Drugs CIB011 Flashcards
(138 cards)
1
Q
What is S6(1)(a)-(f) MODA1975?
A
(6) Dealing with controlled drugs
(1) Except as provided in section 8, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—
(a) import into or export from New Zealand any controlled drug; or
(b) produce or manufacture any controlled drug; or
(c) supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(d) supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e)
2
Q
What is S6(2)(a)(b)&(c) MOD1975?
A
(6) Dealing with controlled drugs
(2) Every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction to—
(a) imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) imprisonment for a term not exceeding 14 years where paragraph (a) does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) imprisonment for a term not exceeding 8 years in any other case
3
Q
What is S6(2A) MODA1975?
A
(2A) Every person who conspires with any other person to commit an offence against subsection (1) commits an offence against this Act and is liable on conviction to imprisonment for a term—
(a) not exceeding 14 years where a Class A controlled drug was the controlled drug in relation to which the offence was committed:
(b) not exceeding 10 years where paragraph (a) does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) not exceeding 7 years in any other case.
4
Q
What is S6(3) MODA1975?
A
Repealed fool.
5
Q
What is S6(4) MODA1975?
A
SHORT:
(4) Where any person is convicted of an offence relating to Class A CD against para (a), (b), (c), or (f) the judge shall impose a sentence of imprisonment unless, having regard to the particular circumstances of the offence or the offender, including the age if he is under 20 years, the Judge or court is of the opinion that the offender should not be so sentenced.
LONG:
(4) Notwithstanding anything in Part 1 or section 39 or section 81 of the Sentencing Act 2002, where any person is convicted of an offence relating to a Class A controlled drug—
(a) against paragraph (c) or paragraph (f) of subsection (1); or
(b) against paragraph (a) or paragraph (b) of subsection (1) committed in circumstances indicating to the Judge or court an intention to offend against paragraph (c) of that subsection,— the Judge or court shall impose a sentence of imprisonment (within the meaning of that Act) unless, having regard to the particular circumstances of the offence or of the offender, including the age of the offender if he is under 20 years of age, the Judge or court is of the opinion that the offender should not be so sentenced.
6
Q
What is S6(4A) MODA1975?
A
(4A) Without limiting anything in subsection (4) or in Part 1 or section 39 or section 81 of the Sentencing Act 2002, where any person is convicted of an offence relating to a Class A controlled drug or a Class B controlled drug against any of paragraphs (a), (b), (c), and (f) of subsection (1), the Judge or court, if he or it decides to impose a sentence of imprisonment, shall consider whether or not he or it should also impose a fine.
7
Q
What is S6(5) MODA1975?
A
(5) For the purposes of paragraph (e) of subsection (1), if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.
8
Q
What is S6(6) MODA1975?
A
(6) For the purposes of subsection (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 subsection (1)(c), (d), or (e) if he or she is 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 (see section 2(1A)).
9
Q
What is S2(1A) MODA1975?
A
2 Interpretation (1) Class A controlled drug = Schedule 1 Class B controlled drug = Schedule 2 Class C controlled drug = Schedule 3; and includes any temporary class drug and any controlled drug analogue.
Under Schedule 3 part 7: any controlled drug analogue means any substance that has a structure substantially similar to that of any controlled drug
10
Q
Define importation
A
In relation to any goods, means the arrival of the goods in NZ in any manner, whether lawfully or unlawfully, from a point outside of NZ.
11
Q
Saxton v Police
A
(Posted cannabis resin from London to his address in Dunedin). To import includes to “introduce from abroad or cause to be brought in from a foreign country”.
- To import includes to bring in.
12
Q
List 4 ways that drugs are imported into NZ:
A
- Have drugs concealed on their person or in their luggage
- Have another person (a ‘mule’) bring the drugs in for them
- Send or have drugs set by international mail or courier
- Conceal drugs in legitimate goods, eg. within shipping containers
13
Q
What is the process of importation?
A
Importation is the process that commences at the point of origin and continues until the drugs have reached their ultimate destination in NZ. The process continues while the drugs are in transit.
14
Q
R v Hancox
A
(Girl and 2 parcels of MDMA at the post shop)
The bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessels enters NZ’s territorial limits. Importing into NZ for the purpose of 6(1)(a) is a process. The element of importing exists form the time the goods enter NZ until they reach their immediate destination. Ie. when they cease to be in the control of the appropriate authorities and have become available to the consignee or addressee.
15
Q
How do you prove the defendants guilty knowledge (meas rea) of importing?
A
Proof that the defendant:
- Knew about the importation and
- knew the imported substance was a controlled drug and
- intended to cause importation
16
Q
What does wilful blindness mean in terms of importation?
A
In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice.
17
Q
Define the “time of exportation” under S53 Customs and Excise Act 1996:
A
The time of exportation is the time when the exporting craft leaves the last customs place at which that craft calls immediately before proceeding to a point outside NZ.
18
Q
Under the MODA1975, ‘NZ’ means the land and the waters enclosed by the outer limits of the territorial sea of NZ.
How big is the “outer limit of the territorial sea”?
A
12 nautical miles from the land mass of NZ.
19
Q
Define ‘any controlled drug’:
A
Any controlled drug means any substance, preparation, mixture, or article specified or described in schedule 1, 2, or 3 in this act and includes any controlled drug analogue.
20
Q
What is controlled drug analogue?
A
Is any substance with a structure substantially similar to a controlled drug. It is a substance that has similar dangerous effects, but is not specifically listed in the schedules.
21
Q
What class is a controlled drug analogue?
A
Class C.
22
Q
Define and list Class A drugs:
A
Class A controlled drug are described in schedule 1 and poses a very high risk of harm to individuals.
- cocaine
- methamphetamine
- heroin
- LSD
23
Q
Define and list Class B drugs:
A
Class B controlled drugs are described in schedule 2 and poses a high risk of harm to individuals.
- cannabis oil
- amphetamine
- MDMA (ecstasy)
- morphine
24
Q
Define and list Class C drugs:
A
Class C controlled drugs are described in schedule 3 and poses a moderate risk of harm to individuals.
- cannabis plant
- cannabis seed
- BZP (benzylpiperazine)
- controlled drug analogues
25
What controlled drugs are not included as offences of 'importing' or 'exporting'?
Controlled drugs listed in schedule 3, part 6 are not included under S6(1)(a).
26
R v Strawbridge
It is not necessary for the Crown to establish knowledge on the part of the accused. If there is some evidence that 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 was not so.
27
Police v Emerali
Possession of a controlled drug does not extend to some minute and useless residue of the substance.
28
R v Rua
The words 'produce' or 'manufacture' in S6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into particular controlled drugs
29
What is the difference between producing and manufacturing?
Producing can be described as changing the nature of the original substance, and manufacturing is creating a different substance from the original materials.
30
What is 'producing'?
Producing means to bring something into being, or to bring something into existence from its raw materials or element.
In legislation it includes 'compound' which means to create a role by mixing or combining two or more elements or parts.
Eg. separating cannabis resin from cannabis plant to create oil.
31
What is 'manufacturing'?
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
Eg. manufacturing methamphetamine from pseudoephedrine.
32
When is the offence complete in terms of 'manufacturing's 'producing'?
Once the prohibited substance is created, whether or not it is in a useable form.
33
What is S29B MODA1975?
29B Special provisions where offence relating to cannabis preparations alleged
In relation to any cannabis preparation the following provisions shall apply:
(a) it shall be for the prosecution to prove that the preparation to which the charge relates contains any tetrahydrocannabinols:
(b) subject to paragraph (a), the preparation shall be deemed to have been produced by subjecting cannabis plant material to some kind of processing unless it is in a form that is clearly recognisable as plant material:
(c) plant material means the whole or any part of the leaf, flower, or stalk of any plant (of whatever species):
(d) the question of whether or not any preparation is in a form that is clearly recognisable as plant material shall, in the event of dispute between the prosecutor and the defendant, be determined by the jury (or, if there is no jury, by the Judge as a question of fact) by means of a visual inspection unaided by any microscope or magnifying glass (other than spectacles ordinarily worn) or by any other device.
34
R v Maginnis
Supply involves more than the mere transfer of physical control. It includes enabling the recipient to apply the thing to purposes for which he desires.
35
Define 'supply':
Includes to distribute, give, and sell.
36
What is distributing?
Distributing relates to the supply of drugs to multiple people.
37
What is 'giving'?
The act of giving is complete when the recipient accepts possession, or where the drug is placed under the control of a willing participant.
38
What is 'administering'?
It involves introducing the drug directly into another persons system.
39
In regards to 'offerring to supply or administer' what two elements must the prosecutor prove?
1. the communicating of an offer to supply or administer a controlled drug (actus reus)
2. an intention that the other person believes he offer to be genuine (the mens rea)
40
R v During
An offer is an intimation by the person charged to another that he is ready on request to supply the controlled drug.
41
R v Brown (offers to supply)
The defendant is guilty in the following instances, of 'offers to supply a drug':
(1) that he has on hand
(2) that will be procured at some future dates
(3) that he mistakingly believes he can supply
(4) deceitfully, knowing he will not supply that drug
42
R v Brown (intimation)
The making of such intimation, with the intention that it should be understood as a genuine offer, is an offence.
43
What is an example of 'otherwise deals'?
Barter or exchange
44
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
45
What are the two elements of possession?
Physical element: physical custody or control over the drugs. Actual or potential.
Mental element: requires a combination of knowledge (awareness that the substance is in his possession and knowledge that it is a controlled drug) and intention (to possess the controlled drug).
46
When considering whether a person knows the qualities of a substance, you need to establish three things. What are they?
1. know they have the substance
2. know the substances nature or qualities
3. intend to use the substance in a way that allows you to charge them with possession
47
R v Cox
Possession involves two elements, first the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of awareness by the accused that the substance is in his possession; and an intention to exercise possession.
48
What is attempted possession?
Obtaining something harmless (innocuous) in the mistaken belief that it is a drug.
In R v Jay, he was in possession of a bag that he thought was cannabis which turned out to be hedge clippings. He had criminal intent and did an act for the purpose of accomplishing his object and is therefore guilty of an attempt to commit an offence (possession)
49
In relation to that charge of 'possession', what must the Crown prove the defendant had? (4)
1. knowledge that the drug exists
2. knowledge that it is a controlled drug
3. some degree of control over it
4. an intention to possess it
50
What are the two types of intent?
1. Intent to commit the offence (deliberate act)
| 2. Intent to produce a specified result
51
When proving intent in drug supply cases, what are three additional pieces of evidence that could be gathered?
1. admissions
2. circumstantial evidence (packaging, scales, cash, tick lists etc.)
3. the statutory presumption under 6(6)
52
Where in the Act can the specified presumptive amounts be found?
Schedule 5 of the Act.
53
What are some examples of drugs and their presumptive amounts?
```
Heroin = 0.5g
Cocaine = 0.5g
LSD = 2.5mg or 25 flakes, tables etc
Meth = 5g
Cannabis oil/resin = 5g
Cannabis plant = 28g or 100 or more cigarettes
```
54
Where a controlled drug is not listed in Schedule 5, how much is the presumptive amount?
56 grams
55
What is conspiracy?
It is an agreed intention which is common on the mind of the conspirators and a common desire to commit the offence, rather than any actual action.
56
What is S12A(1) MODA1975?
12A Equipment, material, and substances used in production or cultivation of controlled drugs
(1) Every person commits an offence against this Act who supplies, produces, or manufactures—
(a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or
(b) any precursor substance—
knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.
57
What is S12A(2) MODA1975?
12A Equipment, material, and substances used in production or cultivation of controlled drugs
(2) Every person commits an offence against this Act who has in his or her possession—
(a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or
(b) any precursor substance with the intention that the equipment, material, or substance is to be used in, or for, the commission of an offence against that provision.
58
What is S12A(3) MODA1975?
12A Equipment, material, and substances used in production or cultivation of controlled drugs
(3) Every person who commits an offence against this section is liable on conviction,—
(a) in the case of an offence against subsection (1), to imprisonment for a term not exceeding 7 years:
(b) in the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.
59
For a charge under S12A(1), what three elements must the Crown prove?
1. that the defendant has supplied, produced, or manufactured the equipment, materials, or precursors
2. that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
3. that the defendant knows those items are to be used for such an offence by another person
60
Give examples of 'equipment':
For manufacturing meth:
- glassware
- condensers
- heating mantles
For cultivating cannabis:
- pots
- lights
- timers
- fans
- water pumps
61
Give examples of 'material' re S12A MODA1975: (4)
- chemicals
- documents with instructions
- fertilisers
- nutrients
62
What does 'precursor' mean and what are some examples of precursors listed in schedule 4?
Precursor means fore-runner, something that comes before something else.
Examples:
- acetic anhydride (precursor to heroin)
- lysergic acid (precursor to LSD)
- ephedrine/pseudoephedrine (precursor to meth)
* ephedrine/pseudoephedrine are scheduled both as Class B controlled drugs in Schedule 2 and precursors in Schedule 4.
63
For a charge under S12A(2), what three elements must the Crown prove?
1. that the defendant has equipment, material, or precursors in his possession
2. that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
3. that the defendant has the intention that those items are to be used for such offence, either by himself or another person
64
Under S12A(2) - possession of equipment/precursors - does the offence have to be committed (the use of that equipment/precursors)?
No. It is not necessary to prove that the offence was actually committed or even attempted. It is sufficient if he intends the items to be used some time in the future by himself or another person.
65
What is S9 MODA1975?
9 Cultivation of prohibited plants
SHORT:
(1) No person shall cultivate any prohibited plant
(2) Liable on conviction = 7yrs
(3) Repealed
(4) Defence = species 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 could be produced.
LONG:
(1) Except pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall cultivate any prohibited plant.
(2) Subject to subsection (4), every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction to imprisonment for a term not exceeding 7 years.
(3) [Repealed]
(4) It shall be a defence to a charge under subsection (1) if the person charged proves that the prohibited plant to which the charge relates was of the species 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 could be produced.
66
What is S12 MODA1975?
12 Use of premises or vehicle, etc
(1) Every person commits an offence against this Act who knowingly permits any premises or any vessel, aircraft, hovercraft, motor vehicle, or other mode of conveyance to be used for the purpose of the commission of an offence against this Act.
(2) Every person who commits an offence against this section is liable on conviction to imprisonment for a term—
(a) not exceeding 10 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) not exceeding 7 years where paragraph (a) does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) not exceeding 3 years in any other case.
(3)[Repealed]
67
What is S16 MODA1975?
16 Obstruction of officers
Every person commits an offence against this Act who wilfully obstructs, hinders, resists, or deceives any other person in the execution of any powers conferred on that other person by or pursuant to this Act.
68
What is S43(1) & (5) Medicines Act 1981?
43 Restrictions on possession of prescription medicines
(1) No person shall, without reasonable excuse, import, procure, receive, store, use, or otherwise have in his possession, any prescription medicine
(5) Every person commits an offence against this Act who contravenes subsection (1)
69
Under Health (needles and syringes) regulations act 1998, what is reg 11?
*Reg 11: offering or accepting for use any used needle of syringe, or disposing of any needle or syringe in a public place.
11 Offences relating to use or disposal
(1) Every person commits an offence who—
(a) offers to any other person, for use by that other person, a used needle or used syringe; or
(b) accepts for use a used needle or used syringe; or
(c) disposes of a needle or syringe in a public place.
(2) Subclauses (1)(a) and (1)(b) do not apply to the offer or acceptance of a used needle or used syringe—
(a) for the purpose of administering an agricultural compound to an animal; or
(b) for the purpose of taking any substance from an animal; or
(c) for the purpose of conducting any animal research work in accordance with a code of ethical conduct; or
(d) to or by a veterinarian in the course of practice.
70
Under Health (needles and syringes) regulations act 1998, what is reg 12?
Reg 12: Selling or supplying, or attempting to sell or supply, any needle or syringe.
12 - Offences relating to sale
SIMPLE:
(1) It is an offence to sell/supply or attempt to sell/supply a needle or syringe to another person who-
(a) is not a pharmacist or an approved person or
(b) is a pharmacist but is prohibited under reg 3(2) from selling needles/syringes
(2/3/4/5) It is an offence to be a pharmacist/authorised practitioner who sells needles/syringes to any person they aren't supposed to.
-------------
FULL:
(1) Every person commits an offence who, not being a pharmacist, a pharmacy employee, an approved medical practitioner, or an authorised representative, sells or supplies or attempts to sell or supply a needle or syringe to any other person who—
(a) is not a pharmacist, a pharmacy employee, an approved medical practitioner, or an authorised representative; or
(b) is a pharmacist or pharmacy employee who is prohibited under regulation 3(2) from selling new needles and new syringes.
(2) Every person commits an offence who, being a pharmacist or pharmacy employee, sells or supplies or attempts to sell or supply a needle or syringe to any other person otherwise than in accordance with regulation 3.
(3) Every person commits an offence who, being a pharmacist or pharmacy employee who is prohibited under regulation 3(2) from selling new needles and new syringes, sells or supplies or attempts to sell or supply a needle or syringe to any other person.
(4) Every person commits an offence who, being an approved medical practitioner, sells or supplies or attempts to sell or supply a needle or syringe to any other person otherwise than in accordance with regulation 4.
(5) Every person commits an offence who, being an authorised representative, sells or supplies or attempts to sell or supply a needle or syringe to any other person otherwise than in accordance with regulation 5.
71
What is S12 Misuse of Drugs Amendment Act 1978?
12 Allowing delivery of unlawfully imported drugs or precursor substances for purpose of detection, etc
SHORT:
Customs RGTB there is a CD in or on any craft, package, mail, vehicle, or goods leave or replace that drug or precursor substance, or any portion of it AND may-
(a) allow the craft or vehicle to leave; or
(b) allow the package, goods, or mail to be collected by or delivered to or on behalf of the consignee; or
(ba) allow the package, goods, or mail to be delivered by a person who has agreed to co-operate with Customs; or
(bb) deliver the package, goods, or mail; or
(c) return the package, goods, or mail to the appropriate carrier for delivery to the addressee—
as the case may require.
(2) boring.
LONG:
(1) Where any Customs officer acting in the course of his or her official duties believes on reasonable grounds that there is in or on any craft, package, mail, vehicle, or goods any controlled drug or precursor substance that has been imported into New Zealand in contravention of section 6(1)(a) or section 12AB of the principal Act, he or she may, for the purpose of his or her investigation of the matter, leave or replace that drug or precursor substance, or any portion of it, in or on the craft, package, mail, vehicle, or goods and may, in the same manner as if there had been delivery from Customs control,—
(a) allow the craft or vehicle to leave; or
(b) allow the package, goods, or mail to be collected by or delivered to or on behalf of the consignee; or
(ba) allow the package, goods, or mail to be delivered by a person who has agreed to co-operate with Customs; or
(bb) deliver the package, goods, or mail; or
(c) return the package, goods, or mail to the appropriate carrier for delivery to the addressee—
as the case may require.
(2) No Customs officer who exercises any power conferred by subsection (1), and no officer or employee of any carrier who, in the course of his or her duties, does anything in respect of any package, goods, or mail returned to a carrier in accordance with that subsection (whether or not he or she knows that the package, goods, or mail contains a controlled drug or precursor substance), is under any criminal or civil liability in respect of the exercise of that power or, as the case requires, the doing of that thing.
72
What is S81 S&S2012?
81 Searches of persons, places, and vehicles relating to deliveries under section 12 of Misuse of Drugs Amendment Act 1978
(1) In the circumstances set out in subsection (2), a constable or a Customs officer may, during the course of a delivery in relation to which a Customs officer has exercised his or her powers under section 12 of the Misuse of Drugs Amendment Act 1978, do any or all of the following without a warrant:
(a) search a person involved in a delivery under section 12 of the Misuse of Drugs Amendment Act 1978:
(b) enter and search any place, craft, or vehicle:
(c) seize anything that he or she has reasonable grounds to believe is a thing described in any of paragraphs (a) to (d) of subsection (2).
(2) The circumstances are that the constable or the Customs officer has reasonable grounds to believe that the person is in possession of, or the place, craft, or vehicle contains, any 1 or more of the following:
(a) a controlled drug:
(b) a precursor substance:
(c) a package in relation to which the Customs officer has replaced all or a portion of any controlled drug or precursor substance:
(d) evidential material in relation to the commission of an offence under section 6(1)(a) or 12AB of the Misuse of Drugs Act 1975.
73
List different methods of importation: (6)
1. International mail centre
2. International Airport
3. Imported air freight
4. Imported sea freight
5. Transhipped air or sea freight
6. Arriving commercial vessel
74
What are the two options with controlled deliveries?
Option 1: "Clean controlled delivery" - where no drugs are left within the consignment. This eliminates any risk of losing the drugs and gives greater freedom in organising the surveillance. Only importation and/or conspiracy charges are likely to be filed.
Option 2: Leave an amount of the drug within the consignment to enable the option of charging 'possession for supply' and also provides the availability of emergency powers if the drugs move to a person or place that aren't listed on the search warrant.
75
List the 6 stage initial action phase once Police are notified by NZ customs regarding the detection of a package containing drugs:
1. Assume ownership and appoint roles (OC investigations/file/exhibits/phones and customs liaison officer).
2. Liase early with Customs OC Exhibits and where appropriate to take control.
3. Consider an electronic phase (must be Class A or B or cannabis offence under S6)
4. Request Customs to manipulate the 'Track and Trace' system if the panel is in the track and trace system. This prevents the person who is receiving the package knowing that customs has been involved.
5. Contact other squad if available (Surveillance, Photography, Crime Monitoring Centre (CMC), Technical Support Unit (TSU)).
6. Start planning the operation, developing operation orders, and rostering staff. Once the controlled delivery operation begins, there must be 24hr cover.
76
List ways to profile the sender of the package: (5)
1. phone number attached to the package/any doc
2. IMEI/SIM information undertaken at early stage (call data)
3. telecommunications service providers portability of cell phones
4. DNA/FP/Handwriting/impressions/mechanic fit
5. multiple packages, including dummy runs to target address or associated address
77
List ways to profile the delivery address:
- occupants
- local council (rate payer/owner)
- council plans of street and target address
- rubbish delivery - date and time
- HNZ
- telecommunication service providers
- electricity / gas suppliers to address
- timing of mail to address
- previous occupants & neighbours
- Police staff who have previously visited the address
78
List ways to profile the addressee:
- previous occupiers
- real person or fake name
- connections to the delivery address
- relevant convictions/notings/associations
- travel / connections to the country of origin
- bank accounts (large deposits/overseas transactions)
- full ID of target if possible
- photographs of person
- suspects knowledge surrounding covert enforcement techniques
- family members
- financial profile
79
What does OP stand for?
Observation Post
80
In relation to the controlled delivery operation, what activities require a surveillance device warrant? (include section and act).
Under S46 S&S2012:
(1) Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(a) use of an interception device to intercept a private communication:
(b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.
81
What are some things to consider when approaching the occupants? (to use their address for the operation)
- cover story
- protection of id
- room available with 24hr access
- preferably no children
- preferably no visitors to the address during operation
- gratuity 'thank you' at investigation conclusion
82
What is the 5 step process when repackaging the package?
1. Liase w Customs Technical Unit (CTU)
2. Consider your options for repackaging (multiple, tracking device, audio device, opening device, dye trap, covert marking commodity)
3. Seek advice from document examiner (recreate package and/or ID of photocopier for LSD)
4. Leave appropriate quantity of controlled drugs in the package but replace the rest with placebo
5. photograph the package, layer by layer, and use scale rule and use photo labels
83
List examples of evidence relating to 'importation':
- track and trace receipts
- correspondence
- emails
- contact lists/numbers
- packaging
- money and financial records
- scales and packaging etc in relation to supply charges
- travel documentation
84
What is S19 SS 2012?
19 Search of persons in relation to Misuse of Drugs Act 1975 offence search warrants
A constable may search any person found in or on a place or vehicle, in relation to which a search warrant is issued under section 6, if the offence that was specified in the application for the search warrant is an offence against the Misuse of Drugs Act 1975.
85
What is S20 S&S2012?
20 Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds
(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i) a CD in S1 of MODA; or
(ii) a CD in S2 P1 of MODA; or
(iii) a CD in S3 P1 of MODA; or
(iv) a precursor substance in S4 P3 of MODA
(b) to suspect that in or on the place or vehicle an offence against the MODA has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.
86
What is S21 S&S2012?
21 Warrantless searches of people found in or on places or vehicles
A constable conducting a search of a place or vehicle under section 20 may, without a warrant, search any person found in or on the place or vehicle.
87
What is S22 S&S2012?
22 Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975
(1) A constable may, in the circumstances set out in subsection (2), search a person without a warrant.
(2) The circumstances are that the constable has reasonable grounds—
(a) to believe that the person is in possession of—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b) to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.
(3) This section does not—
(a) limit section 20 or 21; or
(b) authorise a constable to enter or search a place or vehicle except in accordance with those sections.
88
What is S23 S&S2012?
23 Internal search of person under arrest for offence against section 6, 7, or 11 of Misuse of Drugs Act 1975
(1) In the circumstances set out in subsection (2), a constable may require a person to permit a medical practitioner, nominated for the purpose by the constable, to conduct an internal examination of any part of the person’s body by means of—
(a) an X-ray machine or other similar device; or
(b) a manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice.
(2) The circumstances are that—
(a) the person is under arrest for an offence against section 6, 7, or 11 of the Misuse of Drugs Act 1975; and
(b) the constable has reasonable grounds to believe that the person has secreted within his or her body any property—
(i) that may be evidence of the offence with which the person is charged; or
(ii) the possession of which by the person constitutes any other offence against section 6, 7, or 11 of the Misuse of Drugs Act 1975.
(3) A medical practitioner must not conduct an internal examination if he or she—
(a) considers that to do so may be prejudicial to the person’s health; or
(b) is satisfied that the person is not prepared to permit an internal examination to be conducted.
(4) This section does not limit or affect sections 13A to 13M of the Misuse of Drugs Amendment Act 1978.
89
What is S24 S&S2012?
24 Effect of not permitting internal search under section 23 on bail application
(1) In the circumstances set out in subsection (2), a court may decline to consider a bail application by a person, and may order that the person continue to be detained in Police custody, until the earlier of the following occurs:
(a) the expiry of 2 days after the day on which the person was required under section 23(1) to permit an internal examination by a medical practitioner:
(b) the person permits the examination to be conducted.
(2) The circumstances are that—
(a) the person fails to permit an internal examination to be conducted under section 23; and
(b) the court is satisfied that the requirement under section 23(1) was properly made on reasonable grounds.
(3) Nothing in subsection (1) limits a court’s discretion to refuse bail.
(4) This section overrides any contrary provisions about bail in any of the following:
(a) the Bail Act 2000:
(b) the Misuse of Drugs Act 1975:
(c) the Criminal Procedure Act 2011.
90
What is S121 S&S2012?
121 Stopping vehicles with or without warrant for purposes of search
(1) An enforcement officer may stop a vehicle to conduct a search under a power to search without a warrant conferred on that officer by this Act or any enactment specified in column 2 of the Schedule to which this section applies if he or she is satisfied that he or she has grounds to search the vehicle.
(2) An enforcement officer may stop a vehicle to conduct a search under a power to search with a warrant issued under this Act or any enactment specified in column 2 of the Schedule to which this section applies if he or she is satisfied that the warrant has been issued and is in force.
(3) A person who exercises a power under this section must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself either by name or by unique identifier; and
(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances; and
(c) if not in Police uniform, produce evidence of his or her identity.
91
What is S9 SS2012?
9 Stopping vehicle to find persons unlawfully at large or who have committed certain offences
A constable may stop a vehicle without a warrant to arrest a person if the constable has reasonable grounds—
(a) to suspect that a person—
(i) is unlawfully at large; or
(ii) has committed an offence punishable by imprisonment; and
(b) to believe that the person is in or on the vehicle.
92
What are the two main categories tracking devices fall into?
1. A device that will help ascertain the location of person or thing eg tracking a person using a cellphone when it is turned on or using a thermal imaging device from the air to track the movements of a person on the ground.
2. A device used for detecting whether a thing has been handled. Note the use of this device ONLY requires a warrant when the installation involves trespass.
93
Do you need a warrant to use an interception device?
Yes as you are recording a private conversation.
94
Who installs interception devices?
By law, the Police have to install the interception device.
95
Under S45 SS2012, the legal authority to install a tracking device is found. What does paragraph (b) and (d) outline?
QUESTION/ANSER WRONG. IGNORE
(b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
96
S48(2) S&S2012 lists emergency situations where a surveillance device warrant is not required and a surveillance device can be used for up to 48 hours. What are some of those emergency situations?
(2) The situations are as follows:
(a) Officer has:
(i) RGTS 14 year or more offence has been, is being, or is about to be committed; and
(ii) RGTB that use of the surveillance device would obtain evidential material in relation to the offence:
(b) Officer has:
(i) RGTS that S14(2): likely to cause injury to any person, or serious damage to, or serious loss of, any property, or
there is risk to the life or safety of any person that requires an emergency response and
(ii) RGTB the use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency:
(c) Officer has:
(i) RGTS that any 1 or more of the circumstances set out in section 18(2) exist; and
(ii) RGTB that use of the surveillance device is necessary to facilitate the seizure of the arms:
(d) Officer has:
(i) RGTS that a category 3 or 4 offence in relation to arms or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(e) Officer has:
(i) RGTS that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug outlines in part 1 of schedule 1, 2, and 3 or to a precursor substance in Part 3 of Schedule 4 of the MODA1975 and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(f) Officer has
(i) RGTB that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d); and
(ii) to believe that use of the surveillance device is necessary to facilitate the thing’s seizure.
97
What is the main difference between S13A MOD amendment act 1978 and S23 S&S2012? (internal searches)
Under S23 of the S&S2012, the internal search only applies to people under arrest.
Under S13A Misuse of Drugs Amendment Act 1978,the internal search applies to a person who you have RGTB that they are concealing Class A or B drugs but who are not under arrest.
98
Define private communication:
a) means communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
b) 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 maybe intercepted by some other person without having the express or implied consent of any party to do so.
99
Define an interception device:
interception device—
(a) 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 a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
100
What is visual trespass surveillance?
Visual trespass surveillance means trespass surveillance involving the use of a visual surveillance device.
101
What is visual trespass surveillance?
Visual trespass surveillance is trespass surveillance involving the use of a visual surveillance device
102
What is a surveillance device? (3)
1) An interception device
2) A tracking device
3) A visual surveillance device
103
Define 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:
(i) the location of a thing or a person:
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but
(b) does not include a vehicle or other means of transport, such as a boat or helicopter
104
Under section 45-64 S&S 2012 sets out law in relation to Police surveillance. What are the three main points?
1) Observing and recording of that observation of people, vehicle, places or things
2) Ascertaining (tracking) the location of the thing or person, and/or ascertaining whether a thing has been tampered with; or
3) Intercepting a private communication through the use of a "surveillance device"
105
What does a serious offence in relation to trespass surveillance relate to?
An offence punishable by 7 years imprisonment or more (or against certain sections against the Arms Act)
106
What is Section 47 S&S 2012? (Activities that do not require a warrant)
(1) No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities:
(a) the enforcement officer—
(i) being lawfully in private premises; and
(ii) recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device):
(b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(d) activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.
107
What is the exception to the requirement to obtain a surveillance device warrant for the use of an interception device?
When consent is obtained by at least on of the parties to covertly record a voluntary oral communication made between that person and others involved in the communication.
108
What is S48 S&S 2012?
Situations of emergency where the offence is ..
- Punishable by 14 years imprisonment or more
- An Arms Act offence
- A drugs offence
- Likely to cause injury or serious property loss or damage and surveillance is necessary to prevent offending being or committed or continuing
- Presenting risk to life and safety and safety is necessary as an emergency response
109
How long can a surveillance device be used without a warrant under S48 S&S 2012?
48 hours
110
R v MCGINTY (alternative technique of investigation)
The evidence in the present case of continued heroine dealing, in respect of which the orthodox techniques such as search 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 investigations.
111
What is S57 of S&S 2012?
Short answer:
While lawfully carrying out activities or using a SD and you obtain EM relating to an offence not relating to original warrant, the EM is NOT inadmissible.
Long and boring answer:
(1) Subsection (2) applies if, in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence—
(a) that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
(b) in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used.
(2) The evidential material referred to in subsection (1) is not inadmissible in criminal proceedings by reason only that the surveillance device warrant that authorised the activity that obtained the material was issued in respect of a different offence or, as the case requires, that the material was obtained from the use of a surveillance device that was put into use in respect of a different offence.
112
What is S51 of SS 2012?
Conditions for issuing surveillance device warrant
The conditions for issuing a surveillance device warrant are that—
(a) there are reasonable grounds—
(i) to 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 the Schedule authorises the enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the suspected offence; and
(ii) to 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 section 45 do not prevent the issuing of a surveillance device warrant in the circumstances.
113
R v Mcginty (informants)
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 the informants. However, the trial judge was entitled to insist on disclosure if he saw fit.
114
What is S64 of the Evidence Act 2006?
64 Informer - s
(1) An informer has privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
(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 in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b) is not called as a witness by the prosecution to give evidence relating to that information.
(3) An informer may be a member of the Police working undercover.
115
What is S49 of SS 2012
An application for a surveillance device warrant may be made only by an enforcement officer, and must contain, in reasonable detail, the following particulars:
(a) the name of the applicant:
(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c) the grounds on which the application is made:
(d) the suspected offence in relation to which the surveillance device warrant is sought:
(e) the type of surveillance device to be used:
(f) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(g) a description of the evidential material believed to be able to be obtained by use of the surveillance device:
(h) the period for which the warrant is sought.
(2) If the enforcement officer cannot provide all the information required under subsection (1)(f) and (g), the application must instead state the circumstances in which the surveillance is proposed to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the proposed use of the surveillance device.
(3) The applicant must disclose in the application—
(a) the details of any other applications for a search warrant or a surveillance device warrant that the applicant knows to have been made within the previous 3 months in respect of the person, place, vehicle, or other thing proposed as the object of the surveillance; and
(b) the result of that application or those applications.
(4) The applicant must, before making an application for a surveillance device warrant, make reasonable inquiries within the agency in which the applicant is employed or engaged for the purpose of complying with subsection (3).
(5) Despite subsection (1), an application for a surveillance device warrant seeking authority to use visual trespass surveillance or an interception device may only be made by—
(a) a constable; or
(b) an enforcement officer employed or engaged by a law enforcement agency that has been approved by an Order in Council made under section 50.
116
Under S59 of the S&S Act 2012 sets out a requirement on the person who carries out the activities authorised by a surveillance device warrant to provide a written report to the issuing judge. When must this be complete?
Within 1 month after the expiry of the period for which the warrant is in force
117
What is consensual interception?
Taped evidence from intercepted private communications is admissible where one of the parties to the communication has previously consented to the interception taking place.
118
What is "4sight" "UCM"
Its a software programme containing all lawfully intercepted private communications from operation targets
119
What interceptions must you disclose to the defendant?
All interception regardless whether they are deemed relevant, non-relevant or inadmissible from a prosecution perspective must be disclosed.
120
Define relevancy under the Criminal Disclosure Act 2008
Relevant, in relation to information or an exhibit, means information or an exhibit, that tends to support or rebut, or has a material bearing on the case against the defendant
121
What are some ways you can tell that there is a clan lab inside a property (while you are standing outside)?
- Chemical odours coming from the building (sweet, bitter, ammonia, or solvent smells)
- Exhaust fans running at odd times
- Frequent visitors at odd hours
- Windows blackened out or curtains always drawn
- Expensive surveillance and security gear
122
What are some ways you can identify a clan lab inside a property?
- laboratory glassware, equipment, and documents
- containers with clear liquid in them with a chalky coloured solid bottom or similar
- container with two layered liquids in them, on dark and one clear or pale yellow colour
- used coffee filters containing either a white pasty or reddish brown substance
- baking dishes or similar containing white crystalline substance
- hot plates near chemicals
123
If you come across a clan lab at an address, what safety precautions must you take?
- leave the address immediately
- do not enter again
- never touch, taste, or smell the chemicals
- do not smoke in or near the clan lab
- do not use tools, radios, cell pones, torches, or devices that produce sparks or friction
124
What must you do before a planned entry into a clan lab?
Illicit drug-manufacturing laboratories pose multiple health and safety concerns. At all clandestine laboratory scenes, safety considerations must always outweigh evidentiary considerations. Planning an entry to
a Clandestine Laboratory will reduce the risks. The manner of entry will depend on the nature of the intelligence on such factors as:
* Whether it is an active or inactive laboratory;
* The number and nature of offenders or others present in the laboratory;
* The laboratory location;
* Proximity to persons or property;
* Type / size of Laboratory ;
* Firearms / weapons / booby traps.
125
What are the three types of clan labs?
1. Extraction
2. Conversion
3. Synthesis
126
What is S103 under the Hazardous Substances and New Organisms Act 1996?
103 Powers of entry for inspection
This allows you to go go on, into, under, and over any premises to determine the nature of any substance/ensure compliance with compliance order. This section gives you the power to take samples, photographs, conduct examinations to establish the nature of any substance.
** This section does not include dwellings unless the occupier gives permission
127
What is S136 & S137 under the Hazardous Substances and New Organisms Act 1996?
S136: Declaring the hazardous substance as an emergency
S137: The emergency power to enter a premise or dwelling and do yo thaaaaang. Direct etc.
128
What are the CAT3 offences under S6 MODA1975?
- importing and exporting
- producing and manufacturing
- supplying, administering, or offering to supply or admin
- selling or offering to sell (class C only)
- possessing any controlled drug for the purpose of above
* the defendant can chose to elect jury trial
129
What are CAT2 offences under S7 MODA1975?
- possession and consuming controlled drugs
- supplying, administering or offering to supply or administer class Controlled drug
* the defendant CANNOT chose to elect jury trial
130
What drug offences are automatically prosecuted by the Crown? (3)
S6(1)(b) or (2A) - production or manufacture, or conspiracy to produce or manufacture methamphetamine
S10 - aiding offences against corresponding law of another country corresponding to S6, 9 12A or 12B
S12C - commission of offences outside NZ
131
What are the '3 certain criteria' that will determine if the Class A drug offence is prosecuted by Crown?
1. quantity of drug is more than 5 times the presumption threshold
2. there is evidence of large scale dealing beyond the actual quantity seized
3. there is substantial evidence derived from a surveillance device involving audio interception
132
What are the '3 certain criteria' that will determine if the Class B&C drug offences is prosecuted by Crown?
1. quantity of drug is more than 10 times the presumption threshold
2. there is evidence of large scale dealing beyond the actual quantity seized
3. there is substantial evidence derived from a surveillance device involving audio interception
133
How is 'large scale dealing' determined?
- admissions by offender
- the amount and sophistication of the equipment found
- volumes of precursor material found in the defendants possession
- evidence of chemical purchases
- intercepted communications
- significant cash holdings and/or movements
134
Explain the categories of cannabis cultivation:
Cat 1: growing a small number of plants for personal use without any sale intended
Cat 2: small-scale cultivation with the object of gaining a profit
Cat 3: large-scale commercial growing, usually with a considerable degree of sophistication
*note that these categories are not the same as the categories under the Criminal Procedure Act. These are used for sentencing.
135
What does S17A (restriction on bail if defendant charged with serious Class A drug offence) of the Bail Act 2000 cover?
If the defendant is over the age of 17 years and is charged with a serious Class A drug offending, and they satisfy the judge on the balance of probabilities that they will not commit an offence under S6 or S12C MODA, then they may be granted bail or remanded at large.
136
What does S30 of the Bail Act 2000 cover?
It sets out different types of special conditions that a judge can impose on the defendant. These include:
- electronic monitoring
- confiscate passport or confine them to a specified geographical area
- any condition the judge considers necessary (eg. not to associate with certain people)
137
What is covered under S31 MODA 1975? (Evidence of Analysts)
It states the analyst is not required to give oral evidence and therefore cannot be cross examined.
There are some time restraints under this section where the defendant must be given a copy of the the analysts certificate and written notice the analyst will not be called at least 7 days before the hearing. The defendant has to give at least 3 days written notice that they wish the analyst to be called.
138
What is 'restraint of instrument of crime'?
When you complete an 'on notice application for restraining order relating to instrument of crime' to prevent the disposal of the asset or erosion of its value by being further encumbered (eg mortgage on house). A straight forward affidavit will suffice.
