1 August 2014
In this recent Supreme Court case, Justice P McMurdo considered the principles behind the valid execution of a search warrant, and in particular, the distinction between documents seized versus documents copied. This case arose out of the execution of two search warrants under the Environmental Protection Act 1994 (the “EPA”) on the applicant’s premises, pursuant to which the respondents both seized files and copied and removed electronic material from the applicant’s Chinchilla and Brisbane offices. These warrants were issued on the basis that there were reasonable grounds for suspecting that there was or might be “a particular thing . . . that may provide evidence of the commission of an offence,” namely the wilful causing of serious and/or material environmental harm at the applicant’s Chinchilla site. –. In executing these warrants a “vast amount of material, a great deal of which was outside the scope of the warrant” was either seized or copied onto the respondent’s “storage media” and removed. . Following this the applicant sought a declaration that the seizure and retention of the electronic backup tapes and the storage media was unlawful. –.
Pursuant to s 460(1)(e) of the EPA an authorised person, with a warrant, may “take extracts from, or make copies of, any documents”. This is to be contrasted with s 461 of the EPA which allows an authorised person, with a warrant, to “seize the evidence for which the warrant was issued”. The Chapter then goes on to describe additional requirements for the retention and return of items the subject of a seizure – the statutory language making it apparent that “the subject matter of a seizure under a warrant is something which is located at and physically taken from the relevant place,” , clearly distinct from a document that has been copied. , see discussion –.
Seizure vs Copying
The initial issue before the Court was the significance, if any, of the difference in the means by which documents had been removed from the applicant’s premises. More specifically, whether the distinction between documents physically removed, pursuant to s 461 of the EPA and those copied onto the respondent’s “storage media” and removed, pursuant to s 460, was legally significant. The applicant posited that “those devices onto which electronic material had been copied during . . . the execution of the warrants were themselves items which could be and were seized” ; a position with which the respondent was willing to acquiesce for the purposes of this application. . The Court, however, did not accept the applicant’s submission, contrary as it was to the “ordinary meaning of seizure in this context”. , and, citing the general principle that the Court cannot resolve hypothetical disputes, see , refused to adopt the proposed submission for the purposes of this application. Consequently, the application was confined to those items actually seized, namely the backup tapes. .
Validity of Seizure
The Court then turned to the substantive issue, namely whether the backup tapes had been lawfully seized. In determining the validity of the seizures undertaken the Court first considered the authorising legislation which provides that the “power of seizure [is] limited to something which constitute[s] evidence”. . Thus, prima facie, the lawfulness or otherwise of the respondent’s seizure was dependent upon whether “the item in question was something which might provide evidence of the commission of a relevant offence”. . However, after reviewing the relevant authorities, the Court was not satisfied of the sufficiency of this and instead considered that those executing the warrant must have considered and were reasonably satisfied that the material seized was evidence. –. Applying this to the circumstances of the case the Court concluded that the necessary consideration of the connection “between [the] document and facts or circumstances which might be relevant to [the] prosecution” had not been undertaken and accordingly, the Court held the seizures unlawful. –.