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Justice of the Peace (qualified) Queensland

An unofficial reference based on the duties of Justices of the Peace (Qualified)
The Queensland Government holds copyright for all the material referenced on this site

Search Warrant

This file last saved 12 August, 2019 19:33

caveats

1. You do NOT have authority to issue search warrants under the following circumstances:

2. 1. where the search warrant states structural damage may occur when carrying out the search;

   2. where the search warrant orders a person in possession of documents at the place to give to the police officer all documents of a type stated in the warrant;

   3. where the search warrant orders a person in possession of "access information" for a "storage device" in the person's possession to give a police offier the ability to access, use, examine or make a copy of the "stored information";

   1. Access information means information of any kind that it is necessary for a person to use, to be able to access and read information stored electronically on a storage device.

   2. Storage device means a device of any kind on which information may be stored electronically.

   3. Stored information means information stored on a storage device.

   Introduction

3. Search warrants consist of two parts:
1. the application - the information required to substantiate the issue of the warrant; and
2. the warrant - information about the premises, name and occupation of the occupier and the date and time of the proposed search.
4. Most search warrants are issued under the Police Powers and Responsibilities Act 2000, although the authority exists to issue warrants under other legislation. The Police Powers and Responsibilities Act 2000, s156 provides that the warrant itself must state the following:
1. that a police officer may exercise search warrant powers; and
2. if the warrant is issued in relation to -
1. an offence - brief particulars of the offence for which the warrant is issued; or
3. the warrant evidence or property that may be seized under the warrant; and
4. if the warrant is to be exercised at night, the hours when the place may be entered; and
5. the date and time the warrant ends.

Expiry

5. Technical Bulletin 04/09 provides the definition of a day in respect of search warrants:
1. If it suspected that the evidence sought is already on the premises, the warrant expires at midnight 7 full days after it is issued, not including the day it was issued.
2. If the evidence is expected to be there shortly, the warrant ends precisely 72 hours after the search warrant is issued.

Preliminary

6. Before you issue a warrant you must be satisfied that:
1. an offence has is suspected to have occured within Queensland as you do not have the authority to issue a warrant for offences suspected have been committed in another state;
2. the offence exists within Queensland law; and
3. all elements of the offence are included in the application.
7. You do not have any authority to request or ratain a copy of a search warrant.

Steps

8. Identify the applicant.
9. Immediately place the applicant on oath or affirmation using the following format as appropriate:

   I SWEAR THAT THE CONTENTS OF THIS DOCUMENT, AND ANY FURTHER INFORMATION I MAY PROVIDE, ORALLY OR IN WRITING, ARE TRUE AND CORRECT, SO HELP ME GOD.

   Or

   I SOLEMNLY, SINCERELY AND TRULY AFFIRM AND DECLARE, THAT THE CONTENTS OF THIS DOCUMENT, AND ANY FURTHER INFORMATION I MAY SUPPLY, EITHER ORALLY OR IN WRITING, ARE TRUE AND CORRECT.

10. Read the application to ensure that it includes:
1. The full name, rank, registered number and station of the applicant;
2. a description of the place to be searched, sufficient to correctly identify the place;
3. for an occupied place, the name of the occupier, if known;
4. a brief description of the offence to which the application relates;
5. a description of the type of evidence sought;
6. why it is suspected that evidence of the offence is likely to be found on the premises;
7. whether the evidence is thought to be presently on the premises or is likely to be there within the next 72 hours;
8. full details of any previous search warrants; and
9. the reasons for exercising the following powers, if required:
1. the power to search anyone at the place;
2. the power to search anyone or anything in, on, or about to be in or on, a transport vehicle;
3. the power to take a vehicle to a place that has adequate facilities for searching it; and
4. the power to execute the warrant at night, naming the proposed hour.
11. Check with the applicant to ensure that the application has not been refused by another JP. If it has, you do not have the authority to grant it. Only a Magistrate can do this.
12. Ask the applicant any questions that are needed to clarify why the search is necessary, the type of evidence sought and whether the search is likely to yield this evidence. Keep a record of the information provided under oath in case you need it later.

13. If you decided to refuse to issue the warrant you should cross out the applicaion and note your reasons on the form. You should then inform the officer in charge of the station where the complainant is stationed.

14. Once you are satisfied that the warrant is justified, have the applicant sign the application. Remind them that they are under oath.
15. Witness the complainant's signature on the application by signing it, affixing your seal of office and entering your registration number.
16. Retain the original of the aplication and keep it in a secure place.
17. Complete the warrant and check to ensure that:
1. the warrant gives the full name, rank, registered number and station of the applicant and the basis for the application;
2. it is dated the day you issue it;
3. it gives the address of the premises to be searched and the full name, date of birth and occupation of the occupier.
4. it gives the date and time when the warrant ends.
18. Sign the warrant, affix your seal of office and enter your registration number - this is a mandatory requirement of the Justices of the Peace and Commissioners for Declaration Act 1991.

Application for a post-search approval order

19. Under section 161 of the Police Powers and Responsibilities Act 2000, an officer can apply to you with an Application for post-search approval order. A post-search approval order is a sworn document required when an officer searches a place without a search warrant if the officer reasonably suspects evidence may be concealed or destroyed unless the place is immediately entered and searched.
20. The document is in two parts:
21. 1. application; and
    2. order.

22. Important: Justices of the Peace can only consider the applicaation. Only a Magistrate can make the actual order.

23. If you are approached by an officer with an Application for a post-search approval order, you can only witness their signature on the application. The officer will then send the application and the order to a Magistrate, who has the authority to grant the order.
24. As an Application for a post-search approval order will be presented to you after the search has occured, you will only be required to do the following:
1. Ask the applicant for some form of identification;
2. Immediately place the applicant on oath or affirmation as in Step 2 above;
3. Read the application carefully. Check it gives the:
1. applicant's name, rank, registered number and station;
2. information or evidence relied on to support the reasonable suspicion;
3. type of offence in relation to which the search ws conducted;
4. nature of the thing sought that was reasonably suspected of being evidence of the commission of an offence;
5. time, date and place of the search;
6. description of anything seized because of the search;
7. name, age and address of each person detained or search, if known;
25. Witness the applicant's signature on the application by signing the application, affixing your seal of office and entereing your registration number.
26. Enter the details in your logbook. Information that can be entered includes:
1. date and time the document was witnessed;
2. type of document (ie an Application for a post-search approval order;
3. details of the person making the approval order;
4. type of identification sighted;
5. location of signing; and
6. questions you asked and answers given.

27. Important: You do not have any authority to request or retain a copy of a post-search approval order.

References

28. The Duties of Justices of the Peace (Qualified) Handbook, Queensland Government - Jun 2017, Section 5.4
    Police Powers and Responsibilities Act 2000 (Queensland)

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Clive Mitchell-Taylor 2016-2022