Kil v Sefoyo [2008] PGDC 11; DC656 (14 March 2008)

DC656

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

DCCr 1146 of 2007

BETWEEN

DAVID KIL
Informant

AND

JOE SEFOYO
Defendant

Goroka: F MANUE
2008: March 14

CRIMINAL- Particular offence – selling liquor after hours as prescribed by the tracking licence – Premises search without a Search Warrant whether the sales where unlawful and whether the whole circumstances of the search was lawful

Cases Cited
1. State –v- James Ben Popo [1987] PNGLR 286

References
Sections 44, 49 of the Constitution
Sections 4, 5 and 6 of the Search Act
Section 98 (1) (a) of the Liquor (Licensing) Act 1963

Counsel
Senior Constable Pipi, For The State
In Person, Defendant

14 March 2008

REASONS FOR DECISION

F Manue: This is a Summary matter in which the defendant Joe Sefayo has been charged for unlawfully selling liquor to Anam Somu during hours other than in accordance with the prescribed conditions in the liquor trading licence. On 21 September 2007 contravening to Section 98 (1) (a) of the Liquor (Licensing) Act 1963.

2. The prosecution evidence is that on that date police conducted a special operations. They proceeded to Faniufa at around 8:45 pm to a G7 bottle shop. There they saw a man drinking beer. When they asked the man where he bought the beer, he pointed out to them that he had brought it from G7 bottle shop. They then entered the bottle shop and confiscated all the liquor from it. They also requested for the liquor trading licence. A copy of it was produced with trading hours from Monday to Friday in the hours of 8:00 am to 6:00 pm every day. Sunday is given as No trading hours.

3. The man who police caught drinking beer after buying it from the said liquor outlet is a Reserve Police man.

4. According to him, there were other people buying beer from the shop through the kaibar counter. And so he proceeded there and bought the carton of beer. He did not state how much he paid for the beer nor was the remainder of the carton of beer produced in Court as exhibit.

5. The defence evidence through the defendant is that he was serving customers in the kaibar through the kaibar counter when Anam Somu, the key prosecution witness came.

6. He asked whether beer was being sold but was given a negative answer. Despite the negative answer Anam insisted that only he be served and aggressively threw a K100.00 note through the kaibar serving counter. The defendant then served him with the carton of beer without giving the purported customer his change.

7. Some 10 minutes later Police arrived and questioned him. They entered the shop and confiscated the liquor in the shop.

8. Apart from this evidence, the defence also told the Court that Anam Somu was sent by the Police operation team as an under cover policeman to reveal which liquor outlets were selling liquor after hours or outside their trading hours as permitted by their liquor trading licence.

9. Having heard and analysed all the evidence, I consider that there is no dispute that the defendant did sell a carton of beer at around 8:45 pm which is contrary to the said liquor outlets trading hours as per their trading licences.

10. The question that haunts me is whether the whole operation was lawful.

11. Whilst I am not questioning the duties of the members of the Police Force in carrying out their normal duties, the circumstances in which the defendant was caught and the liquor outlet was entered thereby a quantity of liquor was confiscated need to be examined.

12. The First Prosecution witness in his evidence stated that the bottle shop was still open and serving people in selling beer to them. His statement was not qualified, in that, he did not name who was buying the beer. If he could not name persons, he did not give description of those purported customers.

13. He further stated that he had been drinking (liquor?) at the bowling club before proceeding to the said bottle shop.

14. I suppose he may have been drunk by then and so his action as described by the defendant may have been true, in that he appeared to have been aggressive and insisted in him being served with beer. The manner in which he paid for the beer could tell that he was not normal. He had to throw the K100.00 to the defendant.

15. This may lead to some truth of the Prosecution Witness being dropped off by a community policing vehicle as stated by defence witness Murphy Aume. The Prosecution Witness in my view could not have walked all the way to Faniufa looking for beer when he was already enjoying himself at the bowling club in the centre of Goroka town.

16. Whilst the planning and execution of it may look sound, the manner in which the plan was executed was unacceptable. There was no need for the Prosecution Witness to have insisted to be served as he was known to the community as an auxiliary policeman, and his actions only made the defendant submitted to his demands, unnecessarily.

17. Throughout the Prosecution case, there was no mention by the witnesses whether they were authorized by law to enter into the G7 bottle shop and confiscate all the liquor available there then. Whilst there is a circular to All Liquor Outlets dated 18 September 2007 by the Provincial Liquor Licensing Commissioner that did not necessary give the police the right to enter any liquor outlets and confiscate their liquor, without complying with relevant laws.

18. The intention of that circular was that those found to breach their Liquor Trading Licences would be prosecuted and if and when found guilty, their trading licenses may be revoked and their stocks confiscated.

19. This may occur by way of a penalty of a Court order or that those actions be taken after a Court made an order relating to the outlet, administratively.

20. Every citizen is protected from arbitrary search and entry, under Section 44 of the Constitution and the right to privacy conferred by Section 49 of the Constitution.

21. Any searches or entries can only be done by the application of the provisions of the Search Act, otherwise it becomes unlawful as considered in the State –v- James Ben Popo [1987] PNGLR 286, case.

22. Section 4 of the Act gives certain powers to Police only in given circumstances to Search and to confiscate suspected stolen properties or anything used or intended to be used in the commission of an indictable offence.

23. In the current matter, the Police were not in such a situation.

24. Section 5 of the Search Act authorises Police to conduct search without a Search Warrant.

25. The section restricts searches without a warrant to motor vehicles only. In any other situation, Section 6 of the Act must be applied.

26. Section 6 allows for an information on oath to be made before a District Court.

27. Where the Court is satisfied of the reasons and circumstances of the search, whether it be a building, craft, vehicle or place before endorsing it. If the search is to be conducted in a village setting, then the law requires a commissioned police officer to lodge an information on oath and obtain a Search Warrant.

28. It would seem from evidence that the liquor outlet in issue is in a village setting.

29. Evidence did not disclose whether a Search Warrant was obtained and if obtained, there was no mention of it nor was it produced and shown to the defendant before entering and searching G7 Bottle shop. Neither was such warrant produced to Court.

30. In my view this is a violation of the Constitution.

31. Where there is a breach of the Constitution, the Courts are obliged to protect constitutional rights of citizens even if it means or seems that Acts and Regulations have been breached.

32. So far as this case goes, the conduct of the police informant and his witnesses were unlawful in the whole of the circumstances. I must therefore find the defendant Not Guilty as charged.

33. Orders accordingly.

For the State - Senior Constable Pipi of Goroka Police Station
For the Defendant - In Person