Supreme Court (Chapter VI Amendment No. 3) Rules 1999

i Supreme Court (Chapter VI Amendment No. 3) Rules 1999 S.R. No. 133/1999 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Subpoenas 2 6. Substitution of Order 7 2 ORDER 7—SURVEILLANCE DEVICES RULES 2 7.01 Definition 2 7.02 Application of Order 2 7.03 Forms of application to Court 2 7.04 Filing and service of documents 3 7.05 Form of warrants 3 7.06 Reports under section 20 3 7.07 Assistance orders 4 7.08 Reports under section 28 4 7. Substitution of Forms 6-7A and 6-7B 5 8. Correction of numbering error 15 9. Corrections to forms under Order 2 15 10. Corrections to forms under Order 6 16 ═══════════════ NOTES 18 -- 1 of 19 -- 1 STATUTORY RULES 1999 S.R. No. 133/1999 Supreme Court Act 1986 Interpretation of Legislation Act 1984 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to amend the Principal Rules to provide for applications for, and the issue of, warrants and assistance orders under the Surveillance Devices Act 1999 and to make other minor amendments to Chapter VI of the Rules of the Supreme Court. 2. Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986, section 50 of the Interpretation of Legislation Act 1984 and all other enabling powers. 3. Commencement These Rules come into operation on 1 January 2000. 4. Principal Rules In these Rules, Chapter VI of the Rules of the Supreme Court1 is called the Principal Rules. -- 2 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 2 5. Subpoenas In Rule 1.12 of the Principal Rules, after "Rules relate" insert ", except an appeal or an application for leave to appeal". 6. Substitution of Order 7 For Order 7 of the Principal Rules substitute— 'ORDER 7—SURVEILLANCE DEVICES RULES 7.01 Definition In this Order— "the Act" means the Surveillance Devices Act 1999. 7.02 Application of Order This Order applies to all proceedings in the Court under the Act. 7.03 Forms of application to Court (1) An application under section 15(1) of the Act by a law enforcement officer for the issue of a listening device warrant, an optical surveillance device warrant, a data surveillance device warrant, a tracking device warrant or a composite warrant may be in Form 6-7A. (2) An application under section 15(2) of the Act by a law enforcement officer for the issue of a retrieval warrant may be in Form 6-7B. (3) An application under section 21(1) of the Act by a law enforcement officer for an assistance order may be in Form 6-7C. r. 5 -- 3 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 3 7.04 Filing and service of documents Unless the Court otherwise orders, an application and any affidavit in support shall— (a) be filed before the application is made with the Associate to the Judge from whom the warrant or order is sought; and (b) not be available for inspection by any person. 7.05 Form of warrants (1) A listening device warrant, an optical surveillance device warrant, a data surveillance device warrant, a tracking device warrant and a composite warrant may be in Form 6-7D. (2) A retrieval warrant may be in Form 6-7E. 7.06 Reports under section 20 (1) A person who is required to furnish a report under section 20 of the Act shall file the report with the Associate to a Judge. (2) A copy of the warrant to which the report relates shall be filed with the report. (3) Subject to any direction of the Judge, the Associate shall— (a) place the report, together with the copy of the warrant, in an envelope; (b) write on the envelope the number of the warrant to which the report relates, the name of the Judge who issued the warrant, the section of the Act under which the report is furnished and the date the report was filed; r. 6 -- 4 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 4 (c) seal the envelope in a way that prevents the envelope from being opened again without detection; (d) write or stamp "Not to be opened except by order of a Judge" on the front and back of the envelope; (e) deliver the envelope to the Prothonotary who shall ensure that it is stored securely and that the contents are not seen by any person except on the order of a Judge. 7.07 Assistance orders (1) An assistance order under section 22 of the Act may be in Form 6-7F. (2) Before obtaining assistance under an assistance order, the person who obtained the order shall ensure that a copy of the order has been given to the person against whom the order was made. (3) The endorsement of the order on the warrant may be in Form 6-7G. 7.08 Reports under section 28 (1) A person who is required to furnish a report under section 28 of the Act shall file the report with the Associate to a Judge for consideration by the Judge under sections 29 and 30 of the Act. (2) A copy of the emergency authorisation to which the report relates shall be filed with the report. (3) When the Judge so directs, the Associate shall deal with the report, together with the copy of the emergency authorisation, in the r. 6 -- 5 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 5 manner provided by Rule 7.06(3) with any necessary modification. (4) Unless the Judge otherwise directs, any evidence, information or record brought before a Judge under section 29(1) of the Act shall be dealt with by the Associate to the Judge in the manner provided by Rule 7.06(3) with any necessary modification.'. 7. Substitution of Forms 6-7A and 6-7B For Forms 6-7A and 6-7B of the Principal Rules substitute— "Rule 7.03(1) FORM 6-7A IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the Surveillance Devices Act 1999 and IN THE MATTER of an application for a warrant to use a surveillance device. APPLICATION FOR WARRANT I, [name of law enforcement officer], [rank/position of officer] of [organisation to which officer belongs] at [name of station/address of premises at which officer works] apply for the issue of a warrant authorising the use of— *a listening device; *an optical surveillance device; *a data surveillance device; *a tracking device. I *suspect/*believe that— (a) the following offence [insert details of offence] *has been/*is being/*is about to be/*is likely to be committed; and (b) that for the purpose of— r. 7 -- 6 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 6 * an investigation into that offence; * enabling evidence to be obtained of the commission of that offence; * enabling evidence to be obtained of the identity or location of the offender— the use of the surveillance device(s) is necessary. *THIS APPLICATION is made in reliance upon the acts, facts, matters and circumstances set out and deposed to in the affidavit of [insert name of deponent] made on [date of affidavit] in support of this application. OR *I believe that the immediate use of the surveillance device(s) is necessary for a purpose referred to in paragraph (b). It was impractical for an affidavit to be prepared or sworn before this application was made for the following reasons: [insert reasons] I undertake to send an affidavit to the Judge constituting the Court not later than the day following the making of this application, whether or not a warrant has been issued. *The surveillance device does not have more than one kind of function. OR *The surveillance device has the following kinds of functions: The making of this application was approved by [insert name and rank/position of the relevant officer]. Date: [Applicant's signature] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable. _______________ r. 7 -- 7 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 7 Rule 7.03(2) FORM 6-7B IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the Surveillance Devices Act 1999 and IN THE MATTER of an application for a retrieval warrant. APPLICATION FOR RETRIEVAL WARRANT I, [name of law enforcement officer], [rank/position of officer] of [organisation to which officer belongs] at [name of station/address of premises at which officer works] *SUSPECTING/*BELIEVING that a surveillance device, namely a [describe type of surveillance device], that was lawfully installed on premises at [insert address or other description of premises], is still on those premises, HEREBY APPLY under section 15 of the Surveillance Devices Act 1999 for the issue of a warrant authorising the retrieval of the device. THIS APPLICATION is made in reliance upon the acts, facts, matters and circumstances set out and deposed to in the affidavit of [insert name of deponent] made on [date of affidavit] in support of this application. Date: [Applicant's signature] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable. _______________ r. 7 -- 8 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 8 Rule 7.03(3) FORM 6-7C IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the Surveillance Devices Act 1999 and IN THE MATTER of an application for an assistance order. APPLICATION FOR ASSISTANCE ORDER I, [name of law enforcement officer], [rank/position of officer] of [organisation to which officer belongs] at [name of station/address of premises at which officer works] *HAVING APPLIED for/*INTENDING TO APPLY for a warrant under Division 1 of Part 4 of the Surveillance Devices Act 1999 ("the Act") AND BELIEVING that it is necessary to obtain the assistance of another person for the effective execution of the warrant HEREBY APPLY under section 21 of the Act for an order directing [insert name and address of person against whom the order is sought] to assist in the execution of [describe or otherwise identify the warrant in respect of which the order is sought]. by [insert details of the kind of assistance that the person is to give] in the following manner: [insert details of the manner in which the assistance is to be given]. *IT IS PROPOSED that the Order should be subject to the following conditions [describe conditions, if any]. THIS APPLICATION was approved by [insert name and rank/position of the relevant officer] AND is made in reliance upon the acts, facts, matters and circumstances set out and deposed to in the affidavit of [insert name of deponent] made on [date of affidavit] in support of this application. Date: [Applicant's signature] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable. _______________ r. 7 -- 9 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 9 Rule 7.05(1) FORM 6-7D IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the Surveillance Devices Act 1999 and IN THE MATTER of an application for a warrant under that Act. WARRANT THIS WARRANT which is issued by the Supreme Court of Victoria to [name of law enforcement officer making the application for the warrant], [rank/position of officer], of [organisation to which officer belongs] at [name of station/address of premises at which officer works] ("the applicant") authorises the use of the following surveillance device under the Surveillance Devices Act 1999 ("the Act") for the purpose of an investigation into the alleged offence of [specify alleged offence] or of enabling evidence to be obtained of the commission of that offence or the identity or location of the offender: *a data surveillance device; *a listening device; *an optical surveillance device; *a tracking device. *THE APPLICATION was supported by the following affidavit or affidavits setting out the grounds on which the warrant was sought: [insert name of deponent and date of the affidavit or each affidavit relied upon]. THE COURT IS SATISFIED— (a) that there are reasonable grounds for the applicant's suspecting or believing— (i) that the offence specified above *has been/*is being/*is about to be/*is likely to be committed; and (ii) that the use of the surveillance device is necessary for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of that offence or the identity or location of the offender; and *(b) (in the case of an application referred to in section 15(4) of the Act) that it would have been impractical for an affidavit to have been made before the application was made; and r. 7 -- 10 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 10 *(c) (in the case of an application referred to in section 16 of the Act) that it would have been impractical for the applicant to have applied in person for the warrant. IN DETERMINING THAT the warrant should be issued the Court had regard to (among other things) the several matters listed in section 17(2) of the Act. MATTERS SPECIFIED FOR THE PURPOSES OF SECTIONS 17 AND 18 ALLEGED OFFENCE The alleged offence in respect of which this warrant is issued is specified above. *PERSONS TO BE OVERHEARD OR MONITORED The person(s) whose private conversations or private activities may be overheard, recorded, monitored or listened to is/are [insert name(s) if known or, if not known, state that fact and give such description of the person(s) as can be given, either by place, time or circumstance]. *PERSONS WHOSE COMPUTER USE TO BE RECORDED OR MONITORED The person(s) on whose behalf information that may be recorded or monitored is input into or output from a computer is/are [insert name(s) if known or, if not known, state that fact and give such description of the person(s) as can be given, either by place, time or circumstance]. *PERSON(S) AND/OR OBJECT(S) TO BE TRACKED The person(s) whose geographical location it is sought to determine is [insert name(s) if known or, if not known, state that fact and give such description of the person(s) as can be given, either by place, time or circumstance]. PERIOD OF WARRANT The period for which this warrant is in force begins on [insert date (and time, if applicable)] and ends on [insert date (and time, if applicable)], both inclusive. WHO MAY USE THE DEVICE The names of the law enforcement officers who may use the surveillance device under this warrant are [insert the names of all officers authorised to act under this warrant]. WHEREABOUTS OF DEVICE r. 7 -- 11 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 11 * The device is to be installed on premises at [identify premises, if known] or is to be used at [insert description of place, if known]. * The device is to be used in or on the following object, that is to say [insert description of object]. *CONDITIONS ATTACHED This warrant is subject to the following conditions: [insert any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant]. TIME FOR REPORT TO COURT The applicant must report to the Court under section 20 of the Act before [insert date and time]. OTHER PREMISES SPECIFIED UNDER SECTION 18(1)(f) *For the purposes of section 18(1)(f) of the Act, the following other premises are specified: [insert details of premises adjoining, or providing access to, premises specified under section 17(3) of the Act]. Date: [signature of Judge] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable. _______________ r. 7 -- 12 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 12 Rule 7.05(2) FORM 6-7E IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the Surveillance Devices Act 1999 and IN THE MATTER of an application for a retrieval warrant RETRIEVAL WARRANT THIS WARRANT which is issued under the Surveillance Devices Act 1999 ("the Act") by the Supreme Court of Victoria upon the application of [name of law enforcement officer making the application for the warrant], [rank/position of officer], of [organisation to which officer belongs] at [name of station/address of premises at which officer works] AUTHORISES THE RETRIEVAL of [insert description of surveillance device to be retrieved] ("the device") from [insert address or description of premises at which the device is suspected or believed to be]. THE APPLICATION was supported by the following affidavit or affidavits setting out the grounds on which the warrant was sought: [insert name of deponent and date of each affidavit relied upon by the applicant] IN DETERMINING that this warrant should be issued, the Court had regard to (among other things) the several matters listed in section 17(4) of the Act. PERIOD OF WARRANT (NOT EXCEEDING 90 DAYS) The period for which this warrant is in force begins on [insert date (and time if applicable)] and ends on [insert date (and time if applicable)], both inclusive. CONDITIONS ATTACHED This warrant is subject to the following conditions: [insert any conditions subject to which the premises may be entered under the warrant]. TIME FOR REPORT TO COURT The person to whom this warrant is issued must report to the Court under section 20 of the Act before [insert date and time]. POWERS CONFERRED BY THIS WARRANT This warrant authorises— (a) the retrieval of the device and any enhancement equipment in relation to the device; and r. 7 -- 13 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 13 (b) the entry, by force if necessary, on to the premises where the surveillance device is reasonably believed to be, or other premises adjoining or providing access to those premises, for the purpose of retrieving the device and equipment. Date: [signature of Judge] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable. _______________ r. 7 -- 14 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 14 Rule 7.07(1) FORM 6-7F IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the Surveillance Devices Act 1999 and IN THE MATTER of an application for an assistance order ASSISTANCE ORDER THE COURT ORDERS THAT: 1. [insert name and address of person(s)] assist in the execution of [describe or otherwise identify warrant] by [insert details of the kind of assistance that the person must give] in the following manner: [insert details of the manner in which the assistance must be given]. 2. The following conditions apply: [insert any conditions subject to which the order is made] INFORMATION FOR PERSON(S) DIRECTED TO ASSIST This order has effect only during the period in which the warrant described above is in force. The warrant is in force from [date (and time, if applicable) warrant starts/started] to [date (and time, if applicable) warrant is to end]. Sections 23 and 24 of the Surveillance Devices Act 1999 provide as follows: [insert copy of sections 23 and 24 of the Surveillance Devices Act 1999] Date: [signature of Judge] _______________ r. 7 -- 15 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 15 Rule 7.07(3) FORM 6-7G ENDORSEMENT OF ASSISTANCE ORDER On [insert date] in the Supreme Court of Victoria, the Honourable [insert name of Judge] made an assistance order under section 22 of the Surveillance Devices Act 1999. The order was that [set out paragraph 1 of the order]. The following conditions applied [set out paragraph 2 of the order].". 8. Correction of numbering error In Rule 6.10(4) of the Principal Rules, for "(b) such" substitute "(d) such". 9. Corrections to forms under Order 2 In the Principal Rules— (a) in Form 6-2B, for "Notice of Appeal against my conviction (particulars of which are set out below) to the Court of Appeal" substitute "notice of appeal to the Court of Appeal against my conviction (particulars of which are set out below)"; (b) in Form 6-2C, for "appeal against my conviction (particulars of which are set out below) to the Court of Appeal" substitute "appeal to the Court of Appeal against my conviction (particulars of which are set out below)"; (c) in Forms 6-2C and 6-2D, in the list of Particulars— (i) in item 1, for "Appellant's" substitute "Applicant's"; (ii) in items 8 and 9, for "appellant" substitute "applicant"; r. 8 -- 16 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 16 (d) in Form 6-2D, for "apply to the Court of Appeal for leave to appeal to the Court" substitute "appeal to the Court of Appeal"; (e) in Form 6-2FA, for "form below" substitute "enclosed form". 10. Corrections to forms under Order 6 In the Principal Rules— (a) in Form 6-6B, in item 2 under the heading "AS A PERSON TO WHOM THIS NOTICE IS GIVEN", for "serve on the application" substitute "serve on the Applicant"; (b) in Form 6-6C, in the second paragraph under the heading "NOTES FOR THE PERSON(S) ON WHOM THIS NOTICE IS SERVED", for "intend to reply" substitute "intend to rely"; (c) in Form 6-6E, in the second paragraph under the heading "NOTES FOR THE PERSON(S) ON WHOM THIS NOTICE IS SERVED"— (i) for "also provides" substitute "also provide"; (ii) for "intend to reply" substitute "intend to rely"; (d) in Form 6-6L, in the third paragraph under the heading "NOTES FOR THE PERSON(S) ON WHOM THIS NOTICE IS SERVED", for "serve on the application" substitute "serve on the Applicant". r. 10 -- 17 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 17 Dated: 9 December 1999 J. H. PHILLIPS, C.J. ROBERT BROOKING, J.A. R. C. TADGELL, J.A. W. F. ORMISTON, J.A. JOHN D. PHILLIPS, J.A. STEPHEN CHARLES, J.A. F. H. CALLAWAY, J.A. J. M. BATT, J.A. PETER BUCHANAN, J.A. ALEX CHERNOV, J.A. G. HAMPEL, J. F. H. R. VINCENT, J. BERNARD G. TEAGUE, J. ALLAN W. McDONALD, J. T. H. SMITH, J. DAVID ASHLEY, J. JOHN J. HEDIGAN, J. JOHN COLDREY, J. DAVID BYRNE, J. D. L. HARPER, J. H. R. HANSEN, J. PHILIP MANDIE, J. ROSEMARY BALMFORD, J. E. W. GILLARD, J. ═══════════════ r. 10 -- 18 of 19 -- S.R. No. 133/1999 Supreme Court (Chapter VI Amendment No. 3) Rules 1999 18 NOTES 1 Rule 4: S.R. No. 33/1998 as amended by S.R. Nos 33/1999 and 113/1999. Notes -- 19 of 19 --