Warrants

• S 61 for telephone warrants

Ordinary

Application for ordinary search warrant

• 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...

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