What Are The Reasons For Issuing A Search Warrant In Australia?

September 7, 2022    criminaldefencelawyersperthwa
What Are The Reasons For Issuing A Search Warrant In Australia?

Search warrants can allow Australian police to have the right to enter the residence of an individual to investigate criminal matters. The search warrants are governed by the state and territory legislation of Australia police cannot search a person or a premise without having a search warrant.

It is not rare for criminal defence lawyers to meet their new clients after an arrest or search operation has been conducted. A client seeking help gets a warrant copy as proof of their bad experience. The lawyer will ensure to look at the search warrant later and make a mental note for themselves. In this blog, you will learn about search warrants in Australia.

Identifying The Issue

These can range from if the warrant should have been granted at all if the LLP material has been seized, if the police seized a lot of items, return of those items and much more. There are various issues that can arise, but once the issue has been identified, the lawyer needs to act quickly.

This is because the end result will likely be a potential application for permission for judicial analysis. Tons of work needs to be done early to prepare the application, which is why it needs to be done quickly. If the permission for judicial review is granted, then the legal work for the lawyer might be reduced.

The work after leave will likely include practical cooperation between the parties and the court, problems regarding bundling and dealing with the concern of the client regarding the case. Before knowing anything about a search warrant, you must know that the main things about the claim might have already been dealt with in the early stages.

Time Limit

To further add to the pressure, there is also a strict time limit for judicial review or evaluation of applicants. The administrative courts in Australia look to treat the time limits strictly. The claim for judicial review needs to be filed as early as possible and not later than three months after the grounds came to light. The time limit is not three months but in a speedy manner.

It might be difficult for the respondent to argue that the claim was not made on time if the claim was made within three months of the search and seizing of items. If you are late with the claim, then a solid claim might risk seeking permission to file out of time.

If the delay is not too much and the grounds are strong, then specific cases can be argued. The more important an argument issue is, its merits will be stronger, and the more ready a court will be to grant standing. It will also not be strict in the application of the requirements that proceedings start on time.

You can contact criminal lawyers in Perth to help speak on your behalf to the court. In a certain case, the Australian court considered that the factors specific to the exercise of the discretion to allow a claim to be made on time include the following:

  • The claimant was not aware of the decision for a specific reason.
  • The claimant was looking for other solutions
  • There was a delay in acquiring CLS funding.
  • The importance of the issue and merits of the claim.
  • Prejudice, hardships and drawbacks to good administration.

In any warrant case, the fourth and the fifth points may apply. So if you are a little late but have a strong case, the court might be sympathetic towards you. But delays that are due to funding problems might not impress the High Court.

Letter Before The Claim

The three months’ time will not get extended to allow time to reply to a letter before the claim. But under the pre-protocol action on Judicial review, the letter can be sent. But it is important to read the protocols properly, and if the different points are not addressed, the prospective defendant may argue the procedural points.

The Protocol helps to set good practice, and the letter before the claim needs to include the date and any details of the specific decision under challenge and needs to explain why the decision is not lawful and what relief must be sought. Around 14 days needs to be allowed for a response though shorter times might be used based on the circumstances.

Judicially Reviewing The Australian Court.

If the claim includes an application to cancel the warrant that a Crown court or a Magistrate made, then that court needs to be a respondent. If successful, an order can be made against the warrant. This is because even if there is no challenge to decisions made by the lower court, this indicates formally sending a letter to the court before the claim.

Criminal defence lawyers Perth WA, often get involved in this, and some facts regarding this are as follows:

  • It is a fact that the lower court does not usually get involved in litigation, but if it is formally going to be a party to a Judicial review, then the court needs to be named, and the lower court will send a letter before action in a normal way.
  • The lower court will acknowledge service after the claim has been issued and served. But it will not take an active role in the proceedings or be represented at any hearings.
  • The court will most likely provide information with the acknowledgment of service that deals with some factual problems.

Receiving The Ammunition

At times, the lawyer may have a feeling that something might be missing, but before anything can be done, they need to find out the things that were said and done at the court. The first thing that needs to be done is to acquire the specific material.

The lawyer may want a worn copy of the search warrant at this time. If it is suggested that the court was deceived, then the HMRC’s or police’s information in support will be needed. It is better to seek the information that, even if possible, does not include suggesting that the officer deceived the Judge.

Asking for the materials will depend on the circumstances and the time that is left available on the three-month limit. The police need to be firmly enquired to provide the information and notes taken at the hearing and the materials before the Judge.

Things Included In The Letter And Reminding The Law

It is possible that the letter can include a threat that being unable to send the material might lead to further grounds for judicial review against the police. It indicates an unlawful refusal or rejection to provide the information in support and much more.

A short time frame needs to be given, and everything depends on the lawyer’s court at this point. The client will have the right to reason for the ruling and also has the right to know what was said about them during their absence. Reminding the policy of the law in this matter is no problem or harm.

The criminal defence lawyers also need to make a demand of the lower court for notes and other things that were made and things that were specific to the application in the court’s files after the without notice hearing. The application also needs to follow certain procedures.

The Australian police will have around two weeks to object to the disclosure. It is a great idea to copy the specific letter and the other demand to the police for disclosing the information in support.

Advising The Client

After this, the client may want to know the meaning behind a Judicial review. If it becomes successful, it could indicate the return of the items that were seized and might lead to the end of the case. But this doesn’t need to happen at all; the remedies for judicial review are always optional.

Section 59 Of The Criminal Justice And Police Act 2001

The Australian parliament came up with a new mechanism that allows the police to try and keep their investigation on the rails after cancelling a High court warrant. After a warrant is dismissed under s59 of the 2001 Act, the police can apply to the High court for permission to hold on to the material for a short time.

During this time, the police can re-apply to the crown court for a new order that can justify the old seizure under the warrant. Under these circumstances, the crown court will have a choice to authorise the retention of the materials seized despite how unlawful the original search was. If the material were to be returned, it would be appropriate to issue a warrant under which it is lawful to take hold of the property.

As per the words of experts and criminal lawyers in Perth, it is often rare for the High Court not to grant permission for a temporary stay of the cancelling of the warrant when the police made an application to them. These types of applications will only be refused if there is no good faith on the part of the police to secure the warrant.

Why Should The Client Be Warned?

The best lawyers need to warn their clients that any possible judicial review can be academic. It also may or may not be that the other side wants to retain the material. In these types of events, a judicial review needs to send a proper message to the opposition that the suspect will carry on the fight, and the litigation might lead to early disclosure of the material.

In such events, the police might not want to disclose as it provides them with some tactical advantage in the criminal matter that otherwise would not be there. If there needs to be a second application after the warrant withdrawal, there needs to be inter partes that will make it more difficult to grant you the application.

Contact Criminal Defence Lawyers Perth WA

If you are the victim of a faulty search warrant and feel that law enforcement in Australia has illegally acquired evidence via the warrant, you need the help of a lawyer. You can associate with Criminal defence lawyers Perth WA, a reputed law firm. They can provide you with the best lawyers who can provide valuable advice in this case and help you get justice.

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  • Very good lawyers

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