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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No.1469 of 2015
BETWEEN:
WAKE GOI
Plaintiff
AND:
BANK SOUTH PACIFIC LIMITED
Defendant
Waigani: David, J
2020 : 27 March
BANKING – claim for damages for alleged breach of bank’s fiduciary duty of secrecy and confidentiality – release of copies of plaintiff’s bank statements to police – bank statements required for police investigation for prosecution of misappropriation charge - whether release of bank statement pursuant to warrant of search – burden of proof in civil proceedings is on party who alleges – presumption of regularity - Search Act.
PNG cases cited:
Acting Public Prosecutor v Richard Saronduo (1988-1989) PNGLR 17
Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446)
Bomai v Takela (2016) N3662
Galem Falide v Registrar of Titles and The State (2012) N4775
Kennedy Amun v Bank of South Pacific Ltd (2008) Unreported Judgment, WS 1316/2005 Waigani, delivered by Davani, J on 21 July 2008
Paulus Pawa v The State (1981) PNGLR 498
Pija Grannies Ltd v Rural Development Bank Ltd (2010) N5829
Reference by the East Sepik Provincial Executive (2011) SC1154
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
The State v James Bero Popo (1987) PNGLR 286
The State v. Theo Yandalin & 2 Ors, (1995), N1329
The State v Tom Morris (1981) PNGLR 493
Overseas cases cited:
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
Jarvis v Moy, Davies, Smith, Vandervell & Co (1936) 1 KB 399
Selangor United Rubber Estates Limited v Craddock (No. 3) (1968) 1 WLR 1555
Treatise cited:
JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996
Counsel:
Peter H. Pato, for the Plaintiff
Asher H. Waffi, for the Defendant
JUDGMENT
27th March 2020
EVIDENCE
Plaintiff’s evidence
7. The affidavit of Gabriel Wii was admitted into evidence without objection. He was subjected to cross-examination.
8. The affidavit of Bill Kundala was admitted into evidence without objection. No cross-examination was conducted.
9. By notice of objection to use affidavits handed up at the hearing by Mr. Waffi for the defendant, counsel objected to the tender of the affidavits of the plaintiff himself and Mr. Gomae on the basis that paragraphs 4, 5, 8, 10, 11 and 12 of the plaintiff’s affidavit and paragraphs 6, 7 and 8 of the affidavit of Mr. Gomae were largely the deponents’ opinions. Upon rejecting the objection against the tender of the plaintiff’s affidavit essentially for late notice and non-compliance with court directions previously made during listing process and allowing its tender, Mr Waffi noting the Court’s attitude, allowed the Court to admit the affidavit of Mr.Gomae into evidence affidavit without objection. Mr Waffi reserved his right to address the objections during presentation of his submissions on verdict. In rejecting the objection, I also indicated that questions about admissibility of evidence must be distinguished from those concerning weight as the former is a matter of law for the Court determine while the latter is a question of fact: JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996, para 1585. The admission of the affidavits therefore was made subject to what weight, if any, should be given to the evidence contained therein noting the specific objections of the defendant. The plaintiff was not subjected to cross-examination, but Mr Gomae was.
Defendant’s evidence
10. The defendant’s evidence comprises documentary and sworn oral evidence.
11. The defendant relies on the following affidavits:
These affidavits were admitted into evidence without objection. Both deponents were subjected to cross-examination.
SUMMARY OF PLAINTIFF’S EVIDENCE
Gabriel Wii
12. He is the Clerk of the Mt. Hagen District Court.
13. He confirmed that the records of the Mt. Hagen District Court show that on 12 February 2013, one Nick Tangele, CID Fraud Squad officer of the Boroko Police Station applied for and was granted a Search Warrant under proceedings SW 32 of 2013 to search the plaintiff’s personal bank accounts operated with the defendant at its Goroka Branch and seize anything they could find that related to the commission of the offence of misappropriation under Section 383A(1)(a) of the Criminal Code. Annexure A to Exhibit A is a true copy of the data entry. Annexure B to Exhibit A is a true copy of the Search Warrant dated 11 February 2013. The Search Warrant shows that Nick Tangele held the rank of Detective Senior Constable and the accounts the subject of the Search Warrant were numbers 1000790157 and 1001324361 and copies of statements required to be seized were for the period from 6 November 2007 to 20 November 2012. During cross-examination when shown the search warrant (annexure B), he confirmed that that was a true copy of the Search Warrant issued on 12 February 2013 and that it was valid.
14. He also noted that the records of the Mt. Hagen District Court showed that Nick Tangele also applied for a Search Warrant to search Jimi District Treasury Operating Account operated with the defendant’s Mt. Hagen Branch under proceedings SW 33 of 2013.
15. After a Search Warrant is executed, it is returned to the court endorsed by the policeman who obtained the Search Warrant. The District Court’s Electronic Case Management System (DCECMS) then uploads the information onto the District Court website for recording purposes. Search Warrants in SW 32 of 2013 and SW 33 of 2013 were never returned so no information concerning them was entered in the DCECMS.
Bill Kundala
16. He is Detective Senior Constable based at Banz Police Station, Jiwaka Province and was the Acting OIC, Fraud Squad, Jiwaka Province.
He has been a policeman with the Royal Papua New Guinea Constabulary since 1990.
17. In his 26 years of service, he has carried out a lot of investigations as a detective investigating various crimes including obtaining and executing Search Warrants against bank accounts operated by suspects. He is fully aware of the manner in which Search Warrants are obtained from the District Court and executed at banks or financial institutions. For a search of a suspect’s bank account(s) to be conducted, an application is made before a District Court for a Search Warrant to specifically search the suspect’s bank account(s). Once a Search Warrant is issued, a copy is served on both the suspect and the bank where the search will be conducted. In most cases, copies of Search Warrants are served on senior officers of the relevant bank or financial institution. After the Search Warrant is executed, it is returned to the District Court by signing off on a Return of Warrant form. This confirms if the Search Warrant was successfully executed or not.
Wake Goi
18. He was the Member of Parliament for Jimi Open in the Jiwaka Province from 2007 to 2012. He lost the seat to Hon. Mai Dop, MP
during the 2012 General Elections. Soon after the 2012 General Elections were concluded, on or about 20 November 2012, Hon. Mai
Dop, MP laid a complaint with the police to investigate him for misappropriation of Jimi District Funds allocated by the National
Government for the period from 2007 to 2012.
19. The police conducted an investigation spearheaded by Sergeant Robert Nolwai, a close relative of Hon. Mai Dop, MP, of Waigani Police Station in the National Capital District assisted by Nick Tangele which included obtaining copies of bank statements of account numbers 1001324361 (current) and 1000790157 (savings) he operated with the defendant’s Branches at Goroka and Mt. Hagen respectively.
20. The bank statements of his accounts were obtained by the police from the defendant between November 2012 and March 2013 without first obtaining a search warrant or any lawful court order and therefore contrary to the defendant’s duty of secrecy to keep his accounts confidential from third parties. The police applied for and obtained a search warrant after receiving the bank statements.
21. During his term in Parliament as Member for Jimi Open, his salary and benefits from Parliament were deposited into his current account. Annexure WG1 is a true copy of the bank statements of his accounts released by the defendant to the police.
22. On 18 March 2013, the police, relying on the bank statements, charged him for misappropriating K13,104,266.00.
23. The police allegations went viral in all forms of media in Papua New Guinea - print media, social media and television resulting in him being publicly accused, ridiculed and criticised, thus causing humiliation and injury to his status, standing, integrity, reputation and good name.
24. On 31 July 2015, the National Court acquitted him on the charge of misappropriation upon a successful no case to answer submission.
25. Copies of bank statements supplied to him by the defendant upon his request for the period between January 2016 and September
2016 and the period between 2007 and 2012 in relation to current account number 1001324361 are annexures GW2 and GW3 respectively.
Nathan Gomae
26. He is a former employee of the defendant. He worked as a customer service officer and teller for 6 years commencing in November
2005 and resigning in March 2011. During that time, he was engaged at both the Goroka and Kundiawa Branches.
27. While in the employ of the defendant, on three occasions he dealt with Search Warrants which were served on him by the police to investigate bank accounts of the defendant’s customers. When he received the Search Warrants, he referred them to either the Branch Manager or his immediate supervisor. After receiving the warrants, the Manager referred them to the defendant’s Legal Section for advice and upon receipt of advice, the Manager issued instructions to the supervisor to take appropriate action.
28. He then describes the process involved in the printing and release of bank statements to the police after the receipt of Search Warrants.
SUMMARY OF DEFENDANT’S EVIDENCE
Geoffrey Emang
29. He is a lawyer employed by the defendant since 2012 and is attached to its Legal Unit as a Senior Legal Officer. He was admitted
as a lawyer of the Court on 20 October 2000. Prior to his current employment, he worked with Posman Kua Aisi Lawyers (2001-June
2008), Office of the Solicitor-General (as Deputy Solicitor-General, June 2008-2009), Gas Project Coordination Office (as Legal Advisor,
2009-2010) and National Petroleum Company (Kroton) PNG Limited (as General Counsel and Company Secretary, 2010-2011).
30. Part of his duties is to process search warrants served on the bank. Prior to or about April 2015, the processing of search warrants served on the defendant was primarily undertaken by the late John Maddison, then the Senior Manager-Legal and he assisted Mr. Maddison as and when necessary. From about May 2015, he took over responsibility from Mr Maddison for the processing of search warrants served on the defendant. Mr Maddison retired in December 2015 and died in December 2016. He is therefore familiar with the procedure adopted by the defendant for the processing of search warrants served on it.
31. The defendant accepts that as part of the bank/customer relationship, it is under a general obligation to keep customer information confidential. There are various exceptions to this general obligation such as where the customer has consented to the release of information or where the bank is required by law to provide the information such as through a search warrant issued under the Search Act 1977 or a court order.
32. The defendant has a procedure for dealing with search warrants served on it. Where a search warrant is served on a Branch outside of Port Moresby, the Branch refers the search warrant to the defendant’s Legal Unit where it is vetted to ensure it is in order and upon receipt of appropriate advice from the Legal Unit, the Branch then provides the required documents to the police. This was confirmed during cross-examination.
33. The defendant’s records show that a copy of search warrant SW 32 of 2013 was forwarded to the defendant’s Legal Unit for vetting on 25 February 2013 by Feity Borosake, Team Leader Back Office of the Goroka Branch. Annexure A to exhibit 1 is a true copy of an email dated 25 February 2013 from Feity Borosake to Rita Singut, Mt. Hagen attaching a copy of the search warrant which was copied to the Legal Unit and others and requesting confirmation of the authenticity of the search warrant from the District Court. Annexure B to exhibit 1 is a true copy of the search warrant dated 11 February 2013. Annexure C to exhibit 1 is a true copy of an email from Mr. Maddison to Feity Borosake and Rita Singut and others advising that the search warrant only required the defendant to produce copies of bank statements for account numbers 1001324361 and 1000790157 from 6 November 2007 to 20 November 2012 subject to confirmation of the validity of the search warrant to be organised by the Mt. Hagen Branch. Annexure D to exhibit 1 is a true copy of an email from Feity Borosake to Mr. Maddison dated 25 February 2013 and copied to others acknowledging receipt of Mr. Maddison’s email and noting its content. Annexure E to exhibit 1 is a true copy of an email from Mr. Maddison to Feity Borosake and others dated 25 February 2013 attaching a copy of a letter to the police for her records.
34. Annexure F to exhibit 1 is a true copy of a letter from Mr. Maddison to Detective Senior Constable Nick Tangele dated 25 February 2013 which was emailed to Feity Borosake. By that letter, Mr. Maddison essentially advised that if the police required further information about the plaintiff’s accounts other than those specified in the search warrant, they would have to either provide to the defendant an amended search warrant or a fresh search warrant. In that letter, it was also indicated that the defendant would arrange for the bank statements required to be provided through its Branch Administration. Annexure G to exhibit 1 is a true copy of an email from Feity Borosake to Mr Maddison and others acknowledging receipt of Mr. Maddison’s email and noting its content.
35. The steps taken to vet search warrant SW 32 of 2013 was consistent with the defendant’s practice. The defendant was entitled to provide bank statements from the plaintiff’s two accounts to the police upon being served the search warrant 32 of 2013.
36. On or about 26 or 27 February 2013, the police also obtained search warrant 33 of 2013 to enable them to seize copies of relevant cheques drawn from the Jimi District Treasury Operating Account between 6 November 2007 and 20 November 2012. Annexure H to exhibit 1 is a true copy of the search warrant dated 11 February 2013.
37. The defendant’s records show that a letter was received from the plaintiff’s lawyers, Parker Legal dated 22 May 2015 regarding the provision of bank statements of the plaintiff’s accounts to the police. They indicated that the bank statements were provided to the police pursuant to SW 33 of 2013. They requested certain information to be provided essentially as to the manner in which the plaintiff’s bank statements were released to the police and also indicated that the defendant would not be sued for breach of fiduciary obligations upon production of such information. In that letter, they also indicated that the plaintiff had successfully objected to the tender of the bank statements into evidence during the trial between the State and the plaintiff, CR (FC) 711 of 2013 on the basis that the tender was made through a person other than the defendant’s employee who released the statements. They also requested the production of one of the bank officers or a legal officer to give evidence in that trial regarding the process involved in releasing bank statements of customers pursuant to a search warrant or court order. The defendant responded to the letter, but by a letter from Parker Legal to the defendant dated 25 May 2013, it was advised that the information sought was no longer required. Annexures I and J to exhibit 1 are true copies of the relevant letters from Parker Legal.
38. By a letter from the plaintiff to the defendant’s Goroka Branch dated 10 August 2015 which was received by the defendant on the same date, the defendant enquired as to when the bank statements from his two accounts totalling about 60 pages were printed and by which branch. He believed that the bank statements were printed sometime between October 2012 and April 2013. Annexure K to exhibit 1 is a true copy of the letter.
39. He handled this query himself. By email dated 21 August 2015, he advised the Branch to inform the plaintiff that the bank statements would have been provided to the police pursuant to a search warrant issued by the District Court which was similar to a court order and the defendant was bound to comply with the search warrant upon being served.
40. In cross-examination, when the witness was referred to paragraph 8 of exhibit 2 (Tau Naime’s affidavit) where the deponent states that he emailed copies of search warrants to the defendant’s Legal Services Division and a response was received from Senior Manager-Legal, Mr Maddison advising that the warrants were in order and when was asked whether security officers were involved in the process, he said it is usually the Branch Manager’s responsibility and it is not all the time that others other than the Branch Manager deals with a search warrant.
41. The defendant’s records which he viewed did not suggest or indicate that the relevant bank statements were provided to the police on a date prior to the issue of search warrant 32 of 2013 or about 11 or 12 February 2013 and more particularly on or after 25 February 2013 when the Branch was advised that could provide the bank statements.
Tau Naime
42. He is by profession an Internal Investigator and is also a reserve constable with the Royal Papua New Guinea Constabulary. At
the time of swearing his affidavit, he had been working in the industry for about 17 years and 15 of those years were with the defendant’s
Security Division. He was based in Mt. Hagen from 2010 to 2013. In 2012 and 2013, he was the defendant’s Regional Fraud Investigator.
He resigned from the employ of the defendant in March 2013 and in 2015, he started work with WR Carpenters & Co. Estate in Mt.
Hagen.
43. As part of his job within the Security Division, he was required to vet and verify court orders that were served on the defendant and also conduct investigations into allegations of fraud and was involved in internal security coordination within the Highlands Region.
44. On or about 12 February 2013, he was served with two search warrants at the Mt. Hagen Branch by a policeman namely, Detective Senior Constable Nick Tangele. He believes that the detective was attached to the Royal Papua New Guinea Constabulary Fraud Squad. One search warrant was concerned with the plaintiff’s accounts and the other was concerned with Jimi District’s accounts.
45. In re-examination, the witness said search warrants do not have to be served on customer service officers.
46. He emailed copies of those search warrants to the defendant’s Legal Services Division for vetting and a response was received from Senior Manager-Legal, Mr Maddison advising that the search warrants were in order, but because the police had requested additional information, Mr. Maddison informed them that they would need more specific search warrants. In cross-examination, he said that the action he took was consistent with the defendant’s practice for dealing with search warrants served on it for purposes of vetting and obtaining clearance to comply with search warrants.
47. In cross-examination, when it was put to the witness that search warrant 32 of 2013 was forwarded to Mr. Maddison by Feity Borosake of the Goroka Branch, he said that was correct. When further pressed in cross-examination that Feity Borosake had asked Rita Singut of the Mt. Hagen Branch to verify search warrant 32 of 2013 with the Mt. Hagen District Court, the witness said he was aware of that. It was put to the witness in cross-examination that it was a Branch Manager who referred search warrant SW 32 of 2013 to the defendant’s Legal Unit for vetting, he said that was correct.
48. On or about 27 February 2013, Detective Senior Constable Tangele served another search warrant on the defendant’s Mt. Hagen Branch.
49. He released copies of the bank statements for Jimi District Treasury Operating Account number 1000878768 and those from the plaintiff’s accounts to the police pursuant to the search warrants.
50. He did not release any information from the accounts concerned before being served with the relevant search warrants.
AGREED FACTS
51. In the Statement of Agreed and Disputed Facts and Legal Issues for Trial dated 18 May 2017 (the Statement of Facts and Legal Issues),
the parties state that the only fact that was not disputed was that the plaintiff conducts two personal bank accounts in his own
name with the defendant; one is current account number 1001324361 operated at the Goroka Branch; and the other is savings account
number 1000790157 operated at the Mt. Hagen Branch.
DISPUTED FACTS
52. In the Statement of Facts and Legal Issues, the parties state that the following facts are disputed:
FINDINGS OF FACT
53. I make the following findings of fact based on pleadings including admissions contained in the defendant’s defence and evidence
before the Court which is not contested by any rebuttal evidence from the opposing parties:
LEGAL ISSUES FOR TRIAL
54. The main legal issues to be decided in this trial are:
55. The second issue will be visited if the outcome of the first issue is favourable to the plaintiff.
BREACH OF FIDUCIARY DUTY
56. Mr. Pato of counsel for the plaintiff contended that the defendant had a duty of care to protect and keep in confidence information,
details and transaction records of the plaintiff’s accounts and not to divulge any of this information to third parties unless
it was compelled to do so by law in the absence of consent from the plaintiff. In the present case, the defendant breached its fiduciary
obligations to the plaintiff when it released copies of the plaintiff’s bank statements for the two accounts for the period
between 6 November 2007 and 20 November 2012 before it was served with search warrants 32 of 2013 and 33 of 2013.
57. It was also argued that the law on circumstantial evidence which usually applies to criminal cases should also apply with equal force in a civil claim such as this particularly in the determination of the issue under consideration as the plaintiff relies heavily on circumstantial evidence. Counsel submitted that inferences could be drawn that the copies of the plaintiff’s bank statements were released to the police before search warrants were served on the defendant when taking into consideration that; first, there was prior knowledge of the plaintiff’s specific account details; second, search warrant SW 32 of 2013 was not amended or a fresh application made for a new search warrant as suggested by Mr. Maddison, hence seizure of the bank statements on a defective search warrant was unlawful; third, statements were released before completion of vetting of search warrant SW 32 of 2013; fourth, failure to return search warrants to the District Court; fifth, difficulty in ascertaining date when the bank statements were printed; sixth, failure to disclose the name of the officer who printed the bank statements; seventh, conflicting evidence on transmitting search warrant to the defendant’s Legal Unit; eight, failure to serve search warrants on the plaintiff; nine, omission of star witness; and ten, unreliability of defence evidence. Counsel referred me to a National Court decision of Bomai v Takela (2016) N3662 where the law on circumstantial evidence was applied in determining a civil claim founded on negligence.
58. In the circumstances, judgement on liability with costs should be entered in favour of the plaintiff it was contended.
59. On the other hand, Mr. Waffi of counsel for the defendant argues that the plaintiff has failed to adduce any evidence to prove on the balance of probabilities that the defendant breached its fiduciary duty of secrecy. He submitted that the whole of the parties’ evidence shows that the defendant was served with search warrant 32 of 2013 that was obtained by the police pursuant to the Search Act. Counsel argued that contrary to the plaintiff’s allegation, the evidence clearly shows that the defendant was compelled by law to release to the police the plaintiff’s bank statements for the two accounts for the period between 6 November 2007 and 20 November 2012. It was apparent that the plaintiff’s claim was founded on assumptions that the evidence adduced by the plaintiff at the trial has failed to substantiate on the balance of probabilities. The plaintiff’s claim should be dismissed with costs it was submitted.
60. The relationship of a banker to a customer is contractual: Kennedy Amun v Bank of South Pacific Ltd (2008) Unreported Judgment, WS 1316/2005, Waigani delivered by Davani, J on 21 July 2008; Pija Grannies Ltd v Rural Development Bank Ltd (2010) N5829; Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, Jarvis v Moy, Davies, Smith, Vandervell & Co (1936) 1 KB 399, Selangor United Rubber Estates Limited v Craddock (No. 3) (1968) 1 WLR 1555.
61. In Kennedy Amun v Bank of South Pacific Ltd (2008) Unreported Judgment, WS 1316/2005 Waigani delivered by Davani, J on 21 July 2008 which was referred to by Hartshorn, J in Pija Grannies Ltd v Rural Development Bank Ltd (2010) N5829, Her Honour referred to and reproduced a passage from “Paget’s Law of Banking, Eighth Edition 1972 at p. 69 for her assistance and the relevant passage is set out below:
“The relationship of a banker to customer is one of contract, though for long this way of looking at the matter seemed not to have attracted much attention in the courts. It follows, as in all cases, that a banker must not be negligent in performing his contract, whatever it may be; what will amount to negligence must clearly depend on the facts of the particular case..... The relationship consists of a general contract which is basic to all transactions, together with special contracts (such as the contract of borrowing and lending) which arise only as they are brought into being by the express acts or implied intentions of the parties. The General Contract is a simple, indivisible contract (see Atkin LJ in Joachimson v. Swiss Bank Corporation [1921] 3KB 110 at 127) though with many facts; it arises the moment the parties agree to enter into contractual relations with each other and continues until brought to an end by consent or perhaps by revocation by either party; it is a contract which is underwritten and undefined by the parties - in other words it is implied.”
62. As to the banker’s fiduciary duty of secrecy or confidentiality, the English Court of Appeal case of Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 is relevant. There, Bankes, LJ with the majority observed:
In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on point. On principle I think that the qualifications can be classified under four heads: (a) where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by express or implied consent of the customer.
63. The banker’s fiduciary duty of secrecy or confidentiality is summarised in the headnotes to the case as follows:
It is an implied term of the contract between a banker and his customer that the banker will not divulge to third persons, without the consent of the customer express or implied, either the state of the customer’s account, or any of his transactions with the bank, or any information relating to the customer acquired through the keeping of his account, unless the banker is compelled to do so by order of a Court, or the circumstances give rise to a public duty of disclosure, or the protection of the banker’s own interests requires it.
64. The protection of a customer’s right to privacy over his or her bank records may be considered outside the banker’s fiduciary duty of secrecy or confidentiality imposed on a banker through the contractual relationship it has with a customer by the application of or by extension of the constitutional safeguards in the form of qualified rights bestowed on every person residing in Papua New Guinea by Section 44 (Freedom of Arbitrary Search and Entry) and Section 49 (Right of Privacy) of the Constitution.
65. Section 44 states:
Freedom from arbitrary search and entry.
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise
of that right is regulated or restricted by a law—
(a) that makes reasonable provision for a search or entry—
(i) under an order made by a court; or
(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or
(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or
(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or
(v) for the purpose of inspecting or taking copies of documents relating to—
(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
(B) the affairs of a company in accordance with a law relating to companies; or
(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or
(b) that complies with Section 38 (general qualifications on qualified rights).
66. Section 49 states:
Right to privacy.
(1) Every person has a right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by law that complies with Section 38 (general qualifications on qualified rights).
(2) Subsection (1) does not prevent any law from authorising the capture, storage and use of personal information including finger or palm print and iris image to identify a person in order for the person to obtain a passport, visa or to exercise their right to vote at elections.
67. The exercise of the rights under Sections 44 and 49 of the Constitution is regulated or restricted by the Search Act, Chapter 341. This can be deduced from the preamble of the Search Act, Chapter 341 which states:
Being an Act—
(a) to regulate or restrict certain rights or freedoms referred to in Subdivision III.3.C of the Constitution, namely—
(i) the freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and
(ii) the right to privacy conferred by Section 49 of the Constitution,
so as to—
(iii) provide for searches of individuals, premises and property in certain cases; and
(iv) confer on persons making searches certain powers and duties; and
(b) to abolish certain rules of common law, and for related purposes.
68. An application for a search warrant can be made pursuant to Section 6 of the Search Act, Chapter 341. That provision states:
Issue of warrants.
(1) If a court, other than a Local Court, is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place—
(a) any thing with respect to which any offence has been or is believed on reasonable grounds to have been committed; or
(b) 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
(c) any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence,
it may issue a warrant to search that building, craft, vehicle or place.
(2) If a court other than a Local Court is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is in any building or buildings in a village or in any part of a village or village garden any thing specified in Subsection (1)(a), (b) or (c), it may issue a warrant to search the building, buildings, village, part of the village or village garden.
(3) Where a warrant has been issued under Subsection (2) the person, policeman or policemen to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.
(4) Subsection (1) or (2) does not justify the use of greater force than is reasonable in the circumstances.
69. There is no restriction under Section 6(1) that an information be laid by a commissioned officer: The State v James Bero Popo (1987) PNGLR 286; Acting Public Prosecutor v Richard Saronduo (1988-1989) PNGLR 17. Search warrants for searches of buildings in villages or villages or villages gardens are to be dealt with by commissioned officers: The State v James Bero Popo (1987) PNGLR 286, Acting Public Prosecutor v Richard Saronduo (1988-1989) PNGLR 17.
70. A prudent applicant should ensure that owners of buildings, crafts, vehicles or places to be searched are properly named in their correct personal or corporate names in the information supporting an application for a search warrant to be issued and the actual search warrant.
71. Section 7 of the Search Act, Chapter 341 prescribes the persons to whom a search warrant may be directed and these are first, a named person, or second, the officer for the time being in charge of police in a particular province or place, or third, all members of the Police Force.
72. A search warrant authorises the person to whom it is directed to search the place described in the search warrant to be searched and seize anything found in that place which relates to the offence or the matter of the information on which the warrant is founded or to any other offence: see Search Act, Chapter 341, Sections 8, 9, 10 and 11.
73. A civil remedy is available to a person aggrieved by a breach of the Search Act, Chapter 341 under Section 17 of that Act and an action may be taken out for damages against the person who is in breach either in the National Court or the District Court and in the case of the latter, it has jurisdiction within its civil jurisdiction under Section 21 of the District Courts Act 1963.
Invitation to apply principles on circumstantial evidence
74. The plaintiff has invited the Court to apply the law on circumstantial evidence to the determination of the issue under consideration.
He relied on the National Court decision of Bomai v Takela (2016) N3662 where the principles of circumstantial evidence were applied in a claim founded on negligence.
75. The law on circumstantial evidence is well settled in this jurisdiction. The Supreme Court decision in Paulus Pawa v The State (1981) PNGLR 498 per Andrew J at p.501 quoting Miles J in The State v Tom Morris (1981) PNGLR 493 at p.495 explained the law in these terms:
I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v. The Queen at p. 661. These principles are well settled in Australia.
76. I have great difficulty with acceding to the invitation for the following brief reasons:
77. In the present case, it is up to the plaintiff to prove on the balance of probabilities that bank statements from his two accounts were released by the defendant through its servants or agents to the police prior to being served with search warrant SW 32 of 2013. I will address the various contentions raised by the plaintiff in that context.
Prior knowledge of account details
78. This allegation which is directed at Detective Constable Nick Tangele was not pleaded in the statement of claim. Hence to raise
it during submissions, in my opinion, would be tantamount to committing a breach of the rules on pleadings. In any event, there
is no evidence from Detective Constable Nick Tangele or any other person to show how the police had knowledge of the plaintiff operating
the relevant accounts at the defendant’s Goroka and Mt. Hagen branches. This submission is rejected.
Search warrant SW 32 of 2013 not amended or application for new search warrant not made
79. Again, this allegation was not pleaded in the statement of claim. Hence to raise it during submissions, in my opinion, would be tantamount to committing a breach of the rules on pleadings.
80. In addition, the suggestion by Mr. Maddison in his email to have the search warrant amended was not that it was invalid, but because it directed the police to only seize the documents specifically mentioned in the search warrant when the notice of motion and affidavit in support of the application for the search warrant showed that the police also required copies of customer record cards (or signature cards) and a series of vouchers. The search warrant specifically mentioned that only copies of the bank statements for account numbers 1000790157 and 1001324361 in the name of the plaintiff were to be seized. This was initially raised by Mr. Maddison with Feity Borosake on 25 February 2013 in his email responding to Feity Borosake’s email received earlier that day and the content of the email is reproduced below.
The Search Warrant only requires the Bank to produce copies of bank statements for account numbers 1000790157 and 1001324361 in the name of Wake Goi from 6 November 2007 to 20 November 2012. From the Notice of Motion and Affidavit in Support it is apparent that the police also require copies of Customer Record Card (or Signature Cards) and a series of vouchers but have filed to include these items in the Search Warrant. We will prepare a letter to the police pointing out the deficiencies in the Search Warrant.
The letter can be forwarded to the police whilst Mt. Hagen Branch is arranging for the confirmation of the validity of the search warrant.(sic)
81. The plaintiff’s submission is misconceived and is rejected.
Failure to return Search Warrant SW 32 of 2013 to District Court - validity
82. Again, this was not raised in the statement of claim. Hence to raise it during submissions, in my opinion, would be tantamount
to committing a breach of the rules on pleadings.
83. In any event, evidence from Mr. Wii from the Mt. Hagen District Court is that search warrant 32 of 2013 was registered on 12 February 2013 on the application of one Nick Tangele, CID Fraud Squad officer of the Boroko Police Station and was valid. The fact that it was not returned to the Mt. Hagen District Court which is not disputed does not nullify its grant. Mr. Wii’s evidence is that when a search warrant is returned, the information about details of execution is recorded in the District Court’s DCECMS and the information is uploaded onto the District Court’s website. There is no statutory basis under the Search Act, Chapter 341 to support the plaintiff’s contention. If there is one, then I have not been referred to it. The only requirement imposed by Section 9(1)(b) of the Search Act, Chapter 341 after execution of a search warrant is that a person conducting a search shall within a reasonable time after a search is concluded restore the place as nearly as possible to the same state of cleanliness and neatness that existed immediately before the search.
84. In addition, the plaintiff, being the party who is challenging the regularity of the search warrant bears the onus of proof to rebut its regularity. This is because of the application of the presumption of regularity sometimes described by the Latin maxim omnia praesumuntur rite esse acta. In the context of this case, it means that, unless the contrary is proven by the plaintiff, the search warrant was presumed to have been issued properly by the Mt. Hagen District Court on the application of Detective Senior Constable Nick Tangele.
85. I find as a fact that search warrant SW 32 of 2013 was properly issued and therefore valid.
86. The plaintiff’s submission is rejected.
Failure to ascertain when bank statements were printed
87. Again, this was not raised in the statement of claim. Hence to raise it during submissions, in my opinion, would be tantamount
to committing a breach of the rules on pleadings.
88. In addition, it seems to me that fraud is being raised in the compilation of the bank statements and required proper pleading as is required by Order 8 Rule 30 of the National Court Rules which states that a party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies. I think it is not proper to advance this argument in the guise of a submission. This submission is rejected.
Failure to disclose name of bank officer who released bank statements
89. Again, this was not raised in the statement of claim. Hence to raise it during submissions, in my opinion, would be tantamount
to committing a breach of the rules on pleadings. Otherwise, as I will show below, the plaintiff could have called Detective Constable
Nick Tangele to give evidence. I think it is not proper to advance this argument in the guise of a submission. This submission
is rejected.
Failure to serve search warrant on plaintiff
90. Again, this was not raised in the statement of claim. Hence to raise it during submissions, in my opinion, would be tantamount
to committing a breach of the rules on pleadings as the defendant would not have been given the opportunity to respond to the allegation
by rebuttal evidence.
91. This submission is premised on Bill Kundala’s evidence that once a search warrant is issued, it must be served both on the customer whose account is to be searched and the bank where the account is operated. Mr Pato for the plaintiff conceded that the defendant was not obliged to disclose to the plaintiff about the issuance of a search warrant for fear of compromising police investigations, but since bank account information is computerised, there would not be real prejudice to the defendant as it would be hard to manipulate or alter defendant’s records.
92. There is no statutory basis under the Search Act, Chapter 341 to support the plaintiff’s submission. The element of secrecy to protect police investigations would be compromised one way or another. It is slightly different when a search warrant is issued under Section 6(2) involving a village situation where before its execution, police could seek the cooperation of the leaders of the village by virtue of Section 6(3).
93. The plaintiff’s submission is rejected.
Failure to call star witness by the defendant
94. The plaintiff contends that the defendant should have called Detective Senior Constable Nick Tangele who was instrumental in the
issue of search warrant SW 32 of 2013 from the Mt. Hagen District Court and to confirm whether or not he applied for an amendment
of search warrant SW 32 of 2013 or new search warrant. An adverse inference should be inferred from that omission it was contended.
95. A decision as to who to call as a witness in a civil case is a matter for the parties. The failure to call a ‘star’ witness or not by the plaintiff or defendant will nevertheless determine, on the evidence available before the Court, whether the plaintiff has proved his claim on the balance of probabilities.
96. Otherwise, it was possible for the plaintiff to have made an application to the Court to call Detective Senior Constable Nick Tangele to give evidence in the interest of justice: The State v. Theo Yandalin & 2 Ors, (1995), N1329. No such application was made by the plaintiff. The plaintiff’s submission is rejected.
Conflicting defence evidence; Unreliability of defence evidence; and Bank statements released before completion of vetting of search warrant
97. These three points of contention will be addressed together.
98. Mr. Pato for the plaintiff in essence contends that due to the apparent inconsistencies in the evidence of defence witnesses, the evidence is wholly unreliable, lacks weight and should be treated with caution by the Court. The conflicting evidence neither assists the Court in its deliberation nor supports the defence case, counsel said. Rather the conflicting evidence demonstrated half- truths and each of their testimonies was a concoction to lend support to the defence case.
99. Mr. Pato argued that Mr. Naime’s evidence is unreliable as it is contrary to the defendant’s administrative vetting process with regard to search warrants served on it through its branches confirmed by plaintiff’s witness, Mr. Gomae and defence witness, Mr Emang.
100. Mr. Pato also said that Mr. Emang’s evidence was too general, conflicted with Mr. Naime’s evidence and so did not support the defence case.
101. Mr. Pato submitted that in the circumstances, the most logical and only reasonable inference that could be drawn from the whole of the evidence before the Court was that the plaintiff’s bank statements were printed before the vetting and verification process and validation of search warrant SW 32 of 2013 were completed.
102. It is a disputed fact that a Sergeant Robert Nolwai, a close relative of Hon. Mai Dop, MP, from Waigani Police Station in the National Capital District spearheaded the investigations with Nick Tangele merely playing the role of investigating officer. The evidence before the Court is that Nick Tangele CID Fraud Squad officer of the Boroko Police Station and not Sergeant Robert Nolwai applied for and obtained search warrant SW 32 of 2013 on 12 February 2013 from the Mt Hagen District Court.
103. The plaintiff’s evidence, which is disputed, is that sometime between November 2012 and March 2013, the police obtained the plaintiff’s bank account statements from his two accounts from the Mt. Hagen Branch without first obtaining a search warrant or any lawful court order.
104. While there appears to be some inconsistencies in defence evidence as to date of service of search warrant SW32 of 2013 and the vetting process, the evidence of both Messrs Emang and Naime support the defence case; i.e., the statements of the plaintiff’s accounts were released to the police lawfully pursuant to search warrant dated 11 February 2013 which was issued on 12 February 2013.
105. I have already found as a fact that on 12 February 2013, one Nick Tangele, CID Fraud Squad officer of the Boroko Police Station applied for and was granted search warrant SW 32 of 2013 to search the plaintiff’s personal bank accounts operated with the defendant. A search warrant is issued by the District Court under Section 6 of the Search Act, Chapter 341 on application by police. There is no evidence to show that search warrant SW 32 of 2013 was ever set aside or amended after 12 February 2013 or a new search warrant issued to search the plaintiff’s accounts. Search warrant SW 32 of 2013 was valid since its issue by the District Court on 12 February 2013. Failure to comply with the defendant’s administrative vetting process for search warrants served on it to my mind did not invalidate search warrant SW 32 of 2013.
106. Hence, the release of copies of bank statements of plaintiff’s accounts by the defendant to the police after the issue of search warrant SW 32 of 2013 either on 12 February 2013 as claimed by Mr. Naime or after 12 February 2013 after the vetting process of search warrant SW 32 of 2013 was completed on or after 25 February 2013 as is claimed by Mr. Emang was lawful.
107. Mr. Naime was not an ordinary employee of the defendant at the material time. His evidence was that he had been working in the industry for about 17 years and 15 of those years were with the defendant’s Security Division. He was based in Mt. Hagen from 2010 to 2013 and between 2012 and March 2013 before he resigned, he was the defendant’s Regional Fraud Investigator. He also said that as part of his job within the Security Division, he was required to vet and verify court orders that were served on the defendant and also conduct investigations into allegations of fraud and was involved in internal security coordination within the Highlands Region. There is no rebuttal evidence to show that he had no authority to receive search warrants.
108. No cogent and convincing evidence has been adduced by the plaintiff to show that the defendant released to the police copies of the bank statements of his accounts between November 2012 and March 2013 without first obtaining a search warrant or any lawful court order on the balance of probabilities.
109. The upshot of this is that the defendant did not breach its fiduciary duty of secrecy or confidentiality imposed on it as a banker through the contractual relationship it had with its customer, the plaintiff, when it released copies of bank statements of the plaintiff’s accounts to the police as it was compelled to do so by search warrant SW 32 of 2013.
CONCLUSION
110. The plaintiff has failed to prove his claim on the balance of probabilities and therefore it is dismissed.
COSTS
111. Costs will follow the event, i.e., the defendant Bank South Pacific Limited is awarded costs of the entire proceedings not specifically
awarded during the course of the proceedings. This means that the plaintiff, Hon. Wake Goi, MP shall pay Bank South Pacific Limited’s
costs not specifically awarded during the course of the proceedings on a party-party basis, which shall, if not agreed, be taxed.
ORDER
112. The formal orders of the Court are:
Judgment and orders accordingly.
____________________________________________________________Parker Legal : Lawyers for the Plaintiff
In-house Lawyers : Lawyers for the Defendant
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