Prosecution Flashcards
Offences against S6 of MODA 1975
Category three offences (2 years imprisonment or more):
- importing/exporting
- producing or manufacturing
- Supplying or administering/offering to…
- Selling or offering to (Class C only)
- Possession for the above purposes
Right to elect trial by jury.
Offences against S7 MODA 1975
Category two (less than 2 years imprisonment, community sentence) offences:
- possession and consuming controlled drugs
- supplying or administering, or offering to… (Class C)
Can’t elect trial by jury.
Procedure for charges heard together
S139 of Criminal Disclosure Act
If one charge is heard by a jury, all charges are heard by a jury. Cat 2 charges are heard with a Cat 3 charge before a jury, rather than in a JAT.
If one charge is for the High Court, they all go to High Court.
Multiple defendants: if one elects jury or goes to HC for one charge, then all charges against all defendants go to jury/HC.
Automatic Crown Prosecutions (3)
As per Crown Prosecution Regulations 2013, the only drug offences automatically prosecuted by the Crown following a plea are:
- S6(1)(b) or 2A: Produce/manufacture or conspiracy to produce/manufacture methamphetamine.
- S10: Aiding offences against corresponding law of another country, corresponding to S6, 9, 12A or 12AB.
- S12C: Commission of offences outside NZ.
Criteria for Class A offences going to Crown
Dealing or conspiring to deal Class A if:
(a) quantity of drugs if 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.
Large-scale dealing/commercial dealing
What is it?
How is it substantiated?
Suspected dealing in a quantity of drugs that is more than 5 times the presumption threshold. May be substantiated by:
- Admissions
- Amount and sophistication of equipment found
- Volumes of precursors
- Evidence of chemical purchases
- Intercepted comms
- Observation evidence
- Significant cash holdings and/or movements
- Records of proposed/actual sales, supply lists
- Travel movements
- Volume of drugs in possession
- Evidence of co-offenders. informants or other witnesses.
- Evidence suggesting a continuing course of conduct.
Criteria for Class B offences going to Crown
Dealing or conspiring to deal in a Class B drug if…
(a) 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.
Criteria for Class C offences going to Crown
Dealing or conspiring to deal in a Class C drug when there is:
(a) evidence of large-scale commercial dealing; or
(b) substantial evidence derived from a surveillance device involving audio interception.
Categories of Cannabis Cultivation
Cat 1: growing a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended.
Cat 2: small-scale cultivation for a commercial purpose
Cat 3: large-scale commercial growing, usually with a considerable degree of sophistication and organisation. Crown prosecution. Can be substantiated as per large-scale dealing, plus:
- volume found in possession
- evidence of an extensive and sophisticated ongoing operation involving regular crop rotation.
- evidence of extensive crop yields.
Bail Act 2000
16 - defendant charged or convicted of dealing offence may only be bailed by HC judge or DC judge
17A - Serious Class A. Judge satisfied on balance of probabilities that defendant won’t deal on bail.
Bail Application Process
- Application for bail must be made before a HC judge or DC judge by defendant’s counsel.
- O/C Case should give instructions re bail to prosecutor.
- If bail is opposed, full and detailed reasons should be given. Consider providing affidavits in support.
- Judge will remand defendant for a CRH date or whatever is considered appropriate.
