Electronic Operations

Question 1

Surveillance includes…

Answer 1

– Observing, and any recording of that observation, of people, vehicles, places and things

• ascertaining the location of a person or thing, and/or ascertaining whether a thing has been tampered with
• incepting a private communication through the use of a surveillance device

Question 2

Surveillance device

Answer 2

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

– An interception Device (assist you to hear and/or record)

– A tracking device (assists you to locate a person or ascertain whether anything has been handled)

– A visual surveillance device (assists you to observe and/or record)

Question 3

Visual surveillance device

Answer 3

(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 sub normal version of the user to no better than normal vision

Question 4

Trespass surveillance

Answer 4

Surveillance will be unlawful if it involves Trespass, that is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by surveillance device warrant.

Where trespass surveillance is involved, legislation restricts the use of a visual surveillance device or interception device to obtain evidential material for serious offences only

Question 5

Serious offence is relation to trespass Surveillance is…

Answer 5

A serious offence in relation to trespass surveillance is an offence punishable by 7 years imprisonment or more (or against certain sections of the arms act)

Question 6

Tracking device

Answer 6

(a) means a device that maybe use to help ascertain, by Electronic or other means, either or both of the following:
(i) The location of a person or thing
(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 7

Interception device

Answer 7

(a) means any electronic, mechanical, electromagnet, 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 8

Electronic operations in relation to a Drug dealing offence

Answer 8

In relation to drug dealing (any of the offences against s6 MODA75), Electronic operations can only be conducted for offences against Section 6 of the Misuse of Drugs Act 1975 which involves class A or class B controlled drugs.

Question 9

Activities for which a surveillance device warrant is required

Answer 9

Section 46, search and surveillance act 2012

(1) except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any one 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 anything 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 purpose 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 10

Activities that do not require A warrant

Answer 10

Section 47, search and surveillance act 2012

(subsections likely to be relevant)

(a) The enforcement officer –
(i) been 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 any surveillance device
(b) covert audio recording of a voluntary oral communication between two or more persons made with the consent of at least one of them
(d) 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 use of interception devices

Answer 11

The search and surveillance act restricts the use of an interception device, to intercept a private communication, whether or not that communication occurs in private or non-private premises, to obtaining evidence material for serious offences only

Question 12

Situations of emergency

Answer 12

The search and surveillance act authorises police to use a surveillance device without warrant in certain emergency situations listed in section 48 of the act.

If any of the emergency situations exist, you must consider whether you would be entitled to make an application for a surveillance device warrant as the situation as one of serious criminal activity BUT obtaining a warrant within the time in which it is proposed to undertake surveillance is impractical in the circumstances

Question 13

Situations under Section 48

Answer 13

– Reasonable grounds to suspect that:

(2) (a) - an offence punishable by a term of imprisonment of 14 years or more has been, is being, or is about to be committed
(2) (c) – any one or more of the circumstances set out in section 18(2) exist
(2) (d) – a category 3 or 4 offence in relation the Arms Act or an offence against the Arms Act 1983 has been committed, is being committed, Or is about to be committed
(2) (e) – 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 the MODA 1975, or to a precursor substance specified or described in part 3 of schedule 4 of that act
(2) (f) - a person is in possession of any one or more of things described in section 81(2)(a) to (d)

– AND reasonable grounds to believe that use of the surveillance device would obtain evidential material relation to the offence

(2)(b)
– reasonable grounds to suspect that any one or more of the circumstances set out in section 14(2) exist; and

– AND reasonable grounds to believe that use of the surveillance device is necessary to prevent the offending from being committed all continuing, or to avert the emergency

Question 14

Use of surveillance device in situations of emergency time period

Answer 14

48 hours

Question 15

Admissibility of evidential material relevant to other offences

Answer 15

Section 57 of the Search and Surveillance act 2013 states that if in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device, evidential material is obtained of an offence that is not the offence for which the warrant was issued, may, nevertheless, be admissible

Question 16

Criteria for issuing a surveillance device warrant

Answer 16

Section 51, search and surveillance act 2012

(a) there are reasonable grounds –
(i) to suspect 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 purposes of obtaining evidence about the suspected offence; and
(ii) To believe 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 17

Protection of CHIS identity and information

- s64 Evidence Act 2006

Answer 17

Section 64 of the evidence act 2006 grants privilege to informant that protect their identity and extends to information that is likely to disclose that identity

Question 18

Informer

Answer 18

An informer is a person who

• has supplied, gratuitously or for reward, information to an enforcement agency or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances that the person has a reasonable expectation that his or her identity will not be disclosed, AND is not called as a witness by prosecution to give evidence relating to that information
• a member of the police working under cover

Question 19

Application for a surveillance warrant

Answer 19

Section 49, search and surveillance act 2012 states application must be made by a constable or an enforcement officer and must contain:

S49(1)
– The name of the applicant

– the provision authorising the making of an application for a search warrant in respect of the suspect offence

– The grounds on which the application is made

– The suspected offence in relation to which the surveillance device warrant is sort

– The type of surveillance device to be used

– The name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance

– A description of the evidential material believed to be able to be obtained by the use of the surveillance device

– The period for which the warrant is sort

S49(2)
If the enforcement officer cannot provide all the information in relation to the subject of the surveillance or the evidential material to be obtained, must instead state the circumstances in which the surveillance is proposed to be undertaken in enough detail to identify the parameters of, and the object that is to be achieved by the proposed use of the surveillance device

49(3)
– Details of any other applications for search warrants or surveillance device made within the previous three months in respect to the objects of the surveillance

• The results of those applications

49(4)
– Must make reasonable enquiries within the agency that the person is employed or engaged to ensure compliance with 49(3)

Question 20

Reporting requirements

Answer 20

Section 59 of the Search and Surveillance Act sets out the requirements on the person who carries out the activities authorise by a surveillance device warrant to provide a written report to the issuing judge, or a judge of the same court if that judge is unable to act, within one month after the expiry of the period for which the warrant is in force

Question 21

Judges response to reporting requirements

Answer 21

Includes Giving directions on the destruction or retention of the material obtained as a result of the surveillance and reporting on any breaches of the conditions of the warrant’s issue of any applicable statutory provision to the Chief Executive of the relevant agency

Question 22

Retention of surveillance data

Answer 22

Section 63 of the Search and Surveillance act States that:

– the raw surveillance data may be retained until the conclusion of criminal proceedings in relation to the offence, including the appeal proceedings or any period for bringing an appeal

– A maximum of 3 years if no criminal proceedings have commenced for the offence of data is collected but the data is required for ongoing investigation

– If a judge is satisfied that the data is required for the ongoing investigation the judge may make an order granting a maximum extension of two years if the agency applies for the order before the initial 3 year period expires

Question 23

Disposal of surveillance data

Answer 23

Section 64 of the Search and Surveillance Act states law enforcement agency must ensure that any raw surveillance data, excerpts from raw surveillance data, and information obtained from it that is not itself raw surveillance data, and that is not retained in accordance with section 63 or as part of a court record, is deleted or erased

Question 24

Disclosures of interceptions

Answer 24

The defendant is entitled to disclosure of all interceptions involving themselves (subject to grounds for withholding). This includes all interceptions, regardless of whether they are deemed a relevant, non-relevant or inadmissible from a prosecution perspective

Question 25

Grounds for withholding interceptions

Answer 25

One or a combination of the following grounds:

– 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 the information is likely to prejudice the security or defence of New Zealand

Question 26

Surveillance device warrant duration

Answer 26

Warrants are granted for a specific period of time up to 60 days. The judge may issue further Surveillance device warrants in respect of the same suspected offence

Question 27

O/C Phones responsibility

Answer 27

Key Activities for O/C phones In the first 24 hours :

– trapping or pre-loading phone data as a course of business to maximise the opportunity to recover vital messages

– Telecommunications service provider liaison; establish an effective working relationship with the TSP. Find one person at TSP to deal with the inquiry, ownership is critical

– Draft a production order application early. Outlines the backbone of the enquiry and will form the basis of all future production orders and potentially search warrant applications. Update as the enquiry progresses and include the result of previously executed production orders and/or search warrants

– In situations of emergency obtain information from TSP on public interest grounds – no search warrant required

– Liaise with an Analysis who is requested and used as a consultant to assist in formats in the raw data and into spreadsheets. It is the role of the OC phones to be fully conversant with the evidential relevance of the call data

– Proving phone ownership

Question 28

Visual trespass surveillance

Answer 28

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

Question 29

Private communication

Answer 29

(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 be taken to indicate that any party to the communication desires it to be confined to the parties of 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 30

Evidential material

Answer 30

In relation to an offence or suspected offence, means evidence of the offence, and any other item, tangible or intangible, of relevance to the investigation of the offence