Salient. Victoria University Student Newspaper. Vol. 37, No 21. August 28, 1974
Usually even a search warrant does not give a power of personal search. This subclause therefore makes a severe encroachment on the sanctity of the person, a concept that has traditionally been rigorously upheld by the common law.
NZUSA also recommends that upon being executed, all search warrants (including those issued for drugs) be returned to a Magistrate endorsed with a statement of the results obtained. This would mean that the Magistrate could check whether they were being issued responsibly or not. Generally the Police have little difficulty obtaining search warrants and frequently get them from JPs. At present there appears to be no system of checking after a search has taken place whether there were in fact reasonable grounds for the issue of the warrant.
"NZUSA is very concerned at the manner in which the police sometimes go about apprehending drug offenders, especially in their use of paid informers and undercover policemen.
"The Waikato University Students' Association has reported to NZUSA on the use of paid police informers on campus.
"A particular case which occured in 1971, concerned a raid one morning on a Hamilton flat. The flat and the occupants were searched but nothing was found. The police left the flat at midday. In one man's change pocket were four tablets of Alert Tabs which the Policemen did not find. The man told his flatmates of that at 1pm just before they left for the University. He stayed home. While at University his flatmates described the raid and mentioned the oversight of the Alert Tabs.
"At 3.15pm the Police returned to the flat, asked the student to go outside, went straight to the pocket and took the tablets for testing."
Police use of entrapment procedures in supply cases is a matter for greater concern. One such case illustrates vividly the objectionable nature of these procedures.
"A 20 year old girl came from a small provincial town to live in one of the main centres. By nature she was chronically lonely. In the main centre, an undercover policeman befriended her. He saw her regularly, over a period of two or three months. The undercover policeman expressed his interest in drugs and pressed her to get him some marijuana.
"The girl had come to be emotionally dependent on the undercover policeman, and he made his requests in this context. She resisted the requests but he persisted Finally, in order to stop the repeated requests she bought an ounce of marijuana and supplied it to him at no profit to herself.
"Following this, the undercover policeman kept on at her for about another six weeks to supply more marijuana to him. Indeed he put her under considerable pressure, but nonetheless she refused to supply him with any more.
"Shortly afterwards she was arrested and charged with supplying. The girl said she had supplied for her "friend" under pressure. She would not have done so otherwise.
"Notwithstanding that, the Magistrate's Court sentenced her to six months gaol. This was reduced in the Supreme Court to a $500 fine and two years probation.
"NZUSA objects strongly to the situation of a police agent encouraging a supply that would not otherwise have been made with a conviction resulting because of it, and urges that this Bill be amended to provide members of the public with some protection against this kind of Police practice."
The sort of protection suggested is contained in a section of the submissions contributed by Robert Moodie, a former Inspector of Police, and now a barrister and solicitor and a lecturer in law at Victoria University. It deals with the corroboration ("confirmation") of police spy evidence.
Generally the evidence of an accomplice ("a partner, usually a subordinate in crime") must be corroborated. Police spies are exempted from this corroboration rule on the grounds that the public interest is said to demand that their uncorroborated evidence be accepted; that they are said to have nothing to gain, so their evidence can be accepted as reliable, and that they are said not to be accomplices in a true sense.
Moodie raises objections to this justification of uncorroborated evidence in which he criticises the tendency of police spies to fabricate or exaggerate evidence. He contends that the public interest would be better served if evidence had to be corroborated, to protect both police and the alleged offender against possible injustice. Also a police undercover agent can be under an implicit obligation to maintain his reputation. Therefore he has something to gain from the proceedings. Because of this obligation and because he is party to a criminal transaction (though not liable to prosecution) it is difficult to assess the extent to which he encouraged a sale to himself.
Police officers repeatedly involved in undercover work should be treated as accomplices. A successful sale to such an officer is often the result of protracted liaisons having as its only objective a sale. It is difficult to understand in such cases the logic that leads to the conclusion that this activity does not constitute abetting or conniving at the commission of a criminal offence.
For these reasons Moodie recommends that the Drug Bill be amended in two ways. That no person be convicted on uncorroborated evidence of another person who has connived at or encouraged the supply or offer of supply of a controlled drug to himself And that the words "connived or encouraged" shall include the supply of a controlled drug to an agent provocateur.
In its submissions, NZUSA clearly defines its policy on drugs in general.
"We would make it clear that we do not encourage the increased use of these drugs. At the same time, however, we do not condemn the use of such drugs, because we recognise that with the present state of our society their use is inevitable. For instance, people who have no way of controlling their society will often seek chemical outlets for their frustration, regardless of what the law says.
"We believe, therefore, that an individual should have control over what he administers to his own body, provided there are no significant consequences for other people. Those who wish to limit the individual's freedom must bear a very strong onus of proof to show good cause why the individual's personal activities should be curtailed or prohibited. This is particularly the cause when heavy punishments are proposed against an individual for undertaking a particular kind of activity A test that must always be applied is whether the potential for harm to society of an individual's use of particular drugs is sufficient to warrant the use of penal sanctions."
For these reasons NZUSA criticises the harshness of the penalties imposed on drug users under the Narcotics Act and the new Drugs Bill; and the symptoms of such excessive penalties revealed in the harassment described above. NZUSA is particularly disturbed by the rejection in the Bill of a number of the more progressive recommendations of the Blake-Palmer report on drugs. A report which is widely regarded as moderate, if not conservative.
The harsh punitive approach of the Bill (with penalties, more severe than the Narcotics Act) is deplored.
Like the Blake—Palmer report, the submissions recommend that a definition of supply be made which distinguishes between an individual who shares a joint with a friend and a person who sells more dangerous drugs for profit.
NZUSA urges that penalties for possession or use of controlled drugs be reduced and that a term of imprisonment be imposed for possession or use only if the circumstances are exceptional. Jail sentences for possession or use of such drugs are often harmful. Because the offender is stigmatised, and forced to associate with truly criminal elements. A more humane attitude should be shown towards individuals addicted to-any drug. They should be regarded as sick people in need of treatment. The stigma of criminality can interfere with rehabilitation.
NZUSA requests a reduction of penalties for dealing in controlled drugs (which are raised by the new Bill) and further calls for a complete review of all penalties provided under the Bill.
Although the submissions reveal a predominantly moderate, rather than radical attitude to drugs by NZUSA, their attitude to cannabis is carefully thought out and realistic.
NZUSA feels that possession of the drug for private or personal use should be legalised. Supplying cannabis to another individual, providing it is for that individual's private or personal use, and there is no material gain for the supplier, should also be legalised'
The submissions recommend that individuals over 18 be allowed to cultivate a limited quantity of marijuana for their own use. Any sales of the drug would be controlled exclusively by a state agency.
Marijuana and its use are compared to alcohol NZUSA finds it hypocritical for society to treat marijuana, alcohol and tobacco and the respective people who use them, as differently as they have done in the past and as proposed in the new Bill. The submissions suggest that the basic difference between alcohol and marijuana is that while alcohol is socially acceptable (to those who make the laws) marijuana is not. The injustice is illustrated by the law allowing individuals to brew beer or more wine for their own consumption, but awarding up to seven year's imprisonment under the new Bill for the cultivation of a cannabis plant.
The Blake-Palmer report claimed that one non-pharmacological reason for treating cannabis and alcohol differently stemmed from its social context: "Marijuana is not only a drug it is also a symbol".
NZUSA, however points out that "alcohol is not only a drug either. It is part of the fabric myth which swathes New Zealand consciousness. This it does not only by providing a readily available means of sedation and escape, and not only by blunting the individual's critical appraisal of society. Alcohol is a multi-faced mediator in our culture. It provides definitions of, and means of colloquially assessing, concepts such as maturity, manliness, femininity, sophistication, affability, hospitality, social standing, good living and life-style.
"Advertising ruthlessly fosters and exploits these concepts, with few and ineffective restrictions imposed by the Government to hinder them. Brand names of alcoholic drinks are still subtly advertised on radio in spite of a supposed ban; and retail outlets of alcohol are openly promoted on the same medium. A brewery strives to establish brand allegience among teenagers by peddling a soft drug known as hop beer."
NZUSA also points out that many of the old myths about the "dangers" of marijuana have been shattered. The Blake-Palmer Report, for instance, had stated that "the belief that cannabis users inevitably progress to 'hard' drugs like heroin has been...thoroughly exploded"; that "few of those who take cannabis become heavy users of even that drug" and that "the once widespread belief that cannabis users are liable to commit violent or aggressive acts has not been supported by careful studies of various types; the users are indeed more apt to act "cool" than tough"."
Further the submissions contend that the use of marijuana is an established social phenomenon in New Zealand. The drug's use has extended to school pupils, not as a result of "pushing" but the inevitable adoption, of a drug widely used in society.
The use of the drug, though generally confined to the young, now extends into the mainstream of society.
The criminalisation of cannabis use has been ineffective, failing to prevent usage, and counter-productive. It has contributed to the disrespect for the law and the police, especially among the young. This has been exaggerated by the tactless and excessive behaviour of individual members of the police force — harassment of drug users and suspected drug users for non-drug offences. The credibility of government agencies has also been undermined by the false and exaggerated claims that have been frequently made by these agencies about Cannabis. For example the Customs Department booklet "Narcotics — you can help us beat the Drug Traffic" speaks about "marijuana addicts".
Marijuana "addicts" are presumably included in the ringing affirmation at the end of the booklet: "A person involved in the illegal drug traffic is unworthy of any consideration, sympathy or loyalty."
NZUSA recommends that a separate Cannabis Bill be introduced to regulate the production, supply and use of Cannabis.
The association of cannabis with dangerous substances (in the Drug Bill) is inappropriate. It merely perpetuates the widespread confusion and misinformation about the real, relatively innocuous nature of the drug.
Legalisation of cannabis as NZUSA says "would enable it to be separated off from other serious social problems [unclear: concainning] the 'hard' drugs and would encourage more responsible attitudes towards them."