Short Answer Q’s Flashcards
What does s29B MODA75 state regarding cannabis preparation?
- a cannabis preparation is produced by subjecting cannabis plant to some kind of processing that renders is unrecognisable as plant material (oil, cannabis cake).
- it is for the prosecution to prove that the preparation contains any THC.
- this process has the effect of upgrading what was originally a class C cannabis plant into a class B cannabis preparation.
Who is responsible for proving usable quantity?
Under s29A MODA75 it is not necessary for the prosecution to prove usable quantity unless the defendant puts the matter in issue.
What are two things prosecutions much prove in relation to OTS/A
- the communicating of an offer to supply or administer a controlled drug
- an intention that the other person believes the offer to be genuine
Is it possible to be charged with attempted possession?
- in circumstances where the offender receives possession of a substance that they believe is a controlled drug, however in actual fact the substance is not - the act would qualify as an attempt to possess the controlled drug
- although the act is factually impossible, it is not legally impossible as the offender has the requisite criminal intent and did the act for the purpose of accomplishing their object
What additional evidence can be used to prove intent to supply?
- admissions
- circumstantial evi (scales, cash, tick list, packaging)
- statutory presumption under s6(6)
What does s6(6) MODA75 state regarding presumptive quantity?
For the purposes of s6(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 s6(1)(c, d, or e) if they are 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.
Presumption for supply amounts under schedule 5 MODA75
- Heroin, Cocaine - 0.5G
- LSD - 2.5ml or 25 tabs
- Meth, Cannabis Resin/Extract - 5G
- MDMA - 5G or 100 tabs
- Cannabis Plant - 28G or 100 cigarettes
- Anything not listed in Schedule 5 - 56G
What must a person prove to rebut the presumption that a drug is for sale/supply?
- the person must prove on the balance of probabilities that they did not intent to commit a dealing offence, despite the amount in their possession.
- for example - a person may argue that the suspect was heavily addicted and requires large amounts of personal use.
What is a conspiracy to deal with controlled drugs (s6(2A) MODA75)?
- conspiracy consists of an agreed intention which is common to the mind of the conspirators and a common design to commit the offence, rather than any actual action
- a conspiracy to deal with controlled drugs involves a conspiracy to commit one of the offences against s6(1) MODA75
What are the rules regarding conspiracy under s6(2A) when done in another country?
- if there is a conspiracy to import controlled drugs into NZ, and the agreement or unlawful acts are carried out in a foreign territory, it will be necessary to prove that the defendant had done something to complete the conspiracy in NZ for the offence to come within the jurisdiction of NZ courts
- in R v Johnston, it was held that the use of NZ customs and postal service by the conspirators in posting cannabis resin from UK to NZ was sufficient to being the matter within jurisdiction of NZ courts
S81 SASA - Emergency Powers criteria
Where a constable, or customs officer has RGTB that a person is in possession of, or the place, craft, or vehicle contains one of the following:
- a controlled drug
- a precursor substance
- a package in relation to which the customs officer has replaced all or a portion of any controlled drug or precursor substance
- evidential material to the commission of an offence under s6(1)(a) or s12AB of MODA75
Allows a constable or customs officer, in the course of a delivery where customs officer has exercised their powers in relation to s12 MODAA78 to
- search a person involved in the delivery
- enter and search any, place, craft, or vehicle
- seize anything that they have RGTB is a thing described in the list above (para (a-d), subsection (2)
Other emergency powers (not s81)
- in the event of the package or item in the controlled delivery is in a vehicle which you need to stop to recover the package, you can do so pursuant to s121 S&S 2012.
- if a suspect who you wish to arrest in relation to the controlled delivery is in a vehicle, you can stop the vehicle for the purpose of arresting the occupant pursuant to s9 S&S 2012.
Explain s23 S&S (internal searches)
This section relates to internal searches of persons who are under arrest pursuant to s6, 7, or 11 of MODA75, and relate to Class A, B, or C controlled drugs.
Explain s13A MODAA78 (internal searches)
This relates to internal searches of persons who you have reasonable cause to believe are concealing class A or B controlled drugs. This section applies only to people who are not under arrest.
What is the definition of evidential material?
In relation to an offence or suspected offence, means evidence of the offence or any item, tangible or intangible, of relevance to the investigation or offence.
Define private communication
- Means communication (whether in the form of oral, written, telecommunication or otherwise) made under circumstances that may be reasonably taken to indicate that any party to the communication desires it to be confined to the parties in that conversation.
- this does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so.
What is an interception device?
- Means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including telecommunication)
- Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
What is a visual surveillance device?
- Means any electronic, mechanical, electromagnetic , optical, or electro-optical instrument, apparatus, equipment, or other device that is used or capable of being used to observe, or to observe and record a private activity.
- Does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
What is a tracking device
a) Means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
- the location of a thing or person
- whether a thing has been opened, tampered with, or in some other way dealt with
b) Does not include a vehicle or other means of transport, such as a boat or helicopter
What is a surveillance device?
- Interception device
- Visual surveillance device
- Tracking device
What are the criteria for issuing a surveillance device warrant (s51 S&S)?
a) there are reasonable grounds to -
i) suspect that an offence has been committed, or is being committed, or will be committed in respect of which this act or any enactment specified in column 2 of this schedule authorises the enforcement officer to apply for a warrant to enter the premises for the purpose of obtaining evidence about the suspect offence, AND
i) believe that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence, AND
b) the restrictions in s45 do not prevent the issuing of a surveillance device warrant in the circumstance
Do you have to identify your CHIS?
- you are not required by law to name your CHIS.
- s64 Evidence Act 2006 grants privilege to informers that protect their identity and extends to information that is likely to disclose their identity.
What was held in R v McGinty (alternative investigation technique)?
The evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient.
A judge was not required to refuse a warrant because the Police had not exhausted every conceivable alternative technique of investigation.
What was held in R v McGinty (CHIS informers)?
Disclosure of the identity of the alleged informants was not required under the Act, and 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.
Definition of an informer
S64 Evidence Act 2006
(2) a person is an informer for the purposes of this section if the person -
(a) has supplied, gratuitously or for reward, information to an enforcement agency or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances which the person has a reasonable expectation that their identity will not be disclosed, AND
(b) is not called to be a witness by the prosecution to give evidence relating to that information.
(3) an informer may be a member of the police working undercover
How many days can a surveillance warrant be in force?
For a specified period up to 60 days.
On what grounds may intercepted communications be withheld?
- information which is likely to prejudice the maintenance of law, including the prevention, investigation, and detection of offences
- disclosure of the information is likely to prejudice the security or defence of NZ
- disclosure of the information is likely to endanger the safety of any person or peopl
- disclosure of personal and private information
- disclosure of privileged information
What must be done in terms of evidential transcripts?
- intercepted communications must be analysed, and an evidential transcript must be made. The transcript must be a verbatim copy of the recorded version of the conversation. When it is presented in court, the recording will be played back in such a manner where extraneous or inadmissible evidence is not disclosed
- where the recording is very poor, relevant experts may be called in to make the recording easier for the court to understand. The audio may need to be enhanced, for which the experts will explain the process of enhancement and transcription
Four things that must be done by OC phone in the first 24 hours
- trapping or preloading phone data
- arranging telecommunication service provider (TSP) liaison
- liaising with an analyst
- draft a production order application early
- prove phone ownership of suspects and other contacts
List four points for unplanned entry into a clan lab
RIPNOSCMA
R - Immediately REMOVE POI’s from the premise.
I - ISOLATE the site and maintain a safety perimeter.
P - PRESERVE the crime scene.
N - NOTIFY the duty inspector or duty NCO, contact NCLRT, and where appropriate fire service or ambulance.
OSC - OCCUPANTS of the address and STAFF who have entered the address are to remain separated until deCONTAMINATION issues have been addressed.
MA - Seek MEDICAL ADVICE if you experience any adverse effects.
List four unplanned Clan Lab safety considerations (WALTRSU)
L - LEAVE the area immediately, your safety is paramount.
Do not:
W - shut off the WATER supply to the house or the chemical reaction.
A - ATTEMPT to stop the chemical reaction, or turn any ELECTRICAL devices on/off.
T - TOUCH, taste, or smell any chemicals or equipment.
R - RE-ENTER the premises.
S - SMOKE in or near the clan lab.
U - USE any tools, cellphones, radios, torches, or any other devices that produce spark or friction.
Factors to consider in a planned entry to clan labs (PLAINTSF)
P - PROXIMITY to persons or property
L - the lab LOCATION
AI - whether it is an ACTIVE or INACTIVE lab
N - NUMBER and nature of offenders or others present at the lab
TS - the TYPE and SIZE of the lab
F - FIREARMS, weapons, and booby traps
What is the 90 second rule?
This rule assumes that if offenders are present and moving inside the lab then the atmosphere will sustain life.
It assumes that the Initial Entry Team (IET wearing the minimum level of PPE) may safely enter and extract the suspects for a period of up to 90 seconds.
Define emergency (Hazardous Substances and New Organisms Act 1996)
Emergency means actual or imminent danger to human health or safety, or a danger to the environment or chattels, so significant immediate action is required to remove the danger arising from a hazardous substance or new organism.
What are some indicators of a clan lab from the outside? (OVERSAW SOB)
O - Chemical ODOURS coming from the building, rubbish, or detached buildings
V - frequent VISITORS at odd times
E - EXHAUST fans running at odd times
R - RUBBISH containing large amounts of cold medicine containers or packaging
S - expensive SURVEILLANCE and SECURITY gear
A - ACCESS denied to landlords, neighbours, and other visitors
W - WINDOWS blacked out or curtains always drawn
S - People coming outside only to SMOKE
O - OCCUPANTS unfriendly, appear secretive about their activities, exhibit paranoid and odd behaviours
B - BOTTLES, plastic containers, and boxes with labels removed
What things must you do for the initial action at clan labs where CYP are located? (RAEAOTPDPRCP)
R - REMOVAL of CYP from immediate scene
A - ASSIGNING of an officer to look after and monitor CYP
E - Age appropriate EXPLANATION to CYP about what is going to happen to them, e.g., special clothing
A - ASSESSMENT of CYP by ambulance staff for illness, injury, or respiratory distress (immediate medical attention may take priority over decontamination)
O - Request ORANGA TAMARIKI assistance at scene
T - CYP put into TYVEK suit or have them wrapped in a blanket, before handing over to OT staff
P - distribution of PPE to OT staff, with a decontamination kit for CYP
D - most appropriate DECONTAMINATION for CYP
P - PHOTOGRAPH the CYP at the scene
R - RECORDING of the physical condition and mental state of the CYP
C - consider securing the CYP’s CLOTHING as an exhibit
P - PRELIMINARY interview of the CYP
What should you cover in a preliminary interview with a CYP? (DDOSSHAK)
D - DETAILS of other siblings, or CYP’s at the address
D - name of DOCTOR
O - OCCUPANT’s details
S - SCHOOL or pre-school details
S - SLEEPING arrangements at the address
H - basic HEALTH questions such as headaches, nausea, breathing difficulty, fatigue etc
A - playing and eating AREAS at the address
K - KNOWLEDGE of drugs, manufacturing, and dealing activities
What should you cover in a preliminary interview with a CYP found at CL? (DDOSSHAK)
D - DETAILS of siblings, or other CYP’s at address
D - name of CYP DOCTOR
O - OCCUPANT’s details
S - SLEEPING arrangements at address
S - SCHOOL or preschool details
H - basic HEALTH questions such as headaches, breathing difficulties, nausea, fatigue
A - playing and eating AREAS at address
K - KNOWLEDGE of drugs, manufacturing, drug dealing activities
What is the time limit for filing charging documents for offences under MODA75?
You may file charging documents at any time for offences under s6, 9, or 10.
For any other offences under this act, the charges must be laid within four years after the offence was committed.
Explain s16 of the Bail Act 2000
A defendant who is charged 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.
