SUMMARY OF RECOMMENDATIONS
1 SEARCH WHERE THERE IS A BELIEF THAT AN OFFENCE HAS BEEN COMMITTED
2 INTRUSIONS WHEN A BELIEF THAT AN OFFENCE HAS BEEN COMMITTED IS NOT NECESSARY
1 SEARCH WHERE THERE IS A BELIEF THAT AN OFFENCE HAS BEEN COMMITTED
The following principles should be applied:
(1) Every power of search should be contained in a statute.
(2) Every search should be by consent or pursuant to a warrant unless there are compelling reasons to the contrary.
(3) All searches of dwellinghouses should be by consent or pursuant to a warrant.
(4) When a warrant is required:
(a) It should be issued only after independent judicial consideration of the application;
(b) all applications should be made in writing and on oath;
(c) persons applying for a warrant should disclose previous applications made in respect of the same matter;
(d) a warrant should be issued only if there is reasonable ground for believing that an imprisonable offence has been committed or is intended to be committed or where a power of search pursuant to a warrant is given by any Act in relation to a non-imprisonable offence;
(e) the person or persons who are to execute the warrant should be specified by the authority issuing the warrant;
(f) the issuer of a warrant should be empowered to impose reasonable conditions on the execution of the warrant;
(g) the warrant should authorise entry for search and seizure on only one occasion at a time reasonable in the circumstances within a determined period from its issue;
(h) persons executing the warrant should have it with them and produce it upon initial entry and in response to any reasonable request thereafter;
(i) persons executing the warrant should be permitted to have such assistance as is reasonable in the circumstances;
(j) persons executing the warrant should be permitted to use such force as is reasonable in the circumstances;
(k) persons executing the warrant should be permitted, on reasonable grounds, to search persons present when the warrant is executed.
(1) persons executing the warrant should be empowered to search for and seize anything specified in the warrant;
(m) persons executing the warrant should be empowered to seize anything else seen that is evidence of an offence for which such a person could have obtained a warrant;
(n) information provided to support an application for a warrant should be made available only if a Judge orders.
(5) Where the owner or occupier of the place or thing searched is not present at the time the search is made then that person should be informed promptly of the search unless a Judge, on application, orders otherwise.
(6) Persons who have searched a place or thing should provide the owner or occupier with a schedule of any items seized, indicating the place from where they were taken and where they are held unless a Judge, on application, orders otherwise.
(7) Evidence obtained in breach of the statutory rules of search and seizure should normally be inadmissible.
2 INTRUSIONS WHEN A BELIEF THAT AN OFFENCE HAS BEEN COMMITTED IS NOT NECESSARY
We recommend that the following general principles should be applied to all existing and proposed powers of intrusion, however described, whether exercised by the police or any other enforcement authority, and whether or not predicated on a threshold requirement of reasonable belief:
(1) The power shall only be exercised at a time which is reasonable in all the circumstances;
(2) Persons authorised to exercise such a power shall produce a means of identification and shall also give notice of the legal source of the power being relied upon before the power is exercised and also in response to any reasonable subsequent request.
(3) The power shall be exercised in a manner that is reasonable in all the circumstances, having regard to the terms and purpose of the power.
(4) In any case where the owner or occupier against whom the power is used is absent at the time the power is exercised, a notice must be left at the scene informing that person that the power has been exercised, unless a judge subsequently confirms that the requirement can be waived because such a notice would unduly prejudice subsequent enforcement activity.
(5) Within 7 days of seizure an inventory of things seized should be supplied to the person from whom the things were seized, unless a judge orders otherwise because of exceptional circumstances.
(6) As a general rule, any thing or information obtained in breach of these principles should be inadmissible in evidence.
3 SEARCH INCIDENTAL TO ARREST
We recommend that a constable should be able to search without warrant a person who has been arrested and things that person has readily to hand where that is prudent.
4 CONSENT SEARCHES
We recommend that consensual searches should be recognised.
5 PROPERTY SEIZED
We recommend that a person from whom property has been seized, or who claims to be entitled to it, should be able to apply to the court at any time for the immediate return of the property, subject to such conditions as the court may impose.
6 IMPLEMENTATION OF RECOMMENDATIONS
The foregoing recommendations should be implemented by a Powers of Entry Act which will provide a code relating to all State powers of intrusion whether or not exercised pursuant to a warrant.