#8587 - Checklist Formatted On Standard Warrants - Litigation - Criminal Procedure Rules

For normal warrants

1. Was a (NORMAL) warrant applied for a certain offence?

   1. There is a power to apply for search warrants under s 47:

      1. A police officer

   2. Must be a searchable offence under s 46A(1): (a) means any of the following

      1. an indictable offence

      2. a firearms or prohibited weapons offence : s 46(1)(a)(ii)

      3. narcotics offence : s 46(1)(a)(iii)

      4. a child pornography offence

      5. an offence involving a thing being stolen or otherwise unlawfully obtained: s 46A(1)(a)(v)

2. Who was the applicant and were they allowed to apply?

   1. For standard search warrants an police officer who has a prescribed state of mind (reasonable grounds to believe certain circumstances exist) see s 47(1) is an eligible applicant

   2. When applying for a standard search warrant applicant must have reasonable grounds to believe there is (or within 72 hours will be) in or on the premises a thing connected with a searchable offence ( s 47(1) and (2))

3. WAS THE CORRECT FORM USED? WITH OATH/AFFDAVIT

   1. The application for a warrant must be made in writing on a prescribed form. The application must also be made on oath or affidavit before the ‘eligible issuing officer’ by the applicant in person

      1. Note s 63(1) A person must not, in or in connection with an application for a warrant, give information to an eligible issuing officer that the person knows to be false or misleading in a material particular. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

4. ELIGIBLE ISSUING OFFICER?

   1. Eligible issuing officers for (standard) search warrants are Magistrates, Registrars of the Local Court and authorized employees of the Attorney General’s Department. LEPRA ss 46 and 3.

5. What the eligible issuing officer must do under s 62(1): S 62(1) of LEPRA requires the eligible issuing officer to check that certain specified details are contained in the application for all search warrants (Standard as well as covert search warrants) and not to issue the warrant if these details are not specified.

   1. the name of the applicant and details of the authority of the applicant to make the application for the warrant: s 62(1)(a)

   2. particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved: s 62(1)(b)

   3. the address or other description of the subject premises: s 62(1)(c)

   4. if the warrant is required to search for a particular thing--a full description of that thing and, if known, its location: s 62(1)(d)

   5. if the warrant is required to search for a kind of thing--a description of the kind of thing: s 62(1)(e)

   6. if a previous application for the same warrant was refused--details of the refusal and any additional information required by section 64: s 62(1)(f)

   7. any other information required by the regulations: s 62(1)(g)

6. What task the eligible issuing officer: One of the most important tasks an eligible officer has is to determine whether there are reasonable grounds to issue the search warrant. The eligible issuing officer does not have to hold the relevant belief or suspicion held by the applicant but must be satisfied that there are in fact reasonable grounds to support the applicant’s relevant state of mind.

   1. S 62(3) and s 62(4) (see below) contain specific considerations that should be taken into account.

   2. s 62 information in, and consideration of, application for warrant (3)

(3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters:

(a) the reliability of the information on which the application is based, including the nature of the source of the information,

• (b) if the warrant is required to search for a thing in relation to an alleged offence--whether there is sufficient connection between the thing sought and the offence.

• s 62 (4) information in and consideration of application for warrant

  • (4) In addition, an eligible issuing officer, when determining whether there are reasonable grounds to issue a covert search warrant, is to consider the following matters:

  • (a) the extent to which it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises,

  • (b) the nature and gravity of the searchable offence in respect of which the application is made,

  • (c) the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the searchable offence is likely to be affected if the warrant is issued,

  • (d) whether any conditions should be imposed by the eligible issuing officer in relation to the execution of the warrant,

  • (e) if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises:

  • (i) whether this is reasonably necessary in order to enable access to the subject premises, or

  • (ii) whether this is reasonably necessary in order to avoid compromising the investigation of the searchable offence or other offence.

Keeping records

• An eligible issuing officeahahr must keep a record of all relevant particulars of the grounds relied on to justify the issue of a search warrant (s 65(1)) and for the refusal of a search warrant ( s 65(1A)

• This introduces for the first time grounds for refusing a warrant it is suggestive of a concern to make eligible issuing officers accountable through ostensibly it may also be of assistance…