Mondu v Ifana [2008] PGDC 10; DC655 (14 March 2008)

DC655

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 1149 of 2007

BETWEEN

CHRISTOPHER MONDU
Informant

AND

PIPSY IFANA
Defendant

Goroka: F MANUE
2007: October 18, September 09
2008: March 06

CRIMINAL- Particular offence –Possession of properties suspected of being stolen, properties locked in an empty house – The house broken into by police – Search Warrant not produced and shown to defendant – whether that was lawful. Defendant was asked to deny by Police – Whether such behaviour is acceptable and lawful, coupled by bail moneys being used by Police officers.

Cases Cited
The State –v- James Ben Popo [1987] PNGLR 286
John Alex –v- Martin Golu [1983] PNGLR 117

References
Section 16 of the Summary Offences Act
Section 6 of the Search Act

Counsel
Sergeant Yamuje, For The State
In Person, Defendant

14 March 2008

REASONS FOR DECISION

F Manue: This is a Summary matter where the defendant Pipsy Ifana from Kambarafaro village, Watabung has been charged by Watabung Police, Senior Constable Christopher Mondu. The charge is that the defendant is alleged to have had in his possession the properties namely four (4) mattresses reasonable suspected of having been stolen, thereby being contrary to Section 16 of the Summary Offences Act.

2. The issue is not whether the defendant had committed the offence, but rather whether the said search was lawful during which four (4) of the mattresses were taken by police and consequently tendered as evidence.

3. At the close of the prosecution case, I indicated that the issue of the legality of the Search would be considered after hearing all the evidence.

4. This I do now, but prior to that, I will summarize the facts as they were adduced. Prosecution witness was first heard on 18 October, 2007.

5. Only one (1) witness who is a Senior Constable Yam Kuleine stationed at Watabung Police Station was called. He stated that on 21 September 2007, they conducted a raid, after raising a Search Warrant.

6. He said they had to do that because they had received numerous reports of arm robberies and looting from trucks along the Okuk Highway. He said they heard rumours that defendant was possessing some mattresses in his house. They proceeded along the highway to where defendant resided and stopped their car on the highway.

7. They then entered his premises, knocked on his kitchen door and entered.

8. He said he then lifted a bed cover and saw a 2 inch mattress there.

9. He then demanded the defendant to open the door of his other house, but the defendant was evasive in assisting the police of where the house key was. They then broke open the door, claiming the authority of a Search Warrant to do that.

10. The Search Warrant was tendered to Court as an exhibit, and 4 x 2 inch mattress were also tendered as exhibits.

11. The defence through the defendant gave a damming account against the police on oath.

12. I say damning as he alleges some unwarranted and unacceptable conduct of Watabung Police, especially against Senior Constable Christopher Mondu, relating to bail money.

13. He stated that on that date, at around 2:00 am to 3:00 am, Police raided his place. They broke into his house and took out four (4) mattresses which he had bought from community members.

14. The mattresses he said were taken from Highway trucks, which were robbed. When he was arrested, he had given K150.00 as bail money to Senior Constable Mondu, but was not receipted. He had made follow up visits to Senior Constable Mondu for the receipt.

15. After some persistence for a receipt, he alleges that he was advised by the Arresting officer to deny the case, and that he would do his part by not testifying as a State Witness. To date, he alleges that he has only been issued with a K100.00 bail recognizance by the informant.

16. Although the defendant denied initially he has admitted the offence in the cause of the trial.

17. The issue that haunts me is not whether the offence was committed but of the damning statements of the defendant against a member of the Police force and the informant in this case and whether the police acted within their powers according to law in conducting the raid. I will deal with the later issue first.

18. The law in which allows for searches on citizens and places is the Search Act and the case of State –v- James Bero Popo [1987] PNGLR 286, which followed John Alex –v- Martin Golu [1983] PNGLR 117 clearly sets out what is required by Police to conduct a Search in a village setting. Further to a commissioned officers of Police laying information on Oath, all attempts must be made to comply with Section 6 (3) if practicable to do so.
19. Section 6 of the Search Act is in these terms:-

6. Issue of warrants

(1) If a court, other than a Local Court, is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place –

(a) any thing with respect to which any offence has been or is believed on reasonable grounds to have been committed; or

(b) any thing as to which there are reasonable grounds for believing it is likely to afford evidence of the commission of any such offence; or

(c) any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence,

it may issue a warrant to search that building, craft, vehicle or place.

(2) If a court is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is in any building or buildings in a village or in any part of a village or village garden any thing specified in subsection (1)(a), (b) or (c), it may issue a warrant to search the building, buildings, village, part of the village or village garden.

(3) Where a warrant has been issued under Subsection (2) the person, policeman or policemen to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.

(4) Subsection (1) or (2) does not justify the use of greater force than is reasonable in the circumstances.

20. Subsection 3 requires policeman or policemen to endeavour to obtain co-operation of village leaders before executing the search warrant where it is practicable.

21. Evidence shows that the defendants village is beside the Okuk Highway and that Police vehicle was stopped beside the road before entering the defendants premises, consequently searches of his houses followed.

22. There is no evidence whether Police attempted to get any co-operation from the village leaders or even the defendant before conducting the search. Co-operation of the defendant would include producing the warrant to him before searching. This was not done.

23. In my view the situation, place and time were within practicable means of the police to obtain co-operation from either the defendant or a leader of defendants village. The search warrant was obtained on 15 August 2007; and it covered a big area along the Okuk Highway, between Daulo to Fiyonoku villages.

24. Whether the defendants village is between these places named in the search warrant is unclear.

25. In my view, the search warrant was too broad, particularly where it authorizes search in a wide area covering many villages.

26. Subsection 3 of Section 6 makes it clear that a search warrant must specify a building or buildings in a village, or village garden as the case may be.

27. A search warrant issue is not intended to cover more than one village, but specifically a building or buildings, garden or gardens in a particular village.

28. Where searches are to be conducted in various villages, a search warrant should cover each and several of those villages.

29. In this manner, abuse of search warrants would be minimised or avoided.

30. What consequences do follow, if and when goods are obtained without complying with the provisions of the Search Act.

31. In the case of James Bero Popo (Supra) Amen C.J (as he then was) stated that such evidence obtained unlawfully is liable to be rejected.

32. The evidence of the instant matter would be the mattresses, which were taken during the search and were accepted when tendered as evidence.

33. They were initially accepted as I decided to raise its legality at the end of the case, after analysing all the evidence.

34. I have analysed the evidence and find that the search was unlawful and that the mattresses were obtained unlawfully.

35. And because the whole conduct and circumstances of the case was unlawful, I would have to dismiss the whole proceeding.

36. As a point of by pass, the defendant raised in evidence that he had bailed K150.00 in cash to the arresting officer without being issued bail recognizance and or receipt.

37. After several follow ups, he was advised to deny the charges so that the informant in turn would not testify against the defendant. This was because the bail money was used by policemen. He was also issued a bail recognizance or receipt of only K100.00. In the trial the informant did not give evidence and so this may been a case where the informant has compromised his lawful duty with his unlawful actions.

38. In my view these allegations are serious which goes to question not only the integrity and honestly of police, more so of the officer, but that if such is creditable and true, then the police officer ought to be investigated and dealt with accordingly.

39. Given these reasons, I must find for the defendant and find him not guilty.

40. Case dismissed. Defendant discharged. The four (4) mattresses be returned to the defendant.

41. I do not condone the offence committed by the defendant when dismissing the case but when it comes to breaching constitution rights of citizens, their rights must be protected.

For the State - Sergeant Yamuje of Goroka Police Station
For the Defendant - In Person