Electronic operations Flashcards
Private communication
Means a communication (oral or written or telecommunication) 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 does not include a communication ought reasonably to expect may be intercepted.
Interception device
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.
Visual surveillance device
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.
Tracking device
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 in some other way dealt with.
Section 46
SDW required
- use of an interception device to intercept private communication
- use of a tracking device, except when the tracking 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 require trespass
- observation of private activity in private premises and any recording of that observation by means of a visual surveillance device
- use of a surveillance device that involves trespass to land or trespass to goods
- observation of private activity in the curtilage of private premises and any recording of that observation which exceeds 3 hours in any 24 hour period or 8 hours in total.
Section 47
Does not require a SDW
- lawfully in private premises and recording what they observe or hear (without the use of a SD)
- covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least one of them
Restrictions for interception devices
- offences punishable by 7 or more years imprisonment
- certain Arms Act 1983 offences
Section 51
Conditions for obtaining a SDW
(a) RGTS that an offence has been committed, or is being committed or will be committed in respect of which this Act or any enactment authorises the enforcement officer to apply for a warrant to enter the premises for the purpose of obtaining evidence about the suspected offence and
RGTB that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence
(b) the restrictions in section 45 do not prevent the issuing of a SDW in the circumstances
Section 49
Application for a SDW must be made by an enforcement officer and must contain certain particulars.
Section 55
Form and content of SDW
- be in the prescribed form if any
- be directed to every enforcement officer who has authority to carry out the activities authorised by the SDW
- specify a period up to 60 days
- contain a condition as to providing a SDW report
- contain a condition as to privilege
Section 59
Person who carries out the activities of a SDW must provide a written report to the Judge within 1 month after the expiry period for which the warrant is in force.
Section 61
Actions Judge may take on receipt of a SDW report.
Section 63
Prescribes the length of time for which surveillance data may be retained.
Section 64
Disposal of raw surveillance data, excerpts and information obtained.
Section 56
SDW may be carried out by any or all of the persons to whom it is directed or any assistant.
Evidential transcripts
Must be a verbatim copy of the recorded version of the conversation. However when it is presented to the Court, the recording will be played back in such a manner that extraneous or inadmissible evidence is not disclosed.
Considerations in electronic operations
- logistical support
- analysis of evidence
- CHIS protection
- implications of disclosure and legal grounds for withholding
Four key activities for telephone investigators in first 24 hours
- trapping or pre loading phone data
- TSP liaison
- draft a production order application early
- prove phone ownership/attribution
R v McGinty
A Judge was not required to refuse a warrant because the Police had not exhausted every conceivable alternative technique of investigation.
R v McGinty - CHIS
Disclosure of the identity of alleged informants was not required under the Act, and the trial Judge was correct in deleting certain parts.
