#8522 - Search And Seizure Powers With Normal Warrant

7/8 Search and Seizure Powers with Normal Warrants 1

1 Search warrants: Application and Issuing of normal search warrants 2

2a Normal: Execution: entry 13

2b Execution: search 18

2c Execution: seizure 20

Reasons why necessary to have strict compliance with statutory 24

7	Search and Seizure Powers with Warrant s 46-52: H&J 1669-1684 ss 59-77: H&J 1686-1704 What is a warrant? Plus ordinary search warrants SM 108-126 (end of Mazjoub )
8	(cont) Ordinary Search Warrants (cont) and Covert Search Warrants: Sm 126-149

Intro to search warrant questions:

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

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

Exam checklist	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 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) Must be a police officer who applies: s 47(1) Failure to make statement that applicant had reasonable grounds for belief invalidated the warrant in Cassaniti v Croucher (H&J 1678). Requisite state of mind for applying officer? ‘Reasonable grounds’ to believe that the thing would be on the premises now or in 72 hours? (s 47(1) LEPRA) Reasonable grounds to believe that the thing specified was connected with a searchable offence? (s 47(1) LEPRA). Applicant must not provide false/misleading information: s 63(1). Max penalty of 100 pu or 2 yrs imprisonment or both. Was the correct form used? S 66 How was the application made? In writing and in person under s 60 or on phone under s 61 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 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). If wrong information given, offence under s 63(1) LEPRA. Issuing of the warrant 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. 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. 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. Task 3#: Cannot issue warrant by night unless satisfied reasonable grounds for doing so: s 72(2) Task 4#: Prepare occupiers notice: s 67(1) that complies with s 67(2) LEPRA 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))
1 application must be made by a police officer: s 47(1)	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) Must be a police officer who applies: s 47(1) Failure to make statement that applicant had reasonable grounds for belief invalidated the warrant in Cassaniti v Croucher (H&J 1678).
2 Applying PO must have reasonable grounds to believe (not suspect Rockett) first: that the thing will be on the premises	Did applicant PO have the requisite state of mind, two reasonable beliefs required: (1) Did applicant have ‘reasonable grounds’ to believe that the thing would be on the premises now or in 72 hours? (s 47(1) LEPRA) (2) Applicant have reasonable grounds to believe that the thing specified was connected with a searchable offence? (s 47(1) LEPRA) Searchable offence for a search warrant means under s 46A(1) an indictable offence: s 46A(1)(i) a firearms or prohibited weapons offence : s 46A(1)(a)(ii) narcotics offence : s 46A(1)(a)(iii) a child pornography offence : s 46A(1)(a)(iv) an offence involving a thing being stolen s 46A(1)(a)(v) Reasonable grounds to believe: G v R More than R suspicion: Note that s 47(1)-(2) and s 48(1) require reasonable grounds for belief, which is a higher bar than suspicion (although both involve a factual basis): George v R. Whereas you can have a reasonsable suspicion where there is a positive feeling that amounts to a slight opinion without sufficient evidence, the facts sufficient to ground a reasonable belief in something need to point more clearly to the subject matter of the belief (but do not need to establish on the Balance of Probabilities that something occurred or exists). The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof: George v Rockett Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture: G v R Specification of thing/offence (if all you know about the PO’s state of mind is from the warrant): Need to describe the thing with sufficient specificity: 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). There is no authority to grant general warrants In G v R: ‘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 Need to describe the offence with reasonable particularity so the person knows the exact object of the search: Bradrose; Cloran; Tillett. Can consider warrant in entirety: Arno v Forsyth Example: in Microwave Safety applicant confused what he knew about the plaintiff from the plaintiff’s previous business statements like ‘my experience has indicated’ or ‘I recall the plaintiff conducting business previously in a similar manner’, or ‘I presented the meeting with background related to the matter, including the history of the business’ - - these weren’t reasonable grounds for belief: Microwave Invalid – warrant that authorized seizure of anything found: warner
3 no misleading info s 63	S 63 – applicant must not provide false or misleading information 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 approved form must be used s 66	Was the correct form used? S 66
5 application made in writing and in person s 60 or on phone s 61	5 How was the...

#8522 - Search And Seizure Powers With Normal Warrant - Litigation - Criminal Procedure Rules

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