Electronic Operations

Question 1

Definition of private communication

Answer 1

means a communication (oral, written, 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

does not include communication that in the circumstances any party to the communication ought to reasonably expect that the communication may be intercepted

Question 2

Definition of an interception device

Answer 2

means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or capable of being used to intercept or record a private communication

does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hering

Question 3

Definition of a visual surveillance device

Answer 3

means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or capable of being used to observe, or observe and record, a private activity

but does not include spectacles, contact lenses, or a similar device that correct sub normal vision of the user to no better the normal vision

Question 4

Definition of visual trespass surveillance

Answer 4

not defined in the act but but can be taken to mean trespass surveillance involving the use of a visual surveillance device

Question 5

Definition of a surveillance device:

Answer 5

1. an interception device
2. a tracking device
3. a visual surveillance device

Question 6

Definition of a tracking device:

Answer 6

a device that may be used to help ascertain, by electronic or other means, either or both of the following:

a. the location of a thing or person
b. whether a thing has been opened, tampered with, or in some other way dealt with

does not include a vehicle of other means of transport

Question 7

When a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in what kinds of places?

Answer 7

in places an individual “ought to reasonably expect” are private

Question 8

What is the offence threshold for trespass surveillance when using a surveillance device?

Answer 8

for offences punishable by 7 ears imprisonment or more (or against certain sections of the Arms Act)

Question 9

Section 46 of S&S Act?

Activities for which a surveillance device warrant is required:

Answer 9

a) using a interception device to intercept private communication
b) use of a tracking device
c) observation of private activity on private premises
d) use of a surveillance device that involves trespass to land and/or goods
e) observation of a private activity in the curtilage of a private premise, and any recording of that observation, if the observation or recording exceeds the curtilage threshold

Question 10

Section 47 of the S &S Act 2012?

Activities that do not require a warrant.

Answer 10

a) an enforcement officer is lawfully in a private premise, is recording what he or she see or hears
b) covert audio of a voluntary oral communication between 2 or more people where at least 1 person has consented
c) activities carried out by the enforcement officers use of a surveillance device, if that use is authorised under any enactment other than this Act

Question 11

Restrictions on the use of an Interception device?

Answer 11

Restricted to obtaining evidential material for serious offences only:

• offences punishable by 7 years imprisonment or more
• certain Arms Act 1983 offences

Question 12

Voluntary oral communication?

Answer 12

A voluntary oral communication is a communication between one or more persons where at least one person in the communication gives their consent for the communication to be recorded. There is no requirement for a surveillance device warrant

Question 13

Situations of emergency?

Answer 13

Section 48 authorises police to use a surveillance device without warrant in certain emergency situations, where the offence is:

• punishable by 14 years or more
• an arms act 1983 offence
• a drug offence
• likely to cause injury or serious property/loss damage
• presenting risk to life and safety

Question 14

Section 48(2)(e) of the Search and Surveillance Act?

Answer 14

is the specific provision relating to drug offences in situation of emergency:

“the enforcement officer has reasonable grounds:

(i) to suspect an offence has, is, will, be committed in relation to a controlled drug (schedule 1,2,3 of MODA75), and;
(ii) to believe that the use of a surveillance device would obtain evidential material in relation to that offence.

Question 15

R v MgGinty

Alternate investigative techniques

Answer 15

the judge is not required to refuse to issue a warrant merely because Police have not exhausted every conceivable alternative investigative technique

Question 16

Section 57 of the Search and Surveillance Act?

Admissibility of evidential material relevant to other offences

Answer 16

evidential material obtained as a result of a surveillance device warrant in relation to an offence that is not the offence for which the warrant was issued may be admissible if a warrant could have been sought for it and could have been lawfully used.

Question 17

What is the criteria for issuing a surveillance device warrant?

Answer 17

RGTS an offence has, is, or will be committed

AND

RGTB that the proposed use of the surveillance device will obtain evidential material for that offence

Question 18

Protection of CHIS identity - relevant legislation, case law, and ruling?

Answer 18

Section 64 of the Evidence Act grants privilege to informers

You are not required by law to name your CHIS

R v McGinty, disclosure if the identity of the alleged informers in not required.

Question 19

What is the exception to the status of being an informer?

Answer 19

The status of being an informer, and the associated privilege, does not apply if the person is called as a witness by the prosecution to give evidence.

Privilege under section 64 of the evidence act must be disallowed by the judge where there is a prima facie case that the information was given for a dishonest purpose, or to enable the commission of an offence

Question 20

Who can apply for a surveillance device warrant and under what section? And who can carry it out?

Answer 20

Section 49 of the S&S Act 2012 states that an application for a surveillance device warrant must be made by an enforcement officer.

Can be carried out by any or all of the persons to whom it is directed, and anyone called upon by those persons to assist.

Question 21

What does section 55 of the Search and Surveillance Act state?

(in regards to form and content of surveillance device warrant?)

Answer 21

Outlines the form the application for a SDW must be in and what is must include:

• must be in the prescribed form
• must be directed to every enforcement officer with authority to carry out the activities described int he warrant
• must specify a period of up to 60 days for which the warrant is in force
• must contain a condition as to providing a SDW report
• must contain a condition as to privilege

Question 22

Reporting requirement of using a SDW?

Answer 22

Section 59 sets out a requirement on the person who carries out the activities authorised in the warrant to provide written report to the issuing judge within 1 month

Question 23

Section 63 and section 64 of the S&S Act?

Answer 23

s63: prescribes the length of time for which surveillance data may be retained
s64: and raw data or information retained that is not kept in accordance with s63 must be erased or deleted.

Question 24

Disclosure of interceptions. What is the defendant entitled to, and what may be withheld?

Answer 24

The defendant is entitled to disclosure of all interceptions involving themselves.

Intercepted communications may be withheld if disclosure is likely to:

• prejudice the maintenance of the law
• endanger the life any of person(s)
• prejudice the security of defence of NZ
• be personal or private information
• be privileged.

Question 25

What is the definition of relevancy as per the Criminal Disclosure Act?

Answer 25

“relevant, in relation to information or an exhibit, means information or an exhibit, that tends to support or rebut, or has a material bearing on the case against the defendant.”

Question 26

How must evidential transcripts be presented?

Answer 26

Evidential transcripts must be a verbatim copy of the recorded version of the conversation.

When resented to the court, will be played in a manner where inadmissible evidence is not disclosed.