Interlocutory proceedings in the Federal Court in October 2009,
relating to search warrants, provides a useful reminder in relation
to the permissible scope of search warrants. The broader
proceedings in Zhang v Commissioner, Australian Federal
Police (2009) 260 ALR 580 (Zhang) concerned
challenges to the manner in which particular search warrants were
issued and executed. The interlocutory application sought to
prevent the inspection of documents that were seized in the search
until the main proceedings had been determined.
Sections 3E and 3F of the Crimes Act 1914 (Cth) set the limits
on the power conferred by search warrants relating to criminal
offences in the federal jurisdiction. In respect of the degree of
specificity required of a search warrant, sections 3E(5)(a) and (c)
require the "issuing officer ... to state in the warrant"
both "the offence to which the warrant relates" and
"the kinds of evidential material that are to be searched for
under the warrant". That is, the search warrant must disclose
the nature of the offence so as to set bounds to the area of the
search (Harts Australia Ltd v Commissioner, Australian Federal
Police (1997) 75 FCR 145 at 152).
Similarly, the conduct of the search officers is limited by
section 3F which provides that they may only seize a particular
item if they believe on reasonable grounds that the item is
evidential material in relation to an offence to which the warrant
relates (or another offence that is an indictable offence). Short
of the executing officer forming such a belief on reasonable
grounds, a warrant confers no authority to seize anything.
The alleged offences in Zhang involved almost 40
companies suspected of defrauding the Australian Taxation Office of
approximately $75 million through the falsification of Business
Activity Statements. The Applicants' complaints in relation to
the search warrant and the search officers' conduct included
the search warrant gave rise to some 36,288 permutations of
documents or things that could be seized as evidence
when searching computers, the search officers performed
"key word" searches, and if any of the key words were
found on the computer, an image of the entire hard drive was taken,
when searching lever arch folders, search officers would often
look at the cover and spine only, or at other times only one
document in it, before seizing the whole folder.
During and after the search, the Applicants' solicitor took
urgent steps to protect the seized documents from inspection. At
the application, the solicitor tendered an affidavit into court
detailing his complaints regarding the search officers'
Justice Flick granted the interlocutory relief sought on the
basis that "a serious question arises as to whether [the
search warrants] have been executed in accordance with their
terms". While his Honour did not express any view regarding
the validity of the warrants (preferring to leave that issue to be
determined at trial), he emphasised the importance of presenting to
the person whose premises are being searched, a warrant that fully
and usefully informs them of the area of the search.
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.
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