Prosecution Procedure Flashcards
Offences against section 6 category
Offences against s6 of the Misuse of Drugs Act 1975 are category three offences. These include:
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.
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.
Procedure for charges heard together
Unless exceptional circumstances exist, if charges are to be heard against one or more other defendants, then if one defendant elects to be tried by a jury on one charge, all charges against all the defendants must be tried by a jury. If one charge is to be tried in the High Court, all charges against all defendants must be tried in the High Court.
Offences dealt with by the Crown
these offences are automatically prosecuted by the Crown following plea are:
s6(1)(b) or (2A) production or manufacture of, or conspiracy to produce or manufacture, methamphetamine
s10 Aiding offences against corresponding law of another country corresponding to section 6, 9, 12A or 12AB.
s12C Commission of offences outside New Zealand.
These meet the threshold for Class A drugs:
(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.
These meet the threshold for Class B drugs:
(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.
These meet the threshold for Class C drugs:
(a) evidence of large-scale commercial dealing; or
(b) substantial evidence derived from a surveillance device involving audio interception.
Large-scale dealing may be substantiated by
(i) Admissions made by the defendant;
(ii) The amount and sophistication of equipment found in the defendant’s possession;
(iii) Volumes of precursor materials found in the defendant’s possession;
(iv) 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, including detailed and/or extensive supply lists;
(ix) Other evidence of sophisticated, organised or large-scale dealing – eg, travel movements, volume of drugs found in defendant’s possession;
(x) Expected evidence at trial of co-offenders (ie, taken after plea and sentence), informants or other Crown witnesses.
(xi) Evidence suggesting a continuing course of conduct.
Categories of cannabis cultivation
These categories are not to be confused with the categories of offences as detailed in section 6 of the Criminal Procedure Act 2011.
For sentencing purposes, cannabis cultivation is divided into three broad categories:
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 organisation.
Section 16 of the Bail act 2000
- Judge only may grant bail for drug dealing offence
“A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of a High Court Judge or District Court Judge but not otherwise.”
Section 17 of the Bail act 2000
17A Restriction on bail if defendant charged with serious Class A drug offence
“(1) This section applies to a defendant who is charged with a serious Class A drug offence and who is-
(a) of or over the age of 18 years; or
(b) aged 17 years and is charged with the offence in the District Court or the High Court
“(2) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.
“(3) In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (2)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit any drug dealing offence.
“(4) In this section, serious Class A drug offence means—
“(a) an offence under section 6 or 12C(1)(a) of the Misuse of Drugs Act 1975 for contravention of section 6(1)(a), (b), (c), or (f) in relation to a Class A controlled drug; or
“(b) an attempt to commit an offence in paragraph (a).”
Defendants choice to accept analysts evidence or not/ timeframes
Section 31(3)(a) says that the defendant must be given a copy of the analyst’s certificate, and written notice that the analyst will not be called, at least seven clear days before the hearing at which it is to be presented as evidence. If they do not wish to accept the certificate as evidence, the defendant has to give notice in writing, at least three days before the hearing, that they wish the analyst to be called as a witness by the prosecution.
What if there is a lack of response from defence for analysts certificate
Do not assume that there will be no argument about the exhibit, chain of evidence or identity of the drug just because the defence has not served a notice requiring the analyst to give evidence. The defence accepts nothing and admits nothing by failing to serve notice: the only effect is to make the certificate technically admissible.
Protection of undercover police
34A. Protection of police officers
(1) In this section the term ‘undercover officer’ means a member of the Police whose identity is for the time being concealed for the purpose of a particular investigation of any suspected offence against this Act or any person suspected of such an offence; and includes any other member of the Police who is for the time being directing or assisting that member in the course of that investigation.
(2) No prosecution for an offence against this Act, or against any regulations made under this Act, shall be commenced or continued against any member of the Police in respect of any act committed by him at a time or during a period when he was acting as an undercover officer, except with the leave of the Attorney-General.
Officer’s credibility and permissible activities while undercover
There is a broad distinction between the use of police agents to present opportunity to commit offences to those disposed to such activity, on the one hand, and the encouragement or stimulation of offences which would not otherwise be committed, on the other hand.
The trial judge has a discretion to exclude prosecution evidence if police conduct in obtaining that evidence has extended into the area of unacceptable encouragement.
It is not unacceptable for an undercover policeman, in the course of duty, to make initial approaches which may result in the commission of an offence; objection may be taken to the admission of the evidence gained by such actions; especially in the absence of objection, the circumstances in which the accused came to be involved in the crime are factors which go to sentence rather than conviction.
Forfeiture of Instruments of crime
Section 142B of the Sentencing Act 2002 places mandatory obligations for the court to be notified of any relevant property that is an instrument of crime so that forfeiture of that property can be considered as part of the sentencing process, eg a house used to manufacture methamphetamine; a motor vehicle used to deliver drugs.
Restraint of instrument of crime
Property that is an instrument of crime may need to be restrained while the criminal proceedings take their course, to prevent disposal of the asset or erosion of its value by being further encumbered (eg mortgage on house).
This will require an ‘on notice application for restraining order relating to instrument of crime’, pursuant to ss21 and 26 of the Criminal Proceeds (Recovery) Act 2009.
Such an application will require a straight forward affidavit from the officer in charge
