Search and Seizure Powers with Warrant

1. s 46-52: H&J 1669-1684

2. ss 59-77: H&J 1686-1704

3. What is a warrant? Plus ordinary search warrants SM 108-126 (end of Mazjoub )

Intro to search warrant questions:

In considering the validity of the evidence obtained from the search warrant, we must consider:

1. First, whether or not the applying and 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

Legal issues determining validity of evidence obtained from normal search warrants under ss 47-8 LEPRA

Note: Courts insist on strict compliance with the statutory conditions governing the issue of search warrants: George v Rockett.

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

Application for the warrant: steps

1. State power to apply for warrant: PO may apply to an eligible issuing officer for a search warrant if they believe on reasonable grounds that there is or within 72 hours will be in or on the premises a thing connected with a searchable offence in relation to the warrant (s 47(1) LEPRA)

   1. Must be a police officer who applies: s 47(1)

   2. Failure to make statement that applicant had reasonable grounds for belief invalidated the warrant in Cassaniti v Croucher (H&J 1678).

2. Requisite state of mind for applying officer?

   1. ‘Reasonable grounds’ to believe that the thing would be on the premises now or in 72 hours? (s 47(1) LEPRA)

   2. Reasonable grounds to believe that the thing specified was connected with a searchable offence? (s 47(1) LEPRA).

3. Applicant must not provide false/misleading information: s 63(1). Max penalty of 100 pu or 2 yrs imprisonment or both.

4. Was the correct form used? S 66

5. How was the application made? In writing and in person under s 60 or on phone under s 61

   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: s 60(1) LEPRA

   2. Person may apply by telephone for warrant (radio, facsimile and any other communication device), but the eligible issuing officer must not issue a warrant applied for on the phone unless satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person (s 61(2) LEPRA).

   3. If wrong information given, offence under s 63(1) LEPRA.

Issuing of the warrant

6. Who was the application made to? 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.

7. Task 1#: Eligible issuing officer must first determine that certain specified details are contained in the application 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.

8. Task 2#: The eligible issuing officer then must determine whether there are reasonable grounds to issue the warrant: 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.

9. Task 3#: Cannot issue warrant by night unless satisfied reasonable grounds for doing so: s 72(2)

10. Task 4#: Prepare occupiers notice: s 67(1) that complies with s 67(2) LEPRA

11. Task 5#: Keep a record. An eligible issuing officer 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))