1. That I am a member of
the Royal Solomon Islands Police Sece Service currently attached to the Criminal
Investigation
Department, Police Headquarters.
2. That I intend to
pursue this warrant fant for endorsement under section 101 of the Criminal
Procedure Code.
3. That the application
was based on the fact that the Solomon Imon Islands National Provident Fund had
inferred refusal
for the access of certain documents, records and
informations which are relevant to the unprocedural establishment of the
Solomons Mutual Insurance Ltd.
/b>
<4. That offence(s) might
be committed uned under the Solomon Islands Penal Code (Cap.
5).
5. That all matters
produced herein are true and correct to the best of my knowledge.
There was also an Information
(Form 14 and Exhibit “LT2”) upon which the Searcrant (Form 15 and
Exh Exhibit “LT4”) was
based. The Information is as follows: -
INFORMATIONROUND
SEARCH WARRANT
(Criminal Procedure Code
Section 101)
IN THE MAGISTRATE’S COURT
FOR THE HONIARA DISTRICT SOLOMON ISLANDS
(a) Detective Sergeant
Jack Balaga (546) of (b) CID/PHQ on his oath complains that the
establishment of the Solomons Mutual
Insurance Ltd was unprocedural
according to the respective policy and that relevant documents, records and
informations
purported to be related to the formulation of the said Solomons
Mutual Insurance were inferred refusal by the National Provident
Fund at
Honiara by some person(s) or the management and that he has reasonable cause
to suspect and does suspect that
the said documents, records and
informations were confined and concealed at the National Provident Fund
occupied by some
person(s) or the management of the said National Provident
Fund.
For he the said Detective
Sergeant Jack Balaga (546s that it is evident that that the following
documents, records and
informations were refused by the National Provident
Fund during the course of enquiry.
1. Memorandum o Understanding dated 18th 18th February 1997 counter signed by the Solomon Islands
National Provident Fund
Board, Workers Mutual Insurance (PNG) PTY Ltd and
Mr. Sivakumaran.
2. Summary of
the
premium payments for the months ended 31st July to 31st
December 1998.
as class="MsoNormal" style="text-indent: -6.55pt; margin-left: 42.55pt; margin-top: 1; margin-bottom: 1">
4. Record of balances of
all the members of Solomon Islands National Provident Fund as on 7th July
1997.
p clas class="MsoNormal" style="text-indent: -13.65pt; margin-left: 49.65pt; margin-top: 1; margin-bottom: 1">
5. Record of the affected
members at work of Solomoolomon Island National Provident Fund as on 7th July
1997.
6. The signed contracts
of employment wint with Solomon Islands National Provident Fund Board in respect
of Messrs: Leslie
Teama and James Apaniai from 1st May 1997 to 31st December
1998.
This Information was unsign The Search Warrant was issued by Magistrate D. Seneviratne on 1st February
1999.1999. The Search
Warrant was never executed. It was stayed. I made the
staying order on 3rd February, 1999. The Search Warrant is as follows:
-
class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
SEARCH WARRANT
(Criminal Procedure Code
Section 101)
IN THE MAGISTRATE’S COURT
FOR THE HONIARA DISTRICT SOLOMON ISLANDS
To all Police Officers
within the Solomon Islands
“(a) Detective Sergeant
Jack Balaga (546) of (b) CID/PHQD/PHQ has this day made an oath before the court
that it is evident
that the following documents, records and informations
were refused by the National Provident Fund during the course of enquiry.
1. Memorand
Understanding dated ated 18th February 1997 counter signed by the Solomon Islands
National Provident Fund
Board, Workers Mutual Insurance (PNG) PTY Ltd and
Mr. Sivakumaran.
2. Summary of the premium
payments fots for the months ended 31st July to 31st December
1998.
3. Letters/Invoices by the General Manager of thef the Solomons Mutual Insurance Ltd commencing from
period 1st July 1997 to
31st December 1998 to the General Manager of Solomon
Islands National Provident Fund to effect the premium payments for the
Employees Comprehensive Benefits Group Assurance Policy.
clas class="MsoNormal" style="text-indent: -7.1pt; margin-left: 42.55pt; margin-top: 1; margin-bottom: 1">
4. Record of balances of
all the members of Solomon Isln Islands National Provident Fund as on 7th July
1997.
5. Record of the affected
members at work of k of Solomon Island National Provident Fund as on 7th July
1997.
6. The sicontracts
of employmeloyment with Solomon Islands National Provident Fund Board in respect
of Messrs: Leslie
Teama and James Apaniai from 1st May 1997 to 31st December
1998.
And it appearthis
Court that (according to reasonable suspicion) ton) the said documents, records
and informations 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) Day to enter the said (e) SINPF Office Building(s) if
necessary by force, and there diligently
to search for the said documents,
records and informations, and if the same or any thereof are found on
search, to bring
the documents, records and informations before this Court,
to be dealt with according to law.”
Dated the 1st day of
February 1998
.................................................
Magistrate/Justice of the Peace
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Both the Inforn and the
Search Warrant are defective somewhat in that they both refer to the
“National Provident
Fund”, a non - existent entity in law. The correct
reference should be “the Solomon Islands National Provident Fund Board”
(SINPFB).
This defect is however conceded by Mr. Sullivan, Counsel for the Plaintiff,
as not being fatal to the validity
of the Search Warrant. Mr Sullivan says
however that the errors in the rest of the Search Warrant are incapable of
being
corrected. They are, he says, fatal errors. He attacks the Search
Warrant on two fronts. First, he says there is an error of
law on the face
of the record. Second, he says, there is therefore want of jurisdiction as a
result of these errors of
law.
The Record
Mr. Sullivan says that in this
instant case, the record must necessarily be the Search Warrant, the three
criminal charges,
the affidavit of Sergeant Balaga and the Information there
being no written reasons from the Magistrate.
<
The errors, he says on the face
of the record are as follows:-
1. the information was not
signed;
/p>
2. the affidavit by Sergeant
Balaga nor the information specifies any criminal inal offence apart from vaguely
saying
that offences might have been committed;
3. the commission of an offence
nor reasonable suse suspicion that an offence has been committed can be linked
with the
documents being sought in the Search Warrant;
4. the information nor the
affidavit says anything about the listed documents ents being necessary to the
conduct of an
investigation into the commission of an offence although
reference is made to the unprocedural establishment of the Solomon
Islands
Mutual Insurance Limited (SMI).
5. the affidavit nor the
information does specify any particular buildinilding in which it is believed
documents being
sought are kept.
He therefore says that this
being the case, there was no proof on oath upon which Mr. Deviratne,
the Magistrgistrate,
could have been satisfied as to the fact or reasonable
suspicion that the documents being sought are things by or in respect
of
which an offence has been committed nor the necessity of such documents to
any investigation nor that such documents
were in any particular building or
place. Also, he says, the Search Warrant, on its face, does not specify any
particular
building but merely refers to “SINPF Office Building(s)”. The
next point he makes is that the documents sought by the Search
Warrant, at
least on its face, specifies documents which can only be obtained by
committing an offence under section
39 as read with section 40 of the
Solomon Islands National Provident Fund Act (Cap. 109). These sections are
as follows:-
39. Notwithstanding the
provisionany other Act, the Board shrd shall not be required to divulge,
save to the member, or
if the member is dead, to his nominee, any matter
relating to the amount standing to the credit of a member of the Fund nor
any particulars of such member or of any employer save with the consent of
such member or employer:
/b>
40. (1) If any person -
clas class="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(a) ............
(i) ............
(ii) .................
(b) ............
(c) obstructs any officer
or servant of the Board in the discharge of his
functions
as such;
(d) .................<
(e) being or ever having
been a member, officer, servant or agent of the Board directly or indirectly
communicates or
reveals to any person any matter relating to the business of
the Board which shall have become known to him in his capacity
as member,
officer, servant or agent, except as may be required for the due discharge
of his duties as such member officer,
servant or agent or as may be
permitted by the Board;
p clas class="MsoNormal" style="text-indent: 1.1pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
clas class="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(g) .............
(h) .............
las class="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
he shall be guilty of an
offence and liable tone of five hundred dollars lars or to imprisonment for
one year, or to both
such fine and such imprisonment.
He fore makes the point
that section 101 of the Criminal Procedure Code Act (Cap. 7) mus) must be read
subject to section 39 of the Solomon Islands National Provident Fund Act. In
other words, section 39 would obviously prevail over section 101 of the
Criminal Procedure Code Act as the enactment of sections 39 and 40 of the
Solomon Islands National Provident Fund Act were subsequent to the enactment
of section 101 of the Criminal Procedure Code Act.
Mr Sullivan then points
that the Search Warrant also offends against a number of other general
principlnciples applicable
to Search Warrants. They are, he says, particularity,
uncertainty or ambiguity, particularity of things to be seized and
particularity of place. That is to say, the Search Warrant must specify the
things to be searched for, the offence alleged
to have been committed or
suspected to have been committed, and the place from which the things
searched for are to be
obtained. Also, he says, the Search Warrant must be
certain in its terms from the view point of the officer executing it and
the
person against whom it is issued. Lastly, he says, the offence alleged to
have been committed or is suspected to
have been committed must be specified
so as to disclose the connection between it and the things being sought as
evidence
of it.
Power to issue Search Warrant
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The power to issue a Search
Warrant for the purpose of seizure of propertevidence is contained in
in
section 101 of
the Criminal Procedure Code Act. This section states:
.
Again,ullivan dissects
section 101 in these terms. First, there must be proof on oath. Seco Second, that
proof on oath
must show either in fact or according to a reasonable
suspicion that a thing by or in respect of which an offence has been
committed or which is necessary for an investigation into an offence is in a
building or place. Third, the Search Warrant
must name or describe the
building or place to be searched. He says the power of the Magistrate is
discretionary under
this section after consideration of the relevant matters
and disregarding the irrelevant matters. From the outset I must say
that it
is the practical application of criminal law provisions such as section 101
above that has caused a lot of problems
to police officers. The need for the
existence of such provisions elsewhere in the common law world including
Solomon
Islands is not being questioned. However, there is still the
difficulty of police officers doing things correctly under section
101 at
all times so as to avoid being challenged in a court of law. This difficulty
was duly acknowledged by D. A. Thomas
in his article entitled, The Law
of Search and Seizure: further ground for rationalization, published
in the Criminal Law Review, January 1967. At page 3 he said:
The general pattern of
the law of search and seizure reflects that of the law of a of arrest; instead of
a body of clear
general principle the law consists of a mass of statutory
provisions, to which judicial decisions add confusion rather than
clarity.
As a consequence the police officer is frequently left without power to take
necessary and reasonable steps
for the investigation even of serious
offences, and the legality of a course of action is often difficult to
ascertain
in advance. As in the case of arrest, the obscurity and complexity
of the law are as harmful to the freedom of the individual
as to efficient
investigation, as the citizen is seldom able to know his rights and thus to
defend them.
Again at pages 6 - 7, he said:
Clearly, the potential
weakness of the procedure is that the magistrate cannot probe very deeply
into the grounds for
the application without risking the frustration of the
investigation, either by delay or disclosure of information. The procedure
can only be effective in terms of enforcement if warrants are granted
regularly on the basis of the officer's sworn information
without further
inquiry. However, the requirement that the officer should set out the
grounds on which he believes that
a search is justified, and the possibility
of questioning on these grounds, even though this seldom happens in
practice,
will discourage wholly unjustifiable applications. In addition it
should be remembered that the law does not require an onerous
evidential
test to be satisfied - in most cases a warrant may be issued on reasonable
ground for suspicion arid for the
magistrate to require the officer to
produce much in the way of evidence would be to set a higher standard than
the law
requires. Apart from the tendency of the warrant procedure to
discourage searches of a wholly speculative nature it clearly
prevents the
abuse of powers of search in certain other ways which could occur.
Harassment of a particular individual
by frequent searching of his premises,
for instance, is unlikely to happen where a magistrate must issue a prior
authorisation.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
I do not know hoh easier
for the Police it would be if section 101 above were to be amended by
Parliament. That is
not for me to say. It is a matter for Parliament for
another time. I must however return to the facts of this case and examine
in
detail the alleged error of law on the face of the record. I must first
consider the three charges laid against the
Plaintiff through Mr. Leslie
Teama, the General Manager of the Plaintiff on 22nd January, 1999. These
charges were brought
under section 76 of the Criminal Procedure Code Act.
This section states:
(2)   peryon who
believes from a reasonable and probable cause that an offence has been
committed by
any person may make a complaint thereof to a Magistrate having
jurison toe sucson to be brbe broughtought befo before him.
(3) &nbssp; A complcomplaint may
be made orae orally or in writing, but, if made orally, shall be reduced to
writing
by the Magistrate, and, in either case, shall be signed by file
complainant and the Magist
<
Provided that where
proceedings are instituted by a police or other public officer acting in the
course of his duty, a
formal charge duly signed by such officer may be
presented to the Magistrate and shall, for the purposes of this Code, be
deemed to be a complaint.
(4) The Magistrate,
upon reon receiving any such complaint, shall, unless such complaint has been
laid in the form
of a formal charge under the preceding subsection, draw up
or cause torawn d shagn a formal chargcharge cone containitaining
a
statement of the offence with which the accused is charged.
pan lang="EN-GB" style="font-size: 12.0pt">(5) &nbssp; Wnen ausaccusaccuseccused
person who has been arrested without a warrant
is brought before a
Magistrate, a formal charge, containing a statement of the offence with
whichaccus charshall ball
be sige signed aned and presented by the police
officer preferring the charge.
Subsection 2 is the ret
authority for laying a complaint against a person who from reasonable and
pro probable cause
is believed to have committed an offence. In my view, there
is no evidence of the belief from a reasonable and probable cause
that the
Plaintiff had committed an offence and therefore a Search Warrant was
necessary in the investigation of the
offence committed. If no offence had
in fact been committed by the Plaintiff, then the need for a search warrant
would
not have been necessary in the first place. In this jurisdiction, the
application of section 76 of the Criminal Procedure Code Act had been
discussed at some length by the Solomon Islands Court of Appeal in
Wolfgang Meiners v Richard Anthony Barber and William Douglas McCluskey
(Civil Appeal Nos. 3 and 8 of 1994 unreported). In that case,
the appellant had lodged a private complaint under section 76 of the
Criminal Procedure Code Act against the respondents alleging conspiracy to
commit a felony contrary to section 376 (now 383) of the Penal Code Act
(Cap. 26). In dismissing the appeal, P. D. Connolly, the President at pages
23 said:
Criminal proceedings may,
by virtue of s.76(1) of the Criminal Procedure Code, be inse instituted by a
complaint to a Magistrate which may be made by “any person who believes from
a reasonable and
probable cause that an offence has been committed”:
s.76(2). The complaint may be made orally or in writing but if made orally
it shall be reduced to writing by the Magistrate and in either case it shall
be signed by the complainant and the Magistrate:
s.76(3). This requirement
is subject to a provision in the case of police or public officers which is
immaterial for
present purposes. The complaints comply with s.76(3). Finally
the Magistrate is to draw up or cause to be drawn up and sign
a formal
charge. This was done.
The case is plainly one
of a complaint in writing, this being ting the affidavit sworn by the appellant
on 17 June. There
is no suggestion that when he was questioned by the Chief
Magistrate about the facts, any facts were elicited which are not
contained
in the affidavit and it must be assumed that the Chief Magistrate merely
asked questions to clarify his own
understanding of the complaint. Indeed if
additional facts had been elicited it would have been the duty of the Chief
Magistrate to reduce them to writing in order to comply with s.76(3).
<
On 30 September 1994 the
charges were quashed on certiorari by Muria Cria C.J. together with warrants of
arrest which
had issued in consequence. Thereupon the complainant on 3
October 1994 appealed to this Court against the order of Muria C.
J.
quashing the Complaints and warrants. The appeal raises the simple question
whether the appellant “believed” his allegation
“from a reasonable and
probable cause” within the meaning of s.76(2). “Reasonable and probable
cause” must be based on
the information known to the complainant at the time
of the prosecution: Commonwealth Life Assurance Society Ltd. v Smith [1938] HCA 2; (1938)
59 C.L.R. 527 at p.542. What is required is reasonable grounds for honest
belief of the existence of circumstances which, assuming them to
be true,
would lead to a probability of guilt: Hicks v. Faulkner (1881) 8 Q.B.D. 167
at pp. 171 - 2 per Hawkins J. I have shortened that classical statement of
principle somewhat but it will suffice for
present purposes.
Again, at pages 7 - said:
<
On 30 September 1994
Muria C.J. granted certiorari to quash the charges against each of the
respondents Barber and W.D.
McCluskey. As has been seen the complaint
discloses absolutely nothing which was within the knowledge of the
complainant
on 17 June 1994 to engender the slightest suspicion that an
agreement had been made between 1 January and 27 June 1991 between
Barber
and McCluskey on the one hand and the other parties to the alleged
conspiracy on the other of any sort, let alone
to steal from Reef Pacific.
The fact that Barber consented to be appointed obviously suggests that he
was approached
by or on behalf of Bayley, but that fact could not engender
the necessary suspicion in the mind of any reasonable man. It is
essential
for the appointment of a receiver that his consent be obtained. Again,
McCluskey and Barber are associated
in the firm of Price Waterhouse but that
fact is incapable by itself of providing reasonable and probable cause. The
initiating document in this matter is the affidavit of complaint. It fails
to disclose any cause, let alone a reasonable and
probable cause, for the
belief of the complainant that Barber or W.B. McCluskey was party to a
conspiracy to steal from
Reef Pacific by fraudulently inducing the Chief
Justice to appoint Barber as receiver of the company. The affidavit
disclosed
on its face non - compliance with the requirements of s.76(2). The
formal charges should never have been drawn up and signed
and they and the
warrants were rightly quashed on certiorari by Muria C.J.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
A similar stance on the
interpretation of section 76 of the Criminal Proc Code Act was also
ta taken by the Solomon
Islands Court of Appeal in Joan Meiners v William
Douglas McCluskey and Graham Miller (Civil Appeal No. 3 of 1994
unreported). At page 2, Williams J, A. said:
Given the provisions of
s.76 of the Criminal Procedure Code and thed the authorities as to the
interpretation of such a provision the magistrate had to be satisfied the
complaint
disclosed a belief in a reasonable and probable cause that an
offence against s. 179 had been committed.
/p>
The que agitated
before Palmer J. and again in this court wart was whether a person was an
“undischarged bankrupt” for
purposes of that section if the bankruptcy was
the result of proceedings taken outside of the Solomon Islands.
The answer to that
question is primarily dependant upon the proper construction of s. 179.
Another relevant authority on
this point is Williams Douglas McCluskey v The Attorney General and
Others (Civil Case No. 243 of 1993 (unreported). In that case, the
respondent had lodged a private complaint against the applicant under
section 76 of the Criminal Procedure Code Act. In quashing the charge
against the applicant, Palmer J, at page one said:
The standard of belief
required must be based on reasonable grounere suspicion or conjecturecture
is not sufficient.
As I have said, there is
nothing on the face of the recordhis case to suggest any basy basis upon
which a complaint could
be laid against the Plaintiff under section 76 of
the Criminal Procedure Code Act. There are no “reasonable grounds for honest
belief of the existence of circumstances which, assuming them to be true,
would lead to a probability of guilt”, to use the words of the Court of
Appeal in Wolfgang Meiners v Richard Anthony Barber and William
Douglas McCluskey cited above. The fact that the Plaintiff might
have refused access to the Police of certain documents in an inquiry being
carried out by the Police into the alleged unprocedural establishment of SMI
cannot possibly be regarded as a circumstance
constituting a reasonable and
probable cause for believing that the Plaintiff had committed a criminal
offence. It was
just not on to say the least. In my view, the Search Warrant
is bad in law because its foundation or basis is also bad in law.
However,
even if I am wrong in holding that a Search Warrant cannot be founded on
nothing and therefore is bad in law,
I would still hold that the Search
Warrant is bad in law on the face of the record. This then brings me to the
consideration
of the Information (Exhibit “LT4”) by Sergeant Balaga, his
supporting affidavit (Exhibit “LT3” and the Search Warrant (Exhibit
“LT 2”)
Tfidavit (Exhibit “LT3”)
is, I think, the oath to the Magistrate as required by sectioection 101 of the
Criminal Procedure Code Act. It simply says that the Plaintiff had refused
to give access to certain documents, records and information relevant to
the
unprocedural establishment of SMI. It further says that offence(s) might be
committed under the Penal Code Act (Cap. 26). It says nothing more. The
Information by Sergeant Balaga was not signed and dated. It appears to be
based
upon the oath by affidavit sworn by Sergeant Balaga. It sets out a
list of the documents referred to in Sergeant Balaga’s affidavit.
It simply
expands upon paragraph 3 of the Sergeant Balaga’s affidavit. Its legal
status is not clear. It may be regarded
as the information accompanying
Sergeant Balaga’s affidavit and therefore part of the information on oath.
It also appears
to be incomplete because it bears no signature and date. I
take it that it can be regarded as an attachment to Sergeant Balaga’s
affidavit because there is no statutory requirement for it in section 101 of
the Criminal Procedure Code Act. The combined effect of these two documents
is therefore that they do not disclose the commission of any offence at all
by the Plaintiff. In my view, the oath is defective for this reason. In my
view, section 101 of the Criminal Procedure Code Act can only be invoked
where the Magistrate or a justice of the peace is satisfied that in fact a
thing, by or in respect
of which an offence has been committed is in any
building etc or according to reasonable suspicion, anything which is
necessary to the conduct of an investigation into any offence is in any
building etc. In other words, a Search Warrant may
be issued where for
example a murder weapon is known as a fact to be in a building etc or where
it is reasonably suspected
that a murder weapon is in a building etc. This
procedure becomes necessary only where in this example, the murder has
already been committed and the murder weapon is relevant evidence in the
prosecution of the accused. In each case, a Search
Warrant is a must to
enter the relevant premises. The reason being that every householder must be
protected against unauthorised
entry by others. This point was illustrated
very well by D.G.T. Williams in his article, Search and Seizure: A
Comment published in the Criminal Law Review, January
1967, At pages 20 - 21 he said:
From time to time the
police to stiffer the rebukes of judges. During the Great Train Roin Robbery
trial in early 1964,
for instance, the trial judge expressed his disapproval
when he heard that the house of one of the accused men had been searched
without a search warrant. In Liverpool in 1923 a police officer, acting
without a search warrant, searched the rooms
of a woman who had been
arrested for theft, and articles of apparel found there were made the
subject of a further charge
of unlawful possession. The stipendiary
magistrate was told that this was normal practice and that the police were
sometimes
compelled to do technically illegal acts in order to protect the
public. He was unconvinced, however, and felt that there should
be a warrant
or written authorisation from the Chief Constable - whether or not someone
had formally given permission
to search. “There are so many rascals going
about the world pretending to be what they are not” he said, “and if no
authority
is required there is the possibility of their gaining admittance
to houses by posing as detectives or gas inspectors. A warrant
would give
protection to the householder”.
In my view, section 101 of the
Criminal Procedode Act can be invoked only after the commission of an
offence has
occurred. It cannot be used to fish for evidence. As to the
Search Warrant itself (Exhibit “LT2”), it contains exactly the
same
information contained in the Information provided by Sergeant Balaga based
upon his affidavit (Exhibit “LT3”). It
must be necessarily defective also
for the same reason that it also discloses no offence having been committed
by the
Plaintiff plus its failure to particularise the things to be searched
for and the premises to be searched. It is as hollow
as the Information on
oath. It is also bad in law on the face of the record.
In this jurisdiction, the case
that concerns the validity of a Search Warrant isi>Maleli Zalao v The
Attorney General
and the Commissioner of Police (Civil Appeal No. 9 of
1996, unreported). In that case, a Search Warrant was issued by a
Magistrate authorising search for property in possession of the appellant.
In quashing the Search Warrant, the Court at pages 6 - 8 said:
The principal point
rgued by counsel for the appellant was that no offence know 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.
Given the terms of this
Information the magistrate needed to be satisfiedsfied 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:
There is nothing in the
inform to establish why Sgt. Taro Taro had any suspicion in relation to
while 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 nothinore
the magistrate which would have entitled him to c 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 intercessions could
have placed before the magistrate.”
The respondents can get
no comfort from that part of s.101 which spea 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.
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.
By comparison, this case is far
orse than the Maleli Zalao’s case above in that at l at least in
Maleli Zalao’s case there was reference to “goods obtained by fraudulent
means from Solomon Islands Government” in broad terms but fell short
of
explaining why there was suspicion regarding vehicle A3617 and why there was
suspicion that the appellant had obtained
goods fraudulently from the
Government of Solomon Islands. In other words, the Information on oath
before the Magistrate
was insufficient to satisfy the Magistrate that there
was reasonable cause to suspect that the appellant had committed an offence
under the law of Solomon Islands. Whereas in this case, the only link to the
Plaintiff was the ambiguous allegation that
it had refused access to certain
documents in its possession regarding the alleged unprocedural establishment
of SMI.
There was nothing else before the Magistrate to satisfy him that
there was reasonable suspicion that an offence had been committed
and that
the documents associated with the commission of that offence were in the
possession of the Plaintiff. There
is therefore an error of law on the face
of the record. The conclusion that I have reached in this case is therefore
sufficient to dispose of this case without having to say anymore. This being
the case, I need not say anymore on the effect
of sections 39 and 40 of the
Solomon Islands National Provident Fund Act nor on the question of
severability. In my view, the Magistrate did not have the jurisdiction to
issue the Search Warrant
issued on let February, 1999. The Search Warrant is
null and void. The Search Warrant is therefore removed to this Court and
quashed accordingly. The Order I made on 3rd February 1999 to stay the
execution of the Search Warrant is automatically
cancelled by my granting of
the order of certiorari quashing it.
Parties will pay their own
costs.
Dated this 23rd day of March
1999
At the High Court
Honiara
F. O. Kabui
Judge
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