Key Takeaways
Search warrants can be challenged if it is defective enough or the execution of it was illegal. A challenge can either be made directly to the Supreme Court for a remedy in the form of an order declaring it be set aside or quashed, or the alternatively less expensive and usually more efficient avenue of challenging the warrant during the hearing of the case under section 138 Evidence Act in order to try to exclude the warrant, and any evidence obtained as a consequence of the illegality or impropriety that has rendered either the warrant or its execution defective or unlawful.
The law that governs the issue and execution of lawful search warrants is reflected in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), called 'LEPRA' for short. Corresponding LEPRA is the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) ('LEPRAR'). Other than search warrants, other types of warrants include arrest warrants and bench warrants.
LEPRA also contains the legal framework for other warrants, such as telephone warrants, covert search warrants, crime scene warrants, and drug detection warrants. This article outlines the law and almost everything you need to know about search warrants in New South Wales.
Generally, the issuing and execution of search warrants must strictly comply with the law in order for it to be valid or lawful. You can take action by challenging its validity or lawfulness if you believe it is defective enough.
A successful challenge to a defective search warrant can result in the exclusion of police evidence that has been obtained as a result of the police having executed a defective warrant, thus can result in the charge(s) being dismissed in court. This remedy can be achieved under section 138 Evidence Act to exclude any illegally or improperly obtained evidence.
Alternatively, the same result can occur by challenging a defective search warrant in the Supreme Court by seeking a declaration or order setting the warrant aside for the defect, a declaration that the warrant be declared invalid and a declaration that the execution of the warrant be declared unlawful (also applying for a destruction order in relation to evidence seized as a consequence of the search).
Click here for the law on whether police can search your house without a warrant.
Defective or Unlawful or Illegal Search Warrants
What action can you take if the warrant is illegal or unlawful (or if its execution was unlawful)? If a search warrant is unlawful (or it was illegally executed), any evidence that the police have obtained as a consequence of having conducted the search can be excluded (excluded) from the hearing under section 138 Evidence Act. This can result in the charge being dismissed. In that event, suing the NSW Police Force can be explored and considered.
Section 76 of LEPRA says that a warrant is not invalidated by any defect, unless the defect affects the substance of the warrant in a material particular. Section 232 LEPRA protects police from getting sued in civil or criminal proceedings if a police officer executes a warrant that was defective unless the defect affected the substance of the warrant in a material particular.
Alternatively, if you believe that the search warrant is invalid because the registrar, Magistrate or Judge who issued it, issued it illegally or improperly, you may apply to the Supreme Court of NSW to seek a declaration or order to set aside the search warrant for the defect. In this case, you should also ask the Supreme Court to order a destruction order in relation to the evidence that was wrongly seized as a result of the police having conducted the search based on an invalid search warrant. Equally, this can also result in the charge being dismissed. This approach is the commonly pursued one when challenging the administrative or executive decision of the authorised officer (registrar, magistrate or judge) in issuing the search warrant. This is a more expensive and time consuming avenue than the first option outlined earlier.
The Supreme Court's discretion to order the setting aside of the search warrant is exercised sparingly where it would touch the conduct of the existing criminal proceedings (Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120).
When is a Search Warrant Invalid or Unlawful?
A defect that affects the substance of the warrant in a material particular, according to section 76 LEPRA amounts to an unlawful or invalid search warrant.
The starting point is that search warrants must generally be construed strictly (State of New South Wales v Corbett (2007) 230 CLR 606. The law is designed to protect individual's interest, therefore strict compliance with those laws concerning the issue of search warrants is required (George v Rockett [1990] HCA 26).
Circumstances in which a search warrant can be challenged by reason of it being defective at law (or to challenge the lawfulness of the execution of the warrant), include the following.
Failure To Give An Occupier's Notice And Unlawful Search
The failure of the police to hand over a valid occupier's notice on entry was the reason the court declared that the execution of the warrant was illegal in the case of Black v Breen [2000] NSWSC 987. Section 67 LEPRA requires that an occupier's notice be served by police. The occupier's notice is important as it provides a summary of the nature of the warrant and the prescribed information in the regulations.
Failure To Specify The "Searchable Offence"
section 66(1) LEPRA requires a warrant to be in the form prescribed by the regulations. Regulation 6(1)(a) says that form 11 is the form for a Part 5 search warrant (other than covert or criminal organisation search warrant), which requires certain particulars to be specified in order for the warrant to be lawful. There is also a common law requirement for specificity (McQueen v Hawi [2008] NSWSC 136).
The warrant must specify what the offence is with sufficient particularity. The warrant as a whole including the specified items to be searched for is considered when determining whether the warrant complies with this requirement (Ryder v Morley [1986] 437; (1986) 12 FCR 438 at 444; Douglas v Blackler (2001) NSWSC 901).
The offence specified in the warrant must also be a "searchable offence". A "searchable offence" is an indictable offence, a firearms or prohibited weapons offence, a narcotics offence, a child abuse material offence, an offence involving a thing being stolen or otherwise unlawfully obtained, or a computer offence, according to s46A LEPRA.
A failure to specify the offence with sufficient particularity and/or a failure for the offence to be a "searchable offence" will render the warrant defective and unlawful.
For example, form 11 Part 5 Search Warrants states:
"To search those premises for any of the following things: [list and describe the things to be searched for with particularity].
The applicant has reasonable grounds for believing that those things are connected with the following searchable offences: [specify relevant offences]"
The person's whose home is being searched is entitled to know the object of the search, which is also important to limit the scope of the warrant concerning police. Therefore, the relevant offence must be identified (Douglas v Blacker [2001] NSWSC 901). This is also reflected in s66(1) LEPRA.
The warrant does not have to specify the section or legislation against which an offence has been committed, provided that the warrant at least specifies the substance of the offence in question (Williams v Keelty [2001] FCA 1301; (2001) 184 ALR 411 at [143]).
Failure To Sufficiently Describe The Offence
The particular and relevant offence, and the nature of the offence must be sufficiently stated in the warrant (NSW v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [106]).
The court in Lee v Commissioner of Police (NSW) (No 2) [2017] NSWSC 1789 held that the search warrant and execution of the warrant was unlawful because "the mere description of the offence of stalking or intimidating by simply referring to the section and the legislation, does not tell the occupier, by itself and without more, what the offence is."
Merely to name the section without a description of the offence may be inadequate, especially having regard to the structure and terms of the offence creating legislation (Majzoub v Kepreokis (2009) 195 A Crim R 63).
The particulars of the search warrant form stated in Lee's case stated:
(1) there were, or within 72 hours would be, in or on the premises, the following things: "communication devices including mobile phone, laptop computer, desktop computer, computer tablets, external hard drives, USB drives, discs and any other relevant devices."; and
(2) the things were connected with the following searchable offence within the meaning of s46A(1)(a) of LEPRA: "section 13- Crimes Domestic Violence and Personal Violence Act 2007".
Concerning search warrants, there is a balance between public and private interests. One the one hand, there is the public interest in detecting crimes and convicting wrongdoers. On the other hand, there is the private interest to protect individual peoples home from unlawful interference (Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123). Therefore, to protect the private interest, there is a requirement for strict compliance with legislative requirements concerning search warrants (George v Rockett [1990] HCA 26; (1990) 170 CLR 104).
A failure to sufficiently describe the offence in the search warrant will render the warrant unlawful.
Failure To Sufficiently Describe The Things To Be Searched For
Section 66(1) LEPRA requires the search warrant to be in a specified form, which requires the warrant to "list and describe the thing to be searched for with particularity". The common law also requires the search warrant to identify the object of the search so as to limit the scope of the warrant (George v Rockett (1990) HCA 26). There is also the common law acknowledgment that the person whose home is being searched is entitled to know the object of the search (R v Tillett; Ex parte N Newton [u(1969) 14 FLR 101 at 113).
A failure to sufficiently describe the thing to be searched will therefore render the search warrant unlawful.
False Or Misleading Information By Police Officer In Search Warrant Application
A search warrant can be defective by reason of a police officer having supplied false or misleading information in the search warrant application. This can be where there is dishonesty or improper conduct. If this illegality or impropriety is proven, then both the search warrant and any evidence obtained as a consequence of it can be excluded in the hearing under section 138 Evidence Act.
Alternatively, a similar outcome can be achieved by challenging the search warrant in the Supreme Court by seeking for the warrant to be quashed, and orders that the warrant be declared invalid or unlawful, and a declaration that its execution be declared unlawful.
To explore the above types of remedies, it is a good idea to examine the grounds supplied by the applicant police officer in the search warrant application. Section 62(1) LEPRA requires the application to include particulars of grounds on which the application is based. The application for Part 5 Search Warrant form requires the grounds in support of the application to be described. The authorised justice's record of application for a search warrant which include the relevant particulars of the grounds on which was relied to justify the issue of the warrant should also be examined and compared with.
s63 LEPRA prohibits false or misleading information in a search warrant application and prescribes a penalty of up to 2 years imprisonment and/or $11,000 fine. This is a summary offence, and therefore a 6 month statute of limitations period applies.
Dishonesty And Impropriety
The plaintiff in Majzoub v Kepreotis [2009] NSWSC 1498 challenged the validity or lawfulness of the search warrant in the Supreme Court, seeking it be quashed, declared invalid and declaration that it's execution be declared unlawful on the grounds that the police officer who applied for it had provided incorrect, false and/or misleading information, which the issuing officer relied upon to issue the search warrant. The court here found that the inaccuracies were not significant enough to invalidate the warrant.
The Plaintiff argued that the police officer deliberately provided the issuing officer with false and misleading information by describing in the application for warrant that "police observed an exchange". This suggests the exchange was drugs, not words. The plaintiff also argued that the police officer was aware of the consequences of making that statement in the warrant application, namely, that the issuing officer would be mislead or deceived. The court held that this evidence does not demonstrate the requisite degree of deliberate or wilful misleading of the issuing officer, nor conduct in bad faith.
Majzoub said that a certiorari order is a remedy where there's been a failure to ensure a fair trial caused by irregular conduct of a decision-maker or party. This includes conduct such as fraud, perjury, collusion. Fraud encompasses bad faith. Mere error, irrationality, or poor decision making does not itself demonstrate lack of good faith. Errors of fact or law and illogicality won't demonstrate bad faith in the absence of other circumstances which show capriciousness or deliberate dishonesty.
What is required to show a want of good faith is that the decision-maker was "recreational to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him". The enquiry is directed to the actual state of mind of the decision-maker.
To render the warrant unlawful or invalid, proof of dishonesty and impropriety, or bad faith is required.
The onus to prove this rests on the plaintiff on the balance of probabilities.
To establish bad faith or fraud, clear or cogent proof is necessary.
A warrant may be vitiated by fraud or fraudulent misrepresentation. A statement that is a half-truth, and therefore misleading, may be treated as a fraudulent misrepresentation (fraud is taken to mean dishonesty of a more general kind, so that only conduct of that kind will vitiate a decision and allow the power to be exercised afresh).
Carelessness
If it was carelessness but not wilful or intentionally misleading, it won't amount to a sufficient enough defect in the warrant to be unlawful or invalid. In Gibbon v Evans & Anor [2008] NSWSC 495, the police officer applied for a search warrant following an interview she conducted with a witness. The officer wrongly but honestly believed that the witness had said that the witness accessed the images that had been saved on her boyfriend's computer, and the officer stated this incorrect information in the search warrant application. The officer's interpretation of the witnesses' statement was wrong and careless because any reasonably careful consideration of that statement must have led to the conclusion that the witness had not in fact accessed saved images, but had seen images on a link which had been saved, which inferred that her boyfriend had accessed it. The court found that the officer's belief had been carelessly arrived at, and the officer was not conscious of the carelessness. There was no wilful or intentional misleading of the authorised justice. The officer simply did not understand the distinction between accessing a link and accessing images saved on a computer. Therefore there was no basis for quashing the warrant. The intentionally accessing of a website containing images of child pornography still amounts to possession of child pornography within the meaning of s91H(3) if they happen to be displayed even if it might be fleeting.
Genuine Mistake: Providing Incorrect Information
In Vincent v Randall (1999) NSWSC 833, the police officer who applied for the search warrant gave incorrect information under a genuine mistake (i.e. the criminal record) to the issuing officer who issued the search warrant. The police record could have been easily obtained. The court ruled that, putting aside the incorrect information, other material in the application was sufficient to provide reasonable grounds to issue the warrant.
Challenging The Reasonable Grounds Belief
A police officer may apply to an authorised officer (Magistrate, Registrar or Judge) for a search warrant in respect of any premises if the officer believes on reasonable grounds that there is (or within 72 hours will be) on the premises a thing connected with a searchable offence in relation to the warrant under s47(1) LEPRA.
Section 62(1) requires the search warrant application to include particulars of the grounds on which the application is based, including, without limitation, the nature of the searchable offence or other offence involved.
In turn, an authorised officer may issue the search warrant only if satisfied that there are reasonable grounds for doing so under s48(1) LEPRA. When considering reasonable grounds, the reliability of the information on which the application is based, including the nature of the source of the information, and whether there is sufficient connection between the thing sought and the offence are factors to consider under s62(3) LEPRA.
The search warrant can be challenged if it can be demonstrated that there was no possibility of a reasonable belief by the police officer who applied for the search warrant. If this is proven, the search warrant and any evidence obtained as a result of the search can be subject to exclusion under section 138 Evidence Act. The police officer will likely end up giving evidence to attempt to establish his or her basis for suspicion.
In addition or alternatively, the search warrant can also be challenged on basis that the police officer did not hold a reasonable belief on the proper basis, and therefore overstated matters in the application for a warrant. If the overstatement was deliberate, then it will be stronger grounds to exclude the search warrant and any evidence obtained as a result of the search under section 138 Evidence Act. If the overstatement was inadvertently or a mistake, then it will be weaker grounds to exclude that evidence under section 138 Evidence Act.
Alternatively, the search warrant can also be challenged in the Supreme Court if the police officer did not hold a reasonable belief on a proper basis by reason of deliberately overstating matters in the search warrant application. The Supreme Court then has the power to issue a declaration or order setting aside the search warrant for that defect.
What Is A "Reasonable Belief"?
"The assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture." (George v Rockett (1990) HCA 26 at [116])
What Is "A Thing Connected With A Particular Offence"?
A thing is connected with a particular offence if it is a thing with respect to which the offence has been committed, or a thing that will provide evidence of the commission of the offence, or a thing that was used, or intended to be used, in or in connection with the commission of the offence, according to s46(3) LEPRA.
Complying With Statutory Pre-Conditions Of Search Warrants
Validity of a search warrant depends on whether or not it has been issued and executed in compliance with the prescribed statutory pre-conditions. This includes the requirement that the search warrant be in the prescribed statutory form (section 66 LEPRA and regulation 6(1)(a) LEPRR). Failure to be in the statutory prescribed form will render the search warrant invalid (Ballis v Randall [2007] NSWSC 422). An application for a warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person under section 60 LEPRA.
In addition to the above, here is a checklist to consider if challenging the lawfulness of the search warrant (or lawfulness of the execution of the search warrant):
(1) did the police announce themselves before entering the premises as required under section 68 LEPRA? Section 67 LEPRA requires that an occupier of the premises entered under a search warrant (other than a covert search warrant) be given notice on entry or as soon as practicable afterwards.
(2) are there any mistakes on the occupier's notice or search warrant such as the incorrect house?
(3) what did the police do during the search? Did the police search for something outside the scope of the search warrant? Section 47A LEPRA limits the police to enter the subject premises and only search it for things connected with a particular searchable offence in relation to the warrant.
(4) did the police search a person at the premises and di this comply with section 50 LEPRA? Did police require anyone to remove clothing during the search (ss31-34 LEPRA).
(5) if police seized anything, was a receipt provided outlining the list of things seized as required under s49 LEPRA and regulation 8 LEPRR.
(6) if police asked any questions, was a warning given before questioning? (s138 and s139 Evidence Act)
(7) is the applicant authorised to apply for a search warrant? An 'eligible applicant' is defined in section 46 LEPRA. Is the authorised justice authorised to issue the search warrant? Section 46 LEPRA. "Authorised officer" is defined in section 3 LEPRA.
(8) an eligible issuing officer must not issue a warrant unless the information given by the applicant is verified before the eligible issuing officer on oath or affirmation or by affidavit under section 60(2) LEPRA.
(9) how long did it take for the issuing officer to issue the search warrant after receiving the search warrant application? Consider whether that person could have properly exercised their discretion in that time?
(10) is there a sufficient connection between the searchable offence and the terms to be searched for?
(11) did the issuing officer record requesting any further information from the applicant officer? The form requires an answer to this in the event further information was requested.
(12) did the issuing officer complete and fill the form correctly? Section 65 LEPRA requires this. There is a rule of strictness.
(13) is the search warrant authorised to be executed by day or night? Section 72(1) LEPRA requires it be executed by day unless night is authorised.
(14) are the details of the search warrant concerning the premises, offence and items to be searched for the same as that on the search warrant application and occupier's notice? Section 76 LEPRA states that a warrant is not invalid by any defect unless it's a defect that affects the substance of the warrant in a material particular.
(15) duty to show warrant (other than covert search warrant) if requested by an occupier of the premises under s69 LEPRA
(16) if force was used in executing the search warrant was that use of force to enter and search premises reasonably necessary for purposes of entering it as required under s70 LEPRA?
(17) when does the search warrant expire? A warrant ceases to have effect in certain circumstances outlined in section 73 LEPRA. Generally a warrant expires once it has been executed, or at the time specified in it for its expiry, whichever occurs first.
Do Police Need a Search Warrant to Search Your car or Home?
Police in New South Wales generally require a warrant to be able to search you, your car or home. Police are allowed to search your car, home or your person without a warrant in limited circumstances, such as where the police officer holds in his or her mind a reasonable suspicion that you possess or control something stolen or unlawfully obtained; or you used or intended to be used in an offence carrying a maximum penalty of at least 5 years imprisonment; or you possess or control something that's a dangerous article in a public place that's being used or was used in an offence carrying a maximum penalty of at least 5-years imprisonment; or you possess or control something that's a prohibited drug or plant in breach of the Drug Misuse and Trafficking Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.