Criminal Law

By Carley Hitchins


Dodgy Police Warrant Ruled Invalid by the High Court

You don’t need to have watched many crime TV shows to appreciate how important search warrants are. As Lord Denning MR memorably stated in Southam v Smout [1964] 1 QB 308 at 320, cited with approval in Plenty v Dillon [1991] HCA 5(1991) 171 CLR 635 at 639 –

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement. So be it – unless he has justification by law.

The scope of police powers are limited by laws concerning search warrants and strict compliance with those laws is necessary, given search warrants authorise the invasion of private interests.[1] Those laws have been designed to strike a balance between law enforcement and civilian liberties.

Though there does tend to be a common theme of police searching wherever and whenever they want without an appropriate warrant and patching up the administrative holes later.

You would have heard about the search of the home of journalist Annika Smethurst last year which was prompted by an April 2018 report on a “top secret” memo leaked from within the Department of Defence. The memo revealed a proposal to grant the Australian Signals Directorate (ASD) unprecedented powers to secretly access Australians’ digital information without a warrant.

The raid sparked a national debate about press freedom, which only intensified when AFP officers searched the ABC’s Sydney headquarters that same week.

On Wednesday last week, the High Court unanimously ruled the warrant used by the AFP to search Ms Smethurst’s home was invalid on the basis that it did not adequately identify the offence being investigated. Justice Edelman stated the warrant:

Lacked the clarity required to fulfil its basic purposes of adequately informing Ms Smethurst why the search was being conducted and providing the executing officer … reasonable guidance to decide which things came within the scope of the warrant.

 The Court held that not only was the warrant ambiguous, it misstated the offence being investigated. That meant that it was impossible for a member of the public to know from reading the warrant what the investigation was about or what kind of information was being sought, but it misstated and misled the reader about the relevant offence.

Despite the Court ruling the warrant invalid, the majority of the Court did not order police to destroy the data taken during the illegal search on Ms Smethurst’s home, as it may disclose criminal conduct.

The mistakes made by the AFP in meeting the most basic requirements for a valid search warrant are concerning, particularly so when this warrant purported to authorise an extremely invasive search of a journalist’s home – a contravention that is inconsistent with the right under section 12 of the Human Rights Act 2004 (ACT), to be free of arbitrary or unlawful interference with her privacy [or] home and the equivalent right under article 17 of the International Covenant on Civil and Political Rights.

This case has prompted concerns over a lack of processes and protections that guard against this kind of outcome for the press. After all, free press and investigative reporting is a key element of the way our liberal democracy works.

We will have to wait and see whether Ms Smethurst is criminally charged, and if so, what the Court does with any of the evidence obtained during the unlawful search and whether it will be admitted or excluded under the broad discretion the Court has to exclude such evidence.  However, such a ruling by the High Court of Australia is an excellent foundation to stop all evidence obtained as a result of the warrant from ever getting before the Court and presumably any prosecution of Ms Smethurst falling over.

[1] George v Rockett (1990) 170 CLR 104.