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Part 8 - Drug prosecutions
This part of the ‘Drugs’ chapter contains the following topics:
Introduction
Jurisdiction and manner of proceeding
Evidence
Bail
Forfeiture
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Introduction
When you arrest someone for a drug offence, you face the following set of requirements:
First, you must be aware of the jurisdictions and range of charging options available for
the offence (including obstruction) and you must choose the most suitable for that
offence.
Second, you must also ensure that in collecting material for the prosecution's case, you
follow procedure and preserve the chain of evidence so that the evidence can be
admitted in Court.
Finally, given that many drug investigations involve undercover work, you must take
every care to protect your undercover officers, using the legislative provisions available
to you.
This part of the ‘Drugs’ chapter provides some guidance in terms of prosecuting for drug
offences.
Minor offences
In less serious offences (as opposed to trafficking offences), the primary aim of the
judicial process is to rehabilitate the suspect. When deciding whether to arrest or
prosecute, use the same criteria that you would use for other minor offences. Take
account of whether the suspect has sought treatment and is no longer offending.
Filing charges for drug possession
A person in possession of two or more different kinds of drug, whether or not they are of
the same class, must face a separate charge for each. Follow these steps to file charges.
Step Action
1
When charging under section 6(1)(b) of the Misuse of Drugs Act, it is
important to use the correct wording. See ‘Part 1 – Drug related definitions’.
2
Remember that in the case of class C drugs, the age of the person supplied
determines which charge to file.
3
Cannabis seed is a controlled drug. Its possession is therefore covered by
section 7(1)(a) of the Misuse of Drugs Act, not by section 13.
4
If a drug cannot be seized for analysis you may still be able to charge the
suspect. A drug’s identity in a possession case can be proved by:
• the suspect’s statements or admissions
• a witness’ knowledge of methodology, drug smells or user behaviour. The
case will depend on the experience of the witness.
Note: The limitation period for filing a charging document in respect of any offence
against this Misuse of Drugs Act 1975 (other than offence against section 6, 9 or 10 of
the Act), or any regulations made under the Act, ends on the date that is 4 years after
the date on which the offence was committed.
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Jurisdiction and manner of proceeding
Jurisdiction depended on what class of drug involved
Jurisdiction for offences against the Misuse of Drugs Act 1975 varies depending on
whether the offence is a category 2 or category 3 offence under section 6 of the Criminal
Procedure Act 2011.
Dealing vs. possession/use
Amendments to the Misuse of Drugs Act 1975 and the enactment of the Criminal
Procedure Act 2011have resulted in clear divisions of offences and their treatment. The
broad divisions are:
•
offences against section 6 of the Act (dealing – category 3):
- involving class A or B controlled drugs
- involving class C controlled drugs
•
offences against section 7 of the Act (possession/use – category 2)
•
other offences (punishable by less than 2 years imprisonment - category 2,
or if punishable by 2 years imprisonment or more – category 3).
There is a clear division between dealing and possession/use.
Dealing offences
Offences against section 6 of the Misuse of Drugs Act 1975 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.
These are collectively known as ‘dealing offences’.
Be aware that there is a specific definition for drug dealing offences relating to class A
and B controlled drugs under section 3 of the Bail Act 2000. The definition of drug
dealing offences under the Bail Act 2000 extends to an attempt to commit an offence
against section 6 or 12C of the Misuse of Drugs Act 1975 in relation to a Class A
controlled drug or a Class B controlled drug (s 12C relates to those offences under s 6
committed outside New Zealand). Do not get this legal definition confused with the
common usage of the word 'dealing' which also includes class C controlled drugs.
Class A, B or C controlled drugs
Dealing offences involving class A, Class B or Class C controlled drugs are category 3
offences. Prosecutions are commenced in the District Court, but may transfer to the High
Court,
Possession/use offences
Section 7 concerns the offences of possessing and using controlled drugs. Offences
against this section are category 2 offences and all prosecutions are commenced in the
District Court.
Other offences
Other offences under the Misuse of Drugs Act 1975 are either category 2 or category 3
offences and all prosecutions are commenced in the District Court.
Time limits on charges
For offences against sections 6, 9 and 10 of the Misuse of Drugs Act 1975, there is no
time limit for filing the charging document.
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For other offences against the Act or regulations made under it, charges must be filed
within four years from the time that the matter arose.
For offences against the Medicines Act 1981, charges must be filed within 12 months.
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Evidence
Evidence of analysis
Section 31 of the Misuse of Drugs Act 1975, provides a procedure whereby evidence of
the weight and nature of a controlled drug or prohibited plant may be given by certificate
without having to call the analyst to give such evidence.
You must use this procedure in every case involving controlled drugs unless there are
good reasons to the contrary.
ESR analysts will request good reasons as to why the procedure has not been used if
they are requested to give evidence in drug cases. You must ensure the valuable time of
ESR analysts is not wasted by unnecessary court appearances.
Procedure
Evidence on the nature of the substance seized can be given by any person:
• designated by the Minister as the analyst in charge of an approved laboratory, or
• working in an approved laboratory and authorised by the analyst in charge of it to act
as an analyst for the purposes of the Misuse of Drugs Act 1975.
The analyst need not appear in court. The evidence can be presented in the form of a
certificate, provided that the defendant:
• receives a copy of the certificate at least seven clear days before the hearing and is
informed in writing that the analyst will not be called; and
• does not notify the prosecutor in writing, at least three clear days before the hearing,
that they require the analyst to be called.
Methods of delivery of exhibit
Section 31(2) provides two methods of delivering a drug exhibit to the ESR so that
certificate evidence can be used. You can deliver the exhibit:
• 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.
Chain of evidence must be preserved
If you are in charge of the case, it is your responsibility to ensure that the chain of
evidence is complete. Always use a standard drugs envelope (SDE) or attach a SDE to
the article. 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.
Note: Section 31 allows any Police employee to deliver exhibits to the ESR.
Delivery to analyst
If you are delivering the exhibit to the analyst in person, you must cross-reference the:
• name of the person who signed the certificate 'upon receipt of the exhibit'
• receipt signature on the Police 143 form
• evidence of the Police employee who delivered the drug to the ESR.
Important: All of the names must be the same.
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Delivery to authorised employee
You will need to ensure and prove:
• the name of the person to whom the drug was delivered
• the person who received the package was a person who works in an approved
laboratory and who is authorised, by the analyst in charge at that laboratory, to
receive it
• the package was sealed.
Section 31(2A) concerns the delivery of exhibits to the ESR. The analyst may give
evidence that that employee received the package whose contents the analyst
subsequently analysed. Unless evidence is then presented to the contrary, the analyst's
evidence will be admitted as sufficient proof that the exhibit was properly received by
the ESR. In most cases, this will make it unnecessary to call further ESR witnesses to
prove continuity.
Once it is certified that the authorised officer of the ESR has received a substance for
analysis from a named Police employee, the presumption is that the goods so received
are the goods analysed. Having regard to the fact that a certificate is admissible only if
the defendant raises no objection and subject to the court's overriding discretion to put
the prosecution to the proof, there is no need for the Crown to show the chain of
physical control passing from the employee of the ESR to the authorised analyst.
Kemp v
Yates (1988) 3 CRNZ 150 refers.
Admissibility of certificate of analysis
Under section 31(3)(a) of the Misuse of Drugs Act 1975, 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.
The purpose of section 31(3)(a) is to warn the accused that a certificate will be proffered
as evidence, rather than calling the person who actually made the analysis. No evidence
of the identity of the person making the analysis is required by the provision, or can be
properly required by the Court as a condition of the admissibility of the certificate.
Police
v Green (1986) 2 CRNZ 292 refers.
Service of the analyst certificate and written notice that the analyst will
not be called
The copy of the certificate and the written notice that the analyst will not be called:
• can be delivered to a member of the defendant's family or to their solicitor (in
accordance with sections 24-29 of the Summary Proceedings Act 1957)
• must be dated at least seven clear days before the hearing at which the certificate is
to be tendered
• must be proved to have been served either by oral evidence or a constable's
endorsement which complies with section 29 of the Summary Proceedings Act 1957.
Lack of response
Do not assume that there will be no argument about the exhibit, chain of evidence or
identity of the drug just because the defence has not served a notice requiring the
analyst to give evidence. The defence accepts nothing and admits nothing by failing to
serve notice: the only effect is to make the certificate technically admissible.
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Errors
Service
If you do not serve the documents correctly, you jeopardise the
certificate’s admissibility as evidence.
The certificate of analysis was inadmissible as evidence because
the statutory procedures were not complied with. For that reason,
any evidence in regard to the cannabis became hearsay, and
therefore inadmissible.
Free v Police (1986) 2 CRNZ 298 refers.
Form
However, if your statement saying that the certificate and notice
have been served is incorrect in form but not in substance, you can
make a submission under section 204 of the Summary Proceedings
Act 1957 that the statement not be invalidated.
Content
The fact that there is an incorrect statement of fact in the
certificate does not render it inadmissible. The law contemplates
the possibility of error ‘until contrary is proved’.
Where the wording of the certificate was contradicted by oral
evidence as to whom the Police employee gave the sealed package
to, a reasonable doubt was created as to whether the articles were
the same as had been found in the possession of the accused, or
as to whether they had been interfered with "somewhere along the
line of the chain".
Bell v Police 6/11/79, Holland J, SC Auckland
MIS54/79 refers.
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Bail
Bail for drug-dealing offences
The issue of bail for drug dealing offences is covered by sections 16 and 17A of the 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 a District Court Judge.
If a defendant of or over the age of 17 years is charged with a serious Class A drug
offence, then they may not be granted bail or allowed to go at large, unless they satisfy
the Judge that bail or remand at large should be granted.
Note: The defendant must satisfy the Judge on the balance of probabilities that they will
not while on bail or at large commit any drug dealing offence. This requirement does not
limit any other matters that the defendant may be required to satisfy the Judge that bail
or remand at large should be granted.
Definition of serious Class A drug offence
Serious Class A drug offence under section 17A means:
• an offence under section 6 or 12C(1)(a) of the Misuse of Drugs Act 1975 for
contravention of section 6(1)(a), (b), (c), or (f) in relation to a Class A controlled
drug; or
• an attempt to commit an offence in the bullet point above.
Bail conditions
Section 30 of the Bail Act 2000 sets out the types of special conditions that a Judge can
impose on the defendant including:
• a condition that the defendant has to report to Police at specified places and/or times
• an electronic monitoring condition (note, may only do so by agreement with the
prosecution)
• any other condition that the Judge considers will make it likely that the defendant will
appear as required in court on subsequent occasions (such as confiscate their
passport, confine them within a specified geographical area)
• any conditions that the Judge considers necessary (such as direct them not to mix
with certain people).
Bail application process
This table details the bail application process for drug dealing offences.
Stage Description
1
Application for bail must be made before a Judge of the District Court or High
Court by the defendant’s counsel.
2
O/C Case should have forwarded instructions regarding bail to the prosecutor
(regardless of whether bail is opposed or not, the O/C Case should always
outline the conditions of bail to be sought). This provides the Crown
Prosecutor with a ‘fall-back’ position in the event that bail is granted, in spite
of the Crown's opposition.
3
If bail is to be opposed, full and detailed reasons for opposing bail should be
given. You should also consider providing the prosecutor with affidavits in
support of the grounds for opposing bail.
4
The Judge will then remand the defendant for a case review hearing date or
whatever is considered appropriate.
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Forfeiture
Things liable to forfeiture
These three categories of things are specified in section 32 of the Misuse of Drugs Act
1975 as being liable to forfeiture in particular circumstances:
• all articles in respect of which the offence was committed
• money received by the defendant in the course of or consequent upon the commission
of an offence against section 6
• any motor vehicle, aircraft, ship, boat or other vessel used by the defendant in the
commission of an offence against section 6.
Note: Applications under section 32 are brought on or after conviction. Commissioner of
Police v Jones (1990) 6 CRNZ 608 refers.
Automatic forfeiture
Section 32 of the Misuse of Drugs Act 1975, provides for automatic forfeiture, upon
conviction, of any article in respect of which any drug offence was committed. The court
has no jurisdiction to order the return of any such article to the convicted person.
Under section 32 the Minister of Health may direct the sale, destruction or other disposal
of any forfeited articles, and has issued these directions:
• Drugs must be disposed of as per Police instructions.
• Drug users' paraphernalia must be destroyed by Police following prosecution.
• Valuable goods, not being paraphernalia, must be sold by auction and the proceeds
paid into the Crown consolidated account.
Where articles must be ‘otherwise disposed of’ the authority of the Minister of Health
must be obtained by way of a report to NDIB. The report must contain this information:
• a complete description of the article
• value (if known)
• purpose or use of article
• time, date and place of seizure
• details of persons charged
• details of the charges
• details of the result of the prosecution
• any relevant court orders
• details of owner or other persons with any property or interest in the article
• details of the intended method of disposal.
ESR must automatically destroy exhibits after a two year period unless a specific request
is made for them to be held for a longer period.
Money found in the possession of the suspect
On the conviction of any person for an offence against section 6 of the Misuse of Drugs
Act, the District Court Judge is satisfied that money found in the possession of that
person was received by that person in the course of or consequent upon the commission
of that offence, or was in the possession of that person for the purpose of facilitating the
commission of an offence against the section the District Court Judge may in addition to
any other penalty imposed order that money to be forfeited to the Crown.
Vehicles, aircraft, ship or any other vessels
The court may also order forfeiture of any vehicles, aircraft, ship or any other vessels
used in committing the offence if owned by the convicted person, or in which they had
an interest unless the court considers this unjust.
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If an order for forfeiture is made provisions of the Sentencing Act will apply so far as
they are applicable.
Forfeiture under the Criminal Proceeds (Recovery) Act 2009
There are two types of forfeiture under the Criminal Proceeds (Recovery) Act 2009.
Instruments used to commit an offence
The first applies to instruments, i.e., property used to commit the relevant offence. This
sort of forfeiture requires a conviction for an offence which has a maximum penalty of at
least five years imprisonment.
Application for an instrument forfeiture is made by a Prosecutor, either Police or Crown.
Proceeds of significant criminal activity
The second type of forfeiture applies to proceeds of significant criminal activity. This
forfeiture is sought by way of civil proceedings, where the standard of proof is the
balance of probabilities. A conviction for the relevant criminal activity is not required,
and neither is it a bar to the proceedings that there has been an acquittal or the
quashing of a conviction.
Note: This type of forfeiture can apply to assets and profits.
An application for a civil forfeiture order is made by the Commissioner of Police to the
High Court under sections 43 and 44 Criminal Proceeds (Recovery) Act 2009.
Only staff with the authority delegated by the Commissioner of Police (Asset Recovery
Unit staff) can make applications for civil forfeiture orders.
Assets forfeiture
An order may be made in respect of assets acquired by, or profits of, significant criminal
activity, defined in section 6. An assets forfeiture order may be made if the Court is
satisfied on the balance of probabilities that specific property, as defined in section 5, is
tainted property under section 50. That means the property has, wholly or in part, been
acquired as a result of significant criminal activity, or directly or indirectly derived from
significant criminal activity.
It is not necessary that an owner of the property be identifiable, but a respondent or
interested person must be specified if known. Property may be excluded from the order
if the respondent can persuade the Court that undue hardship is reasonably likely to be
caused to the respondent. In addition, a third party may apply for relief under section
61.
Profit forfeiture
It is necessary that an application for a profit forfeiture order specifies the respondent
and describes the relevant significant criminal activity. While the Court must be satisfied
on the balance of probabilities that the respondent has interests in property, a profit
forfeiture order may be made without any connection between that property and the
relevant offending. A profit forfeiture order must specify what property is to be disposed
of to satisfy the order. Section 55 requires the Court to be satisfied that the respondent
has unlawfully benefited from significant criminal activity (defined in section 7) within
the relevant period of criminal activity.
The relevant period of criminal activity is defined in section 5, as the seven years before
the application for the restraining order (if relevant), or for the forfeiture order.
There is a presumption, rebuttable on the balance of probabilities, that the value of the
respondent's benefit is that which is stated in the application. This presumption arises
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once the Commissioner proves on the balance of probabilities that the respondent has
unlawfully benefited from significant criminal activity in the relevant period. The Court
must determine the amount of such benefit in accordance with section 54. This includes
a requirement that the value of any property forfeited in respect of the same criminal
activity be deducted. Property may also be excluded from the order if undue hardship is
likely to be caused to the respondent (section 56 refers).
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Part 10 - Drug investigations
This part of the ‘Drugs’ chapter contains the following topics:
Initial action at the scene
Searching procedures
Raids
Exhibits and evidence
International inquiries
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Initial action at the scene
Initial action
Follow these steps, when you receive information about a drug offence (not necessarily
in order).
Step Action
1
Interview the informant and obtain all relevant details. If the information you
receive concerns large quantities of hard drugs, notify the CIB and, in large
centres, the Drug Squad.
2
Carry out criminal history and intelligence checks on the people and addresses
identified. Find out as much as you can about them.
3
If applicable, and if time permits, obtain a search warrant under section 6 of
the Search and Surveillance Act 2012. You must state the offence that has
been committed, or that you suspect of having been committed, on the
application.
4
If you need to search a person, property or vehicle without warrant,
remember your obligations under the Misuse of Drugs Act. If you are not a
specialist in drug law enforcement, do not, except in the most urgent
circumstances, search without either a warrant or the authority of a
supervisor on duty.
Remember: You will be required to prove that an immediate search was both
necessary and justified.
At the scene
Follow these steps at the scene (not necessarily in order).
Step Action
1
Be careful when approaching suspects. Note their position and ensure that
they do not have the opportunity to dispose of the drugs by, for example,
burning or swallowing them, flushing them down the toilet, or throwing them
away. Ensure that their hands are open, and check them.
2
Separate the suspects as soon as possible and take each one to a secure,
cleared area. Interview them, remembering your obligations under the New
Zealand Bill of Rights Act 1990.
3
Watch the suspects closely. If you have a colleague, one can watch while the
other searches. If possible, detain the suspects’ associates.
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Searching procedures
Refer to:
• Part 4 - General searches in respect of drugs.
• Part 5 - Internal searches in respect of drugs.
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Raids
Raid procedures
Follow these steps if you carry out a raid.
Step Action
1
Where possible, take time to prepare the raid and research the suspects and
addresses as thoroughly as you can. Appoint officers to search and interview.
Make every effort to reconnoitre the property if you can do so without alerting
the suspect.
2
Ensure that you have:
• adequate human and other resources, including an exhibit kit and
equipment to effect entry
• up-to-date intelligence
• a search warrant, if time allows
• a plan of entry that includes method and timing
• applied TENR.
3
Brief staff on their tasks and the associated requirements.
4
The element of surprise is important. If you have to make an unannounced,
forced entry:
• put staff safety first
• avoid damage to property, if possible, and report any damage to your
supervisor before going off duty (Police may be liable for repair or
replacement if you find no evidence of an offence)
• check that the door is locked before using force to gain entry.
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Exhibits and evidence
Exhibits handling
Follow these steps when handling exhibits.
Step Action
1
Do not taste the drug or allow powder or liquid drugs to come into contact
with the skin. Wear surgical gloves.
2
Ensure that the drugs are handled and stored properly. If they are not, their
chemical make-up may be altered. You should:
• wrap cannabis plant material in paper or put it in an envelope, especially if
it is damp or fresh - do not use plastic bags
• place liquids in sterile glass containers - do not use plastic as it may
corrode.
3
Seal any instruments in appropriate containers to prevent cross-
contamination.
4
Take care when handling needles and syringes. Needles are not often required
for forensic analysis but when they are, consult the ESR before forwarding
them. Use plastic containers.
5
Preserve fingerprints. Do not use plastic to package items carrying
fingerprints.
Handling unidentified prescription drugs
Follow these steps.
Step Action
1
Take any unidentified prescription drug to a pharmacy, urgent dispensary or
local hospital. Alternatively, look it up in New Ethicals Compendium, which
carries pictures of common pills for comparison, or New Ethicals Tablet and
Capsule Guide, both published by Adis International Limited.
2
Once the substance is identified:
• look up the A - Z of prescription medicines, listed in the Schedule 1 of the
Medicines Regulations 1984, to see if it is a restricted medicine
• check the schedules to the Misuse of Drugs Act 1975 to see if it is a
controlled drug.
3
If you are still in doubt about the identity of the substance, take it to the ESR
for analysis.
Evidence
Follow these steps in dealing with evidence.
Step Action
1
Consider having the exhibits:
• analysed - however, check with the defence before any hearing; the
substance may not be in dispute
• fingerprinted
• photographed
• examined by a document examiner.
2
If a single exhibit has to undergo all of these processes, you must obtain
advice from the specialists on the order to be followed. Ensure that exhibits
intended for analysis are correctly labelled and placed in the ‘standard drugs
envelope’.
3
Follow Police Manual instructions and local orders on the storage and custody
of controlled drugs and other exhibits. They must not be held in places other
than those authorised. The officer who seizes the exhibits must be the only
person to handle and secure them until they can be forwarded to the ESR.
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4
Every time you seize drugs, forward details to the National Drug Intelligence
Bureau. Use the Drugs Search and Seizure form (accessed through the Create
Notification feature in the Outlook Board) to fulfil this requirement.
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International inquiries
All international drug inquiries should be directed to NIC Drug Targeting Team and not
dealt with by the constable either via the internet or by telephoning the foreign law
enforcement agency directly. Any other matters requiring overseas inquiries should be
directed to the New Zealand Interpol Office at PNHQ.
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Document Outline