The Law Relating to Search Warrants in NSW

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By Paul Gregoire and Ugur Nedim

The Australian white supremacist who stands accused of cold-bloodedly gunning down 50 prayer attendees at two Christchurch mosques on 15 March has lodged a complaint with officials at Auckland prison regarding his treatment inside.

The 28-year-old Anglo Australian man from Grafton has complained that he has no access to visitors, phone calls or the television. Although, the alleged terrorist will have something to occupy him as of Friday, as that’s the day his case is set to go before the High Court in Christchurch.

And while the NSW Joint Counter Terrorism Team (JCTT) has been investigating the killer on this side of the ditch, it’s unsure as to whether they gathered any evidence to assist New Zealand police with its investigations. However, the terrorism team did try.

At 8.30 am on 18 March, the JCTT executed a search warrant at the home of the killer’s sister in the NSW town of Sandy Beach, near Coffs Harbour. And a short time later, the police executed a second warrant at the gunperson’s mother’s home in the town of Lawrence, a short distance from Maclean.

Comprised of representatives from NSW police, the AFP, ASIO and the NSW Crime Commission (NSWCC), the JCTT assured the public there was no impending threat relating to the searches, but rather the primary objective was to formally obtain materials that could help its NZ counterparts.

Applicable legislation

Search warrants are judicially issued written orders that provide police with the right to enter an individual’s premises with the aim of investigating a criminal matter. Each jurisdiction around the country has its own legislation and guidances around search warrants.

There are three pieces of legislation governing NSW search warrants. The state laws are contained within part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA) and division 3 of the Crime Commission Act 2012 (NSW).

However, as the searches of the Christchurch terrorist’s relatives’ homes involved federal law enforcement agencies, the search warrants that enabled officers to enter these premises were most likely issued under the provisions of section 3E of the Crimes Act 1914 (Cth).

Applying for a general warrant

Subsection 47(1) of the LEPRA stipulates that a police officer may apply for a general warrant to an “eligible issuing officer” if it’s believed on reasonable grounds there is, or will be within 72 hours, “a thing connected with a searchable offence”.

An eligible issuing officer is a magistrate, a Local Court registrar or an authorised Attorney General’s Department employee.

Searchable offences are outlined under section 46A of the LEPRA. They include an indictable offence, a firearms or prohibited weapons crime, a narcotics offence, a crime to do with child abuse materials, or an offence involving a stolen or unlawfully obtained thing.

In a case where police believe on reasonable grounds that a child prostitution offence has recently been committed, is being committed or will be committed within the next 72 hours, subsection 47(2) of the LEPRA provides that an eligible officer can issue a search warrant for this matter.

A general warrant expires after 72 hours of being issued. An issuing officer can provide an extension if they’re satisfied the warrant couldn’t be executed within 72 hours. And police must provide a report about the search to the issuing officer within 10 days of the warrant being executed.

Notifying the occupant

Under section 67 of the LEPRA, a warrant’s issuing officer must prepare a notice for the occupier of the premises. The occupier’s notice must contain the name of the occupier, who must be over 18, the date and time of issuance and the address to which the warrant applies.

The occupier’s notice must set out the nature of the search warrant and the powers it confers. And if the occupier is not present at the time of the search, the notice must be presented to them within 48 hours after the warrant is executed.

Keeping the occupier in the dark

The LEPRA allows for the issuing of covert search warrants, which mean officers aren’t required to notify the occupier of a premises, when this is deemed necessary. They must be executed within 10 days of being issued. And unlike general search warrants, these searches may be carried out at night.

Section 46C provides that these warrants can be issued to police holding the rank of superintendent or above, or the LECC chief commissioner, integrity commissioner or an authorised staff member, as well as the NSWCC commissioner, assistant commissioner or authorised staff.

A covert search warrant can involve the entering of adjoining premises without notifying the occupiers of these adjacent premises. An officer can impersonate someone else whilst executing a covert search, and they can do anything reasonable to conceal the search has taken place.

Organised crime

An officer holding the rank of superintendent or above may apply for a criminal organisation search warrant, under section 46D of the LEPRA. These warrants can be applied when it’s suspected that something related to organised crime is on the premise or will be on the premises within 7 days.

And under section 17 of the Crime Commission Act, the NSWCC commissioner or assistant commissioner can apply for a search warrant to find evidence within one month in relation to an organised crime offence, which if not seized could be “concealed, lost, mutilated or destroyed”.

Searching a drug premises

Under section 140 of the LEPRA, an officer in charge of a drug investigation may apply for a warrant to search a suspected drug premises if the officer has reasonable grounds to believe it’s being used for the supply or manufacture of prohibited substances, or the cultivation of prohibited plants.

In executing such a warrant, officers can pass through other land in order to gain access, and are permitted to break open doors or windows of the premises subject to the search. And police conducting a suspected drug premises search are permitted to search anyone on site.

Commonwealth search warrants

Section 3E of the Crimes Act sets out the provisions for issuing a federal search warrant. These need to be issued by a magistrate of a federal court. They must be executed by midnight on the seventh day of issuance. And if officers want to be armed at the time, they have to seek magistrate approval.

Executing a warrant

On carrying out a search warrant, officers must announce that they are about to do so, and they have to produce the warrant if the occupier requests to see it. At this point, the occupier of a premises is not permitted to prevent police in executing the search.

If obstructed an officer can use reasonable force to gain entry of the premises. They may also do anything reasonable to prevent the loss or destruction of any evidence. And police may take footage of the search.

When searches are used to harass

On the morning of 31 July last year, NSW police conducted a search of Kings Cross nightclub owner John Ibrahim’s Dover Heights cliff top mansion. The operation involved officers from Operation Odin and sniffer dogs.

The police didn’t have a search warrant, but were relying on the provisions of section 74A of the Firearms Act 1996, which provides that police may search the premises of an individual subjected to a firearms prohibition order to search for such a weapon.

Mr Ibrahim’s residence was previously searched in August the year prior in relation to a police investigation into an alleged drug ring. And his mother’s western Sydney home was also raided at that time.

Ibrahim’s lawyer remarked last year at the time of the firearms raid that his client’s “sustained harassment” by NSW police was “unwarranted”.

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