Electronic Operations

Question 1

Surveillance

Section 45-64 Search and Surveillance Act 2012

Answer 1

The Search and Surveillance Act 2012 sets out the law in relation to Police “surveillance”. Surveillance in this Act includes:
 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 2

What is a surveillance device?

Answer 2

A surveillance device is a visual surveillance device, a tracking device or an interception device. Such a 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.
Where surveillance with a surveillance device is concerned, the Search and Surveillance Act 2012 restricts surveillance activity in places an individual “ought reasonably to expect” are private.

Question 3

What is Trespass surveillance

Answer 3

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

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

Question 4

What is a serious offence?

Answer 4

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).

It also restricts the use of an interception device, whether or not a trespass surveillance occurs, to obtaining evidential material for serious offences only (or against certain sections of the Arms Act).

Question 5

Activities for which a surveillance device warrant is required

Answer 5

If this serious offence threshold is met, you must nevertheless obtain a surveillance device warrant in the following circumstances:

Search and Surveillance Act 2012
Section 46 Activities for which surveillance device warrant required

(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 6

Activities that do not require a warrant

Answer 6

However, there are activities that do not require a warrant under the surveillance provisions of the Search and Surveillance Act 2012. The activities in section 47 likely to be relevant to your role are:

(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 7

What is a Voluntary oral communication?

Answer 7

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded. There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Question 8

Situations of Emergency and use of surveillance devices

Answer 8

The Search and Surveillance Act 2012 authorises the Police to use a surveillance device without warrant in certain emergency situations listed in section 48 of that Act. These situations are listed briefly below but only the provision relating to drugs is dealt with in detail.

Surveillance without warrant in situations of emergency or urgency is permitted only where the offence is:

 punishable by 14 years imprisonment or more
 an Arms Act 1983 offence
 a drug offence (see below)
 likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending from being committed or continuing
 presenting risk to life and safety and surveillance is necessary as an emergency response.

Question 9

Drug related emergency surveillance powers

Answer 9

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 the Misuse of Drugs Act 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 surveillance device would obtain evidential material in relation to the offence:”

Question 10

Admissibility of evidential material relevant to other offences

Answer 10

Section 57 - Admissibility of evidential material relevant to other offences

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.

Question 11

Criteria for issuing surveillance device warrant (s51)

Answer 11

(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 purpose 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 12

Protection of CHIS identity and information

Answer 12

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.

You are not required by law to name your CHIS. Good practice is for you to use their registered code number. If the application is subsequently disclosed, the informer’s anonymity will be protected.

Question 13

Evidence act, section 64

Answer 13

Evidence Act 2006
64 Informers

(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

(2) A person is an informer for the purposes of this section if the person -
(a) 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 in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b) is not called as a witness by the prosecution to give evidence relating to that information.

(3) An informer may be a member of the police working undercover.

Question 14

When should informer privilege be disallowed?

Answer 14

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

The privilege under section 64 must be disallowed by the judge 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. Further, it may be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.

Question 15

Form and content of Surveillance Device Warrant

Answer 15

Section 55 of the Search and Surveillance Act 2012, outlines the form that a surveillance device warrant application should be in and what the contents should contain. This includes that 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 surveillance device warrant;
 specify a period of up to 60 days for which the warrant may be in force;
 contain a condition as to providing a surveillance device warrant report (as per section 59 of the Search and Surveillance Act 2012);
 contain a condition as to privilege.

Question 16

Reporting requirements for a surveillance device warrant

Answer 16

Section 59 of the Search and Surveillance Act 2012 sets out a requirement on the person who carries out the activities authorised 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 1 month after the expiry of the period for which the warrant is in force. The information required to be contained in the report is detailed in section 59(2) of the Search and Surveillance Act 2012.

The actions a Judge may take on receipt of a surveillance device warrant report are detailed in section 61 and include giving directions on the destruction or retention of the material obtained as a result of the surveillance and reporting on any breach of the conditions of the warrant’s issue of any applicable statutory provision to the chief executive of the relevant agency.

A report is also required to be provided to a Judge in relation to the use of a surveillance device in situations of urgency or emergency (as described above) in section 60 and the actions of a Judge in response to this report are detailed in section 62.

Question 17

Disposal of raw surveillance data, excerpts, and information obtained

Answer 17

64 Disposal of raw surveillance data, excerpts, and information obtained

A 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 18

Disclosure of interceptions

Answer 18

Intercepted communications may be relevant by definition but withheld by police on 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.
 disclosure of personal and private information
 disclosure of privileged information
Drug Offences 84

In any event section 16 of the Criminal Disclosure Act 2008, should be used to ensure non-disclosure of irrelevant information or of a kind mentioned above. Before disclosing this material, seek guidance from your supervisor and / or legal section.

Question 19

Cell phone identifiers

Answer 19

The phone number is contained in or on the SIM (System Identification Module) card. The other way of real time tracking and/or interception is by using the IMEI (International Mobile Equipment Identification) otherwise known as the handpiece.

Question 20

‘Trapping’ or ‘pre loading’ phone data

Answer 20

At the telecommunications service provider (TSP). This is a daily continuous process for new numbers. Be alert to cellular telephone numbers as they are identified. It is essential that data is ‘trapped’ at the TSP at the instant a new cellular phone is identified. Do not assume that today’s witness is not tomorrow’s suspect. Get phones ‘trapped’ as a course of business to maximise the opportunity to recover vital messages.