Section 32 of the Cybercrime Code Act 2016 sets out how a warrant is obtained and what limits attach to it.
Section 32(2) — issuing the warrant
Where it appears to a Magistrate, by information on oath, that there are reasonable grounds for suspecting that there is, in a private place, a data or thing that may provide evidence of the commission of an offence, he may issue a warrant —
- directing a member of the Police Force named in the warrant, or all members of the Police Force,
- to search the private place and to seize any such data or thing, and
- to take it before a Magistrate to be dealt with according to law.
| Requirement | Effect |
|---|---|
| A Magistrate | Judicial authorisation — not a police decision |
| Information on oath | The grounds must be sworn; a false statement exposes the deponent |
| Reasonable grounds for suspecting | The Magistrate must be satisfied of them independently |
| Named officer or all members | The warrant must identify who may execute it |
| Take before a Magistrate | Seized material returns to judicial control |
The alternative to naming an officer is a warrant directed to all members of the Police Force. That is a wide form, and it is the Act’s own words.
The safeguard is not in who executes the warrant but in the Magistrate’s satisfaction as to the grounds, and in the requirement that the warrant identify the private place and the data or thing sought.
Section 32(3) — execution by day
A warrant under subsection (2) must be executed by day unless, by the warrant, the Magistrate specifically authorises it to be executed by night.
Day is the default. Night execution requires an express authorisation.
The authorisation must be in the warrant itself. The words are “by the warrant”. An officer cannot obtain a night authorisation separately, or rely on an oral indication.
It must be specific. A general form of words would not satisfy “specifically authorises”.
A person whose premises are searched at night should therefore ask to see the authorisation on the face of the warrant.
Section 32(4) — what happens to what is taken
Any data or thing seized under subsection (2) may be detained by a Magistrate, and when it is no longer required as evidence, it may be destroyed under an order of a Magistrate.
Subsection (4) provides for two outcomes: detention by a Magistrate, and destruction by order once the material is no longer required.
It does not provide for return to the owner. That is a striking omission where the material seized may be a person’s computer, phone, business records or family photographs — and where, in the event of an acquittal or a decision not to prosecute, there is no reason for the State to retain it.
Two answers exist. The general law of search and seizure, preserved by the opening words of section 33 — “in addition to the powers under the Search Act (Chapter 341)” — continues to govern the treatment of seized property. And the words “to be dealt with according to law” in subsection (2) import the general law, including the Magistrate’s power to order the return of property.
A person seeking the return of a seized device should apply to the Magistrate who holds it.
The Search Act (Chapter 341) is not currently available on PacLII, so no link is given here.
Challenging a warrant
- No reasonable grounds. The information on oath did not disclose material capable of founding the suspicion.
- Insufficient particularity. The warrant did not identify the private place, or the data or thing sought, with sufficient precision.
- Execution outside the warrant. A search at night without specific authorisation; seizure of material outside the description; entry to a place not named.
- Excess of the section 33 powers. For example removing a device without the section 33(e) conditions being met.
Remedies include an application under section 57 of the Constitution for enforcement of the rights in sections 44 (freedom from arbitrary search and entry) and 49 (privacy), and an objection to the admissibility of the evidence obtained. On admissibility generally, see electronic evidence.
See also when police can search for electronic evidence and whether you must help police access your devices.
Sources
- Cybercrime Code Act 2016 — ss 1, 32, 33, 34, 43
- Constitution — ss 44, 49, 57
- Search Act (Chapter 341)
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.