Search and Surveillance Act 2012 Flashcards
What is the purpose of the act?
As per section of 5 of the S + S Act 2012:
Account for advancements / regulations in technology.
Ensure investigations and prosectution of offences are handled in a way which alligns with human rights
Ensure investigation tools are adequate and effective
Modernise the laws are search, seizure, surveillance
Monitor compliance of act
Recognise entitlements, rights/rules of other acts.
How do you comply with the act?
Conduct risk assessments when planning to exercise powers and mitigate risk to protect employees and public.
Ensure lawful authority to conduct such activities and exercise powers.
Only seize what Police are lawfully entitled to seize.
Provide appropriate announcements and identification while exercising powers.
Satisfy requirements detailed in the act (notice and inventory)
DEF: RGTB + Eg.
having a sound basis for believing a situation or circumstances exist
Eg: you enter a house because you believe that EM exists in that house.
REF: RGTS + Eg.
having a sound basis for suspecting a situation or circumstances exist.
Eg: Entering a house because you supect an offence has been, will be or is about to be commited.
When you have formed your belief or suspicion you must be able to clearly describe your reasons… You must?
Record your reasonable grounds for using that power in your notebook. (This is your decision decision log)
you may be required to: report your decisions to use a power and your grounds for using it.
Justify your use of a power in court or in other formal proceedings.
What are considered lawful searches
Search warrants.
Warrentless searches.
Consent searches
What are the factors of a reasonable search?
Complies with section 21 of BORs Act
intrusiveness of search.
Nature of the search.
Where and when the search took place.
When considering whether it is practicable to apply for a search warrant, what should you consider?
E/M at risk?
Location of search?
Reasonable resources?
Scene secured (s117)?
Time to gain approval?
Who may be present?
What are your two other options other than a search warrant?
Warrantless search power.
Consent search
Why is a search warrant preferred?
Ensure judicial oversight.
Provides greater protection for Police and Public.
Requires recording and reporting of results.
What are four reasons for conducting a consent search?
Investigate whether an offence has been committed.
Prevent commission of an offence.
Prevent injury or harm.
Protect life or property.
Before conducting a consent search what must you inform that person of?
The reason for the search
That they may refuse or withdraw consent
Concent searching persons under 14 years
Persons under the age of 14 can not give consent to the search of places or vehicles.
However they may consent to a search of a vehicle if they are found to be driving that vehicle with no persons who can give consent
DEF: E/M
Tangible or intangible evidence of the offence or any other item relevant to the offence
DEF: Tangible
A physical thing
DEF: Intangible
A thing which can not be touched and does not have a physical presence.
DEF: CADD
Concealed
Altered
Disposed
Destroyed
S 131 Obligations
Reason you are searching them
Act in which you are searching them under
Intent of search
Name/ QID/ Provide evidence of ID if not in uniform.
Notice- provide a copy of the search warrant.
Detained? BOR’s
Warrentless search obligations
Consider privilege.
Provide copy of search warrant or warrentless search notice. (POL1275) and Provide inventory list. (s169)
Report powers used. (136-147)
What are the exceptions to identification and notice?
RGTB:
Endanger any persons safety
prejuduce on-going investigation
prejuduce success of the entry and sw
What happens if a person refuses entry?
You may use reasonable force to enter if you are refused entry or if they do not allow entry within a reasonable time frame
What happens if there is no one at home where a search might be conducted?
You may use reasonable force to gain entry if you have RGTB no one is lawfully present.
You must leave:
copy of the SW or POL 1275 search notice.
Inventory list
This must be provided within 7 days after the search
S11o authorises you to do what?
1) Access computer systems/ data storage devices.
2) Bring and use equipment to assist in search.
3) Copy any document/ part of document that may be lawfully seized.
4) Copy intangible data.
5) Enter and search a place, vehicle or thing that you are authorised to enter and search
6) Request assistance in search.
7) Search any item / items found in that place, vehicle or thing (if reasonable)
8) Seize anything that is subject to the SW.
9) Take photographs sound and video recordings/drawings.
10) Use reasonable force in respect of property for the purpose of carrying out the search/lawful seizure.
What does 116 allow you to do relating to impeded searches?
Actually impeded or RGTB obstruction, you may:
Exclude that person from the place, vehicle, thing being searched.
Give any reasonable direction to that person.
Secure that place, vehicle or thing to be searched and exclude any person from there.
What does 118 allow you to do?
You may detain people when searching place and vehicle to determine if they have any connection to the place, vehicle, object of search.
What does s 119 allow you to do?
You can search people found when searching places and vehicle if:
RGTB they have EM on them
OR
RGTS They are in possession of a dangerous item and immediate action is needed to address that threat.
What does 120 allow you to do?
When in fresh pursuit.
RGTB person has EM
Enter an address.
Arrest.
Search for EM on them or in vehicle
AWOCA
Ask- ask them to comply
Why- tell them why
Options- give them options
Confirm- Confirm they understand.
Action- Take action
Three special rules for searching people?
Any searches should be conducted with decency and sensitivity and a degree of privacy.
Seize any item that the person is wearing carrying or in their immediate possession if relevant to search. (125 (1)(j))
Seize any item that may be lawfully seized even if it was not the subject of your search (125 (1) (J)
What are your options when detaining persons arriving or leaving your search?
DETAIN- to determine their connection to your search (118)
EXCLUDE- if RGTB they will obstruct or hinder your search (116)
SEARCH- if RGTB they have EM (119)
SEARCH- RGTS they possess a dangerous item which needs to be immediately addressed (119)
What is Privilege?
Allows the holder of particular infomation to refuse to disclose that information
When does privilge not apply?
Imformation with is compiled, prepared or received for a dishonest purpose or to enable someone to commit an offence
Privileged material may be between?
Clinical psycholgists
Informers
Journalists
Legal advisors
Medical professionals
Ministers of religion
Searching privileged material
You must:
ensure a person or their representative is present when the search is undertaken.
Give person a reasonable opportunity to claim privilege
Complete an inventory listing all documents seized and supply a copy to the person present.
Invite the person to check accuracy.
Allow them to make a copy of any documents seized.
What must a person do if they claim privilege?
As soon as practicable:
provide a list of things/documents which they claim privilege over.
What should you do if Privilege is claimed…?
Secure item.
do not continue to exam/search it.
Do not rely on that document for your investigation unless:
Directed by court.
no claim to privilege is made
privilege is withdrawn.
Key steps in search warrant process?
Prior approval
Online approval
issuing officer authorisation
plan and brief
execute sw
report outcomes
fie investigation records
Before applying for a search warrant you must form what two things?
RGTS imprisonable offence has been/ will be /about to be committed
RGTB EM will be located at address/vehicle/on person
What are three options while considering if a SW is practicable?
With a supervisors approval:
Oral search warrant.
by phone or email.
secure scene under 117 for a period no more than 6 hrs.
What is TENR
Threat.
Exposure
Necessity
Response
S 117
Holding a place while waiting for search warrant
Enter a place or vehicle
secure that place, vehicle or things.
direct any person to assist with entry and securing.
while waiting for a sw
Not a search power.
117(1)
Three reasons that 117 expires
Expiry of 6 hr hold period.
Warrant is available for execution
The warrant is rejected
who can issue SW?
Issuing officers:
-Community magistrate.
-Direct court judge.
-Deputy Registrar.
- High court judge.
-Justice of the peace.
-Registrar.
What restrictions may an issuing officer place on SW?
Restrict time of search
Require the occupier to assist officers executing SW
Enter a report on SW outcome
What should you do if an issuing officer refuses SW?
Record their reasons
Redraft SW Application addressing issues.
Re-submit
If you can not address the issue:
Make further enquires to support SWA
Consider conducting investigation W/O SW
Submit report to legal services if reasons are not justified.
Who may execute SW?
To whom it was directed or any constable.
How often can you execute a SW
Once
Unless
more than one execution is applied for and authorized.