Zalao v Attorney General [1997] SBCA 6; CA-CAC 9 of 1996 (24 April 1997)

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NATURE OF JURISDICTION:	Appeal from a judgment of The High Court of Solomon Islands (Palmer J.)
COURT FILE No.	Civil Appeal Case No.9 of 1996
DATE OF HEARING:	22 April 1997
DATE OF JUDGMENT:	24 April 1997
THE COURT:	KAPI, (Ag) P., Williams JA, Goldsbrough JA

PATIES:	MALELI ZALAO

	V

	THE ATTORNEY GENERAL AND THE COMMISSIONER OF POLICE
ADVOCATES:
Appellant:	Mr. A. Nori for the appellant
Respondent:	Mr. G. Samuel for the respondent
KEYWORDS:	SEARCH WARRANT - NO EVIDENCE TO SUPPORT REASONABLE SUSPICION OF OFFENCE - PROCEDURE TO BE FOLLOWED.
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	ALLOWED
PAGES:	NINE

The appellant, Maleli Zalao, appeals against the decision of the High Court refusing to declare a search warrant issued by a magistrate authorising a search for property in the possession of the appellant unlawful and void because it was issued in contravention of s.101 of the Criminal Procedure Code. If that declaration had been made the appellant sought a further order quashing the warrant and damages.

Section 9 of the Constitution provides that no person shall be subjected to search of his person or property unless a statute, dealing inter alia with breaches of the law or detecting criminal offences, makes specific provision for such a search. It was accepted by both sides that s.101 of the Criminal Procedure Code was a statute so providing. S.101 is constitutionally valid and where there has been compliance with its terms there will be no infringement of the constitution.

“101. Where it is proved on oath to a magistrate or a justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by warrant (called a search warrant) authorise a police officer or other person therein named to search the building, ship, vehicle, box receptable or place (which shall be named or described in the warrant) for any such thing and, if anything searched for be found, or any other thing which there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law.”

It appears from the material in the court record that by a series of memoranda between 4 May 1996 and 15 May 1996 the Prime Minister and other senior government officials drew to the attention of The Commissioner of Police the probability that some senior public servants were involved in a scandal in that, inter alia, they had used government funds to acquire goods for themselves. Names, including that of the appellant, were stated in those documents but no specific property was identified.

On about 13 May 1996 a Special Task Force of police was set up to investigate those allegations and Sgt. Taro was one of the team. There was nothing before the magistrate who issued the warrant or this court to indicate what, if any, enquires were made by that Special Task Force before applying for the warrant.

(a) D/Sgt 161 M. Taro of (b) CID Central Police Station on his oath complains that on 23rd of May 1996 the following goods of the value of viz:

Were unlawfully obtained by fraudulently means from Solomon Islands Government to Naha, East Honiara by some person or persons unknown, and that he has reasonable cause to suspect, and does suspect, that those goods, or some o them, are concealed (d) at his private residence premises occupied by Maleli Zalao of Vella la Vella Island, Western Province for he said D/Sgt. 161 M. Taro says that:

(e) The said Maleli Zalao was suspected to involve in the Solomon Islands Government Scandal which is now under investigation which has some properties in question.

Based on that Information and nothing more the magistrate issued the following warrant:

(a) O/Sgt. 161 M. Taro of (a) CID, Central Police Station has this day made on oath before the court that (c)

The said Maleli Zalao was suspected to involve in the Solomon Islands Government Financial Scandal which is now under investigation which has some properties in question.

And it appears to this Court that (according to reasonable suspicion) the said goods, or some of them, are concealed as aforesaid. You are therefore hereby authorised and commanded in Her Majesty’s name, with proper assistance, by day (d) 6.00 am to 18.00 pm to enter the said (e) Maleli Zalao if necessary by force, and there diligently to search for the said goods, and if the same or any thereof are found on search, to bring the goods so found before this court, to be dealt with according to law.

(d) Cross out words ‘or night’ when warrant is to be executed between the hours of sunrise and sunset

The warrant was executed on 25 May 1996 when police officers searched the appellant’s premises at Naha. At that time documents were seized but not the vehicle described in the warrant. There has been no return on the warrant made as required by s.l0l but the police have retained possession of the documents seized. Though some eleven months have elapsed the appellant has not been charged with any offence.

Counsel for the appellant contended that the information was not on oath as required by s.101 because it was not supported by an affidavit. That submission is not made out. The Information is stated to be “on the oath” of Sgt. Taro and the document was held out by him to be a document under oath. That is sufficient at law. If there was any knowingly false statement therein the maker of the statement would be guilty of perjury. On occasions it may be necessary for the magistrate to be supplied with additional evidence on oath, either orally or in the form of an affidavit, before he was satisfied the warrant should issue, but otherwise the form of information used here would be sufficient.

The principal point argued by counsel for the appellant was that no offence known to Solomon Islands law was alleged against the appellant and there were no, or insufficient grounds, alleged which could support a conclusion that Sgt. Taro had “reasonable cause to suspect” that the appellant (or somebody else) had committed an offence and property associated with the commission of that offence was in a building or at a place under the appellants’ control.

It must be remembered, as was pointed out by the learned judge at first instance, that the documents here were in English which was not the first language of those responsible for the drafting. Due allowance must be made for that, but at the end of the day it must be possible to conclude that the documents comply with the requirement of the law if they are to be valid.

It is not necessary that the statement of the offence suspected to have been committed be as precise as would be required in an indictment. But there must be reasonable suspicion that an offence known to law has been committed. There is reference in broad terms in this information to “goods obtained by fraudulently means from Solomon Islands Government.” That may well in some circumstances be an adequate description of the alleged offence.

Given the terms of this Information the magistrate needed to be satisfied that there was reasonable cause to suspect that vehicle Reg. No. A3617 had been obtained by fraudulent means from the Solomon Islands Government. All that was provided to the magistrate to substantiate that was the statement:

“The said Maleli Zalao was suspected to involve in the Solomon Islands Government scandal which is now under investigation which has some properties in question.”

There is nothing in the information to establish why Sgt. Taro had any suspicion in relation to vehicle No. A3617 and nothing to indicate why there was some suspicion that the appellant may have been involved in obtaining goods fraudulently from the government. None of those assertions is in any way supported by the quoted statement.

There was nothing before the magistrate which would have entitled him to conclude that there was reasonable cause to suspect that the appellant had committed an offence under Solomon Islands law. It is not for this court to speculate whether or not there might have been further material which the informant could have placed before the magistrate.

The respondents can get no comfort from that part of s.l01 which speaks of the “conduct of an investigation into any offence” because the information does not state the offence with sufficient particularly nor does it refer sufficiently to the detail of the investigation.

There is another matter which, though not argued, demonstrates that insufficient care was taken in drawing the information and warrant. The in fonnation alleges the goods in question are concealed “at the private residence premises occupied by Maleli Zalao of Vella la Vella Island, Western Province.” There is an earlier reference therein to “Naha, East Honiara” but it is not clear how, if at all, that is connected with the appellant. Then the search warrant provides that the police may “enter the said Maleli Zalao if necessary by force and there diligently to search for the said goods.” As noted above the search warrant was executed at the appellant’s premises at Naha. It is difficult to see how a warrant to enter and search a person could justify a search of unnamed premises of that person.

In all the circumstances the clear conclusion is that the warrant did not comply with s. 101 of the Criminal Procedure Code and there should be a declaration that it was unlawful and void. There should be a further order quashing the warrant and ordering the immediate return of all property seized thereunder.

The relief claimed in paragraph 6 of the Originating Summon should be remitted to the High Court to be dealt with according to law. Pleadings should be exchanged so that all issues relevant to that claim are clearly defined.

(1) Declare that the search warrant issued by the magistrates court for Central District dated 20 May 1996 in respect of Maleli Zalao was issued in contravention of s.101 of the Criminal Procedure Code and was and is unlawful and void.

(2) Order that the said warrant be quashed and that the respondents return all property seized thereunder to the appellant forthwith.

(3) Remit the relief claimed in paragraph 6 of the Originating summons to the High Court to be dealt with according to law.

(4) Order that the respondents pay· the appellant’s costs of the appeal to be taxed.

Court of Appeal of Solomon Islands

Zalao v Attorney General [1997] SBCA 6; CA-CAC 9 of 1996 (24 April 1997)