Surveillance

Question 1

What is a surveillance device

Answer 1

A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance

May be any of the following:
a visual surveillance device
An interception device
A tracking device

Question 2

What is a visual surveillance device?

Answer 2

Visual surveillance device
Means any electronic mechanical electromagnetic optical or electro-optical instrument Apparatus or equipment or other device that is used to observe to observe and record a private activity but

Does not include spectacles contact lenses or a similar device used to correct subnormal version of the user to know better than normal vision

Question 3

Activities for which surveillance device warrant required

Answer 3

Observation of private activity in a private premises and any recording of that observation by means of a visual surveillance device

Exceptions
Situations of emergency or urgency
Activities that do not require a warrant

Question 4

Private land and goods

Answer 4

Where surveillance with a surveillance device is concerned, the search and surveillance act restrict surveillance activity in places an individual ought reasonably to expect are private

Those places include land and any private premises on that land and goods

Goods generally means chattels and include vehicles and other tangible belongings

Question 5

Private premises

Answer 5

Private premises means a private dwelling marae and any other premise that are not within the definition of non private premises

Question 6

Non private premises

Answer 6

Non private premises means premises or part of a premise to which members of the public are frequently permitted to have access and includes any part of a hospital bus station Railway airport or shop

Question 7

Private activity

Answer 7

The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity as private if it is carried out and private premises

Ought reasonably to expect must be an objective test

Question 8

Private communication

Answer 8

Means:
A communication, whether oral or written or 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 does not include a communication of that kind occurring and 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

Question 9

Trespass surveillance

Answer 9

Trespass surveillance means surveillance that involves trespass onto land or trespass to goods

Occurs the moment and enforcement officer steps onto private property without consent

Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences 7 years or more imprisonment

Question 10

Curtilage

Answer 10

Means the land immediately surrounding a house or dwelling including any closely associated buildings and structures but excludes any associated open fields beyond.

It defines the boundary within which a homeowner can have a reasonable expectation of privacy and where common daily activities take place

Activities that do not require a warrant cover the use of visual surveillance device within the curtilage of private property but usage is restricted to time limitations

Question 11

Curtilage limitations s46

Answer 11

Activities for which surveillance device warrant required:
S46(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 that observation for the purposes of a single investigation or a connected series of Investigation exceeds
i- 3 hours in any total 24hr period or
ii - 8 hours in total

A visual surveillance device may be lawfully used without warrant together evidential material for a serious offence if it’s usage does not exceed the established time limits

Question 12

Interception

Answer 12

Interception in relation to a private communication includes hearing listening to recording monitoring inquiring or receiving the communication either

When it is taking place or
While it is in transit

Question 13

Interception device

Answer 13

Interception device means
Any electronic mechanical electromagnetic Optical or electro-optical instrument Apparatus for other device that is used or capable of being used to intercept or record a private communication but

Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing

Question 14

Limitations of interception device

Answer 14

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for
Offences punishable by 7+ years imprisonment
Identified arms act 1983 offences
Identified psychoactive substances act 2013 offences

Question 15

Voluntary oral communication

Answer 15

A voluntary oral communication is a communication between one or more persons we’re at least one party in the communication gives their consent for the communication to be recorded.
There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication

Question 16

Tracking device

Answer 16

Means
A device that may be used to help ascertain by electronic or other means either or both of the following:
The location of a thing or a person
Whether a thing has been opened or tampered with or in some other way dealt with but

Does not include a vehicle or other means of transport

A surveillance device warrant meet authorise the use of a tracking device to obtain evidential material for the investigation of any offence punishable by imprisonment

Question 17

Activities for which surveillance device warrant required- tracking device

Answer 17

Use of a tracking device except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been open tampered with or in some other way dealt with and the installation of the device does not involve trespass to land or goods

Question 18

S48 emergency situations

Answer 18

A surveillance device warrant need not be obtained for use of surveillance devices in some situations of emergency or urgency

2 key ingredients
Entitled to apply - When you would be entitled to apply for a surveillance device warrant as the situation is one of serious criminal activity

Impractical in the circumstances - you need to use a device urgently as it is not immediately practical to obtain a surveillance device warrant

Surveillance without warrant and situations of emergency or urgency is permitted only where the above ingredients apply and the suspected offence has been is being or is about to be committed and is:
Punishable by 14+ years imprisonment
You believe surveillance device would obtain evidential material in relation to:
- arms act offence
- or by reason of physical or mental condition is incapable of proper control of the arms or may kill or cause body injury to any person
- a protection order or pso is in place or grounds for PO application
A drug offence or
There is a situation which is:
likely to cause injury or serious property loss or 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 s14

Question 19

Time constraints on s48

Answer 19

The warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding 48 hours

An application for a surveillance device warrant must still be made if this surveillance might continue be on the period within which it is practical to obtain a warrant

Approval to use an interception device in an emergency situation should be obtained from a detective inspector unless:
The immediacy of the situation does not allow for prior planning and approval from a detective inspector in consultation with legal services
Statutory criteria is met
An opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time

Question 20

Requirement to report s48 urgent situations

Answer 20

When a warrant list surveillance power is exercised the enforcement officer must provide a notification to a judge within one month after the date of the last day of any period of 48 hours or less over which the surveillance device was used

Question 21

Time surveillance device warrant may be issued

Answer 21

A surveillance device warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued and is enforced for that period