Electronic Operations

Question 1

Evidential Material

Answer 1

Evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation

Question 2

Private Communication

Answer 2

a) means a communication made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties communications.

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 3

Interception Device

Answer 3

a) means any electronic, mechanical, electromagnetic, optical or electrooptical instrument, apparatus, equipment or other device used to observe, observe and record, a private activity.

b) does not include a hearing aid or similar device etc

Question 4

Visual Surveillance Device

Answer 4

a) means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device used to observe, observe and record, a private activity.

b) does not include spectacles, contact lenses etc

Question 5

Trespass Surveillance

Answer 5

Involves trespass onto land or trespass to goods. Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.

Where trespass surveillance is involved the legislation restricts the use of a visual surveillance to obtaining evidential material for serious offences only.

Question 6

Tracking Device

Answer 6

A device that may be used to help ascertain by electronic or other means either or both of the following:
- the location of a thing or person
- whether a thing has been opened, tampered with or is some way dealt with.

Tracking devices may only be used with the assistance of specialist squads.

Question 7

Surveillance Device

Answer 7

A device which assists or enhances your normal capabilities to carry out surveillance.
For example:
- a visual surveillance device (observe and record)
- an interception device (hear and record)
- a tracking device (ascertain if something has been handled)

Question 8

Section 45-64 Search & Surveillance Act 2012

Answer 8

Sets out the law in relation to Police ‘surveillance’, includes:
- observing and any recording of that observation of peoples, vehicles, places and things
- ascertaining (tracking) the location of a thing or person, and/or ascertaining whether a thing has been tampered with
- intercepting a private communication through the use of a surveillance device

Question 9

Serious Offences

Answer 9

An offence punishable by 7 years imprisonment

Question 10

*Criteria for SDW

Answer 10

RGTS that an offence has been committed, or is being committed, or will be committed in respect of which this Act and RGTB that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence

Question 11

*Section 46 - Activities for which surveillance device warrant is required

Answer 11

a) use of an interception device to intercept private communications

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 way dealt with, and the installation of the device does not involve trespass to land or goods.

c) observation of private activity in private premises, and any recording of that observation, by means of a visual device

d) use of a surveillance device that involves trespass onto private property.

Question 12

Activities That Do Not Require a Warrant

Answer 12

• enforcement officer lawfully on a property AND recording what they observe of hear there (without the use of a surveillance device).
• voluntary oral communication
• activities carried out by an enforcement officer’s use of a surveillance device if that use is authorised under any enactment other than this Act.

Question 13

Interception Device Limitations

Answer 13

An SDW will only be authorised for use of an interception device for gathering evidential material for:
- offences punishable by 7 or more years imprisonment
- identified Arms Act 1983 offences

Question 14

Voluntary Oral Communication

Answer 14

Communication between one or more persons where at least one party has given their consent for the communication to be recorded. No requirement to obtain SDW to intercept and record a voluntary oral communication.

Question 15

Situations of Emergency or Urgency (Section 48)

Answer 15

Two key ingredients for emergency and urgency:
- Entitled to apply & Impracticable in the circumstances

Above circumstances must apply and suspected offence has, is or will be committed and is:
- punishable by 14 years imprisonment or more
- you believe that the use of SD would obtain evidential material
- is an Arms Act offence
- is a drugs offence
- likely to cause injury or serious property loss/damage and surveillance necessary to prevent offending from being committed or continuing
- presenting risk to life and safety and surveillance is necessary for emergency response

Warrantless period for the use of SD in a situation of emergency or urgency is a period not exceeding 48hours.

Question 16

Section 48(2)(e) - Relating to Drug Offences

Answer 16

• Suspect offence has, is or will be committed in relation to a controlled drug specified in the schedules 1, part 1 of schedule 2, or part 1 of schedule 3 of MODA 1975, or to a precursor of part 3 of schedule 4 AND
• to believe that the use of surveillance device would obtain evidential material in relation to the offence

Question 17

R v McGinty - Issuing of SDW

Answer 17

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 18

Admissibility of Evidential Material Relevant to Other Offences

Answer 18

Evidential material obtained as a result of SDW in relation to an offence that is not the offence for which it was issued, may still be admissible if: in respect to which a SDW could have been issued or a surveillance device could have been lawfully used.

Question 19

Protection of CHIS identity and information

Answer 19

Section 64 of the Evidence Act 2006 grants privilege to informers that protects their identity and extends to information that is likely to disclose that identity.

Question 20

*R v McGinty - Protection of CHIS

Answer 20

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 21

CHIS Protection

Answer 21

The onus is on the accused to satisfy the Court that good reason exists for disclosing the information but the court has ultimate discretion to order disclosure if it is deemed necessary to prevent a miscarriage of justice.

Question 22

Exceptions to CHIS Protection

Answer 22

The status of being an informer, and therefore privilege, does not apply if the person is called as a witness by the prosecution to give evidence relating to the information given. If the informer is an undercover officer, he or she may still have their identity protected by virtue of section 108 and 109 of the Evidence Act 2006.

Question 23

Application for SDW (Section 49)

Answer 23

An application for a surveillance device warrant may be made only by an enforcement officer, and must contain, in reasonable detail, the following particulars:
(a) the name of the applicant:
(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c) the grounds on which the application is made:
(d) the suspected offence in relation to which the surveillance device warrant is sought:
(e) the type of surveillance device to be used:
(f) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(g) a description of the evidential material believed to be able to be obtained by use of the surveillance device:
(h) the period for which the warrant is sought.

Question 24

Form & Content (Section 55)

Answer 24

Every surveillance device warrant must—
(a) be in the prescribed form
(b) be directed to every enforcement officer who has authority to carry out the activities authorised by the surveillance device warrant
(c) specify a period, of no more than 60 days for which it is in force
(d) contain a condition that a surveillance device warrant report must be provided within 1 month after the expiry
(e) contain a condition as to privilege

Question 25

Reporting Requirements (Section 61)

Answer 25

A Judge receiving a surveillance device warrant report may give directions as to the destruction or retention of the material obtained as a result of the surveillance AND if they consider that the surveillance activities carried out were in breach of any of the conditions of the warrant’s issue, report on the breach.

Question 26

Crime Monitoring Centre

Answer 26

The CMC is a service centre for electronic interception for NZ Police.

On a daily basis the CMC provides district investigative teams with an application called ‘4sight UCM’. A software programme containing all lawfully intercepted private communications from operation targets.

Question 27

Disclosure of Interceptions (Section 16 Criminal Disclosure Act 2008)

Answer 27

The defendant is entitled to disclosure of all interceptions (subject to grounds for withholding) involving themselves.

Grounds for withholding are:
- info likely to prejudice the maintain of law
- disclosure would likely endanger the safety of any person
- disclosure would prejudice the security or defence of NZ
- disclosure or personal and private information
- disclosure of privileged information

Question 28

Relevancy Defined (CDA 2008)

Answer 28

Relevant in relation to information or an exhibit means information or an exhibit that tends to support or rebut or has a retrial not he case against the defendant.

Question 29

Evidential Transcripts

Answer 29

Must be a verbatim copy of the recorded version of the conversation.

Barry v R - if it is foreseen that a jury will have difficulty in understanding the tapes produced as number one tapes then, provided the experts qualify themselves and satisfactorily explain the processes followed in enhancement and transcription, the enhanced tapes and transcripts prepared by them may be used as an aid to understanding the private communication.

Question 30

Key Activities the Telephone Investigator Should Undertake in the First 24hrs

Answer 30

• Tracking or loading phone data
• Draft production order application
• proving phone ownership
• TSU liaison