Zalao v Attorney-General [1996] SBHC 45; HC-CC 168 of 1996 (16 September 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 168 of 1996

MALELI ZALAO, PETER GWALI SILAS ATU,
DAVID MAENU AND BROWN ZAKU

-v-

THE ATTORNEY GENERAL AND
COMMISSIONER OF POLICE

Before: Awich, J

Hearing: 23 July 1996 - Judgment: 16 September 1996

Counsel: A Nori for the 5 Plaintiffs; G Samuel for the 2 Defendants

JUDGMENT

SAM LUNGOLE-AWICH J:

The Case before Court:

The case of the five accountants. The five gentlemen herein cited as the plaintiffs, namely Maleli Zalao, first plaintiff, Peter Gwali, the Second plaintiff, Silas Atu, the third plaintiff, David Maenu, the fourth plaintiff and Brownless Zaku, the fifth plaintiff, are all employed as accountants at various levels in the Public Service of Solomon Islands. They came to court on 17 June 1996 on complaint that they had been wrongfully suspended from their employment in the Public Service, and that they were being paid only one half of their salaries during the suspension. Their complaint went further that the houses in which four of them lived were wrongfully searched by the police, and in the case of three of them, articles of belonging were wrongfully seized by the police. They asked the court to quash the search warrants that the police obtained and that they be awarded compensation for damages for the wrongful actions of the Secretary for Public Service and of the Commissioner of Police. The events that led to their complaints were recounted in affidavits of four of them, filed in support of their joint originating summons commencing these proceedings on 17 June 1996 leading to hearing of the case on 23 July 1996. I summarise the events.

On various dates in June, each of the five accountants received a letter suspending him from employment. First to come were letters to Zalao, Gwali and Atu. They were dated 14 May 1996; Mrs Jane M Tozaka, Under Secretary, signed as the writer, on behalf of the Secretary to the Prime Minister. The letters are now exhibits MZ1, PG1 and SA1 respectively. In each of the letters was stated that each of them was suspended, "on half pay." Second to come was a letter to Zaku; the letter now exhibit BZ1 was dated 4 June 1996. Mr Joses Sanga, Secretary to the Prime Minister (SPM) signed as the person who wrote the letter. In the case of Maenu, I did not find a letter of suspension on the case file nor his affidavit to support the joint originating summons. The filing index sheet on the case file had no entry on it that Mr Maenu's affidavit or any other document of his was filed. I asked the Registry Clerk about Mr Maenu's affidavit. He informed me that it was never filed with the others. Affidavits of all the other four plaintiffs were on the case file and letters suspending them were attached thereto. Later in the month of June, police officers obtained search warrants from a magistrate and searched dwellings of Zalao, Gwali, and Atu, and possibly of Maenu. They seized from Gwali, eskies, freezer and outboard motor and from Atu, a vehicle and music instrument. They were about to seize a motor vehicle from Zalao, but the latter produced documents which satisfied the police and so they did not seize the vehicle. There was no search of the dwelling of Zaku and as there is no affidavit from Maenu, nothing can be said about search and seizure of properties at his dwelling.

The suspension and search of the houses occupied by the plaintiffs started with a memorandum dated 4 May 1996, written by the Honourable Prime Minister of Solomon Islands, Solomon Mamaloni acting as Minister of Finance and Minister responsible for Public Service. His letter was addressed to the Secretary to the Prime Minister, and to Mr R Fallows, of Internal Audit in the Ministry of Finance, Officer Commanding Police at Honiara and Auditor General. The letter stated that there was urgency, "in expediting investigations into what now appears to be a network of financial scandal within government ministries . . ." It suggested a task force be formed to carry out investigation. Certain officials were suggested to be on the task force. Meetings and other activities may have taken place following that letter. From the affidavit of Walter Kola, a detective staff sergeant in the CID, filed for the defendants, the court knows that a task force of 14 people was formed; one of the 14 was Mr Fallows, Internal Auditor, Ministry of Finance, another was Mr Vure of Prime Minister's Office and the remaining 12 were police officers of various ranks including Deputy Director of Criminal Investigation Department (CID) and the Police Commander for Honiara. On 13 May 1996, the supervising officer, Deputy Director of CID, in the absence of the director, wrote a memorandum to the Commissioner of Police, the second defendant herein, reporting that the Director had received a letter of complaint, "directly from the Secretary to the Prime Minister' about, "financial scandal." He outlined events and reported that, "Operation Finpol," was then underway. That was commendable courtesy and proper adherence to protocol, after II, it is now the Commissioner who is being sued. The items seized had not been returned by the time of hearing of this case II, it is now the Commissioner who is being sued. The items seized had not been returned by the time of hearing of this case.

The Plaintiffs' Case:

The joint originating summons filed by the five accountants, seeking from court, declarations, relieves and costs of the suit is set out here for completeness; it states:

"1. that the Secretary to the Prime Minister, by his letters to the Plaintiffs dated.

14/05/96 to Maleli Zalao

14/05/96 to Silas Atu

14/05/96 to Peter Gwali

14/05/96 to David Maenu

04/06/96 to Brownless Zaku

suspending the plaintiffs on half pay, acted ultra vires paragraphs 65 and 66 of the Public Service Commission Regulations 1979;

2. that the Search Warrants ("warrants") issued by the Magistrate Court for Central District dated 20th May 1996 in respect of the first four-named plaintiffs were issued in contravention of section 101 of the Criminal Procedure Code and is therefore unlawful and void;

3. that the search of the first four-named Plaintiffs' premises by officers of the Second Defendant in pursuance of the Warrants were unlawful;

4. that the searches of the four-named Plaintiffs' premises by officers of the Second Defendant wore unconstitutional and amounted to a breach of their constitutional rights under section 9 of the Constitution of Solomon Islands;

5. an order that the Warrants herein referred to be quashed;

6. an order that the First Defendant pays damages to the first four-named Plaintiffs for violating their fundamental constitutional rights under section 9 of the constitution of Solomon Islands, and

When the case came for hearing, learned counsel, Mr Nori, for all the plaintiffs reported that full payment of salaries of the plaintiffs had been restored. He stated that declaration he sought, numbered 1, had lost its practical usefulness, however, he would seek the declaration because the restoration of the salaries was done quietly into bank accounts of the five accountants without any letters to them advising them that in future they might not revert to receiving only part of their salaries or that payment of their salaries might not be stopped altogether. When learned counsel, Mr Samuel, appearing for Attorney General representing the Secretary for Public Service and the Commissioner of Police, was asked, he said that he would not give any assurance that the plaintiffs would continue to receive their full salaries or that their salaries may not be stopped in future. Counsel himself was aware that payment of full salaries had been effected, but did not know the circumstances leading to the restoration. He was not aware of any letter from the Public Service about it. Obviously a much more detailed instruction to Mr Samuel on behalf of the Attorney General was desirable. Attorney General is now faced with a case arising from the action taken by the Public Service, in which the Plaintiffs are challenging their suspension, "on half pay" and investigation at their dwellings, and are demanding damages which could be large sums. It appears to me that it is the duty of the Public Service to give full instruction to its Counsel, the Attorney General rather than leave him in the embarrassing situation where the plaintiffs seem to know more about development in the office of the Public Service than the representative of the Attorney General, in turn representing the Public Service. It seems the Public Service has not fully briefed the Attorney General or at all. There is not one affidavit from the Public Service office. Better still, one would suppose that in matters of suspension and dismissal, which have the potential of legal contention, it is advisable to consult the Attorney General before hand. That might avoid court cases.

The Plaintiffs' Case:

(Mr David Maenu's Case)

As I said earlier, there was no affidavit of Mr Maenu on the case file. In Court, learned Counsel Mr Nori argued the cases of the five accountants as one case, and of course as if identical affidavit of Mr Maenu had been filed in court. It escaped me that a similar affidavit of Mr Maenu was actually not on the court file. Of course it is the duty of the plaintiff to make available to court, evidence upon which he relies for the relieves he seeks; if he does not do so, he cannot succeed.

I have advised elsewhere that when filing originating summonses, summons applications and other applications which require affidavits and or other documents to support them, the person filing should ensure that the affidavits and the other documents required are attached thereto and filed togetherwith. The reason for that is that the application or the case presented for filing is in fact incomplete before the supporting affidavits or other supporting documents required have been filed. It also avoids oversight. If that has been done, the person attending to service (sometimes an unpleasant experience) attends to service only once. And adjournment because counsel had affidavit served on him only outside court just before hearing is avoided. Solicitors who heed the advice will find it useful. It might well be that in this case was intended to file Mr Mane's affidavit, but that had not been done by the time of hearing. Order 58 r 3 requires evidence to support originating summons; it reads:

4. The application shall be supported by such evidence as the court may require.

I did not in this case make any direction requiring evidence in a particular form. It is well established practice in this Court that evidence in originating summons is usually by affidavit. That is because evidence in originating summons proceedings is usually common ground, the contention being about interpretation of a document or legislation. It is of course open to court to hear evidence viva voce when circumstances require such as when urgency in the matter requires such swift action as leaves no time for preparation of affidavit. Deponents may also be cross-examined when affidavits are divergent on facts. In this case Mr Maenu was in Court, there was no suggestion that he would be called to testify. I think it was intended to file his affidavit, but that has not been done, by oversight. That has left his application without any evidence to support it. That cannot be supplied by the reply filed by the defendants. The court simply has no facts to which to apply the law he says has been breached. His application must be dismissed and the court dismisses it without costs to the defendants for the reasons given at the end of this judgment.

Suspension, Declaration sought Numbered 1:

Mr Nori submitted that regulation 65 of Public Service Commission Regulations, gives authority to suspend a person employed in the public service, and so the suspension of the five accountants was to be taken as lawful. He attacked the "half pay" that came with the suspension. He submitted that regulation 66 was clear on the point; a suspended officer was entitled to receive his full salary, so the plaintiffs were entitled to receive full salaries while on suspension. The two regulations state:

65. Any officer may be suspended from his duties pending the conclusion of disciplinary proceedings, if this is in the interests of the public service. The authority to suspend an officer is vested in the Secretary for Public Service, or any officer to whom he may delegate that authority.

66. An officer will not be suspended when, as an alternative, it would be possible or appropriate to move him to other work. An officer who is suspended will be informed in writing by the Secretary for Public Service, or officer exercising delegated powers, of the reasons for his suspension. The officer shall continue to receive the salary or wages of his substantive grade level, and must remain at his duty station unless he has the written permission of the Secretary for the Public Service or officer exercising delegated powers, to leave it.

Upon reading the last sentence in regulation 66 one sees that Mr Nori's submission that the plaintiffs are entitled to their full salaries while on suspension, is unassailable. Mr Samuel conceded, and I think rightly so. Perhaps the position was advised to the Public Service and as the result, it decided to restore the full salaries of the five accountants. The Public Service or Attorney General could have done a little more by making the position clear, in a letter to the plaintiffs. They are entitled to know.

Mr Nori might have been generous in not raising issue about the lawfulness or otherwise, of the suspension. It seems to me that issue could be raised as to whether in the facts of this case (defence case remaining largely undisclosed), the suspension of the plaintiffs has been done, "pending conclusion of disciplinary proceedings" as regulation 65 requires. Put in another way, is it not a pre-condition, in suspending from public Service, that disciplinary proceedings are in progress? Are disciplinary proceedings not different actions altogether from dealing with suspected criminal actions of a public officer? Had disciplinary proceedings against the five accountants been commenced at the time of their suspension or is the Public Service simply relying on the report of crime to the police as the disciplinary proceedings, and if so, was the Public Service correct?. Moreover question could even be asked as to whether consideration had been given to move each of the five "to other work," as is required in regulation 66.

The answers as I see in the Regulations are that the Public Service, through the Secretary for Public Service or through a delegated officer, is authorised to suspend an officer in the Public Service, but the Secretary can only do so when; (1) it is in the interest of the Public Service (2) it is done pending the conclusion of disciplinary proceedings, and (3) it is considered undesirable to transfer the officer to some other work while disciplinary proceedings are being carried out. In this case it is not doubted that the subject matter, irregularity detected, in handling public funds is a matter within the interest of the Public Service. It has been alleged that investigation so far had indicated that each of the plaintiffs was involved in the irregularity. They do not contend that irregularity in dealing with public funds has not occurred or that it is not a matter in the interest of the Public Service nor do the five accountants deny in their affidavits, their involvement. They have not contended that the matter is not one that the Public Service may probe into and if required, discipline them over. It is certainly a matter that they may be suspended over.

The allegation that they are involved in handling public funds in ways that call for explanation is one that concerns the Public Service. The letters written by SPM and by the Under Secretary, to the five accountants state the interest of the Public Service sufficiently. Those letters are prima facie evidence that SPM and Under Secretary had reason to suspend them. The plaintiffs have not replied to them even by mere denial of their respective parts. There is however, another requirement.

The suspension can only be done, "pending the conclusion of disciplinary proceedings." That means, while awaiting the bringing to an end the process of disciplinary action. It follows that there ought to have been disciplinary process (proceedings) in progress or at least started by the time letters of suspension were sent to the five accountants. Was there disciplinary proceedings against each of the five accountants by the date of his suspension? In answering the question, affidavit from someone in the Public Service would have been most useful. No such affidavit has been filed in answer to those filed by the plaintiffs and served on the Attorney General on behalf of the Secretary for Public Service. The court is required to go by the evidence before it , not by assumption. In the cases of Zalao, Gwali, Atu and I may add, Maenu, there is nothing to suggest that disciplinary proceedings were in progress. The letters suspending them were identical; I set out here one of them, that to Mr Atu.

Mr S Atu
Thru: Permanent Secretary (Supvg)
Ministry of Provincial Government
HONIARA

Our ref: PF/Atu S

Date: 14.05.96

Dear Sir

SUSPENSION FROM OFFICIAL DUTIES

It has been reported to the Acting Minister of Finance and Minister responsible for the Public Service that payments of certain goods and services involving huge sums of public funds which were meant for National or Provincial developments have been so far unaccounted for, or not property handled within normal government procedures and instructions.

2. From current investigation findings, you have been identified as an officer involved in the above suspected payments. However, if you know you are innocent, you are requested to give your reasons in writing to the Secretary to Prime Minister.

3. I have been directed and given this very unpleasant task to inform you that you be suspended on half pay forthwith to allow investigations to be carried out.

4. This notice is being served to you under PSC Reg. 65 and 66.

5. While on suspension, you must remain at your duty station, unless you have the written permission from this office.

6. Please hand deliver all office keys immediately after you have received this letter to Mr Chekana who will be the supervising Permanent Secretary for Ministry of Provincial Government.

Yours faithfully,

Jane M Tozaka (Mrs)
Under Secretary
for Secretary to Prime Minister
OFFICE OF THE PRIME MINISTER

In the second paragraph, the letter states that investigation has identified the officer to be "involved in the above suspected payments. However, if you know you are innocent you are requested to give your reasons in writing to the Secretary to the Prime Minister." Paragraph 3 states that the officer is, "suspended on half pay forthwith to allow investigations to be carried out." The request that the officer gives reasons for his innocence cannot amount to an action in disciplinary proceedings, because disciplinary proceedings must be by report, inquiry, report by the Secretary to Public Service Commission, charge for the misconduct sent to the officer, his reply if any, and decision. See regulations 46, 47, 48, 49, 50 and 60. There is no reference to disciplinary proceedings having been commenced and therefore pending. So there is no indication that the requirement in the last sentence of regulation 65 has been complied with.

In the case of Mr Zaku, the letter of SPM states that the Minister responsible for Public Service had referred the matter to SPM for purposes of discipline and goes on to suspend Mr Zaku. The letter does not suggest that the process of disciplining had commenced. I set it out in full here.

Mr B Zaku
Thru: Permanent Secretary
Ministry of Finance
HONIARA

Date: 4th June, 1996

Dear Sir

SUSPENSION FROM OFFICIAL DUTIES

1. It has been reported to the Acting Minister for Finance and Minister responsible for the Public Service that payments of certain goods and services involving public funds have been so far unaccounted for or not property handled within normal government procedures and instructions.

2. From the preliminary findings of the investigation team, you have been identified as an officer responsible for approving suspected payments. The Minister responsible for Public Service has referred the matter to me for purposes of discipline.

3. I am rather reluctant to do this but in order to facilitate investigations, I have to do the most unpleasant but obvious task ie to suspend you on half pay forthwith to allow investigations to be carried out.

4. This notice is being served to you under PSC Reg. 65 and 66.

5. While on suspension, you must remain at your duty station, unless you have the written permission from this office.

6. Please hand-deliver all office key and vehicle keys to your Permanent Secretary, Mrs S Rini immediately after you have received this letter.

Yours faithfully

Joses W Sanga
Secretary to Prime Minister
Office of the Prime Minister

cc: Permanent Secretary/MOF
cc: Accountant General/MOF
cc: Auditor GeneraI/MOF
cc: Chairman, Public Service Commission
cc: Secretary (SIPEU)

It may well be that report for purposes of disciplinary proceedings has been made and that inquiry is being conducted. It is for the Public Service to inform the five accountants and the court by affidavit that that is the position. Unless the court has it on the case file, the court must take it that nothing was done by way of disciplinary proceedings.

Both letters state that suspension forthwith was decided upon to allow investigations to be carried out. There is nothing wrong with that, and it may be said that it was desirable that suspected officers are forthwith removed from the offices where they might have access to matters being investigated. That, important as it seems, is really action to assist the police. The question is, what about the public service part, the disciplinary proceedings required by regulations 46, 47, 48, 49, 50, 64 and 65?.

Does the commencement of criminal investigation excuse failure to commence disciplinary proceedings before suspension is effected? The answer is no. The Regulations provide for the two as distinct processes, and in fact, may be carried out simultaneously except that the final decision in disciplinary proceedings has to wait for the criminal process to come to an end. Disciplinary proceedings have as their purpose, establishing that misconduct in the Public Service has or has not occurred, and punishing where it occurs, under regulation 60 by:

(a) reprimand

(b) severe reprimand

(c) reduction in salary or wages

(d) demotion by one or more grade levels, and

(e) dismissal.

The process commences under regulations 46 and 47, with a report to the head of department who shall institute inquiries into the matter reported and submits a report to the Secretary for Public Service. The Secretary informs the officer of the charge of misconduct and submits the report to the Public Service Commission. The officer is afforded opportunity to respond and the report together with the officer's response are considered before a decision is taken. If he is found to have committed any act of misconduct , penalty under regulation 60 is decided upon, otherwise he is cleared of the adverse report inquired into.

Criminal investigation is a process that the police can carry out in regard to anybody whether he be employed in the Public Service or not. Should it appear that a public officer might have committed crime in the course of his duty, as it is alleged here, regulation 54 requires that the police is informed - just like in anybody's case, but in addition, the Secretary for Public Service is informed. The police is of course expected to pursue investigation in the normal way, and if need be, charge the public officer with a criminal offence before court of law which deals with it in the same way it deals with a case against any other person. They need not take into account the disciplinary inquiry that the Public Service may be conducting. They may even arrest the officer just like anyone else may be if the facts of their investigation suggest that arrest is required. The police investigation of the officers' crime only affects the public service disciplinary process in that under regulation 55, if the police has charged the officer or about to charge the officer, final decision in the pending disciplinary proceedings shall not be taken; it will have to wait for the criminal case. to come to an end. The reason for that is that the Commission needs to know the result of the criminal case in case it will have to take into account that result such as in the event of the public officer being sent to prison for a long time.

The reason for requiring that disciplinary proceedings be commenced before a public officer is suspended is a good one. The officer, must know that the subject of his suspension is being attended to, and that the employer, the Public Service does not simply remove him from office in the name of suspension and forgets about him. He will be on suspension knowing that he is waiting for the conclusion of a process already started. From the point of view of the Public Service, it is a good rule as well, in that it does not go on paying salary to a suspended officer without indication as to when the officer who is not doing work, will resume duties or be dismissed and salary is stopped altogether. Control is imposed on the Public Service as to time when a suspended officer keeps on receiving pay without working for it, in the name of suspension.

For the reasons I have given, the declarations of the court on suspension are:

1. The Secretary for Public Service and a delegated officer, in this case the Under Secretary have power under regulation 65 of the Public Service Commission Regulations 1979, to suspend public officers, including the five accountants. Accordingly the Secretary and Under Secretary had power to suspend Zalao, Gwali, Atu and Zaku. That the suspension was in the interest of the Public Service, that interest being that the public officers were implicated in irregular handling of public funds. To that. extent the Secretary and the Under Secretary acted intra vires, and therefore lawfully.

2. The Secretary and Under Secretary have no power when suspending a public officer, to do so when disciplinary proceedings have not commenced and are pending conclusion. In this case no evidence has been presented to show that disciplinary proceedings had commenced by the time the plaintiffs were being suspended. Reporting of criminal offence to the police is not disciplinary proceedings in terms of the Public Service Commission Regulations. To that extent the Secretary and the Under Secretary acted ultra vires regulation 65, and therefore unlawfully.

3. The Secretary and a delegated officer have no power when suspending a public officer, to direct that the public officer is to receive "half pay" or any sum less than the full salary of the public officer, because regulation 66 authorises payment of full salary during suspension. To that extent the Secretary and the Under Secretary acted ultra vires regulation 66 and therefore unlawfully when they directed that the plaintiffs were being suspended "on half pay."

4. Breach of regulations 65 and 66 or any other regulation of the Public Service Commission is not actionable per se. The plaintiffs full salaries were restored, they have not proved any damages that resulted during the short period in which they were paid only part of their salaries. No award for damages, substantive or nominal, is made by court for the extent to which the Secretary and Under Secretary acted ultra vires regulations 65 and 66.

Search and Seizure

Mr Nori reserved his most vehement attack to the question of the searches made at the dwellings of the plaintiffs. In a passionate speech centred on privacy and liberty, he submitted that the searches by the police were unlawful because (1) The search warrants by which the searches were carried out were issued, "in contravention of section 101," of the Criminal Procedure Code. He used the words, "unlawful and void." (2) They contravened section 9 of the Constitution of Solomon Islands. He sought declarations to those effects, and asked the court to quash the warrants and to award damages to the plaintiffs for breach of their constitutional rights.

Mr Samuel did not agree. He submitted in reply that the searches were carried out with valid warrants, and that at that stage the police were simply carrying out investigation on serious allegation, and that the plaintiffs' case is merely aimed at "frustrating investigation." He said that the searches were carried out under the law, section 101 of the Criminal Procedure Code, and that section 9 of the Constitution allows for searches by authority of any law.

I have already stated that the dwelling of Mr Zaku was not searched. The declarations and damages sought in regard to the searches carried out by the police do not apply to him. I have also stated that affidavit of Mr Maenu was not filed to support his case and his case was dismissed.

I start by setting out the provisions of Section 101 of the Criminal Procedure Code which section is at the centre of contention. I also set out ss105, 89 (1) and (3)

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 receptacle 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."

105. The provisions of sections 89(1) and (3), 91 and 94 shall, so far as may be, apply to all search warrants issued under section 101.

89(1) Every warrant of arrest (substitute search) shall be under the hand of the Judge or Magistrate issuing the same.

89(3) Every such warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.

It was common ground between the plaintiffs and the defendants that the searches at the houses of Zalao, Gwali, and Atu were conducted by authority of warrants duly signed by a magistrate - copies on the court file could not show signatures because the blue ink in which they were signed could not come out in the photocopier. It is appropriate for me to say that it was not the case of the plaintiffs that the informations presented to the magistrate so as to obtain warrants were false and presented out of malice. A supplier of false information, acting maliciously, for the purpose of applying for a search or arrest warrant is liable in tort for trespass and false imprisonment. The fact that he is a policeman does not excuse him. See observation made by Waller L.J in the case of Raynolds v Commissioner of Police for the Metropolis (1985) 80 Cr App R at page 128, and the case of Everett v Ribands (1852) 2 QB 198.

Mr Nori submitted that the search warrants should be held invalid because, (in my summary):

1. It did not appear that the information presented by the police to the magistrate at the time the police applied for search warrants was presented on oath.

2. No known criminal offence was stated in the warrants or in the information or any other application papers; there is no such offence as "financial scandal," an expression which appeared in the warrants and information upon which the warrants were obtained. Section 101 of the Criminal Procedure Code requires offence to be stated.

3. All the information that appeared to have been presented to the magistrate did not amount to sufficient evidence upon which to prove or base reasonable suspicion that articles in respect of which offence had been committed, or that were required for investigation were or may be on the premises where the plaintiffs lived. The Magistrate did not act judiciously when he signed the warrant, he simply signed the warrants based on a list drawn by a Mr. Fallows.

4. By reasons in submissions 1 to 3 herein, there were no valid search warrants and so the searches at the plaintiffs' dwellings were contravention of S:9 of the Constitution.

To Quash or not to Quash the Warrants

The originating summons prayed that because of the reasons stated in 1 to 4 the search warrants be quashed, and damages be awarded for breach of the plaintiffs constitutional right. Since Mr Nori made the point that there was breach of S:101 of the CPC, one would have thought that he would ask for damages, in the originating summons, for the wrongs under S: 101. Breach of S:101 is trespass to the premises and to the chattels, the articles of belonging examined and or taken away. Trespass is actionable per se, that is award of damages must be made once trespass has been proved; the plaintiff need not prove any damages resulting.

I do not see any use in the prayer to quash the warrants. Once issued, a search warrant or warrant of arrest lasts until executed or cancelled by court - see S:89 (3) quoted above. I shall add that it may also be set aside by the High Court on review if the warrant was issued wrongly by magistrate court. In this case the search warrants have already been executed, and do not pose any threat to the plaintiffs' dwellings or chattels. A warrant is executed only once and its authority is thereby extinguished. For the court to order it quashed is to flog a corpse. If the plaintiff had learnt of the issuing of the warrants before they were executed, it might have served useful purpose for them to come to court, if they had sufficient grounds, to ask that the decision of the magistrate who had issued the warrants be reviewed. That was the situation in R v Guildhall Magistrates Court, Ex-Parte Primlaks Holdings Co (Panama) Inc., (1989) 89 Cr App R 215. That was a case in England under S:8 of the English Police and Criminal Justice Act 1984. Section 8 (1) of that Act, authorised justice of peace to issue search warrant, if satisfied on application by a constable, that there are reasonable grounds for believing that (a) a serious arrestable offence has been committed and (b) that there are materials on the premises which is likely to be of substantial value in the investigation of the offence. Under S:10 the police had to show reasonable grounds that the documents were not privileged. Brief facts in the case were. When a bank collapsed, the police pursued investigation into the collapse. A company named Gomba owed the bank £23 million. The police wanted to establish where and how another company, Primlaks had paid Gomba for 5 ships that Gomba had sold to Primlaks, the proceeds might have helped to reduce the debt to the bank that collapsed. The police discovered that certain documents were with Primlaks' solicitors. They applied to a justice of peace for and obtained search warrants and seized the documents. Solicitors challenged the grounds upon which the warrants were issued. The police then agreed with solicitors that the police would keep the documents sealed until solicitors applied to court to review the decision of the justice of peace, to determine the correctness of issuing of the warrants. The solicitors applied to the Queen's Bench Division for review with the result that the court held that there were no material (evidence) produced by the police upon which the justice of the peace could properly have been satisfied that the documents were not covered by S:10 and might be privileged. Certiorari issued and the warrants were quashed, and of course the documents which had been sealed were returned uninspected by the police. A purpose was served in having the warrant quashed.

What is the purpose here? - All gone.

The first submission is factually inaccurate. It is stated in the 7th line in each of the three warrants, exhibits MZ2, PG2 and SA2, that D/Sgt 161 - M. Taro of CID Central Police Station, "made on oath before the Court . . ." the information that followed. In each of the documents headed, "INFORMATION TO GROUND SEARCH WARRANT" attached to each search warrant, it is stated in the 5th line that the same D/Sgt 161 M. Taro, "on his oath complains . . ." So the information that followed was complaint on oath by Sgt Taro. I have allowed for grammatical errors in the two documents. I think we must allow in our circumstances in Solomon Islands, as is the case in most developing countries, where English is a third language after one's venacular and pijin, and until with time, the Police Force will have been able to recruit highly educated people. I set out here the three exhibits together with the respective information sheets.

Court Exhibit "MZ2"

(Form 15 - Criminal Procedure Code)

SEARCH WARRANT
(Criminal Procedure Code S.101)

IN THE MAGISTRATE'S COURT FOR CENTRAL DISTRICT

SOLOMON ISLANDS

To all Police Officers within the Solomon Islands.

(a) O/Sgt. 161 M. Taro of (b) 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.

Dated _ day of 19 _

Magistrate/Justice of the Peace

(a) Insert full name of complainant
(b) Insert full address and occupation of complainant
(c) As in information given in Form 14, Criminal Procedure Code
(d) Cross out words 'or night' when warrant is to be executed between the hours of sunrise and sunset
(e) Describe place or premises

INFORMATION TO GROUND SEARCH WARRANT

(Criminal Procedure Code S.101)

IN THE MAGISTRATE'S COURT FOR CENTRAL DISTRICT SOLOMON ISLANDS

To all Police Officers within the Solomon Islands.

(a) O/Sgt. 161 M. Taro of (b) CID, Central Police Station

has this day made on oath before the court that (c)

The said Peter Gwali 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

Dated _ day of _ 19

Magistrate/Justice of the Peace

(a) Insert full name of complainant
(b) Insert full address and occupation of complainant
(c) As in information given in Form 14, Criminal Procedure Code
(d) Cross out words 'or night' when warrant is to be executed between the hours of sunrise and sunset
(e) Describe place or premises

INFORMATION TO GROUND SEARCH WARRANT

(Criminal Procedure Code S.101)

IN THE MAGISTRATE'S COURT FOR THE CENTRAL DISTRICT SOLOMON ISLANDS

(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:

(c) A electrical Sewing Machine plus any suspected valuable properties obtained fraudulently means from Solomon Islands Government.

were unlawfully obtained by fraudulently means from Solomon Islands Government to East Kola Ridge by some person or persons unknown, and that he has reasonable cause to suspect, and does suspect, that those goods, or some of them, are concealed (d) at his private residence premises occupied by Peter Gwali of Foueda Village, Malaita for he the said D/Sgt. 161 M. Taro. says that: (e)

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

(a) Insert full name of complaint.
(b) Insert full address and occupation of complaint.
(c) Describe goods.
(d) Describe place or premises in which goods are alleged to be concealed.
(e) State grounds for suspicion that goods are there.

Court Exhibit "SA2" (Form 15 - Criminal Procedure Code)

SEARCH WARRANT

(Criminal Procedure Code S.101)

IN THE MAGISTRATE'S COURT FOR CENTRAL DISTRICT

SOLOMON ISLANDS

To all Police Officers within the Solomon Islands.

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

The said Silas Atu 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) Silas Atu premises 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.

Dated _ day of _ 19 _

Magistrate/Justice of the Peace

(a) Insert full name of complainant
(b) Insert full address and occupation of complainant
(c) As in information given in Form 14, Criminal Procedure Code
(d) Cross out words 'or night' when warrant is to be executed between the hours of sunrise and sunset
(e) Describe place or premises

INFORMATION TO GROUND SEARCH WARRANT

(Criminal Procedure Code S. 101)

IN THE MAGISTRATE'S COURT FOR THE CENTRAL DISTRICT SOLOMON ISLANDS

(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:

(c)

A vehicle:

(a) Reg. A-4415.

(b) Reg. A-3116 and plus any suspected valuable properties.

were unlawfully obtained by fraudulently means from Solomon Islands Government to Vura 11, East Honiara by some person or persons unknown, and that he has reasonable cause to suspect, and does suspect, that those goods, or some of them, are concealed (d) at his private residence premises occupied by Silas Atu of Foueda Village, North Malaita for he the said D/Sgt. 161 M. Taro. says that: (e)

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

(a) Insert full name of complaint.
(b) Insert full address and occupation of complaint.
(c) Describe goods.
(d) Describe place or premises in which goods are alleged to be concealed.
(e) State grounds for suspicion that goods are there.

to be stated from the bar, by counsel, which of course is not evidence - see Solomon Motors Limited v Honiara Town Council - Civ App. (CA) No.11/94. Counsel for the plaintiffs could also have sought leave to cross-examine Sgt Taro on the point. I reject that submission.

The second submission is partly incorrect in the facts, and incorrect in the proposition of law. From the information sheets attached to each search warrant, now set out above, it is clear that Sgt Taro describes the offences as "unlawful obtaining by fraudulent means." He does not cite the section of the Penal Code, but the identity of the offence is there.

The proposition of law that the offence committed or being investigated be stated in the warrant is incorrect, if that is suggested to be a general rule in search warrant cases. Look at it this way: The police may be investigating a reportedly missing person. They will have to gather some amount of evidence before the offence in question becomes clear. It may be they are on the trail to discover, murder or kidnapping or false imprisonment or a hit and run traffic offence. That, they will discover upon some amount of evidence having been gathered. Do they wait until that time so as to know the offence, before they apply for a search warrant, even when they have overwhelming indication that a search at some premises is likely to turn up substantial evidence? The answer must be no.

It would appear that Mr Nori got the proposition from case law: He referred to a case, T.V.W. Limited v Robinson and Another (1964) WLR 33. The library does not have the law report. From the little searching I have made of the case law of there are cases decided on the point in England which of course would be of great persuasive value to us - see Schedule 3 to the Constitution at section 4 (1). One must however, read English cases, especially recent ones, with great caution because enactments about search and arrest abound in the law about Search and arrest in England. The most extensive are the Police and Criminal Evidence Act, 1984 under which extensive Police Code of Practice has been made, and the Criminal Law Act, 1967. Of course there are many specific ones in areas such as terrorism, customs, drugs, immigration, fraud and many others. Most English cases today will not reflect the position as it was in the common law or in Acts of Parliament of the United Kingdom, of general application and in force on 1st January 1961, the date of reception of English laws in Solomon Islands. The slow development in the English Common law on arrest and even slower on search may be explanation for the proliferation of legislation. It might well be a requirement in applying for a warrant under one or other of the specific enactments that the offence be stated in the application paper and in the warrant issued. I am however, sure that in the law of Solomon Islands, S:101 of the CPC, the warrant is only required to state the building, ship, vehicle, box, receptacle or place; that is the premises. I would not even go so far as to say that the article need be specified by naming. Of course, it will be of great value if the offence is specified, but I think a general description of the suspected criminal act will suffice. The old cases in England tend to support that view. In Chick Fashions (West Wales) Ltd v Jones 1968)1 All ER 229 the offence was described in the warrant in these words, ". . . .stolen, taken and carried away . . .".Technical description of the offence was not used. In that case the articles that the police seized were even not the ones stated in the warrants, but others that they believed on reasonable grounds to have been stolen from another factory. In fact often the police seize more than the articles stated in the warrant, but they must have reasonable grounds to believe that the articles are the fruits of the crime they are investigating, or used in it or may in other ways be useful in evidence. Sometimes the articles may even relate to offence other than the one for which the police have obtained a warrant, see Grozier v Cundey (1827) 6B &-C232 and Chick Fashions (West Wales) Ltd v Jones (Supra). I reject the proposition that for a search warrant to be valid, an offence must be technically stated therein or at all. In my view, it will suffice if the purpose of the search is stated in the warrant in reasonably clear description so that the occupier or possessor of the premises understands it.

The Test of Reasonable Beliefs or Reasonable Suspicion.

The most important submission of Mr Nori was that which I have stated at 3. Let me begin by stating the law in Solomon Islands as I see it. First the police are authorised by S:101 of the CPC, to apply on oath, to a magistrate for a search warrant. It is common ground that they applied and I have already decided that they did so on oath. For their application they must prove on oath that:

1. An offence has been committed, or

2. They are or about to conduct investigation into any offence,

3. And that (a) in fact or, (b) according to reasonable suspicion, articles by which or in respect of which or upon which offence has been committed or articles, the proceeds of an offence is on the premises they wish to search.

So what were the items of material that Sgt Taro produced to the Magistrate for his application? He produced the "Information Sheet to Ground Search Warrant," and of course the unsigned warrant sheets in which particulars had been filled. The next step was for the magistrate to satisfy himself in terms of S:101 of the CPC, that in fact that is, as of facts, offence has been committed or police are conducting investigation into offences and that articles they require are on the premises where the plaintiffs lived. In each of the information sheets specific articles were mentioned. In the case of Mr Zalao it was vehicle No.A3617, in the case of Gwali, electrical sewing machines and other valuables, in the case of Atu, vehicles Nos A4415 and A3116 and other valuables. All the articles were stated to have been fraudulently obtained. The court must assume that at the time of applying, Sgt Taro was before the magistrate, possibly in chambers as is the usual practice. If he did not appear, it was for the plaintiffs to raise that challenge in their affidavits or ask for cross-examination of Sgt Taro. They did not. If the magistrate wanted more facts or clarification, the sergeant was available, and it is the practice for magistrate to ask him questions. Moreover, as someone who was on the task force on Operation Finpol, he must be taken to have knowledge of the parts of the plaintiffs in the irregularity in the handling of public funds and other information which he would have readily supplied to the magistrate when asked. I shall mention only one such information here, Sgt Taro knew from the letters now exhibits in court, that Zalao, Gwali and Atu received from the Under Secretary that the three were requested in the letters in these words; "However if you know you are innocent, you are requested to give your reason in writing." There is nothing presented to this court that suggests the plaintiffs wrote replies giving the reasons requested. The rule is that, the burden lies on them to prove that the magistrate did not have sufficient material (information) upon which to conclude that reasonable belief existed that items were concealed at their dwellings. Unless the plaintiffs proved that all the material and information known to Sgt Taro were not inquired into by the magistrate, I am inclined to take it that he did inquire. What Sgt Taro knew in my view amounted to reasonable grounds. Even if it were to be taken that only what the Sgt presented in the application papers be evaluated, my answer would still be the same.

It is my view that according to S:101, if the magistrate was not satisfied to certainty, that offence had been committed or that police were pursuing investigation, and that there were articles at the plaintiffs' dwellings, then the magistrate had to consider whether the materials presented by the police applicant, could give rise to reasonable suspicion that offence had been committed, investigation was on and that articles were at the dwellings.

In my view the material presented to the magistrate as confirmed facts or as facts upon which to found reasonable suspicion, viewed objectively, were sufficient for the magistrate to issue search warrants. In fact he was proved right when all the items except one, stated to be at the plaintiffs' dwellings were actually found there at the time of search, although the justification for issuing the search warrants is not to be taken as depending on the results of the search. The test that the materials amount to reasonable grounds is an objective test. That means, how the information appears to an average, ordinary and reasonable person in Solomon Islands. Crime is relatively low in Solomon Islands according to court returns and police are not viewed with preconceived suspicion. If an average, ordinary and reasonable person in Solomon Islands, that person knowing that he is not guilty, were to be told that according to records of handling public finance, certain vehicles, sewing machines, music systems and other valuables were said to be on his premises and that the suspected persons had been asked to explain their innocence but had not done so, and were the average, ordinary and reasonable Solomon Islander to be asked to consent to police searching the premises would he refuse? Most unlikely. I have adopted the test from the practice in English courts, but I have considered the question of what amounts to reasonable material according to the situation in Solomon Islands.

A good guide is found in the English case of Raynolds v Commissioner of Police for the Metropolis (1985) 80 Cr A R 127. The facts in that case which was one of false imprisonment and trespass to documents, searched and taken were: The plaintiff bought a house in 1970 for £16,000. Three years later in 1973 he insured it for a very large sum £550,000. Later in the same year the house burnt down so he claimed from insurance company £550,000 as indemnity. Police suspected fraud in papers relating to improvement of the house and therefore the sudden rise in value before insuring. The plaintiff had business transaction with another who had similar case against. Police sought advice from the Director of Public Prosecution, then applied for warrants of arrest and search warrant. They arrested the plaintiff and after questioning him released him the next day. A large number of documents including those that the police thought were forged were taken, examined but returned 2 days later. The man was never charged and so brought action against the police. He lost the case and appealed. On appeal the court decided that: It would be tort if warrant had been applied for falsely and maliciously, in the case application was not made falsely or maliciously. The burden of proving the absence of reasonable and probable grounds for police suspicion lay on the plaintiff. It was for the judge to decide, applying objective test, whether there was reasonable and probable grounds. The police did have reasonable grounds for suspecting that the plaintiffs had forged documents on his premises. So the appeal to that extent was dismissed. However, the second part of the appeal succeeded. The police did not act reasonably in as far as they removed all the documents they found during the search without considering each or each file whether there were reasonable grounds to believe that each was forged or each file contained forged papers. There was trespass to some of the documents. In the circumstance however, the appellant was awarded a very small sum of £50 as damages. Perhaps that is indication of how close the judges of appeal came to accepting that the material presented could amount to reasonable belief that all the large number of documents could be forged documents. It is to be noted that the facts in that case show that the question was whether there was enough information to decide that the belief that the police had, that Mr Raynolds had forged papers was reasonable so that warrant was issued to the police. Section 101 of CPC in Solomon Islands uses the word suspicion instead of belief.

The very strict assessment of what amounts in England to reasonable grounds to believe that required articles are on premises sought to be searched are said to derive from a view of the law stated by Cooke L.J. over 400 years ago, in the case of Seymane (1604) 5 CO. Rep 919, namely that, "an English man's house is his castle." I know of a statement elsewhere which goes: "One is chief in one's house." Later in England, it was stated that, "the poorest man may in his cottage bid defiance to all the forces of the Crown." I think in present day circumstances, 400 years later, when crime seems to escalate, an Englishman will have to be reminded that his castle is not a den for criminals, and that the Commons, no longer the Crown, in their numerous enactments require that assurance from him.

Contravention of the Constitution:

I have found against the plaintiffs that there was enough presented to the Magistrate during the application for the search warrants for him to issue the warrants. The last submission does not arise because of S:9(2)(d) and even (a) of the Constitution. The search warrants were issued under authority of a law, namely S. 101 of the Criminal Procedure Code, for the purpose of entry of the dwellings of the plaintiffs in pursuance of the order of the magistrate. Even if I were to find that the magistrate did not have reasonable grounds upon which to issue the warrants, I would not have decided that there had been breach of S:9 of the Constitution. The reason would be that the police acted on warrants which until quashed were valid and so the action of the police would have still been exempted by S:9(2)(d) from being a contravention of the Constitution. The full section 9 of the Constitution reads.

9. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others in his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

a) in the interests of defence, public safety, public order, the prevention and investigation of breaches of the law, public morality, public health, town or country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;

b) for the purpose of protecting the rights or freedoms of other persons;

c) for the purpose of authorising an officer or agent of the Government or of Honiara town or of a provincial government or a body corporate established by law for a public purpose to enter on the premises of any person for any tax, rate or duty or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government, that authority or that body corporate, as the case may be;

d) for the purpose of authorising the entry upon any premises in pursuance of an order of a court for the purpose of enforcing the judgment or order of any court in any proceedings; or

e) for the purpose of authorising the entry upon any premises for the purpose of preventing or detecting criminal offences.

And except so far as the provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

The protection from arbitrary search afforded by S:9 of the Constitution must be balanced, as indeed the provisions of subsection (2) do, against the general good of the public. In this case it is necessary to balance the inviolability of the liberty of the plaintiffs against the need for the police to suppress crime. The balancing exercise must be based on the circumstances of the particular country, in this case based on the circumstances of Solomon Islands.

The declarations that the three plaintiffs, sought in paragraphs 2, 3 and 4 of their originating summons dated the 12th day of June 1996 and filed on 17/6/96 are refused. Prayers in paragraph 5 to quash warrants and in paragraph 6, for damages for violation of constitutional rights are refused. Instead the court makes these declarations, which include those already stated earlier in this judgment:

1. The Secretary for Public Service and a delegated officer, in this case the Under Secretary, have power under regulation 65 of the Public Service Commission Regulations 1979, to suspend public officers including the five accountants. And the Secretary and Under Secretary had power to suspend Zalao, Gwali, Atu and Zaku, (Maenu is excluded because he did not support his case with affidavit). The suspension was in the interest of the public service, that interest being the allegation that the public officers were implicated in irregular handling of public funds. To that extent the Secretary and Under Secretary acted intra vires regulations 65 and therefore lawfully.

2. The Secretary and a delegated officer have no power when suspending a public officer to do so when disciplinary proceedings have not commenced and pending conclusion. In this case no evidence has been presented to show that disciplinary proceedings had commenced by the time the plaintiffs were being suspended. Reporting criminal offence suspected against a public officer to the police is not an action in disciplinary proceedings in terms of the Public Service Commission Regulations. To that extent the Secretary and Under Secretary acted ultra vires regulation 65, and therefore unlawfully.

3. The Secretary and a delegated officer have no power when suspending a public officer, to direct that the public officer is to receive "half pay" or any sum less than the full salary of the public officer, because regulation 66 authorises payment of full salary during suspension. To that extent, the Secretary and Under Secretary acted ultra vires regulation 66, and therefore unlawfully when they directed that the plaintiffs were being suspended "on half pay".

4. Breach of regulations 65 and 66 or any other regulation of the Public Service Commission Regulations is not actionable per se. The plaintiffs' full salaries were restored, they have not proved any damages that resulted during the short period in which they were paid only part of their salaries. No award for damages, substantive or nominal is made by court for the extend to which the Secretary and Under Secretary acted ultra vires regulations 65 and 66.

5. The magistrate decided correctly that the material presented by the police, when applying for the search warrants were reasonably sufficient to found the belief or suspicion that the articles of belonging stated in the warrants were at the dwellings of the plaintiffs; he correctly signed the search warrants, accordingly section 101 of the Criminal Procedure Code was not contravened.

6. The search warrants by which the police searched the dwellings of the plaintiffs were issued under the authority of section 101 of the Criminal Procedure Code. The searches at the dwellings were therefore done under the authority of the Criminal Procedure Code for the purpose of authorising entry upon premises occupied by the plaintiffs in pursuance of investigation into criminal offence. The searches that the police conducted at the dwellings of the -plaintiffs were not contravention of section 9 of the Constitution. The plaintiffs' constitutional rights were not contravened.

Mr Samuel for Attorney General, did not ask for costs in the event that the plaintiffs lose their case. I take it that it was a deliberate decision by the Attorney General not to ask for costs. I make no order for costs in favour of the Attorney General. The plaintiffs on the other hand asked for costs. They won only a very small part of their case, as compared to the part they lost to the Attorney General. It is just not to make any order for costs in the circumstances.

There are two aspects of this case and one observation which the court wishes to comment on. First this is a case which involved suspension of up to 5 public officers at the same time. It is said in affidavit filed in court, to arise from handling of public funds, described to be in the proportion of , "a network," and is said to be a "scandal." One would expect that technocrats said to have formed a task force would consult the Attorney General on most aspects of their actions so as to be well advised about the legal implications. It does not appear Attorney General was consulted, if so, certainly not sufficiently. The second aspect is that in the criminal investigation, the Director of Public Prosecution might have not been consulted about the question of search warrant. Certainly the grammar in the warrants and information paper cannot be from the DPP's office. In a case described as a "network" and "scandal", the DPP's advice about investigation seems to be a necessity. The risk of ignoring professional advice is that one risks overstepping bounds and being sued. In criminal cases the police risks, in addition the discretion of the court to exclude admissible evidence because of improper conduct. Certainly in this case a number of the contentious issues might have not arisen had the Attorney General and the Director of Public Prosecution been sufficiently consulted. The observation is that this case was about whether the suspension of the five accountants was lawful or not and whether the search warrants by which houses were searched were properly issued. Issue could arise from that, but did not arise or was not raised. That issue is the requirement that once articles have been seized lawfully in a lawful search, the articles must be taken to the magistrate's court which issued the warrants for appropriate order of the magistrate, as required by S:101 of CPC, and further that the articles must not be retained by the police for more than required in the investigation or for use in evidence. I hope the police is alert to the requirements, if they are not, it will be prudent to seek prompt advice from the Director of Public Prosecution. The plaintiffs are entitled to know from time to time, why it will still be necessary for the police to continue to retain the articles seized from them, and when they may be used as evidence in court. They may even challenge the continued retention by the police, of their belonging if no criminal charge or good reasons are given for the continued retention of the belongings.

Delivered in Court and, Dated this Monday the 16th day of September 1996,

At Honiara.

SAM LUNGOLE-AWICH
JUDGE