Case: Wright v Queensland Police Service [2002] 2 Qd R 667
Outcome: distinguished
The purpose of s 3H(1) has not been the subject of much judicial discussion. Nor was its purpose explored in the Review of Commonwealth Criminal Law: Fourth Interim Report , Canberra, November 1990 (the Gibbs Committee Report) which presaged the introduction of Part 1AA into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). (The history of Part 1AA is discussed by the Full Court in Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145 at 147-148.) In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J at [30] referred to the ability of an occupier to whom a copy of a search warrant is made available being able "to ascertain the scope of the authority conferred by [the warrant] or the jurisdiction by which it was issued". That approach also is consistent with the approach of Spender J in Seeter 210 ALR 47. 77 In Wright [2002] 2 Qd R 667, Holmes J concluded that providing a copy of a search warrant (secured by urgent telephone application) which did not contain the name of the issuer or the date and time of issue did not invalidate the warrant, because in the circumstances the absence of that information could not have affected the ability of its recipient to ascertain the scope of the authority it conferred or the jurisdiction by which it was issued (at [30]). It appears at [22] however that, in the circumstances, such information was required in a "prescribed authority form" prepared by the applicant for the warrant and that the search warrant itself contained all the information prescribed by s 73 of the Police Powers and Responsibilities Act 2000 (Qld). In other respects, the copy of the search warrant provided apparently had some indication as to its authenticity: see at [17]. 78 There is a further significance in the omission of the information about the execution of the Birchgrove warrant from the copy. Because the Birchgrove warrant expressed the time by which that warrant expired (so as to satisfy s 3E(5)(e) and s 3E(5A)) by reference to the date of issue, the copy made available to Mr Oke did not enable him to know that the Birchgrove warrant had not expired. The requirement that the issuing officer of a search warrant state in the warrant the time at which it expires reflects the seriousness of the intrusion which the search warrant permits. The issuing officer must be satisfied under s 3E(1) that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material at the premises. The need to express an expiry time results from that legislative condition upon the issue of the warrant. Moreover, the warrant during its life, also authorises in circumstances the seizure of evidential material relating to other offences than those the subject of the issuing officer's satisfaction, and also authorises in certain circumstances the physical search of a person at or near the premises: s 3F(1)(d)(ii) and s 3F(1)(f). 79 In my view, because the omissions from the copy of the Birchgrove warrant made available to Mr Oke did not give him as the occupier any capacity to be satisfied that the Birchgrove warrant had in fact been issued, or that it was current, the purpose of s 3H(1) has not been met. The omissions from the copy of any detail of the issuing officer or the status of the issuing officer or of the date and place of its issue, therefore, in the particular circumstances, lead me to the conclusion that the execution of the Birchgrove warrant did not proceed lawfully. The consequence is that the "seizure" of the laptop computer was not lawful and it should be returned to Mr Oke. That is so although Federal Agent Capaldo told Mr Oke the date the Birchgrove warrant was issued. Section 5H does not reduce the consequences of non-compliance by allowing the oral supplementation of the document. I do not accept that orally telling Mr Oke the date of issue of the Birchgrove warrant means that the breach of s 3H(1) in the very respects which it is intended to secure means its breach should have no consequences. Moreover, the "operational realities" in which search warrants are executed do not suggest any reason why the copy of a search warrant made available under s 3H(1) should not fulfil the purpose of that provision.