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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70526
Experience:  Over 5 years in practice
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I was visiting a friend at her house . While I was there the

Resolved Question:

I was visiting a friend at her house . While I was there the police raided the property for her son. During this raid the police have taken my mobile phone because it was on a table and not in my pocket. They have given me nothing to say that they have taken my property. I would like to know if they have the right to do this and how I can get it back. What happened at the property had nothing to do with me and I have never been in trouble with the police before. Your advice would be much appreciated
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

When did this happen please?
Customer: replied 3 years ago.

Friday 21 march 2014.

Expert:  Jo C. replied 3 years ago.
Thanks.

Its fairly bad news I'm afraid.

They have the right under either S32 or S18 to seize basically anything that they reasonably suspect was involved in an offence or contains evidence. I imagine this was a drugs warrant and mobile phones are classic evidence sources with drugs offences.

I realise that the phone was yours and not his but the problem with that is that the police don't know that. Even if its on contract not pay as you go to you they don't know that it doesn't contain useful evidence until its examined.

In terms of getting back, it depends. If the officer is willing to accept that it belongs to you then he might return it. They do not seem to have arrested you so he might accept you were an innocent party.

If he is adamant that it needs to be examined then he is able to do that. You should have it returned to you when its examined and nothing is found because then it would not be an exhibit in any case against him.

If they do not do that then you can always apply to the Magistrates Court for its return pursuant to the police property act. You could do that now as well but its not a good idea. They will defend on the basis that they have a legitimate reason to retain it and you will lose and be battered with costs.

Failing all of that then you will get it back at the end of the case.

In short, the police can retain anything that is not either unlawful per se or being used in the course of an investigation.

If you need information from it then the OIC might well let you gather that through an evidence bag.

I'm sorry this isn't the answer you wanted but it is the position that you face and I have a duty to inform you truthfully.

Hope this helps. Please let me know if you need more information.

Jo
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