CONFISCATION ACT 1997 - SECT 81 Warrant may be granted by telephone

CONFISCATION ACT 1997 - SECT 81

S. 81(1) amended by Nos 63/2003 s. 20(3)(a), 37/2014 s. 10(Sch. item 25.9(a)), 44/2022 s. 29(1).

    (1)     If, by reason of circumstances of urgency, an applicant for a warrant under section 79 or  79A considers it necessary to do so, the applicant may apply for a search warrant under section 79 or a seizure warrant under section 79A to a magistrate or judge, by telephone, in accordance with this section.

S. 81(2) amended by Nos 37/2014 s. 10(Sch. item 25.9(b)), 6/2018 s. 68(Sch.  2 item 26.5), 44/2022 s. 29(2).

    (2)     Before making the application, the applicant must prepare an affidavit setting out the grounds on which the warrant is sought, but may, if necessary, make the application before the affidavit has been sworn or affirmed.

S. 81(3) amended by Nos 37/2014 s. 10(Sch. item 25.9(b)), 6/2018 s. 68(Sch.  2 item 26.6), 33/2018 s. 82(a), 44/2022 s. 29(2).

    (3)     If transmission by facsimile machine or other electronic communication is available, the applicant must transmit a copy of the affidavit, even if the affidavit is not sworn or affirmed, to the magistrate or judge who is to hear the application by telephone.

S. 81(4) amended by No. 63/2003 s. 20(3)(b).

    (4)     If—

        (a)     after having considered the terms of the affidavit; and

        (b)     after having received any further information that the magistrate or judge requires concerning the grounds on which the warrant is being sought—

the magistrate or judge is satisfied as required by section 79(2) or section 79A(2) (as the case requires), he or she may issue a search warrant.

S. 81(5) amended by No. 63/2003 s. 20(3)(c).

    (5)     If a magistrate or judge issues a search warrant or a seizure warrant on an application made by telephone, he or she must—

        (a)     inform the applicant of the terms of the warrant and the date on which and the time at which it was issued, and record on the warrant the reasons for issuing the warrant; and

S. 81(5)(b) amended by No. 33/2018 s. 82(b).

        (b)     if transmission by facsimile machine or other electronic communication is available, transmit a copy of the warrant to the applicant.

S. 81(6) amended by Nos 63/2003 s. 20(3)(d)(i), 33/2018 s. 82(c).

    (6)     If a copy of the search warrant or the seizure warrant has not been transmitted by facsimile machine or other electronic communication, the applicant must—

S. 81(6)(a) amended by No. 63/2003 s. 20(3)(d)(ii).

        (a)     complete a form of search warrant or a seizure warrant (as the case requires) in the terms furnished to the applicant by the magistrate or judge and must write on it the name of the magistrate or judge and the date on which and the time at which the warrant was issued; and

S. 81(6)(b) amended by No. 63/2003 s. 20(3)(d)(iii).

        (b)     not later than the day following the date of the execution of the search warrant or the seizure warrant (as the case requires) or the expiry of the warrant, whichever is earlier, send the form of warrant completed by the applicant to the magistrate or judge who issued the warrant.

S. 81(7) amended by Nos 63/2003 s. 20(3)(e), 6/2018 s. 68(Sch.  2 item 26.7).

    (7)     If an application is made by telephone, whether or not a search warrant or a seizure warrant is issued, the applicant must, not later than the day following the making of the application, send the original affidavit duly sworn or affirmed to the magistrate or judge who heard the application.

    (8)     In any proceeding, if it is material for a court to be satisfied that an entry, search or seizure was authorised in accordance with this section, and the warrant signed by a magistrate or judge in accordance with this section authorising the entry, search or seizure is not produced in evidence, the court must assume, unless the contrary is proved, that the entry, search or seizure was not authorised by such a warrant.