#8528 - Covert Search Warrants - Litigation - Criminal Procedure Rules

Intro to search warrant questions:

In considering the validity of the evidence obtained from the covert swearch warrant (CSW), we must consider:

1. First, whether or not the issuing of the warrant was valid.

2. Second, whether the execution of the warrant, being the entry, search and seizure of any goods was lawful.

Note that there must be strict compliance with statutory conditions for warrants (George v Rockett).

• But defect in warrant does not automatically invalidate it unless it affects the substance of the warrant in a material particular: s 76 LEPRA

(Possible stuff to mention:

Note that unless entry and search of a person’s property is authorized under a valid warrant the police will have committed a trespass (Coco v Queen) and any seizure of evidence will be unlawful, and its admissibility (in a trial involving the occupier of the premises) can be challenged under s 138 Evidence Act 1995 (NSW).

• No presumption of regularity in favour of search warrants: Tillett

Applying officer’s eligibility and state of mind:

1. State power to apply for CSW: An eligible applicant may aply to an eligible issuing officer for a CSW under s 47(3). An application for a CSW may be made by an eligible applicant (s 46C(1)). This is:

   1. A Police officer has been authorised to make application by a PO holding rank of Superintendent or above see ‘authorising’ section below): (s 46C(1)(a), or

   2. the Commissioner/ Assistant Commissioner for the Police Integrity Commission or staff member, authorised to make application by Commissioner/assistant Comm: s 46C(1)(b):

   3. the Commissioner/Assistant Commissioner for the NSW Crime Commission or authorised staff member: s 46C(1)(c).

2. Must be searchable offence: s 46A(1)(b)

3. Requisite state of mind for eligible applicant? Under s 47(3):

   1. Suspects on reasonable grounds that (i) there is, or within 10 days will be, in or on the premises a thing of a kind (ii) connected with a searchable offence in relation to the warrant: s 47(3)(a). Note: Searchable offence for a CSW must be a ‘serious offence’ as defined in s 46A(1)(b), being an indictable offence punishable for 7+ years,including firearms, prohibited weapons, cultivation/supply of narcotics, child abuse material, involved stolen or unlawfully obtained goods etc. AND
      AND

   2. Considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises: under s 47(3)(b). The notion of ‘consider’ is defined in the Oxford Dictionary as ‘contemplate mentally; weigh the merits; reflect… be of opinion’. Is the meaning of consider similar to belief?

4. Applicant must verify information given to judge on oath or by affidavit (S 60(2)).

5. Offence under s 63 for applicant to give false/misleading information to the judge.

Authorising the application:

6. Authorisign officer: Superintendent or higher: s 46C(1)(a)

7. State of mind of authorizing officer: Authorisation may be given if the authorising officer holds same state of mind as applicant: ie
   (a) suspects on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with the searchable offence: s 46C(2)(a) (think G v R not Rondo ) AND
   (b) considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises: s 46C(2)(b) . (‘consider’ as defined in Dictionary is ‘contemplate mentally, weigh merits, be of opinion).

So note: two requirements: (1) applicant must have state of mind and (2) applicant must be authorised by superintended or higher who has same state of mind: s 46C(2).Covert search warrants only require reasonable grounds to suspect rather than believe. The suspicion is required to be held by the applicant and the authorizing officer. The suspicion also has a greater period to come to fruition – 10 days for covert search warrants compared to 72 hours ie 3 days for standard (Search warrants).

Other requirements:

8. CSW application must be in form prescribed by regulations: s 66(1) Forms 9-9B of regulations. Cl 6 of regulations.

9. Applicant must verify information given to judge on oath or by affidavit (S 60(2)).

10. Offence under s 63 for applicant to give false/misleading information to the judge.

Issuing officer:

11. Eligible issuing officer? Application must be made to eligible judge (supreme court judge authorised by AG): s 46B.

12. Issuing officer Task 1#: judge must be satisfied that there are reasonable grounds for issuing warrant: s 48. In determining this must take into account: s 62(3) and (4) – must take into account (3)-(4).

13. Issuing officer task 2#: Cannot issue unless matters set out in s 62(1) are included.

14. Issuing officer task 3#: Application must also contain information in s 62(2) LEPRA.

15. Possible Task 4#: postpone occupiers notice service: s 67A(1)

16. Possible task 5#: postpone adjoining occupier’s notice service? S 67B(4)

17. Note: judge can issue normal search warrant if doesn’t want to offer covert search warrants: s 48(2).