WARRANT POWERS AND PROCEDURES
Victorian Law Reform Committee
SUBMISSION ON BEHALF OF THE
CRIMINAL BAR ASSOCIATION OF VICTORIA
INTRODUCTION
The Criminal Bar Association of Victoria (“CBA”) represents more than 330 barristers whose
area of practise is predominantly in the criminal law. As such our members are dealing with
issues that arise under search warrant and surveillance warrant legislation on a frequent basis
and are well placed to express views about a variety of shortcomings that presently exist.
The CBA welcomes the opportunity to make submissions for the purpose of the Committee’s
inquiry into Warrant Powers and Procedures.
This submission will identify some of the shortcomings that we believe exist under current
legislation and make a number of recommendations. However before considering the nature
and effect of current legislative provisions it is important to reflect on the historical
development of search and seizure powers and the common law rights which they affect.
HISTORY
Historically, other than the use of the so called “general warrants” which permitted the
representatives of the King to break into houses to search, seize and arrest in the Kings name,
the common law only permitted warrants to be issued to search for stolen property. The
expression that an “Englishman’s home is his castle” reflected the common laws efforts to
secure the privacy of the individual. This principle was sorely tested by the misuse of the
power of entry in the King’s name through the use of the general warrant, which was
declared illegal by the House of Commons in 1751.
In the American Colonies the misuse of general search warrants by the Crown’s
representatives became a major cause of discontent contributing to the American War of
Independence. The determination to stamp out these abuses to personal privacy and the
derogation of rights and freedoms led to the Fourth Amendment to the United States
Constitution which was adopted in these terms:
“The rights of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation and
particularly describing the place to be searched and the persons or things to be
seized.”
Similar provisions exist in the recent South African Constitution, which attempts to redress
the imbalance created by the apartheid regime. The entrenchment of rights and freedoms as
part of a Constitutional doctrine is invariably the product of fundamental human conflict.
Australia has not experienced the upheaval of 18th Century America, or the turmoil of a
racially divided South Africa. We have no equivalent to the overriding obligations laid down
in the Fourth Amendment; nevertheless, the common law both in England and in Australia
has vigilantly defended the privacy of the individual and his or her dwelling from intrusion,
unless clearly authorised by law.
In George v Rockett (1990) 170 CLR 104, a case concerned with the execution of a search
warrant issued under s.679 of the Criminal Code Qld and executed on the office of the
solicitors acting on behalf of former Police Commissioner Sir Terrence Lewis, the High
Court said: -(pages 110-111)
“The common law has long been jealous of the prima facie immunity from seizure of
papers and possessions;…except in the case of a warrant issued for the purpose of
searching a place for stolen goods, the common law refused to countenance the issue
of search warrants at all and refused to permit a constable or government official to
enter private property without the permission of the owner. Historically, the
justification for these limitations on the power of entry and search was based on the
rights of private property. In modern times the justification has shifted increasingly to
the protection of privacy. …State and Commonwealth statutes have made many
exceptions to the common law position and s.679 is a far reaching one. Nevertheless,
in construing and applying such statutes, it needs to be kept in mind that they
authorise the invasion of interests which the common law has always valued highly
and which through the writ of trespass, it went to great lengths to protect. Against
that background, the enactment of conditions, which must be fulfilled before a search
warrant can be lawfully issued and executed, is to be seen as a reflection of the
legislature’s concern to give a measure of protection to these interests. To insist on
strict compliance with the statutory conditions governing the issue of a search
warrant is simply to give effect to the purpose of the legislation.”
Three propositions which emerge from George v Rockett are:i).
The Courts will insist upon the strict compliance with the statutory conditions
governing the issue of search warrants.
ii).
Where a statute imposes a duty upon the issuing officer to be satisfied about a
particular matter, the issuing officer must be so satisfied.
iii).
The warrant or notice must disclose jurisdiction of its face.
These propositions underpin most subsequent authority concerned with the issue or execution
of search warrants.
In Crowley v Murphy (1981) 34 ALR 496 Lockart J. listed some of the procedures that
policemen should follow when executing a search warrant:“First, like most statutory powers, the power of enforcing a search warrant, must be
exercised in good faith.
Second, the power must be exercised for the purpose for which it was conferred. It
must not be used for some ulterior purpose.
Third, the power must be exercised fairly, having regard to all the circumstances.
Fourth, it must be exercised having regard to those affected by its exercise.
Fifth, the officer executing the warrant must strictly follow the directions contained in
it and must not exceed the limits of authority it confers.”
In the course of any criminal investigation search warrants are an effective method of
searching for and seizing items as potential evidence. But it is the very nature of this power
and its exercise that represent significant risks to individual freedoms and which have led the
courts to insist upon strict compliance.
The observations in George v Rockett and in Crowley v Murphy are applicable to all warrants
issued under the variety of legislative schemes that exist under Victorian law, in particular
s.465 of the Crimes Act 1958, s.81 of the Drugs Poisons and Controlled Substances Act 1981
(which pick up the general warrant provisions of the Magistrates Court 1989) and the
provisions of the Surveillance Devices Act 1999. These are the State legislative provisions
that are most frequently used by Victorian Police in criminal investigations.
SEARCH AND SEIZURE WARRANTS
Issue and Execution
It is the view of the CBA that legislative provisions which provide for the issue and execution
of search warrants should be unambiguous, consistent and above all designed to ensure that
individual freedoms are not affected beyond that authorised by the terms of the specific
warrant. This requires there to be sufficient specificity in both the warrant provisions and in
the warrant itself of what is and is not authorised. A lack of specificity and clarity results in
uncertainty and thereby the potential for abuse and the undermining of individual freedoms.
Neither s.465 of the Crimes Act (including the provisions of the Magistrates Court Act 1989)
nor s.81 of the Drugs Poisons and Controlled Act provide sufficient specificity. They are
couched in very general terms and fail to provide to either the executing officer or the
owner/occupier sufficient information about what is and is not permitted. The inevitable
result of these general provisions is that the rights and obligations of the parties lack clarity
and precision.
The CBA recommends the adoption of model warrant provisions with respect to search
warrants that are utilised in the course of a criminal investigation. We urge the Committee to
consider the provisions of Part 1AA of the Crimes Act 1915 (Cth) as representing an
appropriate model in relation to issue and execution.
Part 1AA contains some of the requirements that are presently found in s.465 of the Crimes
Act and s.81 of the Drugs Poisons and Controlled Act but provides far greater detail of the
requirements justifying the issue of a warrant and what is authorised by the warrant.
Section 3E(1) states “An issuing officer may issue a warrant to search premises if the officer
is satisfied by information on oath that there are reasonable grounds for suspecting that there
is, or there will be within the next 72 hours, any evidential material at the premises”.
An “issuing officer” is a magistrate, a justice of the peace or person employed in a court of a
State or Territory who is authorised to issue warrants (s. 3C). “Evidential material” means a
thing relevant to an indictable or summary offence and “offence” refers to any offence
against the laws of the Commonwealth (except the Defence Force Discipline Act 1982) or the
Territory (other than the ACT) (S.3C).
Significantly sections 3E(5) prescribes what must be stated in a search warrant and section
3E(6) what it authorises.
Section 3E(5) mandates that the warrant is to state:
(a)
the offence to which the warrant relates; and
(b)
a description of the premises to which the warrant relates or person to who it relates;
and
(c)
the kinds of evidential material that are to be searched for under the warrant; and
(d)
the name of the constable who is responsible for its execution; and
(e)
the period for which the warrant remains in force, which must be no longer than 7
days; and
(f)
the hours during which the warrant can be executed.
Sections 3E(6) requires the issuing officer to also state in a warrant that it authorises the
seizure of evidential material found in the course of the search or a thing relevant to another
offence that is an indictable offence if the executing officer believes on reasonable grounds
that seizure of the thing is necessary to prevent concealment, loss or destruction or use in
committing an offence.
Once issued section 3F(1) states what an executing officer is authorised to do in executing the
warrant including:
(a)
to enter the premises; and
(b)
to search for and record fingerprints and samples for forensic purposes; and
(c)
to search the premises for and seize the kinds of evidential material specified in
the warrant.
Amongst the remaining provisions within this legislative scheme:Section 3H
states that details of the warrant are to be given to the occupier;
Section 3J
permits the taking of photographs including video recordings for purposes
incidental to the execution of the warrant;
Section 3K
allows equipment to be taken onto the premises to facilitate the examination
and processing of documents;
Section 3L
authorises the accessing of computers, the printing of documents, the copying
of disks and the seizure of computers and disks.
Section 3N
requires the provision of copies to the occupier upon request of all things
seized.
Section 3ZX states that Part 1AA does not affect the law relating to legal professional
privilege
In addition to these provisions we also recommend that the following be considered:i).
A requirement that searches be videotaped unless in all the circumstances it is
impracticable; the onus being in the executing officer.
ii).
A provision requiring the presence of an independent third person if in the view of the
issuing officer it is desirable.
Legal Professional Privilege
The CBA believes that the protections of legal professional privilege ought not to be eroded
and that to the extent that it is possible, appropriate safeguards should enacted. Difficulties
will arise because it is not always easy to determine when the privilege attaches.
The doctrine of legal professional privilege developed at common law to protect the
confidentiality of communications passing between a client and his or her legal advisor. In
Carter v. Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 the
privilege was explained in the following terms:
“Now that this Court has held that legal professional privilege is not a rule of
evidence but a substantive rule of law, the best explanation of the doctrine is that it is
"a practical guarantee of fundamental, constitutional or human rights". By protecting
the confidentiality of communication between lawyer and client, the doctrine protects
the rights and privacy of persons including corporations by ensuring unreserved
freedom of communication with professional lawyers who can advise them of their
rights under the law and, where necessary, take action on their behalf to defend or
enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule
of law and a potent force for ensuring that the equal protection of the law is a
reality”. (at 161 per McHugh J.)
Whilst the rational behind the privilege can readily be explained, the manner and extent of the
privilege and its application has proved more difficult. Not all communications are protected.
The privilege extends to communications or documents concerned with the obtaining of legal
advice or contemplated legal proceedings. The privilege does not extend to communications
or documents made or brought into existence for the purpose of, or as part of the process of
crime, fraud, abuse of statutory powers or, in some circumstances, defeating or frustrating the
administration of justice by the courts, Carter at 134-135 per Deane J.
The circumstances in which the privilege might attach extend beyond the giving of evidence
and include the discovery of documents or the execution of a search warrant (Mann v Carnell
(1999) 74 ALJR 378; Baker v Campbell (1983) 153 CLR 52).
Curiously, the privilege whilst not attaching to original document might attach to copies
made of those documents if the copies were made for the purpose of obtaining legal advice or
for contemplated legal proceedings (Commissioner AFP v Propend Finance Pty Ltd (1997)
188 CLR 501).
Until recently, the purpose test for determining the application of legal professional privilege
was the sole purpose test (Grant v Downs (1976) 135 CLR 674). In Esso Australia Ltd v
Commissioner Taxation (1999) 74 ALJR 339 the High Court by majority (McHugh and
Kirby JJ. dissenting) held that the dominant purpose test as developed by the common law
and not the sole purpose test as laid down in Grant v Downs was the applicable test in
Australia. In reaching this conclusion the Court was influenced by sections 118 and 119 of
the Evidence Act 1995 (Cth) which applies the dominant purpose test to the adducing of
evidence. Their Honours saw the need for a uniform approach throughout Australia as being
desirable and consistent with the rule of law.
Lawyers Offices
Issues of legal professional privilege often arise in the execution of search warrants
particularly when a lawyer’s office is involved. If during the execution of a search warrant
documents are seized that may give rise to a claim for legal professional privilege, the
documents should be identified and the claim communicated to the executing officer. In
respect of the execution of search warrants upon lawyer’s offices, procedures have been
agreed between the Australian Federal Police and the Law Council of Australia. These were
first put in place in 1990 and the current procedures adopted in March 1997.
In short the agreed procedures state: i).
That application for a search warrant on a lawyer’s office shall only be made after
consultation with the office of the Commonwealth DPP.
ii).
Where a claim of legal professional privilege is made, no member of the police search
team will inspect any documents to which the claim relates until either (a) the claim is
abandoned or (b) the claim is dismissed by a court.
iii).
All documents for which a claim is made shall be placed in a sealed container and
placed forthwith into the custody of the magistrate or justice who issued the warrant
or an agreed third party.
iv).
The claimant has 3 working days to inform the executing officer of the intention to
institute a claim and when proceedings to institute the claim have been instituted the
sealed documents are to be delivered into the possession of the Registrar of the Court.
The procedures also provide for the resolution of the claim between the parties potentially
obviating the need to go to court. This usually involves the appointment of independent
lawyers to assess the documents in question and to determine the merits. It is a quicker and
cheaper option and often results in the resolution of the matter, although problems do arise
with respect to copy documents following the decision in Propend. It is not always easy to
determine whether the copy was made for purposes which in Propend were identified as
sufficient to attract the privilege.
In Victoria a similar protocol has been adopted between the Victoria Police, the Victorian Bar
Council and the Law Institute. Pursuant to the protocol if during a search (whether of a
lawyers office or otherwise) a claim is made for legal professional privilege the documents
are sealed and taken before the Court where the claim can be determined. Whilst this protocol
ensures that the privilege once claimed is protected, it doesn’t have the flexibility of the
protocol between the AFP and the Law Council of Australia which provides a simpler
method of resolving claims without the need to involve the Courts.
We recommend that a similar protocol be adopted in Victoria so that a claim of legal
professional privilege can be quickly and efficiently determined.
Return of the Warrant
The introduction of such a protocol may require some modification to the present
requirement that all documents seized be brought before the Court to be dealt with according
to law. This requirement, which is unique to Victoria, is a safeguard that we believe should
otherwise be retained. It provides an early opportunity to assess whether the terms of the
warrant have been complied and whether the retention of seized items is justified.
Presently the return of the warrant is conducted in Chambers before a Magistrate and usually
in the absence of the affected party, who is unlikely to know of the procedure. We
recommend that it be a requirement for the executing officer to give notice to the affected
party of the date and time of the appointed hearing on the return of the warrant, thereby
giving the opportunity to raise matters touching upon the process.
We note the comments of Professor Richard Fox that the requirement that all documents
seized be brought before the Court is not always complied with. Arguably such a failure
would render the continued retention of property unlawful. A requirement to give notice to
the affected party should prevent this from occurring.
Reporting and Records
We agree with the Committees endorsement of the comments of the Law Reform Committee
which examined The Powers of Entry, Search, Seizure, Questioning and Detention by
Authorised Person in October 2001; this is found at page 37 of the Discussion Paper. The
greater the level of accountability that is imposed on police and the Courts at each stage of
the process the greater the likelihood that there will be strict compliance governing the issue
and execution of warrants.
We recommend that accountable records be maintained by both police and the Court of each
warrant issued, of each warrant executed and of all items seized. We also recommend that the
Ombudsman’s office fulfill an independent role ensuring compliance. The provisions of Part
VIII of the Telecommunications (Interceptions) Act 1979 (Cth) provide a model that we
endorse.
SURVEILLANCE DEVICE WARRANTS
In Victoria the use of listening devices, optical surveillance devices, tracking devices and
data surveillance devices is governed by the provisions of the Surveillance Devices Act 1999.
Unlike search warrants where notice is provided to the owner/occupier prior to execution, a
surveillance device warrant is clandestine.
In Grollo v Palmer (1995) 184 C.L.R. 348 at 367 the Court said “[t]he decision to issue a
warrant [for a listening device] is, for all practical purposes, an unreviewable in camera
exercise of executive power to authorise a future clandestine gathering of information”.
The secrecy that attends all stages of the issuing and execution of surveillance device
warrants is a matter of concern. Whilst it is understandable that there is a requirement for
secrecy, an appropriate balance must be maintained between the use of these devices and the
protection of individual rights. This is especially so given the proliferation of surveillance
device warrants and the enormous quantity of recorded product that is obtained. In this regard
we endorse the comments and concerns of Brian Walters S.C. at page 60 of the discussion
paper. The capacity for the misuse of warrants is a matter of considerable concern.
To ensure that there is an appropriate balance we make to following recommendations:i).
The preconditions for the issue of a surveillance device warrant be tightened.
ii).
There be greater clarity of the circumstances under which a warrant is required.
iii).
The duration of a warrant be reduced from 90 days to 30 days.
iv).
Prior to there being an extension of an existing warrant, justification for the extension
should be demonstrated from the product previously recorded.
v).
Accountable records be kept of all warrants issued and executed.
vi).
The agency to whom the warrant is issued be required to report to the issuing officer
and/or the Omdudsman on the nature and quantity of the product recorded under the
warrant.
vii).
Time limits be imposed on the retention of the recorded product.
viii).
Greater penalties be imposed for a breach of any of the prohibitions imposed by
Surveillance Devices Act.
Illegally Obtained Evidence
In this context we urge the Committee to consider a departure from the common law position
with respect to illegally obtained evidence, which is admissible in Court but is susceptible to
exclusion by the Court in the exercise of its discretion.
The discretion to exclude illegally obtained evidence has developed under the common law
and exists to enable to Courts to enforce the rule of law. It is based upon “high public policy”
and exists to serve a number of purposes, including:
(a).
The right of Society to insist that those who enforce the law respect it;
Bunning v Cross (1978) 141 CLR 54 at 75 per Stephen & Aickin JJ.
Pollard v The Queen (1992) 176 CLR 177 at 203 per Deane J.
(b).
The protection of citizens from improper or unlawful treatment;
(protection of civil liberties or rights)
Bunning v Cross at 77-8 per Stephen & Aickin JJ.
(c).
To enable the Courts to protect the integrity of their processes;
(no curial approval for wrondoing)
Bunning v Cross at 78 per Stephen & Aickin JJ.
(d).
To prevent the administration of justice being brought into disrepute;
(to maintain public confidence in the administration of justice)
Bunning v Cross at 78 per Stephen & Aickin JJ.
Pollard at 202 per Deane J.
However, whilst these ideals might appear to provide a sufficient justification for the
exclusion of illegally obtained evidence, in practice it is only in a few rare instances that
evidence of this kind is excluded. This is primarily because the onus of establishing the
necessary criteria for exclusion rests on an accused who forensically is in a position of
disadvantage. This is especially so with respect to evidence obtained under a surveillance
device warrant where the circumstances of its issue and its use is often protected by claims of
public interest immunity.
Accordingly, we recommend the adoption of provisions similar to s.77 of the
Telecommunications (Interceptions) Act 1979 (Cth) which renders illegally intercepted
communications inadmissible in Court.
Alternatively, at the very least illegally recorded material should be rendered inadmissible
subject to the establishment by the prosecution of exceptional circumstances justifying its
reception.
The benefit of such a variation to the common law position is as follows:i).
It helps to redress the imbalance that presently exists by virtue of the secrecy and lack
of scrutiny that shrouds the use of these devices.
ii).
It places an onus on law enforcement officers to ensure that the conditions governing
the use of these devices are strictly complied with.
We thank the Committee for the opportunity to make these submissions and hope to
participate in the public hearings.
Stephen Shirrefs SC
Vice- Chairman