Day 5: Search and Surveillance

Question 1

Section 21 BORA:

Answer 1

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

Question 2

Evidential Material definition:

Answer 2

In relation to an offence means evidence of the offence, or any other item, tangible or intangible of relevance to the investigation

Question 3

Curtilage definition:

Answer 3

In relation to a residential dwelling, the curtilage is the ground between the fence, garden, hedge or mowed grass border and the house.

Question 4

Kalekale v R

Kale did the offence and went home

Answer 4

Possibility of evidential material and ‘general description’ did not, objectively assessed, provide the required belief

Question 5

The warrant preference rule:

Answer 5

Warrantless powers should only be used in emergency circumstances.

The court is unlikely to support an emergency power being exercised over several days.

Question 6

Cook V R

Prefer Warren cook the meal

Answer 6

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.

Question 7

Explain the difference between RGTS and RGTB:

Answer 7

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

Question 8

Section 7:

Answer 8

Entry without warrant to arrest person unlawfully at large (place or vehicle)
RGTS - unlawfully at large
RGTB - person is there

Question 9

Section 8:

Answer 9

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

Question 10

Section 9:

Answer 10

Stopping vehicle to find persons unlawfully at large or who have committed certain offences
RGTS - At large
RGTB - Person is in vehicle

Question 11

Section 10:

Answer 11

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

Question 12

If someone who is unlawfully at large is seen fleeing a vehicle can you then search it?

Answer 12

Yes.

Vehicle stopped under S9.

Search for EM relating to search under S10.

Question 13

Section 15:

Answer 13

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

Question 14

Section 16:

Answer 14

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.

Question 15

Section 17:

Answer 15

Warrantless entry and search of vehicle for EM relating to certain offences. (public place)

RGTB - EM relating to offence is in vehicle

Question 16

Section 18:

Answer 16

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

Question 17

Section 20:

Answer 17

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

Question 18

Section 21:

Answer 18

Warrantless Searches of people found in or on places or vehicle

Question 19

Section 22:

Answer 19

Warrantless power to search persons if offence against MODA committed.

RGTB - in possession
RGTS - offence has, is or about to be committed

Question 20

Section 83:

Answer 20

Entry without warrant after arrest
PLACE

RGTB - EM will be CADD

• only arresting officer

Question 21

Section 84:

Answer 21

Warrantless entry and search of vehicle after arrest.

RGTB - EM CADD

*only in public place and only by arresting officer

Question 22

Section 112:

Answer 22

Items of uncertain status may be seized

Question 23

Section 117:

Answer 23

Special powers where application for SW pending

Question 24

Section 121:

Answer 24

Stopping vehicles with or WO warrant for purposes of search (RAIN)

Question 25

Section 122:

Answer 25

Moving vehicles for purpose of search or safekeeping

Question 26

Section 123:

Answer 26

Seizure of items in plain view

Question 27

Activities for which a SDW is required:

Answer 27

• Interception device to intercept private comms
• Tracking device
• Obs on private property

Question 28

Section 27:

Answer 28

Warrantless search of person in PP if offence against S202A suspected

Question 29

Section 28

Answer 29

Warrantless search of vehicle if offence against S202A suspected

Question 30

Restrictions on some trespass surveillance and use of interception devices:

Answer 30

Cannot undertake TRESPASS SURVEILLANCE or INTERCEPTION DEVICE except to get evidence in relation to offence of 7+ years or offence against arms act.