Electronic Operations

Question 1

What is a drug dealing offence?

Answer 1

Any offence against S6 MODA75 which involves Class A, B or C controlled drugs, and includes certain offences identified under the Psychoactive Substances Act 2013.

Question 2

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

Private Communication

Answer 3

Private Communication:

(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

Interception Device

Answer 4

Interception device -

(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

Visual Surveillance Device

Answer 5

Visual surveillance device -

(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

Visual trespass surveillance

Answer 6

Is not defined in the Act but can be taken to mean: trespass surveillance involving the use of a visual surveillance device.

Question 7

Surveillance Device

Answer 7

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

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

Question 8

Tracking Device

Answer 8

(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 9

Describe how the Search and Surveillance Act sets out the law in relation to Police surveillance.

Answer 9

• Observing, and any recording of that observation, of people, vehicles, places and things;
• Ascertaining (tracking) the location of a thing or person, and/or ascertaining whether a thing has been tampered with; or
• Intercepting a private communication through the use of a surveillance device.

Question 10

Describe how a surveillance device enables surveillance to be carried out.

Answer 10

A surveillance device assists and enhances your normal capabilities to carry out the surveillance:

• A visual surveillance device assists you to observe and/or record;
• An interception device assists you to hear and/or record;
• A tracking device assists you to locate a person or thing or ascertain whether anything has been handled.

Question 11

Where does the Search and Surveillance Act restrict activity?

Answer 11

In places that an individual “ought reasonably to expect” are private.

Question 12

Activities for which a SDW is Required

Answer 12

S46 Search and Surveillance Act 2012

(1) Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(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 SDW

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
(d) activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.

Question 14

Under what circumstances can you undertake trespass surveillance using a visual surveillance device?

Answer 14

To obtain evidential material for serious offences only:

• Offences punishable by 7 years imprisonment or more
• Certain Arms Act offences
• Identified Psychoactive Substances Act 2013 offences

Question 15

What constitutes unlawful surveillance?

Answer 15

Surveillance that involves a trespass - unauthorised entry onto private land or unauthorised handling of goods - unless authorised by a surveillance device warrant.

Question 16

What is a voluntary oral communication?

Answer 16

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

Question 17

What is the exception to the requirement to obtain a SDW for the use of an interception device?

Answer 17

When consent is obtained by at least one of the parties to covertly record a voluntary oral communication made between that person and others involved in the communication.

Question 18

List the situations of emergency that you are authorised to use a SD without a SDW.

Answer 18

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

Question 19

What is the specific provision relating to drug offences in situations of emergency?

Answer 19

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 MODA 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 SD would obtain EM in relation to the offence.”

Question 20

R v Mcginty (1983)

(Regarding approval of SDWs)

Answer 20

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 21

What is the gist of McGinty?

Answer 21

A Judge is not required to refuse to issue a warrant merely because Police have not exhausted every conceivable alternative investigation technique.

Question 22

What does S57 state about EM obtained as a result of a SDW in relation to an offence that is not an offence for which the warrant was issued?

Answer 22

That it may nevertheless be admissable.

Question 23

Conditions for issuing a SDW (S51)

Answer 23

S51 Search and Surveillance Act 2012

(a) there are reasonable grounds—
(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 24

What section of the Evidence Act grants privilege to informers?

Answer 24

Section 64 - This protects their identity and extends to information that is likely to disclose that identity.

Question 25

What case law references not having to disclose the identity of CHIS?

Answer 25

R v McGinty (1983)

“Disclosure of the identity of the 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 the informants. However, the trial Judge was entitled to insist on disclosure if he saw fit.”

Question 26

Protection of CHIS Identity and Information

Legislation

Answer 26

S64 Evidence Act 2006

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 27

Apart from McGinty, what other case law is there around CHIS protection?

Answer 27

R v Hallett: “If the Judge concludes that the lack of information as to the identity of the informer is going to cause a miscarriage of justice, he is under a duty to admit the evidence.”

R v Rankine: “It is in the public interest that nothing should be done to discourage members of the public from coming forward to provide information to the Police.”

R v McFarlane: The onus is on the accused to satisfy the Court that good reason exists for disclosing the information. In this case, the exact location of the devices was not a critical part of the evidence in the Crown case.

Question 28

Under what circumstances would a judge disallow privilege under S64 of the Evidence Act?

Answer 28

Where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence.

Question 29

Under ss(2) of S55 of SSA, what other conditions may an approving Judge specify regarding a SDW application?

Answer 29

• The name of issuing Judge and date;
• The type of surveillance device the use of which the warrant authorises;
• The EM relating to the suspected offence that may be obtained by the use of the SD;
• The enforcement officer may use any assistance that is reasonable in the circumstances.

Question 30

What does a SDW allow with regards to an interception device?

Answer 30

It authorises you to intercept private communications by means of an interception device (46(1)(a) SSA2012).

Question 31

Reporting Requirements (S59)

Answer 31

S59 Search and Surveillance Act 2012

(1) A person who carries out the activities authorised by a surveillance device warrant 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.
(2) The surveillance device warrant report must contain the following information:
(a) whether carrying out the activities authorised by the surveillance device warrant resulted in obtaining evidential material.
(b) whether or not the evidential material obtained as a result of carrying out the activities authorised by the warrant was evidential material specified in the warrant in accordance with section 55(3)(e).

(c) the circumstances in which the surveillance device was used.

(d) whether any criminal proceedings have been brought or are under consideration as a result of evidential material obtained under the warrant.
(e) any other information stated in the warrant as being required for inclusion in the surveillance device warrant report.

Question 32

What actions may a Judge take in respect of S61?

(S61 - Actions on receipt of surveillance device warrant report)

Answer 32

• Giving directions on the destruction or retention of the material obtained as a result of the surveillance.
• Reporting on any breach of the conditions of the warrant’s issue

Question 33

Section 55 outlines the form that a SDW application should be in and what the contents should contain. Outline four points of that form and content.

Answer 33

It must:

• Be in the prescribed form, if any; and
• Be directed to every enforcement officer who has authority to carry out the activities authorised by the SDW;
• Specify a period of up to 60 days for which the warrant may be in force;
• Contain a condition as to providing a SDW report.

Question 34

What is consensual interception?

Answer 34

Where one of the parties to the communication has previously consented to the interception taking place.

Question 35

What does R v Stack have to say about consensual interception?

(Detectives stacking up around the corner while the victim calls her offender on the phone)

Answer 35

Where a party to the communication knows an interception is taking place, this is no longer a ‘private communication’ and is therefore not covered by the terms of an interception warrant.

Question 36

Who must make a SDW application?

Answer 36

An enforcement officer as defined in the SSA.

Question 37

Who may carry out a SDW? (S56)

Answer 37

(a) Any or all of the persons to whom it is directed.
(b) Any assistant-
(i) who is called upon by a person specified in paragraph (a) to help him or her to carry out the activities, and
(ii) who, at all times that he or she is carrying out activities authorised by the warrant, remains under the supervision of a person specified in paragraph (a).

Question 38

List some grounds under which disclosure of interceptions may be withheld.

Answer 38

• Information which is likely to prejudice the maintenance of law, including the prevention, investigation, and detection of offences.
• Disclosure of the information is likely to endanger the safety of any person or people
• Disclosure of information is likely to prejudice the security or defence of New Zealand
• Disclosure of personal and private information.

Question 39

What is relevancy?

Answer 39

It is defined in the Criminal Disclosure Act 2008 as:

“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 40

Considerations in an Electronic Operation

Answer 40

• Logistical support
• Analysis of evidence
• CHIS protection
• Implications of disclosure and legal grounds for withholding

Question 41

OC Telco

First 24 Hours

Answer 41

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

Question 42

What are the restrictions on the use of an interception device?

Answer 42

It is restricted to serious offences only:

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

Question 43

How can Police protect the identity of CHIS?

Answer 43

Use their registered code number. If the application is subsequently disclosed, the informer’s anonymity will be protected.

Question 44

List four further particulars that the SDW application must contain.

Answer 44

• Name of issuing Judge and date
• The type of SD the use of which the warrant authorises
• The EM relating to the suspected offence that may be obtained by the use of the SD.
• The enforcement officer may use any assistance that is reasonable in the circumstances.

Question 45

R v Stack - voluntary oral communication

Answer 45

Where a party to the communication knows that an interception is taking place, this is no longer a ‘private communication’ and is therefore not covered by the terms of an interception warrant.

Question 46

List some offences for which consensual interception can be an effective investigative tool.

Answer 46

• Homicide
• Kidnapping and blackmail
• Historical complaints of sexual assault.

Question 47

Who may carry out a SDW?

Answer 47

S56 - a SDW may be carried out by -

(a) Any or all of the persons to whom it is directed

(b) Any assistant -
(i) who is called upon by a person specified in paragraph (a) to help him or her to carry out the activities, and
(ii) who, at all times that he or she is carrying out activities authorised by the warrant, remains under the supervision of a person specified in paragraph (a).

Question 48

What is one of the first appointments in any major enquiry?

Answer 48

Telephone investigator.

Question 49

What are two cell phone number identifiers?

Answer 49

The SIM (System Identification Module) card or the IMEI (International Mobile Equipment Identification) number aka the hand piece.

Question 50

How are Police able to prove phone ownership?

Answer 50

By positively linking a cellular phone number, IMEI or other call associated data (CAD) relevant information to a person for a particular period.

Question 51

Who is responsible for ensuring irrelevant information gained by intercepting private communications is destroyed as soon as possible?

Answer 51

The Commissioner of Police.