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Search And Seizure Powers With Normal Warrant Notes

Law Notes > Litigation - Criminal Procedure Rules Notes

This is an extract of our Search And Seizure Powers With Normal Warrant document, which we sell as part of our Litigation - Criminal Procedure Rules Notes collection written by the top tier of University Of New South Wales students.

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7/8 Search and Seizure Powers with Normal Warrants

Table of Contents

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Search and Seizure Powers with Warrant (i) s 46-52: H&J 1669-1684 (ii) ss 59-77: H&J 1686-1704 (iii) What is a warrant? Plus ordinary search warrants SM 108-126 (end of Mazjoub ) (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: i. First, whether or not the applying and issuing of the warrant was valid. ii. 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

1 Search warrants: Application and Issuing of normal search warrants Exam checklist

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

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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) a. Must be a police officer who applies: s 47(1) b. 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?
a. 'Reasonable grounds' to believe that the thing would be on the premises now or in 72 hours? (s 47(1) LEPRA) b. 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 a. 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 b. 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). c. If wrong information given, offence under s 63(1) LEPRA. Issuing of the warrant

6. Who was the application made to? Eligible issuing

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

* Must be a police officer who applies: s 47(1) 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 Did applicant PO have the requisite state of mind, two PO must reasonable beliefs required: have reasonabl (1) Did applicant have 'reasonable grounds' to believe that the e grounds thing would be on the premises now or in 72 hours? (s 47(1) to believe LEPRA) (not suspect (2) Applicant have reasonable grounds to believe that the thing Rockett) specified was connected with a searchable offence? (s 47(1) first: that LEPRA) the thing will be on Searchable offence for a search warrant means under s 46A(1) the

* an indictable offence: s 46A(1)(i) premises

* a firearms or prohibited weapons offence : s 46A(1)(a)(ii) 3 of 24

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*

*

*

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). o There is no authority to grant general warrants o 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

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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 S 63 - applicant must not provide false or misleading misleading information info s 63 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 Was the correct form used? S 66 approved form must be used s 66 5 5 How was the application made? In writing and in person application under s 60 or on phone under s 61 made in

* The application for a warrant must be made in writing on a writing prescribed form. The application must also be made on and in oath or affidavit before the 'eligible issuing officer' by the person s applicant in person: s 60(1) LEPRA 60 or on

* Person may apply by telephone for warrant (radio, phone s facsimile and any other communication device), but the 61 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

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6 application made to magistrate s 7 cannot issue unless informatio n under s 62(1) specified

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(1) and 3(1). Task 1#: the eligible issuing officer cannot issue a warrant unless the application includes the following information under s 62(1) LEPRA: a) the name of the applicant and details of the authority of the applicant to make the application for the warrant: s 62(1)(a) b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved: s 62(1)(b) (Mazjoub) c) the address or other description of the subject premises: s 62(1)(c) (contrast Gassy and way out West) d) if the warrant is required to search for a particular thing--a full description of that thing and, if known, its location: s 62(1)(d) e) if the warrant is required to search for a kind of thing--a description of the kind of thing: s 62(1)(e) (issue of broadness - for f) if a previous application for the same warrant was refused--details of the refusal and any additional information required by section 64: s 62(1)(f) g) any other information required by the regulations: s 62(1) (g) Note: under s 76 LEPRA a warrant is not invalidated by any defect other than a defect that affects the substance of the warrant in a material particular. S 62(1)(b): is the description of nature of the searchable offence in the warrant sufficiently clear? (like in Mazjoub) Look at warrant at a whole

* Principle: Looking at warrant as a whole, it must describe the offence with reasonable particularity, so as to enable persons to know the exact object of the search. Offence need not be described with particularity of an indictment. What is necessary is sufficient provision to enable the executing officer to know what to look for, and for persons in the subject premises to know what is required of them: Tillett; Microwave Safety; Mazjoub o in Microwave Safety the reference to 'false representations s 44F [sic] Fair Trading Act] was a wholly inadequate means of limiting the breadth of the search ? didn't let anyone receiving the warrant to understand the scope of the search it authorized
? amounted to an invalid general warrant: Tillett.

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A warrant that specifies the offence simply by a reference to the title of the offence and the relevant section and Act is not invalid: Mazjoub. Here warrant asked to search for 'drugs in the form of ice, speed, money associated with sale of prohibited drugs, drug ledgers and things connected with sale of prohibited drugs', and said that they had reasonable grounds for believing that those things were connected with the offense of 'supply' and possession under sections of the drug act. Could look at warrant as a whole including items to be searched for, and the applicant did specify the particular types of drug (meth). This meant that the specification of the relevant offences were free of any ambiguity or uncertainty. (OK that it only referred to sections, din't include dates for offence alleged, didn't particularise alleged offences). Another example of sufficient particularity: "s 86(1)(e) of Crimes Act to wit conspiracy and defraud the Commonwealth': in brewer v Castles discussed in Mazjoub it was found that sufficiently indicated nature of documents to be seized. Errors: o Sufficient where reference to repealed legislation: Reference to repealed legislation where legislation was material identical, and the fact that the application stated an 'intelligble offence' of possession of a firearm, meant that the reference ddidn't detract from the nature of the offence or render the description of the object of search unintelligible or ambiguous. Therefore application not invalid: Corbett; Mazjoub o Incorrect citation of section does not invalidate search warrant that otherwise clearly sets out substance of alleged offence (Parker v Churchill ) o Incorrect description of statute doesn't invalidate search Reference to section in criminal statute that covers an indeterminate number of offences insufficient: Cloran . (Recital of warrant referred to commission of offences against s 70 of Crimes Act however operative part of warrant was silent as to particular offence, didn't refer to description given in recital - failure to describe particular offences. Insufficient in Arno v Forsyth where no reference to persons: where the warrant authorized seizure of wide range of docs over 6 years, statement of offences didn't reduce generality of warrant, warrantrefered to specified sections in various enactments with a short description, description didn't identify persons, times, places or manner of offences committed - complex matter of tax

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