Prosecution Procedure Flashcards
Bail
S16 Bail Act 2000
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
S17A Bail Act 2000
(1) This section applies to a defendant of or over the age of 17 years who is charged with a serious Class A drug offence.
(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.
Admissibility of Certificate
Admissible only if:
- The defendant is served at least seven 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 oral evidence of the analyst.
Procedures for bail application.
- Application for bail must be made before District or High Court Judge by defendant’s lawyer
- OC to have forwarded instructions on bail
- Full and detailed reasons for bail to be opposed
- Judge will remand defendant for CRH or whatever is considered appropriate
What offences are category three offences?
Offences against S6 - electable for trial by jury:
- Importing or exporting
- Producing or manufacturing
- Supplying or administering, or offering to supply or administer
- Selling or offering to sell (Class C only)
- Possession for any of the above purposes any controlled drug
What are category two offences?
Offences against S7 - not electable for trial by jury:
- Possession and consuming controlled drugs
- Supplying, administering or offering to supply or administer Class C controlled drugs
What is the procedure for charges heard together?
S139 - Criminal Procedure Act:
- If one charge is to be heard by a jury, then all charges are to be heard by a jury.
- If one charge is to be tried in the High Court, all charges must be tried in the High Court.
- Unless exceptional circumstances exist, if one defendant elects to be tried by a jury on one charge, all charges against all defendants must be tried by a jury and in the same court.
What drug offences are automatically prosecuted by the Crown following a plea?
- S6(1)(b) or (2A) - production or manufacture of, or conspiracy to produce or manufacture, methamphetamine.
- S10 - aiding offences against corresponding law of another country corresponding to S6,9,12A or 12AB.
- S12C commission of offences outside of NZ.
What must O/C case do if there is property that is an instrument of crime?
O/C case must notify the prosecutor so the prosecutor can file a ‘Prosecutor’s Notice’ with the court, advising them that the court should consider making an instrument forfeiture order.
Two examples of property that could be considered instruments of crime:
- A house used to manufacture methamphetamine.
- A car used to make drug deliveries.
What constitutes large scale dealing for Class A drugs?
“Large scale dealing” means the suspected dealing in a quantity of drugs is more than 5 times the presumption threshold.
How can you prove large-scale dealing?
- Admissions made by the defendant
- Evidence of chemical purchases
- Intercepted communications
- Significant cash holdings and/or movements
What are the different categories of cannabis cultivation for sentencing purposes?
- Category one: growing for personal use - no sales
- Category two: small-scale grow for profit.
- Category three: large-scale grow - sophisticated - organised
What amounts of Class A and B controlled drugs would constitute large-scale dealing?
- Class A: more than 5 times the quantity of the presumption threshold.
- Class B: More than 10 times the presumption threshold.
How would you substantiate large-scale commercial cannabis cultivation?
- The volume of cannabis found in the defendant’s possession.
- Evidence of an extensive and sophisticated ongoing operation involving regular crop rotation.
- Evidence of extensive crop yields.
What are the time limits for the filing of charging documents?
(Section 28 MODA)
Section 28(a): Anytime for the offences of dealing (S6), cultivating (S9), and aiding offences against a corresponding law in another country (S10).
Section 28(b): For any other offence against the Act it is four years after the date on which it was committed.
What conditions does S30 of the Bail Act allow a judge to impose on a defendant?
- An electronic monitoring condition (only by agreement with the prosecution).
- Any other condition that the judge considers necessary that will make the defendant appear in Court on subsequent occasions.
- Any other condition that the judge considers necessary.
