What is a Search Warrant?
'There is no mystery about the word "warrant": it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal.' Lord Wilberforce in R v Inland Revenue Commissioners [1980] ACT 952 at 1000. So a warrant is a judicial/quasi-judicial authority to do something: here an authority to look for and take possession of things.
Applications for Search Warrants
A police officer can make an application for a search warrant to obtain evidence of the commission of an offence. The application must be sworn and state the grounds upon which the warrant is sought. Generally applications are made to Justices of the Peace. However, must be made to a Magistrate in certain circumstances, including, if it is evidence of the commission of an interstate offence. Must be made to a Supreme Court Judge if entering or searching would cause 'structural damage' to the building: s 150 Police Powers and Responsibilities Act 2000 (Qld).
Details of what is required in the application are included in the Police Responsibilities Code (s 3) - which is Schedule 9 of the Police Powers and Responsibilities Regulation 2012 (Qld), including:
'(f) a description of the nature of the thing sought that is reasonably suspected of being evidence of the commission of the offence or confiscation related evidence in relation to the confiscation related activity;
(g) information or evidence being relied on to support a reasonable suspicion evidence of the commission of an offence or the confiscation related evidence is at the place, or is likely to be taken to the place within the next 72 hours.'
Details of what is required in the application are included in the Police Responsibilities Code (s 3) - which is Schedule 9 of the Police Powers and Responsibilities Regulation 2012 (Qld), including:
'(f) a description of the nature of the thing sought that is reasonably suspected of being evidence of the commission of the offence or confiscation related evidence in relation to the confiscation related activity;
(g) information or evidence being relied on to support a reasonable suspicion evidence of the commission of an offence or the confiscation related evidence is at the place, or is likely to be taken to the place within the next 72 hours.'
Issuing a Search Warrant
A warrant is issued when the issuer is satisfied that there are resasonable grounds for suspecing the evidence is there/likely to be there within 72 hours: s 151 Police Powers and Responsibilities Act 2000 (Qld).
This must be disclosed on the face of the warrant (George v Rockett (1990) 170 CLR 104).
This must be disclosed on the face of the warrant (George v Rockett (1990) 170 CLR 104).
Form of the Warrant
Section 156 Police Powers and Responsibilities Act 2000 (Qld): The warrant must specify:
* Who can conduct the search
* The place to be searched
* Items that are being looked for
* When the warrant ends
* Brief particulars of the offence. 'One of the purposes of the [PPRA] is to "ensure fairness to, and to protect the rights of, persons against whom police officers exercise powers under this Act." In that context it is reasonable to construe the requirement for a statement of "brief particulars of the offence" as directed to ensuring that an individual affected is able to discern from the warrant itself the scope of the search authorised by it.': R v Christensen [2005] QSC 279.
* Who can conduct the search
* The place to be searched
* Items that are being looked for
* When the warrant ends
* Brief particulars of the offence. 'One of the purposes of the [PPRA] is to "ensure fairness to, and to protect the rights of, persons against whom police officers exercise powers under this Act." In that context it is reasonable to construe the requirement for a statement of "brief particulars of the offence" as directed to ensuring that an individual affected is able to discern from the warrant itself the scope of the search authorised by it.': R v Christensen [2005] QSC 279.
Powers under the Warrant
Section 157 Police Powers and Responsibilities Act 2000 (Qld): General powers under the warrant include to:
* Enter and remain as long as necessary
* Unlock things
* Detain people to ascertain whether they have anything sought
* Detain people suspected of the offence
* Seize and/or photograph if reasonably suspect as evidence of offence
* Remove walls, ceiling linings/floors
Additionally if specified:
* Search anyone found there for anything sought that is concealable on the person
* Cause structural damage
* Enter and remain as long as necessary
* Unlock things
* Detain people to ascertain whether they have anything sought
* Detain people suspected of the offence
* Seize and/or photograph if reasonably suspect as evidence of offence
* Remove walls, ceiling linings/floors
Additionally if specified:
* Search anyone found there for anything sought that is concealable on the person
* Cause structural damage
Process in Execution of the Warrant
Section 158 Police Powers and Responsibilities Act 2000 (Qld): If the place is occupied and the occupier is present - police must provide a copy of the warrant, along with the approved statement of rights. If the occupier is not present they must leave a copy in a 'conspicuous place'. Unless police reasonably suspect that providing a copy may frustrate or hinder the investigation then can delay providing a copy.