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21 Cards in this Set
- Front
- Back
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Relevant Legislation: |
Section 3E Crimes Act 1914 (Cth); and Section 194 Crimes Act 1900 (ACT) |
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Who can issue a Search Warrant? |
A 3E Search Warrant may be issued by: A magistrate; or A justice of the peace or other person employed in a Court of a State or Territory who is authorised to issue warrants. |
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When can Search Warrants be issued? |
An issuing officer may issue a search warrant if the officer is satisfied that there are reasonable grounds for suspecting that there is or will be within the next 72 hours, any evidential material (at the premises, or in the person's possession). |
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How long is a warrant in effect? |
The warrant will expire at a time that is not later than the end of the seventh day after the day on which the warrant was issued. |
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What things are authorised by a search warrant? |
To enter the premises or conveyance (wherever it is); and Search for any fingerprints found at the premises; and Take samples of things found at the premises for forensic purposes; and Search the premises and seize evidential material specified in the warrant; and Seize other evidential material not specified in the warrant if relevant to another indictable offence; and Seize seizable items; and Conduct an ordinary search or frisk search of a person at or near the premises; and Seize evidential material or tainted property (pursuant to the Proceeds of Crime Act 2002). |
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Can things be seized if they are not listed on the warrant? |
The warrant authorises the seizure of a thing (not listed in the conditions) found in the course of a search that the officer believes on reasonable grounds to be: - Evidential material in relation to an offence to which the warrant relates; or - A thing relevant to another offence that is an indictable offence; or - Evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); If the officer believes on reasonable grounds that the seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence. |
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What three questions are required to be answered in the body of an affidavit? |
Why it is suspected the relevant offence or offences have been committed; and Why it is suspected the relevant documents or other things will be at the relevant place; and Why it is suspected the relevant documents or things have evidential value. |
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In what circumstances can Police leave a warrant and return? |
If a warrant in relation to a premises is being executed, Police may, if the warrant is still in force, complete the execution of the warrant after they temporarily cease its execution and leave the premises: - For not more than one hour; or - If there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer; or For a longer period if the occupier of the premises consents in writing. |
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Can photographs be taken at a search warrant? |
In executing a warrant in relation to a premises, Police may take photographs (including video recordings) of the premises or of things at the premises: • For a purpose incidental to the execution of the warrant; or • If the occupier of the premises consents in writing. |
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What is Legal Professional Privilege? |
- LPP relates to communications that have come into existence for the dominant purpose of giving or receiving legal advice, from a lawyer acting in a professional capacity; or for use in current/anticipated proceedings. - LPP can be waived at common law, through known and voluntary disclosure, if confidentiality is lost or if waived by operation of law. |
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What is Public Interest Immunity? |
An immunity from disclosure or production under subpoena or when giving evidence which recognises that the release of some information would be contrary to the public interest if it was to be revealed in legal proceedings. |
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Can firearms be used during the execution? |
If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information. Where relevant, include references to previous weapon use or intelligence in relation to the suspects, occupants of the premises, or drivers of the conveyances. |
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What is permitted in relation to a Person Warrant? |
A frisk and/or ordinary search of the person; and A search of things found in their possession; and A search of any recently used conveyance; and o A conveyance that the person had operated or occupied at any time within 24 hours before the search commenced. |
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What are the rules surrounding Telephone Warrants: |
A warrant may be applied for using a telephone, telefax, fax or other electronic means: In an urgent case; or If the delay that would occur if the application were made in person would frustrate the effective execution of the warrant. The issuing officer may complete and sign the same form of warrant that would be issued under 3E. The applicant must, not later than the day after the day of the expiry of the warrant or the day after the day on which the warrant was executed, whichever is earlier, give or transmit to the issuing officer the form of warrant completed by the applicant. |
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Is the executing officer required to have the original warrant in their possession? |
Advice from CDPP is that an executing officer should have the original search warrant document in their possession when executing the warrant however, the position in relation to this issue is not definitive; The executing officer may need to justify the execution of a warrant with a copy, in terms of exigent or special circumstances. The occupier is only required to be shown a copy of the warrant, not the original. |
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How are conditions to be set out in a warrant? |
The first condition lists classes of documents or physical things, such as bankbooks, journals, correspondence, mobile telephones etc. The second condition limits the description by requiring that the documents or things must relate to specified things: - People and entities (persons, companies, businesses, vehicles, vessels, accounts etc). - Locations. - Events. - Services (telecommunications services, IP addresses etc). The third condition requires reasonable grounds to suspect that a document/thing in question will afford evidence of the offence specified in the warrant. |
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When can a warrant be executed? |
A warrant can be executed between specified hours or at any time of the day or night, depending on what is stated on the warrant. In a warrant affidavit, the applicant must provide reasons why a warrant is required to be executed outside of business hours. |
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When can property be moved? |
A thing found at a warrant premises, or a thing found during a search under a warrant that is in force in relation to a person may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant, with consent, or without consent if: - It is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and - The executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material. The thing may be moved to another place for examination or processing for no longer than 14 days. An executing officer may apply for one or more extensions of that time (not exceeding 7 days) if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days. |
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How can electronic equipment be used at a Search Warrant? |
The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material. If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may take the device from the premises after he or she does any of the following: - copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or - if the occupier of the premises agrees in writing--copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises. |
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What is a 3LA Order? |
A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following: access data held in, or accessible from, a computer or data storage device that: - is on warrant premises; or - has been moved and is at a place for examination or processing; or - has been seized under this Division. copy data held in, or accessible from, a computer, or data storage device, to another data storage device convert into documentary form or another form intelligible to a constable This may only be granted by a Magistrate if he/she is satisfied that: -there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and the specified person has relevant knowledge is: - reasonably suspected of having committed the offence stated in the relevant warrant; or - the owner or lessee of the computer or device; or - an employee of the owner or lessee of the computer or device; or - a person engaged under a contract for services by the owner or lessee of the computer or device; or - a person who uses or has used the computer or device; or - a person who is or was a system administrator for the system including the computer or device. |
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Can persons at a warrant be searched? |
- The warrant must state whether the executing officer or constable assisting is permitted to search a person found at or near the premises when the warrant is executed if they are suspected of having evidential material or seizable items in their possession. - If an applicant wishes to be authorised to do this they must make this specific request and provide reasons in the affidavit. |
