Interception 2 Flashcards
Explain Section 64 (2) Evidence Act about informers (who is an informer)
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 and has a reasonable expectation that their identity will not be disclosed
(and is not called as a witness by Prosecution)
Can an informer be a Police member?
Yes, if they are working undercover
When would a judge override excluding the identity of an informant? R v Hallett
When they conclude it is necessary to override and admit the evidence in order to prevent the miscarriage of justice
What was found in R v Rankine?
It is public interest that nothing should be done to discourage public from coming forward to Police. The reasons why the informer is not identified is equal to why the ID of the owner of the premise used for surveillance not being identified
Who would argue for informant information to be disclosed and whose decision is it whether this is done?
The onus is on the accused to prove that there is good reason for disclosing the information
The Court has ultimate discretion
When MUST the privilege under Section 64 of the Evidence Act be disallowed? (2 reasons)
When 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.
When the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence
Form and content. The Surveillance Device Warrant MUST contain:
- Be in the prescribed form
- 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 condition as to providing a SDW report
- Contain condition as to privilege
- Name of Judge
- List type of surveillance device
What are the reporting requirements regarding an SDW?
Provide a written report to the issuing Judge within 1 month after the expiry of the period
What instructions may the Judge give after receiving the report following an SDW?
- Giving directions on the destruction or retention of the material obtained
- Reporting on any breach of conditions of the warrant issue to chief executive
Do you need to provide the SDW report to a Judge if you only used a surveillance device in a situation of emergency?
Yes
Explain Section 63 and 64 regarding retention of raw data and disposal
Section 63 - prescribes length of time surveillance data can be retained. Can apply to the Court for an order extending the period which raw data is retained.
Section 64 - Ensure any raw data that is not retained as part of. court document is deleted.
Who can apply for an SDW?
An enforcement officer
Who can carry out a SDW?
- Any persons whom it is directed
- Any assistant who is called upon by a person specified
who, at all times is authorised by the warrant, remains under the supervision of a person specified
