State v Matacagi [2003] FJHC 333; HAC011.2002S (28 January 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 011 OF 2002S

STATE

V

ABARAMA MATACAGI

Hearing: 28th January 2003
Ruling: 28th January 2003

Counsel: Ms A. Prasad for State
Ms M. Chan for Accused

RULING

The Defence objects to any evidence being led in relation to the police search of the accused’s house at 11am on the 11th of April 2000, and in respect of any items seized as a result of the search. The objection is on the ground that the accused was never shown a search warrant and that different items were seized than were originally on the search warrant.

Section 103 of the Criminal Procedure Code provides:

Section 104 of the Code provides:

Section 105 of the Code provides:

The evidence led during the trial within a trial was that the police obtained a search warrant. DC Remesio said that the accused in any event allowed them to search the house and freely gave them the items the warrant had been issued in respect of. The accused disputed that in his evidence saying that he had not been shown the search warrant, and that he had not voluntarily given the police any items at all.

In fact the search warrant entitled to the police to search the premises with or without the accused’s consent. Section 105(1) does not lay down a condition precedent to the execution of the warrant. It provides for the duty of any person residing in the house or being in charge of it, to allow the police to enter and search after being shown the warrant. The warrant need not be shown (except on request) for execution. In any event, once the accused was under arrest (as he was from 1.20pm on the 10th of April), the police under section 17 of the Code could have searched the accused and any articles under his control, without a warrant.

The conditions precedent to the execution of a search warrant under section 103 are –

1. that the accused had proven to a magistrate or justice of the peace on oath that there was reasonable suspicion that items in relation to the investigation of the offence were in the building;
   
2. that a warrant was issued accordingly;
   
3. that unless otherwise authorised the warrant must be executed during the daylight hours;
   
4. that reasonable care is taken to preserve the items seized until conclusion of the case.
   

These principles are drawn from sections 103, 104 and 105 of the Criminal Procedure Code, and indeed were drawn from the common law. As Wright J said in R –v- Lushington ex p Otto [1893] UKLawRpKQB 179; (1894) 1 QB 420 at 423 – 424:

"In this country I take it that it is undoubted law that it is within the power of, and is the duty of, constables to retain for use in court, things which may be evidence of crime and which have come into the possession of constables without wrong on their part."

The common law does not permit police officers to ransack or search homes without arrest or search warrant, and if an item has been unlawfully obtained, "... the court would not allow it to be used in evidence against (the accused), if the conduct of the police was so oppressive that it would not be right to allow the Crown to rely upon it" (per Denning M.R. in Ghani –v- Jones (1970) 1 QB 693).

As to the allegations of trick, I see that the accused’s signature is on the search list, made out at the time the search was conducted at 11am on the 11th of April. Although the accused disputes that, I accept that he was shown the search list and that he consented to the seizure of the items listed. Further, his consent was not necessary for the seizure of the items because the police were executing a search warrant.

In this case I am satisfied beyond reasonable doubt that the police conducted their search after obtaining a search warrant and that the items seized were seized lawfully. They may be led in evidence.

Nazhat Shameem
JUDGE

At Suva

28th January 2003