Search Warrants

Question 1

Section 47 of LEPRA has how many separate warrants? And what are they?

Answer 1

3 separate warrants.

47(1) Search warrant
47(3) Covert search warrant
47(3A)Criminal Organisation Warrant

Question 2

In relation to a 47(1) search warrant, what must a police officer hold to apply?

Answer 2

A belief on reasonable grounds.

Question 3

In relation to a 47(3) covert search warrant, what must a police officer hold to apply?

Answer 3

A suspicion (Suspects on reasonable grounds)

Question 4

In relation to a 47(3) organised crime scene warrant, what must a police officer hold to apply?

Answer 4

Reasonable grounds to suspect

Question 5

Who may issue a warrant?

Answer 5

Section 46 of LEPRA - “An eligible issuing officer” means—

(a) for a warrant other than a covert search warrant or a criminal organisation search warrant—an authorised officer, or
(b) for a covert search warrant or a criminal organisation search warrant—an eligible Judge, or
(c) for a notice to produce issued under Division 3—an authorised officer.

Question 6

Who may apply for a warrant and what needs to be shown?

Answer 6

Section 47 of LEPRA is the power for Police to apply for warrants in relation to searchable offences, including:

• an indictable offence
• firearms or prohibited weapons offence
• narcotics offence
• child abuse material
• anything stolen or otherwise unlawfully obtained

Police may apply to eligible issuing officer if they believe on reasonable grounds that within 72 hours there will be on or in any premises a thing connected with a searchable offence.

Police MUST apply personally and application is required to be made in writing (unless telephone warrant).

Question 7

What grounds must be relied on?

Answer 7

Reasonable belief. Reasonable belief as per George v Rocket: “Belief is an inclination of the mind toward assenting to, rather than rejecting, a proposition”.

Question 8

What items are required on the warrant?

Answer 8

1. Need adequate description of the premises to be searched
2. Must disclose if previous unsuccessful application
3. Must link them to a particular offence.
4. R v Tillet: “must list specific items to be searched for - not too general (“stolen goods” or “drugs” is insufficient).

Question 9

What timeframes apply?

Answer 9

Section 72 of LEPRA -

A covert search warrant may be executed by day or by night.

1. A search warrant (other than a covert search warrant) must be executed by day (06:00 to 21:00) unless authorised night warrant
2. Search warrant commences at specified time of issue and expires when executed or at specified time of expiry, whichever comes first.
3. Telephone warrants expire 24 hours after issue
4. Other warrants generally expire 72 hours after issue, unless earlier time specified
5. Can be extended if Justice satisfied for need - only if application made before warrant expiry.

Question 10

Can the validity of a warrant be challenged?

Answer 10

The only basis that a warrant can be challenged at the Local Court is on the basis of a “defect on the face” of the warrant - occurs when the essential components have been omitted or incorrectly recorded, invalidating the warrant.

Question 11

What are Police powers in relation to crime scenes?

Answer 11

No restrictions apply to public places.
In private places, must be lawfully on premises or with consent - if consent revoked, must leave - can remain to preserve a crime scene for no more than four hours unless a warrant is obtained. Warrant provides a number of powers.
There are a number of powers in relation to warrants in LEPRA. Sections 88-92.

Section 88: A police officer lawfully on premises (whether by warrant or consent) may: (a) establish a crime scene; (b) exercise crime scene powers; and (c) stay on the premises.

Section 89: Allows a crime scene to be established in either a public or private place

Section 90: Sets out when a crime scene may be established on a premises - Police officer must suspect on reasonable grounds that:

(a) an offence has been committed in connection with a traffic accident causing serious death or injury;
(b) a serious indictable offence is being, or was, or may have been committed;
(c) a serious indictable offence may have been committed elsewhere.

Section 91: A police officer may establish a crime scene on premises in any way that is reasonably appropriate in the circumstances - also, if reasonably appropriate, must give public notice and not to be established in same premises within 24 hour period unless a warrant is obtained.

Section 92: Police officers may exercise crime scene powers, after establishing crime scene, if suspects reasonably necessary to do so.

Question 12

What offences relate to crime scenes?

Answer 12

Section 96 of LEPRA: Obstructions or hindrance of person executing crime scene warrant.

Question 13

Where are the powers in relation to executing and applying for warrants found?

Answer 13

Division 4 / Part 5 of LEPRA (Sections 59-76).

Question 14

Section 47 of LEPRA relates to 3 different, separate types of search warrants. What are they and what are the differences?

Answer 14

47(1). Search warrant
47(3). Covert search warrant
47(3A). Criminal Organisation warrant

Search warrant - BELIEVES on reasonable grounds
Covert search warrant - SUSPECTS on reasonable grounds
Criminal Organisation warrant - has reasonable grounds to suspect

Question 15

Who is an eligible applicant for a search warrant?

Answer 15

47(1) - Search warrant - a member of the Police Force.

47(3) Covert search warrant - a police officer authorised by a Superintendent or above who holds the relevant suspicion under 47(3)

47(3A) Criminal organisation warrant - - a police officer authorised by a Superintendent or above who holds the relevant suspicion under 47(3A)

Question 16

Who needs to hold the belief regarding the warrant?

Answer 16

Applying officer needs to have the believe (subjective and objective) BUT person executing does not have to have the belief.

Applicant does not have to execute. Any police officer can execute.

Question 17

Who can execute a warrant?

Answer 17

Executing officer means any police officer.

Question 18

What is the general authority conferred by search warrants?

Answer 18

A search warrant authorises any executing officer to enter the subject premises, and to search the premises for things connected with the particular searchable offence in relation to the warrant.

Question 19

Section 49 of LEPRA provides powers in relation to seizure of articles pursuant to the search warrant. What does Section 49 say?

Answer 19

(1) A person executing a search warrant issued under this Division
(a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and
(b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.
(2) Without limiting subsection (1), the power to seize and detain a thing includes—
(a) a power to remove the thing from the premises where it is found, and
(b) a power to guard the thing in or on those premises, and
(c) if it is a covert search warrant that authorises the placing of a kind of thing in substitution for a seized thing—a power to place a thing of that kind on the subject premises in substitution for a thing seized.

Question 20

What foundational principal applies to police entering private property? Cite authority

Answer 20

Halliday v Neville - “A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the courts of this duty unless his entering or remaining on the premises is authorised or excused by law”.

Question 21

In relation to a 47(1) search warrant, a police officer must have a belief on reasonable grounds that…?

Answer 21

there is, or within 72 hours will be, in or on the premises a thing connected with an indictable offence

Question 22

In relation to a 47(3) covert search warrant, a police officer must suspect on reasonable grounds (authorised by a superintendent who suspects on reasonable) grounds that…?

Answer 22

there is, or within 10 days will be, in or on the premises a thing connected with a searchable offence

Question 23

In relation to a 47(3A) criminal organisation search warrant, a police officer must have reasonable grounds to suspect (authorised by a superintendent who also has reasonable grounds to suspect) that…?

Answer 23

there is, or within 7 days will be, in or on the premises a thing connected with a searchable offence

Question 24

What is a searchable offence? Cite legislation.

Answer 24

Section 46A of LEPRA. “searchable offence”

(a) means any of the following:
(i) . an indictable offence
(ii) . a firearms or prohibited weapons offence
(iii) . a narcotics offence
(iv) . a child abuse material offence
(v) . an offence involving a thing being stolen or otherwise unlawfully obtained, and
(b) if the warrant is a covert search warrant, means a serious offence, and
(c) if the warrant is a criminal organisation warrant, means an organised crime offence.

Question 25

What section of LEPRA legislates for the search of a person in connection with a search warrant?

Answer 25

Section 50 of LEPRA.

50 Search of persons pursuant to warrant

A person executing a search warrant issued under this Division may search any person found in or on the premises whom the person executing the warrant reasonably suspects of having a thing mentioned in the warrant.

Question 26

What did the case of Carroll & Mijovich find in relation to night search warrants?

Answer 26

A night warrant is invalid if justice doesn’t complete the grounds for execution at night.

Question 27

When does a search warrant commence and expire?

Answer 27

A search warrant commences when issued and expires when executed or at expiry time, whichever comes first.

Question 28

A search warrant must be executed by day. What is the relevant time? Cite legislation

Answer 28

Between 6am and 9pm - Section 72 of LEPRA

Question 29

Section 73(2) of LEPRA states that a warrant must specify what?

Answer 29

(2) An eligible issuing officer who issues a warrant (other than a telephone warrant) must specify in the warrant the time when the warrant is to expire.

Question 30

Section 73(1)(d) of LEPRA states what in relation to telephone warrants?

Answer 30

73 Expiry of warrant

(1) A warrant ceases to have effect, unless it is sooner withdrawn or extended, as follows—
(d) in the case of a telephone crime scene warrant—at the expiry of 24 hours after the time of its issue.

Question 31

Can a telephone warrant (that is not a telephone crime scene warrant) be extended beyond it’s 24 hour time limit? Cite legislation.

Answer 31

Section 73A(3) of LEPRA. Any other telephone warrant may not be extended.

Question 32

As a general rule, what is the timeframe (how many hours) is a search warrant usually in effect for after it is issued? Can this be extended? Cite legislation.

Answer 32

Section 73 of LEPRA. 72 hours after issue unless earlier time is specified. This can only be extended if a justice is satisfied that the warrant can’t be executed within 72 hours. An application to extend the warrant can only be made before the warrant expires.

Question 33

Section 67 of LEPRA sets out that a person executing a warrant must serve what?

Answer 33

Section 67(4) states that

(4) A person executing a warrant other than a covert search warrant must
(a) on entry into or onto the premises or as soon as practicable after entry, serve the occupier’s notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or
(b) if no such person is then present in or on the premises, serve the occupier’s notice on the occupier of the premises within 48 hours after executing the warrant.

Question 34

Larson v Commissioner of Police found what?

Answer 34

If entry to premises is gained, “execution” is taken to have occurred.. the legislation did not intend to allow for multiple entries into a premises.

Question 35

Section 68 of LEPRA states what in relation to entry?

Answer 35

68 Announcement before entry

(1) One of the persons executing a warrant must, before any of the persons executing the warrant enters the premises—
(a) announce that the person is authorised by the warrant to enter the premises, and
(b) give any person then in or on the premises an opportunity to allow entry into or onto the premises.
(2) A person executing a warrant is not required to comply with this section if the warrant is a covert search warrant or if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the warrant is not frustrated.

Question 36

Do search warrants have to be served on the Defence or form part of the Brief of Evidence on which the prosecution rely? Cite authority.

Answer 36

No, search warrants do NOT have to be served on the Defence or form part of the Brief of Evidence on which the prosecution rely. Authority is DPP v Sounthorn

Question 37

DPP v Webb found what in relation to telephone intercepts and listening device warrants?

Answer 37

The warrant must be served if the prosecution intend to rely on the material obtained pursuant to the warrant. DPP v Webb

Question 38

What is a “defect on the face” of a warrant?

Answer 38

Occurs when the essential components have been omitted or incorrectly recorded, invalidating the warrant. The substance of a warrant has to be effected in a material particular. Section 76.

76 Defects in warrants
A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.

Question 39

What are some of the usual miscellaneous issues with warrants?

Answer 39

• Defect on the face
• Warrant must be executed within timeframe
• Seizure of Goods named in Warrant or other authority
• Issue of Receipts for seized items.
• Notice to occupier must be supplied.
• Reporting back after execution.

If you have an invalid warrant, the items seized will be illegally/improperly obtained evidence as per Section 138 of the Evidence Act.

Question 40

Section 92 of LEPRA sets out what?

Answer 40

Exercise of powers at crime scene.

92(1) A police officer may exercise any of the crime scene powers set out in section 95(1)(a)–(l) if—

(a) a crime scene has been established under this Part, and
(b) the police officer exercising the power suspects on reasonable grounds that it is necessary to do so to preserve evidence of the commission of an offence in relation to which the crime scene was established.

Question 41

What Section of LEPRA sets out a police officer’s powers in relation to Crime Scenes?

Answer 41

Section 95(1)(a)–(p)

95 Crime scene powers

(1) A police officer may, in accordance with this Part and any relevant crime scene warrant, exercise the following functions at, or in relation to, a crime scene established under this Part—
(a) direct a person to leave the crime scene or remove a vehicle, vessel or aircraft from the crime scene,
(b) remove from the crime scene a person who fails to comply with a direction to leave the crime scene or a vehicle, vessel or aircraft a person fails to remove from the crime scene,
(c) direct a person not to enter the crime scene,
(d) prevent a person from entering the crime scene,
(e) prevent a person from removing evidence from or otherwise interfering with the crime scene or anything in it and, for that purpose, detain and search the person,
(f) remove or cause to be removed an obstruction from the crime scene,
(g) perform any necessary investigation, including, for example, search the crime scene and inspect anything in it to obtain evidence of the commission of an offence,
(h) for the purpose of performing any necessary investigation, conduct any examination or process,
(i) open anything at the crime scene that is locked,
(j) take electricity, gas or any other utility, for use at the crime scene,
(k) direct the occupier of the premises or a person apparently involved in the management or control of the premises to maintain a continuous supply of electricity at the premises,
(l) photograph or otherwise record the crime scene and anything in it,
(m) seize and detain all or part of a thing that might provide evidence of the commission of an offence,
(n) dig up anything at the crime scene,
(o) remove wall or ceiling linings or floors of a building, or panels of a vehicle,
(p) any other function reasonably necessary or incidental to a function conferred by this subsection.

Question 42

Section 92(2) and (3) of LEPRA sets further things in relation to when a Police Officer exercises powers at a crime scene. What are they?

Answer 42

(2) A police officer may exercise any of the other powers set out in section 95(1), but only if—
(a) a crime scene has been established under this Part, and
(b) the police officer or another police officer applies for a crime scene warrant in respect of the crime scene, and
(c) the police officer suspects on reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence.

(3) A police officer may exercise the crime scene powers conferred by this section for a period of not more than 4 hours (or not more than 6 hours in the case of a crime scene established in a rural area prescribed by the regulations), commencing when the crime scene is established, unless the police officer or another police officer obtains a crime scene warrant.

Question 43

In city/urban area and in a country/rural area, how many hours do Police have to exercise their powers in relation to a crime scene warrant? Cite legislation.

Answer 43

4 hours in the city
6 hours in a rural area

Section 92(3) of LEPRA

(3) A police officer may exercise the crime scene powers conferred by this section for a period of not more than 4 hours (or not more than 6 hours in the case of a crime scene established in a rural area prescribed by the regulations), commencing when the crime scene is established, unless the police officer or another police officer obtains a crime scene warrant.

Question 44

Section 95 of LEPRA sets out crime scene powers. In order to obtain the consent of the occupier to exercise certain powers, what 3 things (set out in Section 95(4)) must a Police officer inform the occupier of in relation to the execution of crime scene powers?

Answer 44

(4) The occupier of premises may consent to the exercise of crime scene powers on the premises only if the occupier is, before giving consent, informed by a police officer of the following—
(a) the crime scene powers proposed to be exercised on the premises,
(b) the reasons for exercising those powers,
(c) the right of the occupier to refuse consent.