List the different situations/methods of importation in which a controlled delivery will generally occur.
International mail centre - Inside a mail article
International airport - Arriving courier using either body packing, internal concealment or concealed within luggage.
Imported air freight - Within a freight consignment which can be either commercial or private
Imported Sea Freight - As with air freight but arrive via sea
Transhipped air or sea freight - Transiting through New Zealand with a final destination in another country
Arriving commercial vessel - Hidden on board or attached to a vessel that is either unloading or picking up cargo from New Zealand before continuing onto another country
List 10 outside indicators of a clan lab.
- Chemical odours, coming from the building, rubbish or detached buildings. The odours can be sweet, bitter, ammonia or solvent smells.
- Exhaust fans running at odd times.
- Frequent visitors at odd hours.
- Windows blackened out or curtains always drawn.
- People coming outside only to smoke.
- Occupants unfriendly, appear secretive about their activities, exhibit paranoid or odd behaviour.
- Expensive security and surveillance gear.
- Access denied to landlords, neighbours, other visitors.
- Rubbish containing a large amount of cold medication containers or packaging.
- Also bottles, plastic containers and boxes with labels removed.
List 5 inside indicators of a clan lab.
- Laboratory glassware, equipment and documents.
- Containers with clear liquids in them with a chalky coloured solid on the bottom or similar.
- Containers with two layered liquids in them, one dark coloured layer and one clear or pale yellow layer.
- Used coffee filters containing either a white pasty or reddish brown substance.
- Baking dishes or similar containing white crystalline substance.
- The presence of hot plates near chemicals.
List the responsibilities of the OC in regards to immediate action steps at a clan lab if there is a child or young person involved.
- Remove CYP from immediate scene
- Assign an officer to look after and monitor CYP
- Provide age appropriate explanations to CYP about what’s going to happen to them
- Assessment of CYP by ambo staff
- Request CYF attendance at scene
- Distribute suitable personal protective equipment to CYF staff and CYP decontamination kit for each CYP
- Place CYP in Tyvek suit or wrap in blanket before handover to CYF staff
- Most appropriate decontamination for CYP
- Photograph CYP at scene
- Record physical condition of CYP including injuries
- Record mental state of CYP
- Consider securing clothing from CYP as exhibit
- Preliminary interview with CYP
- Inform CYF social worker of power/authority used to remove and detain CYP before placing them in CYF care or custody
- Give social worker copy of s39 warrant or s42 placement form
- Brief social worker of any relevant info from preliminary interview
- Brief social worker of any health and safety concerns resulting from medical assessment
Conducting a preliminary interview with a CYP at a clan lab scene. What should the interview include?
- basic health questions
- occupant’s details
- details of other siblings or CYPs at the address
- sleeping arrangements
- playing and eating areas
- school or pre-school details
- name of CYP’s doctor
- knowledge of drugs, manufacturing, dealing activities
What does the OC investigation of a clan lab need to do to follow up?
- Together with CYF, locate any CYP absent from address at time of Police intervention
- Ensure any CYP exposed to clan lab site is checked by a doctor ASAP and within 24hrs
- Ensure CYP medical examination is completed and evidential hair/urine samples taken
- Ensure hair samples and/or toxicology kits are collected from the doctor and forwarded to ESR
- Ensure toxicology results are forwarded to CYF social worker and examining doctor as soon as they are available
- Liaise with CPT as to whether specialist child interview required
Saxton v Police
To import includes to introduce from abroad or to cause to be brought in from a foreign country.
R v Hancox
The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee.
Define the terms producing and manufacturing using case law.
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 a particular controlled drug.
What is the difference between producing and manufacturing?
To produce means to bring something into being, or to bring something into existence from its raw materials or elements.
Manufacturing is the process of synthesis; combining components or processing raw materials to create a new substance.
Discuss the element of supply.
s2, Misuse of Drugs Act 1975
Includes to distribute, give or sell
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…”
The term distribution relates to the supply of drugs to multiple people.
Discuss proving age.
R v Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Define the element of intent regarding drug dealing.
In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.
An agreement between two or more persons to commit an offence.
Define importation from the Customs and Excise Act.
s2, Customs and Excise Acts 1996
(a) in relation to any goods, means the arrival of the goods in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand.
Discuss exportation from Customs and Excise Act.
Time of exportation
S53, Customs and Excise Act 1996
For the purpose of this Act, 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 New Zealand.
Define controlled drug.
s2, MODA 1975
Means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2, or Schedule 3 of this Act and includes any controlled drug analogue.
When is producing or manufacturing complete?
The offence is complete once the prohibited substance is created, whether or not it is in a useable form.
Define class A/Class B controlled drug.
s2, MODA 1975
Means any controlled drugs specified or described in Schedule 1/2 to this Act.
Gender neutral. Proven by judicial notice or circumstantially.
Define class C controlled drug.
s2, MODA 1975
Means any controlled drugs specified or described in Schedule 3 to this Act, and includes any controlled drug analogue.
Define sell from lesson notes.
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Will commonly be money, but anything of value will suffice.
What 2 things need to be proved for offers to sell?
The prosecution must prove two elements
- the communicating of an offer to sell a controlled drug AND
- an intention that the other person believes the offer to be genuine
What is the MODA definition of sell specific to s6(1)(e)?
s6(5), MODA 1975
For the purposes of paragraph (e) of subsection (1) of this section, 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 another person.
What is the MODA definition of possession?
s2(2), MODA 1975
For the purposes of this Act, the things which a person has in his possession include any thing subject to his control which is in the custody of another.
Discuss the concept of presumption regarding dealing with controlled drugs.
s6, MODA 1975
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 s2(1A)).
Outline the penalties for the different classes of drugs.
Class A = life
Class B = 14 yrs
Class C = 8 yrs
List 5 Class A drugs.
Cocaine Heroin LSD Methamphetamine Magic mushrooms
List 7 Class B drugs.
Amphetamine Cannabis oil and hashish GHB (fantasy) MDMA (ecstasy) Morphine Opium Pseudoephedrine
Give 4 examples of Class C drugs.
Controlled drug analogues
Discuss the concept of ‘offering’ using case law.
An offer is an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute.
R v During
Offering to supply
- offers to supply a drug that he has on hand
- offers to supply a drug that will be procured at some future date
- offers to supply a drug that he mistakenly believes he can supply
- offers to supply a drug deceitfully, knowing he will not supply that drug
R v Brown
Blacks Law Dictionary
In the context of drug dealing, the appropriate meaning of administer is to direct and cause a drug to be taken into the system of another person.
What are the three purposes as defined in s6(1)(c), (d) and (e) as described in the liability for s6(1)(f)?
s6(1)(c), MODA 1975
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.
s6(1)(d), MODA 1975
Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age.
s6(1)(e), MODA 1975
Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age.
List four common ways in which controlled drugs are imported into New Zealand.
Commonly drug importers will:
- have drugs concealed in or on their persons, or in their luggage
- have another person (mule) bring the drugs in for them
- send or have drugs sent by international mail or courier
- conceal drugs inside legitimate goods, eg, within shipping containers
Discuss R v Martin.
In R v Martin the defendant was arrested with $4 million worth of cocaine. She had obtained the suitcase from Nigerian organised criminals. She ‘deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance’.
Any substance with a structure substantially similar to a controlled drug.
Is it a defence that a defendant did not know that the substance in question was the particular controlled drug alleged?
What two elements must be proved by the prosecution in offering to supply or administer and what is the relevant case law?
- The communicating of an offer to supply or administer (actus reus) - R v During
- An intention that the other person believes the offer to be genuine (mens rea) - R v Brown
Is it necessary for the prosecution to identify the person to whom drugs are supplied under 6(1)(c)?
Discuss attempted possession using case law.
It is an offence to attempt to obtain something innocuous in the mistaken belief that it is a drug.
In Police v Jay he was found in possession of a plastic bag containing grass clippings which he thought was cannabis.
Define secondary intent.
A person may have intended a secondary outcome if that outcome was foreseen as certain to occur, if the offender believes those consequences will happen.
Distinct from recklessness which involves foresight that a consequence is likely to happen.
List 3 examples of circumstantial evidence from which an offender’s intent may be inferred.
- offender’s words and actions before, during and after
- surrounding circumstances
- nature of the act itself
List the presumptive amounts for the following drugs:
- lysergide (LSD)
- MDMA (ecstacy)
- cannabis resin and extract (oil)
- cannabis plant
Heroin = 0.5gms
Cocaine = 0.5 gms
Lysergide (LSD) = 2.5 mgms or 25 flakes, tablets etc.
Methamphetamine = 5 gms
MDMA (ecstacy) = 5gms or 100 flakes etc.
Cannabis resin and extract (oil) = 5 gms
Cannabis plant = 28 gms or 100 + cigarettes
List the penalties for conspiring to deal with controlled drugs.
Class A = 14 yrs
Class B = 10 yrs
Anything else = 7 yrs
When is a conspiracy complete?
Once the agreement has been made.
What three elements must be proved for a charge under s12A(1)?
- that the defendant has supplied, produced or manufactured equipment, material or precursors
- that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
- that the defendant knows those items are to be used for such an offence by another person
What three elements must be proved for a charge under s12A(2)?
- that the defendant has equipment, material or precursors in his possession
- that those items are capable of being used in the production or manufacture of controlled drugs, or the cultivation of prohibited plants
- that the defendant has the intention that those items are to be used for such an offence, either by himself or another person
Possession of a needle is not an offence per se. At what point does it become an offence?
If it contains a USEABLE amount of a controlled drug (possession of a controlled drug).
Outline the two options for controlled deliveries.
- Clean controlled delivery, where no drugs are left within the consignment. Eliminates risk of drug being lost. Gives greater freedom in organising surveillance. Reduces risk of alarming targets. At termination only importation or conspiracy charges likely.
- An amount of the drug is left within the consignment, but the remainder of the drugs are substituted. Option of possession for supply charge. Provides availability of emergency powers should drugs move. Requires greater security. Recovery on termination paramount.
Outline s46, Search and Surveillance Act 2012. (Activities for which SDW required)
Apart from the exceptions in s47 and 48, a surveillance device warrant is required for:
- use of interception device to intercept private communication
- use of tracking device, except where it’s installed solely for ascertaining whether a thing has been opened, tampered with AND installation doesn’t involve trespass
- observation of private activity in private premises and any recording of it with visual surveillance device
- use of surveillance device that involves trespass
- observation of private activity in curtilage of private premises and any recording of it exceeding 3 hrs in 24 hr period OR 8 hrs total.
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what is the difference in standard of proof?
MODA - Reasonable cause to believe and NOT arrested
S&S - Under arrest for offence against s6, 7 or 11 of MODA. RGTB person has secreted within body any property that may be evidence of the offence with which charged or those MODA offences.
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what is the difference in the class of drugs to which they apply?
MODA - Must be Class A or B.
S&S - Any class.
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what are differences in what you can search for?
MODA - Only Class A or B drugs secreted for unlawful purpose.
S&S - Class A, B or C and any property that may be evidence of offence for which charged or constitutes offence against s6, 7 or 11, MODA.
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what are the differences in who can request?
MODA - Any member of Police or Customs.
S&S - Constable only
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what are the differences in who is requested?
MODA - District Court judge for Detention Warrant
S&S - Require suspect to permit medical practitioner to conduct internal examination
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what are the differences between the types of medical practitioner?
MODA - Approved by Commissioner of Police or Chief Executive of Customs
S&S - Nominated for the purpose by Constable
When comparing s13A, MODA 1975 and s23, S&S Act 2012, what are the differences in detention time limits?
MODA - 7 days. Renewable in periods of 7 days to maximum of 21 days.
S&S - If suspect fails to permit and Court satisfied there are reasonable grounds then bail may be declined and order detention in Police custody until earlier of 2 days after day on which exam required OR person permits exam.
How does the S&S Act define drug dealing offence?
Any offence against s6, MODA which involves Class A or B drugs.
What are the three types of ‘surveillance device’?
- interception device
- tracking device
- visual surveillance device
What are the two things a tracking device can do?
- ascertain the location of a thing or person
- ascertain whether something has been opened, tampered with or in some other way dealt with
Where trespass surveillance is involved the legislation restricts the use of a visual surveillance device to obtaining EM for what kinds of offences?
Serious offences - punishable by 7 years of more or against certain sections of the Arms Act.
What are the relevant exceptions in s47, S&S Act?
- Office lawfully in private premises and recording what he or she observes or hears (provided it’s only matters seen or heard without use of a SD)
- Covert audio recording of voluntary oral communication between 2 or more people with consent of at least 1.
- Activities carried out by officer’s use of SD if use is authorised by any other enactment.
Summarise the findings in R v McGinty in relation to alternative investigation techniques.
A Judge is not required to refuse to issue a warrant merely because Police have not exhausted every conceivable alternative investigation technique.
In an application for a SDW you must disclose the details of any other applications for a SW or SDW in respect of that person etc. made within what time frame?
The previous 3 months
A SDW must specify a time period for which the warrant may be in force. What is the time?
A period of up to 60 days.
What are the reporting requirements in relation to a SDW?
The person who carries out the activities must provide a written report to the issuing Judge or Judge of the same Court within 1 month after the expiry of the period for which the warrant is in force.
Outline the key activities to be undertaken by a telephone investigator within the first 24 hrs.
‘Trapping’ or ‘pre loading’ data - done by TSP
Telecommunications Service Provider (TSP) liaison
Draft production order application
Analysts - liaise with an analyst
Outline the initial action for an unplanned entry into a Clan Lab.
- Immediately remove person of interest
- Isolate the site and maintain safety perimeter
- Preserve crime scene
- Notify duty Inspector or Duty NCO, contact NCLRT and where appropriate Fire and Ambulance
- Seek advice from NCLRT or Fire about decontamination procedures
- Occupants of address and staff who have entered address to remain separated until decontamination issues are addressed.
- Seek medical advice if you experience adverse effects
List 5 safety considerations in regards to a Clan Lab. (ie. things to do)
- Leave the area immediately
- Never touch, taste or smell any chemicals or equipment
- Do not attempt to stop chemical reaction, turn off devices.
- Do not shut off water supply to the house or chemical reaction
- Do not smoke in or near Clan Lab
- Do not use tools, radios, cellphones, torches or devices that produce sparks or friction.
- Do not re-enter premises.
What are the two types of Clan Lab investigations?
Unplanned entry and planned entry
Name the three types of Clan Labs.
At what point does dealing become large scale?
More than 5 times the presumption threshold.
Outline the key time limits for filing of charging documents from s28, MODA 1975.
Can file charging documents at any time for dealing, cultivating, aiding offences against corresponding law in another country.
Limitation for any other offence is 4 years after the date on which the offence was committed.
A certificate of analysis may be produced in Court instead of calling oral evidence. The certificate is only admissible evidence if…
- Defendant is served with copy of analyst’s certificate and written notice that they won’t be called at least 7 clear days of hearing
- Defendant does not at least 3 days before hearing give written notice that analyst be called
- Court does not request oral evidence of analyst.
R v Strawbridge
R v Strawbridge
It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary, knowledge on her part will be presumed, but 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.
Police v Emerali
Police v Emerali
“…the serious offences of…possessing a narcotic does not extend to some minute and useless residue of the substance.”
Where does the process of importation commence?
At the point of origin.
At what point in the importation process does criminal liability arise?
As soon as the drugs cross NZ’s border
What is s12(1), MODA 1975?
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.
Outline s16, MODA 1975.
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.
Relates specifically to obstructing anyone who is executing powers pursuant to the MODA 1975.
What is the wording of the offence in s43, Medicines Act 1981?
No person shall, without reasonable excuse, import, procure, receive, store, use, or otherwise have in his possession, any prescription medicine.
Outline the three offences in s11, Health (Needles and Syringes) Regulations 1998.
a) offers to any other person, for use by that other person, a used needle or used syringe
b) accepts for use a used needle or used syringe
c) disposes of a needle or syringe in a public place
Outline the offence in s12, Health (Needles and Syringes) Regulations 1998.
Everyone who, not being a pharmacist etc. sells or supplies or attempts to sell or supply a needle or syringe to any other person who is not a pharmacist etc. or who is a pharmacist etc. who is prohibited from selling new needles and syringes.
What are the two methods that can be used to deliver a drug exhibit to ESR so that certificate evidence can be used?
- in person to the analyst who is to issue the certificate or person authorised by analyst to receive
- by registered post or courier post with signature required in sealed package to employee authorised by analyst in charge at laboratory
Outline the method of service of the copy of the certificate and written notice that the analyst will not be called.
- can be delivered to a member of the defendant’s family or solicitor
- must be dated at least seven clear days before the hearing
- must be proved to have been served either by oral evidence or a constable’s endorsement
What needs to be proved in regards to the delivery of drugs to ESR?
- the name of the person to whom delivered
- the recipient was a person who works in an approved laboratory and who is authorised by the analyst in charge at that lab to receive it
- the package was sealed
In what situation might a Judge be UNDER DUTY to admit evidence that may identify an informer?
If there is going to be a ‘miscarriage of justice’.
In what situation does the privilege of being an informer not apply?
If the person is called as a witness by the prosecution to give evidence in relation to the information given.
In what situations MUST the privilege under s64, Evidence Act 2006 be disallowed?
Where there is a prima facie case the information was given for a dishonest purpose or to enable or aid anyone to plan or commit an offence.
In what situation MAY the privilege under s64, Evidence Act 2006 be disallowed?
Where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.
Explain the 90 second rule.
If offenders are present and moving inside the Lab then the atmosphere will sustain life for. The IET may safely enter and extract suspects for a period of up to 90 seconds.
Proof of the mens rea of importing will involve proof of what three things?
- knew about the importation and
- knew the imported substance was a controlled drug and
- intended to cause the importation
Case law used to prove possession in MODA 6(1)(f)
R v Cox
Possession involves two elements. The 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 an awareness by the accused that the substance is in his possession; and intention to exercise possession.
Apart from R v Cox, what else is required in a discussion about possession in relation to s6(1)(f)?
Potential custody or control:
MODA 1975, s2(2)
For the purposes of this Act, the things which a person has in his possession include anything subject to his control which is in the custody of another,
In drug cases, what four things must be proven to prove possession?
- Knowledge that the drug exists
- Knowledge that it is a controlled drug
- Some degree of control over it
- An intention to possess it
Three ways in which intent to supply may be inferred.
- circumstantial evidence (scales etc.)
- the statutory presumption under s6(6)