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

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

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NOTES 18

i

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 other enabling powers.

Supreme Court Act 1986, section 50 of the

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.

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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.

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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;

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(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 and back of the envelope;

(e)

deliver the envelope to the 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

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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—

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*	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.

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S.R. No. 133/1999 r. 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.

_______________
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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.

_______________
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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 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:
[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

*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

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*(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

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S.R. No. 133/1999 r. 7

* 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]

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* Delete if not applicable.

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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

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S.R. No. 133/1999 r. 7

(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.

_______________
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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.	[describe or otherwise identify warrant] by [insert details of the kind	[insert name and address of person(s)] assist in the execution of [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]

_______________
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S.R. No. 133/1999 r. 8

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";

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(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)	the heading "NOTES FOR THE

in Form 6-6C, in the second paragraph under SERVED", for "intend to reply" substitute "intend to rely";

(c) the heading "NOTES FOR THE

in Form 6-6E, in the second paragraph under 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".

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

S.R. No. 133/1999 r. 10

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.

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

Notes S.R. No. 133/1999

NOTES

1 Rule 4: S.R. No. 33/1998 as amended by S.R. Nos 33/1999 and 113/1999.