Electronic Operations Flashcards
Define Drug Dealing Offence
A drug dealing offence is any offence against S6 MODA 75 which involves Class A or B drugs.
Define Evidential Material
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
Define 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
Define 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
Define 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
Define Surveillance Device
Means a device that is any 1 or more of the following kinds of devices:
(a) an interception device:
(b) a tracking device:
(c) a visual surveillance device
Define Tracking Device
(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
Activities for which a SDW is Required
(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.
Activities that do Not require a SDW
(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
Alternative Investigation Techniques
Case Law
R v Mcginty
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.
Admissibility of evidential material relevant to other offences
(1) Subsection (2) applies if, in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence—
(a) that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
(b) in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used.
Criteria for issuing SDW
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.
Protection of CHIS Identity and Information
Legislation
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.
Protection of CHIS Identity and Information
Case Law
R v McGinty
R v McGinty
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.
Reporting Requirements
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.
