Prosecution Procedures

Question 1

Category two offences

Answer 1

Offences against Section 7 MODA75 are category two offences. These include:.

– Possession and consuming controlled drugs
– supplying, administering, offering to supply or administer class C controlled drugs

Question 2

Category three offences

Answer 2

Offences against section 6 of the misuse of drugs act 1975 a 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)

Question 3

Trial by Jury

Answer 3

• Category 3 offence (punishable by imprisonment by two years or more) the defendant will have the right to elect trial by jury
• category 2 offence (punishable by imprisonment of less than two years) the defendant does not have the right to elect trial by jury

Question 4

Automatic Crown prosecutions

Answer 4

As per the crown prosecution regulations 2013, the only drug offences that are automatically prosecuted by the crown following plea are:

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

Question 5

Other Crown prosecutions if criteria met (Class A)

Answer 5

• Section 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 -
  a) The quantity of drugs is more than five 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

Other Crown prosecutions if criteria met (Class B)

Answer 6

Section 6(1)(b) or (2A) Dealing or conspiring to deal in a class B controlled drug if -

a) The quantity of drugs is more than 10 times the quantity of the presumption threshold, including in combination with any other charges been heard together in the preceeding
b) there is evidence of large-scale dealing beyond the actual quantity seized
c) There is substantial evidence derived from a surveillance device involving audio inception

Question 7

Large scale dealing

Answer 7

Means suspected dealing in a quantity of drugs that is more than five times the presumption threshold. This factor operates when the quantity of drug seized is not a valid reliable indication of the size of the dealing operation. There must be admissible evidence that substantiates the real nature and scale of the dealing operation.

Question 8

Substantiating large-scale dealing

Answer 8

– Admissions made by the defendant

– Amount and sophistication of equipment found in the defendants possession

– Evidence of chemical purchases

– Evidence, including records, of proposed and/or actual sales

– Expected evidence at trial of co-offenders (i.e. taken after plea and sentence), informants or other crown witness

– Intercepted communications

– Observation evidence, particularly over extended periods

– Other evidence of sophisticated, organised or large-scale dealing e.g. travel movements

– Significant cash holdings and/or movements

– Volumes of precursor materials found in the defendants possession

Question 9

Other Crown prosecutions if criteria met (Class C)

Answer 9

Section 6(1)(b) or (2A) Dealing or conspiring to deal in a class C controlled drug where there is -

a) evidence of large-scale commercial dealing (or large scale commercial cultivation in respect of cannabis cultivation s9)
b) substantial evidence derived from a surveillance device involving audio interception

Question 10

Substantiating large-scale commercial dealing

Answer 10

– Admissions made by the defendant

– Evidence, including records of proposed and/or actual sales, including detailed and/or extensive supply lists

– Evidence that suggests a continuing course of conduct

– Expected evidence at trial of co-offenders (i.e. taken after plea and sentence), informants or other crown witness

– Intercepted communications

– Other evidence of sophisticated, organised, or large-scale dealing e.g. travel movements

– Significant cash holdings and/or movements

– Volume of drugs found in the defendants possession

Question 11

Three categories of cannabis cultivation

Answer 11

– Category one: growing a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended

– Category two: small-scale cultivation of cannabis plants for a commercial purpose, i.e., with the object of deriving profit

– Category three: large-scale commercial growing, usually with a considerable degree of sophistication and organisation

Question 12

Substantiating large scale commercial cultivation

Answer 12

– Admissions made by the defendant

– Evidence, including records, of proposed and/or actual sales

– evidence of an extensive and sophisticated ongoing operation involving regular crop rotation

– Evidence of extensive crop yields

– Expected evidence at trial of co-offenders (i.e. taken after plea and sentence), informants or other crown witness

– Intercepted communications

– Observation evidence, particularly over extended period

– Significant cash holdings and/or movements

– Volume of cannabis found in the defendants possession

Question 13

Time limits - Section 28(a) & (b) MODA1975

Answer 13

Section 28(a) of the Misuse of Drugs Act 1975 allows you to to file charging documents at any time for:

– dealing

– Cultivating

– aiding offences against corresponding law in other countries.

Section 28(b) states the limitation period for any other offence against the act or any regulations made under it, is four years after the date on which the offence was committed

Question 14

Section 16, Bail Act 2000 - who can grant bail

Answer 14

A defendant who is charged with or convicted of a drug dealing offence maybe granted bail by order of a High Court judge or district court judge but not otherwise

Question 15

Section 17A, Bail Act 2000 - Restriction on bail if defendant charged with serious class A drug offence

Answer 15

Restriction on bail if defendant charged with serious class A drug offence

(1) this section applies to a defendant of or over the age of 17 years who is charged with a serious class A drug offence
(2) no defendant to whom this section applies maybe 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)

Question 16

Section 3, bail act 2000 (definition of Drug Dealing Offence)

Answer 16

drug dealing offence means –

(a) an offence under section 6 or 12C(1)(a) of MODA 1975 in relation to a Class A controlled drug or Class B controlled drug; or
(b) an attempt to commit an offence in paragraph (a)

Question 17

Section 30, bail act 2000 - other bail conditions imposed by a judge

Answer 17

Sets out the type of special conditions that a judge can impose on the defendant. These include:

– an electronic monitoring condition (only do so by agreement with the prosecution)

– Any other condition that the judge considers will make it likely that the defendant will appear as required in court on subsequent occasions i.e. confiscate passport, confine them within a specified geographical area

– Any conditions that the judge considers necessary i.e. non-association orders

Question 18

Section 31, Misuse of Drugs Act 1975 - Analysis evidence

Answer 18

A certificate of analysis maybe produced in court instead of calling oral evidence in offences concerning controlled drugs.

The advantage of this is that the analysis is not required to give oral evidence, and therefore cannot be cross-examined, which says both time and money

Question 19

Section 31(2), Misuse of Drugs Act 1975 - Delivery of drug exhibit to ESR

Answer 19

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

– In person to the analyst who is the 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 20

Ensuring chain of evidence drug exhibit is complete

Answer 20

– Always use a standard drugs envelope or attach a standard drug envelope to the article

– 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 a delivery to the ESR

Question 21

Delivery to analyst in person you must..

Answer 21

If you are delivering the exhibit to the analyst in person, you must cross reference the:

– Name of the person who signed the certificate ‘upon receipt of the exhibit’ receipt signature on the pol143 form

– Evidence of the police member who delivered the drug to the ESR

Question 22

Delivery to authorised employee, you need to..

Answer 22

You will need to ensure and prove:

– The name of the person to whom the drugs we delivered

– the person who receive the package was a person who works in an approved laboratory and who is authorised, by the analyst in charge at the labatory, to receive it

– The package was sealed

Question 23

Section 31(2A), MODA 1975 - Analyst evidence about receiving exhibit

Answer 23

The analyst may give evidence an employee receive the package whose content that analyst subsequently analysed. Unless evidence is been presented to the contrary, the analyst’s evidence will be admitted as sufficient proof that the exhibit was properly received by the ESR

Question 24

Section 31(3)(a), MODA 1975 - analyst certificate/written notice

Answer 24

The defendant must be given a copy of the analyst certificate, and written notice that the analyst will not be called, at least seven the 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 to analyst to be called as a witness by the prosecution (allows the opportunity for the evidence to be cross-examined)

Question 25

Method of service of certificate/written notice that the analyst Will not be called

Answer 25

– Can be delivered to a member of the defendants family or to their solicitor

– Must be dated at least seven clear days before the hearing and at which the certificate is to be tendered

– Must be proved to have been served either by oral evidence or a constables endorsement which complies with section 29, summary proceedings act 1957

Question 26

Admissibility of certificate

Answer 26

The certificate is admissible evidence only If:

– The defendant is served at least seven clear days before the hearing, and provided with a copy of the analysts certificate

– The defendant does not, at least three days before the hearing, give written notice that the analyst be called

– The court does not request the oral evidence of the analyst

Question 27

Errors affecting admissibility of certificate

Answer 27

Service:

If you do not serve the documents correctly, you jeopardise the admissibility of the certificate as evidence. Free v Police - statutory procedures not complied with, certificate inadmissible, evidence regarding cannabis became hearsay thus inadmissible

Form:

If your statement saying that the certificate and notice have been served is incorrect in form but not in substance, you can make up a submission under section 379 of the criminal procedure act 2011 that the statement not be invalidated

Content:

the fact that there is an incorrect statement of fact in the certificate does not render it inadmissible. The law contemplates the possibility of error until contrary is proved.

Question 28

Section 25(1), evidence act 2006 - Expert opinion

Answer 28

Allows opinion of an expert if the fact finder is likely to obtain substantial help in understanding other evidence in the case or in ascertaining any fact that is of consequence to the determination of the proceeding

Question 29

Section 34A, MODA 1975 - Protection of police officers

Answer 29

Protection of police officers

Section protects undercover offices from prosecution of offences against this act, except with the leave of the attorney general.

The court decides the admissibility of the evidence, weighing up whether the officer merely presented an opportunity for an offence or whether they encouraged an offence which would not otherwise have been committed

Question 30

Section 142B, Sentencing Act 2002 - notice of consideration for instrument forfeiture order

Answer 30

Mandatory obligations for the court to be notified by prosecutor 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. For example house used to manufacture methamphetamine or a motor vehicle used to deliver drugs.

O/C Case must notify the prosecutor so they can file a prosecutors notice with the court advising them that the court should consider making an instrument forfeiture order