3. Electronic Operations

Question 1

Define the three types of surveillance devices?

Answer 1

S3 Search and Surveillance Act 2012

Means a device that is any 1 or more of the following kinds of devices:

(a) an interception device:
(b) a tracking device:
(c) a visual surveillance device

Question 2

Define ‘Evidential Material’

Answer 2

In relation to any offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence

Question 3

Define ‘Private Communication’

Answer 3

S3 Search and Surveillance Act 2012

(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so

Question 4

Define ‘Interception Device’

Answer 4

S3 Search and Surveillance Act 2012

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing

Question 5

Define ‘Visual Surveillance Device’

Answer 5

S3 Search and Surveillance Act 2012

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision

Question 6

Define ‘Tracking Device’

Answer 6

S3 Search and Surveillance Act 2012

(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or a person:
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but

(b) does not include a vehicle or other means of transport, such as a boat or helicopter

Question 7

Define ‘Trespass surveillance’

Answer 7

Unauthorized entry onto private land or unauthorized handling of goods, unless authorized by a surveillance device warrant.

Question 8

Define ‘Serious Offence’

Answer 8

A serious offence in relation to trespass surveillance is an offence punishable by 7 years imprisonment or more (or against certain sections of the Arms Act).

Question 9

Define ‘Voluntary Oral Communication’

Answer 9

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded.

Note: There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Question 10

Define what a ‘surveillance device’ enables you to do when carrying out surveillance?

Answer 10

It assists** and **enhances your normal capabilities to carry out the surveillance.

Question 11

How long are surveillance device warrants granted for?

Answer 11

Warrants are granted for a specified period of time up to 60 days. The Judge may issue further surveillance device warrants.in respect of the same suspected offence.

Question 12

Activities for which a surveillance device warrant is required (List 4)

Answer 12

S46 Search and Surveillance Act 2012

(a) use of an interception device to intercept a private communication:
(b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
(e) 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 visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds:

(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

Question 13

Activities that do not require a surveillance device warrant

Answer 13

S47 Search and Surveillance Act 2012

(a) the enforcement officer—
(i) being lawfully in private premises; and
(ii) recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device):

(b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them

Question 14

What are the restrictions on using

• An interception device
• A visual surveillance device
• A tracking device

Answer 14

Interception & Visual Surveillance Device = ‘Serious offences only’ + Arms Act offences

Tracking device = ‘Any offence punishable by imprisonment’

Question 15

S48 - Surveillance without warrant in situations of emergency or urgency is permitted only where the offence is:

Answer 15

• punishable by 14 years imprisonment or more
• an Arms Act 1983 offence
• a drug offence
• likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending from being committed or continuing
• presenting risk to life and safety and surveillance is necessary as an emergency response.

Question 16

What are the specific provisions relating to drug offences in situations of emergency powers (s48)

Answer 16

Section 48(2)(e) “the enforcement officer has reasonable grounds—

(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:”

Question 17

S57 Search and Surveillance Act 2012

Admissibility of evidential material relevant to other offences

Answer 17

(1) Subsection (2) applies if, in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence—
(a) that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
(b) in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used.

Question 18

Alternative Investigation Techniques

Case Law

R v Mcginty

Answer 18

R v McGinty

The evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient.

A Judge was not required to refuse a warrant because the Police had not exhausted every conceivable alternative technique of investigation.

Question 19

S51 Search and Surveillance Act 2012

What is the criteria for issuing SDW

Answer 19

(i) RGTS that an offence has been committed, or is being committed, or will be committed in respect of which this Act or any enactment specified in column 2 of the Schedule authorises the enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the suspected offence; and
(ii) RGTB that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence; and
(b) the restrictions in section 45 do not prevent the issuing of a surveillance device warrant in the circumstances.

Question 20

Protection of CHIS Identity and Information

What is the Legislation regarding ‘S64 Evidence Act 2006’

Answer 20

Grants privilege to informers that protects their identity and extends to information that is likely to disclose that identity

You are not required by law to name your CHIS.

Question 21

What was held in ‘R v McGinty’ re Protection of CHIS Identity and Information

Answer 21

‘R v McGinty ‘

Disclosure of the identity of alleged informants was not required under the Act, and the trial Judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants.

However, the trial judge was entitled to insist on disclosure if he saw fit.

Question 22

When must you report on a Surveillance Device Warrant outcome?

Answer 22

S59 Search and Surveillance Act 2012

(1) You must provide a surveillance device warrant report within 1 month after the expiry of the period for which the warrant is in force, as specified in the warrant, to the Judge who issued the warrant

or, if that Judge is unable to act, to a Judge of the same court as the Judge who issued the warrant.

Question 23

Intercepted communications may be relevant by definition but withheld by police on one or a combination of the following grounds:

Answer 23

• disclosure of the information is likely to endanger the safety of any person or people
• disclosure of the information is likely to prejudice the security or defence of New Zealand.
• disclosure of personal and private information
• disclosure of privileged information

Question 24

In electronic operations, you must consider:

Answer 24

− logistical support
− analysis of evidence
− CHIS protection
− implications of disclosure and legal grounds for withholding.

Question 25

If appointed O/C Telco, what are the three things you should be considering in the first 24 hours of the investigation?

Answer 25

• Trap or ‘pre-load’ phone data
• Identify TSP liaison
• Draft a production order application early

Question 26

What is a drug dealing offence

Answer 26

For the purpose of electronic investigations a drug dealing offence is any offence against section 6 of the Misuse of Drugs Act 1975 which involves Class A, B or C controlled drugs, and includes certain offences identified under the Psychoactive Substances Act 2013.