Criminal Law Matters: Issue 5

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

William Pitt, 1st Earl of Chatham

The police apply to a Registrar for the search warrant; the warrant is granted and an Occupier’s Notice is served on the occupier informing the occupier of certain things including the ambit of the warrant.  The occupier can call for a copy of the warrant to view.

In reality many people who have a number of police arrive on their doorstep with recording devices and documents etc.  would not have the presence of mind to carefully peruse their Occupier’s Notice so as to for example notice missing pages, errors or inconsistencies in times/dates/signatures let alone call for a viewing of the originating document i.e the warrant.

Should such errors render the execution of the search warrant unlawful?  There is much caselaw about the ‘strict’ approach to be taken with the relevant documents and the procedures given the intrusive nature of the search and the infringement of individual rights.

There is case law and legislation and codes of conduct governing their operation.  However navigating the law in relation to search warrants is not so simple as the old adage ‘A Man’s home is his castle’.

One of the first major pieces of information on the Occupier’s Notice is the time the warrant expires.

I recently had a case where the Occupier’s Notice was defective in that the warrant was said to expire before the police arrived.

Within the Notice itself was information that the warrant had been applied for at the same time that it expired.  The Prosecution said ‘obviously this information as to the expiration time was an error!’

Not so obvious to my client – he did not even know what time it was when he was presented with the Occupier’s Notice.  He was being filmed at the time, surrounded by a number of police and also he was already in handcuffs.

So should this error in the Occupier’s Notice be just brushed off as a ‘slip’?

My client lamented – ‘What is the point of even serving an Occupier’s Notice if the police can just say ‘oh sorry just a mistake’ and get out the liquid paper and change the document?’  If anyone had noticed at the time would the outcome of the search have changed? Would my client just have had to wait for an amended copy of the notice to be obtained from the Local Court? Could the police have even re-written the notice? (It appears that they have that power)

The law is not clear and, as stated above, involves an interpretation of the legislation, common law and codes of practice etc. in the context of the particular situation.

What is clear is that it is a myth that a small error on a warrant renders the search unlawful and that all evidence is excluded.

It is also clear that the Occupier’s Notice is not the authority itself but rather information about the authority being the warrant.

The Law Enforcement Powers and Responsibilities Act (LEPRA) was introduced including for the purpose of making policing more practical.

Section 76 LEPRA says specifically that errors in warrants do not render the execution of the search unlawful unless the error is in relation to a ‘material particular’.

If the admission of evidence is held to be an argument about ‘unlawful’ or ‘improper’ (as opposed to ‘jurisdiction’) the Magistrate has discretion under the Evidence Act (section 138) to decide that the probative value of eg what was discovered in the search outweighs the impropriety or illegality.

So is a man’s home his castle?

Tell ’em they’re dreaming!

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