State v Henry [2003] PGDC 36; DC444 (18 April 2003)

DC444

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 796 OF 2002

State
Complainant

V-

James Henry
Defendant

Case Cited
State -V- Malala Hare [1981] PNGLR 536
State -V- Popo [1987] PNGLR 286.

18 April 2003

REASONS FOR DECISION

E. MOSOKE(M): According to the evidence adduced to Court, it was 11.00pm and a Police Mobile Unit from Madang had patrolled to Banap on the North Coast Road of Madang to investigate on frequent armed hold-ups and other related offences. When returning they found themselves following a vehicle that was travelling ahead of them. On this vehicle about 10 -12 young men were seen standing on the back of the vehicle, some with bare chests. The Police became suspicious so they decided to stop it and carried out a random search of the vehicle and the persons on board after forcing them out of the vehicle. The defendant James Henry was the driver of the vehicle at the time. The search in the cabin was carried out and a factory made shot-gun was found. The search also claimed six (06) live ammunitions, twelve (12) gauge cartridges. An empty shell was also found near the gear box. According to a counter evidence from the defence side, Police also confiscated a mountain bag, a steal axe with wooden handle, silver crome flat screw driver, a nylon rope, a pair of pliers, a tramontina bush-knife, a west papuan knife in wood sheath and a trousers belt which Police did not account for. The defendant and his passengers were ordered to drive ahead while Police following behind to Yomba Police Station. There the defendant and his crew were interrogated and charged. Others were freed without charges.

During trial the prosecution tried to tender in evidence the following items:-

1) A factory made shot-gun

2) Six (6) 12 gauge cartridges, and

3) And an empty shell allegedly fired from the gun by the defendant.

Before they were tendered defence counsel objected to the tendering of such items for the following reasons:-

(a) The conduct of the search was unlawful

(b) The defendant was assaulted and forced to admit the offences charged

(c) No search warrant was obtained to carry out search in the vehicle.

However, the prosecution contended the following situation existed at the time:-

(a) The search was carried out on reasonable ground;

(b) That there may be stolen goods in the vehicle;

(c) That there may be anything in the vehicle which may be intended to be used to commit an indictable offence.

I have considered the opposing arguments and views of the prosecution and the defence. One particular law which has any relevance to the trial in this proceedings is the Search Act. The discovery of the evidence in contention was obtained through a search police carried out on the defendant's vehicle.

THE ISSUE

The issue here is was the search lawful on the face of it? In order to answer this question, we need to look at the Search Act and in particular Section 5 (5) of the Act.

In this section the words "immediate pursuit" are to be taken as meaning immediate, physical pursuit similar to hot pursuit. In this the circumstance the search did not comply with the strict requirements of the Act. Take note that where there is an investigation, follow up or pursuit of a suspect, however notorious it may be is not an immediate pursuit a search warrant is required under section 6(1). Where a search is carried out without first obtaining a search warrant, where such a search is not in "immediate pursuit" the search is unlawful and any evidence obtained thereof is said to be unlawfully obtained and must be rejected. I wish to stress the point that non compliance with the strict requirements of the provisions of the Search Act is in effect a breach of 44 and 49 of the Constitution which guarantees respectively the right to freedom from arbitrary search and entry and the right to privacy.

In the circumstances the Police search of the defendant's vehicle in which the shotgun, 6 x 12 gauge cartridges and an empty shell was obtained should all be rejected. I totally agree with the defence counsel's submission that the search was not in compliance with the strict requirements provided under section 5(5) of the Search Act, therefore all three (3) charges against the defendant will not stand.

The Police have also confiscated other items which are not subject to criminal prosecution will have to returned to the defendant or it's owners. Such items which ought to be returned are the following:-

1) Mountain bag

2) Steel axe - wooden handle

3) Silver crome flat screw driver

4) Nylon rope

5) Pair of Pliers

6) Tramontina bush knife

7) West Papuan knife in wood sheath and

8) Trousers belt.

I wish to make it clear to both the Prosecutor and the defence that although possession of an unlicensed firearm and ammunitions are in contravention of the law under the Firearms Act this case has been decided on the technical aspect of the proceedings rather than the substantive issue of the evidence being presented in court. Any action taken against any person under any laws of the land must always conform to law, it's requirements and set procedures thereof, otherwise such action taken is null and void.

COURT ORDER

This case is dismissed and defendant discharged. Bail money to be refunded.

ERIC MOSOKE
Presiding Magistrate