1
Q
What are common methods that drug dealers import drugs into NZ?
A
Drugs concealed in or on their person
Have another person bring the drugs in for them (a mule)
Send or have drugs sent by international mail or courier
Conceal drugs inside legitimate goods i.e. shipping containers
2
Q
What are specific methods of importation?
A
International airport - Body packing, concealed internally or in luggage
International Mail centre - inside a mail article
Imported air freight - Commercial or private freight consignment
Imported sea freight - Same as air freight but arrive via sea
Transhipped Transiting through NZ - Final destination another country
3
Q
Definition of Imports
A
Importation in relation to any goods means the arrival of goods into NZ in any manner whether lawfully or unlawfully from a point outside of NZ
4
Q
Proving guilty knowledge of Importing
A
The conduct of the defendant and proving the defendants guilty knowledge. This will involve proof that the defendant:
Knew about the importation
Knew the imported substance was a CD
Intended to cause the importation
5
Q
What is wilful blindness in relation to guilty knowledge?
A
When proving guilty knowledge, proof that the defendant deliberately turned a blind eye to the facts will suffice as wilful blindness.
6
Q
Definition of New Zealand
A
Means the land and the waters enclosed by the outer limits of the territorial sea of NZ. The out limit of the territorial sea is 12 nautical miles from the land mass of NZ.
7
Q
When is someone liable for importation?
A
Criminal liability arises as soon as the drugs cross the NZ border even if the drugs are intercepted by customs and never reach addressee. The process of importation continues while goods are in transit and only concludes when they’ve reached their final destination available to the consignee.
8
Q
When writing a search warrant in relation to an import drug charge, what evidence should be listed in the warrant?
A
Computers and cell phones
Contact lists / numbers
Emails
Money & financial records
Passports
PO box documentation
Scales and packaging
Track & Trace receipts
Travel documentation
9
Q
Case law regarding producing and manufacturing
A
R v Rua – Creation of controlled drug by some process of changing it from its original state into a controlled drug.
10
Q
Definition of Produce
A
Bring something into being or existence from its raw materials or elements. Produce includes to compound which means to create a whole by mixing or combining two or more elements or parts. E.g. Cannabis oil.
11
Q
Definition of Manufacture
A
Manufacturing is the process of synthesis. Combining components or processing raw materials to create a new substance. E.g. Heroin from morphine, Meth from pseudoephedrine
12
Q
When is the offence complete?
A
The offence is complete once the prohibited substance is created whether or not it is in a usable form.
13
Q
What is Cannabis preparation?
A
When cannabis preparation is produced by subjecting cannabis plant to some kind of processing, that renders it unrecognisable as plant material. E.g. Cannabis oil or cannabis cake
14
Q
Definition of supply
A
Supply includes distribution, give or sell.
15
Q
Case law for supply
A
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.
16
Q
Definition of Distribute
A
Supply of drugs to multiple people. E.g. dividing up meth into small quantities to distribute between several joint owners.
17
Q
Definition of Giving
A
Giving involves handing over or in some other way transferring an item to another person. The act of giving is complete when the recipient accepts possession or drug is placed under their control.
18
Q
Definition of Selling
A
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Although the consideration will commonly be money, anything of value will suffice.
19
Q
Definition of administering
A
It involves introducing a drug directly into another persons system.
20
Q
Case Law for Offering
A
R v Brown - understood to be genuine offer
R v During – imitation/physical offer from accusers that drug is ready to supply
21
Q
What should prosecution prove when it comes to offering to supply or administer?
A
Actus reas – The communicating of an offer to supply or administer a controlled drug
Mens rea – An intention that the other person believes the offer to be genuine
22
Q
Case Law for offering to supply
A
R v Brown - The defendant is guilty in the following circumstances:
HAND- Offers to supply a drug that he has on hand
FUTURE- Offers to supply a drug that will be procured at some future date
MISTAKENLY- Offers to supply a drug that he mistakenly believes he can supply
DECEITFULLY- Offers to supply a drug deceitfully knowing he will not supply that the making of such an intimation with the intention that it should be understood as a genuine offer is an offence.
23
Q
Definition of Otherwise Deals
A
This is when someone is dealing in a drug by some means other than distributing, giving, selling, administering it or offering to supply or administer
24
Q
Proving guilty knowledge in relation to Supply
A
Knew about the substance
Knew the substance was a controlled drug
Intended to cause the substance to be supplied
25
How do we prove age?
Produce persons birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate. Independence evidence will be that of a parent.
26
Case law in regards to proving age
Forrest and Forrest – The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
27
Case Law: Definition of Possession
R v Cox – Possession involves two elements: Physical and Mental. The physical element is actual or potential physical custody or control. 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 an intention to exercise possession.
28
Definition of sell
A sale occurs when a quantity of drug is exchanged for some valuable consideration. Although commonly the consideration will be money, anything of value will suffice.
29
Example of actual custody or control
Means the person actually has the drug in their custody or control e.g. in their pocket or in a vehicle they have keys for.
30
Example of potential custody or control
Things subject to his control which is in the custody of another e.g. if a person is storing their drugs at a friends house.
31
Proving Knowledge of Existence
KNOWS Knows they possess the substance
KNOWS Knows it as a controlled drug
PRESUMES Physical custody presumes knowledge unless otherwise proven
32
Proving Knowledge and Intent in relation to possession
KNOW Know they have the substance
KNOW Know the substances nature or qualities
INTENT Intent to use the substance in a way that allows you to charge them with possession
33
Proving Possession of drugs
KNOWLEDGE Knowledge that the drug exists
KNOWLEDGE Knowledge that it is a controlled drug
ACTUAL Actual physical control or some degree of control over it
INTENTION An intention to possess it
34
Additional evidence needed to prove intent in relation to supply
Admissions
Circumstantial evidence i.e. packaging, scales, cash, tick lists
The statutory presumption under 6(6)
35
SECTION 6(6)
If a person has possession of a specified amount of any drug that person will be presumed to have that drug for one of the purposes set out in 6(1) (c), (d) or (e) unless they can prove otherwise.
36
When can a person still be charged under section 6(6)
If other circumstances provide good cause to suspect such as PACT:
P PACKAGED - The way in which drugs were packaged
A ADMISSIONS - Suspects admissions
C CASH - Presence of large amounts of cash
T TICKLISTS - Ticklists showing sales
37
Definition of Knowledge of Qualities
It is assumed that the person knows the nature of their actions unless they produce evidence that raises reasonable doubt about their guilty intent. E.g. Mother cultivating sons cannabis plants thinking they were house plants. She is not aware of the illegal nature and so cannot criminally intend to take advantage of possessing them.
38
Definition of joint possession
Where more than one person has access to drugs of saleable quantity however there must be a shared intention to sell the drugs.
39
Definition of Attempted Possession
It is an offence to attempt to gain possession of a drug including someone obtaining something innocuous in the mistaken belief that it is a drug. E.g. Hedge clippings.
40
Case law: Attempted possession
Police v Jay – The defendant had criminal intent to attempt to commit the offence and did an act for the purpose of accomplishing that intent.
41
Defence: Lack of knowledge
A genuine lack of awareness would exclude knowing possession and thereby intent. A person cannot knowingly be in possession of an article which he mistakenly but honestly believes he does not possess.
42
Defence: Lack of knowledge caused by memory lapse
Martin v Police – It is essential to establish whether the defendants memory loss was complete or merely that knowledge of the seeds was not always at the forefront of the defendants mind.
43
Defence: Presumption of Possession - personal use
The presumption may be rebutted if the person can prove on the balance of probabilities that they did not intend to commit a dealing offence not withstanding the amount. E,g, Suspect heavily addicted and required large amounts for personal use.
44
Definition of a controlled delivery
This occurs when a consignment of illicit drugs is detected, often concealed in other goods, making it possible for the delivery of those goods to be made under the control and surveillance of NZ customs and Police, with the view to identify and secure evidence against those involved for the import/export.
45
What are the two options of controlled deliveries?
1. A clean controlled delivery: Where no drugs are left within the consignment. Only importation and/or conspiracy charges likely to be filed.
2. Leave an amount of the drug in the consignment: This enables the option of charging an offender with possession to supply. The remainder of the drugs is substituted.
46
7 things to do when preparing for a controlled delivery
Contact surveillance, photography and TSU early as possible
Electronic interception
Find a suitable OP address
Intel phase – profiles of addressee & address
Liaise with customs OC exhibits
Method of delivery & contingency plans
Repacking controlled delivery packages
Search warrants
47
Things to consider with an OP for a controlled delivery
Camera - Camera OP requirements versus intercept requirements
Friendlies - Find a suitable location. Identify any staff friendlies who live in vicinity of the target address or have friends/family in the area
Location - If no friendlies, identify a potential address based on location and proximity to target
Staff - Number of staff to occupy the OP
Warrant - Whether surveillance device warrant is required.
48
When a suitable address has been identified, you must profile it by:
Ability to beam signals and/or tap into telecom cables
Access to and from address without arousing suspicion
Animals, lighting, parking, schools
Proximity to target address
Unobstructed line of sight to target address
49
What things should I consider when profiling the addressee of a controlled delivery?
Agency intelligence held – fisheries, customs, immigration, internal affairs
Bank accounts – large deposits or overseas transfers
Connections to the delivery address
Family members/associates/vehicles/places frequented
General lifestyle – Sports, Interests
Name – real or false
Photographs – casual, formal, surveillance
Police intelligence held – NIA
Previous occupiers
Tracking device for vehicles
50
Methods of a controlled delivery
Reintroduce into postal system for delivery by postie
Delivery by a courier company
Police/customs staff pose as postie/courier
51
What matters need to be considered in relation to audio devices for delivery?
Installation – must be done by TSU
Intercept – A SDW is required where an interception device will be used
Monitored – The audio device must be monitored even while it is mobile
Time – Allow for sufficient time for the secure installation of the device
52
Define controlled drug
A controlled drug means a substance preparation article or material specified or described in schedules 1 2 and 3 of this act and includes any controlled drug analogue.
53
Define controlled drug analogue
Any substances specified or described in part 7 of schedule 3 of this act. It has a structure substantially similar to that of any CD but excludes any substance specified or described in schedule 1 or 2.
54
Define Class A controlled drug
Means the controlled drugs specified or described in schedule 1. Their misuse poses a VERY HIGH RISK of harm to individuals and society. E.g. Cocaine, Heroine, LSD, Meth, Psilocybin (MM)
55
Define Class B controlled drug
Means the controlled drugs specified or described in schedule 2. Their misuse poses a HIGH RISK of harm. E.g. Amphetamine, Cannabis preparations (oil and hashish), GHB, MDMA, Morphine, Opium, Pseudoephedrine
56
Define Class C controlled drug
Means the controlled drugs specified or described in schedule 3. Their misuse poses a MODERATE RISK of harm. E.g. BZP, Cannabis plant, Cannabis seeds, Controlled drug analogues
57
Definition of guilty knowledge
The defendant must know that the substances was a CD or had characteristics consistent with a CD. GK is presumed in the absence of evidence to the contrary therefore it is up to the defendant to raise reasonable doubt as to their state of mind.
58
Case Law for a defence in relation to guilty knowledge
R v Strawbridge - If the accused honestly believed on reasonable grounds that their act was innocent then they are entitled to be acquitted unless the jury are satisfied beyond reasonable doubt that this was not so.
Crown does not need establish Knowledge. Up to defendant to prove they were innocent. Evidence to support knowledge is encouraged.
59
Case law for usable quantity
Police v Emirali – The quantity must be measurable and usable. The serious offence of possessing a narcotic does not extend to some minute or useless residue of the substances.
60
Definition of a person
The offence is gender neutral. The fact that the person supplied is a person is generally accepted by judicial notice or proved by circumstantial evidences.
61
Schedule 5 presumptive amounts
Cocaine .5 grams
Heroin .5 grams
Lysergide 2.5mls or 25 tablets
Meth 5 grams
MDMA 5 grams or 100 tablets
Cannabis Oil 5 grams
Cannabis plant 28 grams or 100+ cigarettes
Any controlled drug 56 grams
62
What three things must be proven for supplying equipment (section 12A)?
Had the equipment, material, precursor in his possession
Items capable of being used to produce or manufacture any controlled drug or cultivate any prohibited plant
Defendant had the intention that those items are to be used by himself or other person
63
Definition of Equipment
Equipment includes the implements, apparatus and other hardware used in the manufacturing, producing or cultivating process.
Examples may include: glassware, condensers, heating mantles etc used in the manufacture of methamphetamine; or pots, lights, timers, water pumps etc used in cultivating cannabis.
64
Definition of conspiracy in regards to 6(2A)
An agreed intention between at least two persons to commit the offence rather than any actual action. The conspiracy is complete once the agreement has been made.
65
Proving Conspiracy to Import to NZ
Prove the defendant has done something to complete the conspiracy in NZ.
66
What is an electronic operation in regards to drugs?
Use of Search and Surveillance. SDW
67
What must you consider when starting an electronic operation?
Logistical support
Analysis of evidence
CHIS protection
Implications of disclosure and legal grounds for withholding
68
46(1)(a) Intercept Definition
Use of an interception device to intercept a private communication.
69
46(1)(b) Tracking Definition - What two categories does a tracking device fall into?
A device that can be used to help ascertain the location of a person or thing
A device used for detecting whether a thing has been handled, tampered with or otherwise opened
70
46(1)(c) Observation Definition
Observation of private activity in private premises and any recording of that observation by means of a visual surveillance device.
71
46(1)(e) Obtaining a SDW in relation to observation
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 VSD and the duration of the observation exceeds 3 hours in 24 hours or 8 hours total.
72
Four times when a SDW is required:
Observation inside private premises
interception device will be used to intercept a private communication
Observation and recording by visual surveillance device and exceeds 3 hours in 24 hrs/8hrs total
Tracking if involving trespass
73
Section 47 - Two times when a SDW is not required
Being lawfully in private premises provided that he records what he observes or hears there that he could see or hear without the use of a SD
audio recording of a voluntary oral communication between 2 or more persons with consent of at least 1 of them.
74
What does section 48 outline?
In some situations of emergency or urgency, a surveillance device may be used for up to 48 hours without warrant if entitled to apply for a warrant but the delay in obtaining it would be impracticable.
75
What are the situations of emergency or urgency that relate to controlled drugs and controlled deliveries?
RGTS an offence has been, is being, is about to be committed in relation to a controlled drug specified or described in s1 to s4 and RGTB the use of a SD would obtain EM
OR
RGTB a person is in possession of any one or more things described in section 81(2)(a)-(d) and RGTB use of a SD is necessary to facilitate the things seizure.
76
What does section 49 of S&SA state in regards to a SDW?
It must contain certain particulars.
-Description of EM believed to be able to be obtained by use of the surveillance device
-Grounds on which application is made
-Name of applicant
-Particulars or person, vehicle or other thing that is object of proposed surveillance
-Period for which surveillance is sought
-Provision authorising the making of an application for a SW in respect of suspected offence
-Suspected offence that SDW is sought
-Type of surveillance device to be used
77
What are the reporting requirements in relation to a SDW?
Provide a written report to issuing judge within 1 month after the expiry of the period for which the warrant is in force.
A report is required to be provided to a judge in relation to the use of a surveillance device in situations of urgency or emergency.
78
Definition of a private communication
Means a communication whether oral or written or in the form of telecommunication and any party to the communication desires it to be confined to the parties to the communication.
79
Definition of an Interception device
Means any electronic mechanical electro magnetic optical electro optical apparatus equipment instrument or other device used or capable of being used to intercept or record a private communication.
80
Definition of a visual surveillance device
Means any electrical mechanical electro magnetic optical electro optical apparatus equipment instrument or other device used or capable of being used to observe and record a private activity.
81
Definition of a tracking device
Means a device that may be used to help ascertain by electronic or other means the location of a person or thing or whether a thing has been opened, tampered with or in some other way dealt with.
82
What are two types of a tracking device?
A beacon and a GPS
83
What should a telephone investigator undertake in the first 24 hours?
Trap or preload phone data
Find a TSP person to liaise with
Draft a production order early
Liaise with an analyst to assist with formatting raw data into spreadsheets
Prove ownership of phones, phone numbers or IMEI to a person.
84
What does section 23 and 13A allow you to do? What is the key difference between the two?
These sections relate to conducting an internal search of people believed to be concealing drugs internally.
Under section 23, an internal search can only be done if the people are under arrest for specific offences under section 6, 7 or 11 in relation to Class A, B & C controlled drugs. Must be RGTB person has secreted within body anything that may be evidence of those offences.
Section 13A is for dealing with people believed to be concealing class A or B controlled drugs internally, who are not under arrest.
85
What does section 64 do in respect of CHIS protection?
It grants privilege to informers that protects their identity and extends to information that is likely to disclose that identity.
86
Definition of an informer
A person is an informer if they have supplied information, gratuitously or for reward, to an enforcement agency or rep of an 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.
87
Outside clan lab indicators
ACCESS access denied to landlords, neighbours or other visitors
BOTTLES bottles, plastic containers and boxes with labels removed
CHEMICAL chemical odours coming from building or rubbish - sweet, bitter, ammonia or solvent smells.
EXHAUST Exhaust fans running at odd times
EXPENSIVE Expensive security and surveillance gear
FREQUENT Frequent visitors
OCCUPANTS Occupants unfriendly, secretive or exhibiting paranoia or odd behaviour
RUBBISH Rubbish containing large amounts of cold medication containers or packaging
SMOKING People coming outside only to smoke
WINDOWS Windows blackened out or curtains always drawn
88
Inside clan lab indicators
BAKING Baking dishes or similar containing white crystalline substances
CHALK Containers with clear liquids with a chalky coloured solid on bottom
COFFEE FILTERS Used coffee filters containing a white or reddish brown substance.
HOT PLATES The presence of hot plates near chemicals
LAB Laboratory glassware, equipment and documents
TWO LAYERS Containers with two layered liquids in them. One dark and other one either clear or pale yellow.
89
What are the safety considerations if you discover a clan lab?
LEAVE Leave the area immediately and do not reenter the premises.
NEVER Never touch taste or smell any chemicals or equipment
SMOKE Do not smoke in or near a CL
STOP Do not stop any chemical reaction or turn off any electrical devices
TOOLS Do not use tools, radios, phones or devices that produce a spark or friction
WATER Do not shut off water supply to house or the chemical reaction
90
What are some initial action steps if an unplanned entry into a clan lab occurs?
Immediate removal of POIs
Freeze Control Preserve and maintain safe perimeter
Notify duty inspector or NCO, fire and ambos if necessary
Occupants to remain separated until decontaminated
Seek advice from fire or NCLRT about decontamination procedures
Seek medical advice if experience any effects
91
What are the symptoms of exposure to clan labs?
Burning skin
Coughing or choking
Decrease in cognitive function
Feeling of coldness or weakness
Headaches
Nausea
Pain in diaphragm
Shortness of breath and/or dizziness
Watery or burning eyes
92
What are the three processes or stages relating to clan labs?
Conversion
Extraction
Synthesis
93
Definition of emergency in section 135 in the Hazardous Substances and New Organisms Act 1996
Actual or immense danger to human health or safety.
Danger to the environment or chattels so significant that immediate action is required to remove the danger arising from a hazardous substance or new organism.
94
What is the 90 second rule in relation to clan labs?
This rule assumes that if offenders are present and moving inside the lab then the atmosphere will sustain life. This means initial entry team wearing minimal PPE may safely enter and extract suspects for a period of up to 90 seconds.
95
What are things to consider for initial action at clan labs where children are located?
Remove CYP from scene
Assign officer to look after and monitor
Assess for injury, illness or respiratory distress
OC investigation tell medical centre of contamination prior to admission
Request OT
PPE for OT and decontamination kit for child
Photograph child at scene
Recording physical condition of child including any injuries
Record mental state
Consider swabbing child for chemical residues
Secure clothing worn by child
96
What does section 28 outline in regards to filing charges?
You can file charging documents at any time for offences under section 6, 9 or 10. For any other offender under MODA is 4 years after the date which offence was committed.
97
When must the defendant be given a copy of the analysts certificate and written notice that the analyst will not be called?
At least 7 days before the hearing.
98
What must defence do if they don’t want to accept the analysts certificate as evidence?
They must give written notice at least 3 days before the hearing that they wish the analyst to be called as a witness by the prosecution.
99
When is an analysts certificate admissible?
If the defendant is served a copy of the certificate at least 7 days before the hearing and the defendant doesn’t give written notice for the analyst to be called at least 3 days before the hearing.
100
For evidence in the certificate to be admissible, certain procedures must be strictly followed. These procedures ensure that:
The chain of evidence is unbroken
The material to be analysed is not tampered with or contaminated
The defence is aware of the analysis and is given notice within specific timeframes to allow them to have reasonable time to prepare a defence.
101
What are instruments of crime?
A house used to manufacture meth or a motor vehicle used to deliver drugs.
102
Who can bail a defendant who is charged with a drug dealing offence?
In any case by order of a high court judge
If defendant has no previous convictions for drug dealing by order of a district court judge
Section 16 Bail Act
103
What are section 7 offences of MODA 1975?
Category 2 offences:
-possession and consuming controlled drugs
-supplying, administering or offering to supply or administer Class C controlled drugs.
104
Section 16 Bail Act
Judge only may grant bail for drug dealing offences
105
Section 17 Bail act
17A restriction on bail if defendant charged with serious Class A drug offence
- of or over 18 OR 17 and charged in DC or High Court
-No defendant shall be at large granted bail h less they satisfy the judge otherwise
-must satisfy the Judge of will not comiit drug dealing offences on bail
106
Section 3 Bail Act
Drug dealing offence means
a) any offence against section 6 or 12C(1) of MODA in relation to Claas A or B drug
b) and attempt to commit set out above
107
Section 30 of Bail Act
Sets out types of special conditions a judge can impose on defendant
An electronic monitoring condition.
Any other condition that will likely make the Defendant appear as required.
Any conditions that the judge considers necessary
108
Section 29 MODA
Guilty knowledge is an essential element however 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 not a defence to supplying groin if he believed it was cocaine.
29A do not need to prove usable quantity unless the defendant puts the matter in issues.
29B specifically producing cannabis preparations. For prosecution to prove that the preparation relates to tetrahydrocannabinols.
109
Section 9 of MoDA
Outlines the offence of cultivating prohibiting plants.
DDP
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