Rano v Commissioner of Police [2016] SBCA 19; SICOA-CAC 13 of 2016 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (KENIAPISIA J)
COURT FILE NUMBER:	CIVIL APPEAL CASE NO. 13 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 111OF 2014)
DATE OF HEARING:	12 OCTOBER 2016
DATE OF JUDGMENT:	14 OCTOBER 2016
THE COURT:	GOLDSBROUGH P LUNABEK JA YOUNG JA
PARTIES:	WILSON RANO APPELLANT - V - COMMISSIONER OF POLICE 1st RESPONDENT CONSTABLE KEMADIKA 2nd RESPONDENT
ADVOCATES: APPELLANT: RESPONDENT:	MATTHEWS QCWith him B KAEHUNA, RANO & COMPANY S. BANUVE, ATTORNEY GENERAL
KEY WORDS:	SEARCH WARRANT: LAWYER//CLIENT PRIVILEGE.
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:
PAGES:	1-10

JUDGMENT OF THE COURT

Introduction

1. On 31 March 2014 a Constable of the Solomon Islands PoliceForce applied to the Honiara Magistrates Court for a search warrant relating to the offices of Rano and Company lawyers of Honiara. The Search Warrant was granted and executed by the Police on 9 April 2014. Files and a computer were seized by the Police. Later on 9 April Mr Rano obtained an order from the High Court which required that the seized files and computer be delivered to the High Court until further order.
   
2. Subsequently Mr Rano and a client Mr Chite were charged with a criminal offence relating to the allegations contained in the Search Warrant application. Mr Rano and Mr Chite were subsequently acquitted of the charges. Mr Chite and Mr Hiva (the second claimant/appellant) were representatives of the Choetribe and the ChoeIntegrated Company who were disputing ownership of certain customary lands.
   
3. On 17 April 204 Mr Rano and MrHiva issued proceedings against the Attorney General (representing the Police and the Magistrates Court) and the Detective who was in charge of the search warrant execution. These proceedings sought declarations that the Search Warrant was void and or invalidly issued as being in breach of solicitor/client privilege and otherwise defective.
   
4. Accompanying orders were sought prohibiting the Police from viewing the documents seized and a declaration that if S101 of the Criminal Procedure Code contravened Solicitor/Client privilege then it was in breach of S9(1) of the Constitution. Finally compensation or damages were sought.
   
5. The proceedings came on for trial in April 2016 sometime after the acquittals.The Judge concluded that the Search Warrant did not breach Solicitor/Client privilege. The Judge said that the Search Warrant should be quashed given it had identified the wrong section of the Penal Code (S108) under which the actions of the Appellants were said to relate. However the Judge said that the Search Warrant was valid until quashed by a court and therefore the Magistrate and the Police had acted lawfully in applying for and granting the search warrant. Accordingly there was no breach of the Constitution and no damages would be awarded.
   
6. This appeal challenges the conclusions that there was no breach of privilege, that the Search Warrant was valid until quashed and the failure to award damages
   

Respondents Cross Appeal

7. The respondents applied for leave to cross appeal the Judge’s conclusion that the search warrant was defective and therefore the Magistrate lacked jurisdiction to issue the search warrant. The appellant’s opposed granting of leave. They stressed the cross application was 2 months out of time.
   
8. We are satisfied that if leave is required to raise this issue then leave should be granted. However we doubt leave is required. We consider that the question of the Judge’s decision regarding the validity of the search warrant inevitably arises from the Appellant’s first ground of appeal. That ground of appeal alleges that the decision of the Judge in the High Court was wrong when the Judge concluded the search warrant was void ab initio as not disclosing any offence known to law but then in finding the warrant was valid until quashed by a court.
   
9. To reach a view on this ground of appeal this court will need to consider the validity of the search warrant. Further the question of the circumstances under which damages may be claimed for a breach of S9 of the Constitution by virtue of the execution of a search warrant is a matter of considerable importance to the law of the Solomon Islands.
   
10. It is therefore vital that before any possible damages award the background facts and law are fully established. This proposition strongly favours leave being given (if necessary) so that the facts and law in this case are established. The appellant could not in our view point to any legitimate prejudice if leave were to be granted. We therefore grant leave to bring the cross appeal.
    

Background Facts

11. Mr Rano acted as Mr Hiva’s Lawyer relating to a challenge to the Morovo Council of Chiefs decision resulting to Choe customary land. There had been significant litigation conducted by Mr Hiva and Mr Chite relating to customary ownership of the land.
    
12. In 2012 Mr Rano on behalf of MrHiva and MrChite and their tribe lodged a challenge with the Local Land Court relating a decision of the Council of Chiefs. The documents detailing the challenge included a summons, a statement of the case and an Unaccepted Settlement Form.
    
13. Those who were opposing MrHiva and Chite’s land claim made a complaint to the Police that the Unaccepted Settlement Form had not contained the true Council of Chiefs’ decision with respect to the land but a fabricated version of the decision.
    
14. The Police opened an investigation. They interviewed Mr Chite. The Police say Mr Chite told them that he had instructed Mr Rano to prepare documents for an appeal from the Chief’s decision with respect to the land dispute. Mr Chite told the Police that in discussion with Mr Rano at his office Mr Rano advised MrChite to use a fabricated document of the Unaccepted Settlement Form in the appeal.
    
15. The Police said they then obtained the original decision of the Council of Chiefs and compared it with the documents filed in the land appealby Mr Rano including the Unaccepted Settlement Form. On the basis of this evidence the police applied for a search warrant relating to MrRano’s premises. We will return to the application for the search warrant and the warrant itself later in this judgment. As we have noted the warrant was granted and executed.
    

The High Court Judgment

16. The trial Judge concluded there were no flaws in the application for the search warrant but that the warrant itself had described the incorrect section in the Penal Code relating to fabrication of evidence.
    
17. The application for the search warrant made it clear the potential criminal act was the fabrication of a document. The warrant authorised the constable to search for and seize the fabricated decision. Reference was then made in the warrant to an “Aider and Abettor” and then “(Contrary to Section 108(1) Penal Code)”. The Judge said that S108 of the Penal Code did not cover an allegation of fabrication of evidence. The Judge noted it was S110 of the Penal Code that covered fabrication of evidence.
    
18. The Judge concluded that the misdescribed section error in the search warrant meant the Magistrate who granted the search warrant “lacked jurisdiction to issue the search warrant in the first place”
    
19. However the Judge said that the search warrant was valid until quashed by the Court. Thus he said the actions of the police were immune from suit by virtue of S24 of the Police Act and immune by virtue of S9(2)(a)(d) and (c) of the Constitution.
    
20. The Judge mentioned S70 of the Magistrates Court Act (relating to immunity of Magistrates and those acting as a result of a Magistrate’s order) although only in the context of the immunity of a Police officer acting to carrying out a Magistrate’s order.
    
21. The Judge in High Court therefore found the search warrant was void because
    • (a) There was no connection between the offence alleged to have been committed and the “things sought as evidence”and
    • (b) The offence alleged to have been committed in the search warrant has not an offence known in law.
      

The Validity of the Search Warrant

22. We are satisfied the Judge was wrong in both conclusions(at 21) and that the search warrant was validly issued and the warrant itself was valid.
    
23. S101 of the Criminal Procedure Code requires a Magistrate to be satisfied there is reasonable suspicion by the applicant for a search warrant (here the Constable) that there is anything (here document) in any building in respect of which an offence has been committed or the document is necessary forthe investigation of an offence.
    
24. In this case the Police alleged in their application for a search warrant (described as Information to Ground Search Warrant) that a document relating to a court case had been fabricated by Mr Rano or its fabrication had been aided and abetted by him. And so that was the document(s) that were sought in the application for the warrant.The warrant itself authorised the search and seizure of the fabricated decision, the computer used to prepare the document and any file in Mr Chite’s and Mr Hiva’s name.
    
25. Therefore contrary to the Judge’s conclusion there was a direct connection between the warrant, the application and what the police had sought to further their investigation into the allegation of fabricating evidence.
    
26. As to the Judge’s second ground on which he found the warrant invalid we are satisfied he was also in error. The Judge said that the offence alleged in the warrant “is not an offence known in law”. This was because the warrant itself mentioned S108 of the Penal Code when the offence of fabrication of evidence was in S110 of the Code. We are satisfied that both the application and the search warrant itself made it clear what alleged offence the police were investigating.
    
27. As we have noted S101 required the police to have reasonable suspicion either that an offence had been committed or that the documents were necessary for the investigation into an offence. There could be no doubt on a reading of the application for the warrant and the warrant itself that the police were investigating the offence of fabricating evidence.
    
28. The fact that the warrant mentioned the wrong section did not affect the fact it was clear on the face of the application and warrant that fabricating evidence was the offence alleged. We note there is no obligation in S101 to identify any offence in the warrant itself. The warrant is the authority for the search and defines its limits. The application must identify that fact that there is at least an investigation into an offence and identify broadly the criminality alleged. It does not need to precisely identify the crime alleged. Hence the application did identify the offence being investigated.
    
29. The Judge was wrong to conclude that the incorrect reference to S108 of the Penal Code invalidated the warrant.
    
30. We heard considerable argument on whether, if we found the warrant was void, it was void ab initio. Given our conclusions there is no need for us to consider this matter.

Legal Professional Privilege

31. The Appellant’s case is that the execution of the search warrant here amounted to a breach of lawyer/client confidentiality. The fundamental point argued by the Appellant is that the documents sought in the search warrant in particular the form said to be the subject of fabrication and any associated documents was the subject of legal professional privilege. Mr. Hiva was Mr. Rano’s Client and the documents and files existed from Mr. Hiva’s instructions to his lawyer Mr. Rano. In these circumstances the Appellant says privilegeapplied and the documents could not be lawfully seized.
    
    32. The information in the application made it clear that the allegations of fabrication were made against both Mr. Chite and Mr. Rano and that the evidence sought related to Mr. Rano aiding and abetting Mr. Chite in preparing and filing in Court the fabricated document. We are satisfied that given the search warrant was issued in part to obtain documentary evidence relating to an allegation that Mr. Rano had helped prepare a fabricated document that the search and seizure was not protected by client/lawyer privilege.
        
    33. Section 143 and 144 of the Evidence Act provides for legal professional privilege for the clients of lawyers. The section focuses on the admissibility of privileged evidence in Court. The Courts have expanded this evidence based concept of privilege to include protection of documents from seizure and use where the documents are ultimately found to be privileged. The section prohibits the disclosure of any document “with which the legal practitioner has become acquainted in the course and for the purpose of acting for the client” (S143).The section does not protect a document prepared in furtherance of a commission of a fraudulent or corrupt act (S143 (2)).
        
    34. A consideration of the terms of the application for the search warrant and the warrant itself illustrates that the police allegations were against both Mr. Chite and Mr. Rano. They alleged both men were involved in the preparation of the fabricated document. They identified the evidence for such an allegation. And so lawyer/client privilege would not attach to documents sought which were relevant to the investigation of Mr. Rano’s alleged criminal conduct. It may be that the documents sought were also evidence of Mr. Chite’s criminal conduct.
        
    35. Given the police evidence in the application was that these men had acted together to fabricate the document it could not be said Mr. Rano was acting as Mr. Chite’s lawyer in such circumstances. But even if Mr. Rano was acting as Mr. Chite’s lawyer in such circumstances this could not mean Mr. Rano was somehow protected by lawyer/client privilege.
        
    36. We note most common laws jurisdictions have developed a process to ensure the question of whether document seized from a lawyer’s office are privileged before the authority seizing the documents (typically the police) have investigative access. Typically were documents are seized from a lawyer’s office by virtue of a search warrant the documents are deposited with the Court. The investigative authority do not keep copies of the documents. If privilege is then asserted with respect to the documents the Courts decides, after inspecting the documents, whether privilege applies. If privilege applies, the documents are returned. If privilege does not apply the document are returned to the investigating authority. We note in this case on the application of Mr. Rano in fact the seized documents were surrendered to the Court. We heard no submission on such a process in the Solomon Islands but we consider the development of such as process would benefit the interests of Justice.
        
    37. We are satisfied for the reasons given the documents seized under the search warrant were not subject to client/lawyer privilege.

Summary

38. We are therefore satisfied that:
    • (a) The search warrant was validly issued.
    • (b) The search warrant was not in breach of lawyer/client privilege.
39. It is therefore follows that there has been no breach of S.9 of the Constitution nor any other basis on which damages could or should be awarded.
    
40. We also heard submission on the effect of S9 (2) of the Constitution, S24 of the Police Act and S70 of the Magistrate Court Act as to the effect to which those sections provided immunity from suit for actions of the Magistrate and the Police in this case. Given our conclusions we do not need to consider these submissions.

Result

41. The cross appeal against the trial Judge’s conclusion that the search warrant is void is allowed.
42. The appeal against the trial Judge’s finding that lawyer/client privilege does not apply in this case is dismissed.
    
43. The orders as to costs in the High Court are set aside.
    
44. There will be an award of costs in favour of the respondents on a standard basis in the High Court.
    
45. There will be no orders as to costs in the Court in view of the late cross appeal challenge by the respondents.
    

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GoldsbroughP

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Lunabek JA

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Young JA