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Drugs

We Asked a Lawyer What Really Happens If You Get Done for Weed in New Zealand

New Zealand police use discretionary powers when it comes to cannabis, which means that initial encounter with the law is a crucial one.
image via Flickr

In 2009, according to police figures, 7638 people were charged with possession of marijuana in New Zealand. By 2015, that figure had reduced by about 50 per cent. Police, according to NORML president Chris Fowlie, are legalising weed by stealth. In 2016, he told Stuff, "Even though Parliament has shown it isn't able to have a sensible discussion… police has brought in its own form of decriminalisation."

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But decriminalisation that relies on the subjectivity of individual police officers is open to abuse—despite the overall reduction of charges, the percentage of Māori, for example, in those same figures has remained at about 36 percent. Bearing all that in mind, VICE asked Jennifer Walsh, senior solicitor at Youth Law, about to what to do if you are caught with weed, what to do if you think you've been subjected to an illegal search, and what the long-term effects of a marijuana possession charge might be.

Image via Wikimedia Commons

VICE: Hey Jennifer, so what happens when you're apprehended and searched?
Jennifer Walsh: Generally the police can search you if you consent, so if they say to you, "Look, may I have a search?" when you're out and about and you consent, then you've consented to it. They can also search you if they have a reasonable belief that you maybe hold a prohibited substance. Obviously that will come down to police officers' judgement as to what is a reasonable belief in terms of suspecting that you might hold that substance. Another instance might be if you've been arrested in respect of any offence and then they're conducting a pat-down search in the course of arresting you then that's another time when the police officer might then discover that you are in possession of, say, cannabis.

What factors might influence the police officer's reasonable belief?
So there's been a little bit of guidance in some of the case law and otherwise, but generally it needs to be a reasonable belief. You may be exhibiting some behaviour which is consistent with being high or—more common, I'd say—the person may be in the course of being arrested for another offence and there may be some violence and then [drugs] are discovered as a part of restraining the person due to violent behaviour.

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Is there scope for discrimination here?
This is where you probably hear a lot about the potential discriminatory grounds. For instance, if you've got someone who has been targeted because of the way that they look or because of their family associations, that is potentially discriminatory. It has to be something that falls within a reasonable belief that's not on grounds that would be discrimination under the Human Rights Act. The other issue is that it can't be an unreasonable search and seizure, so the Bill of Rights Act protects people under section 21 from unreasonable search and seizures. Even if a police officer may have a reasonable belief, if they exercise that power in a way which is over-forceful or in excess of the powers that they should be exercising, that would be a breach of the unreasonable search and seizure protection.

And any evidence they found then would be inadmissible?
Potentially. You'd get into that argument later down the line. The police officer may be in receipt of evidence and they may decide that there is enough evidence to proceed with charging the particular person. But then potentially, once the person had sought legal advice, the lawyer could then get into arguments about whether or not the evidence was obtained properly and therefore duly admissible to be considered in respect of the charge.

"They need to remind you that you have the right to remain silent…that typical American TV stuff that you see all the time."

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At that initial point can you contest the legality of the search?
I always say to people actually getting into an argument with a police officer is never going to be particularly beneficial. But you can always ask on what authority they are relying on to conduct their search and ask them to identify themselves because that's a requirement. You have the right to remain silent. You don't have to say anything at all to them. You have the right to talk to a lawyer in private without delay if it becomes quite clear that they're intending to gather evidence in respect of charging you with an offence. They do need to make sure that they caution you as well. They need to remind you that you have the right to remain silent, you have the right to a lawyer, and that what you say and do can be used against you—that typical American TV stuff that you see all the time.

The police officer has to identify themselves and you should be able to ask for their badge number and identification so you know exactly who the officer is. If there's an issue down the line and you found out the officer used force that was excessive, you can complain and know the badge number of the officer you're complaining about. The police officer needs to inform you you are going to be searched and the reason for the search and they need to cite the right authority for it, so they need to say, "Pursuant to the Misuse of Drugs Act, I am conducting a search," for example. There have been cases where a police officer may have exceeded those protections, and in some cases the evidence has been deemed to have been inappropriately obtained.

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Further on, what penalties are you looking at?
Quite often, and I'm just speaking from experience, in terms of youth law where you've got young people and this is their first offence it would be very rare to face any serious penalties, such as you would face if you were cultivating or supplying. The fines for Class C drugs are at the much smaller end of the scale and it's unlikely that someone would face imprisonment, and quite often with a Class C possession charge, which is a small amount, very often officers would consider diversion. Some of the things a young person might do under the diversion scheme would be to undergo drug counselling or check in with particular rehab centres and undertake education programmes and once they've completed those or done some service then the diversion programme has been completed and the charges will be withdrawn. If you have someone who has had this happen quite a few times, diversion isn't really an option. The absolute maximum penalty of possessing or using [weed] is three months imprisonment, a fine of up to $500, or both. If it's your first offence it's so highly improbable that you'd face jail that it's more like a monetary fine.

"If it's your first offence, asking for diversion is always a really good option because it keeps you out of the criminal justice system."

If you have a possession charge on your record, does that have further consequences?
Yeah, absolutely. I always say, if it's your first offence, asking for diversion is always a really good option because it keeps you out of the criminal justice system. The reality is once you have a criminal conviction it does have flow-on effects. For instance, for visa entry to certain countries you do have to declare any drug-related convictions. Another area it might come up is in terms of insurance or employment prospects. Very often now employers do criminal conviction checks with the New Zealand Police. Once you sign that consent form, you're authorising the employer to contact the police and send through a record of any time you have appeared before the courts. Sometimes when you're trying to get home, contents, or car insurance they may want to know if you've ever had a drug or alcohol conviction. And obviously failure to disclose that is fraudulent conduct. It can mean long-term consequences.

Police discretion is obviously very subjective. Have you seen any evidence that certain groups have been unfairly targeted?
I can only speak from my experience on our advice line. So we have an 0800 advice line that operates nationwide and young people call in from around the country and I'd say a large proportion of the files we deal with, either there's been discretion utilised to not charge the young person, or if there has been [a charge] the young person has a very high chance of getting through the diversion scheme.

As a lawyer, does the scope for abuse that discretionary powers could have worry you?
I think the issue we have is around how we monitor the outcomes in consistency from town to town, city to city, branch to branch to ensure that access to justice is similar in Kaikohe as it would be in Dunedin, and how police officers are utilising that discretion to ensure the best outcomes in terms of preserving their future prospects.

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