Australian law is still not entirely certain if a Court can review the grounds for the issue of a search warrant.

In Victoria, magistrates issue the bulk of search warrants under s 75 of the Magistrates’ Court Act 1989.

It’s pretty settled now that a magistrate or justice’s decision to issue a search warrant is an administrative, not judicial, one: Ousley v The Queen (1997) 192 CLR 69 at 100; Love v Attorney-General (NSW) (1990) 169 CLR 307. Under Federal Law, that decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1975.

But under Victorian law, decisions made by a Court — presumably including administrative ones — are excluded from the administrative review process because Victoria’s Administrative Law Act 1978 s 2 provides that a ‘tribunal’ does not include a court of law. That might mean Judicial Review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 is one way to review a magistrate’s decision to issue a search warrant.

Alternatively, it might be reviewed in a hearing that relies on evidence derived from the search warrant. In Ousley, the High Court accepted that an inferior court sitting in its judicial capacity — that is, deciding a case — could review a superior court’s (administrative) decision to issue a search warrant.

But in both Ousley and R v Murphy (1989) 167 CLR 94 at 105 – 6 the High Court said a Court reviewing a warrant can only consider the validity of the warrant, not if there were sufficient material or proper grounds for its issue.

Could the Charter of Human Rights and Responsibilities Act 2006 change this?

Last year I wrote about the Canadian Supreme Court’s decision in R v Grant, 2009 SCC 32. In that case, the Court applied a Bunning v Cross style of reasoning to not exclude evidence from an illegal search.

In R v Morelli, 2010 SCC 8 the Canadian Supreme Court applied Grant to hold 4:3 that the search and seizure of an accused’s computer for child pornography relying on a warrant under Criminal Code s 164(1) was unreasonable contrary to s 8 of the Canadian Charter of Rights and Freedoms, and should be excluded under Charter s 24(2).

The main reason for that result was the majority considered the application for the search warrant — the Canadians call it an ITO or Information To Obtain — was misleading.

There are a couple of differences in Canadian law that mean the case must be considered cautiously for Victorian use.

Canadian law has offences for making, distributing, possessing and accessing child pornography.

In contrast, Victorian law proscribes producing and possessing child pornography.

The result is that Australian (and similar UK) jurisprudence considers viewing child pornography as analogous to making a copy of an image in a darkroom, from either a negative or print — and hence as producing child pornography. Applying this analogy, Australian and UK cases consider transferring image data from a server on the internet to a user’s computer — either in the temporary internet cache or a deliberately downloaded file — to be creating a copy. (The prosecution must still prove knowledge as an element of the offence.)

In Morelli the majority considered the information provided to the justice who issued the search warrant didn’t establish an offence of possessing child pornography under Canadian law, though it might have established accessing it.

That meant it wasn’t open to the justice to have found there were reasonable grounds to believe there were copies of child pornography on the accused’s computer.

Specifically, the majority considered that possession required knowing acquisition of the underlying data files and storing or placing them under the accused’s control. With no evidence of that, the search warrant wasn’t justified and so the search and seizure was unreasonable.

Here, Charter s 13(a) (and perhaps s 20 or 21(2)) provides similar protections. It might be that if an accused person challenges the basis for the issue of a search warrant, Morelli could be used to argue that the sufficiency of grounds for issue of the warrant can be considered because of Charter s 39(1).

The consequence might then be unlawful search or seizure under Charter s 38(1), in turn leading to exclusion of evidence under Evidence Act 2008 s 138.