Day 5: Search and Surveillance Flashcards
Section 21 BORA:
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
Evidential Material definition:
In relation to an offence means evidence of the offence, or any other item, tangible or intangible of relevance to the investigation
Curtilage definition:
In relation to a residential dwelling, the curtilage is the ground between the fence, garden, hedge or mowed grass border and the house.
Kalekale v R
Kale did the offence and went home
Possibility of evidential material and ‘general description’ did not, objectively assessed, provide the required belief
The warrant preference rule:
Warrantless powers should only be used in emergency circumstances.
The court is unlikely to support an emergency power being exercised over several days.
Cook V R
Prefer Warren cook the meal
Warrant preference rule:
Car used in agg rob found at house 9 hours later. House under surveillance. Entered under S15.
Court found circumstances fell well short of reaching the threshold of RGB evidence would be CADD.
Explain the difference between RGTS and RGTB:
RGTB imports a higher standard than RGTS.
Suspicion: beyond mere recognition that something is possible
Belief: There must be a view that the state of affairs actually exists
Section 7:
Entry without warrant to arrest person unlawfully at large (place or vehicle)
RGTS - unlawfully at large
RGTB - person is there
Section 8:
Entry without warrant to avoid loss of offender or EM. (place or vehicle)
RGTS - committed offence
RGTB - Person is there and EM will be CADD
- only power to search for person
Section 9:
Stopping vehicle to find persons unlawfully at large or who have committed certain offences
RGTS - At large
RGTB - Person is in vehicle
Section 10:
Powers and duties of Constable after vehicle stopped.
When using S9 to stop Constable may:
- require person unlawfully at large to supply details
- search the vehicle to locate person
- search the vehicle to locate EM relating to offence
If someone who is unlawfully at large is seen fleeing a vehicle can you then search it?
Yes.
Vehicle stopped under S9.
Search for EM relating to search under S10.
Section 15:
Entry without warrant to find and avoid loss of evidential material relating to certain offences.
RGTS - 14 year offence committed.
RGTB - EM is there and will be CADD
Section 16:
Searching people in public place without warrant for EM relating to certain offences.
RGTB - person is in possession of EM relating to 14 year offence.
Section 17:
Warrantless entry and search of vehicle for EM relating to certain offences. (public place)
RGTB - EM relating to offence is in vehicle
Section 18:
Warrantless search relating to arms.
RGTS
- breaching arms act
- incapable of having
control
- may kill or cause injury
- PSO or PO in place
- grounds to make
application for PO
- Search any person,
vehicle or place - Seize
Section 20:
Warrantless Search of places and vehicles in relation to MODA
RGTB - controlled drug
RGTS - offence against MODA has, is or is going to be committed
RGTB - EM will be CADD
Section 21:
Warrantless Searches of people found in or on places or vehicle
Section 22:
Warrantless power to search persons if offence against MODA committed.
RGTB - in possession
RGTS - offence has, is or about to be committed
Section 83:
Entry without warrant after arrest
PLACE
RGTB - EM will be CADD
- only arresting officer
Section 84:
Warrantless entry and search of vehicle after arrest.
RGTB - EM CADD
*only in public place and only by arresting officer
Section 112:
Items of uncertain status may be seized
Section 117:
Special powers where application for SW pending
Section 121:
Stopping vehicles with or WO warrant for purposes of search (RAIN)
Section 122:
Moving vehicles for purpose of search or safekeeping
Section 123:
Seizure of items in plain view
Activities for which a SDW is required:
- Interception device to intercept private comms
- Tracking device
- Obs on private property
Section 27:
Warrantless search of person in PP if offence against S202A suspected
Section 28
Warrantless search of vehicle if offence against S202A suspected
Restrictions on some trespass surveillance and use of interception devices:
Cannot undertake TRESPASS SURVEILLANCE or INTERCEPTION DEVICE except to get evidence in relation to offence of 7+ years or offence against arms act.
