#8525 - Checklist Long On Warrants - Litigation - Criminal Procedure Rules

• S 61 for telephone warrants

• George v Rockett – must be strict compliance with statutory conditions

• S 76 – defect in warrant does not automatically invalidate it unless it affects the substance of the warrant in a material particular

  1. Is there a searchable offence? – s 46A(1)(a)

     1. Indictable offence, firearms, prohibited weapons, narcotics, child abuse material, involved stolen or unlawfully obtained goods

  2. Application must be made by a police officer – s 47(1)

  3. S 60(1) – application must be in writing and made by the applicant in person

(2) authorised officer must not issue warrant unless information given by applicant is verified on oath or by affidavit

4. Police officer must have reasonable grounds to believe (higher than suspect – George v Rockett) that there is, or within 72 hours will be, a thing connected with the searchable offence on the premises? – s 47(1)

• George v Rockett

  • Inquiry is at two levels:

    • Must be belief that there is something on the premises

    • Must believe it is connected with a searchable offence

• Where the thing is described broadly and without precision, the more difficult It will be to show reasonable grounds for believing that a thing answering that description will provide evidence of the commission of an offence (George v Rockett; Microwave Safety Systems).

• Thus, the thing must be described with sufficient specificity (George v Rockett)

  • There is no authority to grant general warrants

  • The thing must be identified with sufficient specificity otherwise it will be difficult to prove a belief that the object described (if described broadly) will, if found, afford evidence of the commission of the particular offence

  • ‘bundle of A4 documents’ too broad because it was not clear if it would, if found, contain statements relevant to the commission of the alleged offences

• Warner – warrant invalid for being too broad when it authorised seizure of anything found

• Microwave Safety Systems – so many items listed on the warrant that it was almost general

• A search warrant should describe the offence with reasonable particularity so as to enable the person to know the exact object of the search (Bradrose; Cloran; Tillett)

  • Arno v Forsyth – consider warrant as a whole in its entirety

• Parker v Churchill – incorrect citation does not invalidate warrant

• Mazjoub – specifying object simply by reference to the title of the offence and the relevant section of the Act not necessarily invalid

• Corbett – despite a reference to repealed legislation, the warrant was not invalid because the description of the offence was adequate

• Cloran – a certain section in the Crimes Act was listed but the section contained difference offences – the offence itself should have been described

• Parker – for offences that are alleged of a long period of time, there should be some specificity about when the alleged offences took place (e.g. for conspiracy)

• Mazjoub – the statement that items to be searched for included ‘Crystal Meth (ice), speed, money associated with the sale of prohibited drugs, drug ledgers and things connected with the sale of prohibited drugs’ as things reasonable believed to be connected with the offences of ‘s 10 Drug Misuse and Trafficking Act possession prohibited drug’ and ‘s 25 DMTA supply prohibited drug’ were adequate

  1. S 63 – applicant must not provide false or misleading information

  2. S 66 – warrant to be in approved form

  3. Issuing officer satisfied there are reasonable grounds for issuing the search warrant? – s 48(1)

• S 62(3) – issuing officer, when determining whether reasonable grounds exist, must consider:

  • (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

• George v Rockett – issuing officer need not have belief – but must think belief is reasonable

  1. S 62(1) – issuing officer must not issue a warrant unless the application includes certain information:

     1. Name of applicant and details of authority to make application

     2. Particulars of the grounds of application and nature of searchable offence

     3. Address or other description of subject premises

     4. If the warrant is required to search for a particular thing – full description of that thing and, if known, its location

     5. If the warrant required to search for a kind of thing – description of the kind of thing

     6. If previous application refused, details of refusal and any additional information required by s 64

     7. Any other information required by the regs

• Way Out West – considers description of the subject premises

  • In Gassy (case about ‘Georges River Crescent vs. St Georges Crescent) What was fatal was that those premises could not be reasonably ascertained from the face of the warrant in circumstances where premises at another address altogether were nominated

  • It would have been sufficient if the warrant is capable of enabling police to identify with reasonable certainty the premises to be searched

  • In this particular case, although the unit number was wrong – there was enough description of the premises in the warrant to enable authorising officers to identify the premises subject to the search warrant

  • Minor errors do not invalidate warrant – it is a question of fact and degree

    1. Warrant must not be authorised to be executed at night unless the authorised officer is satisfied that there are reasonable grounds for doing so (s 72(2)), including:

       1. Execution by day unlikely to be successful because thing searched for only appears at night or other circumstances only exist at night

       2. Less risk to the safety of any person if executed at night

       3. Occupier likely to only be on premises at night to allow entry without force

    2. Authorised officer prepared occupier’s notice specifying the name of the person who applied for the warrant, the date and time when the warrant was issued and the address or other description of the premises the subject of the warrant, and a summary of the nature of the warrant and the powers conferred by the warrant (s 67(2)-(3))

• S 64 – Can only make one further application to a Magistrate for the same warrant unless there is additional information

1. Warrant must be executed within 72 hours of being granted unless there was an extension under s 73

2. Must not be executed at night (9pm – 6am) unless the issuing officer has authorised this on the warrant (s 72(1))

3. Must enter the premises authorised to be entered by the warrant (consider Way out West – exact location may not be authorised but description is adequate)

4. The executing officer must serve occupier’s notice on the occupier upon executing the warrant (s 67(4)) (this should be compiled by the issuing officer per s 67(1), (2))

   1. S 67(4) – It must be served on entry or ASAP after entry on an occupier aged 18+

      1. If no such person is available, it must be served within 48 hours

   2. S 67(5) – if not practicable, issuing officer can require steps to be taken to bring it to the attention of the occupier, rather than requiring personal service

   3. Black v Breen – search is unlawful without the occupier’s notice

   4. Ballis v Randall – also highlights the importance on occupier’s notice being served

5. An announcement must be made before entry that the executing officer is authorised to enter (s 68(a))

   1. The occupier must be given the opportunity to allow entry (s 68(b))

      1. The announcement is not required if the executing officer believes on reasonable grounds that immediate entry is required to ensure safety of any person or to ensure effective execution of the warrant (s 68(2))

6. Must be compliance with s 201 – at time of executing warrant, or ASARP after (s 201(2))

   • They must provide evidence that they are a police officer (unless uniformed) (s 201(1)(a)

   • Must provide name and place of duty (s 201(1)(b))

   • Must provide reason for exercise of power (s 201(1)(c))

     • Christie – precise language need not be used

     • Johnstone – citizen must be told details sufficient to inform the person of the ‘true reason’ for the exercise of power unless it is self-evident or the accused makes it practically impossible to be informed

       • What is required will depend on the circumstances

       • Must not be equivocal

7. Must exercise reasonable force (ss 230 and 231)

8. Executing officer only authorised to enter premises to search for things connected with a particular searchable offence in relation to the warrant (s 47A(1)(b))

9. Executing officer can seize things mentioned in the warrant (s 49(1)(a))

   1. Can also seize other things found ‘in the course of executing the warrant’ if there are reasonable grounds to believe it is connected with any offence (s 49(1)(b))

   2. They can remove the things from the premises or guard them (s 49(2))

   3. Gollan – things seized can only be retained for as long as is reasonably necessary to complete investigations or preserve it for evidence

Some other rights that may come up:

10. Any person found on the premises can be searched if they are reasonably suspected of having a thing mentioned in the warrant (s 50) (must also consider the ordinary rules around the conduct of a search as above)

11. Executing officer may use force reasonably necessary to enter premises (s 70) (includes disabling alarms, pacifying dogs, breaking open receptacles)

    1. Can also do things necessary to prevent loss or damage of things of things reasonably believed to be connected with...