The High Court has recently dealt with two high profile cases relating to the validity of Search Warrants. The Australian Federal Police used these Warrants to search either the home of a Journalist or the office of a media organisation (the ABC).
In the most recent case concerning a Warrant, it was used to search the home of Journalist Anikka Smethurst in regard to some articles published in the Sunday Telegraph. The High Court held that the Warrants used by the Federal Police were invalid because they did not specify clearly enough what the alleged criminal offence was.
One of the requirements for a valid Warrant is that the Warrant must describe in clear detail, what is the criminal offence that is being investigated . This allows the Police to have access to documents etc. A Warrant will not simply authorise the Police to generally come and search and find anything they like about any particular subject.
In the Smethurst case, the Warrant relied upon by the Australian Federal Police, was invalid on the ground that it misstated the section of the Crimes Act that it purported to relied upon. Its also failed to state the offence to which the Warrant related with sufficient precision.
This is not a totally unusual situation. It sometimes happens that the Police fail to properly prepare Warrants and so searches they conduct may later be found to be illegal. This is because the Warrant was invalid and any evidence they obtain as a result of that search may then be declared by the Court as inadmissible. This can not be then used by the Police.
If you have been the subject of a search by the Police, pursuant to a Warrant, then you should seek legal advice as soon as possible. The Police are required to provide you a copy of the Warrant documentation and a list of the things they seized.
Written by Bruce Coode