Prosecution Drugs Offences

Question 1

Offences against s6 of the Misuse of Drugs Act 1975 are category three offences. These include:

Answer 1

• importing or exporting
• producing or manufacturing
• supplying or administering, or offering to supply or administer
• selling or offering to sell (Class C only)
• possessing for any of the above purposes any controlled drug.

Question 2

Offences against Section 7 of the Misuse of Drugs Act 1975 are category two offences. These include:

Answer 2

• possession and consuming controlled drugs

* supplying, administering or offering to supply or administer Class C controlled drugs

Question 3

When can defendant elect trial by Jury

Answer 3

As with all offences, the category of offence will determine if the drug offence is electable for trial by jury. Therefore if the offence is a category three offence (punishable by imprisonment of two years or more) the defendant will have the right to elect trial by jury.

Question 4

As per the Crown Prosecution Regulations 2013, the only drug offences that are automatically prosecuted by the Crown following plea are:

Answer 4

• s. 6(1)(b) or (2A) production or manufacture of, or conspiracy to produce or manufacture, methamphetamine
• s. 10 Aiding offences against corresponding law of another country corresponding to section 6, 9, 12A or 12AB.
• s. 12C Commission of offences outside New Zealand.

Question 5

Other drug offences will only be Crown prosecutions if certain criteria are met:
s. 6(1) or (2A) Dealing or conspiring to deal in a Class A controlled drug (except production or manufacture of, or conspiracy to produce or manufacture, methamphetamine) if -

Answer 5

• (a) the quantity of drugs is more than 5 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or
• (b) there is evidence of large-scale dealing beyond the actual quantity seized; or
• (c) there is substantial evidence derived from a surveillance device involving audio interception

Question 6

Large-scale dealing may be substantiated by:

Answer 6

(ii) The amount and sophistication of equipment found in the defendant’s possession;
(iii) Volumes of precursor materials found in the defendant’s possession;
(iiv) Evidence of chemical purchases;
(v) Intercepted communications;
(vi) Observation evidence, particularly over extended periods;
(vii) Significant cash holdings and/or movements;
(viii) Evidence, including records, of proposed and/or actual sales;
(vix) Other evidence of sophisticated, organised or large-scale dealing – eg, travel movements;
(v) Expected evidence at trial of co-offenders (ie, taken after plea and sentence), informants or other Crown witnesses.

Question 7

Large Scale dealing s. 6(1) or (2A) Dealing or conspiring to deal in a Class B controlled drug if –

Answer 7

• (a) the quantity of drugs is more than 10 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or
• (b) there is evidence of large-scale dealing beyond the actual quantity seized; or
• (c) there is substantial evidence derived from a surveillance device involving audio interception

Question 8

Large Scale Commercial dealing may be substantiated by:

Answer 8

(i) Volume of drugs found in the defendant’s possession;
(ii) Admissions made by the defendant;
(iii) Intercepted communications
(iv) Significant cash holdings and/or movements;
(v) Evidence, including records of proposed and/or actual sales, including detailed and/or extensive supply lists
(vi) Other evidence of sophisticated, organised, or large-scale dealing, e.g. travel movements;
(vii) Expected evidence at trial of co-offenders (i.e. taken after please and sentence), informants or other Crown witnesses;
(viii) Evidence that suggests a continuing course of conduct.

Question 9

For sentencing purposes, cannabis cultivation is divided into three broad categories:

Answer 9

− Category 1: growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended.
− Category 2: small-scale cultivation of cannabis plants for a commercial purpose, ie, with the object of deriving profit.
− Category 3: large-scale commercial growing, usually with a considerable degree of sophistication and organisation1
− Sentencing judges commonly adapt those categories to the dealing context. .
− Alleged offending falling within category 3 above is a Crown prosecution. There must be admissible evidence that substantiates the real nature and scale of the dealing operation.

Question 10

Large-scale commercial cultivation may be substantiated by:

Answer 10

(i) Volume of cannabis found in the defendant’s possession;
(ii) Admissions made by the defendant;
(iii) Intercepted communications;
(iv) Observation evidence, particularly over extended periods;
(v) Significant cash holdings and/or movements;
(vi) Evidence, including records, of proposed and/or actual sales;
(vii) Evidence of an extensive and sophisticated ongoing operation involving regular crop rotation;
(viii) Evidence of extensive crop yields;
(ix) Expected evidence at trial of co-offenders (ie taken after plea and sentence), informants or other Crown witnesses.

Question 11

“A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of

Answer 11

a High Court Judge or District Court Judge but not otherwise.”

Question 12

For the evidence in the certificate to be admissible, certain procedures must be strictly followed. These procedures ensure that:

Answer 12

• the chain of evidence is unbroken
• the material to be analysed is not tampered with or contaminated
• the defence is aware of the analysis and the results and is given reasonable time to prepare a defence.

Question 13

Section 31(2) provides two methods of delivering a drug exhibit to the ESR so that certificate evidence can be used. You can deliver the exhibit:

Answer 13

• 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 courier post with signature required in a sealed package to an employee who has been authorised by the analyst in charge at the laboratory.

Question 14

If you are in charge of the case, it is your responsibility to ensure that the chain of evidence is complete. Always use a standard drugs envelope (SDE) or attach a SDE to the article. You will need to be able to:

Answer 14

• describe the packaging to prove the chain of evidence, by sealing and labelling it with the file reference name
• quote the registered article number and other details of the registered mail
• produce the receipt of its delivery to the ESR.