Interception Flashcards
What is the key purpose of a surveillance device?
To assist and enhance your normal capabilities to carry out surveillance
Where are surveillance activities restricted?
In places an individual “ought reasonably to expect” are private.
Explain trespass surveillance:
Surveillance will be unlawful if it involves 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 how?
A visual surveillance device to obtain evidential material for serious offences only (and some Arms Act offences)
An interception device to obtain evidential material for serious offences (and some Arms Act offences).
What is classified as a serious offence where trespass surveillance is involved:
Punishable by 7 years imprisonment or more
Section 46 (a)- Activities for which surveillance device warrant required
a) use of an interception device to intercept a private communication
Section 46 (b)- Activities for which surveillance device warrant required
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 the goods
Section 46 (c)- Activities for which surveillance device warrant required
c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device
Section 46 (d)- Activities for which surveillance device warrant required
d) use of a surveillance device that involves trespass to land or goods
Section 46 (e)- Activities for which surveillance device warrant required
e) observation of private activity in the curtilage of private premises, and any recording of that observation, if recording is by visual surveillance, and the duration, for the purposes of a single investigation, or a connected series of investigation exceeds -
i) 3 hours in any 24 hour period
ii) 8 hours in total
Section 47 - Activities that do not require a warrant
a) the enforcement officer
i) being lawfully in private premises and
ii) recording what they observe or hear without the use of a surveillance device
b) covert audio recording of a oral communication between 2 or or persons made with consent of at least 1
d) activities carried out by the enforcement officers use of surveillance device, if that use is authorised under any enactment
What is the one exception to the requirement to obtain a surveillance device warrant for the use of an interception device?
When consent is obtained by at least one of the parties to covertly record a voluntary oral communication made between that person and others
What is a voluntary oral communication?
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.
Surveillance without a warrant in situations of emergency is permitted when the offence is what? (All offences)
- Punishable by 14 years imprisonment or more
- An Arms Act offence
- A drug offence
- Likely to cause injury or serious property loss/damage and surveillance is necessary to prevent it
- Risk to life and safety and surveillance is necessary as an emergency response
SDW: Specific provisions relating to drug offences in situations of emergency
Reasonable grounds:
i) to suspect that an offence has, is or is about to be committed in relation to a controlled drug in Schedule 1 or part 1 of Schedule 2 or 3 or a precursor
ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence
How long can a surveillance device be used in a situation of emergency (without an SDW)?
48 hours
R v McGinty
A judge was not required to refuse a warrant because the Police had not exhausted every conceivable alternative technique of investigation
Explain Section 57 - Admissibility of evidential material relevant to other offences
If in the course of SDW evidential material is obtained in relation to an offence:
a) that is not the offence in respect of which the warrant was issued but
b) in respect of which a SDW could have been issued
2) The evidential material is admissible
Section 51 - Criteria for issuing a SDW
a) Reasonable grounds
i) to suspect that the offence has, is or will be committed in respect of this Act authorises an enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the offence
ii) to believe that the use of a SD will obtain information that is evidential material and
b) restrictions in Section 45 do not prevent the issuing of a SDW
How do you protect CHIS identity and information during an electronic operation? List the Act
Section 64 of the Evidence Act 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.
