Lawrence Wood Ltd v Wai [2020] PGDC 60; DC5051 (14 December 2020)

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION]

SW 315 OF 2020
BETWEEN

LAWERENCE WOOD LIMITED
Informant

AND

INSPECTOR LEONARD WAI
Defendant

Waigani: D Kaputin- Magaru

2020: 9 August, 21 September, 14 December
      

CRIMINAL LAW- PRACTICE AND PROCEDURE- Search Act (Chapter 341)-Application to set aside search warrant-Whether there is statutory basis for the application to set aside?

Cases Cited
William Sent v Cosmos Bidar (2017) SC 1582
Esso Highlands v Magistrate Cosmos Bidar (2014) N6386
Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20

References
District Court Act 1963
Search Act (Chapter 341)

Counsel

Mr Pare Kuiap, for the Informant

Mr Desmond Aigilo, for the Defendant

14 December 2020

RULING

D Kaputin Magaru, Principal Magistrate:

1. This is an application to set aside a search warrant.
2. The Application is made by way of Notice of Motion filed 19 August 2020. The Notion of Motion is in the following terms:
   • 2.1. Pursuant to section 22 and 25 of the District Court Act, the Orders of the then, His Worship Cosmos Bidar, made 22 June 2020, granting a Search Warrant against the Respondent company, be set aside for duplicity of proceedings and an abuse of Court processes; and
   • 2.2. Any other Orders the Court deems just in the circumstances.

Jurisdiction

3. It is well settled that District Courts are creatures of statue. We can only act within our governing legislations.^[1] It is therefore incumbent on Magistrates to determine jurisdiction prior to hearing of the substantive applications.
4. This position was clearly expressed by Kirriwom J in Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20 clearly stated at page 2117:

“The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the court as creatures of Statute. They are not court of records. Their first source of power is the law under which the District Court is given the jurisdiction to deal with a matter, for example in this case the Adultery and Enticement Act. If a remedy sought under that Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives it power. If that Act is silent or makes no provision for the type of relief that a party seeks, there is no other source. That is why the District Court and all other subordinate courts are courts of limited jurisdiction to the matters specifically granted to them by statute”.

5. In the present matter, the source of the law in which District Courts are granted jurisdiction to issue search warrants is the Search Act (Chapter 341). The Search Act is silent and makes no provision for the setting aside of a search warrant and an order for the issuance of a search warrant.

Does the District Court Act make provision for the setting aside of a search warrant?

6. The Notice of Motion filed for the Company cites section 22 and 25 of the District Court Act as the source of power to set aside the search warrant.
7. Section 22 of the District Court Act requires that there must be a substantive proceeding on foot for the Court to then proceed to grant relief. It is not a stand-alone section where it can be invoked independently. It is still unsettled as can be seen the varying District Court decisions whether this section is applicable only to civil proceedings. My view is that it is only applicable to civil proceedings.
8. Nonetheless, the Supreme Court has now put to rest that, the search warrant process is part of a criminal investigation and is part of the criminal process. Any defects in a search warrant is addressed by a criminal court in the exercise of its criminal jurisdiction, see William Sent v Cosmos Bidar (2017) SC 1582 at paragraph 25-27.
9. Section 22 of the District Court Act therefore does not provide statutory basis for the application.
10. The next question is then whether section 25 of the District Court Act is applicable?
11. Section 25 is the provision that empowers the District Court to set aside Ex Parte Orders.

What are Ex Pate Orders?

12. Ex Parte in latin means ‘for one party’. There are orders granted for one party when the other party is not present. Courts require a diligent attempt to contact the other party and inform them of the proceedings before issuance of an ex parte order.
13. The only ex parte process within the District Court Act are found in s 125 (a) as it relates to the trial of a simple offences or indictable offence tried summarily, where the penalty is a fine and s 143 as it relates to hearings for civil complaints.
14. Both require, evidence on oath that:
    1. The defendant was served the summons, three (3) days prior to the appointed date; or
    2. There is an order for substituted service and substituted service was complied with.
15. The Ex Parte Process is only in the event that the defendant does not appear. Where the Complainant does not appear the matter is either adjourned or dismissed.
16. The Ex parte process is not applicable to indictable offences. In the event that the defendant does not appear, a warrant of arrest is issued. This is the committal process.
17. Hence, the principles to set aside an ex parte order becomes relevant:
    1. Why the order was allowed to be entered in the absence of the defendant.
    2. If there is a delay in making the application to set aside, a reasonable explanation as to the delay.
    3. That there is an arguable case for the application on the merits of the substantive case.
18. This then requires the Court to determine whether or not the defendant was served or that that was an order for substituted service.
19. It is therefore clear that ex parte proceedings under the District Court Act are only limited to events that are stipulated under the District Court Act. As stated above, District Courts are limited by what the Act expressly stipulates.

Are search warrants ex parte orders within the context of section 25 of the District Court Act?

20. Search Warrants do not fall under either provisions of the District Court Act that cater for ex parte orders. They are neither civil or simple offences or indictable offences tried summarily.
21. Some may contend that section 25 provides for the hearing of an information and that the Search Act also refers to information on oath.
22. Section 25 (a) provides that once the order is set aside the Court shall proceed to determining the complaint or information.
23. There is no complaint or information filed in an application under the Search Act
24. In an application for a search warrant the only requirement under law is the information on oath. The form of the information referred to under the search act is found in the Search Regulation. It is a different document to the charge document referred to as an information found in the District Court Act.
25. The information referred to in the District Court Act is a formal criminal charge which begins criminal proceedings in Court. It is one of the oldest forms of criminal pleadings along with the Indictment.
26. The information referred to in the Search Act is as a can be seen by Form 1 in the regulation is a sworn statement attesting to what is said to be the basis for seeking the search warrant. It is basically an affidavit.
27. The only requirement for a search warrant is that police must provide to the Judge or Magistrate with information in the form of written statements on oath under Form 1 of the Search Regulations or by way of affidavits which state their own observations or those of the Complainant or any other person who has peculiar knowledge of the facts. If the Magistrate or Judge believes that the statements on oath or affidavit establishes reasonable cause to conduct a search, he or she will issue a warrant.
28. The suspect, who is connected to the place that has been searched, is not present when the warrant is issued and therefore cannot contest the reasonableness of the search at the time. However, the suspect can later challenge the warrant during his trial in the National Court sitting in its criminal jurisdiction^[2] or as a matter for enforcement of Constitutional rights in the National Court, see Sent v Bidar (2017) SC 1572 and John Alex v Martin Golu [1983] PNGLR 117.
29. The Search Warrant process is NOT commenced either by complaint or information. The processes under the District Court Act are therefore not applicable in the application for a search warrant.
30. Search Warrant applications by their nature do not allow for inter party hearings.
31. Ex parte orders referred to in the District Court Act require prior notice to the defendant of the proceedings.
32. Therefore for those reasons search warrants are not ex parte orders within section 25 of the District Court Act.

Conclusion

33. Lawrence Woods application has no statutory basis.
34. Any person who prevents police for executing a search warrant is obstructing police investigation and may be charged by police for the offence of obstruction.
35. Police upon service of a search warrant must enter and search for the items stated in the search warrant. It is not for them to give the search warrant and go away waiting for the defendant or suspect to comply. This is inconsistent with the whole nature and purpose of a search warrant.
36. As to the application itself, even if there was statutory basis, the Application is misconceived. Once a search warrant is served on the other party it is expired. Police if they want to continue a search on a different date in an on going investigation must obtain a new search warrant. Where the search warrant is not served, it is still active.
37. In the present case, which is not disputed by Lawerence Wood is that there was an earlier search warrant served or executed on the company. The Affidavit of Inspector Wai which I accept clarifies that the previous investigator did not provide an update of the case and that he had to start the whole process a new. This obviously required that he file a new search warrant. This was the proper course considering the protections of privacy under the constitution.
38. Whether or not Mr Bidar has reasonable basis to issue the 2^nd search warrant is not for this Court to decide. I cannot be asked to review or revisit a decision by another Magistrate. As the Supreme Court case of Sent v Bidar has made clear, this is a matter for the National Court siting in its criminal jurisdiction.
39. In passing, Esso Highlands cannot be relied on as the basis for District Courts to entertain applications to revoke warrants of arrest or set them aside. District Courts in my view do not have such powers either under the Search Act or the District Court Act. Esso Highlands was a Judicial Review case. The Supreme Court has made it crystal clear that only the National Court sitting in its criminal jurisdiction has the power to determine the admissibility or the rejection of the evidence. Judicial Review is not applicable.
    

Orders:

40. The Orders of the Court is as follows:
    1. The Application by Lawrence Wood Limited to have the search warrant set aside is dismissed for want of statutory jurisdiction.
    2. Police are at liberty to conduct their search pursuant to the Search Warrant obtained on 22 June 2020 under the hand of Magistrate Bidar.
    3. Any person who obstructs police in the execution of the search warrant shall be arrested and charged.
       

Lawyer for the Informant Police Prosecution

Lawyer for the Defendant Jaminan & Partners Lawyers

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^[1] Cutmore v Sevese (2020) DC 4047, Wama v Palme [2012] PGNC 85; N4714 (22 May 2012); Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001), William Moses v. Otto Benal Magiten (01/12/00) N2023; Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022; ABCO Transport Pty Ltd v. Timothy Sakaip [1997] N1577; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349.
^[2]3 See William Sent v Cosmos Bidar (2017) SC 15772 at paragraph 25