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Papua New Guinea District Court |
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS
CRIMINAL SUMMARY JURISDICTION
CB NO.4063 OF 2016
BETWEEN:
POLICE
-Informant-
AND:
FRANK GOLE
-Defendant-
Boroko - NCD: A. Kalandi
2016: 20thOctober 2016
DECISION ON VERDICT
CRIMINAL LAW – Summary Offences - Liquor Licensing Act – Unlawful Sale of Liquor - Section 98(1)(a) & (2) Permitting to sell liquor without license without a valid Trading Licence after trading hours.
Proof required to satisfy defendant permitted sale without valid trading licence – establish defendant as permit holder to trade – trading after trading hours a breach of the condition of the licence.
Proof required under Search Act to satisfy why police acted without a search warrant – was there immediate pursuit or hot pursuit.
Counsels:Constable Regina Killip– Police Prosecution
Mr.Frank Gole– In Person
Laws:
Cases cited
KALANDI. A. DCM: The accused was charged for one count for permitting liquor to be sold without licence contrary to Section 98(1)(a) & (2) of the Liquor Licencing Act. The charge reads; The Defendant did except as expressly provided in the Liquor Licencing Act did permit liquor to be sold without being licenced to do so thereby contravening Section 98(1)(a) & (2) under the Liquor Licencing Act .
The accused was arraigned and he pleaded not guilty to the charge and so a trial was conducted. The police called three witnesses and the Defencealsocalled three witnesses that is also inclusive of the accused himself.
This is the Court’s Ruling on verdict after the trial. There was no submission by the parties on evidence as the accused was not represented and he appeared in person. As a result, to be fair on the accused, the Court made its determination as a result of the evidence that was provided through trial.
POLICE BRIEF
The Police allege that on the 25th June 2016 at around 2.00am, the accused Frank Gole the owner of PK Bottle Shop permitted the storekeeper to sell liquor at 2-4 Market, Gerehu, Stage 3 to the public without licence or with an expired licence after trading hours. It’s alleged that Mike 403 of Mobile Squad 4 when on a motorised patrol along that area sighted a man buying 12 packs SP loose bottles at RK Bottle Shop. Its alleged police stopped and asked the customer where he bought the beer from and he said from the store operated by the accused. When asked of the Trading Licence, the storekeeper produced an expired Licence.
The police then confiscated 23 cartons of Heineken can cartons, 73 SP bottle cartons, 01 papuan black can carton, 53 green can cartons, 18 Kundu can cartons, 22 white can cartons, 63 ice can cartons, 4 export bottle cartons, 5 bikpela can cartons, 15 mosko bottle cartons, 5 ice bottle cartons and 12 loose ice bottles,14 floor bags containing mixture of can aand bottle beers, 1*2Litre Warrior bottle carton, 6*125Mml coffee punch bottle carton, 2*150ml coffee punch bottle cartons and 2*175ml macmillan cartons.
THE ELEMENTS OF THE CHARGE
For a conviction to be entered against the Defendants, the elements of the offence must be set out by the prosecution.
Thus, the elements of unlawful sale of liquor by a person who directly or indirectly sells liquor or permits liquor to be sold without being licenced to do so under this Act per Section 98(1)(a) of the Liquor Licencing Act are;
(i) A personwho directly or indirectly
(ii) Sells liquor or permits liquor to be sold
(iii) Without being licenced to do so
The information also contained Section 98(2) of the Liquor Licencing Act which was used in line with Section 98(1)(a) contributing an element of the offence, that’s permitting liquor to be sold.
ISSUES
There are basically two issues this Court will determine, which are;
1. Whether or not the accuseddirectly or indirectly
(a) permitted the sell of liquor
(b) without a Trading Licence
(c) after the trading hours.
2. Whether or not a Search Warrant was required for the search and the confiscation of the quantity of liquor searched and confiscated per the Search Act.
EVIDENCE
Police Evidence
1st Witness – Senior Constable Tom Mai
The witness said,on the 25th June 2016, they were patrolling toward Gerehu Stage 3 and then came to 2-4 Market. It was around 2.am in the morning. When they were parked there, they saw two customers buying beer from the shop. The driver pulled over toward the two customers and asked where they bought the beer and they said they brought it from PK Bottle Shop.
One of the police officers, Desmond Dobb went and asked the storekeeper for the licence and the storekeeper produced a license dated 01st January 2015. Prosecution tendered the Licence as exhibit for the prosecution. The accused did not object to it, but said it was the old one. It was marked Exhibit P1.
The store keeper and the accused were then taken to the Gerehu Police Station. On the morning on the 25th June 2016, we went to the store and confiscated all the exhibits of the beer now before the Court. The witness said a list of all the exhibits was done in the presence of the storekeeper. The list was then tendered with the actual cartons of beer in Court as exhibits for the prosecution. The accused confirmed he saw a copy of the list. It was marked as Exhibit P2 for the prosecution.
In cross examination, the accused asked;
Q. My storekeeper was not selling liquor after trading hours, it’s not true
A. Why would we intervene if it was within trading hours, it was 2.00am
There was no re-examination.
The Court asked,
Q. Did you go with the one who went to the store to ask for the licence?
A. No, I was only a part of the team.
Q. How did the licence come to your knowledge?
A. When it was brought over by Desmond Dobb
There was no questions arising from the Court’s questions.
2nd Witness – Constable Wallington Oswale
This witness said, on the 25th June 2016, we Mobile Squad 4 was rostered 12am -8.am. We did normal patrol around the Gerehu suburb and came toward the Gerehu 2-4 Market. When he was driving coming, he saw about 2/3 men standing at the front of the two stores. He knew it was already morning so he drove straight toward the bottle shops.
Firstly, they asked the two men where they bought their beer from and they said from the two stores there. Then when the store keeper was asked to produce the licence to sell beer, he gave a licence dated the 15th September 2015. We then knew they operated on an expired licence and that he was trading after hours and was taken to the Gerehu Police Station. The accused came to the Gerehu Police Station and said he was looking after the store as the owner as the owner went to the village. He then told him that he was looking after the store as the owner allowing the store keeper to operate after hours and arrested and charged him. He said, after arresting the accused, they went and confiscated all the exhibits of beer in Court.
When the Court asked:
Q. You were with the police officers who went to the store?
A. I went with them as I was the 2IC to show my presence.
Q. Did you see the licence as expired there?
A. Yes, I saw it was expired.
3rd Witness – Jonny Sauagu
The prosecution asked;
Q. Do you know why you are in Court?
A. Yes, police ran me to come so I am aware
Q. What are you aware of?
Q. What happened on the date?
Q. Did they ask you any questions?
A. They asked questions of my safety.
Q. Did the police ask you as to where you got the beer?
A. The police asked and I said, I got it from PK Bottle Shop
When asked in cross examination;
Q. How many people were the store keeper serving?
A. I was drunk so I don’t know, I got my beer and left
Q. PK store is opened 24 hours, do you know the store keeper’s name?
A. I don’t know
Defence Evidence
1st Witness – Frank Gole - Accused
The witness said, on the 25th June 2016, he was with the store keeper and went to sleep at around 1.30am. The boys staying there told him police was there so he went to the store. The police were raiding another store there and later came to his store and told them to pack all the beer. They packed all the beer and gave them to the police and the police loaded them onto the police vehicle. He said, one of the police officers asked for the licence and the store keeper with fear from the police gave the old licence.
The police than arrested the two store keepers from both stores and took them to the Gerehu Police Station and he walked to the station on foot. He said, the Arresting Officer then asked him if he was the owner of the store and he said he was the brother of the owner looking after the store as the owner was at home. He said the arresting officer told him he was looking after the store when the owner was away and he has the onus to look after it and arrested him.
He said on the 25th June 2015 at 8.00am, the arresting officer went and got him from the cell and went to his residence and looted everything there, beer cartons, store goods and cash money. They left him at the Waigani Cell and took the loot to 9 Mile.
In cross examination;
Q. How long have you been operating this store?
A. More than 25 years
Q. You said, store keeper gave old licence, did you have the new one?
A. Yes
Q. Did you show the new licence to the police?
2nd Witness–Martin Peliago
This witness needed an interpreter and as a result a person, namely Joe Yami who was fluent in the Huli language, Tari, Hela Province was requested to assist. The Court explained to the interpreter what he was supposed to do.
The witness said, on the 25th June 2016, at around 2.00am the police raided another store and when they came to the store he was in, they ordered him to give them all the beer. He said, the police belted him up and locked him in the cells. Then the accused came to the Gerehu Police Station with the Trading Licence and the police arrested him there.
Q. When asked to tell how the police came to the store?
Q. Did the police ask you for the Trading Licence?
A. No
Q. Can you tell the Court as to whether you have any trading Licence to trade?
A. We have a Trading Licence and trade against it.
The witness then produced the Trading Licence as exhibit for the Defence. The prosecution objected to the tender of the Licence, but Court over ruled on the basis that the accused was representing himself and did not understand the Court process of tendering exhibits. The Court to consider objection where possible in verdict. It was tendered as Exhibit D1 for the Defence
In cross examination,
Q. You got the licence when you were working as the store keeper?
A. It was kept by the accused
Q. Where was the Defendant that time?
A. He was in the store, but shortly after he went to sleep, the police came.
Q. Was the noise of police beating you and getting beer loud?
A. The Defendant was sleeping upstairs
Q. Did you or Defendant gave the licence to police at Gerehu Police Station?
A. No, he was arrested, it was with the Defendant.
Q. Why are you now presenting the licence?
A. Because it’s the Trading Licence
Q. You are bringing it now because it was renewed after being arrested?
A. No, this is the original licence, police used the old one got from the store
Q. What paper did you give the police?
A. I did not give them any paper
Q. Police witness and Defendant said you gave expired licence to the police
A. I didn’t give any licence to the police
Q. What you are saying in Court is not true?
A. I am not lying
The Cross asked;
Q. How long have you worked in the store?
A. 3-4 years
Q. Do you have any other names?
A. People call me Sokoly, my nick name.
Q. Do you open your store for 24 hours?
A. Yes, for beer close at 10.00pm and other goods 24 hours
Q. Is there any separation to show you sell beer and other store goods?
A. No
3rd Witness – Edward Andama
The witness said, on the 25th June 2016, around 2.00am, he was chewing and standing there in the store and ladies were selling there. He said he saw a policeman holding onto a boy who had six (6) bottles of beer and taking him to the next store, Agiru store. They then asked the store keeper whether he was selling beer and confiscated all the beer in that store and then came to the Defendant’s store where I was standing and saw all the beer in the freeze so demanded all the beer to be brought to them and pointed gun at store keeper and the store keeper ran away.
They then went to the main gate, broke the gate and got all the beer, flex cards, smoke and money.They came again at around 8.00am and loaded what was left behind.
In cross examination’ the witness said;
Q. Where were you when police got the beer?
A. I was at the counter of the store
Q. Where was the store keeper?
A. In the store
Q. Was the Defendant at the store that time?
A. No, only the store keeper
Q. Did you see store keeper producing licence to the police?
A. No, Ididn.t see.
SUBMISSION
As the Defendant wasunrepresented, submissions were not made. The Court will make its findings as per the evidence before it and give its Ruling.
ASSESSMENT OF EVIDENCE
As I have cited earlier, the accused was charged contrary to Section 98(1)(a) & (2) of the Liquor Licencing Act. To appreciate the law, it’s set out in the following terms;
98.UNLAWFUL, SALE, ETC., OF LIQUOR.
(1)Except as expressly provided in this Act, a person who, directly or indirectly–
(a) sells liquor, or permits liquor to be sold; or
(b) in a club–supplies liquor or permits liquor to be supplied,
without being licensed to do so under this Act is guilty of an offence.
Penalty: A fine of not less than K1,000.00 and in default of payment of the fine, imprisonment for a term of six months, and the court has no discretion to make a lesser order or to impose a lesser sentence.
(2) Subsection (1) does not apply to a person who, as the employee or manager of, and for the use and benefit of, a licensee or holder of a permit, and under the authority conferred by the licence or permit, sells, supplies or disposes of liquor in the premises of the licensee or holder of the permit under the prescribed conditions.
(3) On a conviction under this section of a person who is not a licensee or the holder of a permit, all liquor in his possession, together with the vessels containing the liquor, is forfeited to the State.
There is no issue that the store was opened at the relevant time, 2.00am when the police confiscated the quantity of liquor tendered as exhibits as both police and defence evidence confirms that the store was opened at that time. There is also no issue that the store keeper was in the store that time. The police evidence is that the accused permitted the sale of liquor without a trading licence and after trading hours. The police acted on an expired licence to arrest the accused and confiscated the liquor which was tendered as Exhibit P1. The accused concurred that that licence was in fact the expired licence.
However, the defence evidence was that there was a current trading licence and that the operation of the Bottle Shop was in compliance of that Licence. The accused said he was not given any opportunity to produce the valid licence. The Licence was tendered as exhibit for the Defence. The prosecution objected the Licence was not tendered by the accused and it was tendered through the store keeper, but the Court over ruled the objection on the basis that the accused was a lay person and though he said he had the licence did not know the process and that there was nothing wrong with the store keeper tendering it. It was marked as Exhibit D1 for the defence.
The evidence of Senior Constable Tom Mai was that, another police officer namely, Desmond Dobb was the one who went to the store and communicated with the store keeper. This officer was the one who obtained the expired trading Licence. Constable Mai and Constable Wallington were not the ones who got the expired licence. Constable Desmond Dobb did not give evidence in Court. However, the evidence given by these two officers shows that they did not enquire as to see whether there was a current licence as they realised the one thy saw was expired. When the Court asked whether he went to the store to ask for the licence, he said, no he was only a part of the team. Constable Wallington said he was in the team, but he refers to “them” asking for the licence. This denotes that he was not the one who asked for the licence. In any event, the officer who got the licence or the officers who testified in Court did not enquire as to whether there was a current licence. They acted without all reasonableness. The accused wasn’t given any opportunity at the scene or when he fronted up at the Gerehu Police Station where he was arrested and charged and thereafter. Thus, the accused had a valid Trading Licence to trade.
However, there are conditions attached to this expired licence for trading or the current trading licences are the same conditions. These conditions are;
(i) Monday – Saturday
(ii) 10.00am – 8.00pm
(iii) No Trading on Sundays & Public Holidays
The offence the accused is charged with is as a result of permitting to sell liquor without a trading licence after trading hours. The trading licence also is in relation to the sale of liquor. Thus, the condition of the timing of the sale of liquor is strictly from 10.00am -8.00pm and that any sale of liquor after 8.00pm is in contradiction of the Trading Licence. Here the store was opened at around 2.00am which is after 8.00pm for purposes of this offence.
The Trading Licence does not cover the operation of the accused store itself. As the accused was charged under the Liquor Licensing Act, the Court will confine its determination per the Liquor Licencing Act. Thus, the operation of the store is not a concern to this Court.
The police evidence is that the accused permitted the sale of liquor after the normal trading hours. The evidence of Constable Mai is that when they were parked at 2-4 Market, they saw two customers buying beer from the shop. He further said, the driver pulled over toward the two customers and asked where they bought the beer from and responded they bought them from PK Bottle Shop. I am reluctant to believe this witness as he gave two sets of contradicting stories. That is at one stage he said they were parked at 2-4 Market and saw two customers buying beer from the store, but again says they asked the two customers as to where they bought the beer when they already saw and knew where they bought the beer from.
When the accused asked in cross examination that the store keeper was not selling liquor after trading hours, the witness responded, it was 2.00am and that was why they intervened, but did not say the store keeper was selling liquor at that time.
Constable Wallington was the driver of the police vehicle the police officers were travelling on. His evidence is that he was driving down toward 2-4 Market and saw two or three men standing in front of the two stores and drove straight toward the Bottle Shops. I am also reluctant to believe this witness as his evidence also contradicts the evidence of Constable Mai.The evidence does not ascertain where these people were as there were two stores there.
The evidence of Jonny Sauagu does not demonstrate as to the date the event unfolded. He did not assert as to buying beer with any other two or three people as provided by the police evidence. I closely observed the demeanour of this witness and was not impressed. He said he got 8 bottles and wanted to go and the police got him. This witness was the very person used for purposes of the arrest and confiscation of the exhibits of liquor. The witness was confused, he did not give his own story as to what he knew, and he only gave answers to questions asked by the prosecution. As a result this witness was not a credible witness for the prosecution.
The prosecution has also not satisfied this Court the location of the Bottle Shop, the direction the police vehicle was travelling and ascertain how the witness Jonny Sauagu realised that the store was PK Bottle Shop when he was new to that area.
The defence evidence is that the store was opened, it was opened 24 hours but they close the liquor sale and was opened 24 hours for the other items.
The store keeper said there was no separation of the sale of liquor and the other food items, they were sold together. They closed the sale of liquor at 10.00pm and were opened for the other store items. The timing condition for the sale of liquor was from 10.00am -8.00pm, but here the sale of liquor was closed at 10.00pm which was in breach of the condition per the licence. However, even if it was closed for sale of liquor at 8.00pm, I find it hard to believe the defence evidence that the sale of liquor is closed at the relevant time and that it was opened to sale of the other store goods when there was no separation of the sale of liquor from the sale of the other store goods. I believe the story of the defence witness Edward Andama in that when the police came and saw the beer in the freeze ordered the store keeper to pack them and deliver them to the police. This was confirmed by the store keeper’s evidence. I am therefore of the view that the store keeper was selling liquor after trading hours.
The accused said he was not the owner of the store, but was looking after the store as the owner was aware in the village. The arresting officer, Constable Wallington said that he arrested the accused at Gerehu Police Station when he said he was looking after the store as the owner was away. Section 98(2) of the Liquor Licencing Act does not apply to an employee or a manager or one who for the use and benefit of the licensee or holder of the permit sells, supplies or disposes of liquor, in the premises of the licensee or licence holder under the authority conferred by the permit. Its set out hereunder;
S.98(2) Subsection (1) does not apply to a person who, as the employee or manager of, and for the use and benefit of, a licensee or holder of a permit, and under the authority conferred by the licence or permit, sells, supplies or disposes of liquor in the premises of the licensee or holder of the permit under the prescribed conditions.
The prosecution evidence does not satisfy this Court that the accused was the owner of the store or he was the licence holder and that he permitted the store keeper to sell liquor after trading hours as per the condition of the licence. The prosecution did not venture into the significance of the Brown & Dunn case to establish that the accused was not looking after the store.Thus, the accused falls under this provision.
The accused was trading on a valid Trading Licence but was operating outside the trading hours as specified by the conditions of the Trading Licence. On the other hand, the prosecution does not satisfy this court that the accused was charged contrary to Section 98(1)(a) of the Act that the store keeper was caught on the act of selling liquor at that relevant time.
This now puts the Court to determine the other critical issue under the Search Act. Part III, Division 1 concerns the conduct of Searches without Warrants in that Section 5 sets out circumstances where searches may be made and Division 2 concerns the conduct of Searches on Search Warrants in which Section 6 sets out as to how a Warrant for Search is issued.
For the current purposes, Section 5(b) Search Act is applicable, thus its set out hereunder;
s.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 authorised by him, search any building or place in which he believes on reasonable grounds that the person being pursued
(a) is concealed;
(b) or has, in the course of his pursuit, concealed or deposited anything.
The significance of this subsection is that the search of a building or place may be available without a warrant dependant on the phrase "immediate pursuit." I am of the view, that the phrase immediate pursuit means there and then physically an immediate search, which is same as "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. See the State v James Bero Popo [1987] PNGLR 286.
In this case,the Court held among others that;
(i) 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.
(ii) 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.
(iii) Non-compliance with the strict requirements of the provisions of the Search Act is in effect a breach of s 44 and s 49 of the Constitution, which guarantee respectively, the right to freedom from arbitrary search and entry and the right to privacy.
In the case of John Alex V Martin Golu, the defence objected to the tendering of a blue bag (containing drugs) in the Summary Court per Section 44 of the Constitution that the bag was obtained illegally without a warrant. The Magistrate was confident, that it was obtained illegally, but exercised his discretion and overruled the objection. The defendant then applied to the National court pursuant to Section 57 of the Constitution and the Court ruled that the blue bag was obtained illegally and explained the significances of Section 44 & 49 of the Constitution.
The preamble of the Search Act states, the construction of the Search Act was basically to regulate of restrict certain rights or freedoms referred to by Section 44 & 49 of the Constitution when persons, individuals, premises and property are searched by persons conferred certain powers and duties by the Act. Thus s.44 Constitution is in the mandatory terms restricting the search of any person or property or entry of his premises except to the extent that that right is regulated by a law. Thus, the Search Act basically serves this purpose, as to the circumstances in which a search can be conducted with a Warrant and without a Warrant.
The prosecution evidence was, the police searched the premises in reliance on the witness Jonny Sauagu, whose evidence the Court could not believe as credible evidence. There was no immediate pursuit or was there any hot pursuit for all purposes of the police to conduct a search of the premises, property or building. The accused had a valid trading licence which the police did not have the courtesy of asking the accused. The accused evidence that the Bottle Shop has been in operation for more than 25 years was not refuted to satisfy the Court that there was circumstance of any possibility of immediate pursuit to search without a warrant.The Court is of the view that the Bottle Shop could not possibly trade without a valid trading licence selling liquor in huge quantity.
Where there was none compliance of the conditions of trading especially the trading time, the police should have obtained a Search Warrant per Section 6 of the Act. This section basically sets out the process of obtaining a Warrant to search from the Court.
ELEMENTS OF THE OFFENCE
For a verdict to be entered, the prosecution must satisfy to the satisfaction of the Court that the elements of the offence are set out as per the evidence.
The prosecution evidence has failed to establish that the accused was the owner of the Bottle Shop and on that basis permitted the sale of liquor after trading hours as per the conditions of the licence.
The prosecution evidence also failed to establish that there was an immediate pursuit or a hot pursuit that warranted the police to search and confiscate the quantity of liquor. The evidence of the witness utilized by the police would not be believed by the Court of giving credible evidence and further it did not warrant for a search without warrant in compliance of Section 5(b) of Search Act.
I am satisfied in the circumstances thatthat there was a valid Trading Licence and that Section 98(2) of the Liquor Licensing Act does not apply to the accused as the prosecution failed to establish that he was the owner of the Bottle Shop. I am also satisfied that though there was a valid Trading License, the condition to the Trading Licence was not complied with. Thus, this did not allow the police to search and confiscate the quantity of liquor confiscated as there was no immediate pursuit contrary to Section 5(b) of the Liquor Licencing Act. Thus, I am therefore satisfied that the search was a breach of the Search Act and further contrary to Section 44 and 49 of the Constitution.
I am therefore of the view that the elements of the charge are not established and that a verdict of not guilty is returned against the accused.
COURT ORDER
For the Prosecution: Mr. FlexisSingo – Police Prosecutor
Lawyer for the Defendant: Mr.Golo- in person
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