Deck Five

Question 1

Trespass and trespass surveillance

Answer 1

• Means – Surveillance that involves trespass on land or goods. - Occurs the moment an enforcement officer steps onto private property without consent. - If you do not have consent to entre onto private property then you are trespassing

Question 2

Restrictions on use of visual surveillance devices

Answer 2

Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences. (7yrs or more) Restrictions on use of interception devices Any warrant application to use an interception device whether or not a trespass surveillance occurs is restricted to obtaining evidential material for serious offences only. (7yrs or more)

Question 3

What is Curtilage?

Answer 3

• Means the land immediately surrounding a house or dwelling. - Includes any closely associated buildings and structures. - Excludes any associated ‘open fields beyond’ - Defines the boundary within which a home owner can expect privacy. - Where common daily activities take place Activities that do not require a warrant cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitations

Question 4

Curtilage – explanation

Answer 4

The curtilage of a dwelling house is the ground between the fence garden hedge or mowed grass border and the dwelling. It can be taken to mean a garden yard or field or other piece of ground or building near to or belonging to a house. The curtilage of a dwelling does not always mean the boundary of the property, although mostly it will. The curtilage of a suburban home is likely to be clearly defined by a fence, while on a farm the curtilage will be a small part of the overall property.

Question 5

Curtilage limitation Sec 46 – Activities for which SDW required

Answer 5

(d) 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 that observation, for the purpose of a single investigation, or a connected serues of injvestigations, exeeds – (i) 3 hours in any total 24 – hour period; or (ii) 8 hours in total

Question 6

Curtilage limitation – example

Answer 6

Constable BROWN receives information a man is growing cannabis in an area behind his house. The information is not substantiated and constable BROWN decided to begin his investigation be viewing the property through his binoculars from a nearby hill to determine if a cannabis plot can be seen on the property.

Question 7

Interception

Answer 7

Interception in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either – - When it is taking place, or - While it is in transit

Question 8

Interception device

Answer 8

(a) Any electronic mechanical apparatus, equipment or other device that is used or is capable of being used to intercept or record private communication; but (b) Does not include a hearing aid ect used to correct normal hearing. Sec 46 – activities for which a SDW required

Question 9

Limitations on use of a interception device

Answer 9

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for: - Offences punishable by 7ys or more imprisonment - Identified arms act 1983 offences - Identified Psychoactive Substances Act 2013 offences

Question 10

Voluntary oral communication

Answer 10

Communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (sec 47). There is no requirement to obtain a SDW to intercept and record a voluntary oral communication. E.G offender admits to his role in drug ring agrees to allow police to record his telephone conversation with ringleader.

Question 11

What is a tracking device?

Answer 11

(a) 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 person (ii) Whether a thing has been opened tampered with or in some way dealt with; but (b) Does not include a vehicle or other means of transport, such as a boat or helicopter. A tracking device is less intrusive to privacy, the use of a TD requires a SDW

Question 12

Tracking device

Answer 12

A SDW may authorise the use of a tracking device to obtain evidence material for the investigation of any punishable offence by imprisonment

Question 13

Specialist support

Answer 13

• Tracking devices can only be used with assistance of specialist squads - Covert surveillance using electronic SD’s must be done by specially trained officers - Specialist trained staff and squads are at a number of centres - Advices about how to request is the surveillance chapter of the manual.

Question 14

Situations of emergency or urgency

Answer 14

A SDW neednot be obtained in some situations of urgency or emergency. Sec 48 acknowledges that in certain situations police may need to act immediately without warrant to use any one or more SD’s.

Question 15

Sec 48 - Two key ingredients

Answer 15

Ingredient – ‘entitled to apply’ Means – you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity Ingredient – ‘impracticable in the circumstances’ Means – you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.

Question 16

Sec – 48 suspected offence must meet the to key ingredients and be:

Answer 16

• Punishable by 14yrs imprisonment or more and - You believe that use of the surveillance device would obtain evidential material in relation to the offence - An arms act 1983 offence o Or a person by reason of their physical or mental condition is incapable of having proper control of the arms; or may kill or cause bodily injury to any person o Or that under the domestic Violence Act 1995 a protection order or a police safety order is in force against the person; o Or there are grounds to make an application against him or her for a protection order - A drug offence; or There is a situation which is: - 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 (sec 14

Question 17

Time constraints Limitations on use of SD without warrant

Answer 17

n emergency situations police must be able to act with immediacy and with adequate tools to be able to fulfil their duties under policing act 2008 - Warrantless period for the use of a surveillance device in a situation of emergence or urgency is a period not exceeding 48 hours.

Question 18

If sec 48 - goes beyond 48hrs

Answer 18

• An application for a surveillance device warrant must still be made if the surveillance might continue beyond the period within which it is practicable to obtain a warrant.

Question 19

Why sec 48

Answer 19

• The warrantless period allows police flexibility to act. - The time restriction that applies before a warrant application must be made ensures proper oversight and reporting is maintained.

Question 20

Approval for a sec 48.

Answer 20

Approval to use an interception device in an emergency situation should be obtained from a detective inspector unless: - The immediacy of the situation does not allow for prior planning and approval from a detective inspector in consultation with legal services; and - Statutory criteria is met; and - An opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time

Question 21

Period of surveillance device warrant is limited

Answer 21

A surveillance device warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for that period. There is no warrant renewal period under the act. To extend the period of 60 days or the lesser period for which the warrant is valid, a new application for a surveillance device warrant will be required.

Question 22

Process for applying for a surveillance device warrant

Answer 22

Refer to the police manual chapter on Surveillance for information on the procedure to be used for gaining approval for the use of a SDW and the process to be is used for applying for a warrant.