
S.23 SSA 2012 relates to conducting an internal search of people believed to be concealing drugs internally. Constable can make a request for the internal search. Suspect must be under arrest for a specific offence.
Similar powers in s.13A MODA 1975 but only in relation to Class A and B.
Customs or Police can make a request.
Judge may detain the suspect under this section.
Electronic operations – Drug dealing offence
An offence against section 6 MODA 1975 involving Class A and B controlled drug (does not involve Class C drug)
Evidential material
Evidence of the offence, or any other tangible of intangible item of relevance to the investigation of the offence
Private communication
Means communication (oral, written, telecommunication) made under circumstances that may reasonably be taken to indicate the any party to the communication desires of to be confined to the parties to the communication. Does not include communication occurring in the 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
Means 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 telecommunication).
Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
Interception device is restricted to obtain evidential material for serious offence only (punishable by 7 or more years) or against certain offences against the Arms Act
Interception device – exception
Warrant is not required for a covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them
Visual surveillance device
Means electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to observe of to observe and record a private activity.
Does not include spectacles, contact lenses, or similar device used to correct subnormal vision of the user to no better than normal vision.
Visual trespass surveillance
Trespass surveillance involving the use of the visual surveillance device.
Visual trespass surveillance device is restricted to obtain evidential material for serious offence only (punishable by 7 or more years)
Tracking device
Means a device that may be used to help ascertain:
• The location of a thing or a person
• Whether a thing has been opened, tampered with or in some other way dealt with
Does not include a vehicle or other means of transport such as a boat or helicopter
Surveillance devices
- An interception device
- A tracking device (beacon or GPS)
- A visual surveillance device
A device that enhances your normal capability to carry out surveillance.
Visual device– to observe and record
Interception device – to hear and record
Tracking device – to locate a person/thing and whether the thing has been opened/tampered with
Surveillance includes
- Observing/recording of people, vehicles, places, things
- Tracking the location of a person, thing and/or if the thing has been opened/tampered/dealt with
- Intercepting a private communication through the use of surveillance device
Activities that do not require warrant
- An enforcement officer being lawfully in private premises and recording what they observe and hear there (without using a surveillance device)
- Covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them
- An enforcement officer carries out surveillance activity if the use of surveillance device is authorised under any enactment other than this Act (SSA 2012)
Surveillance in emergency situations
Warrant is not required (obtaining is not practicable in circumstances) in emergency situations concerning the following offences:
• Punishable by 14 or more years
• Arms Act 1983 offences
• Drug offences
• Likely to cause serious injury/damage and surveillance is required to prevent the offence from being committed/continued
• Risk to life/safety and surveillance is required as an emergency response
Drug offences involving controlled drug specified in Schedule 1, part 1 of Schedule 2, part 1 of Schedule 3 or precursors specified in part 3 Schedule 4 of MODA 1975 AND it’s believed that surveillance would obtain evidential material.
Surveillance device cannot be used without warrant for more than 48 hours.
R v McGinty
R v McGinty
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 with success, was sufficient. A judge was not required to refuse a warrant because the police had not exhausted every alternative technique of investigation.
Protection of CHIS identity
R v McGinty
Protection of CHIS identity
It’s a good practice not to state the name of CHIS but to use their registered number.
R v McGinty
Disclosure of the identity of the alleged informant 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 the informant. However, the trial judge was entitled to insist on disclosure of he saw fit.
CHIS identity is protected by s.64, however the judge may reveal the information to prevent miscarriage of justice. The onus is on the accused to satisfy the court that there is a good reason to disclose the information, but the court has ultimate discretion.
Privilege must/may be disallowed (s.64 exception)
- The judge must disallow the privilege where there is prima facie these the information was given for a dishonest purpose or to enable anyone to commit an offence.
- The judge may disallow the privilege if the judge is of the opinion that it is necessary to enable the defendant to present an effective defence.
Application for surveillance warrant
The application may only be made by an enforcement officer and must contain:
• Name of the applicant
• Provision authorising to make the application
• Ground for the application
• Suspected offence(s)
• Type of surveillance device
• Name, address, other description of the person, place, vehicle or other thing being an object of surveillance
• Period for which the warrant is sought
Criteria for issuing surveillance warrant
- RGTS that an offence has/is/will be committed in respect of which this act authorises an enforcement officer to enter a premises to obtain an evidential material in relation to that offence
- RGTB that surveillance warrant will obtain evidential material in relation to that offence
Duration of the surveillance device warrant
Warrant can be issued for up to 60 days.
The judge may issue further surveillance device warrant after that.
Reporting requirements
A person carrying out the surveillance warrant activity is to provide a written report to the issuing judge within 1 month of its expiry date.
Admissibility of evidential material in relation to other offence
Evidential material obtained as a result of surveillance warrant in relation to some other offences is nevertheless admissible.
Consensual interception
Where a party to communication know these an interception is taking place, this is no longer a private communication and, therefore, not covered by the green of interception warrant.
Who carries out the surveillance device warrant
The warrant may be carried out by any of all persons to whom it is directed and any assistant who called upon by that person.
Disclosure of interceptions
The defendant is entitled to disclosure of all interceptions involving themselves (subject to withholding grounds)
The withholding grounds are:
• Information likely to prejudice maintenance of law
• Information likely to endanger safety of any person
• Information likely to prejudice security/defence of NZ
Telephone investigation – no search warrant required in emergency situation
For hot offences (missing/kidnapped people, etc) and other emergency situations, the police can request internship from TSP on public interest grounds without the search warrant
ClanLab indicators
Outside: • Chemical odours • Exhaust fans running at odd time • Visitors at odd time • Windows blackened • People coming outside only to smoke • Occupants unfriendly • Security features • Unnamed medical containers in the rubbish bin
Inside: • Containers with clear liquid and chalky solids • Containers with two layout liquids • Used coffee filters • Baking dishes with crystal substance • Hot plates near chemical
ClanLab – Types of investigation
• Unplanned entry
ClanLab discovered during the course of normal duty
• Planned entry
When you have knowledge of ClanLab which allows you to obtain SW and plan execution
ClanLab – Safety considerations
- Leave the area immediately
- Do not touch/smell/taste chemical or equipment
- Do not stop chemical reaction
- Do not turn off water supply
- Do not smoke
- Do not use cell phones/radio
- Do not re-enter
ClanLab – exposure to chemical / symptoms
- Headache
- Burning eyes
- Burning skin
- Coughing
- Weakness
- Shortness of breath
ClanLab – types of ClanLab
- Extraction
- Conversion
- Synthesis
ClanLab – Children at ClanLab
Any kids located at ClanLab are considered to be at immediate danger and must be removed to ensure their safety and wellbeing
Emergency definition (Hazardous Substance and New Organism Act 1996)
Actual or imminent danger to human health or safety, or danger to the environments is so significant that immediate action is required to remove the danger
S.6 MODA 1975 Offences (category three)
- Importing/Exporting
- Producing/Manufacturing
- Supplying/Administering or offering to supply/administer
- Selling or offering to sell
- Possessing for any of the above purposes any controlled drug
S.7 MODA 1975 Offences (category two)
- Possessing/Consuming controlled drug
* Supplying/Administering or offering to supply/administer Class C Controlled drug
Trial election
• Defendant has the right to elect trial by jury for category 3 offence
• Defendant does not have the right to elect trial by jury for category 2 offence
If one charge is tried by jury, then all charges must be tried by jury
If one charge is tried by High court, then all charges must be tried by High court against ALL defendants
Crown Prosecution charges
Charges automatically go to the Crown:
• S.6(1)(b) Production/Manufacturing (conspiring to) Methamphetamine
• S.10 Aiding offences
• S.12C Commission of the offence outside NZ
- S.6(1) or (2A) CLASS A if -
- Quantity 5 times more than presumption threshold
- Evidence of large scale dealing
- Evidence derived from Surveillance Device involving audio interception
- S.6(1) or (2A) CLASS B if –
- Quantity 10 times more than presumption threshold
- Evidence of large scale dealing
- Evidence derived from Surveillance Device involving audio interception
- S.6(1) or (2A) CLASS C if –
- Evidence of large scale dealing
- Evidence derived from Surveillance Device involving audio interception
Large Scale Dealing
Means quantity 5 times more the presumption threshold.
Large scale dealing may be substantiated by:
• Admission
• Amount of equipment found in the defendant’s possession
• Volumes of precursor material
• Evidence of chemical purchases
• Intercepted communications
• Observation evidence
• Significant cash holding
• Records of proposed and actual sales
• Evidence of co-offender and witnesses
Large Scale Commercial Dealing
Large scale commercial dealing may be substantiated by:
• Admission
• Volume of drugs found in the defendant’s possession
• Intercepted communications
• Significant cash holding
• Records of proposed and actual sales
• Evidence of co-offender and witnesses
• Evidence of continuing course of conduct
Cannabis cultivation categories
- Category 1 – small number cultivating for personal use
- Category 2 – small scale cultivation for commercial purpose
- Category 3 – large scale commercial cultivation
Large Scale Commercial Cultivation
Large scale commercial cultivation may be substantiated by: • Admission • Volume of cannabis found in the defendant's possession • Intercepted communications • Significant cash holding • Records of proposed and actual sales • Evidence of co-offender and witnesses • Evidence of extensive crop yields
Prosecution time limits
Any time: • S.6 – Dealing • S.9 – Cultivating • S.10 – Aiding Offences Any other offences – 4 years after the commission
Bail
By High Court judge or District Court judge only.
The defendant must satisfy the court that:
• Bail should be granted
• He will not commit drug dealing offences whilst on bail
Analysis Certificate
Can may be produced if the procedure are followed:
• Chain of custody unbroken
• Material not contaminated
• Defence advised of the analysis result (7 clear days before the hearing)
Protection of police from commission of the offence
Police officer who commits an offence in the course of the duty is protected by s.34A
