S&S act 2012 Flashcards
When applying for a Production Order what 2 matters should you consider relating to the provider of information sought?
The information sought should not make unreasonable or unnecessary demands on a provider of information, whom the order is against. Stipulate a reasonable delivery period (not less than a week)
Privilege Definition ?
Recognised privileged material includes material gained through communication with. Give Examples?
What must you do?
Privilege allows the holders of particular information to refuse to disclose this information. This information is recognised as ‘privileged’ under the Search and Surveillance Act.
No privilege applies if the information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.
Recognised privileged material includes material gained through communication with: • legal advisers • ministers of religion • medical practitioners • clinical psychologists • informers (informants) • journalist
Must
You must:
• ensure that the person or their representative is present when the search is undertaken.
• give the person a reasonable opportunity to claim privilege.
As soon as practicable after being given the opportunity that person must provide you with a list of the things (such as documents) which they claim are privileged.
CADD means – Describe + Example
When deciding if you should use a warrantless power, amongst other things you should consider if there is a possibility that evidential material will be subject to CADD. • Concealed • Altered • Damaged • Destroyed
You must be able to explain your RGTB that the evidential material you are searching for will be subject to CADD.
Examples of CADD are:
Concealed
By burying or hiding items in another place or removing items
Altered
By changing or removing serial numbers from stolen property in an attempt to disguise it
Damaged
By cutting out the firewall of a stolen car to remove an identifying feature
Destroyed
By consuming food, alcohol or drugs, burning clothing
O/C Search Party – Primary concern is
The safety of staff executing a search warrant (and of any other people who may be present at the target) is a primary concern.
Define + example of RGTS
Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.
Example:
You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.
Define + example of RGTB
RGTB
Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.
Example:
You enter and search a house or vehicle or search a person because you believe that a search will find the evidential material you are looking for.
What is an interception device ?
Interception device definition ?
Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either –
• when it is taking place, or
• while it is in transit
Definition: 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; 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.
What is surveillance device?
Visual surveillance device definition ?
A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.
A surveillance device may be any one or more of the following kinds of device.
• a visual surveillance device
• an interception device
• a tracking device
Definition: Visual surveillance device –
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is 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.
Tracking device definition
Definition: 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.
Section 117 – learn it inside out
If a search warrant application is about to be made or has been made and you are waiting to hear if it has been authorised, and you have RGTB that evidential material may be CADD or removed before the search warrant can be issued, you may:
- enter and secure a place, vehicle or other thing, and
- secure any item found there, and
- direct any person to assist with entry and securing the place or vehicle or securing items in it.
Another situation where this special power could be used is if you arrive at the target address for the search warrant and realise that the address is incorrect, such as a flat or unit number. You could then enter and secure the address until the search warrant has been amended.
Remember that section 117 authorises the securing of the address until a search warrant is obtained. It is not a search power.
The powers conferred by section 117(1) may be exercised until the first of the following occurs:
(a) the expiry of 6 hours from when the power is first exercised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.
Section 123 – learn it inside out (and an example)
You may seize any item you find in plain view when you are searching or that you observe if:
• You have RGTB that you could have seized the item under a search warrant or other search power.
Example:
You are searching for a person under Section 8 and look inside a wardrobe for that person. You find a bag of cannabis. As the bag is in ‘plain view’ you may seize it under section 123.
Example:
You attend a family violence incident and while in the lounge talking with the couple involved, you see a distinctive item of clothing which you have RGTB was stolen in a recent burglary. As you are lawfully at the address and the clothing was in ‘plain view’ you can seize it under section 123.
Example:
You are searching a house for methamphetamine and find several new iPhones in plain view. You query the serial numbers of the iPhones which reveals that they are stolen.
You can seize the iPhones if you have RGTB that the items could have been seized under a search warrant or other search power
Who may execute a search warrant?
Search Warrant – how long is it valid for?
When can a search warrant be executed?
How often can a search warrant be executed?
Who may execute a search warrant?
The person to whom it is directed or any constable.
How long is a search warrant valid?
No more than 14 days from the date of issue, as specified by the Issuing Officer, or
No more than 30 days from the date of issue, as specified by the Issuing Officer, if you have justified why this is necessary and the Issuing Officer is satisfied.
When can a search warrant be executed?
• at any time that is reasonable under the circumstances, or
• at a restricted time required by the Issuing Officer as a condition of execution.
How often can a search warrant be executed?
• once, unless
• more than one execution is applied for, justified and authorised in the search warrant. You must detail the reason for the multiple entries
SW – when is it deemed executed, question on can you return if you missed drugs at the address and did not seize any at the time (30 mins after leaving).
When is a search warrant considered executed?
When you (or anyone assisting you):
have seized the evidential material specified in the search warrant, or
leave the place, vehicle or other thing to be searched and do not return within 4 hours.
When is surveillance unlawful?
Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant.
(Exceptions apply in situations of emergency or urgency S48 ).
( S 47) some activities that do not require warrant under this sub part
What is a voluntary oral communication?
Give an example
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 (section 47).
There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.
Example:
An offender admits to his role in a drug ring and agrees to allow police to record his telephone conversation with the ringleader to gather evidential material.
Example:
A CHIS agrees to wear a device that will record his telephone conversation with a gang leader who is under investigation for a series of armed robberies.
When can you use Hearsay evidence, when can it be used (multi-choice) = “when highly reliable”?
Hearsay evidence can be used to outline the grounds on which the application is made, if it is highly reliable. Indicate its reliability by stating:
- sufficient information to prove the reliability of what has been stated
- the informant’s reliability and whether they have given reliable information in the past. An appropriate way to say this is: “In the past, Informant A has supplied Police with information that has proved to be reliable.”
- whether the information has been confirmed by other means
Private communication
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.
Note that any person can reasonably expect their communication to be private
when it occurs in circumstances where they have the right to expect it will not
be intercepted or recorded.
Where reasonable expectations of privacy are interfered with or intruded upon
by the use of an interception device, a surveillance device warrant is required.
What must you tell a person before a consent search
Before conducting a search by consent, you must advise the person from whom consent is sought:
• of the reason for the proposed search; and
• they may consent or refuse to consent to the search
What do you do if they withdraw their consent
Note: a person who consents to a search of themselves, place, vehicle or thing in their control may withdraw their consent at any time. If this occurs, stop the search immediately, unless you can invoke a warrantless search power to continue the search
Additional powers under 110
Each search power authorises you to use additional powers when searching a place, vehicle or other thing with or without a warrant.
Section 110 authorises you to:
• enter and search the place, vehicle or other thing, that you are authorised to enter and search
• search any item or items found in that place, vehicle or thing (if reasonable)
• use reasonable force in respect of any property for the purpose of carrying out the search and lawful seizure
• seize anything that is the subject of the search or anything else that may be lawfully seized
• request assistance with entry and search
• bring and use any equipment found on the place, vehicle or other thing
• bring and use a trained law enforcement dog and its handler
• copy any document, or part of a document, that may be lawfully seized
• access a computer system or other data storage device
• copy intangible material e.g. computer data
• take photographs, sound and video recordings and drawings
What is trespass surveillance
Surveillance that involves trespass onto land or trespass to goods.
Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.
For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.
Multi choice on 131 RAIN
Obligation Identification:
When searching a place, vehicle or other thing, you must comply with the obligations set out under section 131.
Your obligations cover identification, intention, reason and notice requirements whereby before initial entry you must:
• identify yourself by name or by unique identifier (QID)
• announce your intention to enter and search
• state the name of the Act
• give notice by providing a copy of the search warrant
• Remember that when you have detained a person for the purpose of a search you must caution them (Bill of Rights).
