Other

Question 1

What is the penalty for dealing with controlled drugs under section 6(2)

Answer 1

(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) of this subsection 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.

Question 2

Discuss conspiring to commit a drug offence

Answer 2

Under section 6(2A)

Every person who conspires with any other person to commit an offence against subsection (1) of this section 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 or one of the controlled drugs in relation to which the offence was committed:

(b) Not exceeding 10 years where paragraph (a) of this subsection 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.

Question 3

What are some ways of importing drugs?

Answer 3

Controlled drugs are imported into New Zealand by air and sea using a variety of methods. Commonly drug importers will:
* have drugs concealed in or on their person, or in their luggage
* have another person (a ‘mule’) bring the drugs in for them
* send or have drugs sent by international mail or courier
* conceal drugs inside legitimate goods, for example within shipping containers

Question 4

When does the importing process start/end?

Answer 4

Importation is a process that commences at the point of origin and continues until the drugs have reached their ultimate destination in New Zealand.

Criminal liability arises as soon as the drugs cross New Zealand’s border, and an importer may therefore be convicted under section 6(1)(a) even if the drugs are intercepted by Customs and never reach the addressee (the intended recipient).

However the offence does not end at the border; the process of importation continues while the goods are in transit, and only concludes when they have reached their final destination and are available to the consignee.

Anyone who knowingly assists in facilitating the process up until that point may be liable as a party to the importation.

Question 5

What is the mens rea of importing?

Answer 5

The Crown must prove not only that the defendant’s conduct in some way contributed to the actual importation of the drug, it must also prove the defendant’s guilty knowledge.

This will involve proof that the defendant:
* knew about the importation, and
* knew the imported substance was a controlled drug, and
* intended to cause the importation.

In terms of proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice. (Wilful blindness)

Question 6

Class A controlled drugs

Answer 6

Class A controlled drug means the controlled drugs specified or described in Schedule 1 to this Act.

Class A controlled drugs are classified as such as their misuse poses a very high risk of harm to individuals and to society.

Some of the more well-known Class A controlled drugs include:
* Cocaine
* Heroin
* Lysergide (LSD)
* Methamphetamine
* Psilocybine (found in magic mushrooms)

Note - the synthetic drugs AMB-FUBINACA and 5F-ADB have now been classified as Class A controlled drugs

Question 7

Class B controlled drugs

Answer 7

Class B controlled drug means the controlled drugs specified or described in Schedule 2 to this Act.

Class B controlled drugs are those that pose a high risk of harm and include:

• Amphetamine
• Cannabis preparations (such as cannabis oil and hashish)
• GHB (Fantasy)
• MDMA (Ecstasy)
• Morphine
• Opium
• Pseudoephedrine
• Ephedrine

Question 8

Class C controlled drugs

Answer 8

Class C controlled drug means the controlled drugs specified or described in Schedule 3 to this Act; and includes any controlled drug analogue

Class C controlled drugs pose a moderate risk of harm and include:

• Cannabis plant
• Cannabis seeds
• Benzylpiperazine (BZP)
• Controlled drug analogues

Question 9

Is guilty knowledge required for drug dealing?

Answer 9

For a person to be guilty of an offence relating to controlled drugs they must have guilty knowledge; a person who innocently possesses something they genuinely believed was not a controlled drug has a defence.

However, although the defendant must know that the substance was a controlled drug (or at least that it had characteristics consistent with those of a controlled drug), it is not necessary for the Crown to prove such knowledge; guilty knowledge will be presumed in the absence of evidence to the contrary. It is therefore up to the defendant to raise reasonable doubt as to their state of mind.

In R v Strawbridge, the defendant was convicted of cultivating a prohibited plant, claiming on appeal that she had not known the plants she had cultivated were cannabis. The Court of Appeal ordered a re-trial, holding that the offence is not absolute and that mens rea is an essential element.

Question 10

Can you be convicted if you were mistaken about the drug?

Answer 10

While guilty knowledge is an essential element, section 29 provides that it is not a defence that the defendant did not know the substance in question was the particular controlled drug alleged.

For example, it would not be a defence to a charge of supplying heroin if the defendant believed the drug he had supplied was in fact cocaine.

Question 11

Difference in producing and manufacturing

Answer 11

‘producing’ can be described as changing the nature of the original substance and ‘manufacturing’ as creating a different or new substance from the original materials

Question 12

When is the offence of Producing/Manufacturing complete?

Answer 12

The offence is complete once the prohibited substance is created, whether or not it is in a useable form.

For example in R v Rua, methamphetamine in suspension in a two-layered liquid, although not capable of being used in that state, was held to have been manufactured.

Question 13

What two things must the prosecution prove in regard to ‘Offering to supply or administer’

Answer 13

The prosecution must prove two elements:
* the communicating of an offer to supply or administer a controlled drug (the actus reus)
* an intention that the other person believes the offer to be genuine (the mens rea).

Question 14

What are the four propositions regarding ‘offer to supply’

Answer 14

• ‘Offer to supply’ is to be given its ordinary meaning and not any technical meaning.
• There may be more than one person guilty of ‘offering to supply’ in any one transaction.
• An intermediary/agent may be guilty of ‘offering to supply’ his/her own principal. It is not correct to use civil law analyses, which would indicate that only the two principal parties contract or deal with each other. In the criminal law every party involved may actually ‘offer to supply’ or be a party (section 66 of the Crimes Act 1961) to such an offer.
• ‘Offer to supply’ in sections 6 and 7 of the Misuse of Drugs Act 1975 has a wide meaning and includes an offer to arrange for someone else to hand over a drug to the person to be supplied.

Question 15

Under section 6(5).. Sold or supplied?

Answer 15

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 that other person.

The effect of this provision is to require the defendant to prove on the balance of probabilities that there was no sale.

In Regard to 6(1)(e) class C drugs

Question 16

What is required in regard to knowledge for 6(1)(f)?

Answer 16

The components that provide knowledge of existence, and the significance of such knowledge, are discussed in the following case law. They include:
* the defendant must be aware that they possess the substance
* the defendant identifies the substance as a controlled drug, even if there is no substance to be analysed to prove their assertion
* physical custody presumes knowledge, unless otherwise proven.

Question 17

What must be established for knowledge in regard to 6(1)(f)?

Answer 17

This phrase relates to the illegal intent of the person. In considering whether a person knows the qualities of a substance, you need to establish that they:
* know they have the substance
* know the substance’s nature or qualities (s29 deals with mistaken beliefs)
* intend to use the substance in a way that allows you to charge them with possession.

Knowledge and intent are the crucial elements. Take, for example, the situation in which a woman cultivates her son’s cannabis plants in the genuine belief that they are merely house plants.

Although she is obviously aware that she has the plants, she is not aware of the illegal nature and so cannot criminally intend to take advantage of possessing them. Nonetheless, although mens rea is crucial to any charge, generally with charges of cultivating or possessing a controlled drug, it is assumed that the person knows the nature of their actions unless they produce evidence that raises reasonable doubt about their guilty intent.

Strawbridge establishes the premise for this rule of intent. It is unthinkable that Parliament ever intended to expose citizens to a liability up to 14 years’ imprisonment where the defendant did not know that the plant that he or she was cultivating was a prohibited plant, so clearly this is not an absolute offence.

Question 18

What needs to be proved for possession?

Answer 18

In drugs cases it will be necessary for the Crown to prove that the defendant had:
* knowledge that the drug exists
* knowledge that it is a controlled drug
* actual physical control or some degree of control over it
* an intention to possess it

Question 19

How may intent be proved in drug cases?

Answer 19

In drugs cases additional evidence of intent to supply may be inferred from:

• admissions
• circumstantial evidence (packaging, scales, cash, tick lists etc)
• the statutory presumption under section 6(6).

Statutory Presumption under 6(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)).

Question 20

What is the Tracy formula?

Answer 20

Some key cases provide guidance concerning Class C controlled drugs and when certain facts need to be established and when they may be inferred.

R v Tracy suggested that where the particular purpose for possession cannot be proved or is uncertain, the charge should be drafted in the alternative, eg ‘in possession of a Class C controlled drug for a purpose specified in paragraph (d) or paragraph (e) of subsection (1) of section 6 of the Misuse of Drugs Act 1975’.

Question 21

What are the schedule 5 presumption for supply amounts?

Answer 21

Heroin - 0.5 grams
Cocaine - 0.5 grams
Lysergide (LSD) - 2.5 milligrams or 25 flakes, tablets etc
Methamphetamine - 5 grams
MDMA (Ecstasy) - 5 grams or 100 flakes, tablets etc
Cannabis resin and extract (oil) - 5 grams
Cannabis plant - 28 grams or 100 or more cigarettes

Where a controlled drug is not specified in Schedule 5 the presumptive amount for that drug is 56 grams.

Question 22

What must the crown prove in relation to section 12A(1) MODA75?

Answer 22

For charges under section 12A(1) the Crown must prove three elements:
* 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.

It must be proved that the items are capable of being used in the process of producing or manufacturing controlled drugs (an offence against section 6(1)(b)), or of cultivating prohibited plants (an offence against section (9)).

Question 23

What must the crown prove in relation to section 12A(2) MODA75?

Answer 23

For charges under section 12A(2) the Crown must prove three elements:
* 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.

Question 24

What is section 9 of the Misuse of Drugs Act 1975?

Answer 24

9 - Cultivation of prohibited plants

(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.

7 years

(4) It shall be a defence to a charge under subsection (1) of this section 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.

Question 25

What is section 12 of the Misuse of Drugs Act 1975?

Answer 25

12 - Use of premises or vehicle

(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) of this subsection 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.

Question 26

What is section 16 of the Misuse of Drugs Act 1975?

Answer 26

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.

The offence of obstruction in the Misuse of Drugs Act relates specifically to obstructing anyone who is executing powers pursuant to the Misuse of Drugs Act 1975.

It should be noted that the offence of obstruction in the Misuse of Drugs Act 1975 is different from the offence of obstruction in the Summary Offences Act 1981.

Question 27

What legislation covers offences relating to prescription medicines?

Answer 27

Medicines Act 1981

Question 28

What legislation covers offences relating to needles and syringes?

Answer 28

Health Regulations 1998

Question 29

In relation to an offence against section 9 (Cultivating) what must you prove?

Answer 29

You must prove the identity of the suspect and that he or she cultivated a prohibited plant.

Question 30

What is the difference between the offence of obstruction contained in the Summary Offences Act 1981 and the Misuse of Drugs Act 1975?

Answer 30

The offence of obstruction in the Misuse of Drugs Act relates specifically to obstructing anyone who is executing powers under the Misuse of Drugs Act 1975.

Question 31

What are two powers available to Police used in relation to controlled deliveries?

Answer 31

Section 12 of the Misuse of Drugs Amendment Act 1978 should be read in conjunction with Controlled Deliveries section of this chapter. For the situations where search of persons, places and vehicles is authorised in relation to controlled deliveries see section 81 of the Search & Surveillance
Act 2012.

• Section 12 – Allowing delivery of unlawfully imported drugs [[or
  precursor substances]] for purpose of detection, etc, Misuse of Drugs
  Amendment Act 1978.
• Section 81 – Searches of persons, places, and vehicles relating to
  deliveries under section 12 of Misuse of Drugs Amendment Act 1978,
  Search and Surveillance Act 2012.

Question 32

What are controlled deliveries?

Answer 32

A controlled delivery occurs when a consignment of illicit drugs is detected, often concealed in some other goods, in circumstances making it possible for the delivery of those goods to be made under the control and surveillance of NZ Customs and Police officers, with a view to identifying and securing evidence against those involved for the importation/exportation. This could also incorporate couriers caught body packing or travelling with drugs concealed within their luggage.

Question 33

List ways that controlled deliveries may occur

Answer 33

• 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

Question 34

What are the two options in relation to controlled deliveries?

Answer 34

Option 1:
A “clean controlled delivery”, where no drugs are left within the consignment. This eliminates any risk of the drugs being lost but also gives greater freedom in organizing the surveillance of the consignment and reduces the risk of alarming the targets who may have arranged counter- surveillance. However, at the termination of the operation only “importation” and/or “conspiracy” charges are likely to be filed on those apprehended.

Option 2:
Leave an amount of the drug within the consignment to enable the option of charging an offender with a “possession for supply” charge and also provides the availability of emergency powers should the drugs move to persons or places that are not covered by search warrants. The remainder of the drugs are substituted. Consequently any consignment with drugs still in it requires greater security, and recovery on termination is paramount.

Question 35

What is the initial phase for controlled deliveries? (6 Steps)

Answer 35

1. Assume ownership and appoint roles.
2. Liaise early with Customs O/C Exhibits and where appropriate take control.
3. Consider whether to conduct an electronic interception as part of the controlled delivery.
4. Request Customs to manipulate the ‘Track and Trace’ system if the parcel is in a track and trace system.
5. Contact the following services as early as possible:
   * Surveillance Squad
   * Photography Section
   * Crime Monitoring Centre (CMC) – if applicable
   * Technical Support Unit (TSU) – if applicable.
6. Start planning the operation, developing operation orders and rostering staff to cover the duration of the controlled delivery operation.

Question 36

What things can be done in regard to the sender location for controlled deliveries? (profile the package)

Answer 36

• any phone number attached to the package or accompanying documentation
• IMEI / SIM information undertaken at early stage (call data)
• telecommunications service providers portability of cell phones
• DNA / fingerprinting / handwriting / impressions / mechanical fit
• multiple packages, including dummy runs to target address or associated addresses.

Question 37

List somethings you can do to profile the delivery address

Answer 37

Police intelligence applications
* occupants
* local council – owner / rate payer details
* council plans of street and target premises (includes aerial)
* rubbish delivery – date / time
* Housing New Zealand
* telecommunications service providers – eg Telecom, Vodafone, 2 degrees
* electricity / gas suppliers to address
* timing of mail to address
* previous occupants & neighbours
* landlord / owner of property
* Police staff who have previously visited premises
* CHIS for historical information or whom to be tasked
* fixed or mobile surveillance (Police and Customs)
* photographs / video of premises
* security – including locks, alarms, camera / video surveillance and animals
* in the case of a PO Box, obtain box-holder details
* Customs powers versus Police powers for obtaining information
expediently
* mail stop / flag address to capture further deliveries
* suspect(s) may be monitoring / surveilling the delivery address.

Question 38

What can you do to profile the addressee?

Answer 38

Consider:
* previous occupiers
* real person or false name?
* connections to delivery address
* relevant convictions / notings / associations
* travel / connections to country of origin
* bank accounts – large deposits, overseas transfers.
* full identification of target if possible
* photographs (casual / formal / surveillance)
* police intelligence held (NIA, previous investigations, MO section, IMP, arresting officers)
* suspect’s knowledge surrounding covert enforcement techniques
* suspect’s knowledge / skill surrounding technology (phones, faxes, computers etc)
* suspect’s travel history including passport holdings
* other agency intelligence held (Fisheries, Customs, Immigration, Internal Affairs etc)
* financial profile
* family members / associates / vehicles / addresses and places frequented
* general lifestyle (sports and other interests)
* business associations
* tracking device for vehicles – variety of options
* risk assessment – firearms required.

Question 39

What to consider when profiling a potential surveillance address?

Answer 39

When you have identified a suitable address, you must profile it by
considering:
* proximity to target address – close enough to be effective, far enough away to be unobtrusive
* unobstructed line of sight to target address
* access to and from address without arousing suspicion (consider
equipment and staff that will need to discretely enter and leave the
address)
* ability to beam signals and/or tap into Telecom cables (video and audio interception)
* phone lines available in street
* other conditions relating to the vicinity of the OP, eg parking, schools, other neighbourhood activities, lighting and animals.

Question 40

What are examples of when a S46 S&S surveillance device warrant can be used?

Answer 40

“(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.”

Question 41

What must you consider when profiling occupants for a potential surveillance address?

Answer 41

When you have profiled a potential address and its occupants as suitable, you must approach the occupants. Consider these points when doing so:
* cover story
* protection of identity
* room available with 24-hour access
* preferably no children
* preferably no visitors to address during operation
* gratuity ‘Thank You’ at investigation conclusion.

Question 42

What are the 5 steps for Repacking a controlled delivery package?

Answer 42

1. Liaise with the Customs Technical Unit (CTU).
2. Consider your options for repacking like:
   * multiple packages
   * tracking device
   * audio device
   * opening device (multiple)
   * dye trap
   * covert marking of commodity (eg LSD).
3. Consider seeking advice from the document examiner in relation to recreating packaging or identifying the photocopier used by the suspects for some commodities (eg LSD).
4. Leave appropriate quantity of controlled drugs in the package but replace the rest with a placebo or similar substance.
5. Photograph the package, layer by layer, and:
   * use scale rule
   * use photo labels.

Question 43

List 4 things a search warrant could be used on?

Answer 43

Search warrants under s6 of the Search and Surveillance Act 2012 may be issued for places, vehicles, “or other things”. This could include:
* known addresses
* vehicles
* Post Office boxes
* cell phones (including text messaging) and call data.

Question 44

What evidence could be used for importation?

Answer 44

Search for evidence relating to the importation:
* track and trace receipts
* correspondence
* computers, faxes and cell phones
* emails
* contact lists / numbers
* packaging from previous importations
* money and financial records
* scales and packaging etc in relation to supply charges
* PO Box documentation
* travel documentation
* passports.

Question 45

What are 4 methods of delivery for for controlled deliveries by Police

Answer 45

• Re-introduce into postal system for delivery by postie
• Delivery by a courier company
• Police / Customs staff pose as postie / courier
• Consider recording the interaction.

Question 46

What should you consider regarding a PO Box?

Answer 46

• an opening device and camera on the box.

Question 47

What should you consider if the adressee is not at the delivery address?

Answer 47

Consider:
* leaving the package in letter box or at the door
* attempting delivery at a later time
* leaving a “Card to Call” and wait for contact from the addressee.

Question 48

What should you consider if an adressee accepts the package?

Answer 48

Consider:
* monitoring audio/tamper devices and crunch when package is opened
* deciding on length of time to hold cordons
* staff/resources
* other operational commitments.

Question 49

What should you consider if a package goes mobile?

Answer 49

Consider:
* control, communication and risk
* proximity of tracking/monitoring vehicles to target – close enough to be in range, far enough back to avoid being observed
* crunch cars to keep back and let Surveillance relay the target’s activities
* need for repeaters to ensure no loss of communications (temporary
repeaters are available).

Question 50

What should you consider if the target goes mobile without the package or vice versa?

Answer 50

Consider:
* control, communication and risk
* splitting resources and surveilling both
* keeping observation on package location at all times to avoid loss of
evidence/equipment.

Question 51

What power should you use to stop a vehicle in a controlled delivery operation?

Answer 51

Section 121 S&S 2012

A search warrant should be obtained for the vehicle, however if it is impracticable to do so then you can use section 81 of the Search and Surveillance Act 2012, to execute a power of search. Remember to record your decision log in your notebook.

Question 52

What is section 81 of the S&S2012?

Answer 52

Searches of person, places and vehicles relating to delivers under section 12 Misuse of Drugs Amendment Act 1978

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).

Question 53

What power should you use to stop a vehicle that no longer has the package for a controlled delivery?

Answer 53

If a suspect from a controlled delivery is in a vehicle which no longer contains the parcel containing the drugs and you want to arrest them you should use the power to stop the vehicle contained in section 9 of the Search and Surveillance Act 2012. This section allows you to stop a vehicle for the purpose of arresting an occupant of that vehicle.

Question 54

What can a tracking device do?

Answer 54

Firstly, it encompasses a device that can be used to help ascertain the location of a person or thing, whether or not it is installed in or on the thing being tracked or in the possession of a person being tracked. It includes, for example, the use of technology to determine the whereabouts of a person through his or her cellphone when it is turned on, or the use of a thermal imaging device from the air to track the movements of a person on the ground.

Secondly, it encompasses a device used for detecting whether a thing has been handled, although under s 46(1)(b) of the Search and Surveillance Act 2012, the use of a device for this purpose requires a warrant only when its installation involves a trespass on land or trespass to goods

Question 55

What must you be aware of when installing audio devices?

Answer 55

• A surveillance device warrant is required where an interception device will be used to intercept a private communication
• By law, the installation of the audio device can only be done by Police members and the role will be designated to the Police TSU.
• The audio device must be monitored, even while it is mobile. Discuss this requirement early with the TSU.
• Allow sufficient time for the secure installation of the device. The length of time required will usually depend on the type and size of the ‘delivery’ and the type of device that is believed will meet operational requirements.
• For audio device installations of this nature, involving TSU early will result in the earliest release of the package for delivery

Question 56

What is the legal authority to install tracking devices?

Answer 56

The legal authority to install tracking devices is contained in the Search and Surveillance Act 2012 (refer sections 45 to 64 of this Act). Section 46 of the Search and Surveillance Act 2012 requires a surveillance device warrant to be obtained in a number of circumstances including for the:

• “(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”. (The term “surveillance device” includes a tracking device).

Question 57

Can you install a surveillance device in the case of an emergency without a warrant?

Answer 57

Note that in some situations of emergency or urgency, an enforcement officer may use a surveillance device (defined as an interception device, a tracking device or a visual surveillance device) for up to 48 hours without obtaining a surveillance device warrant if entitled to apply for such warrant but obtaining it within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances (section 48, Search and Surveillance Act 2012 - Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency)

(e) the enforcement officer has reasonable grounds—
(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(f) the enforcement officer has reasonable grounds—
(i) to believe 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.

Question 58

What sections cover internals searches? for arrests and not under arrest?

Answer 58

Section 23 of the Search and Surveillance Act 2012 relates to conducting internal searches of people believed to be concealing drugs internally. These people must be under arrest for specific offences under section 6, 7 or 11 of MODA 1975, in relation to Class A, B and C controlled drugs.

Section 13A of the Misuse of Drugs Amendment Act 1978 is for dealing with people believed to be concealing class A or B controlled drugs internally, who are not under arrest.

Question 59

What are the 4 meanings of surveillance as per sections 45-64

Answer 59

Surveillance in this Act includes:
* observing, and any recording of that observation, of people, vehicles,
places and things;
* ascertaining (tracking) the location of a thing or person, and/or
ascertaining whether a thing has been tampered with; or
* intercepting a private communication through the use of a “surveillance
device”.

Question 60

What does trespass surveillance mean?

Answer 60

Surveillance will be unlawful if it involves a trespass, (that is unauthorised entry onto private land or unauthorised handling of goods), unless authorised
by a surveillance device warrant.

Where trespass surveillance is involved the legislation restricts the use of a visual surveillance device to obtaining evidential material for serious offences only.

Serious offence is 7 years +

Question 61

What activities do not require a search warrant?

Answer 61

The activities in section 47 likely to be relevant to your role are:
(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.

Question 62

Restrictions on interception device

Answer 62

The Search and Surveillance Act 2012 restricts the use of an interception device, to intercept a private communication, whether or not that communication occurs in private or non-private premises, to obtaining
evidential material for serious offences only. These offences are:
* offences punishable by 7 or more years imprisonment
* certain Arms Act 1983 offences.

In these circumstances, a surveillance device warrant is required.

Exception when consent is obtained by at least one party to covertly record.

Question 63

What are situations of emergency listed in section 48 of s&s act

Answer 63

Surveillance without warrant in situations of emergency or urgency is
permitted only where the offence is:
* punishable by 14 years imprisonment or more
* an Arms Act 1983 offence
* a drug offence (see below)
* likely to cause injury or serious property loss/damage and surveillance is
necessary to prevent offending from being committed or continuing
* presenting risk to life and safety and surveillance is necessary as an
emergency response.

Question 64

If you find other offences after obtained a surveillance device warrant is it admissable?

Answer 64

Section 57 - Admissibility of evidential material relevant to other offences 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.

Question 65

What is the criteria of obtaining a surveillance device warrant under S51?

Answer 65

(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.

Question 66

What is an informer?

Answer 66

A CHIS

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.

Question 67

Who must an application for a surveillance device warrant be made by?

Answer 67

An enforcement officer

Question 68

When might intercepted communications be withheld?

Answer 68

• 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 endanger the safety of any person or people
• disclosure of the information is likely to prejudice the security or defence of New Zealand.
• disclosure of personal and private information
• disclosure of privileged information

Question 69

How long are surveillance device warrants granted for?

Answer 69

Warrants are granted for a specified period of time up to 60 days. The Judge may issue further surveillance device warrants.in respect of the same suspected offence.

Question 70

When must irrelevant information gained by interception be destroyed?

Answer 70

as soon as practicable

The Commissioner of Police is responsible for ensuring that all relevant information is destroyed as soon as it appears that no proceedings or further proceedings will be taken regarding the information.

Question 71

What must you consider for electronic operations?

Answer 71

− logistical support
− analysis of evidence
− CHIS protection
− implications of disclosure and legal grounds for withholding.

Question 72

List four key activities the telephone investigator should undertake in the first 24 hours of a major operation.

Answer 72

Four key activities the telephone investigator should undertake in the first 24 hours of a major operation are:

• Trapping’ or ‘pre loading’ phone data
• TSP Liaison
• Draft a production order application early
• Proving phone ownership / use (attribution)

Question 73

What has been held by the courts in relation to the protection of informers and owners/occupiers of premises used for surveillance?

Answer 73

R v Rankine

“It is in the public interest that nothing should be done to discourage members of the public from coming forward to provide information to the Police. The reasons which give rise to the rule that an informer is not to be identified, apply with equal force to the identification of the owner or occupier of the premises used for surveillance and to the identification of the premises themselves”.

Question 74

What are indicators of clan labs outside?

Answer 74

• 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.

Question 75

What are indicators of clan labs inside?

Answer 75

• 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.

Question 76

What are safety considerations when discovering a clan lab?

Answer 76

• Leave the area immediately, your safety is paramount.
• Never touch, taste or smell any chemicals or equipment.
• Do not attempt to stop the chemical reaction, or turn any electrical devices such as lights or fans on or off. The simple act of turning on an electrical switch may cause an explosion.
• Do not shut off the water supply to the house or the chemical reaction.
• Do not smoke in or near a Clandestine Laboratory.
• Do not use tools, radios, cell phones, torches or devices that produce sparks or friction.
• Do not re-enter the premises.

Question 77

What symptoms could you get from being in a clan lab?

Answer 77

• headaches
• watery or burning eyes
• nausea
• burning skin
• coughing or choking
• pain in diaphragm
• feeling of coldness or weakness
• shortness of breath and/or dizziness
• decrease in cognitive function, vertigo and convulsions.

Question 78

What are the three processes relating to clan labs?

Answer 78

• Extraction
• Conversion, and
• Synthesis.

Question 79

What are the two types of clan lab investigations?

Answer 79

• unplanned entry and
• planned entry.

A planned entry Clan Lab investigation is the preferred method for dealing with a Clan Lab. However in the event of an unplanned entry Clan Lab the aim is to rapidly convert the unplanned entry into a planned response with appropriate structure and procedures.

Question 80

Which offences are electable by jury?

Answer 80

Category three offences

Offences against s6 of the Misuse of Drugs Act 1975 are category three offences. These include:
* importing or exporting
* producing or manufacturing
* supplying or administering, or offering to supply or administer
* selling or offering to sell (Class C only)
* possessing for any of the above purposes any controlled drug.

Offences against Section 7 of the Misuse of Drugs Act 1975 are category two offences. These include:
* possession and consuming controlled drugs
* supplying, administering or offering to supply or administer Class C
controlled drugs.

As with all offences, the category of offence will determine if the drug
offence is electable for trial by jury. Therefore if the offence is a category three offence (punishable by imprisonment of two years or more) the defendant will have the right to elect trial by jury. However if the offence is a category two offence (punishable by imprisonment of less than two years or a community based sentence) the defendant doesn’t have the right to elect trial by jury.

Police are not able to choose the jurisdiction.

Question 81

What is the criteria for other drug offences to be crown prosecutions?

Answer 81

s6(1) or (2A) Dealing or conspiring to deal in a Class A controlled drug (except production or manufacture of, or conspiracy to produce or manufacture, methamphetamine) if –

(a) the quantity of drugs is more than 5 times the quantity of the presumption threshold, including in combination with any other charges being heard together in the proceeding; or

(b) there is evidence of large-scale dealing beyond the actual quantity seized; or

(c) there is substantial evidence derived from a surveillance device involving audio interception.

Question 82

What is large scale dealing?

Answer 82

“Large-scale dealing” means suspected dealing in a quantity of drugs that is more than 5 times the presumption threshold.

Question 83

How is large scale dealing established?

Answer 83

(i) Admissions made by the defendant;
(ii) The amount and sophistication of equipment found in the defendant’s possession;
(iii) Volumes of precursor materials found in the defendant’s possession;
(iv) Evidence of chemical purchases;
(v) Intercepted communications;
(vi) Observation evidence, particularly over extended periods;
(vii) Significant cash holdings and/or movements;
(viii)Evidence, including records, of proposed and/or actual sales, including detailed and/or extensive supply lists;
(ix) Other evidence of sophisticated, organised or large-scale dealing – eg, travel movements, volume of drugs found in defendant’s possession;
(x) Expected evidence at trial of co-offenders (ie, taken after plea and
sentence), informants or other Crown witnesses.
(xi) Evidence suggesting a continuing course of conduct.

Question 84

What is the criteria for class B and C drugs to be crown prosection?

Answer 84

(a) the quantity of drugs is more than 10 times the quantity of the
presumption threshold, including in combination with any other charges being heard together in the proceeding; or
(b) there is evidence of large-scale dealing beyond the actual quantity
seized; or
(c) there is substantial evidence derived from a surveillance device
involving audio interception.

s6(1) or (2A) Dealing or conspiring to deal in a Class C controlled drug
where there is –

(a) evidence of large-scale commercial dealing; or
(b) substantial evidence derived from a surveillance device involving audio interception.

Question 85

What is the time limit of filing charges?

Answer 85

Section 28 of the Misuse of Drugs Act 1975 sets out the time limits for the filing of charging documents.

Section 28(a) allows you to file charging documents at any time for offences of:
* dealing (s6)
* cultivating (s9)
* aiding offences against corresponding law in another country (s10).

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

Question 86

Can you bail for a Class A offence?

Answer 86

16. Judge only may grant bail for drug dealing offence
    “A defendant who is charged with 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.”

17A Restriction on bail if defendant charged with serious Class A drug offence
“(1) This section applies to a defendant who is charged with a serious Class A drug offence and who is-
(a) of or over the age of 18 years; or
(b) aged 17 years and is charged with the offence in the District Court or the High Court
“(2) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.

Question 87

What are the two methods of delivering a drug exhibit?

Answer 87

• in person to the analyst who is to issue the certificate, or to a person authorised by the analyst to receive it
• by registered post or by courier post with signature required in a sealed package to an employee who has been authorised by the analyst in charge at the laboratory.

You will need to be able to:
* describe the packaging to prove the chain of evidence, by sealing and labelling it with the file reference name
* quote the registered article number and other details of the registered mail
* produce the receipt of its delivery to the ESR.

Question 88

What is the criteria for the analysis certificate to be admissible?

Answer 88

Instead of calling the expert analyst of a drug exhibit to give evidence in Court, you can produce a certificate of their findings.

The certificate is admissible evidence only if:
* the defendant is served at least seven days (7 clear days) of the hearing, and provided with a copy of the analyst’s certificate
* the defendant does not, at least three days before the hearing, give
written notice that the analyst be called
* the Court does not request the oral evidence of the analyst.

Question 89

Name two common examples of instruments of crime in drug dealing cases.

Answer 89

− a house used to manufacture methamphetamine;
− a motor vehicle used to deliver drugs.