Electronic Operations

Question 1

Define ‘evidential material’ in relation to the Search and Surveillance Act 2012

Answer 1

In relation to an offence or suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation.

Question 2

Define ‘private communication’ in relation to the Search and Surveillance Act 2012

Answer 2

A communication either oral, written, telecommunication, or otherwise made under circumstances that reasonably indicate that any party desires it to be confined to the parties to the communication.

Does not include communications where a party ought to reasonably expect some other person to intercept it.

Question 3

Define ‘interception device’ in relation to the Search and Surveillance Act 2012

Answer 3

Any electronic, mechanical, electro magnetic, optical or electro-optical instrument apparatus, equipment or other device that is used or capable of being used to intercept private communication.

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

Is restricted to obtaining evidence for serious offences.

Question 4

Define ‘visual surveillance device’ in relation to the Search and Surveillance Act 2012

Answer 4

Any electronic, mechanical, electro magnetic, optical or electro-optical instrument apparatus, equipment or other device that is used or capable of being used to observe or observe and record private activity.

Does not include a spectacles, contact lenses or a similar device used to correct subnormal vision to no better than normal vision.

Question 5

Define ‘surveillance device’ in relation to the Search and Surveillance Act 2012

Answer 5

Interception device, or
Tracking device, or
Visual surveillance device

Question 6

Define ‘tracking device’ in relation to the Search and Surveillance Act 2012

Answer 6

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 person.
• Whether a thing has been opened, tampered with, or in some way dealt with.

Does not include a vehicle.

Question 7

Define ‘trespass surveillance’ in relation to the Search and Surveillance Act 2012

Answer 7

Trespass surveillance using a visual surveillance device is restricted to obtaining evidence for serious offences.

A surveillance device warrant will be required.

Question 8

Define ‘serious offence’ in relation to the Search and Surveillance Act 2012

Answer 8

Punishable by more than 7 years imprisonment or against certain sections of the Arms Act 1983 or Psychoactive Substances Act 2013.

Question 9

For what activities is a surveillance device warrant required?

Answer 9

• Use of an interception device
• Use of a tracking device
• Observation of private activity in private premises
• Use of surveillance device that involves trespass to land or goods.
• Observation of private activity in the curtilage of a private premises if use of a surveillance device warrant exceeds 3 hours in a period of 24 hours or 8 hours in total.

Question 10

For what activities is a surveillance device warrant not required?

Answer 10

• Recording observations that could be observed without the use of a surveillance device when lawfully in a private premises.
• Covert audio recording of communication between two or more persons where at least one consents to the recording.
• Activities carried out by an enforcement offer using a surveillance device under any other Act.

Question 11

When can a surveillance device by used without warrant?

Answer 11

• If the offence is punishable by 14 years’ imprisonment or more.
• An Arms Act 1983 offence.
• A drug offence
• Likely to cause injury or serious damage/loss to property and surveillance is required to prevent this.
• Presenting risk to life and safety and surveillance is necessary as emergency response.

Question 12

What were the two important findings in R v McGinty?

Answer 12

1. A judge was not required to refuse a warrant because Police had not exhausted every conceivable alternative technique of investigation.
2. Disclosure of the identity of alleged informants was not required under the Act, and the trial judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants. However, the trial judge was entitled to insist on disclosure if he saw fit.