State v Iga [1990] PGNC 100; [1990] PNGLR 146; N839 (19 April 1990)

N839

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

BENNY BUEN IGA

Finschhafen/Lae
Doherty AJ

8 February 1990
18-19 April 1990

CRIMINAL LAW - Evidence - Admissibility - Evidence unlawfully obtained - Evidence obtained in breach of Search Act - Evidence rejected - Search Act (Ch No 341), s 3(1)(4).

CRIMINAL LAW - Practice and procedure - Search - Power to search where person intending to board craft - Not applicable where person on board - Power to search where reasonable suspicion of possession of property - Not power to search particular villagers - Search Act (Ch No 341), s 3(1)(4)(5).

The Search Act (Ch No 341), s 3(1) and (4) provided:

"(1) Where a policeman believes on reasonable grounds that a person has in his possession —

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

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

he may stop and search that person ... and exercise the power of seizure ...

(4) The owner of a craft or person in command of a craft or a person authorized by either of them or a policeman may in accordance with section 4, search a person intending to board a craft and, where applicable may exercise a power of seizure under section 10(3)."

A number of people from the same village were taken off a passenger boat, searched and detained for several days before one, in whose possession were found a rifle, disguises and money, was charged with robbery.

On objection to the tendering of the rifle in evidence,

Held:

(1) The power of search under s 3(4) of the Search Act is limited to persons who are about to go on board a craft and does not extend to persons who are already aboard the craft or have not reached the state of intending or showing an intention to go aboard.

(2) The power of search under s 3(1) of the Search Act is limited to cases where there is a belief on reasonable grounds as to possession of things unlawfully obtained or used in the commission of an indictable offence.

(3) The fact of being from a particular village did not of itself constitute reasonable grounds for instituting a search under s 3(1).

(4) In the circumstances, the search was unlawful as being contrary to s 3(1) and s 3(4) of the Search Act and the rifle which was obtained as a result of that illegal search was inadmissible.

The State v Popo [1987] PNGLR 286, applied.

Cases Cited

The following cases are cited in the judgment:
John Alex v Martin Golu [1983] PNGLR 117.
Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329.
The State v Malala Hore [1981] PNGLR 536.
The State v Popo [1987] PNGLR 286.
SCR No 5 of 1987; The State v Songke Mai and Gai Avi [1988] PNGLR 56.

Trial

During the course of a trial on charges of robbery, the defendant objected to the tender in evidence of a rifle. The following ruling on admissibility was delivered.

Counsel:

B Poiya, for the State.
G Langtry, for the defendant.
Cur adv vult

19 April 1990

DOHERTY AJ.: The defendant objected to admission of certain evidence acquired in a search of the baggage of the defendant. The sworn evidence of Constable Wali told of the boarding of a passenger boat at Finschhafen on 29 August 1989 with the permission of the captain of the boat, the removal of all passengers, the separation of the defendant and some of his fellow Kwanalson villagers, the detention of this group and the subsequent search of the group’s baggage. During the search a police issue rifle, wigs and overalls and cash of K1,042.00 were found in the possession of the defendant. The defendant and his fellow villagers were detained without charge for several days until two escaped; the defendant was charged and the others released.

A rifle had been used in a robbery of a bank on 25 August 1989 at Finschhafen (some days earlier than the search) by persons wearing a wig and overalls and the vehicle taken and used after the robbery was found abandoned near the defendant’s village.

All the foregoing evidence was given without objection but when the prosecution sought to tender the rifle, an objection was raised by the defence that the search was unconstitutional and did not comply with the Search Act (Ch No 341). At the request of both counsel, I stood this matter down for fuller argument.

The prosecution has now raised a procedural matter. He says that this objection should have been dealt with on a voir dire; he did not raise this objection earlier. That should have been raised at the time and if the prosecution now consider there was a procedural error, they must take some responsibility for this situation because this particular witness was not listed in the indictment nor was his evidence included in the documents handed to the defendant. There was therefore an element of surprise in his evidence and prosecution cannot now raise a procedural matter. I noted in the course of evidence that a great deal of Constable Wali’s evidence went without objection and it was not really until the eleventh hour that this matter was raised.

Mr Langtry says that the detention and the search were illegal and has asked me not to admit the evidence of the goods found in the search on the basis: (1) that they were not acquired in accordance with the Search Act; and/or (2) of a remedy for breach of the defendant’s constitutional rights not to be illegally detained. He refers me to ss 23(2) and 57(1) of the Constitution.

Mr Poiya says that the police acted under a reasonable suspicion because of the defendant’s odd actions on board the boat plus the circumstances of the finding of the vehicle near the village and that these together give a basis for "reasonable grounds" pursuant to s 3(1) of the Search Act. On this basis the prosecution says the evidence is admissible. On the question of detention he argues that the defendant, and his fellow villagers, were only held for questioning.

I consider that one cannot confuse detention and search in the matter before me. These are two different matters and although both constitute a breach of constitutional rights, they are different breaches. I agree that there are wide powers in the National Court under s 57 of the National Constitution to remedy breaches of constitutional rights; in fact they have been described as unlimited by the Supreme Court in the matter of Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329.

Section 57 of the Constitution clearly provides remedies for breach of the right to freedom from arbitrary entry and search including the non-admission as evidence of goods found during such an illegal search. This was held in The State v Popo [1987] PNGLR 286 and in John Alex v Martin Golu [1983] PNGLR 117. At 120 in the latter, Kapi Dep CJ held that the powers under s 57 are separate from common law powers to reject evidence unlawfully obtained and are wide.

What counsel for the defence has asked is that if I find the defendant was illegally detained, but that the search was legal, I should rely on the wide powers under s 57 to refuse admission of the evidence of the search. This appears to be a trading (for want of a better term) in two quite different breaches under the Constitution. The powers under s 57 of the Constitution are powers vested in a court to act legally and if I find the search was legal, I cannot disbar admission of legally obtained evidence by setting it off against a different breach of the Constitution.

DETENTION

The provisions of s 42(2) of the Constitution in relation to detention were considered at great length in SCR No 5 of 1987; The State v Songke Mai and Gai Avi [1988] PNGLR 56. In that case, Kidu CJ stated (at 60-61):

"... the terms ‘arrested’ and ‘detained’ (or ‘arrest’ and ‘detain’) in ss 42(2)(3)(5) and (6) mean total deprivation of personal liberty —- they are two different forms of deprivation of personal liberty. And the deprivation must be legal. There cannot be any legal deprivation of personal liberty outside s 42(1)."

And further (at 61):

"It is apparent, in my view that s 42(2) allows the police to detain a person without arresting him if the police suspect he has committed an offence or is about to do so. The condition of this right to detain without arrest is that an Act of Parliament ... must provide for it ... At present I am not aware of any statute, which permits a police to detain a person suspected of having committed an offence or being about to commit an offence without arresting him."

The Supreme Court clearly states there is no Act of Parliament, which permits detention and there is no right to detain, short of arrest. I referred counsel to the few jurisdictions where such detention is legal (eg South Africa or Northern Ireland in the Prevention from Terrorism Act of that country).

Since there is no right to detain and since there is no evidence before me that the defendant or any of his fellow villagers were actually arrested and charged with a criminal offence, I consider that the detention and separation of the defendant and his fellow villagers was illegal and wrong. I consider that this constitutes a breach of his and his fellow villagers’ constitutional rights. I say this even though the evidence before me was that the defendant and his fellow villagers agreed to accompany the police and (as Wali said) "hopped on the vehicle". This may have been from an ignorance of the law or respect for authority.

SEARCH

The immediate objection raised by counsel was as to the search and the way it was conducted. It was stated in evidence that the police had a "stake out". I cannot find this word in the legal dictionaries or in the Search Act and it appears to have no legal status. There is no suggestion that a warrant for search had been applied for, and as a result, s 6 of the Search Act does not apply to this case. From the evidence before me, if the search was to be legal, it must have been a search conducted under s 3 of the Search Act. I have drawn the attention of counsel to the provisions of s 3(4). This provides:

"The owner of a craft or person in command of a craft or a person authorised by either of them or a policeman may in accordance with section 4, search a person intending to board the craft and, where applicable may exercise a power of seizure under section 10(3)."

I note from the evidence that the search took place, following the boarding of a ship (which is within the definition of craft in s 1), of persons who had boarded that ship and was with permission of the person in command.

The powers provided in s 3(4) are very wide and give an owner or a policeman or a person in command of a craft a wide and unfettered power of search. There is no suggestion in s 3(4) that the power must follow a reasonable suspicion or grounds or be with authority in the form of a warrant from a court. There is no explanation in the preamble to the Search Act why these wide powers should be given in relation to a craft in contrast to any other form of search. Section 3(5) also empowers a person in command of a craft to search a person on board the craft but only if there is a suspicion that that person constitutes a danger to safety. This is in contrast to s 3(4), as I have said there is no requirement for any suspicion or grounds. It may be that Parliament had in mind the authorisation of searches commonly carried out prior to boarding of aircrafts at airports which, if not legally authorised, would be unconstitutional. However there is no indication in the Search Act to this effect and the provisions of s 3(4) must be given their clear meaning. The provision applies to a person "intending to board the craft". Since the power is so wide I consider that it must be strictly interpreted in accordance with the clear meaning of the section and I find that the expression "intending to board the craft" limits it to persons who are about to go on board a craft and does not extend to persons who are already aboard the craft or have not reached the stage of intending or showing an intention to go aboard.

Once aboard the craft the powers of search vested in the owner, captain or policeman by s 3(4) come to an end and the power to search a person on board the craft can only be exercised if s 3(5) applies.

The evidence before me shows that the defendant and his fellow villagers were already on board the vessel and the defendant appeared to be asleep. Hence they had gone past the stage of "intending to board". Power to search them under s 3(4) had ceased. This therefore leaves only the provisions of s 3(1) where there must be reasonable grounds to believe that a person had in his possession something that had been stolen, unlawfully obtained or used in the commission of an indictable offence. The prosecution counsel points me to the odd actions of the defendant "pretending to be asleep". I could give this argument some weight if it had been only the defendant who had been picked out from all the other passengers for this search. However the evidence clearly shows that he and his fellow villagers were separated from the other passengers by virtue only of being from that village and the search, I find, was not because of his actions in pretending to be asleep but because he and the others came from Kwanalson village.

A person’s place of residence does not constitute reasonable grounds for thinking that he may have something in his possession that has been stolen or otherwise unlawfully obtained. I find the search was an arbitrary search and unlawful.

In considering this case I have also considered the ruling in The State v Malala Hore [1981] PNGLR 536 concerning the admission of evidence that has been obtained by unfair means. That decision related to evidence concerning an agent provocateur and is based on argument concerning the common law. Provisions before me are statutory and therefore common law arguments do not apply. I find that this evidence was not properly obtained, it was obtained as a result of an illegal search and I do not allow the tendering of the rifle in evidence.

Evidence rejected

_____________

Lawyer for the State: Public Prosecutor.
Lawyers for the Defendant: Mionzing and Associates.