81Warrant to search premises

81 Warrant to search premises S. 81(1) amended by Nos 16/1986 s. 30, 101/1986 s. 58(1)(c), 57/1989 s. 3(Sch. item 59.8(a)–(c)), 48/1997 s. 44(1)(a), 25/2009 s. 6(1), 37/2014 s. 10(Sch. item 47.38(a)), 6/2018 s. 68(Sch. 2 item 42.1), 33/2018 s. 90. (1) Any magistrate who is satisfied by evidence on oath or by affirmation or by affidavit of any police officer of or above the rank of sergeant or for the time being in charge of a police station that there is reasonable ground for believing that there is, or will be within the next 72 hours, on or in any land or premises (including any vehicle on or in that land or those premises), or on or in a particular vehicle located in a public place— S. 81(1)(a) amended by No. 48/1997 s. 44(1)(b). (a) any thing in respect of which an offence under this Act or the regulations has been or is reasonably suspected to have been committed or is being or is likely to be committed within the next 72 hours; (b) any thing which there is reasonable ground to believe will afford evidence of the commission of an offence under this Act or the regulations; or (c) any document directly or indirectly relating to or concerning a transaction or dealing which is or would be, if carried out, an offence under this Act or the regulations or under a provision of a law in force in a place outside Victoria corresponding to Part V of this Act— may at any time issue a warrant authorizing a police officer named in the warrant to enter and search the land, premises or vehicle for any such thing or document and to seize and carry it before the Court so that the matter may be dealt with according to law. S. 81(1AA) inserted by No. 25/2009 s. 6(2), amended by No. 37/2014 s. 10(Sch. item 47.38(a)). (1AA) A search warrant directed to a named police officer under subsection (1) may be executed by any police officer. S. 81(1AB) inserted by No. 48/2012 s. 41, amended by No. 6/2018 s. 68(Sch. 2 item 42.1). (1AB) For the purposes of subsection (1), a seized thing may be brought before the Court by giving evidence on oath or by affirmation to the Court as to the present whereabouts of the thing and by producing a photograph of it. S. 81(1A) inserted by No. 63/2003 s. 46(1), amended by Nos 25/2009 s. 6(3), 37/2014 s. 10(Sch. item 47.38(a)). (1A) A magistrate who issues a warrant under subsection (1), if satisfied on reasonable grounds by the evidence given under that subsection that the thing or document to which the warrant relates is also tainted property within the meaning of the **Confiscation Act 1997**, may, in that warrant, direct that the police officer executing the warrant hold or retain that thing or document as if it were tainted property seized under a warrant under section 79 of that Act as and from the date when that thing or document is no longer required for evidentiary purposes under this Act. S. 81(1B) inserted by No. 63/2003 s. 46(1). (1B) A direction under subsection (1A)— S. 81(1B)(a) amended by No. 87/2004 s. 25. (a) may only be made in relation to an offence under this Act which is a Schedule 1 offence within the meaning of the **Confiscation Act 1997**; and (b) does not apply to a thing which may be destroyed or disposed of under subsection (3)(e). (2) Every warrant under subsection (1) shall be in or to the effect of the form of Schedule Ten. S. 81(3) amended by Nos 25/2009 s. 6(4)(a), 37/2014 s. 10(Sch. item 47.38(a)). (3) A police officer executing a warrant issued under subsection (1) may at any time or times by day or night but within one month from the date of the warrant and with such assistance as may be necessary— S. 81(3)(a) substituted by No. 25/2009 s. 6(4)(b). (a) enter, if need be by force— (i) the land or premises named in the warrant, including any vehicle located on or in that land or those premises; (ii) the particular vehicle named or described in the warrant located in a public place; S. 81(3)(b) amended by No. 25/2009 s. 6(4)(c). (b) arrest all persons on or in that land, those premises or that vehicle who are found offending against a provision of this Act or the regulations; S. 81(3)(c) substituted by No. 25/2009 s. 6(4)(d). (c) search— (i) the land or premises or any vehicle or any person found on or in that land or those premises or on or in any vehicle on or in that land or those premises; (ii) a particular vehicle located in a public place or any person found on or in that vehicle; and S. 81(3)(d) amended by Nos 48/1997 s. 44(2)(a)(b), 63/2003 s. 46(2). (d) seize and carry away or, unless a direction under subsection (1A) applies, deal with as mentioned in paragraph (e)— (i) any thing in respect of which an offence under this Act or the regulations has been or is reasonably suspected to have been committed; (ii) any thing which there is reasonable ground to believe will afford evidence of the commission of an offence under this Act or the regulations; and (iii) any document directly or indirectly relating to or concerning a transaction or dealing which is or would be, if carried out, an offence against this Act or the regulations or under a provision of a law in force in a place outside Victoria corresponding to a provision of Part V of this Act; and S. 81(3)(e) inserted by No. 48/1997 s. 44(2)(b). (e) if— (i) the thing is— (A) a drug of dependence or a substance that contains a drug of dependence; or (B) a poison or controlled substance; or (C) an instrument, device or substance that is or has been used or is capable of being used for or in the cultivation, manufacture, sale or use or in the preparation for cultivation, manufacture, sale or use of a drug of dependence; and S. 81(3)(e)(ii) amended by No. 37/2014 s. 10(Sch. item 47.38(a)). (ii) an analyst or botanist within the meaning of section 120 certifies in writing to the police officer executing the warrant that destruction or disposal of the thing is required in the interests of health or safety— destroy or dispose of the thing after taking, where practicable, any samples of it as are required for the purposes of this Act. S. 81(4) amended by Nos 57/1989 s. 3(Sch. item 59.9), 48/1997 s. 44(3), substituted by No. 25/2009 s. 6(5), amended by No. 37/2014 s. 10(Sch. item 47.38(b)(i)). (4) A police officer who executes a warrant under this section must, as soon as practicable after the warrant is executed— (a) endorse the warrant to that effect; and S. 81(4)(b) amended by No. 37/2014 s. 10(Sch. item 47.38(b)(ii)). (b) cause to be lodged with the registrar of the Magistrates' Court at the venue nearest to the land, premises or public place where the warrant was executed a report signed by the police officer and containing particulars of— (i) all searches undertaken; and (ii) all persons arrested; and (iii) all things and documents seized and carried away; and (iv) all samples taken; and (v) all things destroyed or disposed of— in execution of the warrant. S. 81(4A) inserted by No. 63/2003 s. 46(3). (4A) If a direction under subsection (1A) was made, a report referred to in subsection (4)(b) must also include particulars of whether a seized thing or document is being held or retained as if it were tainted property within the meaning of the **Confiscation Act 1997** seized under a warrant under section 79 of that Act. S. 81(5) amended by No. 57/1989 s. 3(Sch. item 59.10(a)(b)). (5) On application in that behalf by a person made to the Magistrates' Court at the venue at which a report has been lodged pursuant to subsection (4), the Court may make an order authorizing the person to inspect the report if the person satisfies the Court that he is— (a) a person who was arrested in the course of the execution of the warrant; (b) the owner or occupier of premises upon which the warrant was executed; or S. 81(5)(ba) inserted by No. 25/2009 s. 6(6). (ba) the owner of the vehicle located in a public place on which the warrant was executed; or S. 81(5)(c) amended by No. 48/1997 s. 44(4). (c) the owner of the property seized and carried away in the execution of the warrant; or S. 81(5)(d) inserted by No. 48/1997 s. 44(4). (d) the owner of property destroyed or disposed of in execution of the warrant. S. 81(6) inserted by No. 48/1997 s. 44(5). (6) If a sample of a thing referred to in subsection (3)(e) taken in execution of a warrant is sufficient to enable an analysis or examination to be made both in the investigation of an offence and on behalf of a person arrested in the course of the execution of the warrant, a part of the sample taken sufficient for analysis or examination must, on request by the person arrested, be delivered to an analyst or botanist within the meaning of section 120 nominated by that person. S. 81(7) inserted by No. 25/2009 s. 6(7), amended by No. 37/2014 s. 10(Sch. item 47.38(c)). (7) Nothing in this section affects the power of a police officer under section 82. S. 81(8) inserted by No. 25/2009 s. 6(7). (8) In this section— S. 81(8) def. of *public place* repealed by No. 40/2017 s. 13. ***vehicle*** includes motor vehicle, aircraft, boat and vessel. S. 81A inserted by No. 63/2003 s. 47.