Tausinga v Attorney General [2007] SBHC 9; HCSI-CC 432 of 2006 (15 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 432 of 2006

HONOURABLE JOB D. TAUSINGA

-V-

ATTORNEY GENERAL (AS REPRESENTATIVE OF THE CENTRAL MAGISTRATE’S COURT AND THE COMMISSIONER OF POLICE)

(Naqiolevu, J)

Date of Hearing: 1st, 8th, 12th December 2006
Date of Judgment: 15th March 2007

For Applicant: Mr. Ken Averre
For Respondent: Mrs. Nuatali Tongarutu

JUDGMENT

Naqiolevu J: This is an application pursuant to ORDER 58 of the High Court (Civil Procedure) Rule 1964 by the Honourable Job D. Tausinga who was the Acting Prime Minister at the time, seeking declaration that a Search Warrant executed at the office of the Prime Minister on the 20th of October 2006 was unlawful and therefore invalid.

FACTS

1. On the 20th of October 2006 at about 3pm, a Search Warrant was executed at the office of the Prime Minister and Cabinet and a facsimile machine was removed from the office.

2. The search was conducted upon a Search Warrant obtained from Central Magistrates Court on the 20th of October 2006.

3. The applicant on the 20th of October had assumed duties of Prime Minister by virtue of Section 38 of the Constitution.

4. The subject warrant was addressed to the applicant as the holder of the office at the time.

5. By originating summons the applicant seek declaration as to the validity of the Search Warrant on the following ground:

(i) the Warrant was formally invalid on its face,

(ii) the factual pre-condition for its issue were not fulfilled, and

(iii) that the issuing authority did not give the matter proper consideration.

6. The applicant further seek a declaration that the subsequent execution of the Search Warrant and entry into the Office of the Prime Minister and Cabinet was unlawful.

LAW

7. The law relating to the issue of a Search Warrant is provided for in several pieces of legislation.

(a) The Police ACT empowers police officers to apply for a Search Warrant before a Magistrate.

(b) The Criminal Procedure CODE provides the statutory framework for the application and issue of Search Warrant, Section 100 – 105.

(c) Section 9 of the Constitution of the Solomon Islands.

The Supreme Law of the country provides a fundamental right to protection against unlawful search for all citizens, subject to certain exceptions.

THE ISSUE

8. The issue of determination by the Court:

(i) Is the warrant executed at the Office of the Prime Minister and Cabinet on the 20th of October invalid as the pre-condition for the issue were not fulfilled as required by law.

(ii) As a result of the invalid warrant, was the execution of the search and entry into the Office of the Prime Minister unlawful.

9. ISSUE OF SEARCH WARRANT

The issuance of a warrant is subject to the Provision of Section 100 – 105 of the Criminal and Procedure CODE.

Section 101

"Where it is proved on Oath to a Magistrate or 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 the investigation into any offence is in the building, ship, vehicle etc, or place"

The terms of the sections are:-

where it is proved on Oath to a Magistrate or JP that,

(a) in fact, or

(b) according to reasonable suspicion, anything upon; (by) – or in respect of which an offence has been committed, or

(c) anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place.

(d) The Magistrate or JP may by warrant authorize a police officer or other persons therein named to search the building – etc which shall be named or described in the warrant.

10. The procedure required therefore before the issue of the Search Warrant, is proof on oath to a Magistrate of JP, that in fact, or according to reasonable suspicion.

The Magistrate or the JP must before issue of a search warrant be reasonably satisfied that 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 etc.

The Magistrate or JP may, by warrant authorize a police officer or other person therein named to search the building.

APPLICANT’S SUBMISSION

11. The applicant claimed the warrant issued by the Magistrate is invalid as it is directed to All Police Officers. This warrant purports to empower any police officer to execute it, whereas the Section state the person/persons must be named therein: Section 101 required that the name of the officer executing the warrant must be stated.

12. Counsel claim the warrant is invalid on its face and it follows that anyone who in fact executed the warrant and who was not named acted without lawful authority and therefore committed trespass. In R-v-Applebee[1], Higgins J stated

"..........Constable Young, had the search been valid, was entitled to enter and search in accordance with it. He was the warrant holder. There were other officers named in the warrant who were similarly so authorized. The officers were entitled by the warrant to avail themselves of "such assistance as is necessary and reasonable"......however, s10(1) does not authorize the named officers to delegate the authority to enter and/or the authority to sieze items to any other officer not so named........In this case, authority was wrongly delegated by the warrant holder to Constable Kossatz, an officer who was not named in the warrant, to take an active part in the search as if he was a person named in the warrant. He recovered and seized the Nintendo system. That seizure of those goods was, therefore, unlawful for that additional reason."

FACTUAL PRECONDITIONS FOR ITS ISSUE NOT FULFILLED

13. The applicant further submit that the information provided to the Magistrate was defective and insufficient. This is clear from the document

"information to Ground Search Warrant" sworn before the Magistrate on the 20th of October 2006. The offence was clearly stated and the details of the property as stated in the information are:-

"One facsimile machine that represents the Prime Minister’s Office and sent a facsimile to the Solomon Islands High Commissioner in Port Moresby on the 10th of October 2006 at 0242 hours and has telephone/fax no. 006753234334 or similar".

14. Furthermore, the detail as submitted by the applicant is not clear description of the property and that the telephone number referred to is not a Solomon Islands telephone or fax number.

15. The applicant further claim that there was no indication anywhere in the information as to why it was reasonably suspected that the property sought was necessary in the investigation of an offence.

16. PUBLIC INTEREST IMMUNITY

Counsel for the applicant further submit the issue of the Office of the Prime Minister ought to be given some consideration by the police when seeking to search the office. The public interest concerns the interest of Solomon Islands and at one extreme will lie, cabinet papers foreign office dispatches, high level inter departmental minutes and correspondences pertaining to the general administration of national security which will usually attract a class claim for privilege.

Refer to Conway v Rimmer([2]) The issue in this case is not whether the document or machine were subject to such warrant but that prior to seeking the said machine, the issue ought properly to have been considered, and a protocol similar to that attaching to legal professional privilege employed.

RESPONDENT SUBMISSION

17. The respondent in response submit Section 101 of the Criminal Procedure CODE allows any person, usually the police to apply to any Magistrate for a Search Warrant. The person issuing the warrant must be satisfied that there’s a reasonable ground for suspecting that the stated conditions are met.

18. The prospective search must relate to a particular place and to any offence. The applicant’s affidavit must satisfy the issue that the thing or things to be searched and seized for, are those upon which the offence has been or is suspected of, having been committed.

19. The term, Counsel claims of more importance is, "or anything which is necessary to the conduct of an investigation into any offence, is in, any building, ship, vehicle, etc.

REASONABLE SUSPICION

20. Counsel further submit that Section 91 authorizes a search warrant to be directed generally to all police officers. In this case the term "TO ALL POLICE OFFICERS within Solomon Islands" is not a defect on the warrant, nor is it as submitted by the Applicant, ultra vires. On the contrary the law is clear. Section 105 purport to extend the provisions of Section 89 (1) & (3) 91 and 94 into search warrants.

ISSUING AUTHORITY GIVING PROPER CONSIDERATION

21. The issue of the Magistrate issuing the warrant not giving proper consideration is important. Clearly the Magistrate must address her mind and must be reasonably satisfied on the evidence on oath before issuing the warrant. In this regard after considering the affidavit of the police officer seeking the issue of the warrant and the accompanying information to Ground a Search. The issuing officer may issue the Warrant.

22. I am of the view that the Magistrate had issued the warrant after proper consideration of the matter put before her by the officer concerned. The Magistrate is not required to be provided with a precise statement required by an individual, all she is required, is reasonable suspicion that an offence has been committed. Maleli ([3]) Zalao v Attorney General

The Court of Appeal said,

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

23. In the present case INFORMATION TO GROUND the Search Warrant marked as exhibit EL1 by Police Advisor Jonathan Lee Ersch, as diposed in the affidavit of the Magistrate Esther Lelapitu, swore on oath that a Peter Shanel has committed the offences of Attempt to Pervert the Course of Justice, Making False Report of Commission of an Offence and Give False Information to a Public Servant. Further the affidavit of the Magistrate and the exhibits attached, sworn on the 30th of November 2006 leave no doubt as to her reaching the conclusion of a reasonable suspicion.

24. Furthermore the officer Jonathan Ersch swore on oath that there was reasonable cause to suspect that the 2 Exemption ORDERS dated 8th of October 2006 in the name of a Julian Moti, the subject of the criminal investigation, was sent through a facsimile machine in the Prime Minister’s Office to the Solomon Islands High Commission in Port Moresby on the 10th of October 2006 at 0.242 hours.

I am of the view that the offence described is clear and unambiguous and sufficient particularity in the set of documents presented before the Magistrate to arrive at the conclusion she reached.

25. IS THE WARRANT VALIDLY ISSUED, IF NOT WAS THE SEARCH UNLAWFUL

I am of the opinion that in order for this warrant to be formally issued, it must comply with the requirement of the Law.

26. I accept this is clear in relation to the provision of Section 101 of the Criminal Procedure Code.

27. However whilst the provisions of Section 101 of the Criminal Procedures Code provide the procedure for the execution of a Search Warrant, the matter does not end there, as Sections 105 of the code extends the provision of Section 101.

Section 105

"The provisions of Section 89 (1) and (3) and 91 and 94 shall so far as may be, apply to all Search Warrants issued under Section 101"

28. Cleary Section 105 is an extension to Section 101 and must be interpreted as such. The section provide some practical application for circumstances that may arise when only a named police officer is specifically authorized to execute the search warrant.

It is for the precise purpose that the legislature has given the extension of the powers provided under Section 101, and in my view the reason that the Chief Justice approved the rules under Section 76 of the Magistrate Court Act setting out Form 15 as the appropriate Form for the issue of all Search Warrants. The necessary changes being made, in order to give the police officer or officers at the appropriate time the authority to search a premises.

29. I am of the view that a Search Warrant may authorize all police officers to conduct a search in a premises as prescribed under the provision of Section 101.

30. The Court having carefully considered the application and the submission in support and the authority cited. The court having further considered the submission in response on behalf of the respondents is of the opinion that it is not necessary to look beyond the law as exist in this jurisdiction.

31. I consider in all circumstances that the search warrant executed in the office of the Prime Minister on the 20th of October 2006 was validly issued and the search was conducted lawfully.

32. The court notwithstanding the finding that the search in the Prime Minister’s Office is lawful and whilst I accept the Office of the Prime Minister and Cabinet is not subject to immunity, neither is the Prime Minister or anyone holding that office, nor any ordinary citizen. I consider care must be taken to ensure whether prior to a search warrant being executed an important consideration must be the office itself. In this regard I agree with Counsel for the applicant that a protocol should be put in place similar to those accorded the legal profession, when it involve such an important office.

IN ALL CIRCUMSTANCES THE APPLICATION IS HEREBY REFUSED.

THE COURT

---

^[1] 79 A Crim R554
^[2] [1968] UKHL 2; (1968) AC. 910, 993 per Lord Upijohn
^[3] Civil Appeal No. 9 of 1996