Victorian Current Acts

MAGISTRATES' COURT ACT 1989 - SECT 78

    (1)     A search warrant authorises the person to whom it is directed—

        (a)     if the warrant is to search for a person—

              (i)     to break, enter and search any place where the person named or described in the warrant is suspected to be; and

              (ii)     to arrest the person named or described in the warrant; and

        (b)     if the warrant is to search for any thing—

S. 78(1)(b)(i) amended by No. 25/2009 s. 18(1).

              (i)     to break, enter and search any place or vehicle named or described in the warrant for any article, thing or material of any kind named or described in the warrant; and

              (ii)     to bring the article, thing or material before the Court so that the matter may be dealt with according to law; and

              (iii)     to arrest any person apparently having possession, custody or control of the article, thing or material.

    (2)     The person to whom a search warrant is directed must cause the person named or described in the warrant, or apparently having possession, custody or control of any article, thing or material named or described in the warrant, when arrested—

S. 78(2)(a) amended by No. 49/1990 s. 5(e).

        (a)     to be brought before a bail justice or the Court within a reasonable time of being arrested to be dealt with according to law; or

        (b)     to be released on bail in accordance with the endorsement on the warrant.

Note to s. 78(2) inserted by No. 26/2017 s. 24(3).

Note

Section 10A or 12 of the Bail Act 1977 applies on a person being brought before a bail justice or the Court at the expiration of the reasonable time referred to in subsection (2)(a).

S. 78(3) amended by No. 26/2017 s. 24(4).

    (3)     A person arrested on a search warrant may be discharged from custody on bail in accordance with the Bail Act 1977 .

S. 78(4) inserted by No. 49/1990 s. 5(f).

    (4)     In determining what constitutes a reasonable time for the purposes of subsection (2)(a) the matters specified in section 464A(4) of the Crimes Act 1958 may be considered.

S. 78(4A) inserted by No. 70/2010 s. 28.

    (4A)     If a person is brought before a bail justice or the Court in accordance with subsection (2)(a), the bail justice or the Court is not bound by the endorsement on the warrant when determining any matter in relation to bail.

S. 78(5) inserted by No. 71/1993 s. 5, amended by Nos 48/2012 s. 38, 6/2018 s. 68(Sch.  2 item 81.4).

    (5)     For the purposes of subsection (1)(b)(ii) an article, thing or material may be brought before the Court by giving evidence on oath or by affirmation to the Court as to the present whereabouts of the article, thing or material and by producing a photograph of it.

S. 78(6) inserted by No. 71/1993 s. 5.

    (6)     The Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.

S. 78(7) inserted by No. 25/2009 s. 18(2).

    (7)     In this section—

"vehicle" includes motor vehicle, aircraft and vessel.

Subdivision 6—Remand warrants