Drugs SA Flashcards
Presumption For Supply Amounts Heroin Cocaine LSD Meth MDMA Cannabis Resin Cannabis Plant
Heroin - 0.5g Cocaine - 0.5g LSD - 2.5mg or 25 tabs Meth - 5g MDMA - 5g or 100 tabs Cannabis Resin - 5 grams Cannabis Plant - 28grams or 100 tinnies
Who can bail a person charged with manufacturing Meth
High Court Judge
Time limit for laying charges for sec 6 Drug dealing offences
No time limit
when is importation complete
one that states it is irrelevant if it is available to the addresse
When they reach final destination
Difference between produce and Manufacture
Produce - Bring something into being or something into existence from its raw materials or elements
Manufacture - The process of synthesis, the combining of components or the processing of raw materials to create a new substance
Who proves if a drug is useable?
Prosecution if the defendant puts the matter in issue
Definition of Supply
Distribute sell and give
Two methods two deliver drugs to ESR
In person
By registered Post
Sec 16
Obstruction
- Everyone 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.
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.
defendant claimed she did not know the plants she had cultivated were cannabis
R v During
OFFERS TO SUPPLY
“[An offer is] an intimation by the person charged to another that he is ready
on request to supply to that other, drugs of a kind prohibited by the statute”.
R v Brown
OFFERING TO SUPPLY
· offers to supply a drug that he has on hand
· offers to supply a drug that will be procured 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
defendant charged with offering LSD even when upon testing the tabs had no LSD.
What Three things to prove for guilty knowledge
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
Health Regulations Act reg 11
what are the three offences
(a) Offers to any other person, for use by that other person, a used needle or used syringe;
(b) Accepts for use a used needle or used syringe;
(c) Disposes of a needle or syringe in a public place
Ingredients for Supply Class C under 18 years
Section 6(1)(d), MODA 1975 8 years
- Supplies or Administers OR Offers to Supply OR Offers to administer OR Otherwise deals in
- Class C controlled drug
- To any person under the age of 18 years old
5 Clan Lab signs from the outside
- Chemical Odours coming from building
- Exhaust fans running at odd times
- Frequent visitors at odd hours
- Windows blacked out
- People coming outside only to smoke
- Occupants unfriendly, appear secretive
- Expensive security Gear
- Access denied to visitors
- Rubbish containing large amount of cold medication
- Bottles, plastic containers with labels removed
Ingredients for Allowing Premises
Section 12, MODA 1975
10 yrs / 7 yrs / 3 yrs
- Everyone who
- knowingly permits
- any premise, 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
discuss Option 1 and 2 for controlled deliveries
- Clean controlled delivery - no drugs are left in the consignment - only conspiracy or importation charges available
- Leave an amount of drug in the consignment - allows charge of possession and emergency search powers - needs more security
Equipment, material, and substances used in production or cultivation of controlled drugs
Section 12A, MODA 1975
7 yrs / 5 yrs
(1)
- Everyone who
- Supplies, Produces or manufactures
(a) Any equipment or material capable of being used in or for the commission of an offence against section 6(1), OR
(b) 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.
(2) - Everyone who - has in his or her possession (a) Any equipment or material capable of being used in or for the commission of an offence against section 6(1) OR (b) Any precursor substance
- with the intention the equipment, material or substance is used in the commission of an offence
Difference between 13A MODA 75 and Sec 23 S & S Act 2012 - internal searches
13A MODA 75 For dealing with people believed to be concealing class A or B. Police or Customs can request a warrant from a Judge to detain
23 S & S Act 2012
Any class.
People being searched must be under arrest for specific offences.
Must be made by a Constable
Criteria for sec 51 Surveillance device warrant
- RGTS offence has/will/is being committed
- Offence would authorise enforcement officer to apply for a warrant to enter premises to obtain evidence
- RGTB surveillance device will obtain information that is evidential material
- section 45 does not prevent issuing of warrant
Clan Lab safety considerations
- Leave the area
- Do not touch, taste or smell
- do not attempt to stop chemical reaction
- do not shut off water
- do not smoke
- Do not use tools, radios, cell phones
- do not re enter
3 steps for using certificate of analysis instead of ESR
- defendant is served 7 days before hearing and provided with a copy
- the defendant does not give written notice for the analyst to be called, at least 3 days before hearing
- the court does not request oral evidence of thehearing.
What must you prove to rebut section 6(6) presumption for supply?
That the amount of the drug was not intended for supply
Offering to Supply or administer, what two elements must be proven
- Communicating of an offer to supply or administer a controlled drug (actus reus)
- an intention the other person believes the offer to be genuine (mens rea)
Controlled Drug
Means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2, or Schedule 3 of this Act and includes any controlled drug analogue.
SEC 2 MODA 1975
Class c Controlled Drug
Means the controlled drugs specified or described in Schedule 3 to this Act,
and includes any controlled drug analogue.
SEC 2 MODA 75
When is offence of manufacturing complete
When the substance is created, doesnt need to be useable
What offence for a surveillance device for interception or trespass
Serious offence
7 years or more
Who can call a landslide in clan lab
any member of initial entry team
4 things to consider with an OP for controlled delivery
- Suitable location
- Camera OP requirements
- whether surveillance device warrant required under S & S act 2012
- the staff having to occupy the OP
90 second rule in a clan lab
If the offenders are present and moving in the laboratory then the atmosphere will sustain life.
Initial Entry Team has 90 seconds to enter and extract suspects
4 ways a controlled delivery could come about
- International mail centre
- International Airport (arriving person carrying drugs)
- Imported air or sea freight
- Tran-shipped air or sea
- Arriving commercial vehicle
3 things that must be proven for supply equipment
- The defendant supplied/produced/manufactured equipment/material/precursor
- those items are capable of being used in the production or manufacture
- Defendant knows those items are to be used for such an offence
4 times when a surveillance device warrant is required
Sec 46 S & S Act 2012
- interception device used to intercept private communication
- use of tracking device
- observation and recording of private activity in private premises with visual surveillance device
- use of surveillance device that involves trespass to land or goods
- observation/recording of private activity in the curtilage or private premises with visual surveillance device and duration exceeds 3 hours in 24 hour period or 8 hours in total
Sec 16 Bail Act 2000
Defendant is charged with Drug dealing can only be bailed by a High Court Judge or District Court Judge but not otherwise
Sec 3 MODA 75
Definition of Drug Dealing offence
Sec 6 or 12C(1)(a) MODA 75 in relation to Class A or B or an attempt
12 things you must do for initial action at clan lab when CYPS are located
- Remove CYP
- Assign officer to look/monitor CYP
- Assessment of CYP for injury/illness
- Request for OT attendance at the scene
- Distribute Protective Equipment to OT staff and decontamination kit to CYP
- Most appropriate decontamination for CYP
- Photograph CYP at the scene
- Recording of physical condition of CYP
- Record mental state of CYP
- Consider swabbing CYP for chemical residue
- Secure clothing worn by CYP
- Prelim interview with CYP
Things to cover in initial interview with CYP at clan lab
- Basic health questions, headache, nausea etc
- Occupants details
- Details of other siblings
- Sleeping arrangements
- Playing/eating areas
- School details
- Name of doctor
- Knowledge of drugs
Who leads controlled drug delivery operation
Customs
How many days can a surveillance device warrant be in force
60
Difference between Obstruction in Summary Offences and MODA 75
In MODA 75, Obstructs anyone in the execution of power under MODA 75
John gave his mate an analogue of meth - guilty of supply class A or C
C
Didnt check luggage that was given to her - guilty of importation?
yes
first priority when at clan lab
staff and public safety
Police v Rowles
Where guilty knowledge is an ingredient of a charge a person cannot be in possession which he mistakenly but honestly believes he doesn’t have
R V RUA
The words “produce” or “manufacture” in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances
into a particular controlled drug.
There is not two separate and distinct crimes, one must be chosen
Does a CHIS have to be named in a warrant?
Sec 64 Evidence Act 2006
Grants privilege to informers that protects their identity. Not required by law, use code name.
R v McGINTY
Disclosure of identity is not required at Trial Judge was correct to delete certain parts of the application
Police v Jay
Guilty
Commission of offence of receiving cannabis is not legally impossible even if factually impossible as defendant had criminal intent.
Took possession of hedge clippings believing them to be cannabis.
Controlled Delivery definition
When consignment of illegal drugs is detected, often concealed. Delivery of the goods made under the control and surveillance of NZ Customs and Police Officers with a view to ID those involved and secure evidence.
R v HANCOX
The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination … [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee”.
Importation ended when delivery of MDMA reached letterbox, Woman who cleared letterbox not guilty as she did not assist importation.
4 things that must be done in first 24 hours
O/C Phones
- At service provider, “trap” phones to maximize opportunity to retrieve messages.
- Establish effective working relationship with Telecommunications service provider
- Production Order Application
- Draft Search warrant application
- Execute s6 search warrants daily
- In emergency situations, warrant not needed
- Attribute phone and number to offender during interview
4 points for unplanned entry to clan lab
- Immediately remove persons of interest
- Isolate site and maintain safe perimeter
- preserve crime scene
- Notify duty inspector or NCO, contact NCLRT and fire service
- seek advice from NCLRT about decontamination
- staff who entered address and occupants to remain separated until after decontamination
- seek medical advice if suffer adverse effects
What points to consider when profiling the addresse of a controlled delivery
- Previous Occupiers
- Real person or fake name
- connections to delivery address
- relevant convictions / notings
- Travel
- Bank accounts
- photographs
- Police Intelligence available
- suspects knowledge of covert techniques
- other agency intelligence
- financial profile
- family members
- business associations
- tracking device for vehicles
- risk assessment
Section 28
time limits for all offences
Dealing + cultivation + aiding offences in other countries = no limit
any other offence = 4 years after date offence was committed
Signs of a clan lab
interior
- Laboratory glassware
- containers with clear liquids with chalky colored solid on bottom
- containers with two layered liquids
- Used coffee filters containing white paste or brown substance
- Baking dishes containing crystal substance
- Hot plates near chemicals
What evidence to look for in a Search Warrant involving controlled deliveries
- Track and Trace receipts
- Correspondence
- Computers and phones
- emails
- contact lists
- packaging from previous imports
- money and financial records
- scales and packaging
- PO documentation
- travel documentation
- passports
Imports into New Zealand
Class B Controlled drug
IMPORTS
(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
SEC. 2 CUSTOMS AND EXCISE ACT 1996
To import includes “to introduce from abroad or to cause to be brought
in from a foreign country”.
SAXTON v POLICE
The element of importing exists from the time the goods enter New
Zealand until they reach their immediate destination … [ie] when they
have ceased to be under the control of the appropriate authorities and
have become available to the consignee or addressee”.
R v HANCOX
New Zealand
Means the land and waters extending to the outer limits of the territorial sea of New Zealand
Sec 2 Customs and Excise Act 1996
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
CONTROLLED DRUG
Means any substance, preparation, mixture or article specified or
described in Schedule 1, Schedule 2, or Schedule 3 of this Act and
includes any controlled drug analogue.
SEC 2 MODA 1975
CLASS B CONTROLLED DRUG
Means any controlled drugs specified or described in Schedule 2 to this Act.
SEC 2 MODA 75
Possession of controlled drug for Supply
POSSESSION
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.
R v COX
Possession may be actual or potential
ACTUAL POSSESSION
Means that the person actually has the drug in their custody or control
OR
POTENTIAL POSSESSION
Potential possession arises when the person has the potential to have the
thing in question in their control
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.
SEC 2(2) MODA 75
CLASS A CONTROLLED DRUG
Means any controlled drugs specified or described in Schedule 1 to this Act.
SEC 2 MODA 1975
CONTROLLED DRUG
Means any substance, preparation, mixture or article specified or described
in Schedule 1, Schedule 2, or Schedule 3 of this Act and includes any
controlled drug analogue.
SEC 2 MODA 75
Supply or administer, or offer to supply or administer, any Class A
controlled drug or Class B controlled drug to any other person, or otherwise
deal in any such controlled drug;
SEC. 6(1)(c), MODA 75
DEALING WITH CONTROLLED DRUGS - PRESUMPTION
For the purposes of subsection (1)(f), a person is presumed until the
contrary is proved 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 (see section 2(1A)).
SEC. 6(6) MODA 1975
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
Supplys Class C drug to person under 18 years of age
Supply
Supply
Includes to distribute, give or sell.
SEC 2 MODA 1975
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 …”
R v MAGINNIS
MUST PROVE GUILTY KNOWLEDGE:
This will involve proof that the defendant:
· knew about the importation/exportation, and
· knew the imported/exported substance was a controlled drug,
and
· intended to cause the importation/exportation
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.
R v STRAWBRIDGE
USEABLE AMOUNT
In any drug offence the quantity of drug involved must be measurable
and useable.
“…the serious offence of … possessing a narcotic does not extend to
some minute and useless residue of the substance”.
POLICE v EMERALI
CLASS C CONTROLLED DRUG
CLASS C CONTROLLED DRUG
Means the controlled drugs specified or described in Schedule 3 to this Act,
and includes any controlled drug analogue.
SEC 2 MODA 75
CONTROLLED DRUG
Means any substance, preparation, mixture or article specified or described
in Schedule 1, Schedule 2, or Schedule 3 to this Act and includes any
controlled drug analogue.
SEC 2 MODA 75
To any person under the age of 18 years old
Person:
Gender neutral. Proved by judicial notice or circumstantially.
Proving Age:
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.
R v FORREST AND FORREST
In practice this generally involves producing the victim’s birth certificate in
conjunction with independent evidence that identifies the victim as the
person named in the certificate.
