Search Warrants

Question 1

Where do police get the power to apply for search warrants?

Answer 1

Section 47 Law Enforcement Powers and Responsibilities Act

Question 2

What search warrants can be applied for under section 47 LEPRA?

Answer 2

1. Search warrant
2. Covert search warrant
3. Criminal organisation warrant

Question 3

Who can apply for a search warrant and who do they apply to?

Answer 3

Any police officer to an eligible officer (Magistrate)

Question 4

What is required for a search warrant to be granted

Answer 4

A police officer may apply to an eligible officer for a search warrant for
any premises
If the police officer believes on reasonable grounds
There is or within 72 hrs will be in or on the premises a thing connected with a searchable offence. (Indictable/firearms/prohibited weapons offences/narcotic/child abuse material or child prostitution offence)

Question 5

What is a searchable offence for a search warrant

Answer 5

Indictable/firearms/prohibited weapons offences/narcotics/child abuse material or child prostitution offence.

Question 6

What is the standard of proof to obtain a search warrant

Answer 6

Balance of probabilities that officer believes on reasonable grounds.

Question 7

Who can apply for a covert search warrant?

Answer 7

Eligible applicant is an officer authorised by a superintendent, to a judge.

Question 8

What is the requirement to obtain a covert search warrant?

Answer 8

Eligible applicant (officer authorised by super intendent) to an eligible officer (judge)
Can apply for a covert search warrant if they suspect on reasonable grounds,
There is, or within 10 days, will be in or on the premises a thing of a kind connected with a searchable offence (serious offence) and considers necessary without the knowledge of any occupier of the premises.

Question 9

What is the standard and onus of proof to obtain a covert search warrant?

Answer 9

Suspects on reasonable grounds

Question 10

What is a searchable offence for a covert search warrant application?

Answer 10

Serious offence

Question 11

Who may apply for a criminal organisation warrant and and who do they apply to?

Answer 11

Eligible applicant (officer authorised by super intendent) to an judge

Question 12

What are the requirements for a criminal organisation warrant?

Answer 12

Eligible applicant (officer authorised by super intendent) may apply to an eligible officer (judge) for a criminal organisation warrant for
Any premises for which
The applicant has reasonable grounds to suspect
There is or within 7 days there will be in or on the premises a thing connected with a searchable offence (organised crime offence).

Question 13

What standard of proof required to obtain a criminal organisation search warrant?

Answer 13

Reasonable grounds to suspect

Question 14

Does the applicant have to be the person who executes the search warrant?

Answer 14

S46 Law Enforcement Powers and Responsibilities Act provides that executing officer means any police officer.

Any policr officer can therefore execute the warrant.

Question 15

What is premises for purposes of a search warrant?

Answer 15

Section 3 LEPRA defines premises as including: any building, structure, vehicle, vessel or aircraft and any place whether built on or not.

Question 16

What is reasonable belief?

Answer 16

George v Rockett: “the assent of belief is given on more slender evidence then proof. Beluef s an inclination of the mind as towards assenting to rather then rejecting a proposition and the grounds of which can reasonable induct that inclination of the mind may depending on the circumstances leave something to surmise or conjecture.

Question 17

What is suspicion

Answer 17

George v Rockett - a suspicion that something exists is more than a mere idle wandering whether it exists or not. It is a positive feeling of actual apprehension of mistrust amounting to a slight opinion but without sufficient evidence

Tucks v manly: suspicion carries less conviction then belief but to say that a suspicion is reasonable be need not necessarily imply that it is well founded or that the grounds for the suspicion must factually correct.

Question 18

What general authority is conferred by search warrants?

Answer 18

Section 47A LEPRA: a search warrant authorised any executing officer for the warrant:
A) to enter subject premises and
B) to search the premises or things connected with a particular searchable offence in relation to the warrant

Question 19

Do police have the power to seize items pursuanr to a search warrant?

Answer 19

S49 LEPRA: 1) a person executing a search warrant issue under this division:

A) may seize and detain a thing (or a kind of thing) 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 person has reasonable grounds to believe is connected with an offence.
2) includes a power to remove or guard items.

Common law power in ghani v jones still applies.

Question 20

Can policr search persons pursuant to a search warrant?

Answer 20

Yes section 50 LEPRA: a person executing a search warrant issued undet this division may search any person found in or on the premises whom the person during the warrant reasonably suspects of having a thing mentioned in the property.

Question 21

All police officers leave the premises for lunch has the warranr been executed?

Answer 21

The warrant is considered executed. If entry to premises is gained ‘execution’ is taken to have occurred the legislation did not intend to allow for multiple entries into a premise by virtue of the decision in LARSSON v Commissioner of Police (1988)

Question 22

When must a notice to an occupier be served?

Answer 22

S67(4) LEPRA: a person executing a warrant other than a covert search warrant must:
A) on entry into or into the premises or as soon as practicable after entry serve the occupiers notice on a person who appears to be an occupier of ths premises and to be of or above the age of 18 years
Or
If no such person is present in or on the premises serve the occupiers notice on the occupier of tbe premises within 48 hrs after executing the search warrant.

Question 23

Does proper announcement need to be made?

Answer 23

Yes s68 LEPRA requires proper announcement and reaosnable opportunity to be given for the door to be opened.

UNLESS
S68(2) covert search warrant or
Person believes on reasonable grounds that immediate entry is required to ensure safety of any person or to ensure that the effective execution of the warrant is not frustrated

Question 24

Do search warrants need to be served as part of a brief of evidence?

Answer 24

No. DPP v Sounthorn

Question 25

Do telephone intercepts and listening device warrants need to be served?

Answer 25

Yes. DPP v Webb.

Question 26

What should the prosecutor look for in a brief containing a search warrant?

Answer 26

1. Defect on the face
2. Warrant executed within time
3. Seizure of goods named in the warrant or other authority
4. Issue of receipt for seized items
5. Notice to occupier supplied.
6. Reporting back after execution.

If not comploed with may provide grounds for 138 evidence act argument.

Question 27

When can search warrants be executed.

Answer 27

S72 LEPRA requires search warrants be executed by day (6am to 9pm) unless authorised.

Night warrants require grounds for it being execured at night caroll v mijovich .

Question 28

When does a search warrant commence or expire?

Answer 28

S73(2)LEPRA requires warrant to specify the date and time of issue and expiry.

Warrants generally commence at time of issue and expiry and expire 72 hrs after issus unless earlier time specified or when executed (which ever comes first)

Can apply for extension but only before warrant e expires.

Question 29

When do telephone warrants expire?

Answer 29

S73(1)(b) LEPRA telephone warrants expire 24 hrs after issue.

Question 30

Do we need a search warrant to exercise crime scene powers?

Answer 30

No can establish a crime scene under section 90 LEPRA. However require consent to exercise crime scene powers by occupier under s95(4) LEPRA.

Otherwise should apply for warrant.

Question 31

How long do police have to exercise crime acene powers?

Answer 31

S92(3) LEPRA 4 hours for crime scene (6hrs in rural area)

Question 32

Where do crime scene powers come from?

Answer 32

S95 LEPRA sets out the powers police can exercise at a crime scene.

92(2) LEPRA requires a crime scene warrant if no consent. Police officer must apply for a crime scene warrant reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence.

Question 33

What is required for an occupier to consent to police exercisinf crime scen3 powers

Answer 33

S95(4) LEPRA requires informed consent:
The crime scene powers proposed to be exercised on the premises
The reasons for exerxising those powers
The rights of the occupier to refuse.