SDWs Flashcards
S 46, S & S Act 2012
Activities for which an SDW is required (5)
(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 purpose of a single investigation, or a connected series of investigation, exceeds:
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total
S 47, S & S Act 2012
Activities that do not require an SDW (3)
(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 one 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.
S 48, S & S Act 2012
Emergencies (5)
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
- 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.
Specific Provisions re Drug Offences
S 48(2)(e), S & S Act 2012
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 in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of MODA 1975, or to a precursor substance specified or described in Part 3 of Schedule 4; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence.
MUST consider whether you would be entitled to get an SDW. Is it impractical to get one in the circumstances?
48 hours MAXIMUM. Police best practice to begin an SDW application after invoking power.
Criteria for Issuing SDW
S 51, S & S Act 2012
(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 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 S 45 do not prevent the issuing of a SDW in the circumstances.
CHIS Protection
S 64, Evidence Act 2006
(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 purpose of this section if he/she…
(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/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 Police working undercover.
Form and Content of SDWs
S 55, S & S Act 2012
Must:
- be in the prescribed form
- be directed to every enforcement officer with authority…
- specify a period of up to 60 days
- contain a condition as to providing a SDW report (S 59)
- contain a condition as to privilege
Also:
- name of Judge and date
- provision authorising the application
- the type of device
- name, address etc of target
- EM to be obtained via the device
- officer may use any assistance reasonable
- provision of call associated data
- provisions as to entry and use of force
Reporting Requirements
S 59, S & S Act 2012.
Provide a written report to issuing judge within one month of expiry.
Required information detailed in S 59 (2) of S & S Act 2012.
Judge gives directions on retention or destruction of material obtained. Reports on any breaches.
Retention and Disposal of Surveillance Data
S 63 - Prescribes the length of time for which data can be retained. Can apply to court for extensions.
S 64 - Disposal of raw data
