State v Samol [2008] PGDC 20; DC683 (1 September 2008)

DC683

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

DCCr 315 OF 2008

THE STATE

V

POLAU SAMOL

Tabubil: P. Monouluk, SM
2008: 01, 15, 20, 21 August; 01 September

RULING

SUMMARY OFFENCES – In possession of property suspected of being unlawfully obtained – Section 16 Summary Offences Act Chp. 264. – Not guilty plea – Application to reject evidence – Evidence obtained in breach of Constitutional right and Search Act Chp. 341 – Court may reject evidence – Evidence rejected.

CRIMINAL LAW – Evidence – Evidence obtained in breach of Section 44 Constitution and Search Act Chp. 34 – Strict compliance of the law – Discretion to admit evidence – Evidence rejected.

SEARCH ACT – Reliance on justification of immediate pursuit – Act requires strict compliance of its provisions – Search conducted without warrant after tip-off – State did not indicate when it received intelligence – Search conducted without the presence of the defendant – No evidence by the State that it was in immediate pursuit of the defendant – Not an offence of strict liability thus prior knowledge material and so defendant’s presence during search is important.

Cases cited

1. The State v. James Bero Popo [1987] PNGLR 286
2. Dale and Dale v. The Police (1991) N1103.
   

Reference

1. Summary Offences Act Chp. 264, s.16
2. Constitution of the Independent State of PNG, ss.38,44
3. Search Act Chp. 341, ss. 2,5,6
4. District Courts Act Chp. 40, ss.25A,27
5. The National Intelligence Organization Act 1984
6. Civil Aviation Act 2000
   

Counsel
Sergeant Kim Dinam for the State
John Palek for the defendant

01 September 2008.

1. P. Monouluk: The defendant was a former employee of the Ok Tedi Mining Ltd (OTML). He was arrested and charged under Section 16 Summary Offences Act Chp. 264 of having being in possession of gold concentrate which was suspected of having being unlawfully obtained from his former employer’s premises at the Folomian Mill, Tabubil, Western Province.

2. The State alleges that on Saturday 26th July 2008 at about 11:30 in the morning a search by the police was conducted at the defendant’s company allocated residence at Aket Street, House #11 in Tabubil following an intelligence tip and in the course of the search a large amount of gold concentrate weighing about 27.28kg and valued at K23, 343.39 was found inside the defendant’s laundry room. The search, however, was conducted without a search warrant and in the absence of the defendant who arrived some time later.

3. The defendant through his counsel and in a preliminary application took issue of the fact that the search was conducted without a search warrant and insists that all evidence obtained, which the State now seeks to rely on, be not accepted by the court for reasons that they were obtained in a clear breach of the defendant’s right to freedom from arbitrary search and entry under Section 44 Constitution of the Independent State of Papua New Guinea when the search party failed to produce a search warrant in accordance with Section 6 Search Act Chp. 341 to those at the residence prior to conducting the search.

4. For our purposes let me start by restating the relevant laws applicable to the issue of search. The law that is paramount to this issue is s. 44 Constitution which has entrenched all individuals’ right to be free from searches and entries that are deemed by law as arbitrary in nature. Section 44 is as stated in this manner:

"44. Freedom from arbitrary search and entry

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—

(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B) the affairs of a company in accordance with a law relating to companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connection with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights)."

5. Even though this freedom is entrenched in the Constitution, by its very provision it makes clear that it is not an absolute right but a qualified one and can still be interfered with by some other laws. This means that this right is subjected to being regulated or restricted by some other laws which must comply with s. 38 Constitution of being ‘reasonably justifiable in a democratic society’, and furthermore must expressly state their intention to do so with no room for ambiguity.

6. One such law is the Search Act (supra) passed by the National Parliament in 1977. This Act regulates s. 44 Constitution by providing for searches on individuals, premises and property in certain cases and furthermore places strict duties and responsibilities on those conducting searches under its auspicious. Section 2 Search Act (supra) makes it clear that the provisions of the Act apply to all manners of search whether under its provisions or under some other laws. It says in this manner:

"2. Application

(1) Subject to Subsections (2) and (3), this Act applies, notwithstanding the provisions of any other law, to and in relation to any search whether by or under this Act or any other law.

(2) This Act does not apply to a search carried out under a warrant issued under the National Intelligence Organization Act 1984.

(3) This Act does not apply to a search carried out under the Civil Aviation Act 2000."

7. Except for those searches under the National Intelligent Organization Act and the Civil Aviation Act, all other searches as I have stated whether conducted under the Search Act (supra) or under some other laws must strictly comply with the terms and conditions set out under the provisions of the former legislation. Part III, Search Act (supra) spells out two instances whereby searches can be done. Section 5 Search Act (supra) caters for those searches done without warrants and s. 6 caters for those done with warrants. I will not spend more time on the latter type of search since we now understand that the search at the residence of the defendant on the 26th July was done so without a warrant and the State rightly so seeks to rely on the provisions of the former type of search in which case it places reliance on the ‘immediate pursuit’ justification to over look the need for a warrant in the first instance.

8. For the benefit of others may I briefly highlight the basic requirements of searches with a warrant under s. 6 Search Act (supra). This provision of the law, in a nut shell, makes it clear that only a District Court Magistrate can issue a search warrant. Before he does so he must first satisfy himself that the situation warrants the issuance of a search warrant by reviewing a sworn affidavit or information under oath by a commissioned officer of the Police Force with a minimum rank of an Inspector. When all is well then the documents are signed and sealed and released for the appropriate search.

9. In the case at hand no such warrant was issued, however that is not to say that because of the non-existence of a warrant the subsequent search of the 26th July was unlawful, rather the law does allow searches to be conducted without warrants and such searches must be done in compliance with s. 5 Search Act (supra). Section 5 says in this manner:

"5. Circumstances where search may be made

(1) Where a policeman has reasonable grounds to believe that a vehicle or anything in a vehicle—

(a) has been stolen or otherwise unlawfully obtained; or

(b) has been used or is intended to be used in the commission of an indictable offence,

he may stop and search that vehicle and, where applicable, exercise the power of seizure under Section 10(1).

(2) Where a policeman believes on reasonable grounds that a person has in a vehicle that he is using at the time, a firearm or other offensive weapon, he may search the vehicle for the firearm or offensive weapon and, where applicable, exercise the power of seizure under Section 10(2).

(3) Where a policeman believes on reasonable grounds that it is necessary to do so, he may, at the time of arresting a person, search any vehicle the arrested person was using at the time of his arrest, for the purpose of preventing the loss or destruction of evidence relating to the offence for which he was arrested and, where applicable, may exercise the power of seizure under Section 10(2).

(4) Where the owner or the person in command of a craft or a policeman has reasonable grounds to suspect that a situation has arisen or is likely to arise involving the safety of the craft he may or persons authorized by him may search—

(a) the craft; and

(b) any luggage and freight on board or about to be placed on board the craft,

and, where applicable, may exercise the power of seizure under Section 10(4).

(5) Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he may, or persons authorized by him may, search any building or place in which he believes on reasonable grounds that the person being pursued—

(a) is concealed; or

(b) has, in the course of his pursuit, concealed or deposited anything."

10. As we have seen the defense stands oppose to the legality of the entire search of the 26th July and follows that the evidence seized be rejected for what it was. The State, on the other hand, relies on subsection (5) and insists that the search was done in immediate pursuit hence no time or opportunity to obtain a warrant for fear that the defendant or his agents may conceal the evidence and, in any case, it was a Saturday and not possible to source a warrant from the court house or the magistrate. From the outset, I reject this line of argument by the State that it was not possible for it to obtain a warrant after hours. All good police personnel in Tabubil by now will know that even though the court house may be closed; the availability of the Clerk of Court and the Magistrate here in Tabubil is never hindered by weekends and public holidays.

11. This availability is ensured by law under s. 27 District Courts Act Chp.40 which says clearly that "a court may hear and determine information or complaint on a Sunday or on any other day." This provision of the law clearly indicates the availability of the court at anytime to hear information on oath for a search warrant where the urgency of the matter requires. I cannot and will not accept such an excuse by the State, and I do agree with the counsel that this is a court of law and not a court of excuses; clearly the law makes available the services of the court even after hours and the State cannot rely on the close-of-court business as an excuse.

12. Reminding myself of the issue of immediate pursuit, I must ask myself under what circumstances the State had relied on to justify the immediate pursuit option and thereby overlooked the need for a search warrant before embarking on the search of the 26th July. Section 5 (5) Search Act (supra) as seen above says that a policeman does not need to first obtain a search warrant when he is in immediate pursuit of a suspect. The term ‘immediate pursuit’ was defined by Amet J. (then was) in the National Court case of The State v. James Bero Popo [1987] PNGLR 286 where he held amongst others it in this manner:

"(1) For the purposes of s 5(5) of the Search Act, the words "immediate pursuit" are to be taken as meaning immediate, physical pursuit, analogous to the notion of "hot pursuit", where there is no opportunity or time to take any other course of action otherwise the opportunity for apprehension, seizure of property, prevention of concealment of property or prevention of escape will be lost.

(2) If investigation, follow-up or pursuit of a suspect, however notorious, is not "immediate" then a search warrant is required under s 6(1).

(3) 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 thereby is unlawfully obtained and may be rejected ..."

13. In the case at hand the State submitted that the police had received information that a substantial amount of high grade gold concentrate was removed by the defendant from the OTML premises at the Folomian Mill the previous day (Friday 25th July 2008). May I say that the State unfortunately was not able to say when exactly it had received such a report to justify a swift search at 11:30 in the morning of the 26th July. I am not sure why the State had chosen to withhold such vital information from the court, especially when it seeks to rely on the immediate pursuit aspect of the search which usually implies a lack of sufficient time to take other appropriate actions. This absence of information makes it difficult for the court to efficiently put into perspective the difficulty the State had faced in trying to obtain a search warrant and at the same time pursue a fleeing suspect who may be escaping apprehension or attempting to hide evidence of his crime.

14. Not only that but the State also in its submission stated that when the search party fronted up at the defendant’s residence, the defendant was not available. In spite of that the party proceeded to search the house anyway. It must be made clear that one important aspect of the immediate pursuit theory is that the police must be in physical pursuit of a suspect; that they were hot on his heels or chasing after him. This was not the case; in fact the State admitted that the defendant was away which we know to be at his place of work and the only adult person to be present at the house was the baby sitter. If indeed that was the case then it would appear to be favourable to the search party as an opportune time for them to place the house under surveillance while the others can run off to source a search warrant from the court. This did not happened; instead they proceeded ahead to search the house and came up with the gold concentrate in the absence of the defendant.

15. The State must be made to realize that such offence under s. 16 Summary Offences Act (supra) is not one of strict liability. This means that prior knowledge of the existence of the gold concentrate in the defendant’s residence is important therefore it was important that the search was done in his presence to avoid the excuse of lack of prior knowledge. In the National Court case of Dale and Dale v. The Police (1991) N1103 the police in Lae conducted a search at a residence using a search warrant and in the course of the search they found a pornographic video-tape. At the time of the search the appellants were not available. The matter came before the Lae District Court and the occupants were subsequently found guilty. They appealed the decision and the National Court found that the District Court erred in law. The National Court said that such offences of being in possession of pornographic materials, etc is not an offence of strict liability therefore it was important that prior knowledge must be proved. Although the charge in this Lae case was under s. 25A Summary offences Act (supra), it still highlights the need to prove prior knowledge in our case therefore it is important that the defendant is available during the search to avoid the defendant denying prior knowledge and making counter-claim that he was set-up. In fact that was what exactly had happened in the Dale and Dale v. The Police case.

16. Before I come to my conclusion may I make this in passing. This case has brought to fore the conduct of OTML security personnel who also perform police duties as reservists. The affidavits by the defense indicated that the search was done by OTML security personnel. The State said it was done by the police with the assistance of security personnel. My review of the Tabubil Police Station Occurrence Book (O.B) shows no indication of the search of the 26th July 2008. If that is the case then those who were in police uniform at the time of the search may be held accountable personally since their activity was not officially registered and therefore sanctioned by the State. The importance of the O.B in any police station cannot be down played. This book plays an important role in the day to day activity of a police station in keeping records of who was on duty, who was being detained or released, where searches were conducted, etc. These records are kept to protect the interest of the State and those who act under those entries and where an issue is raised against the conduct of any police personnel the evidence of the entries or lack of them in the O.B may be conclusive.

17. Coming back to ruling, in my assessment of the submissions by the State and the defense it is obvious that the State’s attempt to rely on the exception of immediate pursuit as provided for under s. 5 (5) Search Act (supra) cannot be justified. I believe that the State had sufficient time to obtain a search warrant from the court, despite that it opted not to do so and went on to search the defendant’s premises in his absence. This is not to say that because of these deficiencies in the State’s case the court must now proceed to reject the gold concentrate as being unlawfully obtained in the first place. The State need only to relook at Justice Amet’s remarks where His Honour said "... any evidence obtained thereby is unlawfully obtained and may be rejected" (emphasis mine).

18. This apparently goes to show that the court still has the discretion to accept the gold concentrate as evidence even though it was unlawfully obtained in the first instance. I am not too sure where and when I can use such discretion. In the absence of any submission especially from the State to direct me to the applicability of such discretion, I am inclined to follow the defense’s view and therefore reject the gold concentrate as evidence in the form and manner it was first obtained. By rejecting the concentrate as evidence I am not saying it never existed; it did and was located inside the defendant’s residence. How the concentrate came to be at the defendant’s residence is anyone’s guess. Someone must be held accountable for that either in this life or thereafter.

Orders accordingly.