Q’s Flashcards
Obstruction of offices under section 16
Obstructing anyone who is executing powers pursuant to the misuse of drugs act 1975.
Three processes or stages relating to clan labs
Extraction, conversion and synthesis
When is the offence of manufacture/produce complete
Complete once the prohibited substance is created whether or not it is in a usable form
What are the two elements in prosecution must prove for offering to supply or administer
The communication of an offer to supply administer a controlled drug and
an intermission that the other person believes the offer is genuine
What is the presumptive amount of LSD
2.5 mg or 25 flakes
What is the imprisonment term for section 12 MODA75 Where a class a controlled drug is dealt with
Not exceeding 10 years
Definition of private communication
Means a communication whether oral, written or telecommunication or otherwise made in the circumstances that maybe reasonably taken to indicate that any party to the communication desires to be confined to the parties in the communication
Does not include a communication of the kind occurring in circumstances in which any parties as a communication or recently to expect that communication may be intercepted by some other person without having the expressed or applied consent of any party to do so
What is a controlled drug
Any substance preparation mixture or article described or specified in schedule 1, 2 or 3 of this act and includes any controlled drug analogue
New Zealand
The land and water is enclosed by the outer limits of the territorial sea of New Zealand
Proven guilty knowledge
- The defendant knew of the importation
- The defendant knew the substance was a controlled drug
- The defendant intended to cause the importation
What was held in RV Strawbridge
It is not necessary for the crowd to prove knowledge on behalf of the accused. Will be presumed unless there is evidence to support that the accused believed his actions were innocent
R V Emerali
Possessing a narcotic does not extend to some minute or useless residue of the substance. The amount of the drug must be usable and measurable.
Define possession
There are two elements to possession., physical and mental. Physical element consists of actual or potential physical custody or control. Mental element consists of the combination of knowledge and intention. Knowledge in the sense of awareness of the accused had knowledge that it was their possession and intended to possess it. R V COX
What is a controlled drug analogue
Any substance that has structure substantially similar to that of a controlled drug.
What is the definition of a class C drug
The class C drug is the controlled drug specified or described in schedule 3 to this act this includes any controlled drug analogue
When can I surveillance device be used for interception or trespass
Serious offences more than seven years imprisonment and some specified in the arms act
Drug dealing offences
Info can be laid at any time
Admissibility of analyst certificate
Service was in seven days of hearing and copy of certificate provided to the defendant
Who can call a landslide and a clan lab
Any member of initial entry team
For things to consider with an OP
- Find a suitable location ideally any staff or friendlies who live in the vicinity of the target address or who his friends or family in the area.
- Camera OP requirements versus intercept requirements.
- Whether a surveillance device warrant is required under S&S
- The staff having to occupy the OP
Ingredients of obstruction
Section 16 MODA.
Every person commits an offence who wilfully obstructs, hinders, resists or deceives any person who is acting in the execution of any power conferred on that other person by or pursuant to this act
RV Strawbridge guilty knowledge defence
If 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 is not so
The 90 second rule
The rule assumes that offenders are present and moving inside the lab then the atmosphere will sustain life.
It assumes that the IET wearing the minimum level of PPE may safely enter and extract suspects for the period of up to 90 seconds
Presumption for supply of meth
5 grams
Presumption for supply of cannabis
28 g or 100 cigarettes
Presumption supply for cocaine and heroin
0.5 g
Rebuttal of position for supply
The presumption that the drug is for sale or supply may be rebutted if the person is able to prove on the balance of probabilities that they did not intend to commit to dealing offence not with standing the amount.
For example the defence may I get a suspect is heavily addicted and required large amounts for personal use
Four ways a controlled drug can be imported
- International mail centre - inside a mail consignment.
- international airport arriving courier - using either body packing internal concealment or concealed in luggage.
- imported airfreight with a freight consignment which can be either commercial private.
- imported seafreight as was airfreight but arrived via the sea.
What is a controlled delivery
They control delivery occurs when a consignment of illicit drugs is detected often concealed in some other goods in circumstances making it possible for the delivery of those goods to be made under the control and surveillance of NZ customs and police officers with the view to identifying and securing evidence against those involved in the importation or exportation
Points to consider when profiling and address
- Previous owners
- Real name or false name
- Connections to delivery address
- Relevant convictions noting or associates
- Travel connections to countries of origin
- Bank accounts large deposits overseas transfers
Control deliveries
A clean controlled delivery where no drug is left with the consignment. This eliminates the risk of the drugs being lost and allows more freedom and organising the surveillance of the consignment and reduce the risks of alarming the targets who may have arranged countersurveillance. Only importation and conspiracy charges are likely to be laid.
Leave an amount of the drug with the consignment to enable the option of charging the offender with position for supply charge
When is importation complete
Criminal liability arises when the drugs cross the New Zealand border
Ingredients of allowing/permits premise under section 12 of the misuse of drugs act
Everyone commits an offence who knowingly permits any vessel, aircraft, hovercraft, motor vehicle or any other mode of conveyance to be used for the purpose of the commission of an offence against this act
Three things you must prove for supplying equipment section 12A(1)
1) He has the equipment material precursor in his position
2) That those items are capable of being used to procure or manufacture in a controlled drug or cultivate any private implant
3) That the defendant had the intention that those items are to be used for such an offence either by himself or another person
Regulation 11 relating to offering excepting disposing of syringes
Every person commits an offence who:
1) Offers to any other person for the use by that other person a used needle or use syringe or
2) Except for use are used needle or use syringe
3) Disposes of a needle or syringe in a public place
Who leads a controlled delivery operation
Customs
How many days can I surveillance device warrant be in force
60 days
Two methods of delivery of drugs to ESR
1) delivery in person to the analyst who is to issue the certificate or to any person authorised by the analyst to receive it
2) Delivery via registered post or registered Courier with the signature required in a sealed package to an employee who has been authorised by the analyst in charge of the laboratory
Things to cover at initial interview with a CYP at clan labs
- Basic health questions such as headaches nausea breathing difficulty dizziness fatigue etc
- The occupants details
- Details of other siblings
- Sleeping arrangements
- The play / eating areas
- School and preschool details
- The name of the child’s doctor
- Knowledge of drugs manufacturing / dealing activities
- police do not arrange placement of the YP
Does CHIS have to be named on a warrant - R V MCGINTY
1) It is good practice not to state the name of any covert human intelligence source
2) You are not required by law to name your CHIS
3) Disclosure of the identity of the alleged informant was not required under this act and a trial judge was correct and deleting it from the application certain parts and which would likely to lead to the identification of it for months
4) However the judge trial was entitled to insist on disclosure if he saw fit
Four ways a controlled delivery could come about
1) International mail centre inside a mail consignment
2) International Airport arriving courier using either body packing internal concealment or concealed within luggage
3) Imported airfreight within a freight consignment which can be either commercial or private
4) Imported seafreight as with airfreight but arrived via sea
What is a controlled delivery
When a consignment of illicit drugs is detected concealed and goods in circumstances making it possible for the delivery of those goods to be made under the control and surveillance of NZ customs and police offices with a view of identifying and securing evidence against those involved in the importation
Points to consider when profiling addresses of a controlled drug
-Previous owners
-Real name or false name
-Connections to delivery address
-Relevant convictions/noting/associations
-Travel/connections to foreign countries
-Bank accounts large deposits overseas transfers
Controlled delivery option one or two
1) I clean control delivery where no drugs are left within the consignment. This eliminates any risk of the drug being lost and allowed for freedom and organising the surveillance of the consignment and reduce the risk of alarming the target who may have a range counter surveillance - only importation and conspiracy charge is likely to be laid.
2) Leave an amount of the drug within the consignment to enable the option of charging and offender with possession for supply charge
Ingredients of allowing/permits premise
Everyone commits an offence who
Knowingly permits any premise, vessel, aircraft, hovercraft, motor vehicle or any other mode of conveyance to be used for the purpose of a commission against this act
Three things must be proven for supplying equipment - section 12A(1)
1)They had the equipment material or pre-curses in their possession
2) That those items are capable of being used to produce or manufacture any controlled drug or cultivate any prohibited plant
3) That’s the defendant had the intention that those items are to be used for such an offence either by themselves or another person
Regulation 11 relating to offering excepting disposing of syringes
Everyone commits an offence who
1) Offers to any person for use by that person a used needle or used syringe
2) accept for use a used needle or syringe
3) Dispose of a needle or syringe in public place
Four times a surveillance device warranties required
1) The use of an interception device to intercept a private communication
2) Use of a tracking device except when a tracking devices is installed solely for the purposes of ascertaining whether a thing has been opened or tampered with or another way is dealt with and the installation of the device does not involve Tress pass to land or Tress pass to goods
3) Observation of private activity and private premise and in the recording of that observation by means of visual surveillance device
4) Use of a surveillance device that involves trespass to land or trespass to goods
5) Observation of private activity in the curtilage of private premise and any recording of that observation if any part of the observation or recording is by means of visual surveillance device or the duration of the observation for the purpose of a single investigation or connection or investigation exceeds 3 hours in any 24 hour period or eight hours in total.
Criteria for surveillance device warrant
There are reasonable grounds
1) To suspect that an offence has been committed or as being committed or will be committed in respect of which this act or any enactment specified in column two of the schedule authorises the enforcement officer to apply for a warrant to enter the premise for the purposes of obtaining evidence about suspected offence
2) To believe That the proposed use of a surveillance device will obtain information that is evidential material in respect to the offence
A high standard of evidence is required to satisfy the judge which means that you will have to disclose in the application on certain matters that you would normally regard is confidential
Difference between 13A MODA and 23 S&S
MODA - Reasonable cause to believe and not arrested
S&S - Must be under arrest for an offence against section 6, 7 or 11 of misuse of drugs act.
Constable may have reasonable grounds to believe a person has internally concealed within their body any property that may be evidence of the offence with which they have been charged or other offences against 6, 7 or 11 of MODA.
Section 16 bail act
A defendant who was charged with or convicted of drug dealing offence may be granted bail:
A) In any case by order of a high judge
B) If the defendant does not have any previous convictions for drug dealer offences by order of a district court judge
CYP at clan labs
- Removal of CYP from the scene
- Assign officer to look after / monitor
- Assess CYP for injury/ illness/ and get immediate medical attention
- Request for OT at the scene
- Distribution of PPE to staff with CYP
appropriate decontamination for CYP - Photos of CYP at scene
- Record mental state
- Record physical condition
- Considering swabbing the CYP for chemicals - ESR
- Securing the clothing worn by CYP
Initial interview with CYP at clan lab
- basic health questions
- occupant details
- details of siblings or CYP at the address
- sleeping arrangements
- play and eating areas
- schooling details
- name of DR
- knowledge of drugs offending
How many days can a surveillance device warrant be in force for?
60 days
Two methods of delivery to ESR
1) delivery in person to the analyst who is to issue the certificate or to a person authorised by the analyst to receive it.
2) delivery via registered post or registered courier with a signature required in a sealed package to an employee who has been authorised by the analyst in charge of the lab
R V MARTIN
Proof that the defendant deliberately turned a blind eye to the facts will suffice
When is someone liable in relation to importing
Criminal liability arises as soon as the drugs cross the NZ water and an importer may therefore be convicted under section 6(1)(a) even if the drugs are intercepted by customs and never reach the addressee.
However the offence does not end at the board of the process of importation continues all the goods are in transit and only concludes when they have reached the final destination and are available to the consignee
For things that must be done in the first 24 hours (OC phones)
Tripping or preloading phone data
TSP liaison establish effective working relationship with TSP find one person at your TSB to deal with the inquiry on the ship as critical
Draft production order application early production order application outlines the backbone of the inquiry and therefore base all future production orders on and potentially search warrant applications
No search warrant is required for emergency situations
Mens rea of importation
- Know about the importation
- knew The important substance was a controlled drug
- Intended to cause the importation
How do you prove age
R V Forrest and Forrest
The best evidence possible and circumstances should be addressed by the prosecution and proof of the victims age
Four points for unplanned entry to clan labs
- Immediately remove persons of interest from the premises
- Isolate The site and maintain a safe perimeter
- Preserve the crime scene
- Notify the duty NCO And where appropriate fire service and ambulance
- Seek advice from clan lab team member or fire service about decontamination progress
- Occupants of the address and staff have entered the address to remain separated until decontamination issue is been addressed
- Seek medical advice if you experience any adverse effects
Signs of clan labs (exterior)
- Chemical odours coming from building, rubbish or detached buildings. Odours can be sweet better ammonia or solvent smells
- Exhaust fan is running at all times
- Frequent visitors at odd times
- Windows black and curtains always drawn
- People coming outside only to smoke
- Occupants unfriendly, appear secretive about the activities, exhibit paranoid or odd behaviour.
- Expense of security and surveillance gear
- Entry denied to landlords, neighbours, other visitors.
- Rubbish containing a large amount of cold medication containers or packaging
- Bottles plastic containers the boxes with remove labels
Signs of clan labs (interior)
- Lavatory glassware, equipment and documents
- Containers with clear liquids in them well a talkie colour solid in the bottom or similar
- Containers with two large liquids on them, one dark coloured layer and one clear or pale yellow layer
- Use coffee filters containing either white pasty or reddish brown substance
- Baking dishes or similar containing white crystalline substance
- The presence of hotplates near chemicals
What evidence to look for in a search one of us and control deliveries
- Search for evidence relating to the importation
- Tracking trace receipts
- Correspondence
- Computers, fix and sell phones
- Contact lists /numbers
- Money in financial records
- Scales and packaging etc and relation to supply charges
- PO Box documentation
- Travel documents
- Passports
Who can bail a person in charge with manufacturing meth
High court judge only
Time limit the lane charges for section 6 offences
No time limit
What is the general time limits for lying charges regarding drug offences
The general rule regarding offences against the misuse of drugs act or regulations is that you must lay information within four years of the time when the matter of the information first arose.
The difference between produce and manufacture
Producing can be described as changing the nature of the original substance and manufacturing is creating a different substance from the original materials
Who proves if a drug is usable
Under section 29A it is not necessary for the prosecution prove that fact unless the defendant puts the matter in issue
Definition of supply
To distribute, give, sell
Definition of class B controlled drug
Means the control drugs specified or described in schedule 2 to this act
Drugs oppose a high risk of harm and include
Cannabis oil
GHb
MDMA ecstasy
Morphine
Opium
Pseudo
R V During
An offer is in intimation by the person charged to another that he is ready on request to supply a drug of a kind prohibited by the statute
R V Brown
1) Offers to supply a drug that he has on hand
2) Offers to supply drugs that will be produced at some further date
3) offers to supply a drug they mistakenly believes they can supply
4) Offers to supply a drug deceitfully knowing that he will not supply the drug
Offering to supply or administer the prosecution must prove to elements
- The communication of an offer to supply or administer a controlled drug
- An intention that the other person believes the offer to be genuine
Clan lab safety considerations
- Leave the area immediately, your safety is paramount
- Never touch taste or smell any chemicals or equipment
- Do not attempt to stop the chemical reaction, or turn off any electrical devices such as lights or fans on or off. The simple act of turning electrical switch can cause an explosion
- Do not shut off water supply to the house or chemical reaction
- Do not smoke in Onya clan lab
-Do not use tools, radios, cell phones, torches or devices that produce a spark or fraction
-Do not re-enter the premises
Three steps for using certificate of analysis instead of calling ESR analyst to give evidence
1) The defendant must be given a copy of the analysis certificate
2) Written notice that the analyst will not be called at least seven days before the hearing
3) if the defendant does not wish to accept the certificate as evidence, they have to give notice in writing at least three days before the hearing and that they wish the analyst to be called as a witness to the prosecution
What is an evidential transcript
A written record of intercepted communication must be verbatim
Define sells
A sale occurs when a quantity or share in a drug is exchange for some valuable consideration such as money
Is it possible to be charged with attempted possession
Yes it is.
Chilwell J held that the commission of an offence of receiving cannabis is not legally impossible, although in the circumstances it was factually impossible.
As a respondent had criminal intent and it and act for the purpose of accomplishing his object he was guilty of an attempt to commit any offence
Define imports
Good that are brought into New Zealand from another country whether lawful or unlawful
New Zealand
The land and water is enclosed by the outer limits of the territorial sea of New Zealand
R V Collister
The circumstantial evidence from which the offenders intent can be inferred
Define intent
To commit an act to get a specific result. Act or omission must be done deliberately and more than voluntary or accidental
R V maginnis
Supply involves more than just a mere transfer of physical control it includes enabling the recipient to apply the thing to purposes in which he desires
Define supply
To furnish or provide something desired or needed and includes distributing giving or selling
Define administers
Is to direct and cause a drug to be taken to the system of another person
Define offers
Express readiness to do something for on behalf of someone
Define otherwise deals in
Dealing in a drug by some means other than by distributing, giving or selling, administering it or offering to supply or administer it
Wilful blindness
Proven guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice
Define any equipment
Includes the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process
Examples of equipment
Glassware
Condensers
Heat mantels
Pots
Lights
Timers
Water pump
Defence for cultivating prohibited plants
As a person can prove the prohibited plants to which they are charged was a species of Papaver Somniferum, and that 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 can be reduced
Powers involved in controlled deliveries
Powers to undertake a controlled delivery is vested in a customs officer only, under section 12 of the misuse of drugs amendment act
What is a clean control delivery
As we are no drugs are left with on the consignment this eliminate the risk of drugs being lost but also gives greater freedom and organising the surveillance of the consignee and reduce the risk of alarm in the target.
Observation post
First step is to find a suitable location. Staff or friendlies ideal or friends of friends. If not pick based on location/proximity to target.
Consider
- camera OP requirements versus intercept requirements
- With a surveillance device warrant required under S&S
- The staff to occupy the OP
Conspiring to deal with controlled drugs penalties
- Not exceeding 14 years for class A
- Not exceeding 10 years for class B
- Not exceeding 7 years for any other case
4 methods for controlled delivery
1) reintroduce into postal system for delivery by postie
2) delivery by postal company
3) police / customs staff pose as postie / courier
4) consider recording the interaction
Private communications
Communication (whether in oral, written, telecommunications, or otherwise) made under circumstances that reasonably indicate any party to the communication desires it to be confined to the parties to the communication
Interception device
Any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to observe or to observe and record a private activity or other device that is used or is capable of being used to observe or to observe and record a private activity.
Types of surveillance devices
(a) an interception device
(b) a tracking device
(c) a visual surveillance device
When can you use an interception device
A serious offence, 7 years or more or certain sections of the arms act.
Does a CHIS have to be named on a warrant?
R V MCGINTY
Section 64 of the Evidence Act grants privilege to informers that protects their identity and extents to information that is likely to disclose their identity
It is not required under this act. The trial judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants.
However, the trial judge was entitled to insist on disclosure if he saw fit.
Exposure to clan labs may cause these symptoms
Headaches
Watery or burning eyes
Nausea
Burning skin
Coughing or choking
Shortness of breath / dizziness
Define emergency
(a) actual or imminent danger to human health or safety
(b) a danger to the environment or chattels so significant that immediate action is required to remove the danger - arising from a hazardous substance or new organisms
Time limit for filing charging documents
No time limit for S6 dealing offences, S9 cultivating, S10 aiding offences against corresponding law in another country.
Any other offence against the act - 4 years after the date of the offence
Explain section 16 of the bail act
A defendant who was charged or convicted of a drug dealing offence may be granted bail by order of a High Court judge or district judge but not otherwise
Delivery of an exhibit to ESR
In person by police or by registered post or courier post in a sealed package with a signature required
Copy of the analyst certificate and written notice
The defendant must be given a copy of the analyst certificate, and written notice that the analyst will not be called, at least 7 clear days before the hearing.
Steps for using certificate of analysis instead of calling is the analyst to give evidence
- The defendant served at least seven days clear of the hearing and provide that was a copy of the analysis certificate
- The defendant did not give written notice that the analyst be called at least three days before the hearing
- The court does not require the oral evidence of the analyst
When is the act of giving complete
Heading over or in some other way transferring an item to another person
- When the recipient accepts position
- Where the drugs are placed under the control of a willing participant
R C wildbore
Passive custodian
Relinquish his custody of a drug to meet the needs of another, has the necessary intent to supply
Define administering
Introducing a drug directly into another persons system
To direct and cause a drug to be taken into the system of another person
Define control
To control something means to exercise authoritative or dominating influence or command over it
Possession in drug cases - the crown must prove
- Knowledge the drug exist
- Knowledge it is a controlled drug
- Actual physical control or some degree of control over it
- An intention to possess it
For the purpose of supply means
Purpose in the context can be equated to aim or intention
Simester and brookbanks
Intent to produce a result
The second type of intent is an intent to produce a specific result
In this context means aim, object or purpose
Deliberate act
Intent means that act or omission must be done deliberately. The act or omission must be done more than voluntary or accidental
Circumstantial evidence can be inferred by
-The offenders actions and words before, during or after the event
- the surrounding circumstances
- the nature of the act itself
Evidence of supply may be inferred by
- admissions
- circumstantial evidence
- the statutory presumption under 6(6)
