Search and Surveillance Powers
Additional issues considered
3.30
We have considered the following issues:
whether the test needs to be clarified so that it operates effectively with
respect to intangible evidence such as computer data;
whether the test allows for exculpatory evidence to be seized;
whether the test allows for items that potentially may yield evidential forensic
material to be seized.
Intangible material
3.31
in chapter 7 we discuss issues raised by existing legislation with respect to computer
searches. We note that the current search and seizure regime, subject to some
piecemeal amendments, has largely been designed with tangible items in mind.
The result has been a degree of uncertainty about how it applies to intangible items.
3.32
in chapter 7 we recommend a number of amendments designed to clarify and
expand how the search and seizure regime applies to intangible items. in the
context of the test for what may be seized, we think that it would also be helpful
to clarify that evidential material includes both tangible and intangible items.
3.33
The australian provision defines evidential material to include “a thing in
electronic form”.28 We recommend that the clarification be somewhat broader
than electronic material; future developments in technology will produce
potential intangible evidential material in different forms such as electromagnetic,
organic, chemical or optical.
3.34
We recommend that items that may be the subject of a search should expressly
include intangible items.
Recommendation
3.3 Evidential
material
Exculpatory material
3.35
a ccording to Black’s
… something that tends to prove or disprove the existence of an alleged fact…. Evidence
is the demonstration of a fact; it signifies that which demonstrates, makes clear, or
ascertains the truth of the very fact or point in issue, either on one side or on the other.
in legal acceptation, the term “evidence” includes all means by which any alleged matter
of fact, the truth of which is submitted to investigation is established or disproved.
3.36
The term evidence, of itself, would therefore include both inculpatory
evidence (tending to prove a suspect’s involvement) and exculpatory evidence
(tending to disprove the suspect’s involvement). But as used in section 198,
the term “evidence” is limited by the phrase “as to the commission of any
such offence”. This suggests that the provision is intended to cover only
28
c
rimes
a ct 1914 (
c
th), s 3
