Volo v Westpac Bank Ltd [2021] PGDC 93; DC6048 (30 April 2021)

DC6048

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Criminal Jurisdiction

SW. No. 837 of 2020

BETWEEN:
INSPECTOR REOBERT VOLO
Informant/Applicant

AND:
WESTPAC BANK LIMITED
Defendant/Respondent

NCD: T. Ganaii, SM

2021: 30^th April

Search Warrant Proceedings –Practice and Procedure - Motion seeking that an Application to Revoke a Search Warrant Order be dismissed for want of Jurisdiction – Inherent Powers of the District Court within its Search Warrant Jurisdiction to revoke its own Search Warrant orders – Section 5 of the DCA empowers the court to exercise within and for its jurisdictions the several powers and authorities conferred on it by the DCA or any other law including the Search Act -Inherent Powers of the Court can be invoked to Regulate its own procedures, to Ensure fair Investigations and Prevent Abuse of the Court Process – Court has jurisdiction – Application refused

Search Warrant Proceedings – Practice and Procedure – Interpretation of the phrase “within and for” in section 5 of the DCA here is only for purposes of dealing with present issue and has persuasive value only

Search Warrant Proceedings – Practice and Procedure – Doctrine of Precedents – Case of Soh Chiam Bee v George Avali is the applicable case law giving the District Court Magistrate inherent powers to hear and determine an application for revocation of its own Search Warrant Orders – Section 25 of the DCA for setting aside of ex-parte orders is not the legal basis for revoking Search Warrant Orders

Cases cited:
Eremas Wartoto v The State [2015] PGSC 1
Esso Highlands v Magistrate Cosmas Bidar [2014] PGNC 351; N6386
Korowi v Aaron [2016] PGNC 36; N6215 (3 March 2016
Lawrence Wood Limited v Inspector Leonard Wai SW No 315 of 2020. 14^th December 2020
Police v Bhosip Kaiwi , DC5033, Decision on the 01^st of December 2020
Soh Chiam Bee v George Avali [2001] PGNC 7;4 N2148
Vaki v Eliakim [2015] PGNC 253; N6129 (7 December 2015)
William Sent v. Cosmas Bidar & The State [2017] PGSC 22; SC1582

Overseas Case
Bryant v Collector of Customs, [1984] 1 NZLR 280 (CA)
Cocker v Tempest [1841] EngR 242; (1841) 7 M & W 502, 503-504 Alderson B.
Cooker v Tempest [1841] EngR 242; (1841) 7 M & W 502, 503-504.
Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385,399 (CA), Cooke P.
Department of Social Welfare v Stewart, [1990] 1 NZLR 697
DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659, 689
DJL V Central Authority [2000] HCA 17, (2000) 170 ALR 659, 689, Kirby J's dissent
DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659, 685-686 (Tipping J).
MacFarlane v Erber, [1989] NZHC 621; [1990] 2 NZLR 69.
McMenamin v Attorney General, [1985] 2 NZLR 274, 276 (CA)
Mihaka v Police, [1981] 1 NZLR 54, 58.
Moevao v Department of Labour, [1980] 1 NZLR 464, 481-482 (CA) Richardson J.
NZ Social Credit Political League v O'Brien, [1984] 1 NZLR 84 (CA) Cooke J.
R v Bloomsbury & Marylebone County Court [1076] WLR 362, 365
R v Connelly [1964] AC 1254, 1301 (Lord Morris)
R v Duval, [1995] 3 NZLR 202, Thomas J.
R v Forbes, [1972] HCA 34; (1972) 127 CLR 1 (Menzies J), cited in Taylor v Attorney General [1975] 2 NZLR 675678.
R v Hartley [1978] 2 NZLR 199(CA).
Zaoui v Attorney General [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC), [35]

References
Joseph, Rosara; “Inherent jurisdiction and inherent powers in New Zealand" [2005] CanterLawRw 10; (2005) 11 Canterbury Law Review 220

The online Merriam Webster Dictionary 2021 Merriam Webster Incorporated

Legislation
District Court Act, Chapter 40
Search Act, Chapter 341 of 1977

Counsel
Mr. Allan Mana For the Applicant
Mr. Greg Sheppard For the Respondent

Ruling on a Notice of Motion to dismiss an application
seeking to revoke a Search Warrant for want of jurisdiction

2021: 30^th April

Introduction
Ganaii, SM This is a ruling on a motion to dismiss an application to revoke a search warrant for want of jurisdiction.

Background
2. The intervening respondent in this proceeding is Mr. Gregory Sheppard, lawyer and Partner of Young and Williams Lawyers, Law Firm acting for the Ok Tedi Fly River Development Foundation (OTFRDF).

3. Police obtained a SW dated 30^th December 2020 against Westpac Bank PNG Ltd, in which and among others the following bank accounts were listed under the Search Warrant (SW) orders to be searched: the OTFRDF Ltd; Young and Williams Lawyers Trust account; Boston Kasimani, Edna Oai and Annie Smerewai’s among other personal accounts.

4. The SW orders were granted after Police received a formal criminal complaint from Hon. James Donald, MP, and Open Member for North Fly Electorate alleging that serious financial crimes were committed in the manner in which dividend in millions of kina paid by Ok Tedi Mining Ltd (OTML) to the Land owners of Community Mine Continuation Agreement Region of Western Province were used by one company named as the OTFRDF Ltd.

5. Police say certain purported Directors of OTFRDF Ltd instructed Young and Williams Lawyers to act for them where huge sums of monies were fraudulently obtained and deposited into the trust account of Young and Williams Lawyers and consequently depleted.

6. On the 30^th of December 2020, the DC issued a SW for the Police to conduct searches on a number of accounts including that of Young and Williams Lawyers Trust Accounts.

7. Mr. Sheppard, the Senior Partner to the law firm filed an application seeking revocation of the SW. An interim stay order was consequently granted pending the determination of the motion to revoke or permanently stay the Search Warrant orders.

The Notice of Motion

8. The present Notice of Motion (NOM) was filed on the 09^th of April 2021 and relies on the following grounds that pursuant to the inherent powers of the DCA^[1], the application per notice of motion filed on 11 January be dismissed on the basis that:
   
   1. The application to have the search warrant set aside lacks statutory jurisdiction in that:
      
   2. The Search Act does not provide for the setting aside of a search warrant;
      
   3. Section 22 of the DCA is not applicable to criminal cases and process and or in circumstances where, there was no pending ‘proceedings’ after substantive relief was granted by the court on 30 December 2020;
      
   4. Section 25 of the DCA is not applicable to criminal cases and process, and or in circumstances where, under the regime under the Search Act, there was no requirement for the respondent/opposing party to appear at the hearing before the grant of the search warrant, and therefore section 30 December 2020 orders are not ‘ex-Parte’ orders in the conventional sense contemplated by section 25;
      
   5. The orders of 18^th January 2021 granting interim stay of the search warrant is an error as the substantive orders have been granted on 30^th December 2020 and the interim stay orders amount to an impermissible review of another magistrate’s final orders and
      
   6. The proper mode to challenge the search warrant and or evidence gathered through the search warrant is to invoke the criminal jurisdiction of the National Court, in the event the case is referred to the National Court
      
9. Further, or in the alternative, the application to have the search warrant set aside is an abuse of process because the same had filed similar proceedings in the National court seeking similar relief as that sought in the application filed herein on 11 January 2021
   
10. The applicant sought further orders pursuant to the inherent powers of the DC seeking that:
    
    1. Police are at liberty to conduct their search warrant obtained on 30^th December 2020 and
       
    2. Any person who obstructs police in the execution of the SW orders shall be arrested and charged.
       
11. Other verbal applications made were that Mr. Sheppard was not named as a party, did not formally join as an intervening party and therefore could not be a party in the NOM seeking to revoke the SW orders.
    

Issue(s)

12. The main issues arising therefore are:
    
    1. whether this court has jurisdiction to hear the application to revoke the SW orders (words used in the NOM seeking to revoke the SW orders are ‘set aside’ or ‘permanently stayed’);
       
    2. whether the application to set aside the SW orders is an abuse of process since a similar application has been filed in the National Court; and
       
    3. whether Mr. Sheppard has properly been joined in the proceedings.
       

Applicants Submission

13. Relying on the terms of their motion, Mr. Mana of learned counsel for the applicant made the following oral submissions:
    
    1. The application by the respondents filed on the 11 of January 2021 to have the search warrant set aside lacks statutory jurisdiction as the Search Act^[2] does not provide for the setting aside of a search warrant;
       
    2. Section 22 of the DCA is not applicable to criminal cases and process and or in circumstances where, there was no pending ‘proceedings’ after substantive relief was granted by the court on 30 December 2020;
       
    3. Section 25 of the DCA is not applicable to criminal cases and process, and or in circumstances where, under the regime under the Search Act, there was no requirement for the respondent/opposing party to appear at the hearing before the grant of the search warrant, and therefore section 30 December 2020 orders are not ‘ex-parte’ orders in the conventional sense contemplated by section 25;
       
    4. The orders of 18^th January 2021 granting interim stay of the search warrant is an error as the substantive orders have been granted on 30^th December 2020 and the interim stay orders amount to an impermissible review of another magistrate’s final orders and
       
    5. The proper mode to challenge the search warrant and or evidence gathered through the search warrant is to invoke the criminal jurisdiction of the National Court, in the event the case is referred to the National Court.
       
14. Mr. Mana in both their written and oral submissions stated that:
    
    1. The present case relies on the case law of Lawrence Wood Limited v Inspector Leonard Wai^[3] (case referred to here as Lawrence) and said this case is relevant and applicable to the present case;
       
    2. Lawrence case relied on the case of William Sent v. Cosmas Bidar & The State^[4] (referred to as Sent here) and said in passing at paragraph 39 that the case of Esso Highlands v Magistrate Cosmas Bidar ^[5](referred to as Esso here) should not be followed because the SC (in Sent) says criminal proceedings should never be the subject of a Judicial Review (JR) as the procedures and requirements in a JR are incompatible to criminal proceedings;
       
    3. Relying on the Lawrence case, sections 22 and 25 of the DCA are not applicable to criminal proceedings and criminal indictable proceedings;
       
    4. If the SW had been illegally obtained the proper way to challenge this would be during trial at trial in the National Court where evidence can be excluded;
       
    5. In the alternative, the application to have the search warrant set aside is an abuse of process because the same had filed similar proceedings in the National court seeking similar relief as that sought in the application filed herein on 11 January 2021; and
       
    6. Mr. Sheppard has not properly intervened as a party in SW 837 of 2020 as the SW NOM does not name him as a party.
       

Respondent’s Submissions

15. Mr. Sheppard of learned counsel for the Respondent relied on filed submissions and submitted as follows:
    
    1. The submission by Mr. Mana that the court does not have jurisdiction to grant the relief sought by the respondents is not correct in law as the application seeking to revoke a SW stands on the inherent jurisdiction of the court enunciated in Soh Chiam Bee v George Avali^[6] (referred to as Bee here) where his Honour the former CJ Sir Salamo Injia said:
       

“...it is within the inherent jurisdiction of the DC issuing the SW with or without application by an aggrieved person, to recall the SW at any time with a view to re-examining its validity, either in terms of its form or substance and where warranted, vary or revoke it. It is trite law that a court which has statutory power to issue a warrant, a SW as in this case, has the inherent power to vary or revoke it. It does not seem procedurally right that a Court which issued the SW, erroneous or otherwise, in connection with proceedings can fold its hand and say “well, I cannot do anything about it. You go to the appellant court to sort it out””.

2. Bee was an appeal from a decision of the DC which refused to set aside a SW it had earlier on issued stating that it had no jurisdiction to do so and only the NC had;
   
3. Consequently, the NC pronounced a binding case precedent on the lower court saying the lower court does have inherent jurisdiction to deal with revocation of SW applications;
   
4. The case of Eremas Wartoto v The State^[7] (referred to as the Wartoto case here) although was not directly relevant in its facts and rulings did confirm the inherent powers of the DC which was the approach in Bee. The comments of Sakora and Kandakasi JJ in summary talked about the DCs having the necessary powers to deal with any abuse or improper use of its processes in the first instance and that these must be raised at the earliest and resolved at the appropriate levels of the criminal justice process;
   
5. The present case shows that aggrieved parties are seeking to set aside the SW that had been issued based on false, defective and irregular information thus basing their application on Wartoto and the binding authority of Bee;
   
6. It may not be necessary to decide whether the DC has jurisdiction under s 25 of the DCA as Bee is the binding authority;
   
7. Nevertheless, given the definition at paragraph 12 of Lawrence that ‘ex-parte’ is when one party is not present and where the SW NOM has named parties who were not present, s 25 is evoked and the court therefore has jurisdiction to set aside the ex parte orders on application by the absent party or any other affected person;
   
8. The Lawrence case and the decision it pronounced does not contradict the courts inherent jurisdiction referred in Bee and Wartoto and does support the conclusion that SW orders made on the 30^th December 2020 were ex-parte.
   

Other submissions:

16. Mr. Sheppard made other submissions that there is no evidence to support the claim that there are multiplicity of proceedings in both the DC and NC and that amounts to an abuse of the court process.
    

Court’s initial analysis and determination on the submissions on Abuse of Process and Joinder

Abuse of Process

17. There are no relevant materials before me to find that there is an abuse of process because of two similar proceedings in both the lower and higher courts.
    
18. The court has not been asked to take judicial notice. There are no submissions that I can take judicial notice of another court records.
    
19. Consequently, I do not find that here is an abuse of the court’s process.
    

Joinder

20. The case of Vaki v Eliakim^[8] pronounces the relevant principles applicable in deciding on whether a party can intervene into a court proceeding. The requirements are that the intervening party must show that: s/he is a person who is directly affected; has sufficient interest and has been served a Notice of Motion.
    
21. I accept that the requirements to be joined as a party has been fulfilled in the following ways: Mr. Sheppard is a partner to Young and Williams Lawyers; the Law Firm represents certain clients some of whom are persons of interest to the Police; the trust account of Young and Williams Lawyers is held at Westpac Bank Ltd; and that the trust account is named as an account of interest to the Police listed under the Search Warrant Orders against Westpac Bank Ltd to be searched. Westpac Bank Ltd is the defendant in the SW proceedings. On this basis, I accept that Mr. Sheppard on behalf of Young and Williams has sufficient interest and has intervened at the earliest time possible.
    

Jurisdiction

‘Doctrine of Precedents’

22. The ‘doctrine of precedents’ is the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts. The ‘doctrine of precedents’ was developed to promote consistency on decision making by judges on the basis that cases should be determined in a like manner. There are two kinds of precedent: binding and persuasive. Binding decisions are made by a superior court that is higher on the hierarchy of courts. The binding precedent must be followed if the precedent is relevant and the circumstances of the case are sufficiently similar.
    
23. In Korowi v Aaron^[9] at paragraph 15, Makail J referred to the doctrine and said:
    

“In my view this proposition is based on a very sound legal principle. Where a judge decides a case it is a judicial pronouncement of an issue in dispute between the parties. It has a binding effect on the parties in dispute. It can also be used as a reference to resolve future disputes of the same kind. The binding effect of the court’s decision is referred to as a judicial precedent or appropriately in the legal sense as a doctrine of stare decisis”.

24. A precedent is persuasive if it was established by a superior court that is not higher in the hierarchy of courts. This means that the precedent can be considered but not required to be followed or have a binding effect.
    
25. In applying the ‘doctrine of precedents’ to parties reliance on Bee, Esso, Lawrence and Wartoto in the present case, my search on the limited number of reported cases in our jurisdiction show that the only relevant reported National Court case precedent in PNG that deals directly on the issue of the District Court’s powers to revoke its own SW is the case of Bee. There has never been a Supreme Court challenge to this case or on the issue.
    
26. In Geoffrey Vaki v Nerrie Eliakim^[10] (referred to as Vaki here), a case involving a Judicial Review at the National Court seeking to revoke a SW issued in the DC, the court said that the parties did not raise reviewability of the SW as an issue. Had it been raised by parties as an issue, I would think that the court in discussing whether the National Court can review that decision, would have discussed whether the DC had powers to revoke its own SW orders. Nevertheless, the court in Vaki (supra) when applying the case precedents of Wartoto and Sent held that the proper process was for the applicants to raise their concerns in the criminal proceedings where adequate criminal processes were available to the defendant and the Judicial Review application was dismissed.
    
27. SW matters as is known are distinct in their nature making SW courts a court of a particular kind. SW orders are usually obtained in the secrecy of the chambers of the magistrate to assist the Police in their investigations. Persons of interest to the Police or suspects usually are not yet arrested and charged and the decision to lay an Information or not is usually not yet made pending the outcome of the search. As such, SW orders are always obtained in an ex-parte manner, whereby persons of interest or suspects do not need to be served and are not served notices to appear or be represented in such applications. They may never know about such applications or issuing of such orders if they were granted until and when they were executed or thereafter.
    
28. The Bee and Esso cases are distinguished from Wartoto and Sent because in the former cases, the applicants were yet to be arrested and charged when they challenged the SW orders issued by the DC. In the later, the applicants were already arrested and charged, were appearing as defendants in the criminal process and were challenging other rulings of the court at those stages of the criminal process. Bee and Esso therefore are similar to the present case because their challenges to the SW were made before the orders for the SW were executed and the defendants arrested and charged.
    
29. From my understanding of what their cases are, both parties in this present matter rely on Wartoto and Sent because both argue that the appropriate principle applicable for challenging a criminal adjudication is to raise it at the appropriate stage of the criminal proceedings and at the earliest time possible.
    
30. The applicant also relies on Lawrence arguing that the DC cannot revoke its own search warrant orders. On the other end, the respondent relies on Bee arguing that the DC can revoke its own SW orders.
    
31. The SC cases of Wartoto and Sent arise out of facts where the applicants were arrested and charged and had pending information laid against them before a criminal court. Further they were cases that determined the issue of seeking civil procedures to deal with criminal matters. In those cases, the SC said that issues arising in the criminal jurisdiction can be challenged at the appropriate stages of the criminal justice process at the District and National Court and not through a Judicial Review.
    
32. For now, on the ‘doctrine of precedents’ the view I hold is that these cases therefore may not be directly relevant to the present case on the point of the DC’s powers to revoke its own SW orders except for Bee. I will return to a further discussion on the ‘doctrine of precedents’ with regards to these cases in the later part of this ruling.
    

Inherent Powers of the District Court

33. On the inherent powers of the court, SW cases are different in nature compared to other cases or are a court of a particular kind because they are a tool for aiding in police investigations and are conducted in total confidence and in the secrecy of the magistrate’s chambers pursuant to their jurisdictional powers being invoked under the Search Act (SA). As such, and in my view, the courts can invoke their specific powers inherent under the specific jurisdiction of the SA by assuming them to enable it to deal with any consequential motions or grievances brought before it as a result of a SW order it had issued. I reiterate the point by relying on the views of Injia, J (as he then was) in the case of Bee.
    
34. In Bee, Injia, J. referred to the inherent jurisdiction of the DC issuing SW orders by saying that the DC has the inherent powers to vary or revoke a SW it had issued. In the current setting of the DC in the jurisdiction of National Capital District, any other magistrates not sitting as a SW court does not have jurisdiction to hear an application or revoke a search warrant order. Only those magistrates sitting in the Waigani DC in the SW court/track have the inherent power under the SA to exercise jurisdictional powers to deal with any revocation application that arise. The inherent power of the DC magistrate sitting in the SW track in Waigani to hear such an application for revocation would come about because of the initial invocation of that magistrate’s powers under the jurisdiction of the SA in granting an order for the Police to conduct a search.
    
35. Section 5 of the DCA in my view empowers Magistrates who have and may exercise within and for their jurisdictions the several powers and authorities conferred on them by this (the DCA) or any other law including the SA. In my respectful view, this provision gives magistrates sitting also in the SW Courts a wider discretion to hear and determine issues arising as a result of the issuance of an order to the police to conduct a search which originated from an order made under the SA.
    
36. The phrase ‘within and for’ has not been defined. In my respectful view, on this present issue of jurisdiction of the DC it should be defined.
    
37. Whilst it is a matter of law that statutory interpretations are matters for and within the jurisdiction of the Supreme Court, I must express a view on the definition now so as to help to determine the present issue. I adopt the comments I made in Police v Bhosip Kaiwi^[11] where I held that any statutory interpretation for current purposes that is at the District Court proceedings is not binding and has persuasive value only.
    
38. The online Merriam Webster Dictionary^[12] states that the term “within’ as a preposition means ‘not beyond the limits’ and the same dictionary defines the word ‘for’ as a preposition to mean ‘to indicate purpose’.
    
39. The phrase ‘within and for’ therefore in the context of section 5 of the DCA in my respectful view means that the DC Magistrate can act only within their limited statutory function in which their powers are invoked and the DC Magistrate can act only ‘for’ the interest of its functions which are to safeguard it’s processes from abuse, to regulate its own procedures and to deal with any unfair investigations or trial practice and procedure.
    
40. I adopt an abstract from Joseph, Rosara --- "Inherent jurisdiction and inherent powers in New Zealand" [2005] CanterLawRw 10; (2005) 11 Canterbury Law Review 220 to support this definition. The author wrote:
    

“ there can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction.[94]^[13] All courts possess inherent powers. These powers enable the court to regulate its own procedures, to ensure fairness in trial and investigative procedures, and to prevent abuse of its processes.

......

Every court possesses inherent powers which enable it to give effect to its substantive jurisdiction.. In Zaoui v Attorney General,[98]^[14] the Supreme Court explained that inherent powers enable courts to give effect to their jurisdiction. In McMenamin v Attorney General,[99]^[15]the Court of Appeal said that inherent powers conferred a right on courts to do what is necessary to enable an inferior court to exercise the functions conferred on it by statute. This is implied as a matter of statutory construction. In Department of Social Welfare v Stewart, [100]^[16] Wylie J confirmed that an 'implied power' arises by necessary implication as being ancillary to the performance of functions, powers and duties conferred by the statute. The statutory function must exist for the necessary power to be implied.

....

The Australian courts have also found that a court's inherent powers are implied from statutory provisions conferring a particular jurisdiction. The Australian courts have emphasised that these implied powers are restricted to those powers which arise by 'necessary implication' in the exercise of statutory jurisdiction.[102]^[17]

An alternative explanation is that inherent powers can be implied from the character of the court itself. Master Jacob adopted this theory, declaring that inherent powers are based on an 'immanent attribute' which is part of the intrinsic nature or the essential character of a court.[103]^[18] In criminal case of R v Forbes,[104]^[19] Menzies J described 'inherent powers' (although he used the term 'inherent jurisdiction') in this way: 'inherent jurisdiction is the power which a Court has simply because it is a court of a particular description'. Kirby J's dissent in DJL v Central Authority[105]^[20] takes a similar approach. He suggested that inherent powers could be implied from the character of a court as a court of a particular kind. The history, functions and express powers of a particular court would help define the limits of its implied powers.[106]^[21]

The better view is that inherent powers are implied from a court's jurisdiction. A court is defined by its jurisdiction: it has no authority to determine matters which are beyond its jurisdiction. Therefore, the court's inherent powers must be similarly defined”.[End of quote].

41. The phrase ‘within and for’ therefore in my view caters for DC magistrates to act within their statutory limits as creatures of statues and to deal with any matters arising from that jurisdiction requiring them to use their inherent powers within that jurisdiction to consider and effectively rule on matters. Using the example of SW applications, the use of the phrase ‘within and for’ would mean that magistrates can act within their powers under the SA to hear and determine applications arising from orders made under the SA and can also hear and determine applications seeking revocation of Search Warrant orders to safeguard it’s processes from abuse, to regulate its own procedures and to deal with any unfair investigations or trial practice and procedure.
    
42. The exercise of the powers of the DC on whether to hear and rule on an issue is determined by its limited functions and what is within the scope of that function. This is well described by Rosara (supra) who stated that these functions can be grouped into three categories: to regulate its own procedure; to ensure fairness in investigative and trial procedures and to prevent an abuse of its process.

.
Cases in Australia and other common law jurisdiction

43. On the Inherent powers of a court to regulate its own procedure, Rosara (supra) said:

“All courts have the inherent power, subject to the rules of court and to statute, to regulate their own procedure.[111]^[22] Alderson B in Cocker v Tempest[112]^[23] stated that the power that each court has over its own process is unlimited. All courts have this power, whether they are inferior or superior courts. In Commissioner of Police v Ombudsman,[113]^[24] Cooke P explained that 'inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact'. If courts did not have such a power, then 'the Court would be obliged to sit still and see its own processes abused for the purpose of injustice'.[114]^[25] In Mihaka v Police,[115]^[26] Hardie Boys J declared that the discretion of the Judge or other judicial officers to regulate the proceedings of his or her Court is an 'essential attribute of judicial independence'. Even Justices of the Peace, as judicial officers presiding in a depositions hearing, have this inherent power.[116]^[27]

44. On the inherent powers of a court to ensure fairness in investigative and trial procedures, the Rosara also stated:

“A court may exercise its inherent power to ensure the fairness of proceedings where the investigative or trial procedures are unfair or contrary to the interests of justice. The guiding principles in the exercise of this power are the considerations of justice and fairness. Delay may make proceedings unfair, as in MacFarlane v Erber,[135]^[28] where Tipping J confirmed that the District Court has inherent power to dismiss an information if its continuance would amount to an abuse of process. At the heart of this power is the concept of fairness, both to the individual defendant and to the general administration of justice.[136]^[29]

A stay may be granted where it would be unfair to make the accused stand trial. In R v Duval,[137]^[30] Thomas J granted a stay of proceedings pursuant to the Court's inherent powers because the accused suffered from a medical condition which was held to make it impossible for him to face a fair trial. Thomas J reasoned that the Court may invoke its inherent powers 'whenever the justice of the case so demands.'[138]^[31]

The fairness of investigative procedures was at issue in R v Hartley.[139] ^[32] New Zealand police had not obtained a warrant for the accused's extradition and had merely asked the Melbourne police to put the accused on the next plane to New Zealand, which the Melbourne police did. The Court of Appeal found that, had the matter been raised by counsel, the judge in the High Court would 'probably have been justified' in exercising his discretion to direct that the accused be discharged, under either his inherent power, or under s 347(3) of the Crimes Act 1961 because the police procedures were unfair and unlawful.”[140]^[33]

45. In an application to revoke a SW order, such as in this present case, the court in exercising its inherent powers under the SA must hear and adjudicate in the matter in order to determine regulating its own procedures; in order to ensure there is fairness and justice observed in investigative and trial procedures; and to prevent an abuse of its process. All in all, the overriding principles for consideration in guiding the court determine whether it should hear and rule on a motion is the principle of justice and fairness on the parties and the court process.
    
46. On the principle of justice and fairness where the DC must consider at all times in determining issues before it, the court in the case of Les Gavara-Nanu v. Peter O’Neill (2018) N7562, said:

“ ... interests of justice” is one which judges employ frequently in exercise of their discretion. It is hardly defined – wisely so, because it depends in large measure on the circumstances of each case. In my mind it is not necessary to unpack the phase other than to say it connotes the principle of fairness. At the end of the day the ends of justice in each case must be done in accordance with the law. To this extent, the positions of the parties before the Court is irrelevant because justice is blind to such considerations”.

47. Hence, where the applicant seeking to revoke a SW order is alleging unfairness and injustice, the court must readily hear the application.
    
48. The specific nature of search warrant applications as mentioned earlier are to aid in police investigations and therefore warrants the inherent powers of the SW court to be invoked to determine issues arising from any allegations of abuse of police investigative powers when making such applications for search warrant orders.
    
49. The duty of the SW court in the exercise of its inherent powers is such as to ensure due consideration is given to the principle of interest of justice and is especially crucial in PNG where SW matters do not return to court in order for the court to be satisfied that the orders were complied with and that there was no police impropriety.
    
50. This duty of the court is also specifically to ensure hearing of earlier intervening application when such genuine issues are raised (Wartoto).
    
51. Going further form there, in my humble view, before a court can hear and determine any application for revocation of a SW, leave must first be granted. The pre-requisites to be fulfilled should be akin to those in setting aside of ex-parte orders which are: that the person seeking the orders for revocation is an aggrieved party and has sufficient interest; that this party’s case has merits and that the application is made within reasonable time. The only pre-requisite that may not need to be fulfilled because of the nature of SW applications is that of service of the Motion.

52. I adopt the case law of Green & Co Pty Ltd (Receiver Appointed) v Roger Britain Green[34] (referred to here as Green v Green) on the issue of setting aside of ex-parte orders or default judgment as a guide only for determining when leave can be granted to hear such motion seeking revocation of a SW order.
53. This court’s view on the application of section 25 of the DCA in setting aside of ex-parte orders as a basis for seeking to revoke SW orders is discussed below.
54. Returning to inherent powers of a court, on the inherent powers of a court to prevent an abuse of its processes, the author Rosara ( supra) went on further to say:

“Every court has an inherent power to prevent abuse of its processes. The inherent power to prevent abuse of process may be more than a matter of discretion; it may amount to a duty on the court. This was the approach taken by Cooke J in NZ Social Credit Political League v O'Brien, [141]^[35] where he stated that the inherent jurisdiction to strike out a statement of claim as an abuse of process is one which a court may come under a duty to exercise.[142]^[36]

The guiding principles in the exercise of a court's inherent power are the considerations of justice and fairness. The underlying rationale of the abuse of process principle is the prevention of abuses that would strike at the public confidence in a court's process and so diminish the court's ability to fulfil its function. In Moevao v Department of Labour, [143]^[37] Richardson J emphasised that the due administration of justice is a continuous process and is not confined to the determination of a particular case. Therefore, 'when exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it'.[144]^[38] It is accepted that all courts have the inherent power to prevent an abuse of its processes. Some doubt was created by the Court of Appeal's decision in Moevao v Department of Labour, [145]^[39] where the Court declined to make a definitive ruling as to whether the District Court possessed such inherent power. In Bryant v Collector of Customs, [146]^[40] the Court of Appeal confirmed that any court of justice has the inherent power to prevent an abuse of its processes. It was the 'Judge's duty' to exercise this inherent power.[147]^[41] In Department of Social Welfare v Stewart,[148]^[42] the inherent power of the District Court was held to extend to dismissal or permanent stay of an information. Any doubt as to the District Court's power to strike out pleadings as an abuse of process was removed by r 209 of the District Court Rules 1992, which expressly confers the District Court with the power to strike out pleadings as an abuse of process”.

55. The above text with supporting case laws clearly supports this court’s view that distinctions can be made between ‘inherent jurisdiction’ and ‘inherent powers’ of the court. The DC is a creature of statute and its inherent powers unlike that of the National and Supreme courts is limited only to the statute that invokes its jurisdiction. Such ‘inherent powers’ subject to section 5 of the DCA allows the court to regulate for and within its jurisdiction its own procedures; to ensure fairness in investigative and trial procedures and to prevent an abuse of its process.
    
56. In the present instance, the NOM filed by the applicant Mr. Gregory Sheppard as an intervening and aggrieved party is one that seeks the courts indulgence to hear a complaint arguing that police investigative procedures through the aid of a SW application made to court did not legally and properly comply with the due processes for obtaining search warrant orders and this process had been abused.
    
57. I agree with the view of Injia, J in Bee and say that Bee was a decision that had regard to the inherent powers that courts have within their statutory limits and especially in the SW Court which had a specific nature and was a court of a particular kind. Due to the nature of SW proceedings under the SA in our jurisdiction, and unlike the procedure in some States of Australia, where their police have a legal obligation to report back to the courts on the results of their searches, and where in PNG our police don’t, this may be open for abuse. This emphasizes this court’s view for the need for the SW court to be able to exercise inherent powers to deal with SW issues arising from the grant of its SW orders under the SA.
    
58. The powers exercised by the SW court in hearing and determining an application for revocation is derived from the statutory basis of the SA and are proper in its assumption of inherent powers to deal with such issues. When the court sits to hear an issue arising from the process involved in the obtaining of the SW it had issued, it may decide if the SW was properly obtained or not and make consequential orders. And in so doing, it is regulating its process; is dealing with unfair and unjust investigative processes and is preventing an abuse of the court processes, all of these functions Rosara refers to in his quoted text above.
    
59. Returning to the ‘doctrine of precedents’ this court is not bound by the DC’s decision in Lawrence but that decision can only have persuasive effect to the present case.
    
60. I agree with Lawrence for two reasons: firstly; that in relying on Wartoto it stated that civil processes cannot be used to determine a criminal matter and secondly; it described what the only two ex-parte proceedings are under the DCA. These two proceedings are: sections 125 (summary proceedings) and 143 (civil complaints) which require sufficient service of reasonable notice be given and where there is no appearance the court can make orders in their absence which then can be set aside.
    
61. Lawrence said and I agree that section 25 of the DCA provision of setting aside an order is not applicable to SW cases as SW cases are heard ex-parte due to their confidential nature to aid in police investigations and does not require service on the other party. As such and strictly speaking, section 25 of the DCA on setting aside of ex parte orders is not a proper basis for aggrieved parties to rely on where they were not meant to be informed or given notice and had not been represented in the initial SW applications.
    
62. In the PNG jurisdiction, although it is not usually the case, but where an aggrieved party becomes aware of the SW orders before the orders are actually executed and decide to challenge it, they must be heard. The hearing will come about through the filing of a NOM, seeking to invoke the inherent powers of the court sitting in the SA court. The aggrieved party must first and foremost be granted leave having complied with all the prerequisites as mentioned above in paragraphs 51-52. In this way, any unnecessary applications will not be entertained so that time is not wasted and the courts processes are not abused.
    

Further discussion on cases relied on by the parties

63. Lawrence did not comment on Bee which was binding on it directly on the relevant issue of Revocation of Search Warrants. But in general terms, expressed that Sent which relied on Wartoto is binding on the DC on its pronouncement in generalized statements that said that “before a JR is launched, in determining a criminal case, all criminal ‘avenues should first be exhausted” (per Injia, Kandakasi, Sakora and Kirriwom, JJ) and that criminal proceedings should never be the subject of a judicial review proceeding as the procedures and requirements are not compatible (per Manuhu, Murray and Pitpit, JJ).
    
64. Lawrence which relies on Sent, further did not talk about what the different learned Justices said and repeated in their respectful decisions “that any challenge in a criminal case must occur at the earliest stage and at the appropriate part of the criminal process”. This is a statement that most of the leaned SC justices mentioned which in my respectful view must provide the basis for DC to hear and determine any challenges that arise at the District Court level along the criminal justice process which starts with the Police. The hearing and determination of these issues must be exercised so that the SW court in the exercise of its inherent powers from the invocation of its powers under the SA can determine those issues bearing in mind its duty to: regulation its own procedure; ensure fairness in investigative and trial procedures; and prevent an abuse of its process.
    
65. Sent was a decision in the SC that came about as a result of Gavar-nanu, J’s refusal to do a judicial review on a decision by a committal court to commit the applicant to trial in the NC. Esso, by Gavar-nanu, J was a decision that is styled as a JR in the NC on the revocation of a SW where Gavara-nanu J quashed the SW orders issued by the DC.
    
66. Both decisions have opposing rulings although by the same presiding Judge because in the former (Sent) the court refused a hearing as a JR for a criminal matter and in the latter (Esso) the court proceeded to a hearing and determination of the criminal matter as a JR.
    
67. The point that has to be made is that the facts of both cases (Sent and Esso) are not the same because Sent dealt with a JR application on a decision by a committal court magistrate to commit a defendant to trial and Esso dealt with a SW revocation. Both matters arose at different stages of the criminal justice process and in different jurisdictions where the functions of magistrates were different and their specific powers were derived from their limited statutory jurisdictions, i.e., the Search Warrant Process under the SA and the Committal Process under Part VI of the DCA respectively.
    
68. In highlighting these distinguished facts of both cases (Sent and Esso) as above and in the interest of the ‘doctrine of precedents’ that says that the development of case law in any jurisdiction depends entirely on correct application of a case law and this should be allowed to develop on a case by case basis permitted only by the peculiar facts of each case, I am of the respectful view that of the two cases, Esso is more specific and applicable to the preset issue.
    
69. As such, where the DC issued SW orders that do not comply with proper processes, Esso sets the precedent that such orders can be quashed by the NC if raised there.
    
70. His Honour Injia, J made an important statement on this point on the ‘doctrine of precedents’ in Wartoto when commenting on the cases relied on by parties. I quote his comments in support only to the argument on ‘doctrine of precedents’. Sir Injia, J said:
    

“Cases relied on by Mr. Wartoto to ask the NC to exercise its civil jurisdiction to stay criminal proceedings were not on point. These cases refer to judicial intervention and scrutiny over the performance of statutory powers and functions by statutory agencies with regards to conduct of investigations, and decisions made on complaints, and allegations of breaches of law (police, OC, Com of Inquiry, Leadership Tribunal, Coroners Court, Committal Court, Facts were different to present case.”

71. His Honour explained how those cases were different and went to say:

“In that case: the judicial pronouncements of the principles and sentiments expressed and echoed in these cases are associated with the peculiar facts of those cases. It is difficult to discern from those pronouncements any clear statements of principle of general application to the entire criminal process with all its attendant procedural diversities, niceties, and complexities. The case law should be allowed to develop on a case by case basis as permitted by the peculiar facts of each case”

72. Adopting the above views of Injia, J and applying them to this present case on the ‘doctrine of precedents’ I express my respectful view that Sent and Wartoto are not cases which are on point on the issue of Revocation of SW orders. But they were decided in the context of applicants seeking a civil remedy for criminal cases. They are however applicable only because they say that any challenges arising out from criminal proceedings must take place at the earliest time, earliest stages possible and at the appropriate courts in the criminal justice process which is in agreement with Bee and Esso.
    
73. In my respectful view, the cases that are directly on point on SW revocation applications are Bee and Esso. They are consistent with the comment in Wartoto and Sent again only to the extent that the later cases expressed that challenges to any issue must be made at the earliest in time at the relevant stage of the criminal justice process or at the relevant court.
    
74. In these cases, challenges to the police application for Search Warrants were made earlier in time and at the appropriate stages of the criminal process. Bee and Esso therefore are applicable directly and are binding on the present case. The application to set aside or revoke a SW order in the present case is in my view not invoking the DC’s civil powers which if it does will be guided by Wartoto and Sent, but arise at the SW stage of the criminal process evoked under the SA and before a Magistrate of the SW Court, which legitimizes the forgoing discussions.
    
75. As a result, I am of the respectful view that Injia, J has rightly pronounced in Bee that the DC has inherent powers from the SA to invoke and deal with applications arising from its substantive proceeding which arises out from the criminal jurisdiction of the SA. This function is unique to the SW court. The SW Court is a specialised court and its functions are different to other courts in that its powers are invoked in secrecy of the chambers of the magistrate to aid police investigations without the other party being present or knowing about it and as such can be open to abuse.
    
76. Magistrates therefore must be reminded at all times that SW applications can be open to abuse or to be precise may not meet the necessary Section 6 requirements of the SA. The necessary requirements for the court to be satisfied on are that the application must be made by way of an information on oath and supporting affidavit showing that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place anything with respect to which any offence has been or is believed on reasonable grounds to have been committed; or 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 any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence. Where allegations such as these are raised that Section 6 requirements of the SA have not been met, the inherent powers of the Court that Bee pronounces must be used to deal with such issues.
    
77. The application seeking to set aside or ‘revoke’ the SW has proper basis under case law in Bee where the court uses its jurisdictional powers to determine issues before it and Bee is binding unless a SC decision overturns that decision in a case that has sufficiently relevant and similar facts to this present case.
    

Conclusion:

78. In conclusion, I summarise my views as follows:
    
    1. Section 5 of the DCA provides the basis for magistrates to exercise

within and for their jurisdictions the several powers and authorities conferred on them by the DCA or other law;

2. Section 5 of the DCA gives magistrates sitting in the Search Warrant

track a wider discretion to exercise powers within and for their jurisdiction such inherent jurisdictional powers under the Search Act ;

3. This inherent powers of the District Court to hear and determine

revocation applications for Search Warrant orders lies within the Search Act where the initial powers of the court was invoked to decide on the grant a Search Warrant order;

4. The inherent powers of the court to hear revocation applications for

Search Warrant Orders must be exercised by the District Court so as to allow it to regulate its own procedures, to ensure fair investigations and to prevent any abuse of the court processes;

5. Considering the ‘Doctrine of Precedents’, the case law that sets the

legal basis for the District Court to exercise its inherent powers to deal with revocation of its own Search Warrant orders is the case of Soh Chiam Bee v George Avali (supra);

6. The District Court does have inherent powers to hear an

application for the revocation of its own Search Warrant orders;

7. Before a District Court magistrate can hear an application to revoke

its own Search Warrant orders, leave must be granted based on the fulfillment of the requirements that: the person seeking the orders for revocation is an aggrieved party and has sufficient interest; that this party’s case has merits and that the application is made within reasonable time; and

8. Section 25 of the DCA is not the proper jurisdictional basis for

setting aside of Search Warrant orders.

Court Orders

79. The final orders of the court are:
    
    1. Application seeking orders that the Notice of Motion seeking revocation of the Search Warrant orders be dismissed for want of jurisdiction is refused;
       
    2. The interim order staying the Search Warrant orders is on foot;
       
    3. The interim order staying the Search Warrant orders is on foot pending the outcome of the Notice of Motion seeking to revoke the Search Warrant; and
       
    4. The Notice of Motion seeking to revoke the Search Warrant orders must now be prioritized and be listed for hearing.
       

Corrs, Chambers and Westgarth Lawyers For the Applicant

Young and Williams For the Respondent

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^[1] Chapter 40
^[2] Chapter 341 of 1977
^[3] SW No 315 of 2020, 14^th December 2020
^[4] (2017) SC1582
^[5] (2014) N6386
^[6] [2001] PGNC 74 N2148
^[7] [2015] PGSC
^[8] [2015] PGNC 253; N6129 (7 December 2015)
^[9] [2016] PGNC 36; N6215 (3 March 2016)
^[10] (2017) N6835
^[11] DC5033, Decision on the 01^st of December 2020
^[12] 2021 Merriam Webster Incorporated
^[13] R v Connelly [1964] AC 1254, 1301 (Lord Morris)
^[14] Zaoui v Attorney General [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1NZLR 666 (SC) ,[35]
^[15] [1985] 2 NZLR 274, 276 (CA)
^[16] [1990] 1 NZLR 697
^[17] DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659, 667 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 689 (Kirby J); Parsons v Martin [1984] FCA 408; (1984) 5FCR 235, 241; R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1, 7; R v Bevan [1942] HCA 12; (1942) 66 CLR 452, 464-5.
^[18] Jacob, ‘The inherent Jurisdiction of the Court ‘ in Current Legal Problems (1970) 27-28
^[19] [1972] HCA 34; (1972) 127 CLR 1 (Menzies J), cited in Taylor v Attorney General [1975] 2 NZLR 675678.
^[20] [2000] HCA 17; (2000) 170 ALR 659, 689
^[21] DJL V Central Authority [2000] HCA 17, (2000) 170 ALR 659, 689
^[22] R v Bloomsbury & Marylebone County Court [1076] WLR 362, 365
^[23] [1841] EngR 242; (1841) 7 M & W 502, 503-504
^[24] [1988] NZCA 211; [1988] 1NZLR 385,399 (CA)

^[25] Cooker v Tempest [1841] EngR 242; (1841) 7 M & W 502, 503-504.
^[26] [1981] 1 NZLR 54, 58.
^[27] Mihaka v Police [1981] 1 NZLR 54
^[28] [1989] NZHC 621; [1990] 2 NZLR 69.
^[29] DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659, 685-686 (Kirby j) HCA Ibid (Tipping J). For other cases dealing with delay, see Mc Menamin v Attorney General [1985] 2 NZLR 274 (CA); Re Arnold [1977] 1 NZLR 327; Department of Social Welfare v Stewart [1990] 1 NZLR 697
^[30] [1995] 3 NZLR 202
^[31] Ibid 205
^[32] [1978] 2 NZLR 199( CA)
^[33] Ibid 217
^[34] [1976] PNGLR 73 N28
^[35] [1984] 1 NZLR 84 (CA)
^[36] Ibid 89
^[37] [1980] 1 NZLR 464, 481-482 (CA)
^[38] Ibid 481
^[39] Ibid
^[40] [1984] 1 NZLR 280 (CA)
^[41] Ibid 284
^[42] Department of Social Welfare v Stewart [1990] 1 NZLR 697