Warrants Flashcards
What foundational principle applies to entering private property?
Halliday v Neville - “A police officer who enters private property without permission commits a trespass and acts outside his duty unless his entering is authorised or excused by law”
Who may issue a warrant?
Section 46 - An ‘eligible issuing officer’ may issue a warrant - includes any ‘authorised officer’ listed in Section 3 and includes: (a) a magistrate, (b) a registrar or (c) an employee of the Attorney-Generals department
Who may apply for a search warrant?
Section 47 - Power for police to apply for warrants in relation to ‘searchable offences’ including: (a) an indictable offence, (b) a firearms or prohibited weapons offence, (c) a narcotics offence, (d) a child abuse offence or (e) an offence involving anything stolen or otherwise unlawfully obtained
How must a warrant be applied for by a police officer?
Police must apply personally and the application is required to be made in writing (unless telephone warrant)
What grounds must police rely on to apply for a warrant?
Police may apply to eligible issuing officers 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
George v Rocket - Reasonable Belief - “Belief is an inclination of the mind toward assenting to, rather than rejecting, a proposition”
What items are required on the warrant?
- Need adequate description of the premises to be searched
- Must disclose if previous unsuccessful application made
- Must link to a particular offence
- R v Tilley - Must list specific items to be searched for
What timeframes apply to search warrants?
LEPRA - Section 72:
- To be executed by day (0600-2100) unless authorised
- Commences when issued, expires when executed or other time
- Telephone warrants expire 24 hours after issue
- Other warrants expire after 72 hours or other time
- Can be extended if application made prior to expiry
Can the validity of a search warrant be challenged in the Local Court?
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
What restrictions apply to crime scene warrants based on location?
Section 89 of LEPRA states that a crime scene can be established in either a public or private place.
No restrictions apply to crime scenes in public places.
In private places, must be lawfully on premises with either authority or consent. If consent is revoked, can remain for four hours to preserve the crime scene until a warrant is obtained.
What does Section 88 of LEPRA provide in relation to crimes scenes?
Section 88 of LEPRA states: A police officer lawfully on premises (whether by warrant or consent) may:
(a) Establish a crime scene
(b) Exercise crime scene powers - under Section 95
(c) Stay on the premises
What is required for police to establish a crime scene?
LEPRA - Section 90 - To establish a crime scene, police must suspect on reasonable grounds that: (a) An offence has been committed in connection with a traffic accident resulting in serious injury or death, (b) a serious indictable offence is being, or was, committed or (c) a serious indictable offence may have been committed at another location
How should police establish a crime scene?
LEPRA - Section 91 - A police officer may establish a crime scene on premises in any way that is reasonably appropriate in the circumstances - should give public notice and should not be established at same premises twice within 24 hours unless a warrant allowing it is obtained
When can police exercise crime scene powers?
LEPRA - Section 92 - Police may exercise crime scene powers if they suspect it is reasonably necessary to do so
What powers do police have at crimes scenes?
LEPRA - Section 95(1): (a) direct persons to leave, (b) remove persons from crime scene, (c) direct persons not to enter, (d) prevent persons from entering, (e) prevent persons from removing evidence, (f) remove obstructions, (g) perform any necessary investigation, (h) conduct any examination, (I) open anything that is locked, (j) use utilities, (k) direct owner to maintain utilities, (l) take photographs, (m) seize and detain things, (n) dig things, (o) remove walls or ceilings, (p) perform any other function
What offence is available in relation to crime scenes?
LEPRA - Section 96 - Obstructions or hinder ace of person executing crime scene warrant
